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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) August 7, 1997
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FIRST USA BANK
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(Exact name of registrant as specified in its charter)
(ORIGINATOR OF THE FIRST USA CREDIT CARD MASTER TRUST)
Delaware 333-24227 76-0039224
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(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation or Identification Number)
organization)
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
On August 7, 1997, First USA Bank (the "Bank"), a wholly owned subsidiary
of First USA Financial, Inc., which is a wholly owned subsidiary of Banc One
Corporation, completed the securitization of approximately $783,130,000 of
credit card receivables.
First USA Credit Card Master Trust Series 1997-5 consists of $650,000,000
Class A Floating Rate Asset Backed Certificates, and $58,735,000 Class B
Floating Rate Asset Backed Certificates, each of which has an average life of
approximately seven years. Series 1997-5 also consists of $74,395,000 CIA
Certificates, which will be subordinated to the Class A and Class B certificates
and will provide credit enhancement for the benefit of certificate holders.
First USA Bank services the receivables that are included in the
securitization and will continue to service the accounts associated with such
receivables following the securitization.
Item 7. Financial Statement, Pro Forma Financial Information and Exhibits.
(a) Not applicable
(b) Not applicable
(c) Exhibits
1. Underwriting Agreement of First USA Credit Card Master Trust, Series
1997-5, dated as of July 23, 1997, between First USA Bank and J. P. Morgan
Securities Inc., as Representative of the Underwriters set forth therein.
99. Series 1997-5 Supplement, dated as of August 7, 1997, to the Pooling
and Servicing Agreement, dated as of September 1, 1992, between First USA Bank,
as Transferor and Servicer, and The Bank of New York (Delaware), as Trustee.
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SIGNATURES
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
As Servicer
By: /s/ Peter W. Atwater
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Peter W. Atwater
Executive Vice President
Date: August 28, 1997
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EXHIBIT INDEX
Exhibit No. Description Page No.
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1. Underwriting Agreement of First USA Credit Card
Master Trust, Series 1997-5, dated as of July 23,
1997, between First USA Bank and J. P. Morgan
Securities Inc., as Representative of the
Underwriters set forth therein.
99. Series 1997-5 Supplement, dated as of August 7,
1997, to the Pooling and Servicing Agreement, dated
as of September 1, 1992, between First USA Bank, as
Transferor and Servicer, and The Bank of New York
(Delaware), as Trustee.
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First USA Credit Card Master Trust
Class A Floating Rate Asset Backed Certificates,
Series 1997-5
Class B Floating Rate Asset Backed Certificates,
Series 1997-5
UNDERWRITING AGREEMENT
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July 23, 1997
J.P. Morgan Securities Inc.
as Representative of the
Underwriters set forth herein
60 Wall Street
New York, New York 10260-0060
Ladies and Gentlemen:
First USA Bank, a Delaware chartered banking corporation (the "Bank"),
has duly authorized the issuance and sale to J.P. Morgan Securities Inc. (the
"Representative"), Banc One Capital Corporation, Bear, Stearns & Co. Inc. and
Credit Suisse First Boston Corporation, as underwriters (the "Underwriters" and
each individually, an "Underwriter") of First USA Credit Card Master Trust
$650,000,000 aggregate principal amount of Class A Floating Rate Asset Backed
Certificates, Series 1997-5 (the "Class A Certificates") and $58,735,000
aggregate principal amount of Class B Floating Rate Asset Backed Certificates,
Series 1997-5 (the "Class B Certificates" and together with the Class A
Certificates, the "Certificates"). The Certificates will be issued pursuant to a
Pooling and Servicing Agreement, dated as of September 1, 1992 (the "Master
Pooling and Servicing Agreement"), as supplemented by the Series 1997-5
Supplement dated as of the Closing Date (the "Supplement" and together with the
Master Pooling and Servicing Agreement, the "Pooling and Servicing Agreement"),
each by and between the Bank, as transferor and servicer, and The Bank of New
York (Delaware) (the "Trustee").
Each Certificate will represent an undivided interest in certain
assets of First USA Credit Card Master Trust (the "Trust"). The property of the
Trust will include, among other things, receivables (the "Receivables") arising
under certain
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MasterCard(R) and VISA(R)/*/ revolving credit card accounts (the "Accounts").
Capitalized terms used and not otherwise defined herein shall have the
meanings ascribed thereto in the Pooling and Servicing Agreement.
1. Representations, Warranties and Agreements of the Bank. The Bank
represents and warrants to, and agrees with, the Underwriters as follows:
(a) The Bank has filed with the Securities and Exchange
Commission (the "Commission"), on Form S-3, a registration statement
(Registration No. 333-24227) pursuant to Rule 415 under the Securities Act of
1933, as amended (such act, the "Act"). The Bank may have filed one or more
amendments thereto each of which amendments has previously been furnished to
each of the Underwriters. The Bank will also file with the Commission a
prospectus supplement in accordance with Rule 424(b) under the Act. As filed,
the registration statement as amended, the form of prospectus supplement, and
any prospectuses or prospectus supplements filed pursuant to Rule 424(b) under
the Act relating to the Certificates shall, except to the extent that the
Underwriters shall agree in writing to a modification, be in all substantive
respects in the form furnished to the Representative prior to the Execution Time
or, to the extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that contained in the
latest preliminary prospectus supplement which has previously been furnished to
the Underwriters) as the Bank has advised the Underwriters, prior to the
Execution Time, will be included or made therein.
For purposes of this Agreement, "Effective Time" means the date and
time as of which such registration statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission, and
"Effective Date" means the date of the Effective Time. Such registration
statement, as amended at the Effective Time, and including the exhibits thereto
and any material incorporated by reference therein (including any Computational
Materials, ABS Term Sheets, Structural Term Sheets and Collateral Term Sheets
(as defined in Section 3(b) of this Agreement) filed on Form 8-K), is
hereinafter referred to as the
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/*/ VISA(R) and MasterCard(R) are registered trademarks of Visa USA
Incorporated and MasterCard International Incorporated, respectively.
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"Registration Statement," and any prospectus supplement (the "Prospectus
Supplement") relating to the Certificates, as filed with the Commission pursuant
to and in accordance with Rule 424(b) ("Rule 424(b)") under the Act is, together
with the prospectus filed as part of the Registration Statement (such
prospectus, in the form it appears in the Registration Statement or in the form
most recently revised and filed with the Commission pursuant to Rule 424(b)
being hereinafter referred to as the "Basic Prospectus"), hereinafter referred
to as the "Prospectus". "Execution Time" shall mean the date and time that
this Agreement is executed and delivered by the parties hereto.
(b) On the Effective Date and on the date of this Agreement, the
Registration Statement did or will, and, when the Prospectus was first filed and
on the Closing Date, the Prospectus did or will, comply in all material respects
with the applicable requirements of the Act and the rules and regulations of the
Commission (the "Rules and Regulations"); on the Effective Date, the
Registration Statement did not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and on the date of any
filing pursuant to Rule 424(b) and on the Closing Date, the Prospectus did not
or will not include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however,
that the Bank makes no representation or warranty as to the information
contained in or omitted from the Registration Statement or the Prospectus in
reliance upon and in conformity with information furnished in writing to the
Bank by the Underwriters specifically for use in connection with preparation of
the Registration Statement or the Prospectus.
(c) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, (i) there has not been any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, business, management,
financial condition, stockholders' equity, results of operations, regulatory
status or business prospects of the Bank and (ii) the Bank has not entered into
any transaction or agreement (whether or not in the ordinary course of business)
material to the Bank that, in either case, would reasonably be expected to
materially adversely affect the interests of the holders of the Certificates,
otherwise than as set forth or contemplated in the Prospectus.
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(d) The Bank is duly organized, validly existing and in good
standing as a banking corporation under the laws of the State of Delaware and is
qualified to transact business in and is in good standing under the laws of each
state in which its activities require such qualification, and has full power,
authority and legal right to own its properties and conduct its business as such
properties are presently owned and such business is presently conducted, and to
execute, deliver and perform its obligations under this Agreement, the Spread
Account Agreement dated as of the Closing Date by and among the Bank, as
Transferor and Servicer, the Trustee and The Bank of New York, as initial
collateral agent (the "Spread Account Agreement"), the Pooling and Servicing
Agreement, and the Certificates.
(e) This Agreement has been duly authorized and validly executed
and delivered by the Bank.
(f) The Pooling and Servicing Agreement has been duly authorized
and, when executed and delivered by the Bank and assuming the due authorization,
execution and delivery thereof by the Trustee, will constitute a valid and
binding obligation of the Bank enforceable against the Bank in accordance with
its terms, subject to applicable bankruptcy, reorganization, insolvency and
similar laws affecting creditors' rights generally and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is pursuant to a proceeding in equity or at law). As of the Closing
Date, the Pooling and Servicing Agreement will have been duly and validly
executed by the Bank and will conform in all material respects to the
description thereof contained in the Prospectus.
(g) The Certificates have been duly and validly authorized by all
required action of the Bank, and when duly and validly executed by the Bank,
authenticated by the Trustee and delivered in accordance with the Pooling and
Servicing Agreement, and delivered to and paid for by the Underwriters as
provided herein, will be validly issued and outstanding and entitled to the
benefits of the Pooling and Servicing Agreement. As of the Closing Date, the
Certificates will have been duly and validly executed by the Bank, and will
conform in all material respects to the descriptions thereof contained in the
Prospectus.
(h) The Spread Account Agreement has been duly authorized, and
when executed and delivered by the Bank and assuming the due authorization,
execution and delivery thereof by the other parties thereto, will constitute a
valid and binding obligation of the Bank enforceable against the Bank in
accordance with its terms, subject to applicable bankruptcy, reorganization,
insolvency and similar laws affecting creditors' rights generally
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and subject, as to enforceability, to general principles of equity (regardless
of whether enforcement is pursuant to a proceeding in equity or at law). As of
the Closing Date, the Spread Account Agreement will have been validly executed
by the Bank.
(i) The Receivables delivered on the Closing Date to the Trustee
pursuant to the Pooling and Servicing Agreement will conform in all material
respects with the description thereof contained in the Prospectus.
(j) Neither the transfer of the Receivables to the Trustee, nor
the issuance, sale and delivery of the Certificates, nor the execution or
delivery of this Agreement, the Spread Account Agreement, or the Pooling and
Servicing Agreement, nor the consummation of any of the transactions herein or
therein contemplated, nor the fulfillment of the terms of the Certificates, the
Pooling and Servicing Agreement, the Spread Account Agreement, or this
Agreement, will result in the breach of any term or provision of the charter or
by-laws of the Bank, or conflict with, result in a breach, violation or
acceleration of, or constitute a default under, the terms of any indenture or
other agreement or instrument to which the Bank is a party or by which it or its
properties is bound or may be affected or any statute, order or regulation
applicable to the Bank of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Bank or will result
in the creation of any Lien upon any property or assets of the Bank (other than
as contemplated in the Pooling and Servicing Agreement). The Bank is not a party
to, bound by, or in breach or violation of, any indenture or other agreement or
instrument, or subject to or in violation of any statute, order or regulation of
any court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over it, that materially and adversely affects
the ability of the Bank to perform its obligations under this Agreement, the
Pooling and Servicing Agreement, the Spread Account Agreement, or the
Certificates.
(k) There are no charges, investigations, actions, suits, claims
or proceedings before or by any court, regulatory body, administrative agency,
governmental body or arbitrator now pending or, to the best knowledge of the
Bank, threatened that, separately or in the aggregate (i) could have a material
adverse effect on (x) the general affairs, business, management, financial
condition, stockholders' equity, results of operations, regulatory status or
business prospects of the Bank or (y) the ability of the Bank to perform its
obligations under this Agreement, the Spread Account Agreement, the Pooling and
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Servicing Agreement, or the Certificates, (ii) assert the invalidity of this
Agreement, the Spread Account Agreement, the Pooling and Servicing Agreement, or
the Certificates, (iii) seek to prevent the issuance, sale or delivery of the
Certificates or any of the transactions contemplated by this Agreement, the
Spread Account Agreement, or the Pooling and Servicing Agreement or (iv) seek to
affect adversely the federal income tax or ERISA attributes of the Certificates
described in the Prospectus.
(l) No federal, state or local tax, including intangibles tax or
documentary stamp tax, the non-payment of which would result in the imposition
of a Lien on the Receivables or of transferee liability on the Trustee, is
imposed with respect to the conveyance of the Receivables from the Bank to the
Trust, or in connection with the issuance of the Certificates by the Trust, or
the holding of the Receivables by the Trust, or in connection with any of the
other transactions contemplated by this Agreement, the Spread Account Agreement,
or the Pooling and Servicing Agreement. Any taxes, fees and other governmental
charges in connection with the execution, delivery and issuance of the
Certificates or the execution and delivery of this Agreement, the Spread
Account Agreement, or the Pooling and Servicing Agreement have been or will have
been paid at or prior to the Closing Date.
(m) As of the Closing Date, the representations and warranties of
the Bank in the Pooling and Servicing Agreement, with regard to itself as both
transferor and servicer and the Receivables (individually and in the aggregate),
will be true and correct.
(n) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is required
for the execution, delivery and performance by the Bank of or compliance by the
Bank with this Agreement, the Spread Account Agreement, the Pooling and
Servicing Agreement, or the Certificates or the consummation of the transactions
contemplated hereby or thereby except the filing of Uniform Commercial Code
financing statements with respect to the Receivables and to the approval of the
Office of the State Bank Commissioner of the State of Delaware.
(o) Coopers & Lybrand L.L.P. who have audited certain financial
statements of the Bank are independent public accountants as required by the Act
and the Rules and Regulations.
(p) As of the close of business on June 30, 1997, the Principal
Receivables transferred to the Trust pursuant to the Pooling and Servicing
Agreement have an aggregate balance
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determined, including the Receivables in the Additional Accounts to be added to
the Trust on or prior to the Closing Date, of not less than the sum of (i) the
sum of (x) the aggregate outstanding principal amount of all classes of all
Series outstanding on June 30, 1997, plus (y) $783,130,000 plus (ii) 7% of the
sum of (x) plus (y).
(q) The Trust is not, and will not be as a result of the issuance
and sale of the Certificates, an "investment company" or a company "controlled
by" an investment company within the meaning of the Investment Company Act of
1940, as amended (the "1940 Act").
2. Purchase, Sale, Payment and Delivery of Certificates. On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Bank agrees to sell to
the Underwriters, and the Underwriters agree, severally and not jointly, to
purchase from the Bank, on August 7, 1997 or on such other date as shall be
mutually agreed upon by the Bank and the Underwriters (the "Closing Date"), the
number and type of Certificates set forth in Schedule A opposite the name of
each such Underwriter. The Class A Certificates being purchased by the
Underwriters hereunder are to be purchased at a purchase price equal to 99.65%
of the principal amount thereof. The Class B Certificates being purchased by the
Underwriters hereunder are to be purchased at a purchase price equal to 99.60%
of the principal amount thereof.
The closing of the sale of the Certificates (the "Closing") shall be
held at the offices of Skadden, Arps, Slate, Meagher & Flom LLP, 919 Third
Avenue, New York, New York 10022, at 10:00 a.m., New York City time, on the
Closing Date. Payment of the purchase price for the Certificates being sold and
purchased hereunder shall be made on the Closing Date by wire transfer of
federal or other immediately available funds to an account to be designated one
business day prior to the Closing Date by the Bank, against delivery of the
Certificates at the Closing on the Closing Date. Each of the Certificates to be
so delivered shall be represented by one or more definitive certificates
registered in the name of Cede & Co., as nominee for The Depository Trust
Company.
3. Offering by Underwriters. (a) It is understood that after the
Effective Date the Underwriters propose to offer the Certificates for sale to
the public as set forth in the Prospectus.
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(b) Each Underwriter may provide to prospective investors the
1997-5 Term Sheet dated July 22, 1997 relating to the Certificates (the "1997-5
Term Sheet") prepared by the Bank and attached hereto as Exhibit A, subject to
the following conditions:
(i) Such Underwriter shall have complied with the requirements of
the no-action letter, dated May 20, 1994, issued by the Commission to Kidder,
Peabody Acceptance Corporation I, Kidder, Peabody & Co. Incorporated and Kidder
Structured Asset Corporation, as made applicable to other issuers and
underwriters by the Commission in the response to the request of the Public
Securities Association, dated May 24, 1994 (collectively, the "Kidder/PSA
Letter"), the requirements of the no-action letter, dated February 17, 1995,
issued by the Commission to the Public Securities Association (the "PSA Letter")
and the requirements of the no-action letter, dated April 5, 1996, issued by the
Commission to Greenwood Trust Company (the "Greenwood Letter" and together with
the Kidder/PSA Letter and the PSA Letter, the "No-Action Letters").
(ii) Each Underwriter, severally, represents and warrants to the
Bank that (a) it has not and will not use any information that constitutes
"Computational Materials" with respect to the offering of the Certificates
unless it has obtained the prior written consent of the Bank to such usage and
(b) other than the 1997-5 Term Sheet, it has not and will not use any
information that constitutes "Series Term Sheets," "ABS Term Sheets,"
"Structural Term Sheets," or "Collateral Term Sheets" with respect to the
offering of the Certificates. For purposes hereof, "Series Term Sheet" shall
have the meaning given such term in the Greenwood Letter and "Computational
Materials" shall have the meaning given such term in the No-Action Letters. For
purposes hereof, "ABS Term Sheets," "Structural Term Sheets" and "Collateral
Term Sheets" shall have the meanings given such terms in the PSA Letter.
4. Certain Agreements of the Bank. The Bank covenants and agrees
with the several Underwriters as follows:
(a) Immediately following the execution of this Agreement, the
Bank will prepare a Prospectus Supplement setting forth the amount of
Certificates covered thereby and the terms thereof not otherwise specified in
the Basic Prospectus, the price at which such Certificates are to be purchased
by the Underwriters, the initial public offering price, the selling concessions
and allowances, and such other information as the Bank deems appropriate. The
Bank will transmit the Prospectus including such Prospectus Supplement to the
Commission pursuant
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to Rule 424(b) by a means reasonably calculated to result in filing that
complies with all applicable provisions of Rule 424(b). The Bank will advise
the Representative promptly of any such filing pursuant to Rule 424(b).
(b) The Bank will advise the Representative promptly of any
proposal to amend or supplement the Registration Statement or the Prospectus and
will not effect such amendment or supplement without the consent of the
Representative, which consent will not unreasonably be withheld; the Bank will
also advise the Representative promptly of any request by the Commission for
any amendment of or supplement to the Registration Statement or the Prospectus
or for any additional information; and the Bank will also advise the
Representative promptly of any amendment or supplement to the Registration
Statement or the Prospectus and of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threat of any proceeding for that purpose and the Bank will use
its best efforts to prevent the issuance of any such stop order and to obtain as
soon as possible the lifting of any issued stop order.
(c) If, at any time when a prospectus relating to the
Certificates is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, or if it is necessary at any time to amend or
supplement the Prospectus to comply with the Act, the Bank promptly will advise
the Representative thereof and will prepare and file, or cause to be prepared
and filed, with the Commission an amendment or supplement which will correct
such statement or omission, or an amendment or supplement which will effect such
compliance. Any such filing shall not operate as a waiver or limitation on any
condition or right of the Underwriters hereunder.
(d) As soon as practicable, but not later than sixteen months
after the original effective date of the Registration Statement, the Bank will
cause the Trust to make generally available to Certificateholders an earnings
statement (or statements) of the Trust covering a period of at least twelve
months beginning after the effective date of the Registration Statement which
will satisfy the provisions of Section 11(a) of the Act and Rule 158 promulgated
thereunder.
(e) The Bank will furnish to the Underwriters copies of the
Registration Statement (one of which will be signed
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and will include all exhibits), each related preliminary prospectus or
prospectus supplement, the Prospectus and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as the
Underwriters request.
(f) The Bank will promptly, from time to time, take such action
as any Underwriter may reasonably request to qualify the Certificates for
offering and sale under the securities laws of such jurisdictions as such
Underwriter may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as long as
may be necessary to complete the distribution of the Certificates, provided that
in connection therewith the Bank shall not be required to qualify as a foreign
corporation or dealer in securities or to file a general consent to service of
process in any jurisdiction.
(g) For a period from the date of this Agreement until the
retirement of the Certificates, the Bank will deliver to the Representative the
annual statements of compliance and the annual independent certified public
accountants' reports furnished to the Trustee pursuant to the Pooling and
Servicing Agreement, as soon as such statements and reports are furnished to the
Trustee.
(h) So long as any of the Certificates are outstanding, the Bank
will furnish to the Representative (i) as soon as practicable after the end of
the fiscal year all documents required to be distributed to Certificateholders
or filed with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or any order of the Commission thereunder and (ii)
from time to time, any other information concerning the Bank filed with any
government or regulatory authority which is otherwise publicly available, as the
Representative reasonably requests.
(i) To the extent, if any, that the rating provided with respect
to the Certificates by the rating agency or agencies that initially rate the
Certificates is conditional upon the furnishing of documents or the taking of
any other actions by the Bank, the Bank shall use its best efforts to furnish
such documents and take any such other actions.
(j) The Bank will file with the Commission a report on Form 8-K
with respect to the 1997-5 Term Sheet and a report on Form 8-K setting forth all
Computational Materials described in Section 3 hereof provided to the Bank by
any of the Underwriters and identified by such Underwriter as such within
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the time period allotted for such filing pursuant to the No-Action Letters.
5. Payment of Expenses. The Bank will pay all expenses incident to
the performance of its obligations under this Agreement, including (i) the
printing of the 1997-5 Term Sheet and any Computational Materials described in
Section 3 hereof, (ii) the printing of the Prospectus and of each amendment or
supplement thereto, (iii) the preparation of this Agreement, the Spread Account
Agreement, and the Pooling and Servicing Agreement, (iv) the preparation,
issuance and delivery of the Certificates to the Underwriters, (v) the fees and
disbursements of the Bank's counsel and accountants, (vi) the qualification of
the Certificates under securities laws in accordance with the provisions of
Section 4(f) hereof, including filing fees and the fees and disbursements of
counsel for the Underwriters and in connection with the preparation of any blue
sky and legal investment survey, (vii) the printing and delivery to the
Underwriters of copies of the 1997-5 Term Sheet and any Computational Materials
described in Section 3 hereof, (viii) the printing and delivery to the
Underwriters of copies of the Prospectus and of each amendment or supplement
thereto, (ix) the printing and delivery to the Underwriters of copies of any
blue sky or legal investment survey prepared in connection with the
Certificates, (x) any fees charged by rating agencies for the rating of the
Certificates, (xi) the fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc. and (xii) the
fees and expenses of the Trustee and its counsel. The Underwriters have agreed
to reimburse the Bank for expenses not to exceed $191,868 incurred by the Bank
in connection with the issuance and distribution of the Certificates.
6. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Certificates
will be subject to the accuracy of the representations and warranties on the
part of the Bank herein, to the accuracy of the statements of officers of the
Bank made pursuant to the provisions hereof, to the performance by the Bank of
its obligations hereunder and to the following additional conditions precedent:
(a) The Prospectus and any supplements thereto shall have been
filed (if required) with the Commission in accordance with the rules and
regulations under the Act and Section 1 hereof, and prior to the Closing Date,
no stop order suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have been instituted
or, to the knowledge of the Bank, shall be contemplated by
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the Commission or by any authority administering any state securities or blue
sky law.
(b) On or prior to the date of the Prospectus and on or prior to
the Closing Date, the Underwriters shall have received a letter or letters,
dated as of the date of the Prospectus and as of the Closing Date, respectively,
of Coopers & Lybrand L.L.P., Certified Public Accountants, substantially in the
form of the drafts to which the Representative has previously agreed and
otherwise in form and substance satisfactory to the Representative and its
counsel.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or properties of
the Trust, or the Bank which, in the judgment of the Representative, materially
impairs the investment quality of the Certificates or makes it impractical or
inadvisable to market the Certificates; (ii) any suspension or limitation on
trading in securities generally on the New York Stock Exchange or the National
Association of Securities Dealers National Market system, or any setting of
minimum prices for trading on such exchange or market system; (iii) any
suspension of trading of any securities of BANC ONE CORPORATION on any exchange
or in the over-the-counter market which materially impairs the investment
quality of the Certificates or makes it impractical or inadvisable to market the
Certificates; (iv) any banking moratorium declared by Federal, Delaware or New
York authorities; or (v) any outbreak or escalation of major hostilities or
armed conflict, any declaration of war by Congress, or any other substantial
national or international calamity or emergency if, in the judgment of the
Representative, the effect of any such outbreak, escalation, declaration,
calamity, or emergency makes it impractical or inadvisable to proceed with
completion of the sale of and payment for the Certificates.
(d) At the Closing Date, the Bank shall have furnished to the
Representative certificates of a vice president or more senior officer of the
Bank as to the accuracy of the representations and warranties of the Bank herein
at and as of the Closing Date, as to the performance by the Bank of all of its
obligations hereunder to be performed at or prior to such Closing Date, and as
to such other matters as the Representative may reasonably request.
(e) Joanne Sundheim, Associate General Counsel of First USA Bank,
shall have furnished to the Representative her written opinion, addressed to the
Representative and dated the
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Closing Date, in form and substance satisfactory to the Representative and its
counsel, substantially to the effect that:
(i) The Bank has been duly incorporated and is validly
existing as a bank in good standing under the laws of the State of
Delaware with full power and authority (corporate and other) to own
its properties and conduct its business, as presently owned and
conducted by it, and to enter into and perform its obligations under
this Agreement, the Spread Account Agreement and the Pooling and
Servicing Agreement (collectively referred to in this subsection (e)
as the "Agreements"), and the Certificates and had at all times, and
now has, the power, authority and legal right to acquire, own and
transfer the Receivables;
(ii) The Bank is duly qualified to do business and is in
good standing, and under state laws, as they are currently interpreted
and enforced, has obtained all necessary licenses and approvals in
each jurisdiction in which failure to qualify or to obtain such
licenses or approvals would materially and adversely affect the
enforceability of any Receivable by the Bank or the Trustee or would
adversely affect the ability of the Bank to perform its obligations
under the Agreements or the Certificates;
(iii) The Certificates have been duly authorized, executed
and delivered by the Bank and, when duly authenticated by the Trustee
in accordance with the terms of the Pooling and Servicing Agreement
and delivered to and paid for by the Underwriters in accordance with
the terms of this Agreement, will be validly issued and outstanding
and entitled to the benefits provided by the Pooling and Servicing
Agreement;
(iv) Each of the Agreements has been duly authorized,
executed and delivered by the Bank and constitutes the legal, valid
and binding agreement of the Bank enforceable against the Bank in
accordance with its terms, subject, as to enforceability to
13
<PAGE>
(A) the effect of bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation and other similar laws relating to or
affecting the rights and remedies of creditors generally, and (B) the
application of principles of equity (regardless of whether considered
and applied in a proceeding in equity or at law) and the rights and
powers of the FDIC;
(v) The Trust is not now, and immediately following the
sale of the Certificates pursuant to the Underwriting Agreement will
not be, required to register under the 1940 Act;
(vi) No consent, approval, authorization or order of any
governmental agency or body is required for (A) the execution,
delivery and performance by the Bank of its obligations under the
Agreements or the Certificates, or (B) the issuance or sale of the
Certificates, except such as have been obtained under the Act and as
may be required under state securities or blue sky laws in connection
with the purchase and distribution of the Certificates by the
Underwriters and the filing of Uniform Commercial Code financing
statements with respect to the Receivables and the approval of the
Office of the State Bank Commissioner of the State of Delaware;
(vii) To the best knowledge of such counsel, neither the
execution and delivery of the Agreements or the Certificates by the
Bank nor the performance by the Bank of the transactions therein
contemplated nor the fulfillment of the terms thereof does or will
result in any violation of any statute or regulation or any order or
decree of any court or governmental authority binding upon the Bank or
its property, or conflict with, or result in a breach or violation of
any term or provision of, or result in a default under any of the
terms and provisions of, the Bank's charter or by-laws or any material
indenture, loan agreement or other
14
<PAGE>
material agreement to which the Bank is a party or by which the Bank
is bound;
(viii) To the knowledge of such counsel after due
investigation, there are no legal or governmental proceedings pending
to which the Bank is a party or to which the Bank is subject which,
individually or in the aggregate (A) would have a material adverse
effect on the ability of the Bank to perform its obligations under the
Agreements or the Certificates, (B) assert the invalidity of the
Agreements or the Certificates, (C) seek to prevent the issuance, sale
or delivery of the Certificates or any of the transactions
contemplated by the Agreements or (D) seek to affect adversely the
federal income tax or ERISA attributes of the Certificates described
in the Prospectus;
(ix) The Registration Statement and the Prospectus
(except for the financial statements, financial schedules and other
financial and operating data included therein, as to which such
counsel expresses no view) comply as to form with the Act and the
Rules and Regulations;
(x) The Registration Statement has become effective
under the Act, and the Prospectus Supplement will be filed with the
Commission pursuant to Rule 424(b) thereunder; and
(xi) Such counsel has not independently verified and is
not passing upon, and does not assume any responsibility for, the
accuracy, completeness or fairness of the information contained in the
Registration Statement and Prospectus. Based upon discussion with the
Bank, its accountants and others, however, no facts have come to its
attention that cause it to believe that the Prospectus (except for the
financial statements, financial schedules and other financial and
statistical data included therein, as to which such counsel expresses
no view), contains any untrue statement of a material fact or omits to
state a material
15
<PAGE>
fact required to be stated therein or necessary in order to make the
statements therein not misleading.
(f) The Representative shall have received a letter from Skadden,
Arps, Slate, Meagher & Flom LLP, special counsel for the Bank, to the
effect that the Representative may rely on those provisions of their
opinions to Moody's Investors Service, Inc. ("Moody's") and Standard &
Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc.
("Standard & Poor's") with respect to certain matters relating to the
transfer of the Receivables to the Trust, with respect to the perfection of
the Trust's interest in the Receivables and with respect to other related
matters.
(g) The Representative shall have received an opinion of Skadden,
Arps, Slate, Meagher & Flom LLP, special counsel to the Bank, addressed to
the Representative, dated the Closing Date and satisfactory in form and
substance to the Representative and its counsel, to the effect that the
Certificates will be treated as indebtedness for Federal income tax
purposes and for Delaware income tax purposes.
(h) The Representative shall have received from Skadden, Arps,
Slate, Meagher & Flom LLP, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, substantially to the effect that:
(i) Each of the Pooling and Servicing Agreement and the
Spread Account Agreement (collectively referred to in this subsection
(h) as the "Agreements") constitutes the valid and binding obligation
of the Bank, enforceable against the Bank in accordance with its
terms, except (x) to the extent that the enforceability thereof may be
limited by (a) bankruptcy, insolvency, receivership, reorganization,
moratorium or other similar laws now or hereafter in effect relating
to creditors' rights generally and the rights of creditors of Delaware
chartered banks as the same may be applied in the event of the
bankruptcy, insolvency, receivership, reorganization, moratorium or
other similar event in respect of the Bank, (b) general principles of
equity (regardless of whether enforceability
16
<PAGE>
is considered in a proceeding at law or in equity) and (c) the
qualification that certain of the remedial provisions of the
Agreements may be unenforceable in whole or in part, but the inclusion
of such provisions does not affect the validity of the Agreements
taken as a whole, and the Agreements, together with applicable law,
contain adequate provisions for the practical realization of the
benefits of the security created thereby and (y) such counsel
expresses no opinion as to the enforceability of any rights to
contribution or indemnification which are violative of public policy
underlying any law, rule or regulation;
(ii) The Certificates, when executed and authenticated in
accordance with the terms of the Pooling and Servicing Agreement and
delivered to and paid for by the Underwriters pursuant to this
Agreement, will be duly and validly issued and outstanding and will be
entitled to the benefits of the Pooling and Servicing Agreement;
(iii) This Agreement has been duly authorized, executed and
delivered by the Bank;
(iv) Neither the execution, delivery or performance by the
Bank of the Agreements or this Agreement, nor the compliance by the
Bank with the terms and provisions thereof or hereof, will contravene
any provision of any applicable law;
(v) Based on such counsel's review of applicable laws, no
governmental approval, which has not been obtained or taken and is not
in full force and effect, is required to authorize or is required in
connection with the execution, delivery or performance of the
Agreements by the Bank;
(vi) The Certificates, the Agreements and this Agreement
conform in all material respects to the descriptions thereof contained
in the Prospectus;
17
<PAGE>
(vii) The Pooling and Servicing Agreement is not required to
be qualified under the Trust Indenture Act of 1939, as amended, and
the Trust is not required to be registered under the 1940 Act;
(viii) The statements in the Prospectus under the heading
"Certain Legal Aspects of the Receivables", to the extent that they
constitute matters of law or legal conclusions with respect thereto,
have been reviewed by such counsel and are correct in all material
respects; and
(ix) Each of the Registration Statement, as of its effective
date, and the Prospectus, as of its date, appeared on its face to be
appropriately responsive in all material respects to the requirements
of the Act and the General Rules and Regulations under the Act, except
that in each case such counsel expresses no opinion as to the
financial data included therein or excluded therefrom or the exhibits
to the Registration Statement, and such counsel does not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus.
Such opinion shall also state that such counsel has participated
in conferences with officers and representatives of the Bank, counsel for
the Bank, representatives of the independent accountants of the Bank and
the Underwriters at which the contents of the Prospectus and related
matters were discussed and, although such counsel need not pass upon, and
need not assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Prospectus and shall have made
no independent check or verification thereof, except for those made under
the caption "Certain Legal Aspects of the Receivables" to the extent set
forth in paragraph (viii) above, on the basis of the foregoing, no facts
shall have come to such counsel's attention that shall have led such
counsel to believe that the Prospectus, as of its date, contained an untrue
statement of a material fact or omitted to state a material fact necessary
in order to make the statements therein, in light of the circumstances
under
18
<PAGE>
which they were made, not misleading, except that such counsel need not
express an opinion or belief with respect to the financial statements,
schedules and other financial information included in such Prospectus or
excluded therefrom.
(i) McGuire, Woods, Battle & Boothe, L.L.P., counsel for The Bank
of New York, a New York banking corporation ("BONY"), in connection with
the Agency Agreement dated as of December 4, 1995 between BONY and the
Trustee (the "Agency Agreement"), and counsel for the Trustee, shall have
furnished to the Representative their written opinion, addressed to the
Representative and dated the Closing Date, in form and substance
satisfactory to the Representative and its counsel, substantially to the
effect that:
(i) BONY is a banking corporation duly organized, validly
existing and in good standing under the laws of the State of New York
and has the corporate power and authority to execute, deliver and
perform its obligations under the Agency Agreement;
(ii) the Certificates have been duly authenticated by BONY
pursuant to the Agency Agreement and in accordance with the Pooling
and Servicing Agreement;
(iii) the Trustee is a banking corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware and has the corporate power and authority to execute, deliver
and perform its obligations under the Pooling and Servicing Agreement
and the Spread Account Agreement;
(iv) the Supplement and the Spread Account Agreement have
been duly authorized, executed and delivered by the Trustee, and the
Pooling and Servicing Agreement and the Spread Account Agreement
constitute the legal, valid and binding agreements of the Trustee
enforceable against the Trustee in accordance with their respective
terms, except (x) as may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to
19
<PAGE>
or affecting the rights of creditors generally (as such laws would
apply in the event of the insolvency, receivership, conservatorship or
reorganization of, or other similar occurrence with respect to, the
Trustee), (y) that the enforceability of the Pooling and Servicing
Agreement and the Spread Account Agreement may be subject to the
application of general principles of equity (regardless of whether
considered or applied in a proceeding in equity or at law), and (z)
that certain remedial provisions of the Pooling and Servicing
Agreement may be unenforceable in whole or in part, but the inclusion
of such provisions does not affect the validity of the Pooling and
Servicing Agreement taken as a whole, and the Pooling and Servicing
Agreement, together with applicable law, contains adequate provisions
for the practical realization of the benefits of the security provided
thereby. Such counsel expresses no opinion as to the enforceability of
any rights to contribution or indemnification that are violative of
public policy underlying any law, rule or regulation;
(v) the execution and delivery by the Trustee of the
Supplement and the Spread Account Agreement and the performance by the
Trustee of its obligations under the Pooling and Servicing Agreement
and the Spread Account Agreement do not conflict with or result in a
violation of (x) any law or regulation of the United States of America
or the State of Delaware governing the banking or trust activities of
the Trustee or (y) the amended and restated articles of association or
by-laws of the Trustee; and
(vi) the execution and delivery by the Trustee of the
Supplement and the Spread Account Agreement and the performance by the
Trustee of its obligations under the Pooling and Servicing Agreement
and the Spread Account Agreement do not require any approval,
authorization or other action by, or filing with, any governmental
authority of the United States of America or the State of Delaware
having jurisdiction over the banking or trust
20
<PAGE>
activities of the Trustee, except such as have been obtained, taken or
made.
(j) The Representative shall have received evidence satisfactory
to the Representative and its counsel that, on or before the Closing Date,
UCC-1 financing statements have been filed in the appropriate filing
offices of the State of Delaware and such other jurisdictions as counsel to
the Bank deems appropriate to reflect the interest of the Trustee in the
Receivables.
(k) The Class A Certificates shall be rated "AAA" by Standard &
Poor's and "Aaa" by Moody's and the Class B Certificates shall be rated at
least "A" by Standard & Poor's and rated at least "A2" by Moody's on the
Closing Date, and letters to such effect dated the Closing Date shall have
been received from each Rating Agency.
(l) The Representative shall have received evidence satisfactory
to the Representative that, on or before the Closing Date, the Bank shall
have received the approval of the Office of the State Bank Commissioner of
the State of Delaware to the transaction.
(m) All proceedings in connection with the transactions
contemplated by this Agreement and all documents incident thereto shall be
satisfactory inform and substance to the Representative and its counsel,
and the Representative and its counsel shall have received such
information, certificates and documents as any of them may reasonably
request.
7. Indemnification and Contribution.
(a) The Bank agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Act and under Section 20 of the Exchange
Act against any and all losses, claims, damages or liabilities to which
they may become subject insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or in any revision
or amendment thereof or supplement thereto or any related preliminary pro-
21
<PAGE>
spectus, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, and agrees to reimburse
each such indemnified party for any legal or other expenses reasonably
incurred by it in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Bank will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Bank by any Underwriter specifically for use
therein or any revision or amendment thereof or supplement thereto. The
foregoing indemnification with respect to any untrue statement or omission
in any preliminary prospectus or prospectus supplement shall not inure to
the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased Certificates, or any
person controlling such Underwriter, if a copy of the Prospectus (as then
amended or supplemented if the Bank shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person, if such is required by law, at or prior to the
written confirmation of the sale of such Certificates to such person and if
the Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such loss, claim, damage or liability provided that the Bank
shall have identified to such Underwriter in writing such defect prior to
the delivery of such written confirmation by such Underwriter to such
person.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Bank, its directors, each of the Bank's
officers who signed the Registration Statement and each person, if any, who
controls the Bank within the meaning of Section 15 of the Act and under
Section 20 of the Exchange Act against any and all losses, claims, damages
or liabilities to which they may become subject insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus, or
in any revision or amendment thereof or supplement thereto or any related
preliminary prospectus
22
<PAGE>
or prospectus supplement, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the
Bank by such Underwriter specifically for use therein or any revision or
amendment thereof or supplement thereto, and agrees to reimburse such
indemnified party for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
damage or liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this
Section 7 of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve the indemnifying party from any liability which it may
have to any indemnified party other than under this Section 7. In the event
that any such action is brought against any indemnified party and it
notified the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified
party, to assume the defense thereof, with counsel reasonably satisfactory
to such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable to
such indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been
a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional
23
<PAGE>
release of such indemnified party from all liability on claims that are the
subject matter of such proceeding.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnifying party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or (b)
above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Bank on the one hand and the respective
Underwriter on the other from the offering of the Certificates or (ii) if
the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Bank on the one hand and of the respective Underwriter on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Bank on the one hand
and the respective Underwriter on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Bank bear to the total underwriting
discounts and commissions received by such Underwriter. The relative fault
shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Bank or by any Underwriter and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result
of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of
this subsection (d). Notwithstanding the provisions of this subsection (d),
each Underwriter shall not be required to contribute any amount in excess
of the underwriting discount or commission applicable to the Certificates
purchased by it hereunder. The Bank and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this subsection
(d) were determined by pro
24
<PAGE>
rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take
account of any of the equitable considerations referred to above in this
subsection (d). No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
8. Survival. The Bank and the Underwriters agree that the
respective representations, warranties and agreements made by them herein
and in any certificate or other instrument delivered pursuant hereto shall
be deemed to be relied upon, in the case of the Bank, by each Underwriter
and, in the case of the Underwriters, by the Bank, notwithstanding any
investigation heretofore or hereafter made by or on behalf of the Bank or
the Underwriters, and that the respective representations, warranties and
agreements (including without limitation the indemnity and contribution
agreement) made by the Bank and the Underwriters herein or in any such
certificate or other instrument shall survive the delivery of and payment
for the Certificates.
9. Termination. This Agreement may be terminated in the sole
discretion of the Underwriters by notice to the Bank given at or prior to
the Closing Date in the event that the Bank shall have failed, refused or
been unable to perform all obligations and satisfy all conditions on its
part to be performed or satisfied hereunder at or prior thereto.
Termination of this Agreement pursuant to this Section 9 shall be without
liability of any party to any other party except as provided in Sections 5
and 7 hereof.
