<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) September 23, 1997
------------------
FIRST USA BANK
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
(Originator of The FIRST USA CREDIT CARD MASTER TRUST)
Delaware 333-24227 76-0039224
---------- ----------- ------------
(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation or Identification Number)
organization)
201 North Walnut Street, Wilmington, Delaware 19801
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
302/594-4117
- --------------------------------------------------------
Registrant's telephone number, including area code
N/A
- --------------------------------------------------------------------------------
(Former name, former address and former fiscal year, if changed since last
report)
<PAGE>
Item 5. Other Events
On September 23, 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 $939,760,000
of credit card receivables.
First USA Credit Card Master Trust Series 1997-8 consists of
$780,000,000 Class A Floating Rate Asset Backed Certificates, and $70,482,000
Class B Floating Rate Asset Backed Certificates, each of which has an average
life of approximately ten years. Series 1997-8 also consists of $89,278,000 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 account 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
1.1. Underwriting Agreement of First USA Credit Card Master Trust, Series
1997-8, dated as of August 22, 1997, between First USA Bank and Bear, Stearns &
Co. Inc., as Representative of the Underwriters set forth herein.
1.2 Amended and Restated Underwriting Agreement of First USA Credit Card
Master Trust, Series 1997-8, dated as of September 10, 1997, between First USA
Bank and Bear, Stearns & Co. Inc., as Representative of the Underwriters set
forth therein.
99.1 Series 1997-8 Supplement, dated as of September 23, 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.
<PAGE>
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
-------------------------------
Peter W. Atwater
Executive Vice President
Date: September 30, 1997
------------------
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description Page No.
- ----------- ----------- --------
<S> <C> <C>
1.1 Underwriting Agreement of First USA Credit Card
Master Trust, Series 1997-8, dated as of
August 22, 1997, between First USA Bank and Bear,
Stearns & Co. Inc., as Representative of the
Underwriters set forth therein.
1.2 Amended and Restated Underwriting Agreement of
First USA Credit Card Master Trust, Series 1997-8,
dated as of September 10, 1997, between First USA
Bank and Bear, Stearns Securities Inc., as
Representative of the Underwriters set forth therein.
99.1 Series 1997-8 Supplement, dated as of September
23, 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
</TABLE>
<PAGE>
Exhibit 1.1
First USA Credit Card Master Trust
Class A Floating Rate Asset Backed Certificates,
Series 1997-8
Class B Floating Rate Asset Backed Certificates,
Series 1997-8
UNDERWRITING AGREEMENT
----------------------
August 22, 1997
Bear, Stearns & Co. Inc.,
as Representative of the
Underwriters set forth herein
245 Park Avenue
New York, New York 10167
Ladies and Gentlemen:
First USA Bank, a Delaware chartered banking corporation (the "Bank"),
has duly authorized the issuance and sale to Bear, Stearns & Co. Inc. (the
"Representative") and Banc One Capital Corporation, as an underwriter
--------------
(collectively with the Representative, the "Underwriters" and each individually,
------------
an "Underwriter") of First USA Credit Card Master Trust $500,000,000 aggregate
-----------
principal amount of Class A Floating Rate Asset Backed Certificates, Series
1997-8 (the "Class A Certificates") and $45,180,000 aggregate principal amount
--------------------
of Class B Floating Rate Asset Backed Certificates, Series 1997-8 (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 1997-8 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
<PAGE>
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, is hereinafter referred to
as the "Registration Statement," and any prospectus supplement (the "Prospectus
---------------------- ----------
Supplement") relating to the Certificates, as filed with the Commission pursuant
- ----------
to and in
- -----------------------
* VISA(R) and MasterCard(R) are registered trademarks of Visa USA
Incorporated and MasterCard International Incorporated, respectively.
2
<PAGE>
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.
(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
3
<PAGE>
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 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
4
<PAGE>
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
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
5
<PAGE>
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 July 31, 1997, Receivables transferred
to the Trust pursuant to the Pooling and Servicing Agreement have an aggregate
balance 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
6
<PAGE>
of all classes of all Series outstanding on July 31, 1997, plus (y) the
aggregate outstanding principal amount of all classes of all Series issued after
July 31, 1997 and that will be outstanding at the close of business on the
Closing Date (including Series 1997-8), 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 September 23, 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 99.60% 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 99.55%
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. 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.
7
<PAGE>
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 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.
8
<PAGE>
(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 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.
9
<PAGE>
(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.
