Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
------------------------
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
First USA Bank, National Association
(ORIGINATOR OF THE TRUST DESCRIBED HEREIN)
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
First USA Credit Card Master Trust
(ISSUER OF THE CERTIFICATES)
DELAWARE First USA Bank, 51 - 0269396
(State or other jurisdiction of National Association (I.R.S. employer
incorporation or organization) 201 North Walnut Street identification
Wilmington, Delaware 19801 number)
(302) 594-4000
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
RICHARD W. VAGUE
201 North Walnut Street
Wilmington, Delaware 19801
(302) 594-4100
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Joanne K. Sundheim Andrew M. Faulker, Esq.
Senior Vice President and Skadden, Arps, Slate, Meagher & Flom LLP
Associate General Counsel 919 Third Avenue
201 North Walnut Street New York, New York 10022
Wilmington, Delaware 19801 (212) 735-2000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after this registration statement becomes effective as
determined by market conditions.
If the only securities registered on this form are to be offered
pursuant to dividend or interest reinvestment plans, please check the
following box. ( )
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box. (X)
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. ( )
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. ( )
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. ( )
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CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS PROPOSED MAXIMUM
OF SECURITIES TO BE AMOUNT TO OFFERING PRICE PER PROPOSED MAXIMUM AMOUNT OF
REGISTERED BE REGISTERED UNIT (1) OFFERING PRICE (1) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Asset Backed
Certificates......... $1,000,000 100% $1,000,000 $278
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(1) Estimated solely for purpose of calculating the registration fee.
</TABLE>
THE REGISTRANT HEREBY AMENDS THE REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
SUBJECT TO COMPLETION, DATED SEPTEMBER 23, 1999
PROSPECTUS SUPPLEMENT
(TO PROSPECTUS DATED _______, ____)
$------------
FIRST USA CREDIT CARD MASTER TRUST
$_________ CLASS A FLOATING RATE ASSET BACKED
CERTIFICATES, SERIES 1999-__
$________ CLASS B FLOATING RATE ASSET BACKED CERTIFICATES,
SERIES 1999-__
FIRST USA BANK, N.A.
TRANSFEROR AND SERVICER
CLASS A CERTIFICATES CLASS B CERTIFICATES
Principal Amount $___________ $___________
Price $___________ (____%) $___________ (____%)
Underwriting Discount $___________ (____%) $___________ (____ %)
Proceeds to the Transferor $___________ (_____%) $___________ (_____%)
Certificate Rate one-month LIBOR+____% one-month LIBOR+____%
p.a. p.a.
Interest Payment Dates monthly on the ____ monthly on the ____
First Interest Payment Date ______ __, _____ ______ __, _____
Scheduled Principal Payment
Date ______ __, _____ ______ __, _____
THE CLASS B CERTIFICATES ARE SUBORDINATED TO THE CLASS A
CERTIFICATES.
THESE SECURITIES ARE INTERESTS IN FIRST USA CREDIT CARD MASTER TRUST
AND ARE BACKED ONLY BY THE ASSETS OF THE TRUST. NEITHER THESE SECURITIES
NOR THE ASSETS OF THE TRUST ARE OBLIGATIONS OF FIRST USA BANK, N.A. OR ANY
OF ITS AFFILIATES, OR OBLIGATIONS INSURED BY THE FDIC.
THESE SECURITIES ARE HIGHLY STRUCTURED. BEFORE YOU PURCHASE THESE
SECURITIES, BE SURE YOU UNDERSTAND THE STRUCTURE AND THE RISKS. SEE "RISK
FACTORS" BEGINNING ON PAGE S-__ IN THIS PROSPECTUS SUPPLEMENT.
We have applied to list these securities on the Luxembourg Stock
Exchange.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR
PASSED ON THE ADEQUACY OR ACCURACY OF THE DISCLOSURES IN THIS SUPPLEMENT
AND THE ATTACHED PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
These securities are offered subject to availability. We expect that
these securities will be delivered in book-entry form on ___________
through The Depository Trust Company, Cedelbank, societe anonyme and the
Euroclear System.
[Underwriters of the Class A Certificates]
[Underwriter of the Class B Certificates]
The date of this Prospectus Supplement is ______ __, _____
The information in this prospectus is not complete and may be changed. We
can not sell these securities until the registration statement filed with
the Securities and Exchange Commission is effective. This prospectus is not
an offer to sell these securities and it is not soliciting an offer to buy
these securities in any state where the offer or sale is not permitted.
TABLE OF CONTENTS
WHERE TO FIND INFORMATION IN THESE DOCUMENTS..............................S-3
SUMMARY OF TERMS..........................................................S-4
STRUCTURAL SUMMARY........................................................S-5
SELECTED TRUST PORTFOLIO SUMMARY DATA.....................................S-8
PAYMENT DATA..............................................................S-9
RISK FACTORS.............................................................S-11
Potential Early Repayment or Delayed Payment
due to Reduced Portfolio Yield.....................................S-11
Allocations of Charged-Off Receivables Could
Reduce Payments to Certificateholders..............................S-13
Limited Ability to Resell Certificates...............................S-14
Certain Liens Could Be Given Priority Over
Your Securities....................................................S-14
Insolvency or Bankruptcy of First USA Could
Result in Accelerated, Delayed or Reduced
Payments to Certificateholders.....................................S-14
Issuance of Additional Series by the Trust May
Affect the Timing of Payments......................................S-15
Individual Certificateholders Will Have Limited
Control of Trust Actions...........................................S-16
Class B Bears Additional Credit Risk.................................S-16
FIRST USA'S CREDIT CARD PORTFOLIO........................................S-17
General..................................................................S-17
Assessment of Fees and Finance and Other
Charges............................................................S-18
Delinquency and Loss Experience..........................................S-19
Interchange..............................................................S-20
THE RECEIVABLES..........................................................S-21
General..................................................................S-21
MATURITY CONSIDERATIONS..................................................S-25
RECEIVABLE YIELD CONSIDERATIONS..........................................S-27
USE OF PROCEEDS..........................................................S-27
FIRST USA BANK, N.A......................................................S-27
DESCRIPTION OF THE CERTIFICATES..........................................S-28
General..................................................................S-28
Status of the Certificates...............................................S-28
Prescription.............................................................S-29
Interest Payments........................................................S-29
Principal Payments.......................................................S-30
Postponement of Accumulation Period......................................S-31
Excess Principal Collections.............................................S-32
Subordination of the Class B Certificates................................S-33
Investor Percentage and Transferor Percentage ...........................S-33
Reallocation of Cash Flows...............................................S-36
Application of Collections...............................................S-36
Allocation of Collections of Finance Charge
Receivables........................................................S-40
Excess Finance Charge Collections........................................S-41
Payments of Principal....................................................S-43
Allocation of Collections of Principal
Receivables...........................................................S-44
Reallocated Principal Collections........................................S-45
Defaulted Receivables; Investor Charge-Offs..............................S-46
Principal Funding Account................................................S-47
Reserve Account..........................................................S-48
Companion Series.........................................................S-49
Pay Out Events...........................................................S-49
Optional Repurchase......................................................S-51
Servicing Compensation and Payment of
Expenses..............................................................S-51
Reports to Certificateholders............................................S-51
LISTING AND GENERAL INFORMATION..........................................S-51
ERISA CONSIDERATIONS.....................................................S-52
Class A Certificates.....................................................S-52
Class B Certificates.....................................................S-53
Consultation with Counsel................................................S-53
UNDERWRITING.............................................................S-54
EXCHANGE LISTING.........................................................S-55
ANNEX I OTHER SERIES...................................................A-I-1
ANNEX II GLOBAL CLEARANCE,
SETTLEMENT AND TAX DOCUMENTATION PROCEDURES..........................A-II-1
INDEX OF TERMS FOR PROSPECTUS SUPPLEMENT................................A-II-5
WHERE TO FIND INFORMATION IN THESE DOCUMENTS
The attached prospectus provides general information about First USA
Credit Card Master Trust, including terms and conditions that are generally
applicable to the securities issued by the Trust. The specific terms of
Series 1999-__ are described in this supplement.
This supplement begins with several introductory sections describing
your series and First USA Credit Card Master
Trust in abbreviated form:
o Summary of Terms provides important amounts, dates and other terms
of your series;
o Structural Summary gives a brief introduction of the key
structural features of your series and directions
for locating further information;
o Selected Trust Portfolio Summary Data gives certain financial and
statistical information about the assets
of the Trust; and
o Risk Factors describes risks that apply to your series.
As you read through these sections, cross-references will direct you
to more detailed descriptions in the attached prospectus and elsewhere in
this supplement. You can also directly reference key topics by looking at
the table of contents pages in this supplement and the attached prospectus.
This supplement and the attached prospectus may be used by Banc One
Capital Markets, Inc. in connection with offers and sales related to
market-making transactions in the certificates offered by this supplement
and the attached prospectus. Banc One Capital Markets, Inc. may act as
principal or agent in such transactions. Such sales, if any, will be made
at varying prices related to prevailing market prices at the time of sale.
To understand the structure of these securities, you must read
carefully the attached prospectus and this supplement in their entirety.
SUMMARY OF TERMS
Trust: First USA Credit Card Master Trust - "Trust"
Transferor: First USA Bank, N.A.--"First USA" or the "Bank"
Servicer: First USA
Trustee: The Bank of New York (Delaware)
Pricing Date: _________, ____
Closing Date: _________, ____
Clearance and
Settlement: DTC/Cedelbank/Euroclear
Trust Assets: receivables originated in VISA(R) and
MasterCard(R) accounts, including recoveries on charged-off
receivables
Series Structure: Amount % of Total Series
Class A $___________ ____%
Class B $___________ ____%
Excess Collateral $___________ ____%
Annual Servicing Fee: ____%
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CLASS A CLASS B
<S> <C> <C>
Anticipated Ratings:*
(Moody's/Standard & Poor's/Fitch Aaa/AAA/AAA A2/A/A+
Credit Enhancement: subordination of subordination of the
Class B and the excess collateral
excess collateral
Interest Rate: one-month LIBOR +__% p.a. one-month LIBOR +__% p.a.
Interest Accrual Method: actual / 360 actual / 360
Interest Payment Dates: monthly (__th) monthly (__th)
Interest Rate Index Reset Date: 2 London business days 2 London business days
before each interest before each interest
payment date payment date
First Interest Payment Date: _________, ____ _________, ____
Scheduled Payment Date: _________, ____ _________, ____
Commencement of Accumulation
Period (subject to adjustment): _________, ____ _________, ____
Stated Series Termination Date: _________, ____ _________, ____
Application for Exchange Listing: Luxembourg Luxembourg
CUSIP Number: ______________ ______________
ISIN Number: ______________ ______________
Common Code: ______________ ______________
</TABLE>
* It is a condition to issuance that one of these ratings be obtained.
<PAGE>
STRUCTURAL SUMMARY
This summary briefly describes certain major structural components of
Series 1999-__. To fully understand the terms of Series 1999-__ you will
need to read both this supplement and the attached prospectus in their
entirety.
THE SERIES 1999-__ CERTIFICATES
Your certificates represent the right to a portion of collections on
the underlying Trust assets. Your certificates will also be allocated a
portion of net losses on receivables, if any. Any collections of finance
charges allocated to your series will be used to make interest payments, to
pay a portion of the fees of First USA as servicer and to cover net losses
allocated to your series. Any remaining collections of finance charges
allocated to your series will be applied for the benefit of the holder of
the excess collateral. Any principal collections allocated to your series
in excess of the amount owed to certificates of your series on any
distribution date will be shared with other series of certificates issued
by First USA Credit Card Master Trust, retained in a trust account, or
returned to First USA. In no case will you receive more than the principal
and interest owed to you under the terms described in this supplement and
the attached prospectus.
For further information on allocations and payments, see "Description
of the Certificates--Investor Percentage and Transferor Percentage" and
"--Application of Collections" in this supplement. For further information
about the receivables supporting your certificates, see "The Receivables"
and "Receivable Yield Considerations" in this supplement. For a more
detailed discussion of the certificates, see "Description of the
Certificates" in this supplement and the attached prospectus.
Your certificates feature credit enhancement by means of the
subordination of other interests, which is intended to protect you from net
losses and shortfalls in cash flow. Credit enhancement for your series is
for your series' benefit only. Credit enhancement is provided to Class A by
the following:
o subordination of Class B; and
o subordination of the excess collateral.
Credit enhancement is provided to Class B by the following:
o subordination of the excess collateral.
The effect of subordination is that the more subordinated interests
will absorb any net losses allocated to Series 1999-__, and make up any
shortfalls in cash flow, before the more senior interests are affected. On
the closing date the excess collateral will be $_______, or ___% of the sum
of the initial Class A invested amount, the initial Class B invested amount
and the initial excess collateral amount. If the cash flow and any
subordinated interest do not cover all net losses allocated to Series
1999-__, your payments of interest and principal will be reduced and you
may suffer a loss of principal.
For a more detailed description of the subordination provisions of
Series 1999-__, see "Description of the Certificates--Subordination of the
Class B Certificates" in this supplement. For a discussion of losses, see
"Description of the Certificates--Defaulted Receivables; Investor
Charge-Offs" in this supplement. See "Risk Factors" in this supplement for
more detailed discussions of the risks of investing in Series 1999-__.
FIRST USA CREDIT CARD MASTER TRUST
Your series is one of __________ series issued by First USA Credit
Card Master Trust which are expected to remain outstanding as of the
closing date.