10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail on the Closing Date to purchase the
Certificates which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the lead Underwriter shall have the
right, within 24 hours thereafter, to make arrangements for one or more of
the non-defaulting Underwriters, or any other underwriters, to purchase
all, but not less than all, of the Defaulted Securities in such amounts as
may be agreed upon and upon the terms herein set forth; if, however, the
Representative shall not have completed such arrangements within such 24-
hour period, then:
25
<PAGE>
(a) if the aggregate amount of Defaulted Securities does not exceed 10% of
the aggregate principal amount of the applicable class of Certificates,
each of the non-defaulting Underwriters of such class of Certificates shall
be obligated to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder with respect to such
class of Certificates bear to the underwriting obligations of all non-
defaulting Underwriters of such class of Certificates, or
(b) if the aggregate amount of Defaulted Securities exceeds 10% of the
aggregate principal amount of the applicable class of Certificates, this
Agreement shall terminate without liability on the part of any non-
defaulting Underwriter.
No action taken pursuant to this section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the Representative or the Bank shall have the right to
postpone the Closing Date for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements.
11. Representation of the Underwriters. Each of the Underwriters
represents and warrants to, and agrees with, the Bank that (w) it has only
issued or passed on and shall only issue or pass on in the United Kingdom any
document received by it in connection with the issue of the Certificates to a
person who is of a kind described in Article 11(3) of the Financial Services Act
1986 (Investment Advertisements) (Exemptions) Order 1996 or who is a person to
whom the document may otherwise lawfully be issued or passed on, (x) it has
complied and shall comply with all applicable provisions of the Financial
Services Act 1986 and other applicable laws and regulations with respect to
anything done by it in relation to the Certificates in, from or otherwise
involving the United Kingdom and (y) if that Underwriter is an authorized person
under the Financial Services Act 1986, it has only promoted and shall only
promote (as that term is defined in Regulation 1.02 of the Financial Services
(Promotion of Unregulated
26
<PAGE>
Schemes) Regulations 1991) to any person in the United Kingdom the scheme
described in the Prospectus if that person is of a kind described either in
Section 76(2) of the Financial Services Act 1986 or in Regulation 1.04 of the
Financial Services (Promotion of Unregulated Schemes) Regulations 1991.
12. Notices. All communications provided for or permitted hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered, sent by overnight courier or mailed by registered mail, postage
prepaid and return receipt requested, or transmitted by telex, telegraph or
telecopier and confirmed by a similar mailed writing, if to (a) the
Underwriters, addressed to J.P. Morgan Securities Inc., 60 Wall Street, New
York, New York 10260-0060 Attention: ABS Trading/Syndicate, or to such other
address as the Representative may designate in writing to the Bank or (b) the
Bank, addressed to the Bank at 201 North Walnut Street, Wilmington, Delaware
19801, Attention: Clinton W. Walker, Senior Vice President and General Counsel,
telephone: (302) 434-7677, telecopier: (302) 884-8361, with a copy to First USA
Financial, Inc., 1601 Elm Street, 46th Floor, Dallas, Texas 75201, Attention:
John Mark Bunnel, Vice President-Corporate Finance, telephone: (214) 849-2493,
telecopier: (214) 849-2472.
13. Secondary Trusts. Each Underwriter, severally, represents that
it will not, at any time that such Underwriter is acting as an "underwriter" (as
defined in Section 2(11) of the Act) with respect to the Certificates, transfer,
deposit or otherwise convey any Certificates into a trust or other type of
special purpose vehicle that issues securities or other instruments backed in
whole or in part by, or that represents interests in, such Certificates without
the prior written consent of the Bank.
14. Successors. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns.
Nothing expressed herein is intended or shall be construed to give any person
other than the persons referred to in the preceding sentence any legal or
equitable right, remedy or claim under or in respect of this Agreement.
15. Severability of Provisions. Any covenant, provision, agreement
or term of this Agreement that is prohibited or is held to be void or unenforce-
27
<PAGE>
able in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof.
16. Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties hereto with respect to the matters
and transactions contemplated hereby and supersedes all prior agreements and
understandings whatsoever relating to such matters and transactions.
17. Amendment. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought.
18. Headings. The headings in this Agreement are for the purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
19. Counterparts. This Agreement may be executed in counterparts,
each of which shall constitute an original, but all of which shall together
constitute one instrument.
20. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE CONFLICT OF LAW PROVISIONS THEREOF.
28
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon
it will be a binding agreement among the undersigned in accordance with its
terms.
Very truly yours,
FIRST USA BANK,
as Transferor and Servicer
By: /s/ Roger Deacon
----------------------------
Name: Roger Deacon
Title: Senior Vice President
The foregoing Underwriting Agreement
is hereby agreed to as of the date
first above written.
J.P. MORGAN SECURITIES INC.,
for itself and as Representative
of the several Underwriters named
in Schedule A hereto
By: /s/ Oldrich Masek, III
--------------------------
Name: Oldrich Masek, III
Title: Vice President
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
Aggregate Principal
Amount of the Class A
Underwriter Certificates
- ----------- ------------
<S> <C>
J.P. Morgan Securities Inc.... $162,500,000
Banc One Capital Corporation.. $162,500,000
Bear, Stearns & Co. Inc....... $162,500,000
Credit Suisse First Boston
Corporation.................. $162,500,000
------------
Total............... $650,000,000
============
Aggregate Principal
Amount of the Class B
Underwriter Certificates
- ----------- ------------
<S> <C>
J.P. Morgan Securities Inc.... $14,683,750
Banc One Capital Corporation.. $14,683,750
Bear, Stearns & Co. Inc....... $14,683,750
Credit Suisse First Boston
Corporation.................. $14,683,750
-----------
Total............... $58,735,000
===========
</TABLE>
<PAGE>
EXHIBIT A
SUBJECT TO REVISION
SERIES TERM SHEET DATED JULY 22, 1997
FIRST USA CREDIT CARD MASTER TRUST
$650,000,000 Class A Floating Rate Asset Backed Certificates, Series 1997-5
$58,735,000 Class B Floating Rate Asset Backed Certificates, Series 1997-5
FIRST USA BANK
Transferor and Servicer
THE OFFERED CERTIFICATES WILL REPRESENT INTERESTS IN THE TRUST ONLY AND WILL
NOT REPRESENT INTERESTS IN OR RECOURSE OBLIGATIONS OF FIRST USA BANK OR ANY AF-
FILIATE THEREOF. AN OFFERED CERTIFICATE IS NOT A DEPOSIT AND NEITHER THE OF-
FERED CERTIFICATES NOR THE UNDERLYING ACCOUNTS OR RECEIVABLES ARE INSURED OR
GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMEN-
TAL AGENCY.
THIS SERIES TERM SHEET CONTAINS STRUCTURAL AND COLLATERAL INFORMATION ABOUT THE
OFFERED CERTIFICATES; HOWEVER, THIS SERIES TERM SHEET DOES NOT CONTAIN COMPLETE
INFORMATION ABOUT THE OFFERED CERTIFICATES. THE INFORMATION PROVIDED HEREIN IS
PRELIMINARY AND WILL BE SUPERSEDED BY THE INFORMATION CONTAINED IN THE PROSPEC-
TUS SUPPLEMENT AND THE PROSPECTUS. ADDITIONAL INFORMATION WILL BE CONTAINED IN
THE PROSPECTUS SUPPLEMENT AND THE PROSPECTUS. PURCHASERS ARE URGED TO READ BOTH
THE PROSPECTUS SUPPLEMENT AND THE PROSPECTUS.
THIS SERIES TERM SHEET SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITA-
TION OF AN OFFER TO BUY, NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY
STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REG-
ISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE. SALES
OF THE OFFERED CERTIFICATES MAY NOT BE CONSUMMATED UNLESS THE PURCHASER HAS RE-
CEIVED BOTH THE PROSPECTUS SUPPLEMENT AND THE PROSPECTUS.
J.P. MORGAN & CO.
BANC ONE CAPITAL CORPORATION
BEAR, STEARNS & CO. INC.
CREDIT SUISSE FIRST BOSTON
<PAGE>
SUMMARY OF TERMS
This Series Term Sheet will be superseded in its entirety by the information
appearing in the Prospectus Supplement, the Prospectus and the Series 1997-5
Supplement to the Pooling and Servicing Agreement (as amended, the "Pooling and
Servicing Agreement") between First USA Bank (the "Bank"), as transferor (in
such capacity, the "Transferor") and servicer (in such capacity, the
"Servicer"), and The Bank of New York (Delaware), as trustee (the "Trustee").
Type of Securities.......... Class A Floating Rate Asset Backed
Certificates, Series 1997-5 (the "Class A
Certificates") and Class B Floating Rate
Asset Backed Certificates, Series 1997-5
(the "Class B Certificates" and, together
with the Class A Certificates, the "Offered
Certificates").
Trust Assets................ The property of the First USA Credit Card
Master Trust (the "Trust") includes and will
include receivables (the "Receivables")
arising under certain VISA (R) and
MasterCard (R)* revolving credit card
accounts (the "Accounts") selected by the
Transferor from a portfolio of VISA and
MasterCard accounts owned by the Transferor,
all monies due or to become due in payment
of the Receivables, all proceeds of the
Receivables and all monies on deposit in
certain bank accounts of the Trust (other
than certain investment earnings on such
amounts), Recoveries and any enhancement
issued with respect to any series issued
from time to time by the Trust (each, a
"Series") which will consist of one or more
classes of certificates. The benefits of any
enhancement issued with respect to any other
Series will not be available for the benefit
of the holders of the Certificates and the
holders of the certificates of other Series
will not be entitled to the benefits of any
enhancement for this Series.
Trustee..................... The Bank of New York (Delaware).
Certificateholders' Each of the Offered Certificates represents
Interest.................... an undivided interest in the Trust. The
Trust's assets will be allocated among the
Class A Certificateholders (the "Class A
Certificateholders' Interest"), the Class B
Certificateholders (the "Class B
Certificateholders' Interest," and together
with the Class A Certificateholders'
Interest, the "Investor Interest"), the CIA
Certificateholders (the "CIA
Certificateholders' Interest"), the holders
of other Series previously issued or issued
at some future time pursuant to the Pooling
and Servicing Agreement and the applicable
series supplements to the Pooling and
Servicing Agreement (each, a "Supplement")
and the Transferor (the "Transferor
Interest"), as described below.
The aggregate principal amount of the Class A
Certificateholders' Interest and the Class B
Certificateholders' Interest will, except as
otherwise provided herein, remain fixed at
$650,000,000 (the "Class A Invested Amount")
and $58,735,000 (the "Class B Invested
Amount"), respectively. The principal amount
of the Transferor Interest will fluctuate as
the amount of Receivables in the Trust
changes from time to time.
- --------
* VISA (R) and MasterCard (R) are registered trademarks of Visa USA
Incorporated and MasterCard International Incorporated, respectively.
2
<PAGE>
The "CIA Invested Amount" in the initial
amount of $74,395,000 (which amount
represents 9.5% of the sum of the initial
Class A Invested Amount, the initial Class B
Invested Amount and the initial CIA Invested
Amount) constitutes enhancement for the
Offered Certificates. Allocations will be
made to the CIA Invested Amount and the
holders of the CIA Certificates will have
voting and certain other rights of a
subordinated class of certificates. The CIA
Certificates together with the Offered
Certificates are referred to herein as the
"Certificates."
The Class A Certificates will represent the
right to receive from the assets of the
Trust allocated to the Class A
Certificateholders' Interest funds up to
(but not in excess of) the amounts required
to make payments of interest on the Class A
Certificates at the Class A Certificate
Rate, and the payment of principal during
the amortization period to the extent of the
Class A Invested Amount (which may be less
than the aggregate unpaid principal amount
of the Class A Certificates, in certain
circumstances).
The Class B Certificates will represent the
right to receive from the assets of the
Trust allocated to the Class B
Certificateholders' Interest funds up to
(but not in excess of) the amounts required
to make payments of interest on the Class B
Certificates at the Class B Certificate
Rate, and the payment of principal during
the amortization period, following the final
principal payment of the Class A Invested
Amount to the holders of the Class A
Certificates, to the extent of the Class B
Invested Amount (which may be less than the
aggregate unpaid principal amount of the
Class B Certificates, in certain
circumstances, if there has been a reduction
of the Class B Invested Amount).
Receivables................. The aggregate amount of Receivables in the
Accounts (including the amount of
Receivables in the additional Accounts added
to the Trust on July 1, 1997 and in certain
additional Accounts designated to be added
to the Trust on August 7, 1997 (the "Closing
Date")), as of the close of business on June
30, 1997, was $22,896,608,903, comprised of
$22,243,943,201 of principal Receivables and
$652,665,702 of finance charge Receivables.
Interest.................... Class A Certificate Rate: One-month LIBOR
plus 0. %.
Class B Certificate Rate: One-month LIBOR
plus 0. %.
Interest Payment Dates...... Interest on the Certificates will be
distributed on the 17th day of each calendar
month or, if such day is not a business day,
on the next succeeding business day (each, a
"Distribution Date"), commencing September
17, 1997, in an amount equal to the product
of (a) the actual number of days in the
period from the preceding Distribution Date
(or in the case of the September 1997
Distribution Date, the Closing Date) through
the day preceding such Distribution Date
divided by 360, (b) the Class A Certificate
Rate or the Class B Certificate Rate, as
applicable, and (c) the outstanding
principal amount of the Class A Certificates
or the outstanding principal amount of the
Class B Certificates, as
3
<PAGE>
applicable, as of the last day of the
preceding calendar month (or, in the case of
the September 1997 Distribution Date, as of
the Closing Date). "LIBOR" means the London
interbank offered quotations for one-month
United States dollar deposits prevailing on
the date that LIBOR is determined. The
Trustee will determine LIBOR on August 5,
1997 for the period from the Closing Date
through August 16, 1997, on August 14, 1997
for the period from August 17, 1997 through
September 16, 1997, and on the second
business day prior to each Distribution Date
thereafter for the period from and including
such Distribution Date through the day
preceding the next succeeding Distribution
Date.
Principal................... The principal of the Class A Certificates and
the Class B Certificates is scheduled to be
paid on the Class A Expected Final Payment
Date and the Class B Expected Final Payment
Date, respectively, but may be paid earlier
or later under certain circumstances.
Class A Expected Final
Payment Date...............
The August 2004 Distribution Date.
Class B Expected Final
Payment Date...............
The August 2004 Distribution Date.
Stated Series Termination The final distribution of principal and
Date........................ interest on the Certificates will be made no
later than the April 2007 Distribution Date
(the "Stated Series Termination Date").
After the Stated Series Termination Date,
the Trust will have no further obligation to
pay principal or interest on the
Certificates.
Subordination of the Class
B Certificates and the CIA
Certificates...............
The Class B Certificateholders' Interest will
be subordinated to the extent necessary to
fund certain payments with respect to the
Class A Certificates. In addition, the CIA
Certificateholders' Interest will be
subordinated to the extent necessary to fund
certain payments with respect to the Class A
Certificates and the Class B Certificates.
If the CIA Invested Amount is reduced to
zero, the Class B Certificateholders will
bear directly the credit and other risks
associated with their undivided interest in
the Trust. To the extent the Class B
Invested Amount is reduced, the percentage
of collections of finance charge Receivables
allocated to the Class B Certificateholders
in subsequent Monthly Periods will be
reduced. Moreover, to the extent the amount
of such reduction in the Class B Invested
Amount is not reimbursed, the amount of
principal distributable to the Class B
Certificateholders will be reduced.
ERISA Considerations........ If certain conditions are satisfied,
including that upon completion of the public
offering thereof interests in the Class A
Certificates are held by 100 or more persons
independent of the Transferor and each
other, the Class A Certificates should
qualify as "publicly- offered securities"
for purposes of the "plan assets regulation"
issued by the Department of Labor. In such
event, the purchase and holding of Class A
Certificates by an employee benefit plan
4
<PAGE>
(or other entity deemed to hold assets of
such a plan) would not cause the assets of
the Trust to be deemed "plan assets" of any
such plan subject to the prohibited
transaction rules of the Employee Retirement
Income Security Act of 1974, as amended and
the Internal Revenue Code of 1986, as
amended. Further information regarding the
status of the Class A Certificates as
publicly offered securities will be provided
in the Prospectus Supplement. Accordingly,
plan investors contemplating the purchase of
Class A Certificates should consult their
counsel and review "ERISA Considerations" in
the Prospectus and "Summary of Terms--ERISA
Considerations" in the Prospectus Supplement
prior to making any purchase of Class A
Certificates.
The Underwriters currently do not expect the
Class B Certificates to qualify as publicly-
offered securities and, accordingly, the
Class B Certificates may not be purchased by
employee benefit plans (or entities deemed
to hold assets of such plans, including
without limitation any insurance company
general account deemed to hold plan assets
by reason of a plan's investment in the
general account).
Certificate Ratings......... It is a condition to the issuance of the
Class A Certificates that they be rated in
the highest rating category by at least one
nationally recognized statistical rating
organization (each such rating organization,
a "Rating Agency").
It is a condition to the issuance of the
Class B Certificates that they receive a
rating of at least "A" or its equivalent by
at least one Rating Agency.
Listing..................... Application will be made to list the Offered
Certificates on the Luxembourg Stock
Exchange.
5
<PAGE>
RECENT DEVELOPMENTS
Pursuant to an Agreement and Plan of Merger dated as of January 19, 1997, and
amended as of April 23, 1997, between First USA, Inc. ("FUSA") and BANC ONE
CORPORATION ("BANC ONE"), FUSA was merged with and into BANC ONE on June 27,
1997 (the "Merger") at which time the separate corporate existence of FUSA
ceased. As a result of the Merger, the Bank is now an indirect wholly-owned
subsidiary of BANC ONE. See "The Bank and BANC ONE CORPORATION" in the
Prospectus.
BANC ONE intends to consolidate the management of its credit card operations
with those of FUSA. BANC ONE may also consolidate the operations of certain
other subsidiaries or divisions of BANC ONE and FUSA, which provide similar
services, although no final determination with respect to such matters has been
made. No decision has been made as to whether receivables in accounts
originated by Bank One, N.A. or Bank One, Arizona, N.A., or any affiliate
thereof (other than the Bank) will be added at any time to the Trust. Any such
addition would be subject to the restrictions on additions of Accounts in the
Pooling and Servicing Agreement. See "Description of the Certificates--Addition
of Accounts" in the Prospectus.
THE BANK'S CREDIT CARD PORTFOLIO
DELINQUENCY AND LOSS EXPERIENCE
The following tables set forth the delinquency and loss experience for each
of the periods shown for the portfolio of VISA and MasterCard credit card
accounts serviced by the Bank (the "Bank Portfolio"). The Bank has changed its
charge-off policy to align it with that of BANC ONE. For the Trust, this change
in charge-off policy will be implemented over the course of a six month period
which began in July 1997 and will end in December 1997. The Bank will now
generally charge-off an account immediately prior to the end of the sixth
billing cycle after having become contractually past due. Its prior policy was
to charge off accounts immediately prior to the end of the seventh billing
cycle after having become contractually past due. Receivables Delinquent 95 or
more days and Net Losses in the Bank Portfolio tables below have been restated
to reflect this change in charge-off policy for each of the periods shown. As
of the close of business on June 30, 1997, the Receivables in the Trust
Portfolio (including the Receivables in the additional Accounts added to the
Trust on July 1, 1997 and certain additional Accounts designated to be added to
the Trust on the Closing Date) represented approximately 93.0% of the Bank
Portfolio. The accounts in the Bank Portfolio that are not included in the
Trust Portfolio are primarily newly originated accounts with lower delinquency
and loss rates than the average accounts in the Trust Portfolio which are
generally more seasoned. Therefore, the actual delinquency and loss experience
with respect to the Receivables in the Trust Portfolio may be different from
that set forth below. There can be no assurance that the delinquency and loss
experience for the Trust Portfolio will be similar to the historical experience
set forth below because, among other things, economic and financial conditions
affecting the ability of cardholders to make payments may be different from
those that have prevailed during the periods reflected in the tables below.
DELINQUENCY EXPERIENCE
BANK PORTFOLIO
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
AS OF DECEMBER 31, (1)
SIX MONTHS ENDED -----------------------------------------------------------------------
JUNE 30, 1997 1996 1995 1994
----------------------- ----------------------- ----------------------- -----------------------
PERCENTAGE PERCENTAGE PERCENTAGE PERCENTAGE
OF TOTAL OF TOTAL OF TOTAL OF TOTAL
RECEIVABLES RECEIVABLES RECEIVABLES RECEIVABLES RECEIVABLES RECEIVABLES RECEIVABLES RECEIVABLES
----------- ----------- ----------- ----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Receivables
Outstanding(2)......... $24,619,969 100.00% $22,119,202 100.00% $17,411,514 100.00% $10,989,357 100.00%
=========== ====== =========== ====== =========== ====== =========== ======
Receivables Delinquent:
35-64 days............. $ 321,263 1.30% $ 359,275 1.62% $ 219,240 1.26% $ 106,275 0.97%
65-94 days............. 242,393 0.98 250,468 1.13 130,088 0.75 53,691 0.49
95 or more days(3)..... 441,131 1.80 475,115 2.15 231,315 1.32 100,532 0.91
----------- ------ ----------- ------ ----------- ------ ----------- ------
Total................. $ 1,004,787 4.08% $ 1,084,858 4.90% $ 580,643 3.33% $ 260,498 2.37%
=========== ====== =========== ====== =========== ====== =========== ======
</TABLE>
- --------
(1) The information set forth in the table above is stated on a basis
consistent with the Bank's current fiscal year. The Bank changed its fiscal
year end from June 30 to December 31 in connection with the Merger.
(2) The Receivables Outstanding on the accounts consist of all amounts due from
cardholders as posted to the accounts.
(3) The amount of Receivables Delinquent 95 or more days for each of the
periods shown is stated on a basis consistent with the Bank's current
policy of charging off an account immediately prior to the end of the sixth
billing cycle after having become contractually past due. Its prior policy,
which applied during the periods shown above, was to charge off accounts
immediately prior to the end of the seventh billing cycle after having
become contractually past due.
6
<PAGE>
LOSS EXPERIENCE
BANK PORTFOLIO
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
SIX MONTHS YEAR ENDED DECEMBER 31,(1)
ENDED ------------------------------------
JUNE 30, 1997 1996 1995 1994
------------- ----------- ----------- ----------
<S> <C> <C> <C> <C>
Average Receivables Out-
standing(2)............... $23,003,652 $18,986,458 $13,497,080 $7,680,291
Gross Charge-Offs(3)....... 675,830 895,267 416,406 180,715
Gross Charge-Offs as a
percentage of Average
Receivables
Outstanding(4)............ 5.92% 4.72% 3.09% 2.35%
Recoveries(5).............. 57,916 61,787 23,597 14,688
Net Losses(5).............. 617,914 833,480 392,809 166,027
Net Losses as a percentage
of Average Receivables
Outstanding(4)............ 5.42% 4.39% 2.91% 2.16%
</TABLE>
- --------
(1) The information set forth in the table above is stated on a basis
consistent with the Bank's current fiscal year. The Bank changed its fiscal
year end from June 30 to December 31 in connection with the Merger.
(2) Average Receivables Outstanding is the average daily receivables during the
periods indicated.
(3) Gross Charge-Offs are principal charge-offs before recoveries and do not
include the amount of any reductions in average receivables outstanding due
to fraud, returned goods or customer disputes.
(4) Annualized.
(5) Recoveries are included in the Trust as of July 1, 1996. Net Losses for
each of the periods shown are stated on a basis consistent with the Bank's
current policy of charging off an account immediately prior to the end of
the sixth billing cycle after having become contractually past due. Its
prior policy, which applied during the periods shown above, was to charge
off accounts immediately prior to the end of the seventh billing cycle
after having become contractually past due.
SUMMARY OF MONTHLY PAYMENT RATES
The following table sets forth the highest and lowest cardholder monthly
payment rates for the Bank Portfolio during any month in the periods shown and
the average cardholder monthly payment rates for all months during the periods
shown, in each case calculated as a percentage of total opening monthly account
balances during the periods shown. Payment rates shown in the table are based
on amounts which would be deemed payments of principal Receivables and finance
charge Receivables with respect to the Accounts.
CARDHOLDER MONTHLY PAYMENT RATES
BANK PORTFOLIO
<TABLE>
<CAPTION>
SIX MONTHS YEAR ENDED DECEMBER 31,
ENDED -------------------------
JUNE 30, 1997 1996 1995 1994
------------- ------- ------- -------
<S> <C> <C> <C> <C>
Lowest Month........................... 11.73% 10.16% 9.86% 10.46%
Highest Month.......................... 13.51 11.86 11.73 12.14
Monthly Average........................ 12.62 11.18 10.90 11.17
</TABLE>
RECEIVABLE YIELD CONSIDERATIONS
The portfolio yield on the Bank Portfolio for each of the three years
contained in the period ended December 31, 1996 and for the six months ended
June 30, 1997 is set forth in the table on the following page. The portfolio
yields in the table are calculated on an accrual basis. The portfolio yield on
Receivables included in the Trust is calculated on a cash basis. Portfolio
yields calculated on an accrual basis may differ from portfolio yields
calculated on a cash basis due to (a) a lag between when finance charges and
fees are charged to cardholder accounts and when such finance charges and fees
are collected and (b) finance charges and fees that are not ultimately
collected from the cardholder. However, during the three years contained in the
period ended December 31, 1996 and for the six months ended June 30, 1997,
portfolio yield on an accrual basis approximated portfolio yield on a cash
basis. Portfolio yield on both an accrual and a cash basis will also be
affected by numerous factors, including changes in the monthly periodic rates,
variations in the rate of payments and new
7
<PAGE>
borrowings on the Accounts, the amount of the annual membership fees and other
charges, changes in the delinquency and loss rates on the Receivables and the
percentage of cardholders who pay their balances in full each month and do not
incur periodic finance charges, which may in turn be caused by a variety of
factors, including seasonal variations, the availability of other sources of
credit and general economic conditions. Interchange allocated to the Trust with
respect to the Receivables may vary from the amounts included in the table
below because interchange will be included in the Trust on an estimated basis
by initially treating 1.3% of collections on the Receivables, other than
collections with respect to periodic finance charges, annual membership fees
and other charges, as discount Receivables.
PORTFOLIO YIELD
BANK PORTFOLIO
<TABLE>
<CAPTION>
SIX MONTHS YEAR ENDED
ENDED DECEMBER 31,
JUNE 30, ----------------------
1997 1996 1995 1994
---------- ------ ------ ------
<S> <C> <C> <C> <C>
Average account monthly accrued fees and
charges (1)(2)............................. $39.39 $36.82 $32.35 $27.17
Average account balance(3).................. 2,979 2,799 2,580 2,219
Portfolio yield from fees and charges
(1)(4)..................................... 15.87% 15.79% 15.04% 14.69%
</TABLE>
- --------
(1) Fees and charges are comprised of periodic finance charges, interchange,
annual membership fees and other charges.
(2) Average account monthly accrued fees and charges are presented net of
adjustments made pursuant to the Bank's normal servicing procedures,
including removal of incorrect or disputed periodic finance charges, and
include interchange.
(3) Average account balance includes purchases, cash advances and accrued and
unpaid periodic finance charges, annual membership fees and other charges
and is calculated based on the average of the month end balances for
accounts with balances.
(4) Annualized.
The increase in portfolio yield for the years ended December 31, 1995 and
December 31, 1996 and for the six months ended June 30, 1997 reflects changes
in the overall pricing distribution of the Bank Portfolio. The accounts in the
Bank Portfolio that are not included in the Trust Portfolio are primarily newly
originated accounts with a greater proportion of Receivables arising under
accounts generated under this type of solicitation than the average accounts in
the Trust Portfolio, which are more seasoned. Therefore, the actual portfolio
yield with respect to the Receivables in the Trust Portfolio may be different
from that set forth above.
THE RECEIVABLES
The Receivables in the Accounts selected from the Bank Portfolio included and
to be included in the Trust on the basis of criteria set forth in the Pooling
and Servicing Agreement (the "Trust Portfolio") (including the additional
Accounts added to the Trust on July 1, 1997 and certain additional Accounts
designated to be added to the Trust on the Closing Date), as of the close of
business on June 30, 1997, consisted of $22,243,943,201 of principal
Receivables and $652,665,702 of finance charge Receivables. On June 24, 1997
(the "Relevant Cut Off Date"), the Transferor designated additional Accounts,
which included approximately $962,279,212 of principal Receivables as of the
close of business on June 30, 1997, and will transfer the Receivables arising
therein to the Trust on the Closing Date. In addition, on the Closing Date, the
Transferor will deposit $1,840,000 into the finance charge account, which will
be applied as collections of finance charge Receivables received during the
initial monthly period and allocated to Series 1997-5. The additional Accounts
to be added to the Trust on the Closing Date were, as of the Relevant Cut Off
Date, Eligible Accounts. The Accounts, including such additional Accounts, had
an average principal Receivable balance of $2,086 (including accounts with a
zero balance) and an average credit limit of $8,688. The percentage of the
aggregate total Receivable balance to the aggregate total credit limit was
24.7%.
As of June 30, 1997, cardholders whose Accounts are included in the Trust
Portfolio, including such additional Accounts, had billing addresses in 50
states, the District of Columbia and other United States
8
<PAGE>
territories and possessions. As of June 30, 1997, 72% of the Accounts,
including such additional Accounts, were premium accounts and 28% were standard
accounts, and the aggregate principal Receivable balances of premium accounts
and standard accounts, as a percentage of the aggregate total principal
Receivables, were 81% and 19%, respectively.
The following tables summarize the Trust Portfolio (including the additional
Accounts added to the Trust on July 1, 1997 and certain additional Accounts
designated to be added to the Trust on the Closing Date) by various criteria as
of the close of business on June 30, 1997. Because the future composition of
the Trust Portfolio may change over time, these tables are not necessarily
indicative of the composition of the Trust Portfolio at any subsequent time.
COMPOSITION BY ACCOUNT BALANCE
TRUST PORTFOLIO
<TABLE>
<CAPTION>
PERCENTAGE
OF TOTAL PERCENTAGE OF
ACCOUNT NUMBER OF NUMBER OF AMOUNT OF TOTAL AMOUNT OF
BALANCE RANGE ACCOUNTS ACCOUNTS RECEIVABLES RECEIVABLES
------------- ---------- ---------- --------------- ---------------
<S> <C> <C> <C> <C>
Credit Balance.......... 152,895 1.4% $ (33,295,408) (0.1)%
No Balance.............. 3,180,891 29.8 -- --
$0.01 to $2,000.00...... 3,600,491 33.8 2,445,553,251 10.7
$2,000.01 to $5,000.00.. 2,057,703 19.3 7,290,081,829 31.8
$5,000.01 to $10,000.00. 1,404,211 13.2 9,717,560,130 42.4
$10,000.01 or More...... 268,937 2.5 3,476,709,101 15.2
---------- ----- --------------- -----
TOTAL............... 10,665,128 100.0% $22,896,608,903 100.0%
========== ===== =============== =====
</TABLE>
COMPOSITION BY CREDIT LIMIT
TRUST PORTFOLIO
<TABLE>
<CAPTION>
PERCENTAGE
OF TOTAL PERCENTAGE OF
CREDIT NUMBER OF NUMBER OF AMOUNT OF TOTAL AMOUNT OF
LIMIT RANGE ACCOUNTS ACCOUNTS RECEIVABLES RECEIVABLES
----------- ---------- ---------- --------------- ---------------
<S> <C> <C> <C> <C>
$0.00 to $2,000.00....... 637,586 6.0% $ 460,714,236 2.0%
$2,000.01 to $5,000.00... 2,440,036 22.9 4,414,092,426 19.3
$5,000.01 to $10,000.00.. 4,226,742 39.6 9,548,680,588 41.7
$10,000.01 or More....... 3,360,764 31.5 8,473,121,653 37.0
---------- ----- --------------- -----
TOTAL................ 10,665,128 100.0% $22,896,608,903 100.0%
========== ===== =============== =====
</TABLE>
9
<PAGE>
COMPOSITION BY PERIOD OF DELINQUENCY
TRUST PORTFOLIO
<TABLE>
<CAPTION>
PERCENTAGE
PERIOD OF DELINQUENCY OF TOTAL PERCENTAGE OF
(DAYS CONTRACTUALLY NUMBER OF NUMBER OF AMOUNT OF TOTAL AMOUNT OF
DELINQUENT) ACCOUNTS ACCOUNTS RECEIVABLES RECEIVABLES
--------------------- ---------- ---------- --------------- ---------------
<S> <C> <C> <C> <C>
Not Delinquent........... 10,123,109 94.9% $20,549,543,419 89.7%
Up to 34 Days............ 320,902 3.0 1,275,226,985 5.6
35 to 64 Days............ 70,229 0.7 310,975,702 1.4
65 to 94 Days............ 42,495 0.4 204,382,701 0.9
95 or More Days (1)...... 108,393 1.0 556,480,096 2.4
---------- ----- --------------- -----
TOTAL................ 10,665,128 100.0% $22,896,608,903 100.0%
========== ===== =============== =====
</TABLE>
- --------
(1) A change in the Bank's charge-off policy, which is being implemented over a
six month period beginning in July 1997, will result in a decrease in the
number of accounts and amount of receivables delinquent 95 or more days but
will also result in an increase in Default Amounts during such period.
COMPOSITION OF ACCOUNTS BY AGE
TRUST PORTFOLIO
<TABLE>
<CAPTION>
PERCENTAGE
OF TOTAL PERCENTAGE OF
NUMBER OF NUMBER OF AMOUNT OF TOTAL AMOUNT OF
AGE ACCOUNTS ACCOUNTS RECEIVABLES RECEIVABLES
--- ---------- ---------- --------------- ---------------
<S> <C> <C> <C> <C>
Less than or equal to 6
Months.................. 1,141,402 10.7% $ 3,172,994,647 13.9%
Over 6 Months to 12
Months.................. 1,489,555 14.0 3,456,435,615 15.1
Over 12 Months to 24
Months.................. 2,637,089 24.7 6,006,114,561 26.2
Over 24 Months to 36
Months.................. 2,304,720 21.6 4,922,123,181 21.5
Over 36 Months to 48
Months.................. 1,359,997 12.8 2,429,141,688 10.6
Over 48 Months to 60
Months.................. 678,617 6.4 1,052,865,172 4.6
Over 60 Months........... 1,053,748 9.8 1,856,934,039 8.1
---------- ----- --------------- -----
TOTAL................ 10,665,128 100.0% $22,896,608,903 100.0%
========== ===== =============== =====
</TABLE>
COMPOSITION BY GEOGRAPHIC DISTRIBUTION
TRUST PORTFOLIO
<TABLE>
<CAPTION>
PERCENTAGE
OF TOTAL PERCENTAGE OF
NUMBER OF NUMBER OF AMOUNT OF TOTAL AMOUNT OF
STATE ACCOUNTS ACCOUNTS RECEIVABLES RECEIVABLES
----- --------- ---------- ------------- ---------------
<S> <C> <C> <C> <C>
Alabama...................... 104,945 1.0% $ 243,140,294 1.1%
Alaska....................... 26,230 0.2 73,539,462 0.3
Arizona...................... 183,963 1.7 408,602,476 1.8
Arkansas..................... 87,932 0.8 175,345,716 0.8
California................... 1,323,309 12.4 3,252,830,926 14.2
Colorado..................... 176,042 1.7 386,626,411 1.7
Connecticut.................. 161,873 1.5 344,179,230 1.5
Delaware..................... 26,045 0.2 56,080,400 0.2
District of Columbia......... 21,629 0.2 52,117,780 0.2
Florida...................... 703,285 6.6 1,532,462,776 6.7
Georgia...................... 238,239 2.2 566,882,030 2.5
Hawaii....................... 48,987 0.5 122,241,237 0.5
Idaho........................ 45,516 0.4 99,510,678 0.4
Illinois..................... 511,577 4.8 996,418,995 4.4
Indiana...................... 114,022 1.1 240,695,871 1.1
</TABLE>
10
<PAGE>
<TABLE>
<CAPTION>
PERCENTAGE
OF TOTAL PERCENTAGE OF
NUMBER OF NUMBER OF AMOUNT OF TOTAL AMOUNT OF
STATE ACCOUNTS ACCOUNTS RECEIVABLES RECEIVABLES
----- ---------- ---------- --------------- ---------------
<S> <C> <C> <C> <C>
Iowa..................... 11,086 0.1% $ 21,012,739 0.1%
Kansas................... 100,273 0.9 209,719,573 0.9
Kentucky................. 107,417 1.0 206,585,127 0.9
Louisiana................ 236,059 2.2 440,565,877 1.9
Maine.................... 41,044 0.4 84,000,674 0.4
Maryland................. 259,830 2.4 591,924,796 2.6
Massachusetts............ 348,780 3.3 665,434,487 2.9
Michigan................. 359,899 3.4 765,803,388 3.3
Minnesota................ 108,405 1.0 209,174,775 0.9
Mississippi.............. 67,642 0.6 144,710,704 0.6
Missouri................. 183,656 1.7 373,497,924 1.6
Montana.................. 39,453 0.4 81,535,691 0.4
Nebraska................. 67,853 0.6 115,701,214 0.5
Nevada................... 86,382 0.8 210,060,118 0.9
New Hampshire............ 54,509 0.5 107,465,660 0.5
New Jersey............... 441,133 4.1 861,990,410 3.8
New Mexico............... 71,068 0.7 146,004,803 0.6
New York................. 801,847 7.5 1,723,693,015 7.5
North Carolina........... 199,821 1.9 446,907,481 2.0
North Dakota............. 21,727 0.2 37,790,237 0.2
Ohio..................... 405,834 3.8 818,941,162 3.6
Oklahoma................. 184,506 1.7 360,808,007 1.6
Oregon................... 149,253 1.4 329,523,909 1.4
Pennsylvania............. 455,487 4.3 797,016,401 3.5
Rhode Island............. 46,659 0.4 90,236,697 0.4
South Carolina........... 100,498 0.9 211,929,818 0.9
South Dakota............. 23,756 0.2 46,552,794 0.2
Tennessee................ 91,737 0.9 204,633,583 0.9
Texas.................... 1,070,624 10.0 2,338,210,234 10.2
Utah..................... 70,103 0.7 138,301,435 0.6
Vermont.................. 23,379 0.2 44,209,632 0.2
Virginia................. 280,893 2.6 649,267,211 2.8
Washington............... 251,067 2.4 614,356,449 2.7
West Virginia............ 54,092 0.5 112,683,067 0.5
Wisconsin................ 23,977 0.2 43,531,163 0.2
Wyoming.................. 20,139 0.2 40,663,727 0.2
Other U.S. territories
and possessions......... 31,646 0.6 61,490,639 0.2
---------- ----- --------------- -----
TOTAL................ 10,665,128 100.0% $22,896,608,903 100.0%
========== ===== =============== =====
</TABLE>
Since the largest number of cardholders (based on billing addresses) whose
accounts were included in the Trust as of June 30, 1997 were in California,
Texas, New York, Florida and Illinois, adverse changes in the economic
conditions in these areas could have a direct impact on the timing and amount
of payments on the Certificates.
11
<PAGE>
- --------------------------------------------------------------------------------
FIRST USA BANK
Transferor and Servicer
and
THE BANK OF NEW YORK (DELAWARE)
on behalf of the Certificateholders
_____________________________
SERIES 1997-5 SUPPLEMENT
Dated as of August 7, 1997
to
POOLING AND SERVICING AGREEMENT
Dated as of September 1, 1992, as amended
_____________________________
$783,130,000
FIRST USA CREDIT CARD MASTER TRUST
Series 1997-5
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 1. Designation............................................. 1
SECTION 2. Definitions............................................. 2
SECTION 3. Reassignment and Transfer Terms......................... 27
SECTION 4. Delivery and Payment for the
Series 1997-5 Certificates.............................. 27
SECTION 5. Depositary; Form of Delivery of
Series 1997-5 Certificates.............................. 27
SECTION 6. Article IV of Agreement................................. 28
Article IV Rights of Certificateholders and
Allocation and Application of
Collections............................................. 29
Section 4.04 Rights of Certificateholders............................ 29
Section 4.05 Collections and Allocation.............................. 30
Section 4.06 Determination of Monthly Interest
for the Series 1997-5 Certificates...................... 35
Section 4.07 Determination of Monthly Principal...................... 38
Section 4.08 Coverage of Required Amount for the
Investor Certificates................................... 39
Section 4.09 Monthly Payments........................................ 40
Section 4.10 Payment of Certificate Interest......................... 46
Section 4.11 [Reserved].............................................. 46
Section 4.12 Investor Charge-Offs.................................... 46
Section 4.13 Excess Finance Charge Collections for
the Series 1997-5 Certificates.......................... 48
Section 4.14 Reallocated Principal Collections for
the Series 1997-5 Certificates.......................... 51
Section 4.15 Determination of LIBOR.................................. 53
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Section 4.16 Principal Funding Account............................... 54
Section 4.17 Reserve Account......................................... 55
SECTION 7. Article V of the Agreement.............................. 58
Article V Distributions and Reports to
Investor Certificateholders............................. 58
Section 5.01 Distributions........................................... 58
Section 5.02 Monthly Certificateholders'
Statement............................................... 60
Section 5.03 Rule 144A Information................................... 62
SECTION 8. Series 1997-5 Pay Out Events............................ 62
SECTION 9. Series 1997-5 Termination............................... 64
SECTION 10. Periodic Finance Charges and
Other Fees.............................................. 64
SECTION 11. Transfers of CIA
Certificates; Legends................................... 64
SECTION 12. Compliance with Withholding
Requirements............................................ 70
SECTION 13. Tax Characterization of the
CIA Certificates........................................ 70
SECTION 14. ERISA Legend............................................ 70
SECTION 15. Amendment and Ratification
of Agreement............................................ 71
SECTION 16. Counterparts............................................ 71
SECTION 17. GOVERNING LAW........................................... 71
SECTION 18. Additional Representations and
Warranties of the Servicer.............................. 71
SECTION 19. Appointment of co-Paying Agent,
co-Transfer Agent and co-Registrar...................... 72
</TABLE>
ii
<PAGE>
<TABLE>
EXHIBITS
<S> <C>
EXHIBIT A Form of Class A Certificate
EXHIBIT B Form of Class B Certificate
EXHIBIT C Form of CIA Certificate
EXHIBIT D DTC Letter of Representations
EXHIBIT E Form of Monthly Allocations and Payment Instructions
EXHIBIT F Form of Monthly Certificateholders'
Statement
EXHIBIT G Form of Transferee Representation Letter
</TABLE>
iii
<PAGE>
SERIES 1997-5 SUPPLEMENT, dated as of August 7, 1997 (this "Series
Supplement") by and between FIRST USA BANK, a Delaware chartered banking
corporation, as Transferor and Servicer, and THE BANK OF NEW YORK (DELAWARE),
as Trustee under the Pooling and Servicing Agreement dated as of September 1,
1992 between FIRST USA BANK, as Transferor and Servicer, and the Trustee, as
amended (the "Agreement").