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 Prospectus and of each amendment or supplement thereto, (ii) the
preparation of this Agreement, the Spread Account Agreement, and the Pooling and
Servicing Agreement, (iii) the preparation, issuance and delivery of the
Certificates to the Underwriters, (iv) the fees and disbursements of the Bank's
counsel and accountants, (v) 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, (vi) the printing and delivery to the Underwriters of copies
of the Prospectus and of each amendment or supplement thereto, (vii) the
printing and delivery to the Underwriters of copies of any blue sky or legal
investment survey prepared in connection with the Certificates, (viii) any fees
charged by rating agencies for the rating of the Certificates, (ix) the fees and
expenses, if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc. and (x) the fees and expenses of the
Trustee and its counsel. The Underwriters have agreed to reimburse the Bank for
expenses not to exceed $147,590 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
10
<PAGE>
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
11
<PAGE>
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 (A)
12
<PAGE>
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 material
13
<PAGE>
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
14
<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
15
<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;
16
<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
17
<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
18
<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
19
<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 in
form 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-
20
<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
21
<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
22
<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
23
<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:
24
<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
25
<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 Bear, Stearns & Co. Inc., 245 Park Avenue, New York,
New York 10167 Attention: Asset Backed Securities Department, 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. Computational Materials. Each Underwriter, severally, represents
-----------------------
and warrants to the Bank that (a) it has not and will not use any information
that constitutes "Computational Materials," as defined in the Commission's No-
Action Letter, dated May 20, 1994, addressed to Kidder, Peabody Acceptance
Corporation I, Kidder, Peabody & Co. Incorporated and Kidder Structured Asset
Corporation (as made generally applicable to registrants, issuers and
underwriters by the Commission's response to the request of the Public
Securities Association dated May 27, 1994), with respect to the offering of the
Certificates, (b) it has not and will not use any information that constitutes
"ABS Term Sheets," as defined in the Commission's No-Action Letter, dated
February 13, 1995, addressed to the Public Securities Association, with respect
to the offering of the Certificates and (c) it has not and will not use any
information that constitutes "Series Term Sheets," as defined in the
Commission's No-Action Letter, dated April 5, 1996, addressed to Greenwood Trust
Company, with respect to the offering of the Certificates, in
26
<PAGE>
each case unless it has obtained the prior written consent of the Bank to such
usage.
14. 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.
15. 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.
16. Severability of Provisions. Any covenant, provision, agreement or
--------------------------
term of this Agreement that is prohibited or is held to be void or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof.
17. 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.
18. 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.
19. Headings. The headings in this Agreement are for the purposes of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
27
<PAGE>
20. Counterparts. This Agreement may be executed in counterparts,
------------
each of which shall constitute an original, but all of which shall together
constitute one instrument.
21. 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/ John Mark Bunnel
----------------------------
Name: John Mark Bunnel
Title: Vice President
The foregoing Underwriting Agreement is
hereby agreed to as of the date first
above written.
BEAR, STEARNS & CO. INC.,
for itself and as Representative
of the several Underwriters named
in Schedule A hereto
By: /s/ Timothy E. Stapleford
-------------------------------------
Name: Timothy E. Stapleford
Title: Managing Director
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
Aggregate Principal
Amount of the Class A
Underwriter Certificates
- ----------- ------------
<S> <C>
Bear, Stearns & Co. Inc.............................. $250,000,000
Banc One Capital Corporation......................... $250,000,000
-----------
Total ............................. $500,000,000
============
<CAPTION>
Aggregate Principal
Amount of the Class B
Underwriter Certificates
- ----------- ------------
<S> <C>
Bear, Stearns & Co. Inc.............................. $22,590,000
Banc One Capital Corporation......................... $22,590,000
----------
Total.............................. $45,180,000
===========
</TABLE>
<PAGE>
Exhibit 1.2
First USA Credit Card Master Trust
Class A Floating Rate Asset Backed Certificates,
Series 1997-8
Class B Floating Rate Asset Backed Certificates,
Series 1997-8
AMENDED AND RESTATED UNDERWRITING AGREEMENT
-------------------------------------------
September 10, 1997
Bear, Stearns & Co. Inc.,
as Representative of the
Underwriters set forth herein
245 Park Avenue
New York, New York 10167
Ladies and Gentlemen:
First USA Bank, a Delaware chartered banking corporation (the "Bank"),
----
has duly authorized the issuance and sale to Bear, Stearns & Co. Inc. (the
"Representative") and Banc One Capital Corporation, as an underwriter
--------------
(collectively with the Representative, the "Underwriters" and each individually,
------------
an "Underwriter") of First USA Credit Card Master Trust $780,000,000 aggregate
-----------
principal amount of Class A Floating Rate Asset Backed Certificates, Series
1997-8 (the "Class A Certificates") and $70,482,000 aggregate principal amount
--------------------
of Class B Floating Rate Asset Backed Certificates, Series 1997-8 (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 1997-8 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").
-------
This Amended and Restated Underwriting Agreement amends, restates and
supersedes in all respects the original Underwriting Agreement, dated as of
August 22, 1997, between the Bank and the Representative.
Each Certificate will represent an undivided interest in certain assets
of First USA Credit Card Master Trust (the
<PAGE>
"Trust"). The property of the Trust will include, among other things,
-----
receivables (the "Receivables") arising under certain 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, is hereinafter referred to
as the "Registration Statement," and any
----------------------
- ----------------------
* VISA(R) and MasterCard(R) are registered trademarks of Visa USA
Incorporated and MasterCard International Incorporated, respectively.
2
<PAGE>
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.