First USA Credit Card Master Trust is maintained by the trustee, for
the benefit of:
o certificateholders of Series 1999-__;
o certificateholders of other series issued by First USA Credit
Card Master Trust;
o providers of credit enhancements for Series 1999-__ and other
series issued by First USA Credit Card Master Trust; and
o First USA.
For a summary of the terms of the other series that will be
outstanding on the closing date see "Annex I: Other Series."
Each series has a claim to a fixed dollar amount of First USA Credit
Card Master Trust's assets, regardless of the total amount of receivables
in the Trust at any time. First USA holds the remaining claim to First USA
Credit Card Master Trust's assets, which fluctuates with the total amount
of receivables in the Trust. First USA, as the holder of that amount, has
the right to purchase the outstanding Series 1999-__ certificates at any
time when the outstanding amount of the Series 1999-__ certificateholders'
interest in the First USA Credit Card Master Trust is less than or equal to
5% of the original amount of that interest. The purchase price for these
outstanding Series 1999-__ certificates will be equal to the outstanding
amount plus accrued and unpaid interest on the certificates through the
last day of the period on which the repurchase occurs.
For more information on First USA Credit Card Master Trust's assets,
see "First USA's Credit Card Portfolio" and "The Receivables" in this
supplement and "First USA's Credit Card Activities" and "The Receivables"
in the attached prospectus. For more information on the final payment of
principal and optional repurchase of the certificates by the Transferor,
see "Description of the Certificates--Optional Repurchase" in this
supplement and "Description of the Certificates--Final Payment of
Principal; Termination" in the attached prospectus.
SCHEDULED PRINCIPAL PAYMENTS AND POTENTIAL LATER PAYMENTS
First USA Credit Card Master Trust expects to pay the entire
principal amount of Class A and the entire principal amount of Class B in
one payment on __________, ____. In order to accumulate the funds to pay
Class A and Class B on their scheduled payment date, the Trust will
accumulate principal collections in a principal funding account. The Trust
will deposit funds into the principal funding account during an
"accumulation period" on each "transfer date." The length of the
accumulation period may be as long as twelve months, but will be shortened
if First USA expects that a shorter period will suffice for the
accumulation of the Class A, Class B and excess collateral payment amounts.
If Class A is not fully repaid on the scheduled payment date, Class A
will begin to amortize by means of monthly payments of all monthly
principal collections allocated to Series 1999-__ until it is fully repaid.
After Class A is fully repaid the Trust will use principal
collections allocated to Series 1999-__ to repay Class B. If Class B is not
fully repaid on the scheduled payment date, Class B will begin to amortize
by means of monthly payments of all monthly principal collections allocated
to Series 1999-__ after Class A is fully repaid.
For more information on scheduled principal payments and the
accumulation period, see "Maturity Considerations" and "Description of the
Certificates--Principal Payments," "--Postponement of Accumulation Period"
and "--Application of Collections" in this supplement and "Maturity
Assumptions" and "Description of the Certificates--Principal Payments" in
the attached prospectus.
Prior to the commencement of an accumulation or amortization period
for Series 1999-__, principal collections will be paid to First USA,
retained in a trust account or shared with other series that are amortizing
or in an accumulation period.
MINIMUM YIELD ON THE RECEIVABLES; POSSIBLE EARLY PRINCIPAL REPAYMENT OF
SERIES 1999-__
Class A or Class B may be repaid earlier than its scheduled payment
date if collections on the underlying receivables, together with other
amounts available for payment to securityholders, are too low. The minimum
amount that must be available for payment to Series 1999-__ in any month,
referred to as the "base rate," is the sum of the Class A interest rate,
the Class B interest rate and the excess collateral minimum interest rate,
plus 2.0%. If the average Trust portfolio yield, net of losses allocated to
your series, for any three consecutive months is less than the average base
rate for the same three consecutive months, a "pay out event" will occur
with respect to Series 1999-__ and the Trust will commence a rapid
amortization of Series 1999-__, and holders of Series 1999-__ certificates
will receive principal payments earlier than the scheduled principal
payment date.
Series 1999-__ is also subject to several other pay out events, which
could cause Series 1999-__ to amortize, and which are summarized under the
headings "Maturity Considerations" and "Description of the
Certificates--Pay Out Events" in this supplement. If Series 1999-__ begins
to amortize, Class A will receive monthly payments of principal until it is
fully repaid; Class B will then receive monthly payments of principal until
it is fully repaid. In that event, your certificates may be repaid prior to
the scheduled payment date.
The final payment of principal and interest will be made no later
than ___________, ______, which is the stated series termination date.
For more information on pay out events, the portfolio yield and base
rate, early principal repayment and rapid amortization, see "Maturity
Considerations," "Description of the Certificates--Principal Payments" and
"--Pay Out Events" in this supplement and "Description of the
Certificates--Principal Payments" and "--Final Payment of Principal;
Termination" in the attached prospectus.
TAX STATUS OF CLASS A AND CLASS B
Skadden, Arps, Slate, Meagher & Flom LLP, special tax counsel to
First USA, is of the opinion that under existing law the Class A and Class
B certificates will be characterized as debt for U.S. Federal income tax
purposes.
The Transferor, the Servicer, the holders of the Class A certificates
and the Class B certificates and the owners of such certificates will treat
the Class A certificates and the Class B certificates as debt for Federal,
state, local and foreign income and franchise tax purposes.
For further information regarding the application of U.S. Federal
income tax laws, see "Certain U.S. Federal Income Tax Consequences" in the
attached prospectus.
ERISA CONSIDERATIONS
Class A Certificates: The underwriters anticipate that the Class A
certificates will meet the criteria for treatment as "publicly-offered
securities." If so, subject to important considerations described under
"ERISA Considerations" in this supplement and in the attached prospectus,
the Class A certificates will be eligible for purchase by persons investing
assets of employee benefit plans or individual retirement accounts.
Class B Certificates: It is not anticipated that the Class B certificates
will meet the criteria for treatment as "publicly-offered securities." As
such, pension plans and other investors subject to ERISA cannot acquire
Class B certificates. Prohibited investors include:
o "employee benefit plans" as defined in section 3(3) of ERISA;
o any "plan" as defined in section 4975 of the U.S. Internal
Revenue Code; and
o any entity whose underlying assets may be deemed to include
"plan assets" under ERISA by reason of any such plan's
investment in the entity, including insurance company general
accounts.
By purchasing any Class B certificates you certify that you are not
within any of those categories.
For further information regarding the application of ERISA, see
"ERISA Considerations" in this supplement and the attached prospectus.
MAILING ADDRESS AND TELEPHONE NUMBER OF PRINCIPAL EXECUTIVE OFFICES
The mailing address of First USA Bank, N.A. is 201 North Walnut Street,
Wilmington, Delaware, 19801 and the telephone number is (302) 594-4000.
SELECTED TRUST PORTFOLIO SUMMARY DATA
[chart showing geographic distirbution]
The chart above shows the geographic distribution of the receivables
in the Trust portfolio among the 50 states, the District of Columbia and
the other United States territories and possessions. Other than the states
specifically shown in the chart, no state accounts for more than 5% of the
receivables in the Trust portfolio.
PAYMENT DATA
[chart showing payment data]
The chart above shows the yield percentage, payment rate and loss
percentage for the Trust portfolio for each month from ________, ____ to
________, ____.
The "YIELD PERCENTAGE" for any month is the sum of the amounts of
collected finance charges and fees and discount receivables allocated to a
representative series for the month expressed as an annualized percentage
of the invested amount of that series. The collected finance charges and
fees and discount receivables are allocated to the representative series
based on the floating allocation percentage applicable on each day. If
there is an addition of accounts during the month the floating allocation
percentage will change on the date of the addition. A representative series
is one that is outstanding at its initial invested amount for each day
during the month.
The "PAYMENT RATE" for any month is the total amount of principal
collections allocated to the Trust for the monthly period, expressed as a
percentage of average monthly principal receivable balances.
The "LOSS PERCENTAGE" for any monthly period is the sum of the
principal receivables in charged-off accounts, net of recoveries from
previously charged-off accounts, allocated to a representative series for
the month expressed as an annualized percentage of the invested amount of
that series. Principal receivables in charged-off accounts are allocated to
the representative series on a daily basis during the month based on the
floating allocation percentage applicable on each day. If there is an
addition of accounts during the month the floating allocation percentage
will change on the date of the addition. Recoveries from previously
charged-off accounts are allocated to the representative series at the end
of the month based on the weighted average floating allocation percentage
for the month. A representative series is one that is outstanding at its
initial invested amount for each day during the month.
RISK FACTORS
You should consider the following risk factors in deciding whether to
purchase the asset backed certificates described herein.
POTENTIAL EARLY If the average Trust portfolio yield, net of
REPAYMENT OR DELAYED losses allocated to your series, for any
PAYMENT DUE TO three consecutive months is less than the
REDUCED PORTFOLIO YIELD average base rate for the same three
consecutive months, a "pay out event" will
occur with respect to Series 1999-__ and the
Trust will commence a rapid amortization of
Series 1999-__, and holders of Series 1999-__
certificates will receive principal payments
earlier than the scheduled principal
repayment date. Moreover, if principal
collections on receivables allocated to other
series are available for application to a
rapid amortization of any outstanding
securities, the period during which that
rapid amortization occurs may be
substantially shortened. Because of the
potential for early repayment if collections
on the receivables fall below the minimum
amount, any circumstances that tend to reduce
collections may increase the risk of early
repayment of Series 1999-__.
Conversely, any reduction in collections may
cause the period during which collections are
accumulated in the principal funding account
for payment of Series 1999-__ certificates to
be longer than otherwise would have been the
case.
The following factors could result in
circumstances that tend to reduce
collections:
FIRST USA MAY CHANGE THE TERMS AND CONDITIONS
OF THE ACCOUNTS
First USA will transfer receivables to the
First USA Credit Card Master Trust arising
under specified credit card accounts, but
First USA will continue to own those
accounts. As the owner of those accounts,
First USA retains the right to change various
terms and conditions of those accounts,
including finance charges and other fees it
charges and the required minimum monthly
payment. First USA may change the terms of
the accounts to maintain its competitive
position in the credit card industry. Changes
in the terms of the accounts may reduce the
amount of receivables arising under the
accounts, reduce the amount of collections on
those receivables, or otherwise alter payment
patterns.
First USA has agreed that it will not change
the terms of the accounts or its policies
relating to the operation of its credit card
business, including the reduction of the
required minimum monthly payment and the
calculation of the amount or the timing of
finance charges, other fees and charge-offs,
unless it reasonably believes such a change
would not result in a pay out event for any
series and takes the same action on its other
substantially similar accounts, to the extent
permitted by those accounts.
As Servicer, First USA is also required to
exercise the same care and apply the same
policies that it exercises in handling
similar matters for its own comparable
accounts.
FIRST USA MAY ADD ACCOUNTS TO THE TRUST
PORTFOLIO
In addition to the accounts already
designated for First USA Credit Card Master
Trust, First USA is permitted to designate
additional accounts for the Trust portfolio
and to transfer the receivables in those
accounts to the Trust. Any new accounts and
receivables may have different terms and
conditions than the accounts and receivables
already in the Trust portfolio--such as
higher or lower fees or interest rates, or
longer or shorter principal payment terms.
Credit card accounts purchased by First USA
may be included as additional accounts if
certain conditions are satisfied. Credit card
accounts purchased by First USA will have
been originated using the account
originator's underwriting criteria, not those
of First USA. The account originator's
underwriting criteria may be more or less
stringent than those of First USA.
Additionally, additional credit card accounts
may have been originated by First USA using
credit criteria which are different from
those which were applied by First USA to the
current credit card accounts. The new
accounts and receivables may produce higher
or lower collections or charge-offs over time
than the accounts and receivables already in
the Trust and could tend to reduce the amount
of collections allocated to Series 1999-__.
Also, if First USA's percentage interest in
the accounts of the Trust falls to 4% or
less, First USA will be required to maintain
that level by designating additional accounts
for the Trust portfolio and transferring the
receivables in those accounts to the Trust.
If First USA is required to add accounts to
the Trust, it may not have any accounts
available to be added to the Trust. If First
USA fails to add accounts when required, a
"pay out event" will occur and you could
receive payment of principal sooner than
expected. See "Description of the
Certificates--Addition of Accounts" in the
attached prospectus.
CERTIFICATE AND RECEIVABLES INTEREST RATE RESET
TERMS MAY DIFFER
Finance charges on the accounts in the First
USA Credit Card Master Trust may accrue at a
fixed rate or a variable rate above a
designated prime rate or other designated
index. The certificate rate of your
certificate is based on LIBOR. Changes in the
LIBOR might not be reflected in the prime
rate or the designated index, resulting in a
higher or lower spread, or difference,
between the amount of collections of finance
charge receivables on the accounts and the
amounts of interest payable on Series 1999-__
and other amounts required to be funded out
of collections of finance charge receivables.
A decrease in the spread between collections
of finance charge receivables and interest
payments on your certificate could increase
the risk of early repayment.
CHANGES TO CONSUMER PROTECTION LAWS MAY
IMPEDE FIRST USA'S COLLECTION EFFORTS
Federal and state consumer protection laws
regulate the creation and enforcement of
consumer loans, including credit card
accounts and receivables. Changes or
additions to those regulations could make it
more difficult for the servicer of the
receivables to collect payments on the
receivables. The U.S. Congress or state or
local legislatures could pass legislation
limiting the finance charges and fees that
may be charged on credit card accounts. The
impact could be a reduction of the portfolio
yield which could result in a pay out event.