Section 6.09 of the Agreement provides, among other things, that the
Transferor and the Trustee may at any time and from time to time enter into a
supplement to the Agreement for the purpose of authorizing the issuance by the
Trustee to the Transferor for the execution and redelivery to the Trustee for
authentication of one or more Series of Certificates. The Transferor has
tendered the Exchange Notice required by subsection 6.09(b) of the Agreement and
hereby enters into this Series Supplement with the Trustee as required by
subsection 6.09(c) of the Agreement to provide for the issuance, authentication
and delivery of the Investor Certificates of Series 1997-5 (the "Series 1997-5
Certificates").
Pursuant to this Series Supplement, the Transferor and the Trustee
shall create a new Series of Investor Certificates and shall specify the
Principal Terms thereof. The Series 1997-5 Certificates shall not be
subordinated to any other Series.
SECTION 1. Designation. There is hereby created a Series of
Investor Certificates to be issued pursuant to the Agreement and this Series
Supplement to be known generally as the "Series 1997-5 Certificates." The
Series 1997-5 Certificates shall be issued in three Classes, which shall be
designated generally as the Class A Floating Rate Asset Backed Certificates,
Series 1997-5 (the "Class A Certificates"), the Class B Floating Rate Asset
Backed Certificates, Series 1997-5 (the "Class B Certificates") and the CIA
Certificates, Series 1997-5 (the "CIA Certificates"). The CIA Certificates will
be treated as a Class of Certificates for all purposes under the Agreement and
this Series Supplement; provided, however, that the provisions of subsection
6.09(b) with respect to the delivery of an Opinion of Counsel to the effect that
a newly issued Series of Investor Certificates will be treated as debt for
Federal income tax purposes will not apply to the CIA Certificates.
<PAGE>
SECTION 2. Definitions. In the event that any term or provision
contained herein shall conflict with or be inconsistent with any provision
contained in the Agreement, the terms and provisions of this Series Supplement
shall govern. All Article, Section or subsection references herein shall mean
Article, Section or subsec tions of the Agreement, except as otherwise provided
herein. All capitalized terms not otherwise defined herein are defined in the
Agreement. Each capitalized term defined herein shall relate only to the Series
1997-5 Certificates and to no other Series of Certificates issued by the Trust.
"Accumulation Period" shall mean, unless a Pay Out Event shall have
occurred prior thereto, the period commencing at the close of business on July
31, 2003, or such later date as is determined in accordance with subsection
4.09(i) of the Agreement and ending on the first to occur of (a) the
commencement of the Rapid Amortization Period and (b) the Series 1997-5
Termination Date.
"Accumulation Period Factor" shall mean, for any Monthly Period, a
fraction, the numerator of which is equal to the sum of the initial invested
amounts of all outstanding Series, and the denominator of which is equal to the
sum of (a) the Initial Invested Amount, (b) the initial invested amounts of all
outstanding Series (other than Series 1997-5) which are not expected to be in
their revolving periods during such Monthly Period, and (c) the initial invested
amounts of all other outstanding Series which are not allocating Excess
Principal Collections and are expected to be in their revolving periods during
such Monthly Period.
"Accumulation Period Length" shall have the meaning assigned such term
in subsection 4.09(i) of the Agreement.
"Accumulation Shortfall" shall initially mean zero and shall
thereafter mean, with respect to any Monthly Period during the Accumulation
Period, the excess, if any, of the Controlled Deposit Amount for the previous
Monthly Period over the amount deposited into the Principal Funding Account
pursuant to subsections 4.09(e)(i), 4.09(e)(ii) and 4.09(e)(iii) of the
Agreement with respect to the Series 1997-5 Certificates for the previous
Monthly Period.
2
<PAGE>
"Adjusted Invested Amount" shall mean, with respect to any date of
determination, an amount equal to the sum of the Class A Adjusted Invested
Amount, the Class B Adjusted Invested Amount and the CIA Adjusted Invested
Amount.
"Agreement" shall mean the Pooling and Servicing Agreement dated as
of September 1, 1992 between First USA Bank, as Transferor and Servicer, and the
Trustee, as amended.
"Amortization Period" shall mean, with respect to the Series 1997-5
Certificates, the period commencing on the earlier of (a) the first day of the
Accumulation Period, or (b) the Pay Out Commencement Date, and continuing to
and including the earlier of (i) the payment in full to the Class A
Certificateholders of the Class A Invested Amount, to the Class B
Certificateholders of the Class B Invested Amount and to the CIA
Certificateholders of the CIA Invested Amount, and (ii) the Scheduled Series
1997-5 Termination Date.
"Assignee" shall have the meaning specified in subsection 11(a) of
this Series Supplement.
"Available Investor Principal Collections" shall mean, with respect to
any Monthly Period, an amount equal to (a) the sum of (i) an amount equal,
during the Revolving Period, to the Floating Allocation Percentage or, during
the Amortization Period, to the Fixed/Floating Allocation Percentage of
Collections of Principal Receivables with respect to such Monthly Period, (ii)
any Unallocated Principal Collections allocated to the Investor Certificates on
deposit in the Principal Account on the following Distribution Date, (iii) the
amount, if any, of Collections of Finance Charge Receivables and Excess Finance
Charge Collections to be distributed pursuant to subsection 4.09(a)(iii) with
respect to the following Distribution Date, and (iv) the amount, if any, of
Excess Finance Charge Collections to be distributed pursuant to subsections
4.13(b), (d), (e), (h) and (i) on the following Transfer Date, minus (b) the
amount of Reallocated Principal Collections with respect to such Monthly Period
which are required to fund a deficiency pursuant to Section 4.14 for such
Distribution Date, if any.
"Available Reserve Account Amount" shall mean, with respect to any
Transfer Date, the lesser of (a) the
3
<PAGE>
amount on deposit in the Reserve Account as of such date (before giving effect
to any deposit or withdrawal made or to be made pursuant to subsection 4.13(j)
to the Reserve Account on such date) and (b) the Required Reserve Account
Amount.
"Average Principal Balance" shall mean, for a Monthly Period in which
Additional Accounts are designated for inclusion in or Removed Accounts are
designated for removal from the Trust, the weighted average of the Principal
Receivables in the Trust at the end of the day on the last day of the prior
Monthly Period and the Principal Receivables in the Trust at the end of the day
on the related Addition Date or Removal Date, as applicable, weighted,
respectively, by a fraction, the numerator of which is the number of days from
and including the first day of such Monthly Period to but excluding the related
Addition Date or Removal Date, as applicable, and the denominator of which is
the number of days in such Monthly Period, and by a fraction, the numerator of
which is the number of days from and including the related Addition Date or
Removal Date, as applicable, to and including the last day of such Monthly
Period, and the denominator of which is the number of days in such Monthly
Period.
"Base Rate" shall mean, with respect to any Monthly Period, the sum of
the weighted average of the Class A Certificate Rate, the Class B Certificate
Rate and the CIA Certificate Rate as of the last day of such Monthly Period
(weighted based on the Class A Invested Amount, the Class B Invested Amount and
the CIA Invested Amount, respectively, as of the last day of such Monthly
Period) plus the product of 2.00% and the percentage equivalent of a fraction
the numerator of which is the Adjusted Invested Amount and the denominator of
which is the Invested Amount each as of the last day of such Monthly Period.
"BDL" shall mean Banque de Luxembourg.
"Business Day" shall mean, for the purpose of determining LIBOR, any
day other than a Saturday, Sunday or day on which banking institutions in
London, England, trading in Dollar deposits in the London interbank market, or
banking institutions in New York, New York, or in Newark, Delaware, are
authorized or obligated by law or executive order to be closed and for all other
purposes shall have the meaning provided in the Agreement.
4
<PAGE>
"Calculation Date" shall mean September 11, 1997 and the second
Business Day (as defined for purposes of determining LIBOR) prior to the 15th
day of each calendar month thereafter, or if such 15th day is not a Business
Day, the next succeeding Business Day.
"CIA Account Percentage" shall mean, with respect to any Determination
Date, the percentage equivalent of a fraction, the numerator of which is the
aggregate amount deposited in the Principal Funding Account on prior Transfer
Dates pursuant to subsection 4.09(e)(iii) and the denominator of which is the
aggregate amount on deposit in the Principal Funding Account as of the last day
of the preceding Monthly Period.
"CIA Adjusted Invested Amount" shall mean, with respect to any date of
determination, an amount not less than zero equal to the CIA Invested Amount
minus the excess, if any, of the Principal Funding Account Balance over the sum
of the Class A Invested Amount and the Class B Invested Amount on such date of
determination.
"CIA Available Funds" shall mean, with respect to any Monthly Period,
an amount equal to the sum of (a) the CIA Floating Allocation Percentage of the
Collections of Finance Charge Receivables in respect of such Monthly Period and
(b) with respect to any Monthly Period during the Accumulation Period prior to
the payment in full of the CIA Invested Amount, the product of (i) the CIA
Account Percentage and (ii) the sum of the Principal Funding Investment Proceeds
pursuant to subsection 4.16(b) of the Agreement, if any, with respect to the
related Transfer Date and the amounts, if any, to be withdrawn from the Reserve
Account which will be deposited into the Finance Charge Account on the related
Transfer Date pursuant to subsections 4.17(b), 4.17(d), 4.17(e) and 4.17(f) of
the Agreement.
"CIA Certificateholder" shall mean the Person in whose name a CIA
Certificate is registered in the Certificate Register.
"CIA Certificateholders' Interest" shall mean the portion of the
Series 1997-5 Certificateholders' Interest evidenced by the CIA Certificates.
"CIA Certificate Rate" shall mean 8.75% per annum, or such lesser rate
as may be designated in the Spread Account Agreement.
5
<PAGE>
"CIA Certificates" shall mean any of the certificates executed by the
Transferor and authenticated by or on behalf of the Trustee, substantially in
the form of Exhibit C hereto.
"CIA Default Interest" shall have the meaning specified in subsection
4.06(c) of the Agreement.
"CIA Fixed/Floating Allocation Percentage" shall mean for any Monthly
Period during the Amortization Period the percentage equivalent of a fraction,
the numerator of which is the CIA Invested Amount at the end of the last day of
the Revolving Period and the denominator of which is the greater of (a) the
total amount of Principal Receivables in the Trust at the end of the last day of
the preceding Monthly Period and (b) the sum of the numerators used to calculate
fixed/floating allocation percentages with respect to all Series then
outstanding on the applicable Distribution Date; provided, however, that with
respect to any Monthly Period in which an Addition Date or Removal Date occurs
and the Servicer need not make daily deposits of Collections into the Collection
Account, the denominator determined pursuant to clause (a) shall be the Average
Principal Balance; provided further, however, that with respect to any Monthly
Period in which an Addition Date or Removal Date occurs and the Servicer is
required to make daily deposits of Collections into the Collection Account, the
denominator determined pursuant to clause (a) hereof shall be (1) the aggregate
amount of Principal Receivables in the Trust at the end of the day on the last
day of the prior Monthly Period for the period from and including the first day
of such Monthly Period to but excluding the related Addition Date or Removal
Date, as applicable, and (2) the aggregate amount of Principal Receivables in
the Trust at the end of the day on the related Addition Date or Removal Date, as
applicable, for the period from and including such Addition Date or Removal
Date, as applicable, to and including the last day of such Monthly Period.
"CIA Floating Allocation Percentage" shall mean, with respect to any
Monthly Period, the percentage equivalent of a fraction, the numerator of which
is the CIA Adjusted Invested Amount as of the last day of the preceding Monthly
Period and the denominator of which is the total amount of Principal Receivables
in the Trust as of the last day of such preceding Monthly Period; provided
however, that, with respect to the first Monthly
6
<PAGE>
Period, the CIA Floating Allocation Percentage shall mean the percentage
equivalent of a fraction, the numerator of which is the CIA Initial Invested
Amount and the denominator of which is the total amount of Principal
Receivables on the Closing Date; provided further, that with respect to any
Monthly Period in which an Addition Date or Removal Date occurs and the Servicer
need not make daily deposits of Collections into the Collection Account, the
denominator in the definition of the CIA Floating Allocation Percentage shall be
the Average Principal Balance; provided further, that with respect to any
Monthly Period in which an Addition Date or Removal Date occurs and the Servicer
is required to make daily deposits of Collections into the Collection Account,
the denominator in the definition of the CIA Floating Allocation Percentage
shall be (1) the aggregate amount of Principal Receivables in the Trust at the
end of the day on the last day of the prior Monthly Period for the period from
and including the first day of such Monthly Period to but excluding the related
Addition Date or Removal Date, as applicable, and (2) the aggregate amount of
Principal Receivables in the Trust at the end of the day on the related Addition
Date or Removal Date, as applicable, for the period from and including such
Addition Date or Removal Date, as applicable, to and including the last day of
such Monthly Period.
"CIA Initial Invested Amount" shall mean the aggregate initial
principal amount of the CIA Certificates, which is $74,395,000.
"CIA Interest Shortfall" shall have the meaning specified in
subsection 4.06(c) of the Agreement.
"CIA Invested Amount" shall mean, when used with respect to any date
of determination, an amount equal to (a) the CIA Initial Invested Amount, minus
(b) the aggregate amount of principal payments made to CIA Certificateholders
prior to such day, minus (c) the aggregate amount of CIA Investor Charge-Offs
for all prior Distribution Dates pursuant to subsection 4.12(c) of the
Agreement, minus (d) the amount of the Reallocated Principal Collections
allocated on all prior Distribution Dates pursuant to Section 4.14 of the
Agreement (but in the aggregate not in excess of the CIA Initial Invested
Amount), minus (e) an amount equal to the amount by which the CIA Invested
Amount has been reduced on all prior Distribution Dates pursuant to subsections
4.12(a) and (b) of the Agreement and plus (f) the amount of Excess
7
<PAGE>
Finance Charge Collections allocated and available on all prior Transfer Dates
pursuant to subsection 4.13(i) of the Agreement, for the purpose of reimbursing
amounts deducted pursuant to the foregoing clauses (c), (d) and (e); provided,
however, that the CIA Invested Amount may not be reduced below zero.
"CIA Investor Charge-Offs" shall have the meaning specified in
subsection 4.12(c) of the Agreement.
"CIA Investor Default Amount" shall mean, with respect to each
Distribution Date and each Receivable in an Account which became a Defaulted
Account during the related Monthly Period, an amount equal to the product of the
aggregate Default Amount for the related Monthly Period and the CIA Investor
Percentage applicable for the related Monthly Period.
"CIA Investor Percentage" shall mean for any Monthly Period, (a) with
respect to Defaulted Receivables and Finance Charge Receivables at any time or
Principal Receivables during the Revolving Period, the CIA Floating Allocation
Percentage, and (b) with respect to Principal Receivables during the
Amortization Period, the CIA Fixed/Floating Allocation Percentage.
"CIA Monthly Interest" shall mean the monthly interest distributable
in respect of the CIA Invested Amount as calculated in accordance with
subsection 4.06(c) of the Agreement.
"CIA Monthly Principal" shall mean the monthly principal distributable
in respect of the CIA Invested Amount as calculated in accordance with
subsection 4.07(c) of the Agreement.
"CIA Monthly Servicing Fee" shall mean, with respect to any
Distribution Date, one-twelfth of the product of the Series Servicing Fee
Percentage and the CIA Adjusted Invested Amount on the last day of the
preceding Monthly Period; provided, however, that with respect to the initial
Monthly Period the CIA Monthly Servicing Fee shall be $76,433.
"CIA Principal Commencement Date" shall mean (a) with respect to the
Accumulation Period, the first Distribution Date on which an amount equal to the
sum of the Class A Invested Amount and the Class B Invested Amount has been
deposited in the Principal Funding Ac-
8
<PAGE>
count and allocated to the Class A Certificates and the Class B Certificates or
(b) with respect to the Rapid Amortization Period, the Distribution Date on
which the Class A Invested Amount and the Class B Invested Amount have each been
paid in full or, if there are no Principal Receivables allocable to the Investor
Certificates remaining after payments have been made to the Class A Certificates
and the Class B Certificates on such Distribution Date, the Distribution Date
following the Distribution Date on which the Class A Invested Amount and the
Class B Invested Amount have each been paid in full.
"CIA Scheduled Payment Date" shall mean the August 2004 Distribution
Date.
"Class A Account Percentage" shall mean, with respect to any
Determination Date, the percentage equivalent of a fraction, the numerator of
which is the aggregate amount deposited in the Principal Funding Account on
prior Transfer Dates pursuant to subsection 4.09(e)(i) and the denominator of
which is the aggregate amount on deposit in the Principal Funding Account as of
the last day of the preceding Monthly Period.
"Class A Adjusted Invested Amount" shall mean, with respect to any
date of determination, an amount not less than zero equal to the Class A
Invested Amount minus the Principal Funding Account Balance on such date of
determination.
"Class A Available Funds" shall mean, with respect to any Monthly
Period, an amount equal to the sum of (a) the Class A Floating Allocation
Percentage of the Collections of Finance Charge Receivables in respect of such
Monthly Period and (b) with respect to any Monthly Period during the
Accumulation Period prior to the payment in full of the Class A Invested Amount,
the product of (i) the Class A Account Percentage and (ii) the sum of the
Principal Funding Investment Proceeds pursuant to subsection 4.16(b) of the
Agreement, if any, with respect to the related Transfer Date and the amounts, if
any, to be withdrawn from the Reserve Account which will be deposited into the
Finance Charge Account on the related Transfer Date pursuant to subsections
4.17(b), 4.17(d), 4.17(e) and 4.17(f) of the Agreement.
"Class A Certificate Rate" shall mean a per annum rate of 0.14% in
excess of LIBOR as determined (i) on August 5, 1997 for the period from and
including the
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<PAGE>
Closing Date through and including August 16, 1997, (ii) on August 14, 1997 for
the period from and including August 17, 1997 through and including September
16, 1997, and (iii) on the related LIBOR Determination Date with respect to each
Interest Period thereafter.
"Class A Certificateholder" shall mean the Person in whose name a
Class A Certificate is registered in the Certificate Register.
"Class A Certificateholders' Interest" shall mean the portion of the
Series 1997-5 Certificateholders' Interest evidenced by the Class A
Certificates.
"Class A Certificates" shall mean any of the certificates executed by
the Transferor and authenticated by or on behalf of the Trustee, substantially
in the form of Exhibit A hereto.
"Class A Default Interest" shall have the meaning specified in
subsection 4.06(a) of the Agreement.
"Class A Floating Allocation Percentage" shall mean, with respect to
any Monthly Period, the percentage equivalent of a fraction, the numerator of
which is the Class A Adjusted Invested Amount as of the last day of the
preceding Monthly Period and the denominator of which is the total amount of
Principal Receivables in the Trust as of the last day of such preceding Monthly
Period; provided however, that, with respect to the first Monthly Period, the
Class A Floating Allocation Percentage shall mean the percentage equivalent of a
fraction, the numerator of which is the Class A Initial Invested Amount and the
denominator of which is the total amount of Principal Receivables in the Trust
on the Closing Date; provided further, that with respect to any Monthly Period
in which an Addition Date or a Removal Date occurs and the Servicer need not
make daily deposits of Collections into the Collection Account, the denominator
in the definition of the Class A Floating Allocation Percentage shall be the
Average Principal Balance; provided further, that with respect to any Monthly
Period in which an Addition Date or Removal Date occurs and the Servicer is
required to make daily deposits of Collections into the Collection Account, the
denominator in the definition of the Class A Floating Allocation Percentage
shall be (1) the aggregate amount of Principal Receivables in the Trust at the
end of the day on the last day of the prior Monthly Period for the period from
and including the first day of such
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<PAGE>
Monthly Period to but excluding the related Addition Date or Removal Date, as
applicable, and (2) the aggregate amount of Principal Receivables in the Trust
at the end of the day on the related Addition Date or Removal Date, as
applicable, for the period from such Addition Date to and including the last day
of such Monthly Period.
"Class A Initial Invested Amount" shall mean the aggregate initial
principal amount of the Class A Certificates, which is $650,000,000.
"Class A Interest Shortfall" shall have the meaning specified in
subsection 4.06(a) of the Agreement.
"Class A Invested Amount" shall mean, when used with respect to any
date of determination, an amount equal to (a) the Class A Initial Invested
Amount, minus (b) the aggregate amount of principal payments made to Class A
Certificateholders prior to such day and minus (c) the excess, if any, of the
aggregate amount of Class A Investor Charge-Offs over Class A Investor
Charge-Offs reimbursed pursuant to subsection 4.12(a) of the Agreement prior to
such day.
"Class A Investor Charge-Offs" shall have the meaning specified in
subsection 4.12(a) of the Agreement.
"Class A Investor Default Amount" shall mean, with respect to each
Distribution Date and each Receivable in an Account which became a Defaulted
Account during the related Monthly Period, an amount equal to the product of the
aggregate Default Amount for the related Monthly Period and the applicable Class
A Investor Percentage for the related Monthly Period.
"Class A Investor Percentage" shall mean for any Monthly Period, (a)
with respect to Defaulted Receivables and Finance Charge Receivables at any
time and Principal Receivables during the Revolving Period, the Class A Floating
Allocation Percentage, and (b) with respect to Principal Receivables during the
Amortization Period, the Fixed/Floating Allocation Percentage.
"Class A Monthly Interest" shall mean the monthly interest
distributable in respect of the Class A Certificates as calculated in accordance
with subsection 4.06(a) of the Agreement.
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<PAGE>
"Class A Monthly Principal" shall mean the monthly principal
distributable in respect of the Class A Certificates as calculated in accordance
with subsection 4.07(a) of the Agreement.
"Class A Monthly Servicing Fee" shall mean, with respect to any
Distribution Date, one-twelfth of the product of the Series Servicing Fee
Percentage and the Class A Adjusted Invested Amount on the last day of the
preceding Monthly Period; provided, however, that with respect to the initial
Monthly Period the Class A Monthly Servicing Fee shall be $667,808.
"Class A Outstanding Principal Balance" shall mean, when used with
respect to any date of determination, an amount equal to (a) the Class A
Initial Invested Amount, minus (b) the aggregate amount of principal payments
made to the Class A Certificateholders prior to such day.
"Class A Pool Factor" shall mean, with respect to any Record Date, a
number carried out to seven decimal places representing the ratio of the Class A
Invested Amount as of such Record Date (determined after taking into account any
increases or decreases in the Class A Invested Amount which will occur on the
following Distribution Date) to the Class A Initial Invested Amount.
"Class A Required Amount" shall have the meaning specified in Section
4.08 of the Agreement.
"Class A Scheduled Payment Date" shall mean the August 2004
Distribution Date.
"Class B Account Percentage" shall mean, with respect to any
Determination Date, the percentage equivalent of a fraction, the numerator of
which is the aggregate amount deposited in the Principal Funding Account on
prior Transfer Dates pursuant to subsection 4.09(e)(ii) and the denominator of
which is the aggregate amount on deposit in the Principal Funding Account as of
the last day of the preceding Monthly Period.
"Class B Adjusted Invested Amount" shall mean, with respect to any
date of determination, an amount not less than zero equal to the Class B
Invested Amount minus the excess, if any, of the Principal Funding Account
Balance over the Class A Invested Amount on such date of determination.
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<PAGE>
"Class B Available Funds" shall mean, with respect to any Monthly
Period, an amount equal to the sum of (a) the Class B Floating Allocation
Percentage of the Collections of Finance Charge Receivables in respect of such
Monthly Period and (b) with respect to any Monthly Period during the
Accumulation Period prior to the payment in full of the Class B Invested Amount,
the product of (i) the Class B Account Percentage and (ii) the sum of the
Principal Funding Investment Proceeds pursuant to subsection 4.16(b) of the
Agreement, if any, with respect to the related Transfer Date and the amounts, if
any, to be withdrawn from the Reserve Account which will be deposited into the
Finance Charge Account on the related Transfer Date pursuant to subsections
4.17(b), 4.17(d), 4.17(e) and 4.17(f) of the Agreement.
"Class B Certificate Rate" shall mean a per annum rate of 0.33% in
excess of LIBOR as determined (i) on August 5, 1997 for the period from and
including the Closing Date through and including August 16, 1997, (ii) on August
14, 1997 for the period from and including August 17, 1997 through and including
September 16, 1997, and (iii) on the related LIBOR Determination Date with
respect to each Interest Period thereafter.
"Class B Certificateholder" shall mean the Person in whose name a
Class B Certificate is registered in the Certificate Register.
"Class B Certificateholders' Interest" shall mean the portion of the
Series 1997-5 Certificateholders' Interest evidenced by the Class B
Certificates.
"Class B Certificates" shall mean any of the certificates executed by
the Transferor and authenticated by or on behalf of the Trustee, substantially
in the form of Exhibit B hereto.
"Class B Default Interest" shall have the meaning specified in
subsection 4.06(b) of the Agreement.
"Class B Fixed/Floating Allocation Percentage" shall mean for any
Monthly Period during the Amortization Period the percentage equivalent of a
fraction, the numerator of which is the Class B Invested Amount at the end of
the last day of the Revolving Period and the denominator of which is the greater
of (a) the total amount of Principal Receivables in the Trust at the end
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<PAGE>
of the last day of the preceding Monthly Period and (b) the sum of the
numerators used to calculate fixed/floating allocation percentages with respect
to all Series then outstanding on the applicable Distribution Date; provided,
however, that with respect to any Monthly Period in which an Addition Date or
Removal Date occurs and the Servicer need not make daily deposits of
Collections into the Collection Account, the denominator determined pursuant to
clause (a) shall be the Average Principal Balance; provided further, however,
that with respect to any Monthly Period in which an Addition Date or Removal
Date occurs and the Servicer is required to make daily deposits of Collections
into the Collection Account, the denominator determined pursuant to clause (a)
hereof shall be (1) the aggregate amount of Principal Receivables in the Trust
at the end of the day on the last day of the prior Monthly Period for the period
from and including the first day of such Monthly Period to but excluding the
related Addition Date or Removal Date, as applicable, and (2) the aggregate
amount of Principal Receivables in the Trust at the end of the day on the
related Addition Date or Removal Date, as applicable, for the period from and
including such Addition Date or Removal Date, as applicable, to and including
the last day of such Monthly Period.
"Class B Floating Allocation Percentage" shall mean, with respect to
any Monthly Period, the percentage equivalent of a fraction, the numerator of
which is the Class B Adjusted Invested Amount as of the last day of the
preceding Monthly Period and the denominator of which is the total amount of
Principal Receivables in the Trust as of the last day of such preceding Monthly
Period; provided however, that, with respect to the first Monthly Period, the
Class B Floating Allocation Percentage shall mean the percentage equivalent of a
fraction, the numerator of which is the Class B Initial Invested Amount and the
denominator of which is the total amount of Principal Receivables on the Closing
Date; provided further, that with respect to any Monthly Period in which an
Addition Date or Removal Date occurs and the Servicer need not make daily
deposits of Collections into the Collection Account, the denominator in the
definition of the Class B Floating Allocation Percentage shall be the Average
Principal Balance; provided further, that with respect to any Monthly Period in
which an Addition Date or Removal Date occurs and the Servicer is required to
make daily deposits of Collections into the Collection Account, the denominator
in the definition of the Class B Floating
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<PAGE>
Allocation Percentage shall be (1) the aggregate amount of Principal Receivables
in the Trust at the end of the day on the last day of the prior Monthly Period
for the period from and including the first day of such Monthly Period to but
excluding the related Addition Date or Removal Date, as applicable, and (2) the
aggregate amount of Principal Receivables in the Trust at the end of the day on
the related Addition Date or Removal Date, as applicable, for the period from
and including such Addition Date or Removal Date, as applicable, to and
including the last day of such Monthly Period.
"Class B Initial Invested Amount" shall mean the aggregate initial
principal amount of the Class B Certificates, which is $58,735,000.
"Class B Interest Shortfall" shall have the meaning specified in
subsection 4.06(b) of the Agreement.
"Class B Invested Amount" shall mean, when used with respect to any
date of determination, an amount equal to (a) the Class B Initial Invested
Amount, minus (b) the aggregate amount of principal payments made to Class B
Certificateholders prior to such day, minus (c) the aggregate amount of Class B
Investor Charge-Offs for all prior Distribution Dates, minus (d) the amount of
the Reallocated Class B Principal Collections allocated on all prior
Distribution Dates for which the CIA Invested Amount has not been reduced
pursuant to subsection 4.14(a) of the Agreement, minus (e) an amount equal to
the amount by which the Class B Invested Amount has been reduced on all prior
Distribution Dates pursuant to subsection 4.12(a) of the Agreement and plus (f)
the amount of Excess Finance Charge Collections allocated and available on all
prior Transfer Dates pursuant to subsection 4.13(e) of the Agreement, for the
purpose of reimbursing amounts deducted pursuant to the foregoing clauses (c),
(d) and (e); provided, however, that the Class B Invested Amount may not be
reduced below zero.
"Class B Investor Charge-Offs" shall have the meaning specified in
subsection 4.12(b) of the Agreement.
"Class B Investor Default Amount" shall mean, with respect to each
Distribution Date and each Receivable in an Account which became a Defaulted
Account during the related Monthly Period, an amount equal to the product of the
aggregate Default Amount for the related
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<PAGE>
Monthly Period and the Class B Investor Percentage applicable for the related
Monthly Period.
"Class B Investor Percentage" shall mean for any Monthly Period, (a)
with respect to Defaulted Receivables and Finance Charge Receivables at any
time or Principal Receivables during the Revolving Period, the Class B Floating
Allocation Percentage, and (b) with respect to Principal Receivables during the
Amortization Period, the Class B Fixed/Floating Allocation Percentage.
"Class B Monthly Interest" shall mean the monthly interest
distributable in respect of the Class B Certificates as calculated in accordance
with subsection 4.06(b) of the Agreement.
"Class B Monthly Principal" shall mean the monthly principal
distributable in respect of the Class B Certificates as calculated in accordance
with subsection 4.07(b) of the Agreement.
"Class B Monthly Servicing Fee" shall mean, with respect to any
Distribution Date, one-twelfth of the product of the Series Servicing Fee
Percentage and the Class B Adjusted Invested Amount on the last day of the
preceding Monthly Period; provided, however, that with respect to the initial
Monthly Period the Class B Monthly Servicing Fee shall be $60,344.
"Class B Outstanding Principal Balance" shall mean, when used with
respect to any date of determination, an amount equal to (a) the Class B
Initial Invested Amount, minus (b) the aggregate amount of principal payments
made to the Class B Certificateholders prior to such day.
"Class B Pool Factor" shall mean, with respect to any Record Date, a
number carried out to seven decimal places representing the ratio of the Class B
Invested Amount as of such Record Date (determined after taking into account any
increases or decreases in the Class B Invested Amount which will occur on the
following Distribution Date) to the Class B Initial Invested Amount.
"Class B Principal Commencement Date" shall mean (a) with respect to
the Accumulation Period, the first Distribution Date on which an amount equal to
the Class A Invested Amount has been deposited in the Principal Funding Account
and allocated to the Class A Certifi-
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<PAGE>
cates or (b) with respect to the Rapid Amortization Period, the Distribution
Date on which the Class A Invested Amount is paid in full or, if there are no
Available Investor Principal Collections allocable to the Investor Certificates
remaining after payments have been made to the Class A Certificates on such
Distribution Date, the Distribution Date following the Distribution Date on
which the Class A Invested Amount is paid in full.
"Class B Required Amount" shall have the meaning specified in Section
4.08 of the Agreement.
"Class B Scheduled Payment Date" shall mean the August 2004
Distribution Date.
"Closing Date" shall mean August 7, 1997.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Controlled Accumulation Amount" shall mean, for any Transfer Date
with respect to the Accumulation Period prior to the payment in full of the
Invested Amount, $65,260,834; provided, however, that if the Accumulation
Period Length is determined to be less than 12 months pursuant to subsection
4.09(i) of the Agreement, the Controlled Accumulation Amount for each Transfer
Date with respect to the Accumulation Period prior to the payment in full of the
Invested Amount will be equal to (i) the product of (x) the Initial Invested
Amount and (y) the Accumulation Period Factor for such Monthly Period divided by
(ii) the Required Accumulation Factor Number.
"Controlled Deposit Amount" shall mean, with respect to any Transfer
Date, the sum of (a) the Controlled Accumulation Amount for such Transfer Date
and (b) any existing Accumulation Shortfall.
"Covered Amount" shall mean, with respect to any Interest Period
during the Accumulation Period prior to the payment in full of the Invested
Amount, the sum of (a) with respect to the Class A Certificates, the product of
(i) a fraction, the numerator of which is the actual number of days in such
Interest Period and the denominator of which is 360, (ii) the Class A
Certificate Rate in effect with respect to such Interest Period and (iii) the
aggregate amount on deposit in the Principal Funding Ac-
17
<PAGE>
count with respect to Class A Monthly Principal as of the last day of the
Monthly Period preceding the Monthly Period in which such Interest Period ends,
(b) with respect to the Class B Certificates, the product of (i) a fraction, the
numerator of which is the actual number of days in such Interest Period and the
denominator of which is 360, (ii) Class B Certificate Rate in effect with
respect to such Interest Period and (iii) the aggregate amount on deposit in the
Principal Funding Account with respect to Class B Monthly Principal as of the
last day of the Monthly Period preceding the Monthly Period in which such
Interest Period ends, and (c) with respect to the CIA Certificates, one-twelfth
of the product of (i) the CIA Certificate Rate and (ii) the aggregate amount on
deposit in the Principal Funding Account with respect to CIA Monthly Principal
as of the last day of the Monthly Period preceding the Monthly Period in which
such Interest Period ends.
"Daily Deposit Date" shall mean the Determination Date on which the
Excess Spread Percentage (as defined in the Spread Account Agreement) for the
Monthly Period preceding such date is less than 2.50% per annum.
"Default Interest" shall mean, with respect to any Distribution Date,
the sum of Class A Default Interest, Class B Default Interest and CIA Default
Interest distributable in respect of the Investor Certificates as calculated in
accordance with Section 4.06 of the Agreement.
"Determination Date" shall mean the first Business Day on or before
the eighth calendar day prior to each Distribution Date.
"Distribution Date" shall mean September 17, 1997 and the 17th day of
each calendar month thereafter, or if such 17th day is not a Business Day, the
next succeeding Business Day.
"Enhancement" shall mean with respect to the Class A Certificates, the
subordination of the Class B Certificates and the CIA Certificates, and with
respect to the Class B Certificates, the subordination of the CIA Certificates.
"Enhancement Provider" shall mean the CIA Certificateholders.
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<PAGE>
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"Excess Finance Charge Collections" shall mean, with respect to any
Transfer Date, the sum of the amounts, if any, specified pursuant to subsections
4.09(a)(iv), 4.09(b)(iii) and 4.09(c)(ii) of the Agreement with respect to such
Transfer Date.
"Excess Principal Collections" shall mean, as the context requires,
either (a) the amount allocated to the Investor Certificates which, in
accordance with subsections 4.05(b)(ii), 4.05(c)(ii) and 4.05(f) of the
Agreement, may be applied to Principal Shortfalls with respect to other
outstanding Series or (b) the amounts allocated to the investor certificates of
other Series which the applicable supplements for such Series specify are to be
treated as "Excess Principal Collections" and which may be applied to cover
Principal Shortfalls with respect to the Investor Certificates.
"Finance Charge Deficit" shall have the meaning set forth in
subsection 4.05(b)(ii) of the Agreement.
"Fixed/Floating Allocation Percentage" shall mean for any Monthly
Period during the Amortization Period the percentage equivalent of a fraction,
the numerator of which is the Invested Amount at the end of the last day of the
Revolving Period and the denominator of which is the greater of (a) the total
amount of Principal Receivables in the Trust at the end of the last day of the
preceding Monthly Period and (b) the sum of the numerators used to calculate
fixed/floating allocation percentages with respect to all Series then
outstanding on the applicable Distribution Date; provided, however, that with
respect to any Monthly Period in which an Addition Date or a Removal Date occurs
and the Servicer need not make daily deposits of Collections into the Collection
Account, the denominator determined pursuant to clause (a) shall be the Average
Principal Balance; provided further, however, that with respect to any Monthly
Period in which an Addition Date or Removal Date occurs and the Servicer is
required to make daily deposits of Collections into the Collection Account, the
denominator determined pursuant to clause (a) hereof shall be (1) the aggregate
amount of Principal Receivables in the Trust at the end of the day on the last
day of the prior Monthly Period for the period from and including the first day
of such Monthly Period to but
19
<PAGE>
excluding the related Addition Date or Removal Date, as applicable, and (2) the
aggregate amount of Principal Receivables in the Trust at the end of the day on
the related Addition Date or Removal Date, as applicable, for the period from
and including the related Addition Date or Removal Date, as applicable, to and
including the last day of such Monthly Period.
"Floating Allocation Percentage" shall mean for any date of
determination the sum of the applicable Class A Floating Allocation Percentage,
the applicable Class B Floating Allocation Percentage and the CIA Floating
Allocation Percentage.
"Initial Invested Amount" shall mean the aggre gate initial principal
amount of the Investor Certificates of Series 1997-5, which is $783,130,000.
"Interest Period" shall mean, with respect to a Distribution Date, the
period beginning on the preceding Distribution Date continuing through the day
preceding such Distribution Date, except the first Interest Period shall be
deemed to be the 41 day period from and including the Closing Date through and
including the day preceding the initial Distribution Date.
"Interest Shortfall" shall mean, with respect to any Distribution
Date, the sum of the Class A Interest Shortfall, the Class B Interest Shortfall
and the CIA Interest Shortfall distributable in respect of the Investor
Certificates as calculated in accordance with Section 4.06 of the Agreement.
"Invested Amount" shall mean, when used with respect to any date, an
amount equal to the sum of (a) the Class A Invested Amount, (b) the Class B
Invested Amount and (c) the CIA Invested Amount each as of such date; provided,
however, that for purposes of determining the Investor Monthly Servicing Fee and
the Aggregate Invested Amount, the Invested Amount shall mean an amount equal to
the sum of (a) the Class A Adjusted Invested Amount, (b) the Class B Adjusted
Invested Amount and (c) the CIA Adjusted Invested Amount with respect to any
date of determination.
"Investor Certificateholder" shall mean the Holder of record of an
Investor Certificate of Series 1997-5.
20
<PAGE>
"Investor Certificates" shall mean the Class A Certificates, the Class
B Certificates and the CIA Certificates.
"Investor Default Amount" shall mean, with respect to each
Distribution Date, an amount equal to the sum of (a) the Class A Investor
Default Amount for such Distribution Date, (b) the Class B Investor Default
Amount for such Distribution Date and (c) the CIA Investor Default Amount for
such Distribution Date.
"Investor Monthly Servicing Fee" shall, with respect to any Transfer
Date, be equal to one-twelfth of the product of (A) the Series Servicing Fee
Percentage and (B) the Adjusted Invested Amount as of the last day of the
Monthly Period preceding such Transfer Date; provided, however, that with
respect to the initial Monthly Period the Investor Monthly Servicing Fee shall
be $804,585.
"Investor Percentage" shall mean for any Monthly Period, (a) with
respect to Finance Charge Receivables and Defaulted Receivables at any time and
Principal Receivables during the Revolving Period, the Floating Allocation
Percentage and (b) with respect to Principal Receivables during the Amortization
Period, the Fixed/Floating Allocation Percentage.
"Issuance Date" shall mean the Closing Date.
"LIBOR" shall mean, for any Interest Period, the London interbank
offered rate for one-month Dollar deposits determined by the Trustee for each
Interest Period in accordance with the provisions of Section 4.15 of the
Agreement.
"LIBOR Determination Date" shall mean (i) August 5, 1997 for the
period from and including the Closing Date through and including August 16,
1997, (ii) August 14, 1997 for the period from and including August 17, 1997
through and including September 16, 1997, and (iii) the second Business Day
prior to the commencement of the second and each subsequent Interest Period.
"Minimum Transferor Interest" shall mean, with respect to any period,
7% of the average of the aggregate amount of Principal Receivables for such
period.
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<PAGE>
"Monthly Interest" shall mean, with respect to any Distribution Date,
the sum of the Class A Monthly Interest, the Class B Monthly Interest and the
CIA Monthly Interest distributable in respect of the Series 1997-5 Certificates
as calculated in accordance with Section 4.06 of the Agreement.
"Monthly Period" shall have the meaning specified in the Agreement,
except that the first Monthly Period with respect to the Series 1997-5
Certificates shall begin on and include the Closing Date and shall end on and
include August 31, 1997.
"Monthly Principal" shall mean the monthly principal distributable in
respect of the Series 1997-5 Certificates as calculated in accordance with
Section 4.07 of the Agreement.
"Pay Out Commencement Date" shall mean the earliest to occur of (i)
the date on which a Trust Pay Out Event is deemed to occur pursuant to Section
9.01 of the Agreement, (ii) a Series 1997-5 Pay Out Event is deemed to occur
pursuant to Section 8 of this Series Supplement, (iii) the Class A Scheduled
Payment Date if the Class A Invested Amount is not paid in full on such date and
(iv) the Class B Scheduled Payment Date if the Class B Invested Amount is not
paid in full on such date.
"Paying Agent" shall mean The Bank of New York.