3
<PAGE>
(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
4
<PAGE>
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
Servicing Agreement, or the Certificates, (ii) assert the invalidity of this
Agreement, the Spread Account Agreement, the Pooling and
5
<PAGE>
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 August 31, 1997, Receivables
transferred to the Trust pursuant to the Pooling and Servicing Agreement have an
aggregate balance
6
<PAGE>
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 August 31, 1997, plus (y) the aggregate outstanding
principal amount of all classes of all Series issued after August 31, 1997 and
that will be outstanding at the close of business on the Closing Date (including
Series 1997-8), 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 September 23, 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 99.57% 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 99.54%
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. It is understood that after the Effective
------------------------
Date the Underwriters propose to offer
7
<PAGE>
the Certificates for sale to the public as set forth in the Prospectus.
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 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
8
<PAGE>
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 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
9
<PAGE>
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.
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 Prospectus and of each amendment or supplement thereto, (ii) the
preparation of this Agreement, the Spread Account Agreement, and the Pooling and
Servicing Agreement, (iii) the preparation, issuance and delivery of the
Certificates to the Underwriters, (iv) the fees and disbursements of the Bank's
counsel and accountants, (v) 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, (vi) the printing and delivery to the Underwriters of copies
of the Prospectus and of each amendment or supplement thereto, (vii) the
printing and delivery to the Underwriters of copies of any blue sky or legal
investment survey prepared in connection with the Certificates, (viii) any fees
charged by rating agencies for the rating of the Certificates, (ix) the fees and
expenses, if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc. and (x) the fees and expenses of the
Trustee and its counsel.
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
10
<PAGE>
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
11
<PAGE>
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 (A)
12
<PAGE>
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 material
13
<PAGE>
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
14
<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
15
<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;
16
<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
17
<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
18
<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
19
<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 in
form 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-
20
<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
21
<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
22
<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
23
<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:
24
<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
25
<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 Bear, Stearns & Co. Inc., 245 Park Avenue, New York,
New York 10167 Attention: Asset Backed Securities Department, 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. Computational Materials. Each Underwriter, severally, represents and
-----------------------
warrants to the Bank that (a) it has not and will not use any information that
constitutes "Computational Materials," as defined in the Commission's No-Action
Letter, dated May 20, 1994, addressed to Kidder, Peabody Acceptance Corporation
I, Kidder, Peabody & Co. Incorporated and Kidder Structured Asset Corporation
(as made generally applicable to registrants, issuers and underwriters by the
Commission's response to the request of the Public Securities Association dated
May 27, 1994), with respect to the offering of the Certificates, (b) it has not
and will not use any information that constitutes "ABS Term Sheets," as defined
in the Commission's No-Action Letter, dated February 13, 1995, addressed to the
Public Securities Association, with respect to the offering of the Certificates
and (c) it has not and will not use any information that constitutes "Series
Term Sheets," as defined in the Commission's No-Action Letter, dated April 5,
1996, addressed to Greenwood Trust Company, with respect to the offering of the
Certificates, in
26
<PAGE>
each case unless it has obtained the prior written consent of the Bank to such
usage.
14. 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.
15. 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.
16. Severability of Provisions. Any covenant, provision, agreement or
--------------------------
term of this Agreement that is prohibited or is held to be void or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof.
17. 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.
18. 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.
19. Headings. The headings in this Agreement are for the purposes of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
27
<PAGE>
20. Counterparts. This Agreement may be executed in counterparts, each of
------------
which shall constitute an original, but all of which shall together constitute
one instrument.
21. 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/ John Mark Bunnel
---------------------------
Name: John Mark Bunnel
Title: Vice President
The foregoing Underwriting Agreement is
hereby agreed to as of the date first
above written.