See "Description of the Certificates--Pay Out
Events" in this supplement and "Certain Legal
Aspects of the Receivables--Consumer
Protection Laws" in the attached prospectus.
Receivables that do not comply with consumer
protection laws may not be valid or
enforceable in accordance with their terms
against the obligors on those receivables.
First USA makes representations and
warranties relating to the validity and
enforceability of the receivables arising
under the accounts in the Trust portfolio.
Subject to certain conditions described under
"Description of the Certificates--Representations
and Warranties" in the attached prospectus,
First USA must accept reassignment of each
receivable that does not comply in all
material respects with all requirements of
applicable law. However, we do not anticipate
that the trustee under the pooling and
servicing agreement will make any examination
of the receivables or the related records for
the purpose of determining the presence or
absence of defects, compliance with
representations and warranties, or for any
other purpose. The only remedy if any
representation or warranty is violated, and
the violation continues beyond the period of
time First USA has to correct the violation,
is that First USA must accept reassignment of
the receivables affected by the violation,
subject to certain conditions described under
"Description of the Certificates--Representations
and Warranties" in the attached prospectus.
See also "Certain Legal Aspects of the
Receivables--Consumer Protection Laws" in the
attached prospectus.
If a cardholder sought protection under
Federal or state bankruptcy or debtor relief
laws, a court could reduce or discharge
completely the cardholder's obligations to
repay amounts due on its account and, as a
result, the related receivables would be
written off as uncollectible. See
"Description of the Certificates--Defaulted
Receivables; Investor Charge-Offs" in this
supplement and "Description of the
Certificates--Defaulted Receivables; Rebates
and Fraudulent Charges" and "--Investor
Charge-Offs" in the attached prospectus.
SLOWER GENERATION OF RECEIVABLES COULD REDUCE
COLLECTIONS
The receivables transferred to the First USA
Credit Card Master Trust may be paid at any
time. The credit card industry is highly
competitive. We cannot assure the creation of
additional receivables in the accounts in the
Trust portfolio or that any particular
pattern of cardholder payments will occur. A
significant decline in the amount of new
receivables generated by the accounts in the
Trust portfolio could result in reduced
collections. See "Maturity Considerations."
ALLOCATIONS OF First USA anticipates that it will write off
CHARGED-OFF RECEIVABLES as uncollectible some portion of the
COULD REDUCE PAYMENTS receivables arising in accounts in the Trust
TO CERTIFICATEHOLDERS portfolio. Each class of Series 1999- __ will
be allocated a portion of those charged-off
receivables. See "Description of the
Certificates--Investor Percentage and
Transferor Percentage" and "First USA's
Credit Card Portfolio--Delinquency and Loss
Experience." If the amount of charged-off
receivables allocated to any class of
certificates exceeds the amount of other
funds available for reimbursement of those
charge-offs (which could occur if the amount
of credit enhancement for those certificates
is reduced to zero) the holders of those
certificates may not receive the full amount
of principal and interest due to them. See
"Description of the Certificates--Reallocation
of Cash Flows," "--Application of
Collections" and "--Defaulted Receivables;
Investor Charge-Offs."
LIMITED ABILITY TO The underwriters may assist in the reselling
RESELL CERTIFICATES of Class A and Class B certificates but they
are not required to do so. A secondary market
for any such securities may not develop. If a
secondary market does develop, it might not
continue or it might not be sufficiently
liquid to allow you to resell any of your
securities.
CERTAIN LIENS COULD BE First USA accounts for the transfer of the
GIVEN PRIORITY OVER receivables to the Trust as a sale. However,
YOUR SECURITIES a court could conclude that First USA still
owns the receivables and that the Trust holds
only a security interest. First USA will take
steps to give the trustee a "first priority
perfected security interest" in the
receivables. If First USA became insolvent
and the Federal Deposit Insurance Corporation
were appointed conservator or receiver of
First USA, the FDIC's administrative expenses
might be paid from the receivables before the
Trust received any payments on the
receivables. If a court concludes that the
transfer to the Trust is only a grant of a
security interest in the receivables certain
liens on First USA's property arising before
new receivables come into existence may get
paid before the Trust's interest in those
receivables. Those liens include a tax or
government lien or other liens permitted
under the law without the consent of First
USA. See "Certain Legal Aspects of the
Receivables--Transfer of Receivables" and
"Description of the
Certificates--Representations and Warranties"
in the attached prospectus.
INSOLVENCY OR Under the Federal Deposit Insurance Act, as
BANKRUPTCY OF FIRST amended by the Financial Institutions Reform,
USA COULD RESULT IN Recovery and Enforcement Act of 1989, if
ACCELERATED, DELAYED OR First USA becomes insolvent and the FDIC is
REDUCED PAYMENTS TO appointed conservator or receiver of First
CERTIFICATEHOLDERS USA, the FDIC could--
o require The Bank of New York
(Delaware), as trustee for the Trust,
to go through an administrative claims
procedure under which the FDIC could
have up to 180 days to determine the
trustee's right to payments collected
on the receivables in the Trust;
o request a stay of up to 90 days of any
judicial action or proceeding involving
First USA; or
o repudiate the pooling and servicing
agreement establishing the Trust up to
180 days following the date of
receivership and limit the Trust's
resulting claim to "actual direct
compensatory damages" measured as of
the date of receivership.
If the FDIC were to take any of these actions
your payments of outstanding principal and
interest could be delayed and possibly
reduced. In this regard, among other
possibilities, it is likely that the FDIC
would not pay you the interest accrued from
the date of receivership to the date of
repudiation or payment. See "Certain Legal
Aspects of the Receivables--Certain Matters
Relating to Receivership" in the attached
prospectus.
If a conservator or receiver were appointed
for First USA, then a "pay out event" could
occur for all outstanding series. Under the
terms of the pooling and servicing agreement
new principal receivables would not be
transferred to the Trust and the trustee
would sell the receivables allocated to a
series unless holders of more than 50% of the
invested amount of the series or, if the
series has more than one class, each class of
the series gave the trustee other
instructions. The Trust would terminate
earlier than was planned if each series did
not vote to continue the Trust. You could
have a loss if the sale of the receivables
produced insufficient net proceeds to pay you
in full. The conservator or receiver may
nonetheless have the power--
o regardless of the terms of the pooling
and servicing agreement, (a) to prevent
the beginning of a rapid amortization
period, (b) to prevent the early sale of
the receivables and termination of the
Trust or (c) to require new principal
receivables to continue being transferred
to the Trust; or
o regardless of the instructions of the
certificateholders, (a) to require the
early sale of the Trust's receivables,
(b) to require termination of the
Trust and retirement of the Trust's
certificates (including Series 1999-
__) or (c) to prohibit the continued
transfer of principal receivables to
the Trust.
The FDIC as conservator or receiver would
also have the power to repudiate or refuse to
perform any obligations of First USA,
including any obligations of First USA as
servicer, and to request a stay of up to 90
days of any judicial action or proceeding
involving First USA. In addition, if First
USA, as servicer, defaults on its obligations
under the pooling and servicing agreement
solely because the FDIC is appointed
conservator or receiver for First USA, the
FDIC might have the power to prevent either
the trustee or the certificateholders from
appointing a new servicer under the related
pooling and servicing agreement. See "Certain
Legal Aspects of the Receivables--Certain
Matters Relating to Receivership" in the
attached prospectus.
ISSUANCE OF ADDITIONAL First USA Credit Card Master Trust, as a
SERIES BY THE TRUST MAY master trust, may issue series of
AFFECT THE TIMING OF certificates from time to time. The Trust may
PAYMENTS issue additional series with terms that are
different from your series without the prior
review or consent of any certificateholders.
It is a condition to the issuance of each new
series that each rating agency that has rated
an outstanding series confirm in writing that
the issuance of the new series will not
result in a reduction or withdrawal of its
rating of any class of any outstanding
series.
However, the terms of a new series could
affect the timing and amounts of payments on
any other outstanding series. See
"Description of the Certificates--Exchanges"
in the attached prospectus.
INDIVIDUAL Certificateholders of any series or any class
CERTIFICATEHOLDERS WILL within a series may need the consent or
HAVE LIMITED CONTROL OF approval of a specified percentage of the
TRUST ACTIONS invested amount of other series or a class of
such other series to take or direct certain
actions, including to require the appointment
of a successor servicer after First USA, as
servicer, defaults on its obligations under
the pooling and servicing agreement, to amend
the pooling and servicing agreement in some
cases, and to direct a repurchase of all
outstanding series after certain violations
of First USA's representations and
warranties. The interests of the
certificateholders of any such series may not
coincide with yours, making it more difficult
for any particular certificateholder to
achieve the desired results from such vote.
CLASS B BEARS Because Class B is subordinated to Class A,
ADDITIONAL CREDIT RISK principal payments to Class B will not begin
until Class A is repaid in full.
Additionally, if collections of finance
charge receivables allocated to Series
1999-__ are insufficient to cover amounts due
to Class A, the invested amount for Class B
might be reduced. This would reduce the
amount of the collections of finance charge
receivables available to Class B in future
periods and could cause a possible delay or
reduction in principal and interest payments
on Class B. If the receivables are sold, the
net proceeds of that sale available to pay
principal would be paid first to Class A and
any remaining net proceeds would be paid to
Class B. See "Description of the
Certificates--Subordination of the Class B
Certificates."
FIRST USA'S CREDIT CARD PORTFOLIO
Capitalized terms are defined in this supplement and if not, in the
attached prospectus. Definitions are indicated by boldface type. Both the
attached prospectus and this supplement contain an index of terms listing
the page numbers where definitions can be found.
GENERAL
The receivables (the "RECEIVABLES") conveyed or to be conveyed to the
Trust pursuant to a pooling and servicing agreement (as the same may be
amended from time to time, the "POOLING AND SERVICING AGREEMENT"), between
First USA Bank, National Association ("FIRST USA" or the "BANK") as
transferor (in such capacity, the "TRANSFEROR") and as servicer of the
Receivables (in such capacity, the "SERVICER"), and The Bank of New York
(Delaware), as trustee (the "TRUSTEE"), as supplemented by the Series
Supplement relating to the Offered Certificates (the "OFFERED SERIES
SUPPLEMENT") (the term "POOLING AND SERVICING AGREEMENT," unless the
context requires otherwise, refers to the Pooling and Servicing Agreement,
dated as of September 1, 1992, as amended, and as supplemented by the
Offered Series Supplement) have been or will be generated from transactions
made by holders of MasterCard and VISA credit card accounts ("ACCOUNTS")
selected by First USA, including premium accounts and standard accounts,
from the Bank Portfolio. Each Class A Floating Rate Asset Backed
Certificate, Series 1999-__ (collectively, the "CLASS A CERTIFICATES") and
each Class B Floating Rate Asset Backed Certificate, Series 1999-__
(collectively, the "CLASS B CERTIFICATES" and, together with the Class A
Certificates, the "OFFERED CERTIFICATES") will represent the right to
receive certain payments from the Trust. As used in this supplement, the
term "CERTIFICATEHOLDERS" refers to holders of the Certificates, the term
"CLASS A CERTIFICATEHOLDERS" refers to holders of the Class A Certificates,
the term "CLASS B CERTIFICATEHOLDERS" refers to holders of the Class B
Certificates, and the term "EXCESS COLLATERAL HOLDERS" refers to the
holders of the Excess Collateral, Series 1999-__ (the "EXCESS COLLATERAL"
and, together with the Offered Certificates, the "CERTIFICATES").
On September __, 1999, the Bank's predecessor, also named First USA
Bank, N.A. (the "PREDECESSOR BANK"), a direct wholly-owned subsidiary of
BANK ONE CORPORATION ("BANK ONE") was merged with and into FCC National
Bank, an affiliated national banking association and a direct wholly-owned
subsidiary of BANK ONE, with FCC National Bank as the surviving bank. The
surviving bank has been renamed "First USA Bank, National Association" with
its executive offices located at 201 North Walnut Street, Wilmington,
Delaware 19801, telephone number (302) 594-4000.
In connection with the merger of the Predecessor Bank and FCC
National Bank, the credit card portfolios of the Predecessor Bank and FCC
National Bank were consolidated, thereby increasing the size of the
Predecessor Bank's portfolio by approximately [$17 billion]. Prior to this
merger, on July 1, 1998, BANC ONE CORPORATION ("BANC ONE") consolidated
substantially all of its consumer credit card operations in the Predecessor
Bank. The Predecessor Bank has since added receivables in accounts
originated by the Predecessor Bank, Bank One, N.A., Bank One Arizona, NA
and other affiliates of the Predecessor Bank to the Trust. On September 30,
1998, the Predecessor Bank purchased the credit card portfolio of Chevy
Chase Bank F.S.B. ("CHEVY CHASE"). On November 16, 1998, the Predecessor
Bank acquired accounts formerly owned by First National Bank of Commerce
("FIRST COMMERCE") as a result of a merger between First Commerce and Bank
One, Louisiana, N.A. and the transfer by Bank One, Louisiana, N.A. to the
Predecessor Bank of substantially all of such accounts. On December 24,
1998, the Predecessor Bank purchased a portfolio of VISA and MasterCard
credit card loans from General Electric Capital Corporation ("GE CAPITAL").