"Plan Purchaser" shall have the meaning specified in subsection 11(f)
of this Series Supplement.
"Portfolio Adjusted Yield" shall mean, with respect to any Transfer
Date, the average of the percentages obtained for each of the three preceding
Monthly Periods by subtracting the Base Rate for such Monthly Period from the
Portfolio Yield for such Monthly Period.
"Portfolio Yield" shall mean for the Series 1997-5 Certificates, with
respect to any Monthly Period, the annualized percentage equivalent of a
fraction, the numerator of which is an amount equal to the sum of (a) the amount
of Collections of Finance Charge Receivables allocated to the Investor
Certificates for such Monthly Period, and (b) the Principal Funding Investment
Proceeds deposited into the Finance Charge Account on the Transfer Date related
to such Monthly Period, and (c) the amount, if any, withdrawn from the Reserve
Account to be deposit-
22
<PAGE>
ed into the Finance Charge Account pursuant to subsections 4.17(b), 4.17(d),
4.17(e) and 4.17(f) of the Agreement on the Transfer Date relating to such
Monthly Period (such sum to be calculated on a cash basis after subtracting an
amount equal to the Investor Default Amount for such Monthly Period), and the
denominator of which is the Invested Amount as of the last day of the preceding
Monthly Period.
"Principal Funding Account" shall have the meaning set forth in
subsection 4.16(a) of the Agreement.
"Principal Funding Account Balance" shall mean, with respect to any
date of determination during the Accumulation Period, the principal amount, if
any, on deposit in the Principal Funding Account on such date of determination.
"Principal Funding Investment Proceeds" shall mean, with respect to
each Interest Period during the Accumulation Period, the investment earnings on
funds in the Principal Funding Account (net of investment expenses and losses)
for such Interest Period.
"Principal Funding Investment Shortfall" shall mean, with respect to
each Interest Period during the Accumulation Period, the amount, if any, by
which the Principal Funding Investment Proceeds are less than the Covered
Amount.
"Principal Shortfalls" shall mean, with respect to any Distribution
Date (a) during the Accumulation Period, the amount, if any, by which the
Controlled Deposit Amount exceeds the sum of the Class A Monthly Principal,
Class B Monthly Principal and CIA Monthly Principal for such Distribution Date
or (b) during the Rapid Amortization Period, (i) the amount, if any, by which
the Class A Invested Amount exceeds the Class A Monthly Principal for such
Distribution Date, (ii) on and after the Class B Principal Commencement Date,
the amount, if any, by which the Class B Invested Amount exceeds the Class B
Monthly Principal for such Distribution Date and (iii) on and after the CIA
Principal Commencement Date, the amount if any, by which the CIA Invested
Amount exceeds the CIA Monthly Principal for such Distribution Date.
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<PAGE>
"QIB" shall mean a "qualified institutional buyer" within the meaning
of Rule 144A under the Securities Act.
"Rapid Amortization Period" shall mean the period commencing on the
Pay Out Commencement Date and ending on the earlier to occur of (i) the date of
termination of the Trust pursuant to Section 12.01 of the Agreement or (ii) the
Series 1997-5 Termination Date.
"Rating Agency" shall mean each of Fitch Investors Service, L.P.,
Moody's and Standard & Poor's.
"Rating Agency Condition" shall mean the notification in writing by
each Rating Agency to the Transferor, the Servicer and the Trustee that any
action will not result in any Rating Agency reducing or withdrawing its then
existing rating of the investor certificates of any outstanding Series or class
with respect to which it is a Rating Agency.
"Reallocated Class B Principal Collections" shall have the meaning
specified in subsection 4.14(b) of the Agreement.
"Reallocated CIA Principal Collections" shall have the meaning
specified in subsection 4.14(a) of the Agreement.
"Reallocated Principal Collections" shall mean the sum of Reallocated
Class B Principal Collections and Reallocated CIA Principal Collections.
"Reference Banks" shall mean four major banks in the London interbank
market selected by the Servicer.
"Required Accumulation Factor Number" shall be equal to a fraction,
rounded upwards to the nearest whole number, the numerator of which is one and
the denominator of which is equal to the lowest monthly principal payment rate
on the Accounts, expressed as a decimal, for the 12 months preceding the date of
such calculation.
"Required Reserve Account Amount" shall mean, with respect to any
Transfer Date on or after the Reserve Account Funding Date, an amount equal to
(a) 0.50% of the Invested Amount or (b) any other amount designated by the
Transferor; provided, however, that if such designation is of a lesser amount,
the Transferor shall (i) provide
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the Servicer, the CIA Certificateholders and the Trustee with evidence that the
Rating Agency Condition shall have been satisfied and (ii) deliver to the
Trustee a certificate of an authorized officer to the effect that, based on the
facts known to such officer at such time, in the reasonable belief of the
Transferor, such designation will not cause a Pay Out Event or an event that,
after the giving of notice or the lapse of time, would cause a Pay Out Event to
occur with respect to Series 1997-5.
"Reserve Account" shall have the meaning specified in subsection
4.17(a) of the Agreement.
"Reserve Account Funding Date" shall mean the Transfer Date which
occurs not later than the earliest of (a) the Transfer Date with respect to the
Monthly Period which commences 3 months prior to the commencement of the
Accumulation Period; (b) the first Transfer Date for which the Portfolio
Adjusted Yield is less than 2.0%, but in such event the Reserve Account Funding
Date shall not be required to occur earlier than the Transfer Date which
commences 12 months prior to the commencement of the Accumulation Period; (c)
the first Transfer Date for which the Portfolio Adjusted Yield is less than
3.0%, but in such event the Reserve Account Funding Date shall not be required
to occur earlier than the Transfer Date which commences 6 months prior to the
commencement of the Accumulation Period; or (d) the first Transfer Date for
which the Portfolio Adjusted Yield is less than 3.5%, but in such event the
Reserve Account Funding Date shall not be required to occur earlier than the
Transfer Date which commences 4 months prior to the commencement of the
Accumulation Period.
"Reserve Account Surplus" shall mean, as of any Transfer Date
following the Reserve Account Funding Date, the amount, if any, by which the
amount on deposit in the Reserve Account exceeds the Required Reserve Account
Amount.
"Reserve Draw Amount" shall have the meaning specified in subsection
4.17(c) of the Agreement.
"Reversion Date" shall mean the first Determination Date following
any Daily Deposit Date on which (a) the Excess Spread Percentage (as defined in
the Spread Account Agreement) for the Monthly Period preceding such
Determination Date is equal to or exceeds 2.50% per annum and (b) the amount on
deposit in the Spread Account (as
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defined in the Spread Account Agreement) equals or exceeds the Required Spread
Account Amount (as defined in the Spread Account Agreement) for such
Determination Date.
"Revolving Period" shall mean the period from and including the
Closing Date to, but not including, the earlier of (a) the day the Accumulation
Period commences and (b) the Pay Out Commencement Date.
"Scheduled Series 1997-5 Termination Date" shall mean the April 2007
Distribution Date.
"Series 1997-5" shall mean the Series of the First USA Credit Card
Master Trust represented by the Investor Certificates.
"Series 1997-5 Certificateholder" shall mean the holder of record of
any Series 1997-5 Certificate.
"Series 1997-5 Certificateholders' Interest" shall have the meaning
specified in Section 4.04 of the Agreement.
"Series 1997-5 Pay Out Event" shall have the meaning specified in
Section 8 of this Series Supplement.
"Series 1997-5 Termination Date" shall mean the earlier to occur of
(i) the day after the Distribution Date on which the Investor Certificates are
paid in full, or (ii) the Scheduled Series 1997-5 Termination Date.
"Series Servicing Fee Percentage" shall mean 1.50% for so long as
First USA Bank is the Servicer or 2.00% if First USA Bank is no longer the
Servicer.
"Spread Account Agreement" shall mean the agreement among the
Transferor, the Servicer, the Trustee and The Bank of New York, as initial
collateral agent, dated the Closing Date, as amended, supplemented or modified
from time to time.
"Subordinate Principal Collections" shall have the meaning set forth
in subsection 4.05(b)(ii) of the Agreement.
"Targeted Holder" shall mean each holder of a right to receive
interest or principal with respect to the CIA Certificates (or other interests
in the Trust),
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other than certificates (or other such interests) with respect to which an
opinion is rendered that such certificates (or other such interests) will be
treated as debt for federal income tax purposes, and any holder of a right to
receive any amount in respect of the Transferor Interest; provided, that any
Person holding more than one interest each of which would cause such Person to
be a Targeted Holder shall be treated as a single Targeted Holder.
"Transfer" shall have the meaning specified in subsection 11(a) of
this Series Supplement.
"Unpaid Investor Monthly Servicing Fee" shall mean with respect to any
Transfer Date, the amount of the Investor Monthly Servicing Fee with respect to
such Transfer Date not distributed to the Servicer pursuant to subsection
4.09(a)(ii), subsection 4.09(b)(ii), subsection 4.09(c)(i), or subsection
4.13(a) of the Agreement and any overdue Investor Monthly Servicing Fee from
prior Transfer Dates.
SECTION 3. Reassignment and Transfer Terms. The Series 1997-5
Certificates shall be subject to retransfer to the Transferor at its option, in
accordance with the terms specified in subsection 12.02(a) of the Agreement, on
any Distribution Date on or after the Distribution Date on which the Invested
Amount is reduced to an amount less than or equal to 5% of the Initial Invested
Amount. The deposit required in connection with any such repurchase shall be
equal to the Invested Amount plus accrued and unpaid interest on the Series
1997-5 Certificates through the Record Date preceding the Distribution Date on
which the repurchase occurs.
SECTION 4. Delivery and Payment for the Series 1997-5 Certificates.
The Transferor shall execute and deliver the Series 1997-5 Certificates to the
Trustee for authentication in accordance with Section 6.01 of the Agreement.
The Trustee shall deliver the Series 1997-5 Certificates when authenticated in
accordance with Section 6.02 of the Agreement.
SECTION 5. Depositary; Form of Delivery of Series 1997-5
Certificates. (a) The Class A Certificates and the Class B Certificates shall
be delivered as Book-Entry Certificates as provided in Sections 6.01 and 6.10 of
the Agreement. The CIA Certificates shall be deliv-
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ered as Registered Certificates as provided in Section 6.01 of the Agreement.
(b) The Depositary for Series 1997-5 shall be The Depository Trust
Company, and the Class A Certificates and the Class B Certificates shall be
initially registered in the name of Cede & Co., its nominee. The Class A
Certificates and the Class B Certificates will initially be held by the Trustee
as custodian for The Depository Trust Company.
SECTION 6. Article IV of Agreement. (A) Sections 4.01, 4.02 and
4.03 of the Agreement shall be read in their entirety as provided in the
Agreement except for subsections 4.02(b) and (c) of the Agreement which shall,
for purposes of this Series Supplement, read in their entirety as follows:
"(b) The Finance Charge and Principal Accounts. The Trustee, for the
benefit of the Series 1997-5 Certificateholders, shall establish and
maintain in the name of the Trust with a Qualified Institution (other than
the Transferor), which shall initially be the Paying Agent, two segregated
trust accounts (the "Finance Charge Account" and the "Principal Account,"
respectively), bearing a designation clearly indicating that the funds
therein are held for the benefit of the Series 1997-5 Certificateholders.
The Trustee shall possess all right, title and interest in all funds on
deposit from time to time in the Finance Charge Account and the Principal
Account and in all proceeds thereof. The Finance Charge Account and the
Principal Account shall be under the sole dominion and control of the
Trustee for the benefit of the Series 1997-5 Certificateholders. Pursuant
to authority granted to it hereunder, the Servicer shall have the revocable
power to instruct the Trustee to withdraw funds from the Finance Charge
Account and the Principal Account for the purpose of carrying out the
Servicer's or the Trustee's duties hereunder. The Trustee at all times
shall maintain copies of all written reports and instructions that it
receives reflecting each transaction in the Principal Account and the
Finance Charge Account and that funds held therein shall at all
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times be held in trust for the benefit of the Series 1997-5
Certificateholders.
(c) The Distribution Account. The Trustee, for the benefit of the Series
1997-5 Certificateholders, shall cause to be established and maintained in
the name of the Trust, with an office or branch of a Qualified Institution
(other than the Transferor), which shall initially be the Paying Agent, a
non-interest bearing segregated account (the "Distribution Account")
bearing a designation clearly indicating that the funds deposited therein
are held in trust for the benefit of the Series 1997-5 Certificateholders.
The Trustee shall possess all right, title and interest in all funds on
deposit from time to time in the Distribution Account and in all proceeds
thereof. The Distribution Account shall be under the sole dominion and
control of the Trustee for the benefit of the Series 1997-5
Certificateholders."
(B) Article IV of the Agreement (except for Sections 4.01, 4.02 and 4.03
thereof) shall read in its entirety as follows and shall be applicable only to
the Series 1997-5 Certificates:
ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND
ALLOCATION AND APPLICATION OF COLLECTIONS
Section 4.04 Rights of Certificateholders. The Investor Certificates
shall represent undivided interests in the Trust, consisting of the right to
receive, to the extent necessary to make the required payments with respect to
such Investor Certificates at the times and in the amounts specified in this
Agreement, (a) the Floating Allocation Percentage and Fixed/Floating Allocation
Percentage (as applicable from time to time) of Collections received with
respect to the Receivables and (b) funds on deposit in the Collection Account,
the Finance Charge Account, the Principal Account, the Principal Funding
Account, the Reserve Account and the Distribution Account (for such Series, the
"Series 1997-5 Certificateholders' Interest"). The CIA Certificates shall be
subordinate to the Class A Certificates and the Class B Certificates. The Class
B Certificates shall be
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subordinate to the Class A Certificates. The Exchangeable Transferor
Certificate shall not represent any interest in the Collection Account, the
Finance Charge Account, the Principal Account, the Principal Funding Account,
the Reserve Account or the Distribution Account, except as specifically provided
in this Article IV.
Section 4.05 Collections and Allocation.
(a) Collections. The Servicer will apply or will instruct the
Trustee to apply all funds on deposit in the Collection Account, the Finance
Charge Account, the Principal Account, the Principal Funding Account, the
Reserve Account or the Distribution Account allocable to the Series 1997-5
Certificates as described in this Article IV.
(b) Daily Allocations During the Revolving Period. During the
Revolving Period, the Servicer shall, prior to the close of business on each
Date of Processing, allocate the following amounts as set forth below:
(i) Allocate to the Series 1997-5 Certificateholders the
Floating Allocation Percentage of Collections of Finance Charge Receivables
and deposit and retain in the Finance Charge Account (A) prior to the
Calculation Date in each Monthly Period an amount equal to the product of
(x) the Floating Allocation Percentage and (y) the aggregate amount of
Collections of Finance Charge Receivables on such Date of Processing, or
(B) on and after each such Calculation Date to and including the last day
of such Monthly Period, the lesser of (x) the product of (1) the Floating
Allocation Percentage and (2) the aggregate amount of Collections of
Finance Charge Receivables on such Date of Processing and (y) the excess of
(1) the sum of the Monthly Interest, the Interest Shortfall and the
Default Interest for the Distribution Date following the then current
Monthly Period (plus, if the Transferor is not the Servicer, the Investor
Monthly Servicing Fee) over (2) the amounts previously deposited in the
Finance Charge Account with respect to the current Monthly Period pursuant
to this subsection 4.05(b)(i) of the Agreement. On each Date of Processing
on and after each Calculation Date, Collections of Finance Charge
Receivables allocated to the Series 1997-5 Certificates in excess of the
amount required to be depos-
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ited and retained in the Finance Charge Account as provided above shall be
held by the Servicer and applied in accordance with subsection 4.05(f) of
the Agreement. In addition, on the Closing Date, the Transferor shall make
a deposit to the Finance Charge Account in an amount equal to $1,840,000 to
be applied as Collections of Finance Charge Receivables allocated to the
Series 1997-5 Certificates. Notwithstanding the foregoing, on each Date of
Processing from and including each Daily Deposit Date to but excluding the
immediately succeeding Reversion Date, the Servicer shall be required to
allocate to the Series 1997-5 Certificateholders the Floating Allocation
Percentage of Collections of Finance Charge Receivables and deposit and
retain in the Finance Charge Account an amount equal to the product of (i)
the Floating Allocation Percentage and (ii) the aggregate amount of
Collections of Finance Charge Receivables on such Date of Processing.
(ii) Allocate to the Series 1997-5 Certificateholders an amount
equal to the product of (A) the Floating Allocation Percentage on such Date
of Processing and (B) the aggregate amount of Collections of Principal
Receivables on such Date of Processing and pay such amount to the
Transferor subject to the obligation of the Transferor to make an amount
equal to the Reallocated Principal Collections and Excess Principal
Collections for such Monthly Period available on the related Transfer Date
in accordance with subsection 4.05(f) of the Agreement; provided, however,
that the amount to be paid to the Transferor pursuant to this subsection
4.05(b)(ii) of the Agreement on any Date of Processing shall be paid only
if the Transferor Interest on such Date of Processing is greater than zero
(after giving effect to all Principal Receivables transferred to the Trust
on such Date of Processing and after giving effect to Collections of
Principal Receivables on such Date of Processing) and otherwise shall be
deposited in the Collection Account and applied in accordance with
subsection 4.03(f) of the Agreement; provided, further, however, that on
and after the Calculation Date if the amounts previously deposited in the
Finance Charge Account with respect to the current Monthly Period pursuant
to subsection 4.05(b)(i) of the Agreement are less than the sum of the
Monthly Interest, the Interest Short-
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fall and the Default Interest for the Distribution Date following the then
current Monthly Period (plus, if the Transferor is not the Servicer, the
Investor Monthly Servicing Fee) (the amount of such shortfall, the "Finance
Charge Deficit"), an amount not to exceed the product of (x) the sum of the
Class B Floating Allocation Percentage and the CIA Floating Allocation
Percentage and (y) the Collections of Principal Receivables on any such
Date of Processing ("Subordinate Principal Collections") with respect to
the then current Monthly Period will be deposited into the Principal
Account on a daily basis during such Monthly Period in an aggregate amount
not to exceed the Finance Charge Deficit; at such time as the Finance
Charge Deficit is equal to zero, such amounts may be released from the
Principal Account and paid to the holder of the Exchangeable Transferor
Certificate, subject to the preceding proviso.
(c) Daily Allocations During the Accumulation Period. During
the Accumulation Period, the Servicer shall, prior to the close of business on
each Date of Processing, allocate the following amounts as set forth below:
(i) Allocate to the Series 1997-5 Certificateholders and
deposit and retain in the Finance Charge Account an amount equal to the
product of (A) the Floating Allocation Percentage on such Date of
Processing and (B) the aggregate amount of Collections of Finance Charge
Receivables on such Date of Processing.
(ii) Allocate to the Series 1997-5 Certificateholders and
retain in the Principal Account an amount equal to the product of (x) the
Fixed/Floating Allocation Percentage on such Date of Processing and (y) the
aggregate amount of Collections of Principal Receivables on such Date of
Processing (for any such date, a "Percentage Allocation"); provided,
however, that if the sum of such Percentage Allocations with respect to the
same Monthly Period exceeds the Controlled Deposit Amount for the related
Distribution Date, then such excess shall be paid to the Holder of the
Exchangeable Transferor Certificate (subject to the obligation of the
Transferor to make an amount equal to the Reallocated Principal
Collections and Excess Principal
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Collections for such Monthly Period available on the related Transfer Date
in accordance with subsection 4.05(f)) of the Agreement if the Transferor
Interest on such Date of Processing is greater than zero (after giving
effect to all Principal Receivables transferred to the Trust on such day)
and otherwise shall be deposited in the Collection Account and applied in
accordance with subsection 4.03(f) of the Agreement; provided, further,
that on and after the Calculation Date if there is a Finance Charge
Deficit, Subordinate Principal Collections with respect to each Monthly
Period will be deposited into the Principal Account on a daily basis during
such Monthly Period in an aggregate amount not to exceed the Finance Charge
Deficit; at such time as the Finance Charge Deficit is equal to zero, such
amounts may be released from the Principal Account to the holder of the
Exchangeable Transferor Certificate, subject to the preceding proviso.
(d) Daily Allocations During the Rapid Amortization Period.
During the Rapid Amortization Period, the Servicer shall, prior to the close of
business on each Date of Processing, allocate the following amounts as set forth
below:
(i) Allocate to the Series 1997-5 Certificateholders and deposit
and retain in the Finance Charge Account an amount equal to the product of
(A) the Floating Allocation Percentage on such Date of Processing and (B)
the aggregate amount of Collections of Finance Charge Receivables on such
Date of Processing.
(ii) Allocate to the Series 1997-5 Certificateholders and
deposit and retain in the Principal Account an amount equal to the product
of (A) the Fixed/Floating Allocation Percentage on such Date of Processing
and (B) the aggregate amount of Collections of Principal Receivables on
such Date of Processing; provided, however, that after the date on which an
amount of such Collections equal to the Invested Amount has been deposited
into the Collection Account and allocated to the Series 1997-5
Certificateholders, the amount determined in accordance with this
subparagraph (ii) shall be paid to the Holder of the Exchangeable
Transferor Certificate only if the Transferor Interest on such Date of
Processing is greater than zero (after giving effect
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to all Principal Receivables transferred to the Trust on such day) and
otherwise shall be deposited in the Collection Account and applied in
accordance with subsection 4.03(f) of the Agreement.
(e) Daily Deposits. Notwithstanding the foregoing, the Servicer
need not make daily deposits of Collections into the Collection Account at any
time when the requirements of the third paragraph of subsection 4.03(a) of the
Agreement are satisfied.
(f) Monthly Allocations During the Revolving Period and
Accumulation Period. To the extent not previously allocated pursuant to
subsection 4.05(b), during the Revolving Period, the Servicer shall, on each
Transfer Date, allocate to the Series 1997-5 Certificateholders and deposit in
the Finance Charge Account an amount equal to (i) the lesser of (A) the product
of (x) the Floating Allocation Percentage with respect to the preceding Monthly
Period and (y) the aggregate amount of Collections of Finance Charge Receivables
for the related Monthly Period, and (B) the aggregate of the amounts to be
applied from amounts on deposit in the Finance Charge Account on such Transfer
Date pursuant to subsections 4.09(a)(i), (ii) and (iii), 4.09(b)(i) and (ii),
4.09(c)(i) and 4.13(a) through (j) of the Agreement and, to the extent
necessary, any amounts to be applied in accordance with the Spread Account
Agreement (other than payments to First USA Bank or the Transferor), minus (ii)
the amounts deposited and retained in the Finance Charge Account daily during
such Monthly Period pursuant to subsection 4.05(b)(i) of the Agreement. Any such
amounts, to the extent they would be paid to First USA Bank, as Transferor or
Servicer, need not be so deposited but shall be deemed to have been so deposited
and, as and when specified in the subsections identified above, be deemed to
have been paid to First USA Bank pursuant to such subsections. During the
Revolving Period and the Accumulation Period, the Transferor shall, on each
Transfer Date deposit in the Principal Account an amount equal to the sum of (I)
the excess of the amount of Reallocated Principal Collections over the amount
deposited and retained in the Principal Account pursuant to subsection
4.05(b)(ii) or 4.05(c)(ii) of the Agreement with respect to the Revolving Period
or the Accumulation Period, respectively, and (II) an amount equal to the amount
of Excess Principal Collections to be applied for the benefit of other Series
from amounts that were originally allocated to Series 1997-5, not to exceed (x)
during the
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Revolving Period, the Floating Allocation Percentage of Collections of Principal
Receivables for the related Monthly Period or (y) during the Accumulation
Period, the Fixed/Floating Allocation Percentage of Collections of Principal
Receivables for the related Monthly Period less the amount thereof applied to
pay Monthly Principal on the related Distribution Date.
(g) Notwithstanding anything in this Section 4.05, if on any
date the aggregate amount of Principal Receivables is less than the sum of the
Invested Amounts for all Series then outstanding, all Collections of Principal
Receivables on such date shall be deposited and applied in accordance with
subsection 4.03(f) of the Agreement.
The allocations to be made pursuant to this Section 4.05 of the
Agreement also apply to deposits into the Collection Account that are treated as
Collections, including Credit Adjustments, payment of the reassignment price
pursuant to Section 2.07 of the Agreement and proceeds from the sale,
disposition or liquidation of the Receivables pursuant to Section 9.02, 10.01,
12.01 or 12.02 of the Agreement and Section 3 of the Series Supplement for
Series 1997-5. Such deposits to be treated as Collections will be allocated as
Finance Charge Receivables or Principal Receivables as indicated in the
Agreement.
Section 4.06 Determination of Monthly Interest for the Series 1997-5
Certificates. (a) The amount of monthly interest (for the Series 1997-5
Certificates, the "Class A Monthly Interest") distributable from the
Distribution Account with respect to the Class A Certificates on any
Distribution Date shall be an amount equal to the product of (i) the product of
(x) the Class A Certificate Rate and (y) a fraction the numerator of which is
the actual number of days in the related Interest Period and the denominator of
which is 360 and (ii) the Class A Outstanding Principal Balance as of the close
of business on the last day of the preceding Monthly Period; provided, however,
that with respect to the first Distribution Date, Class A Monthly Interest shall
be equal to the sum of (x) an amount equal to the product of (i) the product of
(a) the Class A Certificate Rate for the period from and including the Closing
Date to and including August 16, 1997 and (b) a fraction the numerator of which
is 10 and the denominator of which is 360 and (ii) the Class A Initial Invested
Amount and (y) an
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amount equal to the product of (i) the product of (a) the Class A Certificate
Rate for the period from and including August 17, 1997 to and including
September 16, 1997 and (b) a fraction the numerator of which is 31 and the
denominator of which is 360 and (ii) the Class A Initial Invested Amount.
On the Determination Date preceding each Distribution Date, the
Servicer shall determine an amount (the "Class A Interest Shortfall") equal to
the excess, if any, of (x) the aggregate Class A Monthly Interest for the
Interest Period applicable to the preceding Distribution Date over (y) the
amount which was paid to the Class A Certificateholders in respect of interest
on such preceding Distribution Date. If there is a Class A Interest Shortfall
with respect to any Distribution Date, an additional amount ("Class A Default
Interest") shall be payable as provided herein with respect to the Class A
Certificates on each Distribution Date following such Distribution Date to and
including the Distribution Date on which such Class A Interest Shortfall is paid
to Class A Certificateholders equal to the product of (i) the product of (x) the
Class A Certificate Rate plus 2.00% per annum and (y) a fraction the numerator
of which is the actual number of days in the related Interest Period and the
denominator of which is 360 and (ii) such Class A Interest Shortfall.
Notwithstanding anything to the contrary herein, Class A Default Interest shall
be payable or distributed to Class A Certificateholders only to the extent
permitted by applicable law.
(b) The amount of monthly interest (for the Series 1997-5
Certificates, the "Class B Monthly Interest") distributable from the
Distribution Account with respect to the Class B Certificates on any
Distribution Date shall be an amount equal to the product of (i) the product of
(x) the Class B Certificate Rate and (y) a fraction the numerator of which is
the actual number of days in the related Interest Period and the denominator of
which is 360 and (ii) the Class B Invested Amount as of the close of business on
the last day of the preceding Monthly Period; provided, however, that with
respect to the first Distribution Date, Class B Monthly Interest shall be equal
to the sum of (x) an amount equal to the product of (i) the product of (a) the
Class B Certificate Rate for the period from and including the Closing Date to
and including August 16, 1997 and (b) a fraction the numerator of which is 10
and the denominator of which is 360 and (ii) the Class B Initial Invested
Amount, and (y)
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an amount equal to the product of (i) the product of (a) the Class B Certificate
Rate for the period from and including August 17, 1997 to and including
September 16, 1997 and (b) a fraction the numerator of which is 31 and the
denominator of which is 360 and (ii) the Class B Initial Invested Amount.
On the Determination Date preceding each Distribution Date, the
Servicer shall determine an amount (the "Class B Interest Shortfall") equal to
the excess, if any, of (x) the aggregate Class B Monthly Interest for the
Interest Period applicable to the preceding Distribution Date over (y) the
amount which was paid to the Class B Certificateholders in respect of interest
on such preceding Distribution Date. If there is a Class B Interest Shortfall
with respect to any Distribution Date, an additional amount ("Class B Default
Interest") shall be payable as provided herein with respect to the Class B
Certificates on each Distribution Date following such Distribution Date to and
including the Distribution Date on which such Class B Interest Shortfall is paid
to Class B Certificateholders equal to the product of (i) the product of (x) the
Class B Certificate Rate plus 2.00% per annum and (y) a fraction the numerator
of which is the actual number of days in the related Interest Period and the
denominator of which is 360 and (ii) such Class B Interest Shortfall.
Notwithstanding anything to the contrary herein, Class B Default Interest shall
be payable or distributed to Class B Certificateholders only to the extent
permitted by applicable law.
(c) The amount of monthly interest (for the Series 1997-5
Certificates, the "CIA Monthly Interest") distributable from the Distribution
Account with respect to the CIA Invested Amount on any Distribution Date shall
be an amount equal to one-twelfth of the product of (i) the CIA Certificate Rate
and (ii) the CIA Invested Amount as of the close of business on the last day of
the preceding Monthly Period; provided, however, that with respect to the first
Distribution Date, CIA Monthly Interest shall be an amount equal to the product
of (i) the CIA Certificate Rate, (ii) a fraction the numerator of which is 40
and the denominator of which is 360 and (iii) the CIA Initial Invested Amount.
On the Determination Date preceding each Distribution Date, the
Servicer shall determine an amount (the "CIA Interest Shortfall") equal to the
excess, if any, of (x) the aggregate CIA Monthly Interest for the
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Interest Period applicable to the preceding Distribution Date over (y) the
amount which was paid to the CIA Certificateholders in respect of interest on
such preceding Distribution Date pursuant to the terms hereof and of the Spread
Account Agreement. If there is a CIA Interest Shortfall with respect to any
Distribution Date, an additional amount ("CIA Default Interest") shall be
payable as provided herein with respect to the CIA Certificates on each
Distribution Date following such Distribution Date to and including the
Distribution Date on which such CIA Interest Shortfall is paid to the CIA
Certificateholders equal to one-twelfth of (i) the product of the CIA
Certificate Rate plus 2.00% per annum and (ii) such CIA Interest Shortfall.
Notwithstanding anything to the contrary herein, CIA Default Interest shall be
payable or distributed to the CIA Certificateholders only to the extent
permitted by applicable law.
Section 4.07 Determination of Monthly Principal. (a) The amount of
monthly principal (the "Class A Monthly Principal") distributable from the
Principal Account with respect to the Class A Certificates on each Transfer Date
beginning with the Transfer Date in the month following the month in which the
Accumulation Period or, if earlier, the Rapid Amortization Period begins shall
be equal to the least of (i) the Available Investor Principal Collections on
deposit in the Principal Account with respect to such Transfer Date, (ii) for
each Transfer Date with respect to the Accumulation Period prior to the Class A
Scheduled Payment Date, the Controlled Deposit Amount for such Transfer Date and
(iii) the Class A Adjusted Invested Amount on such Transfer Date prior to any
deposit into the Principal Funding Account to be made on such day.
(b) The amount of monthly principal (the "Class B Monthly
Principal") distributable from the Principal Account with respect to the Class B
Certificates on each Transfer Date, beginning with the Transfer Date first
preceding the Class B Principal Commencement Date, shall be an amount equal to
the least of (i) the Available Investor Principal Collections on deposit in the
Principal Account with respect to such Transfer Date (minus the portion of such
Available Investor Principal Collections applied to Class A Monthly Principal on
such Transfer Date), (ii) for each Transfer Date with respect to the
Accumulation Period prior to the Class B Scheduled Payment Date, the Controlled
Deposit Amount for such Transfer Date (minus the Class A Monthly Principal for
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such Transfer Date) and (iii) the Class B Adjusted Invested Amount on such
Transfer Date (after taking into account any adjustments to be made on such
Transfer Date pursuant to Sections 4.12 and 4.14 of the Agreement on such
Transfer Date).
(c) The amount of monthly principal (the "CIA Monthly
Principal") distributable from the Principal Account with respect to the CIA
Certificates on each Transfer Date, beginning with the Transfer Date first
preceding the CIA Principal Commencement Date, shall be an amount equal to the
least of (i) the Available Investor Principal Collections on deposit in the
Principal Account with respect to such Transfer Date (minus the portion of such
Available Investor Principal Collections applied to Class A Monthly Principal
and Class B Monthly Principal on such Transfer Date), (ii) for each Transfer
Date with respect to the Accumulation Period prior to the CIA Scheduled Payment
Date, the Controlled Deposit Amount for such Transfer Date (minus the Class A
Monthly Principal and the Class B Monthly Principal for such Transfer Date) and
(iii) the CIA Adjusted Invested Amount on such Transfer Date (after taking into
account any adjustments to be made on such Transfer Date pursuant to Sections
4.12 and 4.14 of the Agreement on such Transfer Date).
Section 4.08 Coverage of Required Amount for the Investor
Certificates. On each Determination Date, the Servicer shall determine the
amount (the "Class A Required Amount"), if any, by which the sum of (i) Class A
Monthly Interest for the following Distribution Date, (ii) any Class A Monthly
Interest previously due but not paid to the Class A Certificateholders on a
prior Distribution Date, (iii) Class A Default Interest, if any, for such
Distribution Date and any Class A Default Interest previously due but not paid
to the Class A Certificateholders on a prior Distribution Date, (iv) if First
USA Bank is no longer the Servicer, the Class A Monthly Servicing Fee for the
related Distribution Date and (v) the Class A Investor Default Amount, if any,
for such Distribution Date exceeds the Class A Available Funds for the related
Monthly Period.
On each Determination Date, the Servicer shall determine the amount
(the "Class B Required Amount"), if any, equal to the sum of (x) the amount, if
any, by which the sum of (i) Class B Monthly Interest for the following
Distribution Date, (ii) any Class B Monthly Interest previously due but not paid
to the Class B Certificate-
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holders on a prior Distribution Date, (iii) Class B Default Interest, if any,
for such Distribution Date and any Class B Default Interest previously due but
not paid to the Class B Certificateholders on a prior Distribution Date and (iv)
if First USA Bank is no longer the Servicer, the Class B Monthly Servicing Fee
for the related Distribution Date exceeds the Class B Investor Percentage of
Collections in respect of Finance Charge Receivables deposited in the Finance
Charge Account for the related Monthly Period and (y) the amount, if any, by
which the Class B Investor Default Amount, if any, for such Distribution Date
exceeds the amount of Excess Finance Charge Collections available to make
payments with respect thereto pursuant to subsection 4.13(d) of the Agreement.
In the event that the sum of the Class A Required Amount and the Class
B Required Amount for such Distribution Date is greater than zero, the Servicer
shall give written notice to the Trustee of such positive Class A Required
Amount or Class B Required Amount on the Determination Date. In the event that
the Class A Required Amount for such Distribution Date is greater than zero all
or a portion of the Excess Finance Charge Collections with respect to the
related Transfer Date in an amount equal to the Class A Required Amount for such
Distribution Date shall be distributed from the Finance Charge Account on such
Distribution Date pursuant to subsection 4.13(a) of the Agreement. In the event
that the Class A Required Amount for such Transfer Date exceeds the amount of
Excess Finance Charge Collections with respect to such Transfer Date, the
Collections of Principal Receivables allocable to the CIA Certificates and the
Collections of Principal Receivables allocable to the Class B Certificates with
respect to the prior Monthly Period shall be applied as specified in Section
4.14 of the Agreement. In the event that after the application of Excess Finance
Charge Collections there is a Class B Required Amount for such Transfer Date,
the Collections of Principal Receivables allocable to the CIA Certificates
(after application to the Class A Required Amount) shall be applied as specified
in Section 4.14 of the Agreement; provided, however, that the sum of any
payments pursuant to this paragraph shall not exceed the sum of the Class A
Required Amount and the Class B Required Amount.
Section 4.09 Monthly Payments. On each Transfer Date, the Trustee,
acting in accordance with written
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instructions from the Servicer substantially in the form of Exhibit E hereto,
shall make the withdrawals, deposits and payments specified in subsections (a)
through (h) of this Section 4.09.
(a) On the Transfer Date preceding each Distribution Date, an
amount equal to the Class A Available Funds deposited or deemed to have been
deposited into the Finance Charge Account for the related Monthly Period will be
distributed in the following priority:
(i) an amount equal to Class A Monthly Interest for such
Distribution Date, plus the amount of any Class A Monthly Interest
previously due but not paid to Class A Certificateholders on a prior
Distribution Date, plus the amount of any Class A Default Interest for such
Distribution Date, shall be deposited by the Servicer or the Trustee into
the Distribution Account;
(ii) if First USA Bank is no longer the Servicer, an amount equal
to the Class A Monthly Servicing Fee for such Distribution Date shall be
distributed to the Servicer;
(iii) an amount equal to the aggregate Class A Investor Default
Amount, if any, for such Distribution Date shall be (A) distributed to the
Holder of the Exchangeable Transferor Certificate on Distribution Dates
with respect to the Revolving Period, but not exceeding the Transferor
Interest (determined as of such Distribution Date after giving effect to
any Principal Receivables transferred to the Trust during the Monthly
Period relating to such Distribution Date, any such amount in excess of the
Transferor Interest to be treated as Unallocated Principal Collections) and
(B) deposited in the Principal Account and treated as a portion of
Available Investor Principal Collections for Distribution Dates with
respect to the Amortization Period; and
(iv) the balance, if any, shall constitute Excess Finance Charge
Collections and shall be allocated and distributed as set forth in Section
4.13 of the Agreement.
(b) On the Transfer Date preceding each Distribution Date, an
amount equal to the Class B Available Funds deposited or deemed to have been
deposited in
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the Finance Charge Account for the related Monthly Period will be distributed in
the following priority:
(i) an amount equal to the Class B Monthly Interest for such
Distribution Date, plus the amount of any Class B Monthly Interest
previously due but not paid to the Class B Certificateholders on a prior
Distribution Date, plus the amount of any Class B Default Interest for such
Distribution Date, shall be deposited by the Servicer or the Trustee into
the Distribution Account;
(ii) if First USA Bank is no longer the Servicer, an amount
equal to the Class B Monthly Servicing Fee for such Distribution Date shall
be distributed to the Servicer; and
(iii) the balance, if any, shall constitute Excess Finance
Charge Collections and shall be allocated and distributed as set forth in
Section 4.13 of the Agreement.
(c) On the Transfer Date preceding each Distribution Date, an
amount equal to the CIA Available Funds deposited or deemed to have been
deposited in the Finance Charge Account for the related Monthly Period will be
distributed in the following priority:
(i) if First USA Bank is no longer the Servicer, an amount
equal to the CIA Monthly Servicing Fee for such Distribution Date shall be
distributed to the Servicer; and
(ii) the balance, if any, shall constitute Excess Finance
Charge Collections and shall be allocated and distributed as set forth in
Section 4.13 of the Agreement.
(d) on each Transfer Date during the Revolving Period, the
Trustee shall distribute an amount equal to the Available Investor Principal
Collections deposited or deemed to have been deposited into the Principal
Account for the related Monthly Period in the following priority:
(i) an amount equal to the lesser of (A) the product of (1) a
fraction, the numerator of which is equal to the Available Investor
Principal
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Collections and the denominator of which is equal to the sum of the
Principal Collections available for sharing as specified in the related
Series Supplement for each Series and (2) the Principal Shortfall
applicable to such other Series and (B) remaining Available Investor
Principal Collections, shall be treated as Excess Principal Collections and
be deposited in the applicable principal accounts for such other Series
with Principal Shortfalls; and
(ii) an amount equal to the excess, if any, of (A) the Available
Investor Principal Collections for such Transfer Date over (B) the
applications specified in subsection 4.09(d)(i) above shall be paid to the
Holder of the Exchangeable Transferor Certificate; provided, however, that
the amount to be paid to the Holder of the Exchangeable Transferor
Certificate pursuant to this subsection 4.09(d)(ii) with respect to such
Transfer Date shall be paid to the Holder of the Exchangeable Transferor
Certificate only if the Transferor Interest on the related Date of
Processing is greater than zero (after giving effect to the inclusion in
the Trust of all Receivables created on or prior to such Transfer Date and
after giving effect to Collections of Principal Receivables on such
Transfer Date) and otherwise shall be considered as Unallocated Principal
Collections and deposited into the Principal Account in accordance with
subsection 4.03(f).
(e) On each Transfer Date, during the Accumulation Period or the
Rapid Amortization Period, the Trustee shall distribute an amount equal to the
Available Investor Principal Collections deposited or deemed to have been
deposited into the Principal Account for the related Monthly Period in the
following priority:
(i) an amount equal to the Class A Monthly Principal for such
Transfer Date plus, to the extent of any applicable Principal Shortfall for
the related Distribution Date, Excess Principal Collections from other
Series, to the extent available, shall be (A) during the Accumulation
Period, deposited into the Principal Funding Account, and (B) during the
Rapid Amortization Period, deposited into the Distribution Account;
(ii) after giving effect to the distribution referred to in
clause (i) above, an amount
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equal to the Class B Monthly Principal plus, to the extent of any
applicable Principal Shortfall for the related Distribution Date, Excess
Principal Collections from other Series, to the extent available, shall be
(A) during the Accumulation Period, deposited into the Principal Funding
Account, and (B) during the Rapid Amortization Period, deposited into the
Distribution Account;
(iii) after giving effect to the distributions referred to in
clauses (i) and (ii) above, an amount equal to the CIA Monthly Principal
plus, to the extent of any applicable Principal Shortfall for the related
Distribution Date, Excess Principal Collections from other Series, to the
extent available, shall be (A) during the Accumulation Period, deposited
into the Principal Funding Account, and (B) during the Rapid Amortization
Period, deposited into the Distribution Account;
(iv) an amount equal to the lesser of (A) the product of (1) a
fraction, the numerator of which is equal to the Available Investor
Principal Collections remaining after the application specified in
subsections 4.09(e)(i), (ii) and (iii) above and the denominator of which
is equal to the sum of the Available Investor Principal Collections
available for sharing as specified in the related Series Supplement for
each other Series and (2) the Principal Shortfalls for all Series and (B)
the Available Investor Principal Collections, shall remain in the Principal
Account to be treated as Excess Principal Collections and applied to Series
other than this Series 1997-5; and
(v) an amount equal to the excess, if any, of (A) the Available
Investor Principal Collections over (B) the applications specified in
subsection 4.09(e)(i) through (iv) above shall be paid to the Holder of
the Exchangeable Transferor Certificate; provided, however, that the
amount to be paid to the Holder of the Exchangeable Transferor Certificate
pursuant to this subsection 4.09(e)(v) with respect to such Transfer Date
shall be paid to the Holder of the Exchangeable Transferor Certificate only
if the Transferor Interest on the related Date of Processing is greater
than zero (after giving effect to the inclusion in the Trust of all
Receivables created on or prior to such Transfer Date and
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the application of payments referred to in subsection 4.03(b) of the
Agreement) and otherwise shall be considered as Unallocated Principal
Collections and deposited into the Principal Account in accordance with
subsection 4.03(f) of the Agreement; provided, further, that in no event
shall the amount payable to the Holder of the Exchangeable Transferor
Certificate pursuant to this subsection 4.09(e)(v) be greater than the
Transferor Interest on such Transfer Date.