BEAR, STEARNS & CO. INC.,
for itself and as Representative
of the several Underwriters named
in Schedule A hereto
By: /s/ Timothy E. Stapleford
-----------------------------------
Name: Timothy E. Stapleford
Title: Managing Director
<PAGE>
SCHEDULE A
Aggregate Principal
Amount of the Class A
Underwriter Certificates
- ----------- ------------
Bear, Stearns & Co. Inc.............................. $390,000,000
Banc One Capital Corporation......................... $390,000,000
-----------
Total ............................. $780,000,000
===========
Aggregate Principal
Amount of the Class B
Underwriter Certificates
- ----------- ------------
Bear, Stearns & Co. Inc.............................. $35,241,000
Banc One Capital Corporation......................... $35,241,000
----------
Total.............................. $70,482,000
==========
<PAGE>
EXHIBIT 99.1
- --------------------------------------------------------------------------------
FIRST USA BANK
Transferor and Servicer
and
THE BANK OF NEW YORK (DELAWARE)
on behalf of the Certificateholders
-----------------------------
SERIES 1997-8 SUPPLEMENT
Dated as of September 23, 1997
to
POOLING AND SERVICING AGREEMENT
Dated as of September 1, 1992, as amended
-----------------------------
$939,760,000
FIRST USA CREDIT CARD MASTER TRUST
Series 1997-8
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
Page
----
<C> <S> <C>
SECTION 1. Designation....................................... 1
SECTION 2. Definitions....................................... 2
SECTION 3. Reassignment and Transfer Terms................... 27
SECTION 4. Delivery and Payment for the
Series 1997-8 Certificates........................ 27
SECTION 5. Depositary; Form of Delivery of
Series 1997-8 Certificates........................ 27
SECTION 6. Article IV of Agreement........................... 29
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........................ 29
Section 4.06 Determination of Monthly Interest
for the Series 1997-8 Certificates................ 35
Section 4.07 Determination of Monthly Principal................ 37
Section 4.08 Coverage of Required Amount for the
Investor Certificates............................. 39
Section 4.09 Monthly Payments.................................. 41
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 1997-8 Certificates.................... 48
Section 4.14 Reallocated Principal Collections for
the Series 1997-8 Certificates.................... 51
Section 4.15 Determination of LIBOR............................ 52
</TABLE>
i
<PAGE>
<TABLE>
Page
----
<C> <S> <C>
Section 4.16 Principal Funding Account......................... 53
Section 4.17 Reserve Account................................... 55
SECTION 7. Article V of the Agreement........................ 57
Article V Distributions and Reports to
Investor Certificateholders....................... 57
Section 5.01 Distributions..................................... 57
Section 5.02 Monthly Certificateholders'
Statement......................................... 59
Section 5.03 Rule 144A Information............................. 62
SECTION 8. Series 1997-8 Pay Out Events...................... 62
SECTION 9. Series 1997-8 Termination......................... 63
SECTION 10. Periodic Finance Charges and
Other Fees........................................ 64
SECTION 11. Transfers of CIA
Certificates; Legends..............................64
SECTION 12. Compliance with Withholding
Requirements...................................... 69
SECTION 13. Tax Characterization of the
CIA Certificates.................................. 70
SECTION 14. ERISA Legend.......................................70
SECTION 15. Amendment and Ratification
of Agreement...................................... 70
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 1997-8 SUPPLEMENT, dated as of September 23, 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 1997-8 (the "Series 1997-8
-------------
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 1997-8 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 1997-8 Certificates." The Series 1997-8
--------------------------
Certificates shall be issued in three Classes, which shall be designated
generally as the Class A Floating Rate Asset Backed Certificates, Series 1997-8
(the "Class A Certificates"), the Class B Floating Rate Asset Backed
--------------------
Certificates, Series 1997-8 (the "Class B Certificates") and the CIA
--------------------
Certificates, Series 1997-8 (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 subsections 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 1997-8
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 August
31, 2006 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 1997-8
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 1997-8) 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 1997-8 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 1997-8
-------------------
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
1997-8 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.
"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 October 10, 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
----------------------
1997-8 Certificateholders' Interest evidenced by the CIA Certificates.
"CIA Certificate Rate" shall mean a per annum rate of 1.50% in excess of
--------------------
LIBOR, as determined on the
5
<PAGE>
related LIBOR Determination Date or such lesser rate as may be designated in the
Spread Account Agreement.
"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
6
<PAGE>
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 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 $89,278,000.
"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
7
<PAGE>
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 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 $29,352.
"CIA Principal Commencement Date" shall mean (a) with respect to the
-------------------------------
Accumulation Period, the first
8
<PAGE>
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 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 September 2007 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.
9
<PAGE>
"Class A Certificate Rate" shall mean a per annum rate of 0.15% in excess
------------------------
of LIBOR as determined (i) on September 19, 1997 for the period from and
including the Closing Date through and including October 16, 1997, and (ii) 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 1997-8 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
10
<PAGE>
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
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 $780,000,000.
"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.
11
<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 $256,438.
"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 September 2007
------------------------------
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.
12
<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 0.36% in excess
------------------------
of LIBOR as determined (i) on September 19, 1997 for the period from and
including the Closing Date through and including October 16, 1997, and (ii) 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 1997-8 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 of the last day of
the preceding Monthly Period and (b) the sum of the numerators used to calculate
fixed/
13
<PAGE>
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 Allocation Percentage shall be (1) the
aggregate amount of Principal Receivables in the Trust at the end of the
14
<PAGE>
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 $70,482,000.
"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 Monthly Period and the Class B Investor
Percentage applicable for the related Monthly Period.
15
<PAGE>
"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 $23,172.
"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 Certificates 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 Avail-
16
<PAGE>
able 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 September 2007
------------------------------
Distribution Date.
"Closing Date" shall mean September 23, 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, $78,313,334; 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
product of (a) a fraction, the numerator of which is the actual number of days
in such Interest Period and the denominator of which is 360, (b) the weighted
average of the Class A Certificate Rate, the Class B Certificate Rate and the
CIA Certificate Rate in effect with respect to the related Interest Period, and
(c) the Principal Funding Account Balance up to the Invested Amount as of the
last day of the Monthly Period preceding the Monthly Period in which such
Interest Period ends.
17
<PAGE>
"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 October 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.
--------------------
"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
18
<PAGE>
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 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 aggregate initial principal
-----------------------
amount of the Investor Certificates of Series 1997-8, which is $939,760,000.