The portfolio includes approximately $2.2 billion in managed credit card
loans. The Predecessor Bank has added receivables from the accounts
acquired from GE Capital to the Trust. The Predecessor Bank had not added
and the Bank has not added to the Trust receivables in any of the accounts
acquired from Chevy Chase or First Commerce. A substantial portion of these
portfolios (other than the GE Capital portfolio) is currently subject to
securitization through other credit card master trusts. The Bank may, from
time to time, add to the Trust additional Receivables arising in accounts
originated by affiliates of the Bank or purchased by the Bank or the
Predecessor Bank. Each such addition to the Trust of receivables in
accounts originated by the Bank and affiliates of the Bank or purchased by
the Bank to the trust is subject to certain restrictions on addition of
Accounts in the Pooling and Servicing Agreement, including satisfaction of
the Rating Agency Condition with respect to such addition. "RATING AGENCY
CONDITION" with respect to any proposed action means the condition that
each Rating Agency then rating any Series of Certificates outstanding
confirms in writing that such action would not result in any downgrading or
withdrawal of such Rating Agency's rating of any Series of Certificates
then outstanding. See "Description of the Certificates-Addition of
Accounts" herein. Prior to acquiring a portfolio, the Bank reviews the
historical performance and seasoning of the portfolio and the policies and
practices of the selling institution, but individual accounts are not
requalified by the Bank. There can be no assurance that Accounts so
acquired were originated in a manner consistent with the Bank's policies as
described under "--Growth Strategy and Origination" and "--Underwriting
Procedures" above or that the underwriting and qualification of such
Accounts conformed to any given standards. The Accounts include accounts
previously acquired by the Bank. Such accounts and any accounts acquired in
the future may become Additional Accounts provided that, at such time, they
constitute Eligible Accounts. See "The Receivables," "Description of the
Certificates--Transfer and Assignment of Receivables" and
"--Representations and Warranties."
Effective October 2, 1998, First Chicago NBD Corporation, a Delaware
corporation, merged with and into BANK ONE, the parent corporation of the
Bank. Immediately prior to such merger, BANC ONE CORPORATION, an Ohio
corporation ("BANC ONE"), also merged with and into BANK ONE, which had
been a subsidiary of BANC ONE prior to such merger. BANK ONE is a bank
holding company headquartered in Chicago, Illinois and registered under the
Bank Holding Company Act of 1956, as amended.
ASSESSMENT OF FEES AND FINANCE AND OTHER CHARGES
A billing statement is sent to each cardholder at the end of each
monthly billing cycle in which the account has a debit or credit balance of
more than one dollar or if a finance charge has been imposed. With minor
exceptions, the minimum payment due each month on each account is equal to
the greater of $10 or 2% of the balance shown on the statement, plus the
greater of any amount past due or any amount over the cardholder's credit
line. The Bank may assess a late payment fee, generally ranging from $10 to
$35 for most accounts, if it does not receive the minimum payment by the
payment due date shown on the monthly billing statement. The Bank may
assess a return check fee, generally ranging from $10 to $35, for each
payment check that is dishonored or that is unsigned or otherwise
irregular, an overlimit fee, generally ranging from $10 to $29, for
Purchases or Cash Advances that cause the credit line to be exceeded and
administrative fees for certain functions performed at the request of the
cardholder. Unless otherwise arranged between the Bank and the cardholder,
any late payment fee, return check fee, overlimit fee or administrative fee
is added to the account and treated as a Purchase. In some cases, the Bank
charges a non-refundable Annual Membership Fee. In addition, the Bank
assesses on some cardholder accounts, a transaction fee for the purchase of
money orders, the use of wire transfers, the use of convenience checks and
certain balance transfer transactions, equal to the greater of 2-3% of the
amount thereof and $5, with a cap ranging from $35 to $50.
Periodic finance charges ("PERIODIC FINANCE CHARGES") are not
assessed in most circumstances on Purchases and convenience checks if all
balances shown in the billing statement are paid by the payment due date,
which is approximately 20 to 25 days from the previous cycle billing date.
Periodic Finance Charges are assessed on new Purchases and convenience
checks from the day that they are posted to the account if all balances
shown in the prior billing statement were not paid in full by the payment
due date. Periodic Finance Charges are assessed on Cash Advances from the
later of the day that they are made or the first day of the billing cycle
during which they were posted to the account. Aggregate finance charges for
each account in any given monthly billing cycle consist of Periodic Finance
Charges equal to either (i) the product of the monthly periodic rate
multiplied by the average daily balance or (ii) the product of the daily
balance and the daily periodic rate totaled, in each case, for each day
during the monthly billing cycle; plus, if applicable, an additional Cash
Advance finance charge or transaction finance charge (not applicable for
certain accounts), generally equal to a one-time charge of 2% to 3% of the
Cash Advance or purchase of a money order, wire transfer or use of a
convenience check or a balance transfer request (with a minimum ranging
from $2 to $15 and a maximum ranging from $10 to unlimited), for each of
these transactions posted to the account. Certain accounts in the portfolio
of VISA(R) and MasterCard(R)1 credit card accounts serviced by the Bank,
including accounts originated by the affiliates of the Bank whose consumer
credit card operations were consolidated in the Bank on July 1, 1998 (the
"BANK PORTFOLIO") have an introductory period annual percentage rate
ranging from 3.90% to 9.90%. The introductory rates on the accounts in the
Bank Portfolio are primarily fixed annual percentage rates. The annual
percentage rates, after the introductory rate period, are usually fixed or
floating periodic rates that adjust periodically according to an index.
Post-introductory annual percentage rates generally range from 9.99% to
26.99%.
- --------
1 VISA(R) and MasterCard(R) are registered trademarks of VISA USA
Incorporated and MasterCard International Incorporated, respectively.
DELINQUENCY AND LOSS EXPERIENCE
The Bank considers an account contractually delinquent if the minimum
payment due thereunder is not received by the Bank by the date of the
statement following the statement on which the amount is first stated to be
due. An account is not treated as delinquent by the Bank if the minimum
payment is received by the next billing date.
Efforts to collect delinquent credit card receivables are made by the
Bank's collection department personnel, collection agencies and attorneys
retained by the Bank. For a description of the Bank's collection practices
and policies, see "First USA's Credit Card Activities--Delinquencies and
Charge-Offs" in the attached prospectus.
The Bank generally charges off an account immediately prior to the
end of the sixth billing cycle after having become contractually past due.
See "First USA's Credit Card Activities--Delinquencies and Charge- Offs" in
the attached prospectus.
The following tables set forth the delinquency and loss experience
for each of the periods shown for the Trust Portfolio. Reported loss and
delinquency percentages for the Trust Portfolio may be reduced as a result
of the addition of newly originated receivables. Receivables in newly
originated accounts generally have lower delinquency and loss levels than
receivables in more seasoned accounts and the addition of these receivables
to the Trust Portfolio increases the outstanding Receivables balance for
the Trust Portfolio.
<TABLE>
<CAPTION>
DELINQUENCY EXPERIENCE
TRUST PORTFOLIO
(DOLLARS IN THOUSANDS)
AS OF DECEMBER 31,
------------------
AS OF JUNE 30, 1999 1998 1997 1996
------------------- ---- ---- ----
PERCENT- PERCENT- PERCENT- PERCENT-
AGE OF AGE OF AGE OF AGE OF
DOLLAR RECEIVABLES DOLLAR RECEIVABLES DOLLAR RECEIVABLES DOLLAR RECEIVABLES
AMOUNT(1) OUTSTANDING AMOUNT(1) OUTSTANDING AMOUNT(1) OUTSTANDING AMOUNT(1) OUTSTANDING
------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Receivables
Outstanding..... $33,987,395 100.00% $33,988,293 100.00% $26,059,175 100.00% $19,717,111 100.00%
Number of Days
Delinquent:(2)
35-64 days....... $441,916 1.30% $468,434 1.38% $413,888 1.59% $ 349,531 1.77%
65-94 days....... 282,873 0.83 307,108 0.90 269,870 1.03 244,013 1.24
95 or more days.. 638,575 1.88 615,051 1.81 572,987 2.20 538,583 2.73
---------- ------ ---------- ------ ---------- ------ ---------- ------
Total........... $1,363,364 4.01% $1,390,593 4.09% $1,256,745 4.82% $1,132,127 5.74%
========== ====== ========== ====== ========== ====== ========== ======
</TABLE>
(1) The Dollar Amount reflected includes all amounts due from cardholders
as posted to the accounts as of the date specified.
(2) The amount of receivables delinquent 95 or more days as of June 30,
1999, December 31, 1998 and as of December 31, 1997 is stated on a
basis consistent with the Bank's current policy of charging off an
account immediately prior to the end of the sixth billing cycle after
having become contractually past due. The amount of receivables
delinquent 95 or more days as of December 31, 1996 is stated on a
basis consistent with the Bank's prior policy of charging off
accounts immediately prior to the end of the seventh billing cycle
after having become contractually past due. The policy change was
implemented to conform the charge-off policy of the Bank with that of
BANK ONE.
LOSS EXPERIENCE
TRUST PORTFOLIO
(DOLLARS IN THOUSANDS)
SIX MONTHS YEAR ENDED DECEMBER 31,
ENDED -----------------------
JUNE 30, 1999 1998 1997 1996
------------- ---- ---- ----
Net Losses(1)(2)............ $846,062 $1,465,749 $1,273,354 $803,857
Net Loss Percentage(3)...... 5.11% 5.17% 5.90% 4.92%
(1) Net Losses shown for the six months ended June 30, 1999 and the year
ended December 31, 1998 are stated on a basis consistent with the
Bank's current policy of charging off an account immediately prior to
the end of the sixth billing cycle after having become contractually
past due. Its prior policy was to charge off an account immediately
prior to the end of the seventh billing cycle after having become
contractually past due. During the year ended December 31, 1997, the
Bank's charge-off policy was changed to conform with that of BANK
ONE. The prior policy applied for the year ended December 31, 1996.
(2) Net Losses as a percentage of gross charge-offs for June 30, 1999 and
for each of the years ended December 31, 1998, 1997 and 1996 were
90.8%, 90.5%, 91.9% and 95.7%, respectively. Gross charge-offs are
principal charge-offs before recoveries and do not include the amount
of any reductions in principal receivables due to fraud, returned
goods or customer disputes.
(3) The Net Loss Percentage represents the average of the net loss
percentages for all months during the periods shown calculated as
described in "Selected Trust Portfolio Summary Data."
The Trust's delinquency and net loss percentages at any time reflect,
among other factors, the quality of the related credit card loans, the
average seasoning of the related accounts, the success of the Bank's
collection efforts and general economic conditions. Total Receivables
delinquent as a percentage of total Principal Receivables outstanding
decreased from 5.74% at December 31, 1996 to 4.82% at December 31, 1997 to
4.09% at December 31, 1998 and increased to 4.24% at March 31, 1999. The
net loss percentage increased from 4.92% for 1996 to 5.90% for 1997 and
decreased to 5.17% for 1998 and to 5.13% for the three months ended March
31, 1999. The industry continues to experience intense competition, which
results in increased account turnover and higher costs per account. The
Bank's focus continues to be to optimize the profitability of each account
within the context of acceptable risk characteristics. As the Bank
increases market penetration, it will continue to focus on segments of the
credit market which have been highly profitable, and the Bank believes the
Trust's delinquency and loss rates will generally follow industry trends.
INTERCHANGE
Creditors participating in the VISA and MasterCard associations
receive Interchange as partial compensation for taking credit risk,
absorbing fraud losses and funding receivables for a limited period prior
to initial billing. Under the VISA and MasterCard systems a portion of this
Interchange in connection with cardholder charges for goods and services is
collected by banks that issue credit cards by applying a discount to the
amount paid by such banks to the banks that clear the related transactions
for merchants. Interchange currently ranges from approximately 1.0% to 2.0%
of the transaction amount. Interchange will be allocated to the Trust by
treating 1.3% (subject to adjustment at the option of the Transferor upon
the satisfaction of certain conditions as described in the attached
prospectus under "Description of the Certificates--Discount Receivables")
of collections on the Receivables (whether arising from Purchases or Cash
Advances), other than collections with respect to Periodic Finance Charges,
Annual Membership Fees and Other Charges, as collections of Discount
Receivables.
THE RECEIVABLES
GENERAL
The receivables conveyed to the Trust have arisen and will arise in
accounts selected by First USA from the Bank Portfolio on the basis of
criteria set forth in the Pooling and Servicing Agreement as applied on
August 21, 1992 (the "CUTOFF DATE") and, with respect to additional
accounts, as of the related dates of their designations (the "TRUST
PORTFOLIO"). The receivables in the Trust Portfolio (including the
additional accounts added to the Trust on June 10, 1999 and July 9, 1999),
as of the close of business on June 30, 1999, consisted of $34,250,637,393
of Principal Receivables and $1,110,457,097 of finance charge receivables.
On the closing date, the Transferor will deposit $__________ into the
Finance Charge Account, which will be applied as collections of finance
charge receivables received during the initial monthly period and allocated
to Series 1999-__. The accounts, including such additional accounts, had an
average principal receivable balance of $1,332 (including accounts with a
zero balance) and an average credit limit of $8,416. The percentage of the
aggregate total receivable balance to the aggregate total credit limit was
16.3%.
As of June 30, 1999, cardholders whose accounts are included in the
Trust Portfolio, including such additional accounts, had billing addresses
in 50 states, the District of Columbia and other United States territories
and possessions. As of June 30, 1999, 82% of the accounts, including such
additional accounts, were premium accounts and 18% were standard accounts,
and the aggregate principal receivable balances of premium accounts and
standard accounts, as a percentage of the aggregate total principal
receivables, were 72% and 28%, respectively.