(f) On the earlier to occur of the first Transfer Date with
respect to the Rapid Amortization Period or the Transfer Date immediately
preceding the Class A Scheduled Payment Date, the Trustee shall withdraw from
the Principal Funding Account and deposit in the Distribution Account the amount
on deposit in the Principal Funding Account.
(g) [Reserved]
(h) On the earlier to occur of the first Distribution Date with
respect to the Rapid Amortization Period or the Class A Scheduled Payment Date
and on each Distribution Date thereafter, the Trustee shall pay in accordance
with Section 5.01 of the Agreement from the Distribution Account the amount so
deposited into the Distribution Account pursuant to subsection 4.09(f) of the
Agreement on the related Transfer Date in the following priority:
(i) an amount equal to the lesser of such amount on deposit in
the Distribution Account and the Class A Invested Amount shall be paid to
the Class A Certificateholders;
(ii) on the Class B Principal Commencement Date and on each
Distribution Date thereafter, after giving effect to the distributions
referred to in clause (i) above, an amount equal to the lesser of such
amount on deposit in the Distribution Account and the Class B Invested
Amount shall be paid to the Class B Certificateholders; and
(iii) on the CIA Principal Commencement Date and on each
Distribution Date thereafter, after giving effect to the distributions
referred to in clauses (i) and (ii) above, an amount equal to the lesser of
such amount on deposit in the Distribution
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Account and the CIA Invested Amount shall be paid to the CIA
Certificateholders.
(i) The Accumulation Period is scheduled to commence at the
close of business on July 31, 2003; provided, however, that, if the Accumulation
Period Length (determined as described below) is less than 12 months, the date
on which the Accumulation Period actually commences may, at the option of the
Servicer, upon written notice to the Trustee, be delayed to the first Business
Day of the month that is the number of months prior to the Class A Scheduled
Payment Date at least equal to the Accumulation Period Length and, as a result,
the number of Monthly Periods in the Accumulation Period will at least equal the
Accumulation Period Length. On each Determination Date until the Accumulation
Period begins, the Servicer will determine the "Accumulation Period Length"
which will equal the number of months such that the sum of the Accumulation
Period Factors for each month during such period will be equal to or greater
than the Required Accumulation Factor Number; provided, however, that the
Accumulation Period Length will not be less than one month.
Section 4.10 Payment of Certificate Interest. On each Distribution
Date, the Paying Agent shall pay in accordance with Section 5.01 of the
Agreement to the Class A Certificateholders from the Distribution Account the
amount deposited into the Distribution Account pursuant to subsections
4.09(a)(i), 4.13(a), 4.14(a)(i)(x) and 4.14(b)(i) of the Agreement on the
related Transfer Date or such Distribution Date, as applicable, to the Class B
Certificateholders from the Distribution Account the amount deposited into the
Distribution Account pursuant to subsections 4.09(b)(i), 4.13(c) and
4.14(a)(i)(y) of the Agreement on the related Transfer Date and to the CIA
Certificateholders from the Distribution Account the amount deposited into the
Distribution Account pursuant to subsection 4.13(f) of the Agreement on the
related Transfer Date.
Section 4.11 [Reserved]
Section 4.12 Investor Charge-Offs.
--------------------
(a) On each Distribution Date, the Servicer shall calculate the Class
A Investor Default Amount. If on any Distribution Date, the Class A Investor
Default Amount for such Distribution Date exceeds the
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sum of the amount allocated with respect thereto pursuant to subsection
4.09(a)(iii), subsection 4.13(a) and Section 4.14 of the Agreement with respect
to the Monthly Period immediately preceding such Distribution Date, the CIA
Invested Amount will be reduced by the amount of such excess, but not more than
the lesser of the Class A Investor Default Amount and the CIA Invested Amount
for such Distribution Date. In the event that, but for the limitation on the
amount of such reduction in the preceding sentence, such reduction would cause
the CIA Invested Amount to be a negative number, the CIA Invested Amount will be
reduced to zero, and the Class B Invested Amount will be reduced by the amount
by which the CIA Invested Amount would have been reduced below zero. In the
event that such reduction would cause the Class B Invested Amount to be a
negative number, the Class B Invested Amount will be reduced to zero, and the
Class A Invested Amount will be reduced by the amount by which the Class B
Invested Amount would have been reduced below zero, but not more than the Class
A Investor Default Amount for such Distribution Date (a "Class A Investor
Charge-Off"). If the Class A Invested Amount has been reduced by the amount of
any Class A Investor Charge-Offs, it will be reimbursed on any Distribution Date
(but not by an amount in excess of the aggregate Class A Investor Charge-Offs)
by the amount of Excess Finance Charge Collections allocated and available for
such purpose pursuant to subsection 4.13(b) of the Agreement.
(b) On each Distribution Date, the Servicer shall calculate the
Class B Investor Default Amount. If on any Distribution Date, the Class B
Investor Default Amount for such Distribution Date exceeds the amount of Excess
Finance Charge Collections and Reallocated Principal Collections which are
allocated and available to fund such amount pursuant to subsection 4.13(d) and
Section 4.14 of the Agreement, the CIA Invested Amount (after giving effect to
any adjustments with respect thereto as described in the preceding paragraph)
will be reduced by the amount of such excess but not more than the lesser of the
Class B Investor Default Amount and the CIA Invested Amount for such
Distribution Date. In the event that, but for the limitation on the amount of
such reduction in the preceding sentence, such reduction would cause the CIA
Invested Amount to be a negative number, the CIA Invested Amount shall be
reduced to zero and the Class B Invested Amount shall be reduced by the amount
by which the CIA Invested Amount would have been reduced below zero, but not
more than the Class B
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Investor Default Amount for such Distribution Date (a "Class B Investor
Charge-Off"). The Class B Invested Amount will also be reduced by the amount of
Reallocated Class B Principal Collections in excess of the CIA Invested Amount
pursuant to Section 4.14 of the Agreement and the amount of any portion of the
Class B Invested Amount allocated to the Class A Certificates to avoid a
reduction in the Class A Invested Amount pursuant to subsection 4.12(a) of the
Agreement. The Class B Invested Amount will thereafter be reimbursed (but not in
the excess of the unpaid principal balance of the Class B Certificates) on any
Distribution Date by the amount of Excess Finance Charge Collections allocated
and available for that purpose as described under subsection 4.13(e) of the
Agreement.
(c) On each Distribution Date, the Servicer shall calculate the
CIA Investor Default Amount. If on any Distribution Date, the CIA Investor
Default Amount for such Distribution Date exceeds the sum of the amount of
Excess Finance Charge Collections which are allocated and available to fund such
amount pursuant to subsection 4.13(h) of the Agreement, the CIA Invested Amount
(after giving effect to any adjustments with respect thereto as described in the
preceding paragraphs) will be reduced by the amount of such excess but not more
than the lesser of the CIA Investor Default Amount and the CIA Invested Amount
for such Distribution Date (a "CIA Investor Charge-Off"). The CIA Invested
Amount will also be reduced by the amount of Reallocated Principal Collections
pursuant to Section 4.14 of the Agreement and the amount of any portion of the
CIA Invested Amount allocated to the Class A Certificates or the Class B
Certificates to avoid a reduction in the Class A Invested Amount, pursuant to
subsection 4.12(a) of the Agreement, or the Class B Invested Amount, pursuant to
subsection 4.12(b) of the Agreement, respectively. The CIA Invested Amount will
thereafter be reimbursed (but not in the excess of the unpaid principal balance
of the CIA Certificates) on any Distribution Date by the amount of Excess
Finance Charge Collections allocated and available for that purpose as described
under subsection 4.13(i) of the Agreement.
Section 4.13 Excess Finance Charge Collections for the Series 1997-5
Certificates. On each Transfer Date, the Servicer will apply or cause the
Trustee to apply Excess Finance Charge Collections with respect to
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the related Monthly Period, to make the following distributions in the
following priority:
(a) an amount equal to the Class A Required Amount, if any, with
respect to the related Monthly Period will be used to fund the Class A Required
Amount and be applied in accordance with subsection 4.09(a) of the Agreement;
(b) an amount equal to the aggregate amount of Class A Investor
Charge-Offs, which have not been previously reimbursed (after giving effect to
the allocation with respect to the related Distribution Date of certain other
amounts applied for that purpose) will be distributed to the Holder of the
Exchangeable Transferor Certificate on Transfer Dates with respect to the
Revolving Period, but not exceeding the Transferor Interest in Principal
Receivables on such day (after giving effect to any new Principal Receivables
transferred to the Trust on such day) and on Transfer Dates with respect to the
Amortization Period, will be deposited in the Principal Account and treated as a
portion of Available Investor Principal Collections for the related
Distribution Date;
(c) an amount equal to the amount of interest which has accrued
with respect to the Class B Outstanding Principal Balance at the applicable
Class B Certificate Rate but has not been deposited in the Distribution Account
for the benefit of the Class B Certificateholders either on such Transfer Date
or on a prior Transfer Date and any other amounts due and owing on the related
Distribution Date pursuant to subsection 4.09(b)(i) of the Agreement will be
deposited into the Distribution Account for payment to the Class B
Certificateholders;
(d) an amount equal to the aggregate Class B Investor Default
Amount, if any, for the related Distribution Date will be distributed to the
holder of the Exchangeable Transferor Certificate on Transfer Dates with respect
to the Revolving Period (but not exceeding the Transferor Interest in Principal
Receivables on such day (after giving effect to any new Principal Receivables
transferred to the Trust on such day)), and on Transfer Dates with respect to
the Amortization Period will be deposited in the Principal Account and treated
as a portion of Available Investor Principal Collections for the related
Distribution Date;
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(e) an amount equal to the aggregate amount by which the Class B
Invested Amount has been reduced below the initial Class B Invested Amount for
reasons other than the payment of principal to the Class B Certificateholders
(but not in excess of the aggregate amount of such reductions which have not
been previously reimbursed) will be distributed to the holder of the
Exchangeable Transferor Certificate on Transfer Dates with respect to the
Revolving Period, but not in an amount exceeding the Transferor Interest in
Principal Receivables on such day (after giving effect to any new Principal
Receivables transferred to the Trust on such day) and on Transfer Dates with
respect to the Amortization Period will be deposited in the Principal Account
and treated as a portion of Available Investor Principal Collections for the
related Distribution Date;
(f) an amount equal to the CIA Monthly Interest for the related
Distribution Date, plus the amount of any CIA Monthly Interest previously due
but not paid to the CIA Certificateholders on a prior Distribution Date, plus
the amount of any CIA Default Interest for the related Distribution Date, will
be deposited into the Distribution Account for payment to the CIA
Certificateholders;
(g) an amount equal to the Unpaid Investor Monthly Servicing Fee
will be paid to the Servicer;
(h) an amount equal to the aggregate CIA Investor Default Amount,
if any, for the related Distribution Date will be distributed to the holder of
the Exchangeable Transferor Certificate on Transfer Dates with respect to the
Revolving Period (but not exceeding the Transferor Interest in Principal
Receivables on such day (after giving effect to any new Principal Receivables
transferred to the Trust on such day)), and on Transfer Dates with respect to
the Amortization Period will be deposited in the Principal Account and treated
as a portion of Available Investor Principal Collections for the related
Distribution Date;
(i) an amount equal to the aggregate amount by which the CIA
Invested Amount has been reduced below the CIA Initial Invested Amount for
reasons other than the payment of principal to the CIA Certificateholders (but
not in excess of the aggregate amount of such reductions which have not been
previously reimbursed) will be distributed to the holder of the Ex-
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changeable Transferor Certificate on Transfer Dates with respect to the
Revolving Period, but not in an amount exceeding the Transferor Interest in
Principal Receivables on such day (after giving effect to any new Principal
Receivables transferred to the Trust on such day) and on Transfer Dates with
respect to the Amortization Period will be deposited in the Principal Account
and treated as a portion of Available Investor Principal Collections for the
related Distribution Date;
(j) on each Transfer Date from and after the Reserve Account
Funding Date, but prior to the date on which the Reserve Account terminates as
described in subsection 4.17(f) of the Agreement, an amount up to the excess, if
any, of the Required Reserve Account Amount over the Available Reserve Account
Amount shall be deposited into the Reserve Account; and
(k) the balance, if any, after giving effect to the payments made
pursuant to subparagraphs (a) through (j) above shall be applied in accordance
with the provisions of the Spread Account Agreement.
Section 4.14 Reallocated Principal Collections for the Series 1997-5
Certificates.
(a) On each Distribution Date, the Servicer will apply or cause
the Trustee to apply an amount, not to exceed the CIA Invested Amount, equal to
the product of (a)(i) during the Revolving Period, the CIA Floating Allocation
Percentage or (ii) during an Amortization Period, the CIA Fixed/Floating
Allocation Percentage and (b) the amount of Collections of Principal Receivables
with respect to the related Monthly Period in the following priority (such
collections applied in accordance with clause (i) below are called "Reallocated
CIA Principal Collections"):
(i) an amount equal to the sum of (x) the excess, if any, of the
Class A Required Amount with respect to such related Monthly Period over
the amount of Excess Finance Charge Collections with respect to such
related Monthly Period and (y) the Class B Required Amount with respect to
the related Monthly Period which amount shall be applied in priority first
pursuant to subsections 4.09(a)(i) through (iii) of the Agreement and then
pursuant to subsections 4.09(b)(i) and (ii) and 4.13(c) and (d) of the
Agreement; and
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(ii) any such collections not applied in the foregoing manner
(and therefore not constituting Reallocated CIA Principal Collections)
will, on Distribution Dates with respect to the Revolving Period, be
applied as Available Investor Principal Collections.
(b) On each Distribution Date, the Servicer will apply or cause
the Trustee to apply an amount, not to exceed the Class B Invested Amount, equal
to the product of (a)(i) during the Revolving Period, the Class B Floating
Allocation Percentage or (ii) during an Amortization Period, the Class B
Fixed/Floating Allocation Percentage and (b) the amount of Collections of
Principal Receivables with respect to the related Monthly Period in the
following priority (such collections applied in accordance with clause (i) below
are called "Reallocated Class B Principal Collections"):
(i) an amount equal to the excess, if any, of the Class A
Required Amount with respect to such related Monthly Period over the sum of
(x) the amount of Excess Finance Charge Collections with respect to such
related Monthly Period and (y) the amount of Reallocated CIA Principal
Collections applied with respect thereto for the related Monthly Period
shall be applied in priority pursuant to subsection 4.09(a)(i) through
(iii) of the Agreement; and
(ii) any such collections not applied in the foregoing manner
(and therefore not constituting Reallocated Class B Principal Collections)
will, on Distribution Dates with respect to the Revolving Period, be
applied as Available Investor Principal Collections.
On each Distribution Date the CIA Invested Amount shall be reduced by
the amount of Reallocated CIA Principal Collections and by the amount of
Reallocated Class B Principal Collections for such Distribution Date. In the
event that such reduction would cause the CIA Invested Amount to be a negative
number, the CIA Invested Amount shall be reduced to zero and the Class B
Invested Amount shall be reduced by the amount by which the CIA Invested Amount
would have been reduced below zero. In the event that the reallocation of
Principal Collections would cause the Class B Invested Amount to be a negative
number on any Distribution Date, Principal Collections
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shall be reallocated on such Distribution Date in an aggregate amount not to
exceed the amount which would cause the Class B Invested Amount to be reduced to
zero.
Section 4.15 Determination of LIBOR.
----------------------
(a) On each LIBOR Determination Date, the Trustee shall determine
LIBOR on the basis of the rate for deposits in United States dollars for a
period equal to the relevant Interest Period which appears on Telerate Page 3750
as of 11:00 a.m., London time, on such date. If such rate does not appear on
Telerate Page 3750, the rate for that LIBOR Determination Date shall be
determined on the basis of the rates at which deposits in United States dollars
are offered by the Reference Banks at approximately 11:00 a.m., London time, on
that day to prime banks in the London interbank market for a period equal to the
relevant Interest Period. The Trustee shall request the principal London office
of each of the Reference Banks to provide a quotation of its rate. If at least
two such quotations are provided, the rate for that LIBOR Determination Date
shall be the arithmetic mean of the quotations. If fewer than two quotations are
provided as requested, the rate for that LIBOR Determination Date will be the
arithmetic mean of the rates quoted by major banks in New York City, selected by
the Servicer, at approximately 11:00 a.m., New York City time, on that day for
loans in United States dollars to leading European banks for a period equal to
the relevant Interest Period.
(b) The Class A Certificate Rate and the Class B Certificate Rate
applicable to the then current and the immediately preceding Interest Periods
may be obtained by any Series 1997-5 Certificateholder by telephoning the
Paying Agent at its corporate trust office at (212) 815-5737.
(c) On each LIBOR Determination Date, the Trustee shall send to
the Servicer by facsimile notification of LIBOR for the following Interest
Period. The Trustee shall cause the Class A Certificate Rate and the Class B
Certificate Rate applicable to an Interest Period to be provided to the
Luxembourg Stock Exchange as soon as possible after its determination but in no
event later than the first day of such Interest Period. In addition, the Trustee
shall cause the Class A Monthly Interest and the Class B Monthly Interest
applicable to an Interest Period to be provided to the Luxembourg Stock
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Exchange within one Business Day of the date on which the Trustee receives
notification of the Class A Monthly Interest and the Class B Monthly Interest
from the Servicer.
Section 4.16 Principal Funding Account.
-------------------------
(a) The Servicer shall establish and maintain with a Qualified
Institution, which may be the Trustee, in the name of the Trustee, on behalf of
the Trust, for the benefit of the Investor Certificateholders, a segregated
trust account with the corporate trust department of such Qualified Institution
(the "Principal Funding Account"), bearing a designation clearly indicating that
the funds deposited therein are held for the benefit of the Investor
Certificateholders. The Trustee shall possess all right, title and interest in
all funds on deposit from time to time in the Principal Funding Account and in
all proceeds thereof. The Principal Funding Account shall be under the sole
dominion and control of the Trustee for the benefit of the Investor
Certificateholders. If any time the institution holding the Principal Funding
Account ceases to be a Qualified Institution the Transferor shall notify the
Trustee, and the Trustee upon being notified (or the Servicer on its behalf)
shall, within ten (10) Business Days, establish a new Principal Funding Account
meeting the conditions specified above with a Qualified Institution, and shall
transfer any cash or any investments to such new Principal Funding Account. The
Trustee, at the written direction of the Servicer, shall (i) make withdrawals
from the Principal Funding Account from time to time, in the amounts and for the
purposes set forth in this Supplement, and (ii) on each Transfer Date (from and
after the commencement of the Accumulation Period) prior to termination of the
Principal Funding Account make a deposit into the Principal Funding Account in
the amount specified in, and otherwise in accordance with, subsection 4.09(e) of
the Agreement.
(b) Funds on deposit in the Principal Funding Account shall be
invested at the written direction of the Servicer by the Trustee in Permitted
Investments. Funds on deposit in the Principal Funding Account on any Transfer
Date, after giving effect to any withdrawals from the Principal Funding Account
on such Transfer Date, shall be invested in such investments that will mature so
that such funds will be available for withdrawal on or prior to the following
Transfer Date. The
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Trustee shall maintain for the benefit of the Investor Certificateholders
possession of the negotiable instruments or securities, if any, evidencing such
Permitted Investments. No Permitted Investment shall be disposed of prior to
its maturity.
On the Transfer Date occurring in the month following the
commencement of the Accumulation Period and on each Transfer Date thereafter
with respect to the Accumulation Period, the Trustee, acting at the Servicer's
written direction given on such Transfer Date, shall (x) transfer from the
Principal Funding Account to the Finance Charge Account the Principal Funding
Investment Proceeds on deposit in the Principal Funding Account, but not in
excess of the Covered Amount, for application as Class A Available Funds, Class
B Available Funds and CIA Available Funds pursuant to subsections 4.09(a),
4.09(b) and 4.09(c), respectively, of the Agreement and (y) pay any excess
Principal Funding Investment Proceeds to the Transferor. An amount equal to any
Principal Funding Investment Shortfall will be deposited in the Finance Charge
Account on each Transfer Date from the Reserve Account to the extent funds are
available pursuant to subsections 4.17(d), 4.17(e) and 4.17(f) of the Agreement.
Principal Funding Investment Proceeds (including reinvested interest) shall not
be considered part of the amounts on deposit in the Principal Funding Account
for purposes of this Series Supplement.
Section 4.17 Reserve Account.
(a) The Servicer shall establish and maintain with a Qualified
Institution, which may be the Trustee, in the name of the Trustee, on behalf of
the Trust, for the benefit of the Investor Certificateholders, a segregated
trust account with the corporate trust department of such Qualified Institution
(the "Reserve Account"), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Investor Certificateholders.
The Trustee shall possess all right, title and interest in all funds on deposit
from time to time in the Reserve Account and in all proceeds thereof. The
Reserve 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 Reserve Account ceases to be a Qualified Institution the Transferor
shall notify the Trustee, and the Trustee upon being notified (or the Servicer
on its behalf) shall, within 10 Business Days,
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establish a new Reserve Account meeting the conditions specified above with a
Qualified Institution, and shall transfer any cash or any investments to such
new Reserve Account. The Trustee, at the written direction of the Servicer,
shall (i) make withdrawals from the Reserve Account from time to time in an
amount up to the Available Reserve Account Amount at such time, for the purposes
set forth in this Supplement, and (ii) on each Transfer Date (from and after the
Reserve Account Funding Date) prior to termination of the Reserve Account make a
deposit into the Reserve Account in the amount specified in, and otherwise in
accordance with, subsection 4.13(j) of the Agreement.
(b) Funds on deposit in the Reserve Account shall be invested at
the written direction of the Servicer by the Trustee in Permitted Investments.
Funds on deposit in the Reserve Account on any Transfer Date, after giving
effect to any withdrawals from the Reserve Account on such Transfer Date, shall
be invested in such investments that will mature so that such funds will be
available for withdrawal on or prior to the following Transfer Date. The Trustee
shall maintain for the benefit of the Investor Certificateholders possession of
the negotiable instruments or securities, if any, evidencing such Permitted
Investments. No Permitted Investment shall be disposed of prior to its maturity.
On each Transfer Date, all interest and earnings (net of losses and investment
expenses) accrued since the preceding Transfer Date on funds on deposit in the
Reserve Account shall be retained in the Reserve Account (to the extent that the
Available Reserve Account Amount is less than the Required Reserve Account
Amount) and the balance, if any, shall be deposited into the Finance Charge
Account for application as Collections of Finance Charge Receivables allocable
to the Investor Certificates on such Transfer Date. For purposes of determining
the availability of funds or the balance in the Reserve Account for any reason
under this Supplement, except as otherwise provided in the preceding sentence,
investment earnings on such funds shall be deemed not to be available or on
deposit.
(c) On each Transfer Date with respect to the Accumulation Period
prior to the payment in full of the Invested Amount and the first Transfer Date
with respect to the Rapid Amortization Period, the Servicer shall calculate the
"Reserve Draw Amount" which shall be equal to the Principal Funding Investment
Shortfall with
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respect to each Transfer Date with respect to the Accumulation Period or the
first Transfer Date with respect to the Rapid Amortization Period; provided,
however, that such amount will be reduced to the extent that funds otherwise
would be available for deposit in the Reserve Account under subsection 4.13(j)
of the Agreement with respect to such Transfer Date.
(d) In the event that for any Transfer Date the Reserve Draw
Amount is greater than zero, the Reserve Draw Amount, up to the Available
Reserve Account Amount, shall be withdrawn from the Reserve Account on such
Transfer Date by the Trustee (acting in accordance with the written instructions
of the Servicer), deposited into the Finance Charge Account for application in
accordance with Section 4.09 of the Agreement.
(e) In the event that the Reserve Account Surplus on any Transfer
Date, after giving effect to all deposits to and withdrawals from the Reserve
Account with respect to such Transfer Date, is greater than zero, the Trustee,
acting in accordance with the written instructions of the Servicer, shall
withdraw from the Reserve Account and deposit in the Finance Charge Account an
amount equal to such Reserve Account Surplus for application in accordance with
Section 4.09 of the Agreement.
(f) Upon the earliest to occur of (i) the termination of the
Trust pursuant to Article XII of the Agreement, (ii) the day on which the
Invested Amount is paid in full to the Series 1997-5 Certificateholders, (iii)
if the Accumulation Period has not commenced, the occurrence of a Pay Out Event
with respect to Series 1997-5 and (iv) if the Accumulation Period has commenced,
the earlier of the first Transfer Date with respect to the Rapid Amortization
Period and the Class A Scheduled Payment Date, the Trustee, acting in accordance
with the written instructions of the Servicer, after the prior payment of all
amounts owing to the Series 1997-5 Certificateholders that are payable from the
Reserve Account as provided herein, shall withdraw from the Reserve Account and
deposit in the Finance Charge Account all amounts, if any, on deposit in the
Reserve Account for application in accordance with Section 4.09 of the
Agreement, and the Reserve Account shall be deemed to have terminated for
purposes of this Supplement.
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SECTION 7. Article V of the Agreement. Article V of the Agreement
shall read in its entirety as follows and shall be applicable only to the Series
1997-5 Certificates:
ARTICLE V
DISTRIBUTIONS AND REPORTS TO INVESTOR
CERTIFICATEHOLDERS
Section 5.01 Distributions.
(a) On each Distribution Date, the Paying Agent shall distribute
(in accordance with the certificate delivered by the Servicer to the Trustee
pursuant to subsection 3.04(b) of the Agreement) to each Class A
Certificateholder of record on the preceding Record Date (other than as provided
in subsection 2.04(e) or in Section 12.03 of the Agreement respecting a final
distribution) such Certificateholder's pro rata share (based on the aggregate
Undivided Interests represented by Class A Certificates held by such
Certificateholder) of amounts on deposit in the Distribution Account as are
payable to the Class A Certificateholders pursuant to subsection 4.09(h) and
Section 4.10 of the Agreement by check mailed to each Class A Certificateholder
at such Certificateholder's address as it appears on the Certificate Register
or, in the case of Class A Certificateholders holding Class A Certificates
evidencing Undivided Interests aggregating not less than 80% of the Invested
Amount, by wire transfer, at the expense of such Class A Certificateholder, to
an account or accounts designated by such Class A Certificateholder by written
notice given to the Paying Agent not less than five days prior to the related
Distribution Date; provided, however, that the final payment in retirement of
the Class A Certificates will be made only upon presentation and surrender of
the Class A Certificates at the office or offices specified in the notice of
such final distribution delivered by the Trustee pursuant to Section 12.03 of
the Agreement.
(b) On each Distribution Date, the Paying Agent shall distribute
(in accordance with the certificate delivered by the Servicer to the Trustee
pursuant to subsection 3.04(b) of the Agreement) to each Class B
Certificateholder of record on the preceding Record Date (other than as provided
in subsection 2.04(e) or in Section 12.03 of the Agreement respecting a final
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distribution) such Certificateholder's pro rata share (based on the aggregate
Undivided Interests represented by Class B Certificates held by such
Certificateholder) of amounts on deposit in the Distribution Account as are
payable to the Class B Certificateholders pursuant to subsection 4.09(h) and
Section 4.10 of the Agreement by check mailed to each Class B Certificateholder
at such Certificateholder's address as it appears on the Certificate Register
or, in the case of Class B Certificateholders holding Class B Certificates
evidencing Undivided Interests aggregating not less than 80% of the Class B
Invested Amount, by wire transfer, at the expense of such Class B
Certificateholder, to an account or accounts designated by such Class B
Certificateholder by written notice given to the Paying Agent not less than five
days prior to the related Distribution Date; provided, however, that the final
payment in retirement of the Class B Certificates will be made only upon
presentation and surrender of the Class B Certificates at the office or offices
specified in the notice of such final distribution delivered by the Trustee
pursuant to Section 12.03 of the Agreement.
(c) On each Distribution Date, the Paying Agent shall distribute
(in accordance with the certificate delivered by the Servicer to the Trustee
pursuant to subsection 3.04(b) of the Agreement) to each CIA Certificateholder
of record on the preceding Record Date (other than as provided in subsection
2.04(e) or in Section 12.03 of the Agreement respecting a final distribution)
such Certificateholder's pro rata share (based on the aggregate Undivided
Interests represented by CIA Certificates held by such Certificateholder) of
amounts on deposit in the Distribution Account as are payable to the CIA
Certificateholders pursuant to subsection 4.09(h), Section 4.10, subsection
4.13(f) and subsection 4.13(k) of the Agreement by wire transfer, at the expense
of such CIA Certificateholder, to an account or accounts designated by such CIA
Certificateholder by written notice given to the Paying Agent not less than five
days prior to the related Distribution Date; provided, however, that the final
payment in retirement of the CIA Certificates will be made only upon
presentation and surrender of the CIA Certificates at the office or offices
specified in the notice of such final distribution delivered by the Trustee
pursuant to Section 12.03 of the Agreement.
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Section 5.02 Monthly Certificateholders' Statement.
(a) On each Distribution Date, the Paying Agent shall forward to
each Certificateholder and each Rating Agency a statement substantially in the
form of Exhibit F prepared by the Servicer and delivered to the Trustee and the
Paying Agent on the preceding Determination Date setting forth the following
information (which, in the case of (i), (ii) and (iii) below, shall be stated on
the basis of an original principal amount of $1,000 per Certificate):
(i) the total amount distributed;
(ii) the amount of such distribution allocable to Certificate
Interest;
(iii) the amount of such distribution allocable to Certificate
Principal;
(iv) the amount of Collections of Principal Receivables
processed during the related Monthly Period and allocated in respect of the
Class A Certificates, the Class B Certificates and the CIA Certificates,
respectively;
(v) the amount of Collections of Finance Charge Receivables
processed during the related Monthly Period and allocated in respect of
the Class A Certificates, the Class B Certificates and the CIA
Certificates, respectively, and the amount of Principal Funding Investment
Proceeds and investment earnings on amounts on deposit in the Reserve
Account;
(vi) the aggregate amount of Principal Receivables, the
Invested Amount, the Class A Invested Amount, the Class B Invested Amount,
the CIA Invested Amount, the Floating Allocation Percentage and, during the
Amortization Period, the Fixed/Floating Allocation Percentage with respect
to the Principal Receivables in the Trust as of the end of the day on the
Record Date;
(vii) the aggregate outstanding balance of Accounts which are
35, 65, 95, 125, 155 and 185 or more days Contractually Delinquent as of
the end of the day on the Record Date;
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(viii) the aggregate Investor Default Amount, the Class A
Investor Default Amount, the Class B Investor Default Amount and the CIA
Investor Default Amount for the related Monthly Period;
(ix) the aggregate amount of Class A Investor Charge-Offs and
the amount by which the Class B Invested Amount and the CIA Invested Amount
have been reduced with respect to the related Monthly Period;
(x) the aggregate amount of Class A Investor Charge-Offs
reimbursed and the amount by which reductions of the Class B Invested
Amount and the CIA Invested Amount have been reimbursed on the Transfer
Date immediately preceding such Distribution Date;
(xi) the amount of the Class A Monthly Servicing Fee, the
Class B Monthly Servicing Fee and the CIA Monthly Servicing Fee for the
related Monthly Period;
(xii) the amount of Reallocated CIA Principal Collections and
Reallocated Class B Principal Collections with respect to such
Distribution Date;
(xiii) the CIA Invested Amount as of the close of business on
such Distribution Date;
(xiv) the Class A Pool Factor and the Class B Pool Factor as of
the end of the last day of the related Monthly Period;
(xv) the Portfolio Yield for the related Monthly Period;
(xvi) the Base Rate for the related Monthly Period;
(xvii) the Principal Funding Account Balance on the related
Transfer Date;
(xviii) the Accumulation Shortfall;
(xix) the Accumulation Period Commencement Date and the
Accumulation Period Length; and
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(xx) the Principal Funding Investment Shortfall, the Required
Reserve Account Amount, the Reserve Account Balance and the Reserve Draw
Amount for such Monthly Period.
(b) Annual Certificateholders' Tax Statement. On or before
January 31 of each calendar year, beginning with calendar year 1998, the Trustee
shall distribute to each Person who at any time during the preceding calendar
year was a Series 1997-5 Certificateholder, a statement prepared by the Servicer
containing the information required to be contained in the regular monthly
report to Series 1997-5 Certificateholders, as set forth in subclauses (i), (ii)
and (iii) above, aggregated for such calendar year or the applicable portion
thereof during which such Person was a Series 1997-5 Certificateholder, together
with such other customary information (consistent with the treatment of the
Certificates as debt) as the Trustee or the Servicer deems necessary or
desirable to enable the Series 1997-5 Certificateholders to prepare their tax
returns. Such obligations of the Trustee shall be deemed to have been satisfied
to the extent that substantially comparable information shall be provided by the
Trustee pursuant to any requirements of the Code as from time to time in effect.
Section 5.03 Rule 144A Information. So long as any of the CIA
Certificates are "restricted securities" within the meaning of Rule 144(a)(3)
under the Securities Act and during any period in which the Trust is not subject
to Section 13 or 15(d) of the Exchange Act, the Transferor agrees to make
available to any QIB or beneficial owner of the CIA Certificates in connection
with any sale thereof and any prospective purchaser of such CIA Certificates
from such QIB or beneficial owner, the information required by Rule 144A(d)(4)
under the Securities Act.
SECTION 8. Series 1997-5 Pay Out Events. If any one of the following
events shall occur with respect to the Series 1997-5 Certificates:
(a) failure on the part of the Transferor (i) to make any
payment or deposit required by the terms of (A) the Agreement or (B) this Series
Supplement, on or before the date occurring five days after the date such
payment or deposit is required to be made herein or (ii) duly to observe or
perform in any material respect any
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covenants or agreements of the Transferor set forth in the Agreement or this
Series Supplement, which failure has a material adverse effect on the Series
1997-5 Certificateholders and which continues unremedied for a period of 60
days after the date on which written notice of such failure, requiring the same
to be remedied, shall have been given to the Transferor by the Trustee, or to
the Transferor and the Trustee by the Holders of Series 1997-5 Certificates
evidencing Undivided Interests aggregating not less than 50% of the Invested
Amount of this Series 1997-5, and continues to affect materially and adversely
the interests of the Series 1997-5 Certificateholders for such period;
(b) any representation or warranty made by the Transferor in the
Agreement or this Series Supplement, or any information contained in a computer
file or microfiche list required to be delivered by the Transferor pursuant to
Section 2.01 or 2.06 of the Agreement, (i) shall prove to have been incorrect in
any material respect when made or when delivered, which continues to be
incorrect in any material respect for a period of 60 days after the date on
which written notice of such failure, requiring the same to be remedied, shall
have been given to the Transferor by the Trustee, or to the Transferor and the
Trustee by the Holders of the Series 1997-5 Certificates evidencing Undivided
Interests aggregating more than 50% of the Invested Amount of this Series 1997-5
and (ii) as a result of which the interests of the Series 1997-5
Certificateholders are materially and adversely affected and continue to be
materially and adversely affected for such period; provided, however, that a
Series 1997-5 Pay Out Event pursuant to this subsection 9(b) shall not be deemed
to have occurred hereunder if the Transferor has accepted reassignment of the
related Receivable, or all of such Receivables, if applicable, during such
period in accordance with the provisions of the Agreement;
(c) the average Portfolio Yield for any three consecutive
Monthly Periods is less than the average Base Rate for such three consecutive
Monthly Periods;
(d) the Transferor shall fail to convey Receivables arising
under Additional Accounts to the Trust, as required by subsection 2.06(a) of the
Agreement; or
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(e) any Servicer Default shall occur which would have a material
adverse effect on the Series 1997-5 Certificateholders.
then, in the case of any event described in subparagraph (a), (b) or (e), after
the applicable grace period set forth in such subparagraphs, either the Trustee
or the Holders of Series 1997-5 Certificates evidencing Undivided Interests
aggregating more than 50% of the Invested Amount of this Series 1997-5 by notice
then given in writing to the Transferor and the Servicer (and to the Trustee if
given by the Certificateholders) may declare that a pay out event (a "Series
1997-5 Pay Out Event") has occurred as of the date of such notice, and in the
case of any event described in subparagraphs (c) or (d), a Series 1997-5 Pay Out
Event shall occur without any notice or other action on the part of the Trustee
or the Series 1997-5 Certificateholders immediately upon the occurrence of such
event.
SECTION 9. Series 1997-5 Termination. The right of the Series 1997-5
Certificateholders to receive payments from the Trust will terminate on the
first Business Day following the Series 1997-5 Termination Date.
SECTION 10. Periodic Finance Charges and Other Fees. The Transferor
hereby agrees that, except as otherwise required by any Requirement of Law, or
as is deemed by the Transferor to be necessary in order for the Transferor to
maintain its credit card business, based upon a good faith assessment by the
Transferor, in its sole discretion, of the nature of the competition in the
credit card business, it shall not at any time reduce the Periodic Finance
Charges assessed on any Receivable or other fees on any Account if, as a result
of such reduction, the Transferor's reasonable expectation of the Portfolio
Yield as of such date would be less than the Base Rate.
SECTION 11. Transfers of CIA Certificates; Legends. (a) No CIA
Certificate or any interest therein may be sold (including in the initial
offering), conveyed, assigned, hypothecated, pledged, participated, or
otherwise transferred (each, a "Transfer") except in accordance with this
Section 11. Any Transfer of a CIA Certificate otherwise permitted by this
Section 11 will be permitted only if it consists of a pro rata percentage
interest in all payments made with respect to such
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Holder's CIA Certificates and no Transfers of partial interests in a CIA
Certificate shall be permitted. No CIA Certificate or any interest therein may
be Transferred to any Person (each, an "Assignee"), unless the Assignee shall
have executed and delivered the certification referred to in subsection 11(e)
below and each of the Transferor and the Servicer shall have granted its prior
consent thereto. Such consent shall be granted (assuming that all other
conditions specified in this Section 11 to such Transfer are satisfied) unless
the Transferor determines in its sole and absolute discretion that such Transfer
would create a risk that the Trust would be classified for federal or any
applicable state tax purposes as an association or publicly traded partnership
taxable as a corporation; provided, further, that any attempted Transfer that
would cause the number of Targeted Holders to exceed ninety-nine shall be void;
and provided, further, that there shall not at any time be more than 10 CIA
Certificateholders or such other number as may be consented to by the Transferor
which consent may be withheld in its sole and absolute discretion.
(b) Each initial purchaser of a CIA Certificate or any interest
therein and any Assignee thereof shall certify to the Transferor, the Servicer,
and the Trustee that it is either (A)(i) a citizen or resident of the U.S., (ii)
a corporation, partnership or other entity organized in or under the laws of the
U.S. or any political subdivision thereof which, if such entity is a tax-exempt
entity, recognizes that payments with respect to the CIA Certificates may
constitute unrelated business taxable income or (iii) a person not described in
(i) or (ii) whose ownership of the CIA Certificates is effectively connected
with the conduct of a trade or business within the United States (within the
meaning of the Code) and whose ownership of any interest in a CIA Certificate
will not result in any withholding obligation with respect to any payments with
respect to the CIA Certificates by any person or (B) an estate or trust the
income of which is includible in gross income for U.S. federal income tax
purposes. Each initial purchaser of a CIA Certificate also shall agree that (a)
if it is a person described in clause (A)(i) or (A)(ii) above, it will furnish
to the person from whom it is acquiring a CIA Certificate, the Servicer and the
Trustee, a properly executed U.S. Internal Revenue Service Form W-9 (and will
agree to furnish a new Form W-9, or any successor applicable form, upon the
expiration or obsolescence of any previously delivered form) or (b) if it is a
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person described in clause (A)(iii) above, it will furnish to the person from
whom it is acquiring a CIA Certificate, the Servicer and the Trustee, a
properly executed U.S. Internal Revenue Service Form 4224 (and will agree to
furnish a new Form 4224, or any successor applicable form, upon the expiration
or obsolescence of any previously delivered form and comparable statements in
accordance with applicable U.S. laws), and, in each case, such other
certifications, representations or opinions of counsel as may be requested by
the Transferor, the Servicer or the Trustee.