19
<PAGE>
"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 24 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 1997-8.
"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
20
<PAGE>
Monthly Period the Investor Monthly Servicing Fee shall be $308,962.
"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) September 19, 1997 for the
------------------------
period from and including the Closing Date through and including October 16,
1997, and (ii) 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.
"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 1997-8 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 1997-8
Certificates shall begin on and include the Closing Date and shall end on and
include September 30, 1997.
"Monthly Principal" shall mean the monthly principal distributable in
-----------------
respect of the Series 1997-8 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
21
<PAGE>
Out Event is deemed to occur pursuant to Section 9.01 of the Agreement, (ii) a
Series 1997-8 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 1997-8 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, (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 deposited 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
22
<PAGE>
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.
"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 1997-8 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.
23
<PAGE>
"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 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 1997-8.
"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
24
<PAGE>
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 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 1997-8 Termination Date" shall mean the May 2010
----------------------------------------
Distribution Date.
"Series 1997-8" shall mean the Series of the First USA Credit Card Master
-------------
Trust represented by the Investor Certificates.
"Series 1997-8 Certificateholder" shall mean the holder of record of any
-------------------------------
Series 1997-8 Certificate.
25
<PAGE>
"Series 1997-8 Certificateholders' Interest" shall have the meaning
------------------------------------------
specified in Section 4.04 of the Agreement.
"Series 1997-8 Pay Out Event" shall have the meaning specified in Section
---------------------------
8 of this Series Supplement.
"Series 1997-8 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 1997-8 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), 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
26
<PAGE>
and any overdue Investor Monthly Servicing Fee from prior Transfer Dates.
SECTION 3. Reassignment and Transfer Terms. The Series 1997-8
-------------------------------
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 10% 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
1997-8 Certificates through the Record Date preceding the Distribution Date on
which the repurchase occurs.
SECTION 4. Delivery and Payment for the Series 1997-8 Certificates. The
-------------------------------------------------------
Transferor shall execute and deliver the Series 1997-8 Certificates to the
Trustee for authentication in accordance with Section 6.01 of the Agreement. The
Trustee shall deliver the Series 1997-8 Certificates when authenticated in
accordance with Section 6.02 of the Agreement.
SECTION 5. Depositary; Form of Delivery of Series 1997-8 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 delivered as Registered
Certificates as provided in Section 6.01 of the Agreement.
(b) The Depositary for Series 1997-8 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
27
<PAGE>
1997-8 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 1997-8 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 1997-8 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 times be
held in trust for the benefit of the Series 1997-8 Certificateholders.
(c) The Distribution Account. The Trustee, for the benefit of the Series
------------------------
1997-8 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
1997-8 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
28
<PAGE>
the benefit of the Series 1997-8 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 1997-8 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 1997-8 Certificateholders' Interest"). The CIA Certificates shall be
------------------------------------------
subordinate to the Class A Certificates and the Class B Certificates. The Class
B Certificates shall be 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 1997-8 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
29
<PAGE>
Processing, allocate the following amounts as set forth below:
(i) Allocate to the Series 1997-8 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 1997-8 Certificates in excess
of the amount required to be deposited 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 $2,310,000 to be applied as Collections of
Finance Charge Receivables allocated to the Series 1997-8 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 1997-8 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.
30
<PAGE>
(ii) Allocate to the Series 1997-8 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
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) (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.
31
<PAGE>
(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 1997-8 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 1997-8 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 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.
32
<PAGE>
(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 1997-8 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 1997-8 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 1997-8
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 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 1997-8 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
33
<PAGE>
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
1997-8, not to exceed (x) during the 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
34
<PAGE>
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 1997-8. 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 1997-8
-------------------------------------------------------
Certificates. (a) The amount of monthly interest (for the Series 1997-8
- ------------
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 product of (i) the product of (a) the Class A Certificate Rate
for the period from and including the Closing Date to and including October 16,
1997 and (b) a fraction the numerator of which is 24 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
35
<PAGE>
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 1997-8 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 product of (i) the product
of (a) the Class B Certificate Rate for the period from and including the
Closing Date to and including October 16, 1997 and (b) a fraction the numerator
of which is 24 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.
36
<PAGE>
(c) The amount of monthly interest (for the Series 1997-8 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 the product of (i) the product of (x) the CIA 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 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 equal to the product of (i) the product of (a) the CIA
Certificate Rate for the period from and including the Closing Date to and
including October 16, 1997 and (b) a fraction the numerator of which is 24 and
the denominator of which is 360 and (ii) 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 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 the product of
(i) the product of (a) the CIA Certificate Rate plus 2.00% per annum and (b) 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 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
37
<PAGE>
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
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
38
<PAGE>
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 Certificateholders 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 Available Funds 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
39
<PAGE>
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 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;
40
<PAGE>
(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 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
41
<PAGE>
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 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 Prin-
42
<PAGE>
cipal 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 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
43
<PAGE>
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
1997-8; 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 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
44
<PAGE>
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 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 August 31, 2006; 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.