Pursuant to the Pooling and Servicing Agreement, First USA has the
right, subject to certain limitations and conditions set forth therein, to
designate from time to time Additional Accounts and to transfer to the
Trust all Receivables of such Additional Accounts, whether such receivables
are then existing or thereafter created. Any Additional Accounts designated
pursuant to the Pooling and Servicing Agreement must be Eligible Accounts
as of the date First USA designates such accounts as Additional Accounts,
and must have been selected as Additional Accounts absent a selection
procedure believed by First USA to be materially adverse to the interests
of the holders of any Series of certificates. Additionally, First USA must
have received notice from the applicable Rating Agencies that the inclusion
of such accounts as Additional Accounts will not result in a reduction or
withdrawal by such Rating Agencies of any then existing rating of any Class
of certificates of any Series then outstanding. First USA will be required
to designate Additional Accounts, to the extent available, (a) to maintain
the Transferor Interest so that the Transferor Interest averaged over the
preceding 30 consecutive days and expressed as a percentage of the
aggregate amount of Principal Receivables averaged over the same period
equals or exceeds the Minimum Transferor Interest and (b) to maintain, for
so long as certificates of any Series (including the Offered Certificates)
remain outstanding, the aggregate amount of Principal Receivables to be
equal to or greater than the Minimum Aggregate Principal Receivables. See
"Description of the Certificates--Addition of Accounts" in the attached
prospectus.
The Minimum Transferor Interest applicable to the Certificates is
currently 4%. The Minimum Aggregate Principal Receivables applicable to the
Certificates is an amount equal to (i) the sum of the initial invested
amounts of all Series then outstanding other than any Series of variable
funding certificates, (ii) with respect to any Series of variable funding
certificates in its revolving period, the then current invested amount of
such Series and (iii) with respect to any Series of variable funding
certificates in its amortization period, the invested amount of such Series
at the end of the last day of the Revolving Period for such Series.
Further, pursuant to the Pooling and Servicing Agreement, First USA
will have the right (subject to certain limitations and conditions) to
designate certain Accounts and to require the Trustee to reconvey all
Receivables in such Accounts (the "REMOVED ACCOUNTS") to First USA, whether
such Receivables are then existing or thereafter created. See "Description
of the Certificates--Removal of Accounts" in the attached prospectus.
Throughout the term of the Trust, the Accounts from which the Receivables
arise will be the Accounts designated by First USA on the Cut-Off Date plus
any Additional Accounts minus any Removed Accounts.
The following tables summarize the Trust Portfolio (including the
Additional Accounts added to the Trust on June 10, 1999 and July 9, 1999)
by various criteria as of the close of business on June 30, 1999. Because
the future composition of the Trust Portfolio may change over time, these
tables are not necessarily indicative of the composition of the Trust
Portfolio at any subsequent time.
<TABLE>
<CAPTION>
COMPOSITION BY ACCOUNT BALANCE
TRUST PORTFOLIO
PERCENTAGE PERCENTAGE
OF TOTAL OF TOTAL
NUMBER OF NUMBER AMOUNT OF AMOUNT OF
ACCOUNT BALANCE ACCOUNTS OF ACCOUNTS RECEIVABLES RECEIVABLES
- --------------- --------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Credit Balance................. 406,384 1.6% $ (76,140,875) (0.2%)
No Balance..................... 13,043,520 50.7 -- --
$0.01 to $2,000.00............. 6,765,896 26.3 4,153,913,415 11.7
$2,000.01 to $5,000.00......... 3,036,997 11.8 10,469,875,084 29.6
$5,000.01 to $10,000.00........ 1,914,502 7.4 13,310,922,731 37.7
$10,000.01 or More............. 555,631 2.2 7,502,524,133 21.2
---------- ------ --------------- ------
TOTAL.................... 25,722,930 100.0% $35,361,094,488 100.0%
========== ====== =============== ======
COMPOSITION BY CREDIT LIMIT
TRUST PORTFOLIO
PERCENTAGE PERCENTAGE
OF TOTAL OF TOTAL
NUMBER OF NUMBER AMOUNT OF AMOUNT OF
CREDIT LIMIT RANGE ACCOUNTS OF ACCOUNTS RECEIVABLES RECEIVABLES
- ------------------ --------- ----------- ----------- -----------
$0.00 to $2,000.00............. 2,500,608 9.7% $ 860,334,687 2.4%
$2,000.01 to $5,000.00......... 5,967,275 23.2 6,347,947,495 18.0
$5,000.01 to $10,000.00........ 9,215,131 35.8 12,912,870,911 36.5
$10,000.01 or More............. 8,039,916 31.3 15,239,941,395 43.1
--------- ------ -------------- ------
TOTAL.................... 25,722,930 100.0% $35,361,094,488 100.0%
========== ====== ============== ======
COMPOSITION BY PERIOD OF DELINQUENCY
TRUST PORTFOLIO
PERCENTAGE PERCENTAGE
OF TOTAL OF TOTAL
PAYMENT STATUS (DAYS NUMBER OF NUMBER AMOUNT OF AMOUNT OF
CONTRACTUALLY DELINQUENT) ACCOUNTS OF ACCOUNTS RECEIVABLES RECEIVABLES
- ------------------------- --------- ----------- ----------- -----------
Not Delinquent................. 25,012,887 97.3% $32,419,758,923 91.7%
Up to 34 Days.................. 424,245 1.6 1,565,597,847 4.4
35 to 64 Days.................. 103,173 0.4 446,238,139 1.3
65 to 94 Days.................. 59,990 0.2 285,812,817 0.8
95 or More Days................ 122,635 0.5 643,686,762 1.8
---------- ------ -------------- ------
TOTAL.................... 25,722,930 100.0% $35,361,094,488 100.0%
========== ====== ============== ======
COMPOSITION OF ACCOUNTS BY AGE
TRUST PORTFOLIO
PERCENTAGE PERCENTAGE
OF TOTAL OF TOTAL
NUMBER OF NUMBER AMOUNT OF AMOUNT OF
ACCOUNT AGE ACCOUNTS OF ACCOUNTS RECEIVABLES RECEIVABLES
- ----------- --------- ----------- ----------- -----------
Less than or equal to 6 Months. 2,392,508 9.3% $3,899,389,166 11.0%
Over 6 Months to 12 Months..... 3,503,946 13.6 4,699,628,961 13.3
Over 12 Months to 24 Months.... 6,722,945 26.1 7,993,948,273 22.6
Over 24 Months to 36 Months.... 4,211,920 16.4 5,213,581,815 14.7
Over 36 Months to 48 Months.... 2,651,051 10.3 4,273,155,132 12.1
Over 48 Months to 60 Months.... 2,958,550 11.5 4,339,151,690 12.3
Over 60 Months................. 3,282,010 12.8 4,942,239,451 14.0
---------- ------ -------------- ------
TOTAL.................... 25,722,930 100.0% $35,361,094,488 100.0%
========== ====== ============== ======
COMPOSITION BY GEOGRAPHIC DISTRIBUTION
TRUST PORTFOLIO
PERCENTAGE PERCENTAGE
OF TOTAL OF TOTAL
NUMBER OF NUMBER AMOUNT OF AMOUNT OF
STATE ACCOUNTS OF ACCOUNTS RECEIVABLES RECEIVABLES
- ----- --------- ----------- ----------- -----------
Alabama....................... 306,280 1.2% $ 441,434,050 1.2%
Alaska........................ 52,503 0.2 95,503,660 0.3
Arizona....................... 439,106 1.7 617,678,645 1.7
Arkansas...................... 206,091 0.8 277,159,710 0.8
California.................... 3,064,426 11.9 4,639,298,008 13.0
Colorado...................... 483,019 1.9 629,313,188 1.8
Connecticut................... 379,796 1.5 542,000,590 1.5
Delaware...................... 80,901 0.3 109,593,520 0.3
District of Columbia.......... 41,717 0.2 66,276,596 0.2
Florida....................... 1,566,617 6.1 2,161,312,055 6.1
Georgia....................... 581,394 2.3 885,417,317 2.5
Hawaii........................ 102,822 0.4 163,422,746 0.5
Idaho......................... 113,576 0.4 154,977,875 0.4
Illinois...................... 1,144,465 4.4 1,500,164,343 4.2
Indiana....................... 581,476 2.3 719,768,145 2.0
Iowa.......................... 85,776 0.3 114,301,862 0.3
Kansas........................ 237,573 0.9 313,349,105 0.9
Kentucky...................... 415,571 1.6 466,225,309 1.3
Louisiana..................... 408,921 1.6 551,413,704 1.6
Maine......................... 103,797 0.4 136,389,358 0.4
Maryland...................... 499,918 1.9 763,029,959 2.2
Massachusetts................. 691,639 2.7 886,622,604 2.5
Michigan...................... 805,095 3.1 1,119,390,504 3.2
Minnesota..................... 391,262 1.5 438,277,525 1.2
Mississippi................... 173,667 0.7 241,805,120 0.7
Missouri...................... 476,332 1.9 605,970,214 1.7
Montana....................... 92,209 0.4 122,246,208 0.3
Nebraska...................... 159,574 0.6 173,318,076 0.5
Nevada........................ 202,852 0.8 338,487,840 1.0
New Hampshire................. 118,094 0.5 162,803,122 0.5
New Jersey.................... 867,564 3.4 1,206,235,654 3.4
New Mexico.................... 151,192 0.6 219,487,885 0.6
New York...................... 1,685,310 6.6 2,330,209,882 6.6
North Carolina................ 564,593 2.2 766,843,920 2.2
North Dakota.................. 56,232 0.2 64,147,832 0.2
Ohio.......................... 1,519,383 5.9 1,897,072,145 5.4
Oklahoma...................... 372,127 1.4 487,614,308 1.4
Oregon........................ 372,459 1.4 514,197,530 1.5
Pennsylvania.................. 1,138,651 4.4 1,362,857,510 3.9
Rhode Island.................. 101,953 0.4 137,147,499 0.4
South Carolina................ 268,298 1.0 358,895,674 1.0
South Dakota.................. 58,782 0.2 73,417,164 0.2
Tennessee..................... 389,286 1.5 496,630,607 1.4
Texas......................... 2,101,490 8.2 3,162,016,993 8.8
Utah.......................... 200,396 0.8 234,626,446 0.7
Vermont....................... 54,735 0.2 74,973,522 0.2
Virginia...................... 622,511 2.4 909,263,160 2.6
Washington.................... 613,560 2.4 902,994,638 2.6
West Virginia................. 180,153 0.7 230,329,732 0.7
Wisconsin..................... 274,558 1.1 314,185,817 0.9
Wyoming....................... 51,720 0.2 67,976,630 0.2
Other U.S. territories........ 71,508 0.3 113,018,982 0.3
---------- ----- --------------- -----
TOTAL 25,722,930 100.0% $35,361,094,488 100.0%
========== ===== =============== =====
</TABLE>
Since the largest number of cardholders (based on billing addresses)
whose Accounts were included in the Trust Portfolio as of June 30, 1999
were in California, Texas, New York, Florida and Ohio, adverse changes in
the economic conditions in these areas could have a direct impact on the
timing and amount of payments on the Certificates.
MATURITY CONSIDERATIONS
The Pooling and Servicing Agreement provides that Class A
Certificateholders will not receive payments of principal until the _____
Distribution Date (the "CLASS A SCHEDULED PAYMENT DATE"), or earlier in the
event of a Pay Out Event which results in the commencement of the Rapid
Amortization Period. The Pooling and Servicing Agreement also provides that
Class B Certificateholders will not receive payments of principal until the
Class A Invested Amount has been paid in full. Principal of the Class B
Certificates is expected to be paid on the Class B Scheduled Payment Date
which is the _____ Distribution Date (the "CLASS B SCHEDULED PAYMENT DATE,"
and sometimes referred to herein collectively with the Class A Scheduled
Payment Date and the Excess Collateral Scheduled Payment Date as the
"SCHEDULED PAYMENT DATE"), or earlier in the event of a Pay Out Event which
results in the commencement of the Rapid Amortization Period (in either
case, only after the Class A Invested Amount has been paid in full).