(c) Each initial purchaser of a CIA Certificate or any interest
therein and any Assignee thereof shall further certify to the Transferor, the
Servicer and the Trustee that it has neither acquired nor will it sell, trade or
transfer any interest in a CIA Certificate or cause an interest in a CIA
Certificate to be marketed on or through an "established securities market"
within the meaning of Section 7704(b)(1) of the Code and any treasury regulation
thereunder, including, without limitation, an over-the-counter-market or an
interdealer quotation system that regularly disseminates firm buy or sell
quotations. In addition, each initial purchaser of a CIA Certificate or any
interest therein and any Assignee shall certify, prior to any delivery or
Transfer to it of a CIA Certificate that it is not and will not become (unless
otherwise consented to by the Transferor in its sole discretion), for so long as
it holds an interest in a CIA Certificate, a partnership, Subchapter S
corporation or grantor trust for U.S. federal income tax purposes. If an
initial purchaser of an interest in a CIA Certificate or an Assignee cannot make
the certification described in the preceding sentence, the Transferor may, in
its sole discretion, prohibit a Transfer to such entity; provided, however, that
if the Transferor agrees to permit such a Transfer, the Transferor, the
Servicer or the Trustee may require additional certifications in order to
prevent the Trust from being treated as a publicly traded partnership. Each
initial purchaser of an interest in a CIA Certificate and Assignee acknowledges
that the Opinion of Counsel to the effect that the Trust will not be treated as
a publicly traded partnership taxable as a corporation is dependent in part on
the accuracy of the certifications described in this subsection 11(c).
(d) Each CIA Certificate will bear a legend or legends
substantially in the following form:
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EACH PURCHASER REPRESENTS AND WARRANTS FOR THE BENEFIT OF
FIRST USA BANK AND THE TRUSTEE THAT SUCH PURCHASER EITHER (A) IS NOT (I) AN
"EMPLOYEE BENEFIT PLAN" (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA")), INCLUDING GOVERNMENTAL PLANS
AND CHURCH PLANS, (II) A PLAN DESCRIBED IN SECTION 4975(e)(1) OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), INCLUDING INDIVIDUAL RETIREMENT
ACCOUNTS AND KEOGH PLANS, OR (III) ANY OTHER ENTITY WHOSE UNDERLYING ASSETS
INCLUDE "PLAN ASSETS" (AS DEFINED IN UNITED STATES DEPARTMENT OF LABOR ("DOL")
REGULATION SECTION 2510.3-101, 29 C.F.R. (S)2510.3-101 OR OTHERWISE UNDER ERISA)
BY REASON OF A PLAN'S INVESTMENT IN THE ENTITY, INCLUDING, WITHOUT LIMITATION,
AN INSURANCE COMPANY GENERAL ACCOUNT OR (B) IT IS AN INSURANCE COMPANY ACTING ON
BEHALF OF ITS GENERAL ACCOUNT AND (I) ON THE DATE IT ACQUIRES THE CIA
CERTIFICATES, LESS THAN 25% OF THE ASSETS OF SUCH GENERAL ACCOUNT (AS REASONABLY
DETERMINED BY SUCH INSURANCE COMPANY) CONSTITUTE "PLAN ASSETS" FOR PURPOSES OF
TITLE I OF ERISA AND SECTION 4975 OF THE CODE, AND (II) IF, AFTER THE INITIAL
ACQUISITION OF THE CIA CERTIFICATES, AT ANY TIME DURING ANY CALENDAR QUARTER 25%
OR MORE OF THE ASSETS OF SUCH GENERAL ACCOUNT (AS REASONABLY DETERMINED BY SUCH
INSURANCE COMPANY NO LESS FREQUENTLY THAN EACH CALENDAR QUARTER) CONSTITUTE
"PLAN ASSETS" FOR PURPOSES OF TITLE I OF ERISA OR SECTION 4975 OF THE CODE AND
NO EXEMPTION OR EXCEPTION FROM THE PROHIBITED TRANSACTION RULES APPLIES TO THE
CONTINUED HOLDING OF THE CIA CERTIFICATES UNDER SECTION 401(c) OF ERISA AND THE
FINAL REGULATIONS THEREUNDER OR UNDER AN EXEMPTION OR REGULATION ISSUED BY THE
DOL UNDER ERISA, THEN SUCH INSURANCE COMPANY AGREES TO DISPOSE OF ALL OF THE CIA
CERTIFICATES THEN HELD IN ITS GENERAL ACCOUNT BY THE END OF THE NEXT FOLLOWING
CALENDAR QUARTER.
THIS CERTIFICATE MAY NOT BE ACQUIRED, SOLD, TRADED OR
TRANSFERRED, NOR MAY AN INTEREST IN THIS CERTIFICATE BE MARKETED, ON OR THROUGH
AN "ESTABLISHED SECURITIES MARKET" WITHIN THE MEANING OF SECTION 7704(b)(1) OF
THE CODE AND ANY PROPOSED, TEMPORARY OR FINAL TREASURY REGULATION THEREUNDER,
INCLUDING, WITHOUT LIMITATION, AN OVER-THE-COUNTER-MARKET OR AN INTERDEALER
QUOTATION SYSTEM THAT REGULARLY DISSEMINATES FIRM BUY OR SELL QUOTATIONS.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURI-
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TIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS
CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN
COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS AND ONLY (1) TO
THE TRANSFEROR, (2) TO A LIMITED NUMBER OF INSTITUTIONAL "ACCREDITED INVESTORS"
(AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) AND IN
A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(UPON DELIVERY OF THE DOCUMENTATION REQUIRED BY THE POOLING AND SERVICING
AGREEMENT AND, IF THE TRUSTEE SO REQUIRES, AN OPINION OF COUNSEL SATISFACTORY TO
THE TRUSTEE) OR (3) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT TO A PERSON
THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A QIB
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A. EACH CERTIFICATE OWNER BY ACCEPTING A BENEFICIAL INTEREST IN THIS
CERTIFICATE IS DEEMED TO REPRESENT THAT IT IS EITHER A QIB PURCHASING FOR ITS
OWN ACCOUNT, A QIB PURCHASING FOR THE ACCOUNT OF ANOTHER QIB OR AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT). THIS CERTIFICATE WILL NOT BE ACCEPTED FOR REGISTRATION OF
TRANSFER EXCEPT UPON PRESENTATION OF EVIDENCE SATISFACTORY TO THE TRANSFER
AGENT AND REGISTRAR THAT THE RESTRICTIONS ON TRANSFER SET FORTH IN THE SERIES
1997-5 SUPPLEMENT HAVE BEEN COMPLIED WITH. THIS CERTIFICATE MAY NOT BE
REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT THE PRIOR WRITTEN
CONSENT OF EACH OF THE TRANSFEROR AND THE SERVICER AND UNLESS AND UNTIL THE
TRUSTEE SHALL HAVE RECEIVED THE CERTIFICATIONS REQUIRED BY THE SERIES 1997-5
SUPPLEMENT.
(e) Upon surrender for registration of transfer of a CIA
Certificate, or any portion thereof, at the office of the Transfer Agent and
Registrar, accompanied by a letter of representations from the prospective CIA
Certificateholder substantially in the form attached as Exhibit G, executed by
the ultimate beneficial purchaser of such CIA Certificate (or any portion
thereof) in person or by such prospective CIA Certificateholder's attorney
thereunto duly authorized in writing, and receipt by the Trustee of the written
consent of each of the Transferor and the Servicer to such transfer, such CIA
Certificate shall be transferred upon the Certificate Register, and the
Transferor shall execute, and the Trustee shall authenticate and deliver, in the
name of
68
<PAGE>
the designated transferees one or more new registered CIA Certificates of any
authorized denominations and of a like aggregate principal amount and tenor.
Such transfers of CIA Certificates shall be subject to the restrictions set
forth in this Section 11, to such other restrictions as shall be set forth in
the text of the CIA Certificates and in the letter of representations,
substantially in the form attached as Exhibit G, executed by the purchasing CIA
Certificateholder, and to such reasonable regulations as may be prescribed by
the Transferor. Successive registrations and registrations of transfers as
aforesaid may be made from time to time as desired, and each such registration
shall be noted on the Certificate Register.
(f) No CIA Certificate or any interest therein may be
Transferred (including in the initial offering) to (a) an "employee benefit
plan" (as defined in Section 3(3) of ERISA), including governmental plans and
church plans, (b) any "plan" (as defined in Section 4975(e)(1) of the Code)
including individual retirement accounts and Keogh plans, or (c) any other
entity whose underlying assets include "plan assets" (within the meaning of
Department of Labor Regulation Section 2510.3-101, 29 C.F.R. (S) 2510.3-101 or
otherwise under ERISA) by reason of a plan's investment in the entity,
including, without limitation, an insurance company general account; provided
that a CIA Certificate or an interest therein may be Transferred to an insurance
company acting on behalf of its general account if (i) on the date such
insurance company acquires the CIA Certificates, less than 25% of the assets of
such general account (as reasonably determined by such insurance company)
constitute "plan assets" for purposes of Title I of ERISA and Section 4975 of
the Code, and (ii) such insurance company agrees that if, after the initial
acquisition of the CIA Certificates, at any time during any calendar quarter 25%
or more of the assets of such general account (as reasonably determined by such
insurance company no less frequently than each calendar quarter) constitute
"plan assets" for purposes of Title I of ERISA or Section 4975 of the Code and
no exemption or exception from the prohibited transaction rules applies to the
continued holding of the CIA Certificates under Section 401(c) of ERISA and the
final regulations thereunder or under an exemption or regulation issued by the
DOL under ERISA, then such insurance company will dispose of all of the CIA
Certificates then held in its general account by the end of the next following
calendar quarter; and provided,
69
<PAGE>
further that the Assignee shall have executed and delivered the certification
referred to in subsection 11(e) above and each of the Transferor and the
Servicer shall have granted its prior written consent thereto.
SECTION 12. Compliance with Withholding Requirements.
Notwithstanding any other provision of the Agreement, the Trustee and any Paying
Agent shall comply with all Federal withholding requirements with respect to
payments to the CIA Certificateholders of interest, original issue discount, or
other amounts that the Trustee, any Paying Agent, the Servicer or the
Transferor reasonably believes are applicable under the Code. The consent of
the CIA Certificateholders shall not be required for any such withholding. In
the event the Trustee or the Paying Agent withholds any amount from payments
made to any CIA Certificateholder pursuant to federal withholding requirements,
the Trustee or the Paying Agent shall indicate to such CIA Certificateholder the
amount withheld and all such amounts shall be deemed to have been paid to such
CIA Certificateholders and the CIA Certificateholders shall have no claim
therefor.
SECTION 13. Tax Characterization of the CIA Certificates. It is the
intention of the parties hereto that the CIA Certificates be treated for tax
purposes as indebtedness. In the event that the CIA Certificates are not so
treated, it is the intention of the parties that the CIA Certificates be treated
as an interest in a partnership that owns the Receivables. In the event that
the CIA Certificates are treated as an interest in a partnership, it is the
intention of the parties that interest payable on the CIA Certificates be
treated as guaranteed payment and, if for any reason it is not so treated, that
the holders of the CIA Certificates be specially allocated gross interest income
equal to the interest accrued during each Interest Period on the CIA
Certificates.
SECTION 14. ERISA Legend. Each Class B Certificate will bear a
legend or legends substantially in the following form:
EACH PURCHASER REPRESENTS AND WARRANTS FOR THE BENEFIT OF FIRST USA
BANK AND THE TRUSTEE THAT SUCH PURCHASER IS NOT (I) AN EMPLOYEE BENEFIT PLAN
(AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA")) THAT IS SUBJECT TO THE PROVISIONS OF TITLE I OF
ERISA, (II) A PLAN DESCRIBED IN
70
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SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), (III) A GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA,
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE PROVISIONS OF SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE,
(IV) AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN'S
INVESTMENT IN THE ENTITY OR (V) A PERSON INVESTING "PLAN ASSETS" OF ANY SUCH
PLAN (INCLUDING FOR PURPOSES OF CLAUSES (IV) AND (V) ANY INSURANCE COMPANY
GENERAL ACCOUNT, BUT EXCLUDING ANY ENTITY REGISTERED UNDER THE INVESTMENT
COMPANY ACT OF 1940, AS AMENDED).
Each Certificate Owner by virtue of its beneficial interest in the
Class B Certificates shall be deemed to have made the representations and
warranties stated in such legend.
SECTION 15. Amendment and Ratification of Agreement. As supplemented
by this Series Supplement, the Agreement is in all respects ratified and
confirmed and the Agreement as so supplemented by this Series Supplement shall
be read, taken, and construed as one and the same instrument. Subsection
12.01(c) of the Agreement is hereby amended by substituting in the second
sentence thereof in place of the words "and pay the proceeds to all
Certificateholders of such Series . . ." the following: "and pay the proceeds
to the Investor Certificateholders of such Series . . ."
SECTION 16. Counterparts. This Series Supplement may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original, but all of such counterparts shall together constitute but one and the
same instrument.
SECTION 17. GOVERNING LAW. THIS SERIES SUPPLEMENT 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 18. Additional Representations and Warranties of the
Servicer. First USA Bank, as initial Servicer, hereby makes, and any Successor
Servicer by its appointment under the Agreement shall make the following
representations and warranties:
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(a) All Consents. All authorizations, consents, orders or
approvals of or registrations or declarations with any Governmental Authority
required to be obtained, effected or given by the Servicer in connection with
the execution and delivery of this Supplement by the Servicer and the
performance of the transactions contemplated by this Supplement by the Servicer,
have been duly obtained, effected or given and are in full force and effect.
(b) Rescission or Cancellation. The Servicer shall not permit
any rescission or cancellation of any Receivable except as ordered by a court of
competent jurisdiction or other Governmental Authority or in accordance with the
normal operating procedures of the Servicer.
(c) Receivables Not To Be Evidenced by Promissory Notes. Except
in connection with its enforcement or collection of an Account, the Servicer
will take no action to cause any Receivable to be evidenced by an instrument or
chattel paper (as defined in the UCC as in effect in the State of Delaware).
SECTION 19. Appointment of co-Paying Agent, co-Transfer Agent and co-
Registrar. BDL is appointed as co-paying agent and as co-transfer agent and co-
registrar in Luxembourg with respect to the Class A Certificates and the Class B
Certificates, for so long as either the Class A Certificates or the Class B
Certificates are listed on the Luxembourg Stock Exchange. Any reference in this
Series Supplement to the Paying Agent or the Transfer Agent and Registrar shall
be deemed to include BDL as co-paying agent or co-transfer agent and co-
registrar, as the case may be, unless the context requires otherwise.
72
<PAGE>
IN WITNESS WHEREOF, the Transferor, the Servicer and the Trustee have
caused this Series 1997-5 Supplement to be duly executed by their respective
officers as of the day and year first above written.
FIRST USA BANK,
Transferor and Servicer
By: /s/ Peter W. Atwater
--------------------------------
Name: Peter W. Atwater
Title: Executive Vice President
THE BANK OF NEW YORK (DELAWARE),
Trustee
By: /s/ Joseph Ernst
--------------------------------
Name: Joseph Ernst
Title: Assistant Vice President
<PAGE>
EXHIBIT A
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
No. R-1 $____________
Series Termination
Date: April 17, 2007 CUSIP NO. 337435CK5
FIRST USA CREDIT CARD MASTER TRUST CLASS A FLOATING RATE
ASSET BACKED CERTIFICATE, SERIES 1997-5
Evidencing an undivided interest in a trust, the corpus of which consists of
receivables generated from time to time in the ordinary course of business in a
portfolio of VISA/(R)/ and MasterCard/(R)//1/ credit card accounts generated
or to be generated by First USA Bank (the "Bank").
(Not an interest in or a recourse obligation
of First USA Bank or any affiliate thereof)
This certifies that CEDE & CO. (the
"Certificateholder") is the registered owner of a fractional undivided interest
in the First USA Credit Card Master Trust (the "Trust") issued pursuant to the
Pooling and Servicing Agreement, dated as of September 1, 1992 between the Bank,
as Transferor (the "Transferor") and as Servicer (the "Servicer"), and The Bank
of New York (Delaware), as trustee (the "Trustee") of the Trust (the
"Agreement"; such term to include any Supplement or amendment
- ----------------
/1/ VISA/(R)/ and MasterCard/(R)/ are registered trademarks of
Visa USA Incorporated and MasterCard International
Incorporated, respectively.
<PAGE>
thereto) as amended by Assignment No. 30 of Receivables in Additional Accounts
dated as of August 7, 1997 among the Bank, as Transferor and Servicer, the
Trustee and The Bank of New York (Delaware), as trustee of the First USA Credit
Card Master Trust II, and as supplemented by the Series 1997-5 Supplement (the
"Series 1997-5 Supplement"), dated as of August 7, 1997, between the Bank, as
Transferor and Servicer, and the Trustee. The corpus of the Trust consists of
all of the Transferor's right, title and interest in a portfolio of receivables
(the "Receivables") existing in certain VISA/(R)/ and MasterCard/(R)/ revolving
credit card accounts identified in the Agreement from time to time (the
"Accounts"), all Receivables generated under the Accounts from time to time
thereafter, all monies due or to become due and all amounts received with
respect to the Receivables in existence in the Accounts, all monies on deposit
in certain bank accounts (excluding any investment earnings on such deposited
amounts except as set forth in the Series 1997-5 Supplement), and all other
assets and interests constituting the Trust and all proceeds of the foregoing.
Although a summary of certain provisions of the
Agreement is set forth below, this Class A Certificate does not purport to
summarize the Agreement and reference is made to the Agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the Trustee. A
copy of the Agreement may be requested from the Trustee by writing to the
Trustee at The Bank of New York (Delaware), White Clay Center, Route 273,
Newark, Delaware, 19711, Attention: Bond Administration. To the extent not
defined herein, the capitalized terms used herein have the meanings ascribed to
them in the Agreement. This Certificate is one of a Series of Certificates
entitled "First USA Credit Card Master Trust Class A Floating Rate Asset Backed
Certificates, Series 1997-5" (the "Class A Certificates"), each of which
represents a fractional undivided interest in the Trust, and is issued under and
is subject to the terms, provisions and conditions of the Agreement, to which
Agreement, as amended from time to time, the Certificateholder by virtue of the
acceptance hereof assents and by which the Certificateholder is bound. In the
case of any conflict between terms specified in this Class A Certificate and
terms specified in the Agreement, the terms of the Agreement shall govern.
<PAGE>
The Transferor has structured the Agreement, the Class
A Certificates and the First USA Credit Card Master Trust Class B Floating Rate
Asset Backed Certificates, Series 1997-5 (the "Class B Certificates") with the
intention that the Class A Certificates and the Class B Certificates will
qualify under applicable tax law as indebtedness, and the Transferor and each
holder of a Class A Certificate (a "Class A Certificateholder") or any interest
therein, by acceptance of its Class A Certificate or any interest therein,
agrees to treat the Class A Certificates for purposes of federal, state, local
and foreign income or franchise taxes and any other tax imposed on or measured
by income, as indebtedness.
The Trust's assets are allocated in part to the holders
of the Class A Certificates, the holders of the Class B Certificates and the
holders of the First USA Credit Card Master Trust CIA Certificates, Series
1997-5 (the "CIA Certificates") (such holders together the "Investor
Certificateholders") with the remainder allocated to holders of other Series of
Certificates issued by the Trust, if any, and to the Transferor. In addition to
the Class A Certificates, the Class B Certificates and the CIA Certificates, the
Exchangeable Transferor Certificate will be reissued pursuant to the Agreement
and will represent the Transferor's interest in the Trust. The reissued
Exchangeable Transferor Certificate will represent the interest in the Principal
Receivables not represented by the Class A Certificates, the Class B
Certificates and the CIA Certificates (together the "Investor Certificates") or
any other Series of Certificates. The Exchangeable Transferor Certificate may be
exchanged by the Transferor pursuant to the Agreement for one or more Series of
Certificates and a reissued Exchangeable Transferor Certificate upon the
conditions set forth in the Agreement.
The Class A Initial Invested Amount is $650,000,000.
The Class A Invested Amount for any monthly Distribution Date will be an amount
equal to $650,000,000, minus the aggregate amount of principal payments made to
the Class A Certificateholders prior to such Distribution Date and minus the
excess, if any, of the aggregate amount of Class A Investor Charge-Offs over the
Class A Investor Charge-Offs reimbursed prior to such date.
The Class A Certificates will bear interest at the rate
of 5.76891% per annum on the Class
<PAGE>
A Initial Invested Amount from August 7, 1997 through August 16, 1997, and at a
per annum rate of 0.14% in excess of LIBOR as determined by the Trustee (a) on
August 14, 1997 for the period from August 17, 1997 through September 16, 1997
and (b) on the related LIBOR Determination Date for each Interest Period
thereafter (each such rate as in effect from time to time, the "Class A
Certificate Rate"). Interest will be distributed to the extent of available
funds on September 17, 1997, and on the seventeenth day of each month
thereafter, or if such day is not a Business Day, the next succeeding Business
Day until the earlier of the day on which the Class A Invested Amount is paid in
full and the Scheduled Series 1997-5 Termination Date (each such date a
"Distribution Date"), in an amount equal to the product of (a) the actual number
of days in the related Interest Period divided by 360, (b) the Class A
Certificate Rate and (c) the Class A Outstanding Principal Balance on the last
day of the Monthly Period immediately preceding such Distribution Date.
Interest for a Distribution Date will accrue from and including the previous
Distribution Date (or in the case of the first Distribution Date, from and
including the Closing Date), to, and including, the day immediately preceding
the current Distribution Date. Interest payments will be made from Collections
of Finance Charge Receivables and certain other amounts allocated to the Class A
Certificates comprising Class A Available Funds and, in certain circumstances,
from Reallocated Principal Collections on September 17, 1997 and on each
Distribution Date thereafter until the Series 1997-5 Termination Date. Interest
will be payable monthly on each Distribution Date to the Class A
Certificateholders of record as of the related Record Date. The Record Date
with respect to any Distribution Date shall be the last day of the calendar
month preceding such Distribution Date.
As described in the Agreement, Collections of Principal
Receivables with respect to any Monthly Period will be allocated on the related
Determination Date on the basis of the aggregate Investor Percentage of all
Series and the Transferor Percentage with respect to the Principal Receivables.
Such allocation will be performed both during the Revolving Period and any
Amortization Period. Throughout the existence of the Trust, the Servicer will
allocate to the Transferor, as holder of the Exchangeable Transferor
Certificate, an amount equal to the Transferor Percentage of the aggregate
amount of Collections of Finance Charge Receivables and Principal Receivables
for each Monthly Period. During the Revolving Period relating
<PAGE>
to the Investor Certificates, the Class B Floating Allocation Percentage of
Collections of Principal Receivables and the CIA Floating Allocation Percentage
of Collections of Principal Receivables will be applied first as Reallocated
Principal Collections, to the extent required, and any remaining amounts
together with the Class A Floating Allocation Percentage of Principal
Receivables will be distributed first to the certificateholders of other Series
to the extent of the amount of Principal Shortfalls, if any, and then to the
Transferor in an amount not to exceed the amount of the Transferor Interest.
Unless a Pay Out Event has occurred, the Accumulation
Period will begin at the close of business on the last day of the Revolving
Period and will end on the earlier of (i) the commencement of the Rapid
Amortization Period, (ii) payment of the Invested Amount in full and (iii) the
Scheduled Series 1997-5 Termination Date. On each Transfer Date following the
commencement of the Accumulation Period, prior to the earlier of the payment of
the Class A Invested Amount in full and the commencement of the Rapid
Amortization Period, the Trustee will deposit in the Principal Funding Account
an amount equal to the least of (a) Available Investor Principal Collections
with respect to the preceding Monthly Period, (b) the applicable Controlled
Deposit Amount and (c) the Class A Adjusted Invested Amount prior to any such
deposit on such day. Amounts in the Principal Funding Account will be paid to
the Class A Certificateholders on the Class A Scheduled Payment Date. After the
full amount of the Class A Invested Amount has been deposited in the Principal
Funding Account and beginning with the Transfer Date related to the Class B
Principal Commencement Date, prior to the commencement of the Rapid Amortization
Period, the Trustee will deposit in the Principal Funding Account an amount
equal to the least of (a) the Available Investor Principal Collections with
respect to the preceding Monthly Period remaining after application thereof to
the Class A Invested Amount, (b) the applicable Controlled Deposit Amount (minus
the Class A Monthly Principal with respect to such Transfer Date) and (c) the
Class B Adjusted Invested Amount prior to any such deposit on such day. After
payment in full of the Class A Invested Amount, amounts in the Principal Funding
Account will be paid to the Class B Certificateholders on the Class B Scheduled
Payment Date. After the full amount of the sum of the Class A Invested Amount
and the Class B Invested Amount has been deposited in the Principal Funding
Account, prior to the
<PAGE>
commencement of the Rapid Amortization Period, the Trustee will deposit in the
Principal Funding Account an amount equal to the least of (a) the Available
Investor Principal Collections with respect to the preceding Monthly Period
remaining after application thereof to the Class A Invested Amount and the Class
B Invested Amount, (b) the applicable Controlled Deposit Amount (minus the Class
A Monthly Principal and the Class B Monthly Principal with respect to such
Transfer Date) and (c) the CIA Adjusted Invested Amount prior to any such
deposit on such day. After payment in full of the Class A Invested Amount and
the Class B Invested Amount, amounts in the Principal Funding Account will be
paid to the CIA Certificateholders on the CIA Scheduled Payment Date. During the
Accumulation Period, the portion of Available Investor Principal Collections not
applied to Class A Monthly Principal, Class B Monthly Principal or CIA Monthly
Principal on a Transfer Date will generally be treated as Excess Principal
Collections.
Upon written notice to the Trustee and satisfaction of
certain conditions, the Servicer may elect to postpone the commencement of the
Accumulation Period, and extend the length of the Revolving Period.
Unless the Rapid Amortization Period has begun, funds
on deposit in the Principal Funding Account will be distributed to the Class A
Certificateholders on the August 2004 Distribution Date (the "Class A Scheduled
Payment Date"). If the aggregate principal amount of deposits made to the
Principal Funding Account are insufficient to pay in full the Class A Invested
Amount on the Class A Scheduled Payment Date the Rapid Amortization Period will
commence and on each Distribution Date thereafter until the Class A Invested
Amount is paid in full, the Class A Certificateholders will receive
distributions of Class A Monthly Principal and Class A Monthly Interest.
If a Pay Out Event occurs during the Accumulation
Period, the Rapid Amortization Period will commence and any amount on deposit in
the Principal Funding Account will be distributed to the Certificateholders of
each Class of Certificates, sequentially, in order of seniority, on the
Distribution Date following the Monthly Period in which the Rapid Amortization
Period commences.
During the period beginning on the earlier of the day
on which a Pay Out Event occurs and
<PAGE>
the Class A Scheduled Payment Date if the Invested Amount is not paid in full on
such date, and ending on the earlier of (i) the date on which the Class A
Invested Amount, the Class B Invested Amount and the CIA Invested Amount have
been paid in full and (ii) the Scheduled Series 1997-5 Termination Date (the
"Rapid Amortization Period"), collections of Principal Receivables allocated to
the Invested Amount will no longer be paid to the holder of the Exchangeable
Transferor Certificate or to the holders of the certificates of any other
Series or, if the Accumulation Period has commenced, deposited in the Principal
Funding Account, but instead will be distributed to the Class A
Certificateholders and, following payment in full of the Class A Invested
Amount, to the Class B Certificateholders, and, following payment in full of the
Class B Invested Amount, to the CIA Certificateholders, monthly on each
Distribution Date beginning with the Distribution Date in the month following
the commencement of the Rapid Amortization Period.
Subject to the Agreement, payments of principal are
limited to the unpaid Class A Invested Amount of the Class A Certificates, which
may be less than the unpaid balance of the Class A Certificates pursuant to the
terms of the Agreement. All principal of and interest on the Class A
Certificates is due and payable no later than April 17, 2007 (or if such day is
not a Business Day, the next succeeding Business Day) (the "Scheduled Series
1997-5 Termination Date"). After the Scheduled Series 1997-5 Termination Date,
neither the Trust nor the Transferor will have any further obligation to
distribute principal or interest on the Class A Certificates.
The transfer of this Certificate shall be registered
in the Certificate Register upon surrender of this Certificate for registration
of transfer at any office or agency maintained by the Transfer Agent and
Registrar 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 or such Certificateholder's attorney duly authorized in
writing, and thereupon one or more new Class A Certificates of authorized
denominations and for the same aggregate Undivided Interests will be issued to
the designated transferee or transferees.
As provided in the Agreement and subject to certain
limitations therein set forth, Class A Certificates are exchangeable for new
Class A Certificates
<PAGE>
evidencing like aggregate Undivided Interests, as requested by the Class A
Certificateholder surrendering such Class A Certificates. No service charge may
be imposed for any such exchange but the Transferor, Servicer, or Transfer Agent
and Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith.
The Transferor, the Servicer, the Trustee, the Paying
Agent and the Transfer Agent and Registrar, and any agent of any of them, may
treat the person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Transferor, the Servicer, the Trustee,
the Paying Agent and the Transfer Agent and Registrar, nor any agent of any of
them or of any such agent, shall be affected by notice to the contrary except in
certain circumstances described in the Agreement.
The Agreement and any Supplement may be amended by the
Transferor, the Servicer and the Trustee, without the consent of
certificateholders of any Series then outstanding for any purpose, provided that
(i) the Transferor shall deliver an opinion of counsel acceptable to the
Trustee to the effect that such amendment will not adversely affect in any
material respect the interest of such certificateholders, and (ii) such
amendment will not result in a withdrawal or reduction of the rating of any
outstanding Series.
The Agreement and the Series 1997-5 Supplement may be
amended by the Transferor, the Servicer and the Trustee with the consent of the
holders of certificates evidencing undivided interests aggregating not less than
66-2/3% of the investor interests of all Series adversely affected, for the
purpose of adding any provisions to, changing in any manner or eliminating any
of the provisions of the Agreement or the Series 1997-5 Supplement or of
modifying in any manner the rights of certificateholders of any then outstanding
Series. No such amendment, however, may (a) reduce in any manner the amount of,
or delay the timing of, distributions required to be made on any such Series,
(b) change the definition of or the manner of calculating the interest of any
certificateholder of such Series, or (c) reduce the aforesaid percentage of
undivided interests the holders of which are required to consent to any such
amendment, in each case without the consent of all certificateholders of all
Series adversely affected.
<PAGE>
Promptly following the execution of any amendment to the Agreement, the Trustee
will furnish written notice of the substance of such amendment to each Class A
Certificateholder.
<PAGE>
Unless the certificate of authentication hereon has
been executed by or on behalf of the Trustee, by manual signature, this
Certificate shall not be entitled to any benefit under the Agreement, or be
valid for any purpose.
IN WITNESS WHEREOF, the Transferor has caused this
Certificate to be duly executed on this 7th day of August, 1997.
FIRST USA BANK
By:____________________________
Name: Peter W. Atwater
Title: Executive Vice
President
CERTIFICATE OF AUTHENTICATION
This is one of the Class A Certificates referred to in
the within-mentioned Pooling and Servicing Agreement.
THE BANK OF NEW YORK,
as Authenticating Agent
Date: August 7, 1997
By:__________________________
Name: Reyne Macadaeg
Title: Assistant Vice
President
<PAGE>
EXHIBIT B
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
EACH PURCHASER REPRESENTS AND WARRANTS FOR THE BENEFIT
OF FIRST USA BANK AND THE TRUSTEE THAT SUCH PURCHASER IS NOT (I) AN EMPLOYEE
BENEFIT PLAN (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA")) THAT IS SUBJECT TO THE PROVISIONS OF
TITLE I OF ERISA, (II) A PLAN DESCRIBED IN SECTION 4975(e)(1) OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), (III) A GOVERNMENTAL PLAN, AS
DEFINED IN SECTION 3(32) OF ERISA, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE PROVISIONS OF SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE, (IV) AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF A PLAN'S INVESTMENT IN THE ENTITY OR (V) A
PERSON INVESTING "PLAN ASSETS" OF ANY SUCH PLAN (INCLUDING FOR PURPOSES OF
CLAUSES (IV) AND (V), ANY INSURANCE COMPANY GENERAL ACCOUNT, BUT EXCLUDING ANY
ENTITY REGISTERED UNDER THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED).
No. R-1 $___________
Series Termination
Date: April 17, 2007 CUSIP NO. 337435CL3
FIRST USA CREDIT CARD MASTER TRUST CLASS B FLOATING RATE
ASSET BACKED CERTIFICATE, SERIES 1997-5
Evidencing an undivided interest in a trust, the corpus of which consists of
receivables generated from time to time in
<PAGE>
the ordinary course of business in a portfolio of VISA/(R)/ and
MasterCard/(R)*/ credit card accounts generated or to be generated by First USA
Bank (the "Bank").
(Not an interest in or a recourse obligation
of First USA Bank or any affiliate thereof)
This certifies that CEDE & CO. (the
"Certificateholder") is the registered owner of a fractional undivided interest
in the First USA Credit Card Master Trust (the "Trust") issued pursuant to the
Pooling and Servicing Agreement, dated as of September 1, 1992 between the
Bank, as Transferor (the "Transferor") and as Servicer (the "Servicer"), and The
Bank of New York (Delaware), as trustee (the "Trustee") of the Trust (the
"Agreement"; such term to include any Supplement or amendment thereto) as
amended by Assignment No. 30 of Receivables in Additional Accounts dated as of
August 7, 1997 among the Bank, as Transferor and Servicer, the Trustee and The
Bank of New York (Delaware), as trustee of the First USA Credit Card Master
Trust II, and as supplemented by the Series 1997-5 Supplement (the "Series 1997-
5 Supplement"), dated as of August 7, 1997, between the Bank, as Transferor and
Servicer, and the Trustee. The corpus of the Trust consists of all of the
Transferor's right, title and interest in a portfolio of receivables (the
"Receivables") existing in certain VISA(R) and MasterCard(R) revolving credit
card accounts identified in the Agreement from time to time (the "Accounts"),
all Receivables generated under the Accounts from time to time thereafter, all
monies due or to become due and all amounts received with respect to the
Receivables in existence in the Accounts, all monies on deposit in certain bank
accounts (excluding any investment earnings on such deposited amounts except as
set forth in the Series 1997-5 Supplement), and all other assets and interests
constituting the Trust and all proceeds of the foregoing.
Although a summary of certain provisions of the
Agreement is set forth below, this Class B Certificate does not purport to
summarize the Agreement and reference is made to the Agreement for information
with
- --------------------
*
VISA /(R)/ and MasterCard /(R)/ are registered
trademarkes of Visa USA Incorporated and MasterCard
International Incorporated, respectively.
B-2
<PAGE>
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. A copy
of the Agreement may be requested from the Trustee by writing to the Trustee at
The Bank of New York (Delaware), White Clay Center, Route 273, Newark, Delaware,
19711, Attention: Bond Administration. To the extent not defined herein, the
capitalized terms used herein have the meanings ascribed to them in the
Agreement. This Certificate is one of a Series of Certificates entitled
"First USA Credit Card Master Trust Class B Floating Rate Asset Backed
Certificates, Series 1997-5" (the "Class B Certificates"), each of which
represents a fractional undivided interest in the Trust, and is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement, as amended from time to time, the Certificateholder by virtue
of the acceptance hereof assents and by which the Certificateholder is bound.
In the case of any conflict between terms specified in this Class B Certificate
and terms specified in the Agreement, the terms of the Agreement shall govern.
The Transferor has structured the Agreement, the Class
B Certificates and the First USA Credit Card Master Trust Class A Floating Rate
Asset Backed Certificates, Series 1997-5 (the "Class A Certificates") with the
intention that the Class A Certificates and the Class B Certificates will
qualify under applicable tax law as indebtedness, and the Transferor and each
holder of a Class B Certificate (a "Class B Certificateholder") or any interest
therein, by acceptance of its Class B Certificate or any interest therein,
agrees to treat the Class B Certificates for purposes of federal, state, local
and foreign income or franchise taxes and any other tax imposed on or measured
by income, as indebtedness.
The Trust's assets are allocated in part to the
holders of the Class A Certificates, the holders of the Class B Certificates and
the holders of the First USA Credit Card Master Trust CIA Certificates, Series
1997-5 (the "CIA Certificates") (such holders together the "Investor
Certificateholders") with the remainder allocated to holders of other Series of
Certificates issued by the Trust, if any, and to the Transferor. In addition to
the Class A Certificates, the Class B Certificates and the CIA Certificates, the
Exchangeable Transferor Certificate will be reissued pursuant to the Agreement
and will represent the Transferor's interest in the Trust. The reissued
Exchange-
B-3
<PAGE>
able Transferor Certificate will represent the interest in the Principal
Receivables not represented by the Class A Certificates, the Class B
Certificates and the CIA Certificates (together the "Investor Certificates") or
any other Series of Certificates. The Exchangeable Transferor Certificate may
be exchanged by the Transferor pursuant to the Agreement for one or more Series
of Certificates and a reissued Exchangeable Transferor Certificate upon the
conditions set forth in the Agreement.
The Class B Initial Invested Amount is $58,735,000 The Class B
Invested Amount for any monthly Distribution Date will be an amount equal to (i)
$58,735,000, minus (ii) the aggregate amount of principal payments made to the
Class B Certificateholders prior to such Distribution Date, minus (iii) the
aggregate amount of Class B Investor Charge-Offs for all prior Distribution
Dates, minus (iv) the aggregate amount of Reallocated Class B Principal
Collections for which the CIA Invested Amount has not been reduced for all prior
Distribution Dates, minus (v) an amount equal to the aggregate amount by which
the Class B Invested Amount has been reduced to fund the Class A Investor
Default Amount on all prior Distribution Dates as described in the Agreement and
plus (vi) the aggregate amount of Excess Finance Charge Collections and certain
other amounts allocated and available for purposes of reimbursing amounts
deducted pursuant to clauses (iii), (iv) and (v).
The Class B Certificates will bear interest at the rate of 5.95891%
per annum on the Class B Initial Invested Amount from August 7, 1997 through
August 16, 1997, and at a per annum rate of 0.33% in excess of LIBOR as
determined by the Trustee (a) on August 14, 1997 for the period from August 17,
1997 through September 16, 1997 and (b) on the related LIBOR Determination Date
for each Interest Period thereafter (each such rate as in effect from time to
time, the "Class B Certificate Rate"). Interest will be distributed to the
extent of available funds on September 17, 1997, and on the seventeenth day of
each month thereafter, or if such day is not a Business Day, the next succeeding
Business Day until the earlier of the day on which the Class B Invested Amount
is paid in full and the Scheduled Series 1997-5 Termination Date (each such date
a "Distribution Date"), in an amount equal to the product of (a) the actual
number of days in the related Interest Period divided by 360, (b) the Class B
Certificate Rate and (c) the
B-4
<PAGE>
Class B Invested Amount on the last day of the Monthly Period immediately
preceding such Distribution Date. Interest for a Distribution Date will accrue
from and including the previous Distribution Date (or in the case of the first
Distribution Date, from and including the Closing Date), to, and including, the
day immediately preceding the current Distribution Date. Interest payments will
be made from Collections of Finance Charge Receivables and, in certain
circumstances, from Reallocated Principal Collections on September 17, 1997 and
each Distribution Date thereafter until the Series 1997-5 Termination Date.
Interest will be payable monthly on each Distribution Date to the Class B
Certificateholders of record as of the related Record Date. The Record Date with
respect to any Distribution Date shall be the last day of the calendar month
preceding such Distribution Date.
As described in the Agreement, Collections of Principal
Receivables with respect to any Monthly Period will be allocated on the related
Determination Date on the basis of the aggregate Investor Percentage of all
Series and the Transferor Percentage with respect to the Principal Receivables.
Such allocation will be performed both during the Revolving Period and any
Amortization Period. Throughout the existence of the Trust, the Servicer will
allocate to the Transferor, as holder of the Exchangeable Transferor
Certificate, an amount equal to the Transferor Percentage of the aggregate
amount of Collections of Finance Charge Receivables and Principal Receivables
for each Monthly Period. During the Revolving Period relating to the Investor
Certificates, the Class B Floating Allocation Percentage of Collections of
Principal Receivables and the CIA Floating Allocation Percentage of Collections
of Principal Receivables will be applied first as Reallocated Principal
Collections, to the extent required, and any remaining amounts together with the
Class A Floating Allocation Percentage of Principal Receivables will be
distributed first to the certificateholders of other Series to the extent of the
amount of Principal Shortfalls, if any, and then to the Transferor in an amount
not to exceed the amount of the Transferor Interest.
Unless a Pay Out Event has occurred, the Accumulation
Period will begin at the close of business on the last day of the Revolving
Period and will end on the earlier of (i) the commencement of the Rapid
Amortization Period, (ii) payment of the Invested Amount in
B-5
<PAGE>
full and (iii) the Scheduled Series 1997-5 Termination Date. On each Transfer
Date following the commencement of the Accumulation Period, prior to the earlier
of the payment of the Class A Invested Amount in full and the commencement of
the Rapid Amortization Period, the Trustee will deposit in the Principal Funding
Account an amount equal to the least of (a) Available Investor Principal
Collections with respect to the preceding Monthly Period, (b) the applicable
Controlled Deposit Amount and (c) the Class A Adjusted Invested Amount prior to
any such deposit on such day. Amounts in the Principal Funding Account will be
paid to the Class A Certificateholders on the Class A Scheduled Payment Date.
After the full amount of the Class A Invested Amount has been deposited in the
Principal Funding Account and beginning with the Transfer Date related to the
Class B Principal Commencement Date, prior to the commencement of the Rapid
Amortization Period, the Trustee will deposit in the Principal Funding Account
an amount equal to the least of (a) the Available Investor Principal Collections
with respect to the preceding Monthly Period remaining after application thereof
to the Class A Invested Amount, (b) the applicable Controlled Deposit Amount
(minus the Class A Monthly Principal with respect to such Transfer Date) and (c)
the Class B Adjusted Invested Amount prior to any such deposit on such day.