45
<PAGE>
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 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
46
<PAGE>
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 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 by an amount in 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
47
<PAGE>
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 by an amount in
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
------------------------------------------------
1997-8 Certificates. On each Transfer Date, the Servicer will apply or cause the
- -------------------
Trustee to apply Excess Finance Charge Collections with respect to 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;
48
<PAGE>
(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;
(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
49
<PAGE>
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 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;
(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.
50
<PAGE>
Section 4.14 Reallocated Principal Collections for the Series 1997-8
-------------------------------------------------------
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
(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
51
<PAGE>
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 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
52
<PAGE>
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, the Class B Certificate Rate and
the CIA Certificate Rate applicable to the then current and the immediately
preceding Interest Periods may be obtained by any Series 1997-8
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 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
53
<PAGE>
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 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
54
<PAGE>
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, 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
55
<PAGE>
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 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
56
<PAGE>
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 1997-8 Certificateholders, (iii) if the
Accumulation Period has not commenced, the occurrence of a Pay Out Event with
respect to Series 1997-8 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 1997-8 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.
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
1997-8 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
57
<PAGE>
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
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.
58
<PAGE>
(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.
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;
59
<PAGE>
(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 and 155 or more days Contractually Delinquent as of the end
of the day on the Record Date;
(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;
60
<PAGE>
(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
(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 1997-8 Certificateholder, a statement prepared by the Servicer
containing the information required to be contained in the regular monthly
report to Series 1997-8 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 1997-8 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 1997-8 Certificateholders to prepare their tax
returns. Such obligations of the Trustee shall be deemed to have been satisfied
to the extent that substantially comparable
61
<PAGE>
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 1997-8 Pay Out Events. If any one of the following
----------------------------
events shall occur with respect to the Series 1997-8 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 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 1997-8 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 1997-8 Certificates evidencing Undivided Interests aggregating
not less than 50% of the Invested Amount of this Series 1997-8, and continues to
affect materially and adversely the interests of the Series 1997-8
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,
62
<PAGE>
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
1997-8 Certificates evidencing Undivided Interests aggregating more than 50% of
the Invested Amount of this Series 1997-8 and (ii) as a result of which the
interests of the Series 1997-8 Certificateholders are materially and adversely
affected and continue to be materially and adversely affected for such period;
provided, however, that a Series 1997-8 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
(e) any Servicer Default shall occur which would have a
material adverse effect on the Series 1997-8 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 1997-8 Certificates evidencing Undivided Interests
aggregating more than 50% of the Invested Amount of this Series 1997-8 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
------
1997-8 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 1997-8 Pay Out
Event shall occur without any notice or other action on the part of the Trustee
or the Series 1997-8 Certificateholders immediately upon the occurrence of such
event.
SECTION 9. Series 1997-8 Termination. The right of the Series 1997-8
-------------------------
Certificateholders to receive payments from the Trust will terminate on the
first
63
<PAGE>
Business Day following the Series 1997-8 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 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.
64
<PAGE>
(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
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
65
<PAGE>
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:
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
66
<PAGE>
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
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 PUR-
67
<PAGE>
CHASING 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 1997-8 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 1997-8
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 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
68
<PAGE>
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,
--------
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
69
<PAGE>
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 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,
70
<PAGE>
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:
(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
71
<PAGE>
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 1997-8 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/ John Mark Bunnel
-----------------------------
Name: John Mark Bunnel
Title: 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: May 17, 2010 CUSIP NO. 337435CT6
FIRST USA CREDIT CARD MASTER TRUST CLASS A FLOATING RATE
ASSET BACKED CERTIFICATE, SERIES 1997-8
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 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. 32
of Receivables in Additional Accounts
- ----------------
* VISA (R) and MasterCard (R) are registered trademarks of Visa USA
Incorporated and MasterCard International Incorporated, respectively.
<PAGE>
dated as of September 23, 1997 between the Bank, as Transferor and Servicer, and
the Trustee, and as supplemented by the Series 1997-8 Supplement (the "Series
1997-8 Supplement"), dated as of September 23, 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 1997-8 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 1997-8" (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.
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,
A-2
<PAGE>
Series 1997-8 (the "Class B Certificates") with the intention that the Class A
Certificates and 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 1997-8 (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 $780,000,000. The Class A Invested
Amount for any monthly Distribution Date will be an amount equal to
$780,000,000, 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 5.80625% per
annum on the Class A Initial Invested Amount from September 23, 1997 through
October 16, 1997, and for each Interest Period thereafter, the Class A
Certificates will bear interest at a per annum rate of 0.15% in
A-3
<PAGE>
excess of LIBOR as determined by the Trustee on the related LIBOR Determination
Date (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 October
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 1997-8 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
October 17, 1997 and on each Distribution Date thereafter until the Scheduled
Series 1997-8 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 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,
A-4
<PAGE>
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 1997-8
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
A-5
<PAGE>
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 September 2007 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 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 1997-8
Termination Date (the
A-6
<PAGE>
"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 May 17, 2010 (or if such day is not a Business Day, the
next succeeding Business Day) (the "Scheduled Series 1997-8 Termination Date").