On each Transfer Date during 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, an amount equal to the least
of (a) the Available Investor Principal Collections with respect to the
preceding Monthly Period, (b) the applicable "CONTROLLED DEPOSIT AMOUNT"
for such Monthly Period, which is equal to the sum of the applicable
Controlled Accumulation Amount for such Monthly Period and the applicable
Accumulation Shortfall, if any, from the previous Monthly Period, and (c)
the Class A Adjusted Invested Amount prior to any deposits on such day will
be deposited in the Principal Funding Account until the amount on deposit
in the Principal Funding Account (the "PRINCIPAL FUNDING ACCOUNT BALANCE")
equals the Class A Invested Amount. After the full amount of the Class A
Invested Amount has been deposited 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
the application thereof to the Class A Invested Amount, if any, (b) the
applicable Controlled Deposit Amount (minus the Class A Monthly Principal)
for such Monthly Period and (c) the Class B Adjusted Invested Amount prior
to any deposits on such day will be deposited in the Principal Funding
Account until the Principal Funding Account Balance equals the sum of the
Class A Invested Amount and the Class B Invested Amount. On and after the
Transfer Date preceding the Distribution Date on which the Class A Invested
Amount and the Class B Invested Amount will be paid in full, an amount
equal to, for each Monthly Period, the least of (a) the Available Investor
Principal Collections with respect to the preceding Monthly Period
remaining after the application thereof to the Class A Invested Amount and
the Class B Invested Amount, if any, (b) the applicable Controlled Deposit
Amount (minus the Class A Monthly Principal and the Class B Monthly
Principal) for such Monthly Period and (c) the Excess Collateral Adjusted
Amount prior to any deposits on such day will be deposited in the Principal
Funding Account until the Principal Funding Account Balance equals the sum
of the Class A Invested Amount, the Class B Invested Amount and the Excess
Collateral Amount and such amount will be distributed to the Excess
Collateral Holders on the Excess Collateral Scheduled Payment Date and, if
the Excess Collateral Amount is not paid in full on such date, on each
subsequent Transfer Date (other than the Transfer Date prior to the Stated
Series Termination Date) and on the Stated Series Termination Date until
the earlier of the date on which the Excess Collateral Amount has been paid
in full and the Stated Series Termination Date. Although it is anticipated
that collections of Principal Receivables will be available on each
Transfer Date during the Accumulation Period to make a deposit of the
applicable Controlled Deposit Amount and that amounts in the Principal
Funding Account will be available to pay the Class A Invested Amount to the
Class A Certificateholders on the Class A Scheduled Payment Date and the
Class B Invested Amount to the Class B Certificateholders on the Class B
Scheduled Payment Date, respectively, no assurance can be given in this
regard. If the amount required to pay the Class A Invested Amount or the
Class B Invested Amount in full is not available on the Class A Scheduled
Payment Date or the Class B Scheduled Payment Date, respectively, the Rapid
Amortization Period will commence.
If a Pay Out Event occurs during the Accumulation Period, the Rapid
Amortization Period will commence and the amount on deposit in the
Principal Funding Account up to the Class A Invested Amount will be paid to
the Class A Certificateholders on the first Distribution Date with respect
to the Rapid Amortization Period. In addition, to the extent that the Class
A Invested Amount has not been paid in full on the Class A Scheduled
Payment Date, the Class A Certificateholders will be entitled to monthly
payments of principal on each succeeding Distribution Date equal to the
Available Investor Principal Collections until the Class A Certificates
have been paid in full. After the Class A Certificates have been paid in
full, Available Investor Principal Collections will be paid to the Class B
Certificates on each Distribution Date until the earlier of the date on
which the Class B Invested Amount has been paid in full and the ______
Distribution Date (the "STATED SERIES TERMINATION DATE").
A Pay Out Event occurs, either automatically or after specified
notice, upon (a) the failure of the Transferor to make certain payments or
transfers of funds for the benefit of the Certificateholders within the
time periods stated in the Pooling and Servicing Agreement, (b) material
breaches of certain representations, warranties or covenants of the
Transferor, which are not cured within the time periods stated in the
Pooling and Servicing Agreement, (c) certain events of insolvency or
receivership relating to the Transferor, (d) the occurrence of a Servicer
Default which would have a material adverse effect on the
Certificateholders, (e) the failure of the Transferor to convey Receivables
arising under Additional Accounts to the Trust when required by the Pooling
and Servicing Agreement, (f) the Trust's becoming subject to regulation as
an "investment company" within the meaning of the Investment Company Act of
1940, as amended, or (g) a reduction in the average Portfolio Yield for any
three consecutive Monthly Periods to a rate which is less than the average
Base Rate for such three consecutive Monthly Periods. The "BASE RATE"
means, with respect to any Monthly Period, the weighted average of the
Class A Certificate Rate, the Class B Certificate Rate and the Excess
Collateral Minimum 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
Excess Collateral Amount, respectively, as of the last day of such Monthly
Period) plus the product of 2.00% per annum and a fraction the numerator of
which is the sum of the Class A Adjusted Invested Amount, the Class B
Adjusted Invested Amount and the Excess Collateral Adjusted Amount and the
denominator of which is the Invested Amount, each as of the last day of
such Monthly Period. The term "PORTFOLIO YIELD" means, 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 (i) the amount of
collections of Finance Charge Receivables allocable to the
Certificateholders for such Monthly Period, (ii) the investment proceeds on
amounts on deposit in the Principal Funding Account which are deposited in
the Finance Charge Account on the Transfer Date related to such Monthly
Period and (iii) the amount, if any, withdrawn from the Reserve Account to
be deposited in the Finance Charge Account on the Transfer Date relating to
such Monthly Period, 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. See "Description of the Certificates--Pay Out
Events" herein and in the attached prospectus.
The following table sets forth the highest and lowest cardholder
monthly payment rates for the Trust Portfolio during any month in the
periods shown and the average cardholder monthly payment rates for all
months during the periods shown, in each case calculated as a percentage of
average monthly principal receivable balances during the periods shown.
Payment rates shown in the table are based on amounts which would be deemed
payments of Principal Receivables with respect to the Accounts.
CARDHOLDER MONTHLY PAYMENT RATES
TRUST PORTFOLIO
SIX MONTHS
ENDED YEAR ENDED DECEMBER 31,
JUNE 30, -----------------------
1999 1998 1997 1996
---------- ---- ---- ----
Lowest Month 14.54% 13.43% 10.79% 9.54%
Highest Month 16.63% 15.32% 14.66% 11.10%
Monthly Average 15.30% 14.16% 12.24% 10.33%
The amount of collections of Receivables may vary from month to month
due to seasonal variations, general economic conditions, payment habits of
individual cardholders and number of collection days. There can be no
assurance that future collections of Principal Receivables with respect to
the Trust Portfolio will be similar to the historical experience set forth
above. If a Pay Out Event occurs, the average life and maturity of the
Certificates could be significantly reduced. In addition, there can be no
assurance that the issuance of other Series or the terms of any such other
Series might not have an impact on the timing of the payments received by
the Certificateholders.
Because there may be a slowdown in the payment rate to a rate below
the payment rate used to determine the Controlled Accumulation Amount or a
Pay Out Event may occur which would initiate the Rapid Amortization Period,
there can be no assurance that the actual number of months elapsed from the
date of issuance of the Class A Certificates and the Class B Certificates
to their respective final Distribution Dates will equal the expected number
of months. See "Maturity Assumptions" in the attached prospectus. As
described under "Description of the Certificates--Postponement of
Accumulation Period," the Servicer may shorten the Accumulation Period and,
in such event, there can be no assurance that the duration of the
Accumulation Period will be sufficient for the accumulation of all amounts
necessary to pay the Class A Invested Amount and the Class B Invested
Amount on the Class A Scheduled Payment Date and the Class B Scheduled
Payment Date, respectively, especially if a pay out event were to occur
with respect to one or more other Series thereby limiting the amount of
Excess Principal Collections allocable to the Offered Series.
RECEIVABLE YIELD CONSIDERATIONS
The portfolio yield on the Trust Portfolio for the six months ended
June 30, 1999 and for each of the three years contained in the period ended
December 31, 1998 is set forth in the following table. The portfolio yields
in the table are calculated on a cash basis. Portfolio yield will be
affected by numerous factors, including changes in the periodic rates,
variations in the rate of payments and new borrowings on the Accounts, the
amount of the Annual Membership Fees and Other Charges, changes in the
delinquency and loss rates on the Receivables and the percentage of
cardholders who pay their balances in full each month and do not incur
Periodic Finance Charges, which may in turn be caused by a variety of
factors, including seasonal variations, the availability of other sources
of credit and general economic conditions. See "Maturity Assumptions" in
the attached prospectus. Interchange will be included in the Trust on an
estimated basis by initially treating 1.3% of collections on the
Receivables, other than collections with respect to Periodic Finance
Charges, Annual Membership Fees and Other Charges, as collections of
Discount Receivables.
YIELD PERCENTAGE
TRUST PORTFOLIO
(DOLLARS IN THOUSANDS)
SIX MONTHS
ENDED YEAR ENDED DECEMBER 31,
JUNE 30, 1999 1998 1997 1996
------------- ---- ---- ----
Finance Charges and Fees and
Discount Receivables $3,240,262 $5,388,376 $3,807,617 $2,722,289
Average Yield Percentage(1) 19.47% 18.86% 17.44% 16.77%
(1) Average Yield Percentage represents the average of the yield
percentages for all months during the periods shown calculated as
described in "Selected Trust Portfolio Summary Data."
USE OF PROCEEDS
The net proceeds from the sale of the Offered Certificates, in the
amount of $________, before deduction of expenses, will be (i) used to make
an initial deposit to the Finance Charge Account in the amount of $________
and (ii) paid to First USA. First USA will use such balance of the proceeds
for its general corporate purposes.
FIRST USA BANK, N.A.
The Bank is among the nation's largest issuers of VISA and MasterCard
credit cards in the United States, with more than [37.2 million] credit
cards issued and approximately [$50.0 billion] in managed credit card loans
outstanding as of June 30, 1999, including approximately 2.7 million credit
card accounts and approximately $3.9 billion of credit card loans purchased
from Chevy Chase on September 30, 1998 and approximately 1.7 million credit
card accounts and approximately $2.1 billion in managed credit card loans
purchased from GE Capital on December 24, 1998.See "First USA and BANK ONE
CORPORATION" in the attached prospectus.
DESCRIPTION OF THE CERTIFICATES
The Offered Certificates will be issued pursuant to the Pooling and
Servicing Agreement, and the Offered Series Supplement. Pursuant to the
Pooling and Servicing Agreement, First USA and the Trustee may execute
further Series Supplements in order to issue additional Series. The
following summary of the Offered Certificates does not purport to be
complete and is subject to, and is qualified in its entirety by reference
to, all of the provisions of the Pooling and Servicing Agreement and the
Offered Series Supplement. See "Description of the Certificates" in the
attached prospectus for additional information concerning the Offered
Certificates and the Pooling and Servicing Agreement.
GENERAL
The Certificates will represent undivided interests in certain assets
of the Trust, including the right to the applicable allocation percentage
of all cardholder payments on the Receivables in the Trust. Each Class A
Certificate represents the right to receive payments of interest at the
applicable Class A Certificate Rate for the related Interest Period and
payments of principal on the Class A Scheduled Payment Date, or on each
Distribution Date during the Rapid Amortization Period, funded from
collections of Finance Charge Receivables (and Excess Finance Charge
Collections and Reallocated Principal Collections, as necessary) and
Principal Receivables, respectively, allocated to the Class A
Certificateholders' Interest and certain other amounts. Each Class B
Certificate represents the right to receive payments of interest at the
applicable Class B Certificate Rate for the related Interest Period and
payments of principal on the Class B Scheduled Payment Date or on each
Distribution Date during the Rapid Amortization Period after the Class A
Invested Amount has been paid in full, funded from collections of Finance
Charge Receivables (and Reallocated Excess Collateral Principal
Collections, as necessary) and Principal Receivables, respectively,
allocated to the Class B Certificateholders' Interest and certain other
amounts. Payments of interest and principal will be made on each
Distribution Date to Certificateholders in whose names the Certificates
were registered on the last day of the calendar month preceding such
Distribution Date (each, a "RECORD DATE").
The Class A Certificates and the Class B Certificates initially will
be represented by certificates registered in the name of the nominee of
DTC.
Application has been made to list the Class A Certificates and the
Class B Certificates on the Luxembourg Stock Exchange.
In the event that Definitive Certificates are issued, an Offered
Certificate that is mutilated, destroyed, lost or stolen may be exchanged
or replaced, as the case may be, at the offices of the co-transfer agent
and co-registrar in Luxembourg upon presentation of the Offered Certificate
or satisfactory evidence of the mutilation, destruction, loss or theft
thereof to the co-transfer agent and co-registrar. An indemnity
satisfactory to the co-transfer agent and co-registrar and the Trustee may
be required at the expense of the Certificateholder before a replacement
Offered Certificate will be issued. The Certificateholder will be required
to pay any tax or other governmental charge imposed in connection with such
exchange or replacement and any other expenses (including the fees and
expenses of the Trustee and the co-transfer agent and co-registrar)
connected therewith. The transfer agent and registrar shall not be required
to register the transfer or exchange of Definitive Certificates for a
period of fifteen days preceding the due date for any payment with respect
to such Definitive Certificates.
The Trustee will maintain a paying agent in Luxembourg for so long as
the Offered Certificates are outstanding. The name and address of the
paying agent in Luxembourg are set forth at the end of this supplement. If
Definitive Certificates are issued, such paying agent also will act as
co-transfer agent and co-registrar with respect to the Definitive
Certificates and transfers of the Definitive Certificates may be made
through the facilities of such co-transfer agent. In addition, upon
maturity or final payment, such Definitive Certificates may be presented
for payment at the offices of such paying agent in Luxembourg up to two
years after maturity or final payment.
STATUS OF THE CERTIFICATES
The Offered Series will rank pari passu with all other outstanding
Series. Payments on the Class B Certificates are subordinated to payments
on the Class A Certificates to the extent described herein and in the
attached prospectus.
Payments on the Excess Collateral are subordinated to payments on the
Class A Certificates and the Class B Certificates to the extent described
herein and in the attached prospectus.
PRESCRIPTION
The Pooling and Servicing Agreement provides that any money paid by
the Trust to any of the paying agents for the payment of principal or
interest which remains unclaimed for two years after such principal or
interest shall have become due and payable will be repaid to the Trust, and
thereafter any holder of an Offered Certificate may look only to the Trust
for payment thereof.