After payment in full of the Class A Invested Amount, amounts in the Principal
Funding Account will be paid to the Class B Certificateholders on the Class B
Scheduled Payment Date. After the full amount of the sum of the Class A Invested
Amount and the Class B Invested Amount has been deposited in the Principal
Funding Account, prior to the commencement of the Rapid Amortization Period, the
Trustee will deposit in the Principal Funding Account an amount equal to the
least of (a) the Available Investor Principal Collections with respect to the
preceding Monthly Period remaining after application thereof to the Class A
Invested Amount and the Class B Invested Amount, (b) the applicable Controlled
Deposit Amount (minus the Class A Monthly Principal and the Class B Monthly
Principal with respect to such Transfer Date) and (c) the CIA Adjusted Invested
Amount prior to any such deposit on such day. After payment in full of the Class
A Invested Amount and the Class B Invested Amount, amounts in the Principal
Funding Account will be paid to the CIA Certificateholders on the CIA Scheduled
Payment Date. During the Accumulation Period, the portion of Available Investor
Principal Collections not applied to Class A Monthly Principal, Class B Monthly
Principal or CIA
B-6
<PAGE>
Monthly Principal on a Transfer Date will generally be treated as Excess
Principal Collections.
Upon written notice to the Trustee and satisfaction of
certain conditions, the Servicer may elect to postpone the commencement of the
Accumulation Period, and extend the length of the Revolving Period.
On the August 2004 Distribution Date if the Class A
Invested Amount is paid in full, Available Investor Principal Collections and
Excess Principal Collections allocable to Series 1997-5 will be used to pay the
Class B Invested Amount as described in the Agreement. If the Available Investor
Principal Collections and Excess Principal Collections allocable to Series 1997-
5 are insufficient to pay in full the Class B Invested Amount on the August 2004
Distribution Date, the Rapid Amortization Period will commence.
If a Pay Out Event occurs during the Accumulation
Period, the Rapid Amortization Period will commence and any amount on deposit in
the Principal Funding Account will be distributed to the Certificateholders of
each Class of Certificates, sequentially, in order of seniority, on the
Distribution Date following the Monthly Period in which the Rapid Amortization
Period commences.
During the period beginning on the earlier of the day
on which a Pay Out Event occurs and the Class A Scheduled Payment Date if the
Invested Amount is not paid in full on such date, and ending on the earlier of
(i) the date on which the Class A Invested Amount, the Class B Invested Amount
and the CIA Invested Amount have been paid in full and (ii) the Scheduled Series
1997-5 Termination Date (the "Rapid Amortization Period"), collections of
Principal Receivables allocated to the Invested Amount will no longer be paid to
the holder of the Exchangeable Transferor Certificate or to the holders of the
certificates of any other Series or, if the Accumulation Period has commenced,
deposited in the Principal Funding Account, but instead will be distributed to
the Class A Certificateholders and, following payment in full of the Class A
Invested Amount, to the Class B Certificateholders, and, following payment in
full of the Class B Invested Amount, to the CIA Certificateholders, monthly on
each Distribution Date beginning with the Distribution Date in the month
following the commencement of the Rapid Amortization Period.
B-7
<PAGE>
Principal payments on the Class B Certificates will be,
during the Accumulation Period, funded by deposits to the Principal Funding
Account or, during the Rapid Amortization Period, made monthly, and will
commence on the date (the "Class B Principal Commencement Date") which is (a)
with respect to the Accumulation Period, the first Distribution Date on which an
amount equal to the Class A Invested Amount has been deposited in the Principal
Funding Account and allocated to the Class A Certificates or (b) with respect to
the Rapid Amortization Period, the Distribution Date on which the Class A
Invested Amount has been paid in full or, if there are no Principal Receivables
allocable to the Investor Certificates remaining after payments have been made
to the Class A Certificates on such Distribution Date, the Distribution Date
following the Distribution Date on which the Class A Invested Amount has been
paid in full. After payment in full of the Class A Invested Amount, amounts
deposited in the Principal Funding Account for the benefit of the Class B
Certificates will be paid to the Class B Certificateholders on the August 2004
Distribution Date and on each Distribution Date during the Rapid Amortization
Period beginning with the Class B Principal Commencement Date, and thereafter
until the payment in full of the Class B Invested Amount or the termination of
the Trust, the Percentage Allocation of all collections of Principal Receivables
and certain other amounts for the preceding Monthly Period remaining after
payment in full of the Class A Invested Amount will be distributed to the Class
B Certificateholders.
Subject to the Agreement, payments of principal are
limited to the unpaid Class B Invested Amount of the Class B Certificates,
which may be less than the unpaid balance of the Class B Certificates pursuant
to the terms of the Agreement. All principal of and interest on the Class B
Certificates is due and payable no later than April 17, 2007 (or if such day is
not a Business Day, the next succeeding Business Day) (the "Scheduled Series
1997-5 Termination Date"). After the Scheduled Series 1997-5 Termination Date,
neither the Trust nor the Transferor will have any further obligation to
distribute principal or interest on the Class B Certificates.
The transfer of this Certificate shall be registered
in the Certificate Register upon surrender of this Certificate for registration
of transfer at any office or agency maintained by the Transfer Agent and
B-8
<PAGE>
Registrar 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 or such Certificateholder's attorney duly authorized in
writing, and thereupon one or more new Class B Certificates of authorized
denominations and for the same aggregate Undivided Interests will be issued to
the designated transferee or transferees.
As provided in the Agreement and subject to certain
limitations therein set forth, Class B Certificates are exchangeable for new
Class B Certificates evidencing like aggregate Undivided Interests, as requested
by the Class B Certificateholder surrendering such Class B Certificates. No
service charge may be imposed for any such exchange but the Transferor,
Servicer, or Transfer Agent and Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith.
The Transferor, the Servicer, the Trustee, the Paying
Agent and the Transfer Agent and Registrar, and any agent of any of them, may
treat the person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Transferor, the Servicer, the Trustee,
the Paying Agent and the Transfer Agent and Registrar, nor any agent of any of
them or of any such agent, shall be affected by notice to the contrary except in
certain circumstances described in the Agreement.
The Agreement and any Supplement may be amended by the
Transferor, the Servicer and the Trustee, without the consent of
certificateholders of any Series then outstanding for any purpose, provided that
(i) the Transferor shall deliver an opinion of counsel acceptable to the
Trustee to the effect that such amendment will not adversely affect in any
material respect the interest of such certificateholders, and (ii) such
amendment will not result in a withdrawal or reduction of the rating of any
outstanding Series.
The Agreement and the Series 1997-5 Supplement may be
amended by the Transferor, the Servicer and the Trustee with the consent of the
holders of certificates evidencing undivided interests aggregating not less than
66-2/3% of the investor interests of all Series adversely affected, for the
purpose of adding any provisions to, changing in any manner or eliminating any
of the provi-
B-9
<PAGE>
sions of the Agreement or the Series 1997-5 Supplement or of modifying in any
manner the rights of certificateholders of any then outstanding Series. No such
amendment, however, may (a) reduce in any manner the amount of, or delay the
timing of, distributions required to be made on any such Series, (b) change the
definition of or the manner of calculating the interest of any
certificateholder of such Series, or (c) reduce the aforesaid percentage of
undivided interests the holders of which are required to consent to any such
amendment, in each case without the consent of all certificateholders of all
Series adversely affected. Promptly following the execution of any amendment to
the Agreement, the Trustee will furnish written notice of the substance of such
amendment to each Class B Certificate holder.
B-10
<PAGE>
Unless the certificate of authentication hereon has
been executed by or on behalf of the Trustee, by manual signature, this
Certificate shall not be entitled to any benefit under the Agreement, or be
valid for any purpose.
IN WITNESS WHEREOF, the Transferor has caused this
Certificate to be duly executed on this 7th day of August, 1997.
FIRST USA BANK
By:____________________________
Name: Peter W. Atwater
Title: Executive Vice
President
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to
in the within-mentioned Pooling and Servicing Agreement.
THE BANK OF NEW YORK,
as Authenticating Agent
Date: August 7, 1997
By:__________________________
Name: Reyne Macadaeg
Title: Assistant Vice
President
<PAGE>
EXHIBIT C
EACH PURCHASER REPRESENTS AND WARRANTS FOR THE BENEFIT
OF FIRST USA BANK AND THE TRUSTEE THAT SUCH PURCHASER EITHER (A) IS NOT (I) AN
"EMPLOYEE BENEFIT PLAN" (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA")), INCLUDING GOVERNMENTAL PLANS
AND CHURCH PLANS, (II) A PLAN DESCRIBED IN SECTION 4975(e)(1) OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), INCLUDING INDIVIDUAL RETIREMENT
ACCOUNTS AND KEOGH PLANS, OR (III) ANY OTHER ENTITY WHOSE UNDERLYING ASSETS
INCLUDE "PLAN ASSETS" (AS DEFINED IN UNITED STATES DEPARTMENT OF LABOR ("DOL")
REGULATION SECTION 2510.3-101, 29 C.F.R. (S)2510.3-101 OR OTHERWISE UNDER ERISA)
BY REASON OF A PLAN'S INVESTMENT IN THE ENTITY, INCLUDING, WITHOUT LIMITATION,
AN INSURANCE COMPANY GENERAL ACCOUNT OR (B) IT IS AN INSURANCE COMPANY ACTING ON
BEHALF OF ITS GENERAL ACCOUNT AND (I) ON THE DATE IT ACQUIRES THE CIA
CERTIFICATES, LESS THAN 25% OF THE ASSETS OF SUCH GENERAL ACCOUNT (AS REASONABLY
DETERMINED BY SUCH INSURANCE COMPANY) CONSTITUTE "PLAN ASSETS" FOR PURPOSES OF
TITLE I OF ERISA AND SECTION 4975 OF THE CODE, AND (II) IF, AFTER THE INITIAL
ACQUISITION OF THE CIA CERTIFICATES, AT ANY TIME DURING ANY CALENDAR QUARTER
25% OR MORE OF THE ASSETS OF SUCH GENERAL ACCOUNT (AS REASONABLY DETERMINED BY
SUCH INSURANCE COMPANY NO LESS FREQUENTLY THAN EACH CALENDAR QUARTER) CONSTITUTE
"PLAN ASSETS" FOR PURPOSES OF TITLE I OF ERISA OR SECTION 4975 OF THE CODE AND
NO EXEMPTION OR EXCEPTION FROM THE PROHIBITED TRANSACTION RULES APPLIES TO THE
CONTINUED HOLDING OF THE CIA CERTIFICATES UNDER SECTION 401(c) OF ERISA AND THE
FINAL REGULATIONS THEREUNDER OR UNDER AN EXEMPTION OR REGULATION ISSUED BY THE
DOL UNDER ERISA, THEN SUCH INSURANCE COMPANY AGREES TO DISPOSE OF ALL OF THE CIA
CERTIFICATES THEN HELD IN ITS GENERAL ACCOUNT BY THE END OF THE NEXT FOLLOWING
CALENDAR QUARTER.
THIS CERTIFICATE MAY NOT BE ACQUIRED, SOLD, TRADED OR
TRANSFERRED, NOR MAY AN INTEREST IN THIS CERTIFICATE BE MARKETED, ON OR THROUGH
AN "ESTABLISHED SECURITIES MARKET" WITHIN THE MEANING OF SECTION 7704(b)(1) OF
THE CODE AND ANY PROPOSED, TEMPORARY OR FINAL TREASURY REGULATION THEREUNDER,
INCLUDING, WITHOUT LIMITATION, AN OVER-THE-COUNTER-MARKET OR AN INTERDEALER
QUOTATION SYSTEM THAT REGULARLY DISSEMINATES FIRM BUY OR SELL QUOTATIONS.
<PAGE>
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY STATE SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS
CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER
APPLICABLE LAWS AND ONLY (1) TO THE TRANSFEROR, (2) TO A LIMITED NUMBER OF
INSTITUTIONAL "ACCREDITED INVESTORS" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR
(7) UNDER THE SECURITIES ACT) AND IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (UPON DELIVERY OF THE DOCUMENTATION REQUIRED
BY THE POOLING AND SERVICING AGREEMENT AND, IF THE TRUSTEE SO REQUIRES, AN
OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE) OR (3) PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A ("QIB") PURCHASING
FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF A QIB, WHOM
THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A. EACH CERTIFICATE OWNER BY
ACCEPTING A BENEFICIAL INTEREST IN THIS CERTIFICATE IS DEEMED TO REPRESENT THAT
IT IS EITHER A QIB PURCHASING FOR ITS OWN ACCOUNT, A QIB PURCHASING FOR THE
ACCOUNT OF ANOTHER QIB OR AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN
RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT). THIS CERTIFICATE WILL
NOT BE ACCEPTED FOR REGISTRATION OF TRANSFER EXCEPT UPON PRESENTATION OF
EVIDENCE SATISFACTORY TO THE TRANSFER AGENT AND REGISTRAR THAT THE RESTRICTIONS
ON TRANSFER SET FORTH IN THE SERIES 1997-5 SUPPLEMENT HAVE BEEN COMPLIED WITH.
THIS CERTIFICATE MAY NOT BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
WITHOUT THE PRIOR WRITTEN CONSENT OF EACH OF THE TRANSFEROR AND THE SERVICER AND
UNLESS AND UNTIL THE TRUSTEE SHALL HAVE RECEIVED THE CERTIFICATIONS REQUIRED BY
THE SERIES 1997-5 SUPPLEMENT.
No. R-1 $___________
Series Termination
Date: April 17, 2007 CUSIP NO. 337435CM1
C-2
<PAGE>
FIRST USA CREDIT CARD MASTER TRUST
CIA CERTIFICATE, SERIES 1997-5
Evidencing an undivided interest in a trust, the corpus of which consists of
receivables generated from time to time in the ordinary course of business in a
portfolio of VISA/(R)/ and MasterCard/(R)//*/ credit card accounts generated
or to be generated by First USA Bank (the "Bank").
(Not an interest in or a recourse obligation
of First USA Bank or any affiliate thereof)
This certifies that _____________________ (the
"Certificateholder") is the registered owner of a fractional undivided interest
in the First USA Credit Card Master Trust (the "Trust") issued pursuant to the
Pooling and Servicing Agreement, dated as of September 1, 1992 between the Bank,
as Transferor (the "Transferor") and as Servicer (the "Servicer"), and The Bank
of New York (Delaware), as trustee (the "Trustee") of the Trust (the
"Agreement"; such term to include any Supplement or amendment thereto) as
amended by Assignment No. 30 of Receivables in Additional Accounts dated as of
August 7, 1997 among the Bank, as Transferor and Servicer, the Trustee and The
Bank of New York (Delaware), as trustee of the First USA Credit Card Master
Trust II, and as supplemented by the Series 1997-5 Supplement (the "Series 1997-
5 Supplement"), dated as of August 7, 1997, between the Bank, as Transferor and
Servicer, and the Trustee. The corpus of the Trust consists of all of the
Transferor's right, title and interest in a portfolio of receivables (the
"Receivables") existing in certain VISA/(R)/ and MasterCard/(R)/ revolving
credit card accounts identified in the Agreement from time to time (the
"Accounts"), all Receivables generated under the Accounts from time to time
thereafter, all monies due or to become due and all amounts received with
respect to the Receivables in existence in the Accounts, all monies on deposit
in certain bank accounts (excluding any investment earnings on such deposited
amounts except as set forth in the Series 1997-5 Supplement), and all other
assets and interests constituting the Trust and all proceeds of the foregoing.
- --------------------
/*/ VISA/(R)/ and MasterCard/(R)/ are registered trademarks
of Visa USA Incorporated and MasterCard International
Incorporated, respectively.
C-3
<PAGE>
Although a summary of certain provisions of the
Agreement is set forth below, this CIA Certificate does not purport to summarize
the Agreement or the Spread Account Agreement, dated as of August 7, 1997,
between the Trustee, the Transferor, the Servicer and The Bank of New York, as
initial collateral agent (the "Spread Account Agreement") and reference is made
to the Agreement and the Spread Account Agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. A copy of the
Agreement may be requested from the Trustee by writing to the Trustee at The
Bank of New York (Delaware), White Clay Center, Route 273, Newark, Delaware,
19711, Attention: Bond Administration. To the extent not defined herein, the
capitalized terms used herein have the meanings ascribed to them in the
Agreement or in the Spread Account Agreement. This Certificate is one of a
Series of Certificates entitled "First USA Credit Card Master Trust CIA
Certificates, Series 1997-5" (the "CIA Certificates"), each of which represents
a fractional undivided interest in the Trust, and is issued under and is subject
to the terms, provisions and conditions of the Agreement and the Spread Account
Agreement, to which Agreement and Spread Account Agreement, as amended from time
to time, the Certificateholder by virtue of the acceptance hereof assents and by
which the Certificateholder is bound. In the case of any conflict between terms
specified in this CIA Certificate and terms specified in the Agreement or the
Spread Account Agreement, the terms of the Agreement and the Spread Account
Agreement shall govern.
The Transferor has structured the Agreement, the CIA
Certificates, the First USA Credit Card Master Trust Class A Floating Rate Asset
Backed Certificates, Series 1997-5 (the "Class A Certificates") and the First
USA Credit Card Master Trust Class B Floating Rate Asset Backed Certificates,
Series 1997-5 (the "Class B Certificates") with the intention that the CIA
Certificates, the Class A Certificates and the Class B Certificates will qualify
under applicable tax law as indebtedness, and the Transferor and each holder of
a CIA Certificate (a "CIA Certificateholder") or any interest therein, by
acceptance of its CIA Certificate or any interest therein, agrees to treat the
CIA Certificates for purposes of federal, state, local and foreign income or
franchise taxes and any other tax imposed on or measured by income, as
indebtedness.
C-4
<PAGE>
The Trust's assets are allocated in part to the holders
of the Class A Certificates, the holders of the Class B Certificates and the
holders of the CIA Certificates (such holders together the "Investor
Certificateholders") with the remainder allocated to holders of other Series of
Certificates issued by the Trust and outstanding from time to time and to the
Transferor. In addition to the Class A Certificates, the Class B Certificates
and the CIA Certificates, the Exchangeable Transferor Certificate will be
reissued pursuant to the Agreement and will represent the Transferor's interest
in the Trust. The reissued Exchangeable Transferor Certificate will represent
the interest in the Principal Receivables not represented by the Class A
Certificates, the Class B Certificates and the CIA Certificates (together the
"Investor Certificates") or any other Series of Certificates. The Exchangeable
Transferor Certificate may be exchanged by the Transferor pursuant to the
Agreement for one or more Series of Certificates and a reissued Exchangeable
Transferor Certificate upon the conditions set forth in the Agreement.
The CIA Initial Invested Amount is $74,395,000. The CIA
Invested Amount for any monthly Distribution Date will be an amount equal to (i)
the CIA Initial Invested Amount, minus (ii) the aggregate amount of principal
payments made to the CIA Certificateholders prior to such Distribution Date,
minus (iii) the aggregate amount of CIA Investor Charge-Offs for all prior
Distribution Dates allocated to the CIA Certificates, minus (iv) the aggregate
amount of Reallocated Principal Collections for all prior Distribution Dates
which have been used to fund the Class A Required Amount or the Class B Required
Amount allocated to the CIA Certificates, minus (v) an amount equal to the
aggregate amount by which the CIA Invested Amount has been reduced to fund the
Class A Investor Default Amount and the Class B Investor Default Amount on all
prior Distribution Dates as described in the Agreement and allocated to the CIA
Certificates and plus (vi) the aggregate amount of Excess Finance Charge
Collections and certain other amounts allocated and available for purposes of
reimbursing amounts deducted pursuant to the foregoing clauses (ii), (iii) and
(iv); provided, however, that the CIA Invested Amount may not be reduced below
zero.
The CIA Certificates will bear interest at the rate of
____% per annum (the "CIA Certificate Rate"). Interest will be distributed to
the extent of
C-5
<PAGE>
available funds on September 17, 1997, and on the seventeenth day of each month
thereafter, or if such day is not a Business Day, the next succeeding Business
Day until the earlier of the day on which the CIA Invested Amount is paid in
full and the Scheduled Series 1997-5 Termination Date (each such date a
"Distribution Date"), in an amount equal to one-twelfth of the product of the
CIA Certificate Rate and the CIA Invested Amount on the last day of the Monthly
Period immediately preceding such Distribution Date; provided, however, that
with respect to the first Distribution Date, CIA Monthly Interest shall be equal
to the product of (a) the CIA Certificate Rate, (b) a fraction the numerator of
which is 40 and the denominator of which is 360, and (c) the CIA Initial
Invested Amount. Interest for a Distribution Date will accrue from and including
the previous Distribution Date (or in the case of the first Distribution Date,
from and including the Closing Date), to, and including, the day immediately
preceding the current Distribution Date. Interest will be payable monthly on
each Distribution Date to the CIA Certificateholders of record as of the related
Record Date in accordance with the provisions of the Spread Account Agreement.
The Record Date with respect to any Distribution Date shall be the last day of
the calendar month preceding such Distribution Date.
The Servicer will establish and maintain a "Spread
Account" with The Bank of New York, as collateral agent (the "Collateral Agent")
or a Qualified Institution which at all times has a short-term rating of "P-1"
by Moody's and "A-1" by Standard & Poor's for the benefit of the CIA
Certificateholders and First USA Bank as holder of the Transferor Interest,
pursuant to the Spread Account Agreement. Amounts on deposit in the Spread
Account will be used to fund shortfalls in amounts available to fund the CIA
Required Amount and to make payments to the CIA Certificateholders, following
payment in full of the Class A Invested Amount and the Class B Invested Amount,
of the Repayment Amount as provided in the Spread Account Agreement. Under
certain circumstances described in the Spread Account Agreement, the Spread
Account will be funded by Excess Finance Charge Collections and in certain
circumstances such amounts may be released from the Spread Account. On the date
on which all amounts due to the Certificateholders have been paid in full, all
amounts, if any, then remaining in the Spread Account shall be distributed to
the holder of the Exchangeable Transferor Certificate or the spread replacement
amount providers, as appropriate.
C-6
<PAGE>
As described in the Agreement, Collections of Principal
Receivables with respect to any Monthly Period will be allocated on the related
Determination Date on the basis of the aggregate Investor Percentage of all
Series and the Transferor Percentage with respect to the Principal Receivables.
Such allocation will be performed both during the Revolving Period and any
Amortization Period. Throughout the existence of the Trust, the Servicer will
allocate to the Transferor, as holder of the Exchangeable Transferor
Certificate, an amount equal to the Transferor Percentage of the aggregate
amount of Collections of Finance Charge Receivables and Principal Receivables
for each Monthly Period. During the Revolving Period relating to the Investor
Certificates, the Class B Floating Allocation Percentage of Collections of
Principal Receivables and the CIA Floating Allocation Percentage of Collections
of Principal Receivables will be applied first as Reallocated Principal
Collections, to the extent required, and any remaining amounts together with the
Class A Floating Allocation Percentage of Principal Receivables will be
distributed first to the certificateholders of other Series to the extent of the
amount of Principal Shortfalls, if any, and then to the Transferor in an amount
not to exceed the amount of the Transferor Interest.
Unless a Pay Out Event has occurred, the Accumulation
Period will begin at the close of business on the last day of the Revolving
Period and will end on the earlier of (i) the commencement of the Rapid
Amortization Period, (ii) payment of the Invested Amount in full and (iii) the
Scheduled Series 1997-5 Termination Date. On each Transfer Date following the
commencement of the Accumulation Period, prior to the earlier of the payment of
the Class A Invested Amount in full and the commencement of the Rapid
Amortization Period, the Trustee will deposit in the Principal Funding Account
an amount equal to the least of (a) Available Investor Principal Collections
with respect to the preceding Monthly Period, (b) the applicable Controlled
Deposit Amount and (c) the Class A Adjusted Invested Amount prior to any such
deposit on such day. Amounts in the Principal Funding Account will be paid to
the Class A Certificateholders on the Class A Scheduled Payment Date. After the
full amount of the Class A Invested Amount has been deposited in the Principal
Funding Account and beginning with the Transfer Date related to the Class B
Principal Commencement Date, prior to the commencement of the Rapid Amortization
Period, the Trustee will deposit in the Princi-
C-7
<PAGE>
pal Funding Account an amount equal to the least of (a) the Available Investor
Principal Collections with respect to the preceding Monthly Period remaining
after application thereof to the Class A Invested Amount, (b) the applicable
Controlled Deposit Amount (minus the Class A Monthly Principal with respect to
such Transfer Date) and (c) the Class B Adjusted Invested Amount prior to any
such deposit on such day. After payment in full of the Class A Invested Amount,
amounts in the Principal Funding Account will be paid to the Class B
Certificateholders on the Class B Scheduled Payment Date. After the full amount
of the sum of the Class A Invested Amount and the Class B Invested Amount has
been deposited in the Principal Funding Account, prior to the commencement of
the Rapid Amortization Period, the Trustee will deposit in the Principal Funding
Account an amount equal to the least of (a) the Available Investor Principal
Collections with respect to the preceding Monthly Period remaining after
application thereof to the Class A Invested Amount and the Class B Invested
Amount, (b) the applicable Controlled Deposit Amount (minus the Class A Monthly
Principal and the Class B Monthly Principal with respect to such Transfer Date)
and (c) the CIA Adjusted Invested Amount prior to any such deposit on such day.
After payment in full of the Class A Invested Amount and the Class B Invested
Amount, amounts in the Principal Funding Account will be paid to the CIA
Certificateholders on the CIA Scheduled Payment Date. Principal on the CIA
Certificates is scheduled to be distributed on the August 2004 Distribution
Date. During the Accumulation Period, the portion of Available Investor
Principal Collections not applied to Class A Monthly Principal, Class B Monthly
Principal or CIA Monthly Principal on a Transfer Date will generally be treated
as Excess Principal Collections.
Upon written notice to the Trustee and satisfaction of
certain conditions, the Servicer may elect to postpone the commencement of the
Accumulation Period, and extend the length of the Revolving Period.
On the August 2004 Distribution Date if the Class A
Invested Amount and the Class B Invested Amount each is paid in full, Available
Investor Principal Collections and Excess Principal Collections allocable to
Series 1997-5 remaining after payment in full of the Class A Invested Amount and
the Class B Invested Amount will be used to pay the CIA Invested Amount until
the earlier of the date on which the CIA Invested Amount is paid in full and the
C-8
<PAGE>
Scheduled Series 1997-5 Termination Date, as described in the Agreement.
If a Pay Out Event occurs during the Accumulation
Period, the Rapid Amortization Period will commence and any amount on deposit in
the Principal Funding Account will be distributed to the Certificateholders of
each Class of Certificates, sequentially, in order of seniority, on the
Distribution Date following the Monthly Period in which the Rapid Amortization
Period commences.
During the period beginning on the earlier of the day
on which a Pay Out Event occurs and the Class A Scheduled Payment Date if the
Invested Amount is not paid in full on such date, and ending on the earlier of
(i) the date on which the Class A Invested Amount, the Class B Invested Amount
and the CIA Invested Amount have been paid in full and (ii) the Scheduled Series
1997-5 Termination Date (the "Rapid Amortization Period"), collections of
Principal Receivables allocated to the Invested Amount will no longer be paid to
the holder of the Exchangeable Transferor Certificate or to the holders of the
certificates of any other Series or, if the Accumulation Period has commenced,
deposited in the Principal Funding Account, but instead will be distributed to
the Class A Certificateholders and, following payment in full of the Class A
Invested Amount, to the Class B Certificateholders, and, following payment in
full of the Class B Invested Amount, to the CIA Certificateholders, monthly on
each Distribution Date beginning with the Distribution Date in the month
following the commencement of the Rapid Amortization Period.
Principal payments on the CIA Certificates will be,
during the Accumulation Period, funded by deposits to the Principal Funding
Account or, during the Rapid Amortization Period, made monthly, and will
commence on the date (the "CIA Principal Commencement Date") which is (a) with
respect to the Accumulation Period, the first Distribution Date on which an
amount equal to the sum of the Class A Invested Amount and the Class B Invested
Amount has been deposited in the Principal Funding Account and allocated to the
Class A Certificates and the Class B Certificates or (b) with respect to the
Rapid Amortization Period, the Distribution Date on which the Class A Invested
Amount and the Class B Invested Amount have each been paid in full or, if there
are no Principal Receivables allocable to the Investor Certificates remaining
after payments have been
C-9
<PAGE>
made to the Class A Certificates and the Class B Certificates on such
Distribution Date, the Distribution Date following the Distribution Date on
which the Class A Invested Amount and the Class B Invested Amount have each been
paid in full. After payment in full of the Class A Invested Amount and the Class
B Invested Amount, amounts deposited in the Principal Funding Account for the
benefit of the CIA Certificates will be paid to the CIA Certificateholders on
the June 2007 Distribution Date and on each Distribution Date during the Rapid
Amortization Period beginning with the CIA Principal Commencement Date, and
thereafter until the payment in full of the CIA Invested Amount or the
termination of the Trust, the Percentage Allocation of all Collections of
Principal Receivables and certain other amounts for the preceding Monthly Period
remaining after payment in full of the Class A Invested Amount and the Class B
Invested Amount will be distributed to the CIA Certificateholders.
Subject to the Agreement, payments of principal are
limited to the unpaid CIA Invested Amount of the CIA Certificates, which may be
less than the unpaid balance of the CIA Certificates pursuant to the terms of
the Agreement and the CIA Investor Principal Balance pursuant to the Spread
Account Agreement. All principal of and interest on the CIA Certificates is due
and payable no later than April 17, 2007 (or if such day is not a Business Day,
the next succeeding Business Day) (the "Scheduled Series 1997-5 Termination
Date"). After the Scheduled Series 1997-5 Termination Date, neither the Trust
nor the Transferor will have any further obligation to distribute principal or
interest on the CIA Certificates.
The transfer of this Certificate shall be registered in
the Certificate Register upon surrender of this Certificate for registration of
transfer at any office or agency maintained by the Transfer Agent and Registrar
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 or such Certificateholder's attorney duly authorized in
writing, and thereupon one or more new CIA Certificates of authorized
denominations and for the same aggregate Undivided Interests will be issued to
the designated transferee or transferees.
As provided in the Agreement and subject to certain
limitations therein set forth, CIA Certificates are exchangeable for new CIA
Certificates evi-
C-10
<PAGE>
dencing like aggregate Undivided Interests, as requested by the CIA
Certificateholder surrendering such CIA Certificates. No service charge may be
imposed for any such exchange but the Transferor, Servicer, or Transfer Agent
and Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith.
The Transferor, the Servicer, the Trustee, the Paying
Agent and the Transfer Agent and Registrar, and any agent of any of them, may
treat the person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Transferor, the Servicer, the Trustee,
the Paying Agent and the Transfer Agent and Registrar, nor any agent of any of
them or of any such agent, shall be affected by notice to the contrary except in
certain circumstances described in the Agreement.
The Agreement and any Supplement may be amended by the
Transferor, the Servicer and the Trustee, without the consent of
certificateholders of any Series then outstanding for any purpose, provided that
(i) the Transferor shall deliver an opinion of counsel acceptable to the Trustee
to the effect that such amendment will not adversely affect in any material
respect the interest of such certificateholders, and (ii) such amendment will
not result in a withdrawal or reduction of the rating of any outstanding Series.
The Agreement and the Series 1997-5 Supplement may be
amended by the Transferor, the Servicer and the Trustee with the consent of the
holders of certificates evidencing undivided interests aggregating not less than
66-2/3% of the investor interests of all Series adversely affected, for the
purpose of adding any provisions to, changing in any manner or eliminating any
of the provisions of the Agreement or the Series 1997-5 Supplement or of
modifying in any manner the rights of certificateholders of any then outstanding
Series. No such amendment, however, may (a) reduce in any manner the amount of,
or delay the timing of, distributions required to be made on any such Series,
(b) change the definition of or the manner of calculating the interest of any
certificateholder of such Series, or (c) reduce the aforesaid percentage of
undivided interests the holders of which are required to consent to any such
amendment, in each case without the consent of all certificateholders of all
Series adversely affected.
C-11
<PAGE>
Promptly following the execution of any amendment to the Agreement, the Trustee
will furnish written notice of the substance of such amendment to each CIA
Certificateholder.
The holder of this Certificate by its acceptance hereof
agrees that (i) it will not institute or join against the Trust and (ii) it will
not, in its capacity as a Certificateholder, institute or join against the
Transferor any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding or other proceeding under any federal or state bankruptcy
or similar law, for one year and a day after the payment in full of the last
outstanding investor certificate issued by the First USA Credit Card Master
Trust; provided, that the foregoing shall not limit the right of the holder of
this Certificate to file any claim in or otherwise take any action with respect
to any such bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding that was instituted by any person other than a CIA Certificateholder.
The holder hereof by its acceptance of this Certificate
further agrees that it will report its interest in the CIA Investor Principal
Balance, with respect to all taxes, in a manner consistent with the intended
characterization referred to in Section 3.07 of the Agreement.
Neither this Certificate nor any interest herein may be
sold conveyed, assigned, hypothecated, pledged, participated, or otherwise
transferred, except in accordance with the Agreement, and any such transfer will
be permitted only if it consists of a pro rata percentage interest in all
payments made with respect to this Certificate. No transfers of partial
interests in this Certificate shall be permitted.
Neither this Certificate nor any interest herein may be
transferred to any person, unless the transferee shall have executed and
delivered the certifications required by the Agreement and each of the
Transferor and the Servicer shall have granted its prior consent thereto. Such
consent shall be granted unless the Transferor determines in its sole and
absolute discretion that the proposed transfer would create a risk that the
Trust would be classified for federal or any applicable state tax purposes as an
association or publicly traded partnership taxable as a corporation.
Notwithstanding the foregoing,
C-12
<PAGE>
any attempted transfer of this Certificate or an interest herein that would
cause the aggregate number of (i) holders of a right to receive interest or
principal with respect to the CIA Certificates (or other interests in the
Trust), other than certificates (or other such interests) with respect to which
an opinion is rendered that such certificates (or other such interests) will be
treated as debt for federal income tax purposes, and (ii) any holders of a right
to receive any amount in respect of the Transferor Interest, to exceed ninety
nine shall be void.
The holder of this Certificate or any interest therein
hereby certifies that it is either (A)(i) a citizen or resident of the United
States, (ii) a corporation, partnership or other entity organized in or under
the laws of the United States or any political subdivision thereof which, if a
tax-exempt entity, recognizes that payments with respect to this Certificate may
constitute unrelated business taxable income or (iii) a person not described in
(i) or (ii) whose ownership of this Certificate is effectively connected with
the conduct of a trade or business within the United States (within the meaning
of the Code) and whose ownership of any interest in this Certificate will not
result in any withholding obligation with respect to any payments with respect
to this Certificate by any person (other than withholding, if any, under Section
1446 of the Code), or (B) an estate or trust the income of which is includible
in gross income for United States federal income tax purposes. If the holder
hereof is (a) a person described in clause (A)(i) or (A)(ii) above, it has
furnished to the Servicer and the Trustee, a properly executed United States
Internal Revenue Service Form W-9 and agrees to furnish a new Form W-9, or any
successor applicable form, upon the expiration or obsolescence of any previously
delivered form or (b) a person described in clause (A)(iii) above, it has
furnished to the Servicer and the Trustee, a properly executed United States
Internal Revenue Service Form 4224 and agrees to furnish a new Form 4224, or any
successor applicable form, upon the expiration or obsolescence of any previously
delivered form, and comparable statements in accordance with applicable United
States laws.
C-13
<PAGE>
Unless the certificate of authentication hereon has
been executed by or on behalf of the Trustee, by manual signature, this
Certificate shall not be entitled to any benefit under the Agreement, or be
valid for any purpose.
IN WITNESS WHEREOF, the Transferor has caused this
Certificate to be duly executed on this 7th day of August, 1997.
FIRST USA BANK
By:____________________________
Name: Peter W. Atwater
Title: Executive Vice
President
CERTIFICATE OF AUTHENTICATION
This is one of the CIA Certificates referred to in the
within-mentioned Pooling and Servicing Agreement.
THE BANK OF NEW YORK,
as Authenticating Agent
Date: August 7, 1997
By:__________________________
Name: Reyne Macadaeg
Title: Assistant Vice
President
<PAGE>
Exhibit D
[logo]
BOOK-ENTRY-ONLY COLLATERALIZED MORTGAGE OBLIGATIONS (CMOs)
(WITHOUT OWNER OPTION TO REDEEM)/
OTHER ASSET-BACKED SECURITIES/AND PASS-THROUGH CERTIFICATES
Letter of Representations
[To be Completed by Issuer and Trustee]
First USA Bank
---------------------------------------
[Name of Issuer]
The Bank of New York (Delaware)
---------------------------------------
[Name of Trustee]
August 7, 1997
--------------
[Date]
Attention: General Counsel's Office
The Depository Trust Company
55 Water Street; 49th Floor
New York, NY 10041-0099
Re: $650,000,000 Class A Floating Rate Asset Backed
---------------------------------------------------------
Certificates, Series 1997-5; $58,735,000 Class B Floating
---------------------------------------------------------
Rate Asset Backed Certificates, Series 1997-5
---------------------------------------------------------
[Issue Description]
Ladies and Gentlemen:
This letter sets forth our understanding with respect to certain matters
relating to the above-referenced issue (the "Securities"). Trustee will act as
trustee with respect to the Securities pursuant to a trust indenture dated as of
September 1, 1992* (the "Document"). J. P. Morgan Securities Inc.**:; is
--------------------------------
["Underwriter"]
distributing the Securities through The Depository Trust Company ("DTC").
To induce DTC to accept the Securities as eligible for deposit at DTC, and
to act in accordance with its Rules with respect to the Securities, Issuer and
Trustee make the following representations to DTC:
1. Prior to closing on the Securities on August 7, 1997, there shall be
deposited with DTC one Security certificate registered in the name of DTC's
nominee, Cede & Co., for each stated maturity of the Securities in the face
amounts set forth on Schedule A hereto, the total of
- ------------------------------
* As supplemented as of August 7, 1997
** As Representative for itself, Banc One Capital Corporation, Bear, Stearns &
Co. Inc. and Credit Suisse First Boston Corporation
<PAGE>
which represents 100% of the principal amount of such Securities. If, however,
the aggregate principal amount of any maturity exceeds $200 million, one
certificate will be issued with respect to each $200 million of principal amount
and an additional certificate will be issued with respect to any remaining
principal amount. Each Security certificate shall bear the following legend.
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to Issuer or
its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
2. In the event of any solicitation of consents from or voting by holders
of the Securities, Issuer or Trustee shall establish a record date for such
purposes (with no provision for revocation of consents or votes by subsequent
holders) and shall send notice of such record date to DTC not less than 15
calendar days in advance of such record date. Notices to DTC pursuant to this
Paragraph by telecopy shall be sent to DTC's Reorganization Department at (212)
709-6896 or (212) 709-6897, and receipt of such notices shall be confirmed by
telephoning (212) 709-6870. Notices to DTC pursuant to this Paragraph by mail or
by any other means shall be sent to DTC's Reorganization Department as indicated
in Paragraph 4.
3. In the event of a full or partial redemption, Issuer or Trustee shall
send a notice to DTC specifying: (a) the amount of the redemption or refunding;
(b) in the case of a refunding, the maturity date(s) established under the
refunding; and (c) the date such notice is to be mailed to Security holders or
published (the "Publication Date"). Such notice shall be sent to DTC by a secure
means (e.g., legible telecopy, registered or certified mail, overnight delivery)
in a timely manner designed to assure that such notice is in DTC's possession no
later than the close of business on the business day before or, if possible, two
business days before the Publication Date. Issuer or Trustee shall forward such
notice either in a separate secure transmission for each CUSIP number or in a
secure transmission for multiple CUSIP numbers (if applicable) which includes a
manifest or list of each CUSIP number submitted in that transmission. (The party
sending such notice shall have a method to verify subsequently the use of such
means and the timeliness of such notice.) The Publication Date shall be not less
than 30 days nor more than 60 days prior to the redemption date or, in the case
of an advance refunding, the date that the proceeds are deposited in escrow.
Notices to DTC pursuant to this Paragraph by telecopy shall be sent to DTC's
Call Notification Department at (516) 227-4039 or (516) 227-4190. If the party
sending the notice does not receive a telecopy receipt from DTC confirming that
the notice has been received, such party shall telephone (516) 227-4070. Notices
to DTC pursuant to this Paragraph by mail or by any other means shall be sent
to:
Manager: Call Notification Department
The Depository Trust Company
711 Steward Avenue
Garden City, NY 11530-4719
4. In the event of an invitation to tender the Securities (including
mandatory tenders, exchanges, and capital changes), notice by Issuer or Trustee
to Security holders specifying the terms of the tender and the Publication Date
of such notice shall be sent to DTC by a secure means in the manner set forth in
the preceding Paragraph. Notices to DTC pursuant to this Paragraph and notices
of other corporate actions by telecopy shall be sent to DTC's Reorganization
Department at (212) 709-1093
2
<PAGE>
or (212) 709-1094, and receipt of such notices shall be confirmed by telephoning
(212) 709-6884. Notices to DTC pursuant to the above by mail or by any other
means shall be sent to:
Manager: Reorganization Department
Reorganization Window
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, NY 10004-2695
5. All notices and payment advices sent to DTC shall contain the CUSIP
number of the Securities.
6. Trustee shall send DTC written notice with respect to the dollar amount
per $1,000 original face value (or other minimum authorized denomination if less
than $1,000 face value) payable on each payment date allocated as to the
interest and principal portions thereof preferably 5, but not less than 2,
business days prior such payment date. Such notices, which shall also contain
the current pool factor, any special adjustments to principal/interest rates
(e.g, adjustments due to deferred interest or shortfall), and Trustee contact's
name and telephone number, shall be sent by telecopy to DTC's Dividend
Department at (212) 709-1723, or if by mail or by any other means to:
Manager: Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square, 22nd Floor
New York, NY 10004-2695
7. [Note: Issuer must represent one of the following, and cross out the
other:] [The interest accrual period is payment date to payment date.]
8. Trustee must provide DTC, no later than noon (Eastern Time) on the
payment date, CUSIP numbers for each issuer for which payment is being sent, as
well as the dollar amount of the payment for each issue. Notification of payment
details should be sent using automated communications.