After the Scheduled Series 1997-8 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
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
A-7
<PAGE>
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 1997-8 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 1997-8 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 A Certificateholder.
A-8
<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 23rd day of September, 1997.
FIRST USA BANK
By:
--------------------------
Name: John Mark Bunnel
Title: 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: September 23, 1997
By:
----------------------------
Name: Todd N. Niemy
Title: 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: May 17, 2010 CUSIP NO. 337435CU3
FIRST USA CREDIT CARD MASTER TRUST CLASS B FLOATING RATE
ASSET BACKED CERTIFICATE, SERIES 1997-8
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
<PAGE>
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. 32
of Receivables in Additional Accounts dated as of September 23, 1997 between the
Bank, as Transferor and Servicer, and the Trustee, and as supplemented by the
Series 1997-8 Supplement (the "Series 1997-8 Supplement"), dated as of September
23, 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
1997-8 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 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
- -----------------
* VISA (R) and MasterCard (R) are registered trademarks of Visa USA
Incorporated and MasterCard International Incorporated, respectively.
B-2
<PAGE>
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 1997-8" (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 1997-8 (the "Class A Certificates") with the intention that
the Class A Certificates and 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 1997-8 (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
Certifi-
B-3
<PAGE>
cates (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 $70,482,000. The Class B Invested
Amount for any monthly Distribution Date will be an amount equal to (i)
$70,482,000, 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 6.01625% per
annum on the Class B Initial Invested Amount from September 23, 1997 through
October 16, 1997, and for each Interest Period thereafter, the Class B
Certificates will bear interest at a per annum rate of 0.36% in excess of LIBOR
as determined by the Trustee on the related LIBOR Determination Date (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 October 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 1997-8
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 Class B 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
B-4
<PAGE>
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 October 17, 1997 and on
each Distribution Date thereafter until the Scheduled Series 1997-8 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 full and (iii) the Scheduled Series 1997-8
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
B-5
<PAGE>
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 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 post-
B-6
<PAGE>
pone the commencement of the Accumulation Period, and extend the length of the
Revolving Period.
On the September 2007 Distribution Date if the Class A Invested Amount
is paid in full, Available Investor Principal Collections and Excess Principal
Collections allocable to Series 1997-8 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 1997-8 are
insufficient to pay in full the Class B Invested Amount on the September 2007
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 1997-8
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 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
B-7
<PAGE>
(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 September 2007 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 May 17, 2010 (or if such day is not a Business Day, the
next succeeding Business Day) (the "Scheduled Series 1997-8 Termination Date").
After the Series 1997-8 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 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
B-8
<PAGE>
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 1997-8 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 1997-8 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
B-9
<PAGE>
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
Certificateholder.
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 23rd day of September, 1997.
FIRST USA BANK
By:
----------------------------
Name: John Mark Bunnel
Title: 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: September 23, 1997
By:
----------------------------
Name: Todd N. Niemy
Title: 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 1997-8
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 1997-8 SUPPLEMENT.
No. R-1 $___________
Series Termination
Date: May 17, 2010 CUSIP NO. 337435CW9
C-2
<PAGE>
FIRST USA CREDIT CARD MASTER TRUST
CIA CERTIFICATE, SERIES 1997-8
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. 32
of Receivables in Additional Accounts dated as of September 23, 1997 between the
Bank, as Transferor and Servicer, and the Trustee, and as supplemented by the
Series 1997-8 Supplement (the "Series 1997-8 Supplement"), dated as of September
23, 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
1997-8 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 September 23, 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 1997-8" (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 1997-8 (the "Class A Certificates") and the First USA
Credit Card Master Trust Class B Floating Rate Asset Backed Certificates, Series
1997-8 (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 $89,278,000. 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
from September 23, 1997 through October 16, 1997, and for each Interest Period
thereafter,
C-5
<PAGE>
the CIA Certificates will bear interest at a per annum rate of _____% in excess
of LIBOR as determined by the Trustee on the related LIBOR Determination Date
(each such rate as in effect from time to time, the "CIA Certificate Rate").
Interest will be distributed to the extent of available funds on October 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 1997-8
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 CIA Certificate Rate and (c) the aggregate outstanding
principal balance of the CIA Certificates 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 on October 17, 1997 and on each Distribution Date
thereafter until the Scheduled Series 1997-8 Termination 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
C-6
<PAGE>
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.
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 1997-8
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
C-7
<PAGE>
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. Principal
on the CIA Certificates is scheduled to be distributed on the September 2007
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 September 2007 Distribution Date if the Class A Invested Amount
and the Class B Invested Amount each is paid in full, Available Investor
Principal Collections
C-8
<PAGE>
and Excess Principal Collections allocable to Series 1997-8 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 Scheduled Series 1997-8
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 1997-8
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)
C-9
<PAGE>
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. 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 September 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 May 17, 2010 (or if such day is not a Business Day, the next succeeding
Business Day) (the "Scheduled Series 1997-8 Termination Date"). After the
Scheduled Series 1997-8 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
C-10
<PAGE>
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 evidencing
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 1997-8 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 1997-8 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
certificate-
C-11
<PAGE>
holder 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 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
C-12
<PAGE>
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, 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 23rd day of September, 1997.