INTEREST PAYMENTS
Interest will accrue on the outstanding principal balance of the
Class A Certificates at the applicable Class A Certificate Rate and on the
outstanding principal balance of the Class B Certificates at the applicable
Class B Certificate Rate from _________ (the "CLOSING DATE"). Interest will
accrue on the Certificates and be payable on ________, and on the __th day
of each month thereafter, or if such __th day is not a business day, on the
next succeeding business day (each, a "DISTRIBUTION DATE"), in an amount
equal to (i) with respect to the Class A Certificates, 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 outstanding principal amount
of the Class A Certificates as of the preceding Record Date (or in the case
of the first Distribution Date, an amount equal to the product of (x) the
outstanding principal amount of the Class A Certificates on the Closing
Date, (y) __ divided by 360 and (z) the Class A Certificate Rate determined
on _________) and (ii) with respect to the Class B Certificates, 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 outstanding
principal amount of the Class B Certificates as of the preceding Record
Date (or in the case of the first Distribution Date, an amount equal to the
product of (x) the outstanding principal amount of the Class B Certificates
on the Closing Date, (y) __ divided by 360 and (z) the Class B Certificate
Rate determined on __________). Interest payments on the Certificates will
be funded, (i) with respect to the Class A Certificates, from the portion
of Finance Charge Receivables collected during the preceding Monthly Period
(or with respect to the first Distribution Date, from and including the
Closing Date to and including __________) allocated to the Class A
Certificateholders' Interest and, if necessary, from Excess Finance Charge
Collections allocated to the Class A Certificates and Reallocated Principal
Collections (to the extent available), (ii) with respect to the Class B
Certificates, from the portion of Finance Charge Receivables collected
during the preceding Monthly Period (or with respect to the first
Distribution Date, from and including the Closing Date to and including
_________) allocated to the Class B Certificateholders' Interest and, if
necessary, from Excess Finance Charge Collections allocated to the Class B
Certificates and Reallocated Excess Collateral Principal Collections (to
the extent available) remaining after certain other payments have been made
with respect to the Class A Certificates and (iii) with respect to the
Excess Collateral Amount, from Excess Finance Charge Collections allocated
to the Excess Collateral Holders. The "INTEREST PERIOD" with respect to any
Distribution Date, or related Transfer Date, as the case may be, will be
the period from the previous Distribution Date through the day preceding
such Distribution Date, except that the initial Interest Period will be the
period from the Closing Date through the day preceding the initial
Distribution Date.
The Class A Certificates will bear interest at the rate of ____%
above LIBOR determined as set forth below from the Closing Date through
_________, and with respect to each Interest Period thereafter (the "CLASS
A CERTIFICATE RATE"). The Class B Certificates will bear interest at the
rate of____% above LIBOR determined as set forth below from the Closing
Date through ________, and with respect to each Interest Period thereafter
(the "CLASS B CERTIFICATE RATE," sometimes referred to herein collectively
with the Class A Certificate Rate as the "CERTIFICATE RATE").
The Trustee will determine LIBOR on _________, ____ for the period
from the Closing Date through _________, ____, and for each Interest Period
following the initial Interest Period, on the second London business day
prior to the Distribution Date on which such Interest Period commences
(each, a "LIBOR DETERMINATION DATE"). For purposes of calculating LIBOR, a
"LONDON BUSINESS DAY" is any day, other than a Saturday, Sunday or day on
which banking institutions in London, England trading in U.S. 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.
"LIBOR" means, as of any LIBOR Determination Date, the rate for
deposits in United States dollars for a one-month 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 will 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 one-month period. The Trustee will 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 will be the arithmetic mean of the
quotations. If fewer than two quotations are provided as requested, the
rate for that LIBOR Determination Date will be the arithmetic mean of the
rates quoted by major banks in New York City, selected by the Servicer, at
approximately 11:00 a.m., New York City time, on that day for loans in
United States dollars to leading European banks for a one-month period.
"TELERATE PAGE 3750" means the display page currently so designated
on the Dow Jones Telerate Service (or such other page as may replace that
page on that service for the purpose of displaying comparable rates or
prices).
"REFERENCE BANKS" means four major banks in the London interbank
market selected by the Servicer.
The Class A Certificate Rate and the Class B Certificate Rate
applicable to the then current and immediately preceding Interest Period
may be obtained by telephoning The Bank of New York at (800) 254-2826. The
Trustee will cause the Class A Certificate Rate and the Class B Certificate
Rate, as well as the amount of Class A Monthly Interest and Class B Monthly
Interest applicable to an Interest Period, to be provided to the Luxembourg
Stock Exchange and to be published in a daily newspaper in Luxembourg
(expected to be the Luxemburger Wort) as soon as possible after its
determination but in no event later than the first day of such Interest
Period. Such information will also be included in a statement to the
Certificateholders of record prepared by the Servicer. See "Description of
the Certificates--Reports to Certificateholders" in the attached
prospectus.
Interest on the Class A Certificates and the Class B Certificates
will be calculated on the basis of the actual number of days in the
Interest Period and a 360-day year.
PRINCIPAL PAYMENTS
On each Transfer Date relating to the period from and including the
Closing Date and ending at the commencement of the Accumulation Period or,
if earlier, the Rapid Amortization Period (the "REVOLVING PERIOD"),
collections of Principal Receivables allocable to the Invested Amount will,
subject to certain limitations, including the allocation of any Reallocated
Principal Collections with respect to the related Monthly Period to pay the
Class A Required Amount and the Class B Required Amount, be treated as
Excess Principal Collections.
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 for
such Monthly Period 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. Beginning with the Transfer Date on which the full amount of the
Class A Invested Amount has been deposited in the Principal Funding Account
and 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, if any, (b) the applicable Controlled Deposit Amount
(minus the Class A Monthly Principal with respect to such Transfer Date)
for such Monthly Period 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 on the Class A Scheduled Payment Date, amounts in the
Principal Funding Account will be paid to the Class B Certificateholders on
the Class B Scheduled Payment Date. Beginning with the Transfer Date on
which 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 the application thereof to
the Class A Invested Amount and the Class B Invested Amount, if any, (b)
the applicable Controlled Deposit Amount (minus the Class A Monthly
Principal and the Class B Monthly Principal with respect to such Transfer
Date) for such Monthly Period and (c) the Excess Collateral Adjusted Amount
prior to any such deposit on such day. If the Class A Invested Amount and
the Class B Invested Amount will be paid in full on the Class A Scheduled
Payment Date and the Class B Scheduled Payment Date, respectively, amounts
in the Principal Funding Account will be paid to the Excess Collateral
Holders on the Excess Collateral Scheduled Payment Date. The "EXCESS
COLLATERAL SCHEDULED PAYMENT DATE" is the _________, ____ Transfer Date.
During the Accumulation Period, the portion of Available Investor Principal
Collections not applied to Class A Monthly Principal, Class B Monthly
Principal or Excess Collateral Monthly Principal on a Transfer Date will
generally be treated as Excess Principal Collections.
"AVAILABLE INVESTOR PRINCIPAL COLLECTIONS" means, with respect to any
Monthly Period, an amount equal to the sum of (i) an amount equal to,
during the Revolving Period, the Investor Percentage, and during an
Amortization Period, the Fixed/Floating Allocation Percentage of all
collections in respect of Principal Receivables received during such
Monthly Period, plus (ii) the amount, if any, of collections of Finance
Charge Receivables and Excess Finance Charge Collections allocated and
available on the next succeeding Distribution Date to (A) fund the Class A
Investor Default Amount, the Class B Investor Default Amount and the Excess
Collateral Default Amount with respect to the next succeeding Distribution
Date and (B) reimburse Class A Investor Charge-Offs and previous reductions
in the Class B Invested Amount and the Excess Collateral Amount, minus
(iii) the amount of Reallocated Principal Collections with respect to such
Monthly Period used to fund the Class A Required Amount and the Class B
Required Amount.
The "RAPID AMORTIZATION PERIOD" is the period beginning on the
earliest of the day on which a Pay Out Event occurs, the Class A Scheduled
Payment Date if the Class A Invested Amount is not paid in full on such
date, and the Class B Scheduled Payment Date if the Class B 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
Excess Collateral Amount have each been paid in full and (ii) the Stated
Series Termination Date. On each Distribution Date following the Monthly
Period in which the Rapid Amortization Period commences, the Class A
Certificateholders will be entitled to receive Available Investor Principal
Collections for the preceding Monthly Period in an amount up to the Class A
Invested Amount until the earlier of the date the Class A Invested Amount
is paid in full and the Stated Series Termination Date. In addition, 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 paid to the Certificateholders of each Class of
Certificates, sequentially, in order of seniority, on the Distribution Date
(or on the Transfer Date in the case of Excess Collateral Holders)
following the Monthly Period in which the Rapid Amortization Period
commences. After payment in full of the Class A Invested Amount, the Class
B Certificateholders will be entitled to receive Available Investor
Principal Collections on each Distribution Date during the Rapid
Amortization Period until the earlier of the date the Class B Invested
Amount is paid in full and the Stated Series Termination Date. After
payment in full of the Class B Invested Amount, the Excess Collateral
Holders will be entitled to receive Available Investor Principal
Collections on each Transfer Date (other than the Transfer Date prior to
the Stated Series Termination Date) and on the Stated Series Termination
Date until the earlier of the date on which the Excess Collateral Amount is
paid in full and the Stated Series Termination Date. See "--Pay Out Events"
below for a discussion of events which might lead to the commencement of
the Rapid Amortization Period.
In the event of a sale of the Receivables and an early termination of
the Trust due to an event of insolvency, a material breach of certain
representations and warranties, an optional repurchase of the Receivables
by the Bank, a repurchase of the Receivables in connection with a Servicer
Default or a sale of the Receivables in connection with the Stated Series
Termination Date (each as described under "Description of the
Certificates--Pay Out Events," "--Servicer Default" and "--Final Payment of
Principal; Termination" in the attached prospectus), distributions of
principal will be made to the Certificateholders upon surrender of their
Certificates. The proceeds of any such sale or repurchase of Receivables
will be allocated first to pay amounts due with respect to the Class A
Certificates, then to pay amounts due with respect to the Class B
Certificates and then to pay amounts due with respect to the Excess
Collateral as described herein.
POSTPONEMENT OF ACCUMULATION PERIOD
The accumulation period with respect to the Certificates (the
"ACCUMULATION PERIOD") is scheduled to begin at the close of business on
___________ (the Accumulation Period, together with the Rapid Amortization
Period sometimes referred to as an "AMORTIZATION PERIOD" and collectively
as the "AMORTIZATION PERIODS"). Upon written notice to the Trustee, the
Servicer may elect to postpone the commencement of the Accumulation Period,
and extend the length of the Revolving Period, subject to certain
conditions including those set forth below. The Servicer may make such
election only if the Accumulation Period Length (determined as described
below) is less than twelve months. On each Determination Date, until the
Accumulation Period begins, the Servicer will determine the "ACCUMULATION
PERIOD LENGTH," which is the number of months expected to be required to
fully fund the Principal Funding Account no later than the Excess
Collateral Scheduled Payment Date, based on (a) the expected monthly
collections of Principal Receivables expected to be distributable to the
certificateholders of all Series (unless Excess Principal Collections from
any such other Series are not allocated to be shared with the Offered
Series), assuming a principal payment rate no greater than the lowest
monthly principal payment rate on the Receivables for the preceding twelve
months and (b) the amount of principal expected to be distributable to
certificateholders of Series (which may exclude certain other Series) which
are not expected to be in their revolving periods during the Accumulation
Period. If the Accumulation Period Length is less than twelve months, the
Servicer may, at its option, postpone the commencement of the Accumulation
Period such that the number of months included in the Accumulation Period
will be equal to or exceed the Accumulation Period Length. The effect of
the foregoing calculation is to permit the reduction of the length of the
Accumulation Period based on the invested amounts of certain other Series
which are scheduled to be in their revolving periods during the
Accumulation Period and on increases in the principal payment rate
occurring after the Closing Date. The length of the Accumulation Period
will not be less than one month. If the Accumulation Period is postponed in
accordance with the foregoing, and if a Pay Out Event occurs after the date
originally scheduled as the commencement of the Accumulation Period, it is
probable that Certificateholders would receive some of their principal
later than if the Accumulation Period had not been so postponed.
EXCESS PRINCIPAL COLLECTIONS
Collections of Principal Receivables for any Monthly Period allocated
to the Invested Amount will first be used to cover, with respect to any
Monthly Period during either Amortization Period, payments to the Class A
Certificateholders and the Class B Certificateholders and then payments to
the Excess Collateral Holders. The Servicer will determine the amount of
collections of Principal Receivables for any Monthly Period allocated to
the Invested Amount remaining after covering required payments to the
Certificateholders or deposits with respect thereto and any similar amount
remaining for any other Series ("EXCESS PRINCIPAL COLLECTIONS"). The
Servicer will allocate the Excess Principal Collections to cover any
scheduled or permitted principal distributions to certificateholders and
deposits to principal funding accounts, if any, for any Series which have
not been covered out of the collections of Principal Receivables allocable
to such Series and certain other amounts for such Series. Excess Principal
Collections will not be used to cover investor charge-offs for any Series.