9. Interest payments and principal payments that are part of periodic
principal-and-interest payments shall be received by Cede & Co., as nominee of
DTC, or its registered assigns in same-day funds, no later than 2:30 p.m.
(Eastern Time) on each payment date (in accordance with existing arrangements
between Issuer or Trustee and DTC). Absent any other arrangements between Issuer
or Trustee and DTC, such funds shall be wired as follows:
The Chase Manhattan Bank
ABA 021000021
For credit to A/C The Depository Trust Company
Dividend Deposit Account 066-026776
Issuer or Trustee shall provide interest payment information to a standard
announcement service subscribed to by DTC. In the unlikely event that no such
service exists, Issuer or Trustee shall provide interest payment information
directly to DTC in advance of the interest payment date as soon as the
information is available. This information should be conveyed directly to DTC
electronically. If electronic transmission is not available, absent any other
arrangements between Trustee and DTC, such information should be sent by
telecopy to DTC's Dividend Department at (212) 709-1723 or
3
<PAGE>
(212) 709-1686, and receipt of such notices shall be confirmed by telephoning
(212) 709-1270. Notices to DTC pursuant to the above by mail or by any other
means shall be sent to:
Manager, Announcements
Divided Department
The Depository Trust Company
7 Hanover Square, 22nd Floor
New York, NY 10004-2695
10. DTC shall receive maturity and redemption payments allocated with
respect to each CUSIP number on the payable date in same-day funds by 2:30 p.m.
(Eastern Time). Absent any other arrangements between Trustee and DTC, such
payments shall be wired as follows:
The Chase Manhattan Bank
ABA 021000021
For credit to A/C The Depository Trust Company
Redemption Account 066-027306
in accordance with existing SDFS payment procedures in the manner set forth in
DTC's SDFS Paying Agent Operating Procedures, a copy of which has previously
been furnished to Trustee.
11. DTC shall receive all reorganization payments and CUSIP-level detail
resulting from corporate actions (such as tender offers, remarketings, or
mergers) on the first payable date in same-day funds by 2:30 p.m. (Eastern
Time). Absent any other arrangements between Trustee and DTC, such payments
shall be wired as follows:
The Chase Manhattan Bank
ABA 021000021
For credit to A/C The Depository Trust Company
Reorganization Account 066-027608
12. DTC may direct Issuer or Trustee to use any other number or address as
the number or address to which notices or payments of interest or principal may
be sent.
13. In the event of a redemption, acceleration, or any other similar
transaction (e.g., tender made and accepted in response to Issuer's or Trustee's
invitation) necessitating a reduction in the aggregate principal amount of
Securities outstanding or an advance refunding of part of the Securities
outstanding, DTC, in its discretion: (a) may request Issuer or Trustee to issue
and authenticate a new Security certificate; or (b) may make an appropriate
notation on the Security certificate indicating the date and amount of such
reduction in principal except in the case of final maturity, in which case the
certificate will be presented to Issuer or Trustee prior to payment, if
required.
14. In the event that Issuer determines that beneficial owners of
Securities shall be able to obtain certificated Securities, Issuer or Trustee
shall notify DTC of the availability of certificates. In such event, Issuer or
Trustee shall issue, transfer, and exchange certificates in appropriate amounts,
as required by DTC and others.
15. DTC may discontinue providing its services as securities depository
with respect to the Securities at any time by giving reasonable notice to Issuer
or Trustee (at which time DTC will confirm with Issuer or Trustee the aggregate
principal amount of Securities outstanding). Under such circumstances, at DTC's
request Issuer and Trustee shall cooperate fully with DTC by taking
-4-
<PAGE>
appropriate action to make available one or more separate certificates
evidencing Securities to any DTC Participant having Securities credited to its
DTC accounts.
16. Issuer: (a) understands that DTC has no obligation to, and will not,
communicate to its Participants or to any person having an interest in the
Securities any information contained in the Security certificate(s); and (b)
acknowledges that neither DTC's Participants nor any person having an interest
in the Securities shall be deemed to have notice of the provisions of the
Security certificates by virtue of submission of such certificate(s) to DTC.
17. Nothing herein shall be deemed to require Trustee to advance funds on
behalf of Issuer.
18. Rider 5A is incorporated herein.
Notes:
- ------
A. If there is a Trustee (as defined in Very truly yours,
this Letter of Representations), Trustee
as well as Issuer must sign this Letter. First USA Bank
If there is no Trustee, in signing -----------------------------------
this Letter Issuer itself undertakes to (Issuer)
perform all of the obligations set
forth herein. By: /s/ Peter W. Atwater
--------------------------------
B. Schedule B contains statements that DTC (Authorized Officer's Signature)
believes accurately describe DTC, the
method of effecting book-entry transfers
of securities distributed through DTC, The Bank of New York (Delaware)
and certain related matters. -----------------------------------
(Trustee)
Received and Accepted:
THE DEPOSITORY TRUST COMPANY By: /s/ Joseph Ernst
--------------------------------
(Authorized Officer's Signature)
By: /s/ Richard B. Nessin
--------------------------------
cc: Underwriter
Underwriter's Counsel
5
<PAGE>
Rider 5A
- --------
19. The terms "trust indenture" and "Indenture" are hereby replaced wherever
they appear in the Letter of Representations with the term "Pooling and
Servicing Agreement."
20. The term "Securities" is hereby replaced wherever it appears in the Letter
of Representations with the term "Certificates."
<PAGE>
SCHEDULE A
(Describe Issue)
First USA Credit Card Master Trust
$650,000,000 Class A Floating Rate Asset Backed
Certificates, Series 1997-5
$58,735,000 Class B Floating Rate Asset Backed
Certificates, Series 1997-5
<TABLE>
<CAPTION>
CUSIP Principal Amount Maturity Date Interest Rate
- --------- ---------------- -------------- -----------------
<S> <C> <C> <C>
337435CK5 $200,000,000 April 17, 2007 0.14% above LIBOR
337435CK5 $200,000,000 April 17, 2007 0.14% above LIBOR
337435CK5 $200,000,000 April 17, 2007 0.14% above LIBOR
337435CK5 $ 50,000,000 April 17, 2007 0.14% above LIBOR
337435CL3 $ 58,735,000 April 17, 2007 0.33% above LIBOR
</TABLE>
<PAGE>
SCHEDULE B
SAMPLE OFFICIAL STATEMENT LANGUAGE
DESCRIBING BOOK-ENTRY-ONLY ISSUANCE
(Prepared by DTC--bracketed material may be applicable only to certain issues)
1. The Depository Trust Company ("DTC"), New York, NY, will act as
securities depository for the securities (the "Securities"). The Securities
will be issued as fully-registered securities registered in the name of Cede &
Co. (DTC's partnership nominee). One fully-registered Security certificate will
be issued for [each issue of] the Securities, [each] in the aggregate principal
amount of such issue, and will be deposited with DTC. [If, however, the
aggregate principal amount of [any] issue exceeds $200 million, one certificate
will be issued with respect to each $200 million of principal amount and an
additional certificate will be issued with respect to any remaining principal
amount of such issue.]
2. DTC is a limited-purpose trust company organized under the New York
Banking Law, a banking organization" within the meaning of the New York Banking
Law, a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934. DTC holds securities that its participants ("Participants")
deposit with DTC. DTC also facilitates the settlement among Participants of
securities transactions, such as transfers and pledges, in deposited securities
through electronic computerized book-entry changes in Participants' accounts,
thereby eliminating the need for physical movement of securities certificates.
Direct Participants include securities brokers and dealers, banks, trust
companies, clearing corporations, and certain other organizations. DTC is owned
by a number of its Direct Participants and by the New York Stock Exchange, Inc.,
the American Stock Exchange, Inc., and the National Association of Securities
Dealers, Inc. Access to the DTC system is also available to others such as
securities brokers and dealers, banks, and trust companies that clear through or
maintain a custodial relationship with a Direct Participant, either directly or
indirectly ("Indirect Participants"). The Rules applicable to DTC and its
Participants are on file with the Securities and Exchange Commission.
3. Purchases of Securities under the DTC system must be made by or
through Direct Participants, which will receive a credit for the Securities on
DTC's records. The ownership interest of each actual purchaser of each Security
("Beneficial Owner") is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial Owners will not receive written confirmation
from DTC of their purchase, but Beneficial Owners are expected to receive
written confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the Direct or Indirect Participant through
which the Beneficial Owner entered into the transaction. Transfers of ownership
interests in the Securities are to be accomplished by entries made on the books
of Participants acting on behalf of Beneficial Owners. Beneficial Owners will
not receive certificates representing their ownership interests in Securities,
except in the event that use of the book-entry system for the Securities is
discontinued.
4. To facilitate subsequent transfers, all Securities deposited by
Participants with DTC are registered in the name of DTC's partnership nominee,
Cede & Co. The deposit of Securities with DTC and their registration in the
name of Cede & Co. effect no change in beneficial ownership. DTC has no
knowledge of the actual Beneficial Owners of the Securities; DTC's records
reflect only the identity of the Direct Participants to whose accounts such
Securities are credited, which may or may not be the Beneficial Owners. The
Participants will remain responsible for keeping account of their holdings on
behalf of their customers.
5. Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
[6. Redemption notices shall be sent to Cede & Co. If less than all of
the Securities within an issue are being redeemed, DTC's practice is to
determine by lot the amount of the interest of each Direct Participant in such
issue to be redeemed.]
<PAGE>
7. Neither DTC nor Cede & Co. will consent or vote with respect to
Securities. Under its usual procedures, DTC mails an Omnibus Proxy to Issuer as
soon as possible after the record date. The Omnibus Proxy assigns Cede & Co.'s
consenting or voting rights to those Direct Participants to whose accounts the
Securities are credited on the record date (identified in a listing attached to
the Omnibus Proxy).
8. Principal and interest payments on the Securities will be made to DTC.
DTC's practice is to credit Direct Participants' accounts on payable date in
accordance with their respective holdings shown on DTC's records unless DTC has
reason to believe that it will not receive payment on payable date. Payments by
Participants to Beneficial Owners will be governed by standing instructions and
customary practices, as is the case with securities held for the accounts of
customers in bearer form or registered in "street name," and will be the
responsibility of such Participant and not of DTC, Trustee, or Issuer, subject
to any statutory or regulatory requirements as may be in effect from time to
time. Payment of principal and interest to DTC is the responsibility of Issuer
or Trustee, disbursement of such payments to Direct Participants shall be the
responsibility of DTC, and disbursement of such payments to the Beneficial
Owners shall be the responsibility of Direct and Indirect Participants.
[9. A Beneficial Owner shall give notice to elect to have its Securities
purchased or tendered, through its Participant, to Trustee [or Tender/
Remarketing Agent], and shall effect delivery of such Securities by
causing the Direct Participant to transfer the Participant's interest in the
Securities, on DTC's records, to Trustee [or Tender/Remarketing Agent]. The
requirement for physical delivery of Securities in connection with an optional
tender or a mandatory purchase will be deemed satisfied when the ownership
rights in the Securities are transferred by Direct Participants on DTC's records
and followed by a book-entry credit of tendered Securities to Trustee [or
Tender/Remarketing Agent's], DTC account.]
10. DTC may discontinue providing its services as securities depository
with respect to the Securities at any time by giving reasonable notice to Issuer
or Agent. Under such circumstances, in the event that a successor securities
depository is not obtained, Security certificates are required to be printed and
delivered.
11. Issuer may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depository). In that event,
Security certificates will be printed and delivered.
12. The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources that Issuer believes to be reliable, but
Issuer takes no responsibility for the accuracy thereof.
<PAGE>
REPRESENTATIONS FOR DEPOSIT/WITHDRAWAL AT CUSTODIAN ("DWAC") --
to be included in DTC Letter of Representations
------------------------------------------------
The Security certificate(s) shall remain in Agent's custody as a "Balance
Certificate" subject to the provisions of the Balance Certificate Agreement
between Agent and DTC currently in effect.
On each day on which Agent is open for business and on which it receives an
instruction originated by a Participant through DTC's Deposit/Withdrawal at
Custodian ("DWAC") system to increase the Participant's account by a specified
number of shares, units, or obligations (a "Deposit Instruction"), Agent shall,
before 6:30 p.m. (Eastern Time) that day, either approve or cancel the Deposit
Instruction through the DWAC system.
On each day on which Agent is open for business and on which it receives an
instruction originated by a Participant through the DWAC system to decrease the
Participant's account by a specified number of shares, units, or obligations (a
"Withdrawal Instruction"), Agent shall, before 6:30 p.m. (Eastern Time) that
day, either approve or cancel the Withdrawal Instruction through the DWAC
system.
Agent agrees that its approval of a Deposit or Withdrawal Instruction shall
be deemed to be the receipt by DTC of a new, reissued or reregistered
certificated security on registration of transfer to the name of Cede & Co., for
the quantity of Securities evidenced by the Balance Certificate after the
Deposit or Withdrawal Instruction is effected.
[5/94]
<PAGE>
EXHIBIT E
MONTHLY ALLOCATIONS AND PAYMENT INSTRUCTIONS AND
NOTIFICATION TO THE TRUSTEE
FIRST USA BANK
________________________________________
FIRST USA CREDIT CARD MASTER TRUST, SERIES 1997-5
________________________________________
Monthly Period:
Distribution Date:
Transfer Date:
The undersigned, a duly authorized representative of First USA Bank (the "Bank")
as Servicer, pursuant to the Pooling and Servicing Agreement dated as of
September 1, 1992 (the "Pooling and Servicing Agreement") and the Series 1997-5
Supplement dated August 7, 1997 (the "Supplement") by and between the Bank and
The Bank of New York (Delaware), as Trustee (the "Trustee"), does hereby certify
as follows:
I Capitalized terms used in this Certificate have their respective
meanings set forth in the Pooling and Servicing Agreement; provided,
that the preceding "Monthly Period" shall mean the Monthly Period
immediately preceding the calendar month in which this Certificate is
delivered. References herein to certain sections and subsections are
references to the respective sections and subsections of the Pooling
and Servicing Agreement. This Certificate is delivered pursuant to
Section 4.09 of the Pooling and Servicing Agreement.
II The Bank is Servicer under the Pooling and Servicing Agreement.
III The undersigned is a Servicing Officer.
IV The date of this notice is a Determination Date under the Pooling and
Servicing Agreement.
I. INSTRUCTION TO MAKE A WITHDRAWAL.
---------------------------------
Pursuant to Section 4.09, the Servicer does hereby instruct the Trustee (i)
to make a withdrawal from the Finance Charge Account on the above
referenced Transfer Date under the Pooling and Servicing Agreement, in an
aggregate amount as set forth below in respect of the following amounts and
(ii) to apply the proceeds of such withdrawal in accordance with Section
4.05:
<PAGE>
MONTHLY PAYMENT INSTRUCTIONS SERIES 1997-5
Page E-2
1. A. Class A Finance Charge Allocations
Principal Funding Investment Proceeds N/A
Reserve Account Withdrawals N/A
-----------
Total Class A Available Funds
B. Pursuant to subsections 4.09(a)(i):
-----------------------------------
1. Interest to be paid to Certificateholders at the Certificate
Rate for the Interest Period on the Invested Amount
(Actual/360)
Class A
2. Overdue Interest
3. Default Interest
C. Pursuant to subsection 4.09(a)(ii):
-----------------------------------
Class A Monthly Servicing Fee for the preceding
Monthly Period if First USA Bank is no longer Servicer
D. Pursuant to subsection 4.09(a)(iii):
------------------------------------
Class A Investor Default Amount for the preceding
Monthly Period
-----------
E. Pursuant to subsection 4.09(a)(iv):
-----------------------------------
Amount constituting Excess Finance Charge Collections
to be distributed per Section 4.13
-----------
2. A. Class B Finance Charge Allocations
Principal Funding Investment Proceeds N/A
Reserve Account Withdrawals N/A
-----------
Total Class B Available Funds
<PAGE>
MONTHLY PAYMENT INSTRUCTIONS SERIES 1997-5
Page E-3
B. Pursuant to subsections 4.09(b)(i):
-----------------------------------
1. Interest to be paid to Certificateholders at the
Certificate Rate for the Interest Period on
the Invested Amount (Actual/360)
Class B
2. Overdue Interest
3. Default Interest
C. Pursuant to subsection 4.09(b)(ii):
-----------------------------------
Class B Monthly Servicing Fee for the preceding
Monthly Period if First USA Bank is no longer Servicer -----------
D. Pursuant to subsection 4.09(b)(iii):
------------------------------------
Amount constituting Excess Finance Charge Collections
distributed per Section 4.13 -----------
3. A. CIA Finance Charge Allocations N/A
Principal Funding Investment Proceeds N/A
Reserve Account Withdrawals -----------
Total CIA Available Funds
B. Pursuant to subsection 4.09(c)(i):
----------------------------------
CIA Monthly Servicing Fee for the preceding
Monthly Period if First USA Bank is no longer Servicer -----------
C. Pursuant to subsections 4.09(c)(ii):
------------------------------------
Amount constituting Excess Finance Charge Collections
to be distributed per Section 4.13 -----------
<PAGE>
MONTHLY PAYMENT INSTRUCTIONS SERIES 1997-5
Page E-4
4. A. Pursuant to subsections 4.09(a)(iv), 4.09(b)(iii) and 4.09(c)(ii):
-----------------------------------------------------------------
Amount constituting Excess Finance Charge Collections
to be distributed per Section 4.13
Total Excess Finance Charge Collections ==========
II. APPLICATION OF EXCESS FINANCE CHARGE COLLECTIONS
------------------------------------------------
Pursuant to Section 4.13, the Servicer hereby instructs the Trustee to
apply Excess Finance Charge Collections, determined pursuant to the
provisions of Section 4.09, in the following priority:
A. Pursuant to subsection 4.13(a):
-------------------------------
The Class A Required Amount applied in accordance with
subsection 4.09(a)
B. Pursuant to subsection 4.13(b):
-------------------------------
Amount of Class A Investor Charge-Offs
not previously reimbursed
C. Pursuant to subsection 4.13(c):
-------------------------------
Amount equal to unpaid Class B Monthly Interest Due
on the Class B Outstanding Principal Balance
D. Pursuant to subsection 4.13(d):
-------------------------------
Class B Investor Default Amount for the preceding
Monthly Period
E. Pursuant to subsection 4.13(e):
-------------------------------
Reimbursement of Class B Invested Amount which has
been reduced for reasons other than principal payments
<PAGE>
MONTHLY PAYMENT INSTRUCTIONS SERIES 1997-5
Page E-5
F. Pursuant to subsection 4.13(f):
-------------------------------
1. CIA Monthly Interest for the preceding
Interest Period on the Invested
Amount (30/360)
2. Overdue Interest
3. CIA Default Interest
G. Pursuant to subsection 4.13(g): --------------------
-------------------------------
Unpaid Investor Monthly Servicing Fee for the preceding
Monthly Period to be paid to First USA Bank
H. Pursuant to subsection 4.13(h):
-------------------------------
CIA Investor Default Amount for the preceding
Monthly Period
I. Pursuant to subsection 4.13(i):
-------------------------------
Reimbursement of CIA Invested Amount which has
been reduced for reasons other than principal payments
J. Pursuant to subsection 4.13(j):
-------------------------------
The excess, if any, of the Required Reserve Account Amount
over Available Reserve Account Amount to be funded to the
Reserve Account
K. Pursuant to subsection 4.13(k):
-------------------------------
Remaining amount to be applied pursuant to
the Spread Account Agreement ----------
Total (Excess F/C Collections from 4(A) above) ==========
<PAGE>
MONTHLY PAYMENT INSTRUCTIONS SERIES 1997-5
Page E-6
<TABLE>
<CAPTION>
III. APPLICATION OF PRINCIPAL COLLECTIONS
------------------------------------
<S> <C> <C>
Pursuant to Sections 4.05, 4.07, 4.09, 4.14 and 4.16, the Servicer hereby
instructs the Trustee to apply Principal Collections available on the
Transfer Date, determined pursuant to the provisions of the above sections,
in the following priority:
A. Principal Collections
1. Class A Principal Collections
Class A Investor Default Amount (during Accumulation Period)
Class A Investor Charge-Offs (during Accumulation Period) ____________________
Total Class A Monthly Principal
2. Class B Principal Collections
Class B Investor Default Amount (during Accumulation Period)
Class B Investor Charge-Offs (during Accumulation Period) ____________________
Total Class B Monthly Principal
3. CIA Principal Collections
CIA Investor Default Amt (during Accumulation Period)
CIA Investor Charge-Offs (during Accumulation Period) ____________________
Total CIA Monthly Principal
4. Excess Principal Collections (other series) ____________________
Total Principal Collections ____________________
B. Allocation of Principal Collections
1. Amount of CIA Principal Reallocated to F/C Account
2. Amount of Class B Principal Reallocated to F/C Account
3. Amount of Investor Principal Collections to other Series
4. Payment of principal to Class A Certificateholders
5. Payment of principal to Class B Certificateholders
6. Payment of principal to CIA Certificateholders
7. Payment of principal to Principal Funding Account
8. Amount returned to Bank ____________________
Total Principal Allocations ____________________
</TABLE>
<PAGE>
MONTHLY PAYMENT INSTRUCTIONS SERIES 1997-5
Page E-7
<TABLE>
<CAPTION>
IV. TRUSTEE DISBURSEMENT SUMMARY
----------------------------
<S> <C>
(1) Investor Monthly Servicing Fee paid to First USA Bank
(2) Total Default Amounts paid to First USA Bank
(3) Excess Spread paid to Spread Account, then to First USA Bank
(a) Interest on Spread Account Balance
(4) Monthly Principal Collections to First USA Bank ____________________
Total to First USA Bank
(5) Deposit to Spread Account (Excess Spread if not funded by
Spread Replacement Amount from Spread Replacement Providers)
(6) Deposit to Reserve Account
(7) Interest payment to Class A Certificateholders (DTC)
(8) Interest payment to Class B Certificateholders (DTC)
(9) Interest payment to CIA Certificateholders
(10) Certificate Principal to Principal Funding Account
(11) Principal to Certificateholders (DTC)
(12) Investor Principal Collections to other Series
(13) Monthly Principal Payment to CIA Certificateholders
(14) Excess Spread paid to and retained in Spread Account ____________________
Total Disbursements ____________________
Total Class A, B and C funds to be allocated ____________________
____________________
Amount to satisfy Cap Amount (funded by Spread Replacement Providers)
</TABLE>
<PAGE>
EXHIBIT F
MONTHLY CERTIFICATEHOLDERS' STATEMENT
FIRST USA BANK
________________________________________________
FIRST USA CREDIT CARD MASTER TRUST, SERIES 1997-5
________________________________________________
Monthly Period:
Distribution Date:
Transfer Date:
Under Section 5.02 of the Pooling and Servicing Agreement dated as of September
1, 1992 (the "Pooling and Servicing Agreement") by and between First USA Bank
(the "Bank") and The Bank of New York (Delaware), as trustee (the "Trustee") the
Bank, as Servicer, is required to prepare certain information each month
regarding current distributions to Certificateholders and the performance of
the First USA Credit Card Master Trust (the "Trust") during the previous month.
The information which is required to be prepared with respect to the
Distribution Date noted above and with respect to the performance of the Trust
during the month noted above is set forth below. Certain information is
presented on the basis of an original principal amount of $1,000 per Series
1997-5 Certificate (a "Certificate"). Certain other information is presented
based on the aggregate amount for the Trust as a whole. Capitalized terms used
in this Monthly Certificateholders' Statement have their respective meanings set
forth in the Pooling and Servicing Agreement.
1. Information Regarding the Current Monthly Distribution.
A. The total amount of the distribution to
Certificateholders on the Distribution Date per
$1,000 original certificate principal amount
Class A
Class B
CIA Inv. Amt.
<PAGE>
MONTHLY PAYMENT INSTRUCTIONS SERIES 1997-5
Page F-2
B. The amount of the distribution
in respect of interest on the
Certificates, per $1,000 original
certificate principal amount
Class A
Class B
CIA Inv. Amt.
C. The amount of the distribution
in respect of principal on the Certificates, per
$1,000 original certificate principal amount
Class A
Class B
CIA Inv. Amt.
2. Information Regarding the Performance of the Trust.
A. Allocation of Principal Receivables.
The aggregate amount of Allocations of Principal
Receivables processed during the Monthly Period
which were allocated in respect of the Certificates
Class A
Class B
CIA Inv. Amt. _____________
Total _____________
B. Allocation of Finance Charge Receivables.
(a) The aggregate amount of Allocations of Finance
Charge Receivables processed during the Monthly
Period which were allocated in respect of the
Certificates
Class A
Class B
CIA Inv. Amt. _____________
<PAGE>
MONTHLY CERTIFICATEHOLDERS' STATEMENT Series 1997-5
PAGE F-3
Total _____________
(b) Principal Funding Investment Proceeds (to Class A) N/A
(c) Withdrawals from Reserve Account (to Class A) N/A
Class A Available Funds _____________
(d) Principal Funding Investment Proceeds (to Class B) N/A
_____________
(e) Withdrawals from Reserve Account (to Class B) N/A
Class B Available Funds
_____________
(f) Principal Funding Investment Proceeds (to CIA Certificates) N/A
_____________
(g) Withdrawals from Reserve Account (to CIA Certificates) N/A
CIA Available Funds
(h) Total Principal Funding Investment Proceeds
(i) Earnings on Reserve Account deposits
C. Principal Receivables/Investor Percentages
(a) The aggregate amount of Principal Receivables in
the Trust as of the last day of the Monthly Period
(b) Invested Amount as of the last day of the preceding
month (Adjusted Class A Invested Amount during
Accumulation Period)
Class A
Class B
CIA Inv. Amt. _____________
Total
(c) The Floating Allocation Percentage: The Invested
Amount set forth in paragraph 2.C.(b) above as a
percentage of the aggregate amount of Principal
Receivables set forth in paragraph 2.C.(a) above
Class A
Class B
CIA Inv. Amt. _____________
Total
(d) During the Amortization Period: The Invested
Amount as of _______ (the last day of the
Revolving
<PAGE>
MONTHLY CERTIFICATEHOLDERS' STATEMENT Series 1997-5
PAGE F-4
Period)
Class A N/A
Class B N/A
CIA Inv. Amt. N/A
------------
Total N/A
(e) The Fixed/Floating Allocation Percentage: The Invested
Amount set forth in paragraph 2.C.(d) above as a
percentage of the aggregate amount of Principal
Receivables set forth in paragraph 2.C.(a) above
Class A N/A
Class B N/A
CIA Inv. Amt. N/A
------------
Total N/A
D. Delinquent Balances.
The aggregate amount of outstanding balances in the
Accounts which were delinquent as of the end of the day
on the last day of the Monthly Period
(a) 35 - 64 days
(b) 65 - 94 days
(c) 95 - 124 days
(d) 125 - 154 days
(e) 155 - 184 days
(f) 185 or more days ------------
Total ------------
<PAGE>
MONTHLY CERTIFICATEHOLDERS' STATEMENT Series 1997-5
PAGE F-5
E. Monthly Investor Default Amount.
The aggregate amount of all defaulted Principal
Receivables written off as uncollectible during the
Monthly Period allocable to the Invested
Amount (the aggregate "Investor Default
Amount")
Class A
Class B
CIA Inv. Amt. _____________
Total _____________
F. Investor Charge-Offs & Reimbursements of Charge-Offs.
(a) The aggregate amount of Class A Investor Charge-
Offs and the reductions in the Class B Invested
Amount and the CIA Invested Amount
Class A
Class B
CIA Inv. Amt. _____________
Total _____________
(b) The aggregate amount of Class A Investor Charge-
Offs reimbursed and the reimbursement of
reductions in the Class B Invested Amount and the
CIA Invested Amount
Class A
Class B
CIA Inv. Amt. _____________
Total _____________
<PAGE>
MONTHLY CERTIFICATEHOLDERS' STATEMENT SERIES 1997-5
PAGE F-6
G. Investor Servicing Fee.
The amount of the Investor Monthly Servicing Fee
payable by the Trust to the Servicer for the
Monthly Period
Class A
Class B
CIA Inv. Amt. _____________
Total _____________
H. Reallocated Principal Collections
The amount of Reallocated CIA and Class B
Principal Collections applied in respect of Interest
Shortfalls, Investor Default Amounts or Investor
Charge-Offs for the prior month.
Class B
CIA Inv. Amt. _____________
Total _____________
I. CIA Invested Amount
The amount of the CIA Invested Amount as of the
close of business on the related Distribution Date after
giving effect to withdrawals, deposits and payments to
be made in respect of the preceding month
J. The Pool Factor.
The Pool Factor (which represents the ratio of the amount of the Investor
Interest on the last day of the Monthly Period to the amount of the
Investor Interest as of the Closing Date). The amount of a
Certificateholder's pro rata share of the Investor Participation Amount can
be determined by multiplying the original denomination of the holder's
Certificate by the Pool Factor
Class A
Class B
<PAGE>
MONTHLY CERTIFICATEHOLDERS' STATEMENT Series 1997-5
PAGE F-7
K. The Portfolio Yield
-------------------
The Portfolio Yield for the related Monthly Period
L. The Base Rate
-------------
The Base Rate for the related Monthly Period
3. Information Regarding the Principal Funding Account
---------------------------------------------------
A. Accumulation Period
-------------------
(a) Accumulation Period Commencement Date
(b) Accumulation Period length (months)
(c) Accumulation Period Factor
(d) Required Accumulation Factor Number
(e) Controlled Accumulation Amount
(f) Minimum Payment Rate (last 12 months)
B. Principal Funding Account
-------------------------
Beginning Balance
Plus: Principal Collections for Related Monthly Period
from Principal Account
Plus: Interest on Principal Funding Account Balance for
Related Monthly Period N/A
Less: Withdrawals to Finance Charge Account N/A
Less: Withdrawals to Distribution Account _____________
Ending Balance
C. Accumulation Shortfall
----------------------
The Controlled Deposit Amount for the previous
Monthly Period N/A
<PAGE>
MONTHLY CERTIFICATEHOLDERS' STATEMENT Series 1997-5
PAGE F-8
Less: The amount deposited into the Principal Funding
Account for the Previous Monthly Period N/A
-------------
Accumulation Shortfall N/A
=============
Aggregate Accumulation Shortfalls N/A
=============
D. Principal Funding Investment Shortfall
--------------------------------------
Covered Amount N/A
Less: Principal Funding Investment Proceeds N/A
-------------
Principal Funding Investment Shortfall N/A
4. Information Regarding the Reserve Account
A. Required Reserve Account Analysis
(a) Required Reserve Account Amount percentage
(0.5% of Class A Invested Amount or other amount
designated by Transferor)
(b) Required Reserve Account Amount ($)
(c) Required Reserve Account Balance after effect of
any transfers on the Related Transfer Date
(d) Reserve Draw Amount transferred to the Finance
Charge Account on the Related Transfer Date
B. Reserve Account Investment Proceeds
-----------------------------------
Reserve Account Investment Proceeds transferred to the
Finance Charge Account on the Related Transfer Date N/A
<PAGE>
MONTHLY CERTIFICATEHOLDERS' STATEMENT Series 1997-5
PAGE F-9
C. Withdrawals from the Reserve Account
------------------------------------
Total Withdrawals from the Reserve Account transferred
to the Finance Charge Account on the Related Transfer
Date (4.A.(d) plus 4.B. above) N/A
D. The Portfolio Adjusted Yield
----------------------------
The Portfolio Adjusted Yield for the related Monthly Period
<PAGE>
EXHIBIT G
[DATE]
First USA Bank
201 North Walnut Street
Wilmington, Delaware 19801
The Bank of New York (Delaware)
White Clay Center
Route 273
Newark, Delaware 19711
Re: CIA Certificates, Series 1997-5
-----------------------------------------
Ladies and Gentlemen:
In connection with our proposed purchase of $_________ in principal amount
of First USA Credit Card Master Trust, CIA Certificates, Series 1997-5 (the "CIA
Certificates"), we confirm that:
1. We have received a copy of the Private Placement Memorandum dated
July 30, 1997 relating to the CIA Certificates (the "Private Placement
Memorandum") and such other information and documentation as we deem necessary
in order to make our investment decision. We understand that the Private
Placement Memorandum and any such other information and documentation speaks
only as of its date and that the information contained in the Private Placement
Memorandum and such other information and documentation may not be correct or
complete as of any time subsequent to such date.
2. We agree to be bound by the restrictions and conditions set forth in
the Pooling and Servicing Agreement, dated as of September 1, 1992, as
supplemented by the Series 1997-5 Supplement dated as of August 7, 1997 (the
"Series 1997-5 Supplement" and together with the Pooling and Servicing
Agreement, the "Pooling and Servicing Agreement"), each by and between First
USA Bank, as transferor and servicer, and The Bank of New York (Dela-
<PAGE>
ware) relating to the CIA Certificates and agree to be bound by, and not
reoffer, resell, pledge or otherwise transfer (any such act, a "Transfer") the
CIA Certificates except in compliance with, such restrictions and conditions
including but not limited to those in Section 11 of the Series 1997-5
Supplement.
3. We understand that the CIA Certificates have not been and will not be
registered under the Securities Act of 1933, as amended (the "Securities Act")
or any state securities law and agree that the CIA Certificates may be
reoffered, resold, pledged or otherwise transferred only in compliance with the
Securities Act and other applicable laws and only (i) to the Transferor, (ii) to
a limited number of institutional "accredited investors" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) and in a transaction exempt
from the registration requirements of the Securities Act (upon delivery of the
documentation required by the Pooling and Servicing Agreement and, if the
Trustee so requires, an opinion of counsel satisfactory to the Trustee) or (iii)
pursuant to Rule 144A under the Securities Act to a person that we reasonably
believe is a qualified institutional buyer within the meaning of Rule 144A
("QIB") purchasing for its own account or a QIB purchasing for the account of a
QIB, whom we have informed, in each case, that the reoffer, resale, pledge or
other transfer is being made in reliance on Rule 144A.
4. We have neither acquired nor will we Transfer any CIA Certificate we
acquire (or any interest therein) or cause any CIA Certificate (or any interest
therein) to be marketed on or through an "established securities market" within
the meaning of Section 7704(b)(1) of the Internal Revenue Code of 1986, as
amended (the "Code") and any treasury regulation thereunder, including, without
limitation, an over-the-counter-market or an interdealer quotation system that
regularly disseminates firm buy or sell quotations.
5. We are not and will not become, for so long as we own any interest in
the CIA Certificates, a partnership, Subchapter S corporation or grantor trust
for United States federal income tax purposes. [If this representation cannot be
made, the Transferor, the Servicer or the Trustee may require additional
representations.]
<PAGE>
6. We are a person who is either (A)(i) a citizen or resident of the
United States, (ii) a corporation or other entity organized in or under the laws
of the United States or any political subdivision thereof or (iii) a person not
described in (i) or (ii) whose ownership of the CIA Certificates is effectively
connected with a such person's conduct of a trade or business within the United
States (within the meaning of the Code) and our ownership of any interest in a
CIA Certificate will not result in any withholding obligation with respect to
any payments with respect to the CIA Certificates by any person or (B) an estate
or trust the income of which is includible in gross income for United States
federal income tax purposes. We agree that (a) if we are a person described in
clause (A)(i) or (A)(ii) above, we will furnish to the person from whom we are
acquiring a CIA Certificate, the Servicer and the Trustee, a properly executed
U.S. Internal Revenue Service Form W-9 and a new Form W-9, or any successor
applicable form, upon the expiration or obsolescence of any previously
delivered form or (b) if we are a person described in clause (A)(iii) above, we
will furnish to the person from whom we are acquiring a CIA Certificate, the
Servicer and the Trustee, a properly executed U.S. Internal Revenue Service Form
4224 and a new Form 4224, or any successor applicable form, upon the expiration
or obsolescence of any previously delivered form (and, in each case, such other
certifications, representations or opinions of counsel as may be requested by
the Transferor, the Servicer or the Trustee). We recognize that if we are a tax-
exempt entity, payments with respect to the CIA Certificates may constitute
unrelated business taxable income.
7. We understand that no subsequent Transfer of a CIA Certificate is
permitted unless (i) such Transfer is of a CIA Certificate with a denomination
of at least $1,000,000 and (ii) the Transferor and the Servicer each consent in
writing to the proposed Transfer, which consent shall be granted (assuming that
all other conditions to such Transfer are satisfied) unless either the Trans-
feror or the Servicer determines in its sole and absolute discretion that such
Transfer would create a risk that the Trust would be classified for federal or
any applicable state tax purposes as an association or publicly traded
partnership taxable as a corporation; provided, that any attempted Transfer that
would cause the number of Targeted Holders (as defined in the Series 1997-5
<PAGE>
Supplement) to exceed ninety nine shall be void; and provided, further, that
there shall not at any time be more than 10 holders of CIA Certificates of
Series 1997-5 or such other number as may be consented to by the Transferor,
which consent may be withheld in its sole and absolute discretion.
8. We understand that the opinion of tax counsel that the Trust is not a
publicly traded partnership taxable as a corporation is dependent in part on the
accuracy of the representations in paragraphs 4, 5, 6 and 7 and that, if such
representations are not accurate, in addition to our being subject to having our
purchase rescinded, we will be liable for damages.
9. We are (a) an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3), or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the CIA Certificates,
and we and any account for which we are acting are each able to bear the
economic risk of our or its investment or (b) a "qualified institutional buyer"
(as defined in Rule 144A under the Securities Act) purchasing for our own
account or for the account of a "qualified institutional buyer" and we
understand that the sale to us is being made in reliance on Rule 144A under the
Securities Act.
10. We are acquiring each of the CIA Certificates purchased by us for our
own account or for a single account (each of which is an institutional
"accredited investor") as to which we exercise sole investment discretion.
11. We are either (a) not (i) an "employee benefit plan" (as defined in
Section 3(3) of ERISA), including governmental plans and church plans, (ii) a
plan described in Section 4975(e)(1) of the Internal Revenue Code of 1986, as
amended (the "Code") including individual retirement accounts and Keogh plans,
or (iii) any other entity whose underlying assets include "plan assets" (as
defined in United States Department of Labor ("DOL") Regulation Section 2510.3-
101, 29 C.F.R. (S)2510.3-101 or otherwise under ERISA) by reason of a plan's
investment in the entity, including, without limitation, an insurance company
general account, or (b)
<PAGE>
an insurance company acting on behalf of our general account and (i) on the date
hereof less than 25% of the assets of such general account (as reasonably
determined by us) constitute "plan assets" for purposes of Title I of ERISA and
Section 4975 of the Code, and (ii) we agree that if, after our initial
acquisition of the CIA Certificates, at any time during any calendar quarter
25% or more of the assets of such general account (as reasonably determined by
us no less frequently than each calendar quarter) constitute "plan assets" for
purposes of Title I of ERISA or Section 4975 of the Code and no exemption or
exception from the prohibited transaction rules applies to the continued holding
of the CIA Certificates under Section 401(c) of ERISA and the final regulations
thereunder or under an exemption or regulation issued by the DOL under
ERISA, we will dispose of all of the CIA Certificates then held in our general
account by the end of the next following calendar quarter.
12. We understand that any purported Transfer of any CIA Certificate in
contravention of the restrictions and conditions in paragraphs 1 through 11
above (including any violation of the representation in paragraph 5 by an
investor who continues to hold a CIA Certificate occurring any time after the
Transfer in which it acquired such CIA Certificate) shall be null and void and
the purported transferee shall not be recognized by the Trust or any other
person as a CIA Certificateholder for any purpose.
13. We further understand that, on any proposed resale, pledge or
transfer of any CIA Certificates, we will be required to furnish to the Trustee
and the Registrar, such certification and other information as the Trustee or
the Registrar may reasonably require to confirm that the proposed sale complies
with the foregoing restrictions and with the restrictions and conditions of the
CIA Certificates and the Pooling and Servicing Agreement pursuant to which the
CIA Certificates were issued and we agree that if we determine to Transfer any
CIA Certificate, we will cause our proposed transferee to provide the
Transferor, the Servicer and the Trustee with a letter substantially in the form
of this letter. We further understand that CIA Certificates purchased by us will
bear a legend to the foregoing effect.
<PAGE>
14. The person signing this letter on behalf of the ultimate beneficial
purchaser of the CIA Certificates has been duly authorized by such beneficial
purchaser of the CIA Certificates to do so.
15. The CIA Certificates purchased by us should be registered in the name
and issued in the denominations set forth on Schedule 1 hereto. All payments on
the CIA Certificates held by us should be wired to us in accordance with the
instructions set forth on Schedule 1 hereto unless we otherwise notify the
Transferor, the Servicer and the Trustee in writing.
You are entitled to rely upon this letter and we understand that, in
granting their respective consents to our purchase of CIA Certificates, the
Transferor and the Servicer will rely on our representations and warranties in
this letter and on our certifications in the documents (including, without
limitation, the Form W-9 or Form 4224, as applicable) delivered by us to the
Transferor, the Servicer or the Trustee in conjunction with our purchase of CIA
Certificates. You are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceeding or
official inquiry with respect to the matters covered hereby.
Very truly yours,
[full legal name of purchaser]
By:________________________
Name:
Title:
<PAGE>
Schedule 1
----------
Registration and Payment Instructions
-------------------------------------
Registration Instructions:
- -------------------------
Full Legal Name of Purchaser:__________________________
Name in Which Certificates Should be Registered:
__________________________
Number and Denomination of Certificates:_______________
_______________
Payment Instructions:
- --------------------
Name of Bank: ________________________
Address of Bank: ________________________
Account Name: ________________________
Account Number: ________________________
ABA Number: ________________________
Reference: ________________________
Notice Information:
- ------------------
Address: ______________________________
______________________________
______________________________
Attention: ______________________________
Telephone: ______________________________
Telefax: ______________________________
[Please attach an original executed U.S. Internal Revenue Service Form W-9
and/or Form 4224, if applicable]