FIRST USA BANK
By:
-----------------------------
Name: John Mark Bunnel
Title: 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: September 23, 1997
By:
--------------------------
Name: Todd N. Niemy
Title: Vice President
<PAGE>
Exhibit D
[LOGO OF DEPOSITORY TRUST COMPANY APPEARS HERE]
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]
September 23, 1997
------------------
[Date]
Attention: General Counsel's Office
The Depository Trust Company
55 Water Street; 49th Floor
New York, NY 10041-0099
Re: $780,000,000 Class A Floating Rate Asset Backed
---------------------------------------------------------
Certificates, Series 1997-8; $70,482,000 Class B Floating
---------------------------------------------------------
Rate Asset Backed Certificates, Series 1997-8
---------------------------------------------------------
[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"). Bear, Stearns & Co. Inc. **
- ----------- - -------------------------------------
["Underwriter"]
is 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 September 23, 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 September 23, 1997.
** As representative for itself, and Banc One Capital 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 Stewart 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
<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 to 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 issue 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
<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
<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/ John Mark Bunnel
--------------------------------
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
<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
$780,000,000 Class A Floating Rate Asset Backed
Certificates, Series 1997-8
$70,482,000 Class B Floating Rate Asset Backed
Certificates, Series 1997-8
<TABLE>
<CAPTION>
CUSIP Principal Amount Maturity Date Interest Rate
- --------- ---------------- -------------- ------------------
<S> <C> <C> <C>
337435CT6 $200,000,000 May 17, 2010 0.15% above LIBOR
337435CT6 $200,000,000 May 17, 2010 0.15% above LIBOR
337435CT6 $200,000,000 May 17, 2010 0.15% above LIBOR
337435CT6 $180,000,000 May 17, 2010 0.15% above LIBOR
337435CU3 $ 70,482,000 May 17, 2010 0.36% 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>
[LOGO OF DEPOSITARY TRUST COMPANY APPEARS HERE]
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.
<PAGE>
EXHIBIT E
MONTHLY ALLOCATIONS AND PAYMENT INSTRUCTIONS AND
NOTIFICATION TO THE TRUSTEE
FIRST USA BANK
------------------------------------------------
FIRST USA CREDIT CARD MASTER TRUST, SERIES 1997-8
------------------------------------------------
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 1997-8
Supplement dated September 23, 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 1997-8
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
Outstanding Principal Balance (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 1997-8
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
Principal Funding Investment Proceeds N/A
Reserve Account Withdrawals N/A
----------------
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 1997-8
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 1997-8
Page E-5
F. Pursuant to subsection 4.13(f):
-------------------------------
1. CIA Monthly Interest for the preceding
Interest Period on the aggregate outstanding
principal balance of the CIA Certificates
(Actual/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 1997-8
Page E-6
III. APPLICATION OF PRINCIPAL COLLECTIONS
------------------------------------
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
================
<PAGE>
MONTHLY PAYMENT INSTRUCTIONS SERIES 1997-8
Page E-7
IV. TRUSTEE DISBURSEMENT SUMMARY
----------------------------
(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)
<PAGE>
EXHIBIT F
MONTHLY CERTIFICATEHOLDERS' STATEMENT
FIRST USA BANK
------------------------------------------------
FIRST USA CREDIT CARD MASTER TRUST, SERIES 1997-8
------------------------------------------------
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 1997-8 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 1997-8
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.
----------------
Total
================
<PAGE>
MONTHLY PAYMENT INSTRUCTIONS SERIES 1997-8
Page F-3
(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 Period)
<PAGE>
MONTHLY PAYMENT INSTRUCTIONS SERIES 1997-8
Page F-4
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 or more days
----------------
Total
================
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
================
<PAGE>
MONTHLY PAYMENT INSTRUCTIONS SERIES 1997-8
Page F-5
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
================
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
================
<PAGE>
MONTHLY PAYMENT INSTRUCTIONS SERIES 1997-8
Page F-6
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
K. The Portfolio Yield
-------------------
The Portfolio Yield for the related Monthly Period
L. The Base Rate
-------------
The Base Rate for the related Monthly Period
<PAGE>
MONTHLY PAYMENT INSTRUCTIONS SERIES 1997-8
Page F-7
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
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
================
<PAGE>
MONTHLY CERTIFICATEHOLDERS' STATEMENT Series 1997-8
PAGE F-8
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
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 1997-8
-------------------------------------------------
Ladies and Gentlemen:
In connection with our proposed purchase of $______ in principal amount
of First USA Credit Card Master Trust, CIA Certificates, Series 1997-8 (the "CIA
Certificates"), we confirm that:
1. We have received a copy of the Private Placement Memorandum dated
September 11, 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 1997-8 Supplement dated as of September 23, 1997 (the
"Series 1997-8 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
<PAGE>
York (Delaware) 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 1997-8
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
Transferor 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 1997-8
<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 1997-8 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]