If principal shortfalls for all Series exceed Excess Principal Collections
for any Monthly Period, Excess Principal Collections will be allocated pro
rata among the applicable Series based on the relative amounts of principal
shortfalls. To the extent that Excess Principal Collections exceed
principal shortfalls for all Series, the balance will, subject to certain
limitations, be paid to the holder of the Exchangeable Transferor
Certificate. "PRINCIPAL SHORTFALLS" means with respect to the Offered
Series and any Distribution Date (a) the sum of the amount, if any, by
which during the Accumulation Period the Controlled Deposit Amount exceeds
the sum of the Class A Monthly Principal, Class B Monthly Principal and
Excess Collateral Monthly Principal for the related Transfer Date or (b)
during the Rapid Amortization Period, (i) the amount, if any, by which the
Class A Invested Amount on such Distribution Date exceeds the Class A
Monthly Principal for the related Transfer Date, (ii) on and after the
Class B Principal Commencement Date, the amount, if any, by which the Class
B Invested Amount on such Distribution Date exceeds the Class B Monthly
Principal for the related Transfer Date and (iii) on and after the date on
which the Class B Invested Amount has been deposited in full in the
Principal Funding Account or paid in full, the amount, if any, by which the
Excess Collateral Amount on such Distribution Date exceeds the Excess
Collateral Monthly Principal for the related Transfer Date. "CLASS B
PRINCIPAL COMMENCEMENT DATE" means (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 or (b)
with respect to the Rapid Amortization Period, the Distribution Date on
which the Class A Invested Amount is paid in full or, if there are no
Available Investor Principal Collections 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.
SUBORDINATION OF THE CLASS B CERTIFICATES
The Class B Certificateholders' Interest will be subordinated to the
extent necessary to fund payments with respect to the Class A Certificates.
To the extent the Class B Invested Amount is reduced, the percentage of
collections of Finance Charge Receivables allocated to the Class B
Certificateholders in subsequent Monthly Periods will be reduced. Moreover,
to the extent the amount of such reduction in the Class B Invested Amount
is not reimbursed, the amount of principal distributable to the Class B
Certificateholders will be reduced. No principal will be paid to the Class
B Certificateholders until the Class A Invested Amount is paid in full.
If collections of Finance Charge Receivables allocable to the Class A
Certificateholders' Interest for any Monthly Period are insufficient to pay
Class A Monthly Interest, any overdue Class A Monthly Interest (with
default interest thereon), the Class A Investor Default Amount for such
Monthly Period, and, if the Transferor is not the Servicer, the Class A
Monthly Servicing Fee for such Monthly Period, then Excess Finance Charge
Collections will be applied to fund the amount of such deficiency. If
Excess Finance Charge Collections available with respect to such Monthly
Period are less than the Class A Required Amount, Reallocated Principal
Collections will be applied to fund the remaining Class A Required Amount
and the Excess Collateral Amount will be reduced until the Excess
Collateral Amount is equal to zero and then the Class B Invested Amount
will be reduced by the amount of Reallocated Class B Principal Collections
so used.
If Reallocated Principal Collections available with respect to such
Monthly Period are insufficient to fund the remaining Class A Required
Amount and the Excess Collateral Amount is reduced to zero, then a portion
of the Class B Invested Amount equal to such insufficiency (but not in
excess of the lesser of the Class A Investor Default Amount for such
Monthly Period and the Class B Invested Amount) will be allocated to the
Class A Certificates to avoid a reduction in the Class A Invested Amount,
and the Class B Invested Amount will be reduced by the amount so allocated.
Such reductions of the Class B Invested Amount will thereafter be
reimbursed and the Class B Invested Amount increased on each Distribution
Date by the amount, if any, of Excess Finance Charge Collections for such
Distribution Date allocated and available for such purpose. See "--Excess
Finance Charge Collections" and "--Reallocated Principal Collections"
herein.
INVESTOR PERCENTAGE AND TRANSFEROR PERCENTAGE
Pursuant to the Pooling and Servicing Agreement, during each Monthly
Period the Servicer will allocate among the Class A Certificateholders (the
"CLASS A CERTIFICATEHOLDERS' INTEREST"), the Class B Certificateholders
(the "CLASS B CERTIFICATEHOLDERS' INTEREST," and together with the Class A
Certificateholders' Interest, the "INVESTOR INTEREST"), the Excess
Collateral Holders (the "EXCESS COLLATERAL HOLDERS' Interest"), the
Transferor Interest and the interest of the holders of the other Series
outstanding at such time all collections of Finance Charge Receivables and
all collections of Principal Receivables and all amounts of Receivables in
Defaulted Accounts with respect to such calendar month (each such month, a
"MONTHLY PERIOD"). Collections of Finance Charge Receivables and the amount
of Receivables in Defaulted Accounts at all times and collections of
Principal Receivables during the Revolving Period will be allocated to the
Class A Certificateholders' Interest, the Class B Certificateholders'
Interest and the Excess Collateral Holders' Interest based on the
percentage equivalent of the ratio which each of the amount of the Class A
Adjusted Invested Amount, the Class B Adjusted Invested Amount or the
Excess Collateral Adjusted Amount, respectively, on the last day of the
preceding Monthly Period bears to the total amount of Principal Receivables
on the last day of the preceding Monthly Period (the "CLASS A FLOATING
ALLOCATION PERCENTAGE," the "CLASS B FLOATING ALLOCATION PERCENTAGE" and
the "EXCESS COLLATERAL FLOATING ALLOCATION PERCENTAGE," respectively, and
the sum of all three percentages, the "INVESTOR PERCENTAGE"). During the
initial Monthly Period, the Class A Floating Allocation Percentage, the
Class B Floating Allocation Percentage and the Excess Collateral Floating
Allocation Percentage will equal the percentage equivalent of the ratio
which the amount of the initial Class A Invested Amount, the initial Class
B Invested Amount and the initial Excess Collateral Amount, respectively,
bears to the total amount of Principal Receivables on the Closing Date.
During the Revolving Period, all Principal Receivables allocable to the
Class A Certificates, the Class B Certificates and the Excess Collateral
will be allocated and paid to the holder of the Exchangeable Transferor
Certificate (except for (i) Reallocated Principal Collections used to pay
interest and certain other amounts on the Class A Certificates and Class B
Certificates and, if the Bank is not the Servicer, the Investor Servicing
Fee, as described under "--Reallocated Principal Collections" and
"--Servicing Compensation and Payment of Expenses," (ii) amounts paid to
the holders of certificates of other Series as Excess Principal
Collections, if any, and (iii) Unallocated Principal Collections). During
an Amortization Period, all Principal Receivables collected will be
allocated to the Investor Interest and the Excess Collateral Holders'
Interest based on the percentage equivalent of the ratio which each of the
Class A Invested Amount, the Class B Invested Amount and the Excess
Collateral Amount, respectively, at the end of the last day of the
Revolving Period bears to the greater of (a) the total amount of Principal
Receivables at the end of the last day of the preceding Monthly Period and
(b) the sum of the numerators used to calculate allocation percentages with
respect to Principal Receivables for each Class of each Series outstanding
for the current Distribution Date (the "CLASS A FIXED/FLOATING ALLOCATION
PERCENTAGE," the "CLASS B FIXED/FLOATING ALLOCATION PERCENTAGE" and the
"EXCESS COLLATERAL FIXED/FLOATING ALLOCATION PERCENTAGE," respectively, and
the sum of all three percentages, the "FIXED/FLOATING ALLOCATION
PERCENTAGE") and the remainder will be allocated to the Transferor Interest
and the interest of certificateholders of other Series, if any. Reallocated
Excess Collateral Principal Collections will be allocated during the
Revolving Period based on the Excess Collateral Floating Allocation
Percentage. Reallocated Excess Collateral Principal Collections will be
allocated during an Amortization Period based on the Excess Collateral
Fixed/Floating Allocation Percentage. Reallocated Class B Principal
Collections will be allocated during the Revolving Period based on the
Class B Floating Allocation Percentage. Reallocated Class B Principal
Collections will be allocated during an Amortization Period based on the
Class B Fixed/Floating Allocation Percentage. However, with respect to any
Monthly Period in which Additional Accounts are added on a specified date
(an "ADDITION DATE") to the Trust and the Servicer need not make daily
deposits of collections into the Collection Account, the denominator in the
definitions of the Class A Floating Allocation Percentage, the Class B
Floating Allocation Percentage and the Excess Collateral Floating
Allocation Percentage and the denominator determined pursuant to clause (a)
of the definitions of Fixed/Floating Allocation Percentage, Class A
Fixed/Floating Allocation Percentage, Class B Fixed/Floating Allocation
Percentage and Excess Collateral Fixed/Floating Allocation Percentage above
shall be the Average Principal Balance; provided, however, that with
respect to any Monthly Period in which an Addition Date occurs and the
Servicer is required to make daily deposits of collections into the
Collection Account, the denominators in the definitions of the Class A
Floating Allocation Percentage, the Class B Floating Allocation Percentage
and the Excess Collateral Floating Allocation Percentage and the
denominator determined pursuant to clause (a) of the definitions of
Fixed/Floating Allocation Percentage, Class A Fixed/Floating Allocation
Percentage, Class B Fixed/Floating Allocation Percentage and Excess
Collateral Fixed/Floating Allocation Percentage shall be (1) for the period
from and including the first day of such Monthly Period to but excluding
the related Addition Date, the aggregate amount of Principal Receivables in
the Trust at the end of the day on the last day of the prior Monthly Period
and (2) for the period from and including the Addition Date through the
last day of such Monthly Period, the aggregate amount of Principal
Receivables in the Trust at the end of the day on the related Addition
Date. "AVERAGE PRINCIPAL BALANCE" means, for a Monthly Period in which
Additional Accounts are designated for inclusion in 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, 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, 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 to and
including the last day of such Monthly Period, and the denominator of which
is the number of days in such Monthly Period.
As used herein, the term "CLASS A INVESTED AMOUNT" for any day means
an amount equal to (a) the initial principal balance of the Class A
Certificates, minus (b) the 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 for all prior
Distribution Dates over the aggregate amount of any reimbursements of Class
A Investor Charge-Offs for all Distribution Dates preceding such date;
provided, however, that the Class A Invested Amount may not be reduced
below zero.
As used herein, the term "CLASS A ADJUSTED INVESTED AMOUNT" for any
date of determination, means an amount not less than zero equal to the then
current Class A Invested Amount, minus the Principal Funding Account
Balance on such date.
As used herein, the term "CLASS B INVESTED AMOUNT" for any day means
an amount equal to (a) the initial principal balance of the Class B
Certificates, minus (b) the 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 aggregate amount of Reallocated Class B Principal Collections for which
the Excess Collateral Amount has not been reduced for all prior
Distribution Dates, minus (e) 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 herein under
"--Defaulted Receivables; Investor Charge-Offs," and plus (f) the aggregate
amount of Excess Finance Charge Collections and certain other amounts
applied 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.
As used herein, the term "CLASS B ADJUSTED INVESTED AMOUNT" for any
date of determination, means 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.
As used herein, the term "EXCESS COLLATERAL AMOUNT" for any day means
an amount equal to (a) the initial Excess Collateral Amount, minus (b) the
amount of principal payments made to the Excess Collateral Holders prior to
such day, minus (c) the aggregate amount of Excess Collateral Charge-Offs
for all prior Distribution Dates, minus (d) 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, minus (e) an amount equal to the aggregate amount by which the
Excess Collateral 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 under "--Defaulted Receivables; Investor
Charge-Offs," and plus (f) 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 (c), (d)
and (e); provided, however, that the Excess Collateral Amount may not be
reduced below zero.
As used herein, the term "EXCESS COLLATERAL ADJUSTED AMOUNT" for any
date of determination, means an amount not less than zero equal to the
Excess Collateral 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.
As used herein, the term "INVESTED AMOUNT" means the sum of the Class
A Invested Amount, the Class B Invested Amount and the Excess Collateral
Amount.
As used herein, the term "TRANSFEROR PERCENTAGE" means (a) when used
with respect to collections of Finance Charge Receivables and the amount of
Receivables in Defaulted Accounts, 100% minus the sum of the Class A
Floating Allocation Percentage, the Class B Floating Allocation Percentage
and the Excess Collateral Floating Allocation Percentage and the floating
allocation percentages for all other Series, (b) when used with respect to
collections of Principal Receivables during the Revolving Period, 100%
minus the sum of the Class A Floating Allocation Percentage, the Class B
Floating Allocation Percentage and the Excess Collateral Floating
Allocation Percentage and the allocation percentages for Principal
Receivables for all other Series and (c) when used with respect to
collections of Principal Receivables during the Accumulation Period or the
Rapid Amortization Period, 100% minus the sum of the Fixed/Floating
Allocation Percentage and the allocation percentages for Principal
Receivables for all other Series.
As a result of the Class A Floating Allocation Percentage, the Class
B Floating Allocation Percentage and the Excess Collateral Floating
Allocation Percentage, the portion of Receivables in Defaulted Accounts
allocated to the Class A Certificateholders, the Class B Certificateholders
and the Excess Collateral Holders as well as the collections of Finance
Charge Receivables allocated to the Class A Certificateholders, the Class B
Certificateholders and the Excess Collateral Holders will change for each
Monthly Period based on the relationship of the amount of the Class A
Invested Amount, the Class B Invested Amount and the Excess Collateral
Amount to the total amount of Principal Receivables on the last day of the
preceding Monthly Period.
The numerator of the percentages of collections of Principal
Receivables allocable to the Class A Certificateholders, the Class B
Certificateholders and the Excess Collateral Holders, however, will remain
fixed during either Amortization Period. Collections of Principal
Receivables allocable to the Class B Certificates are subject to possible
reallocation for the benefit of the Class A Certificateholders and
collections of Principal Receivables allocable to the Excess Collateral are
subject to possible reallocation for the benefit of the Class A
Certificateholders and the Class B Certificateholders as described under
"--Reallocation of Cash Flows" below.
REALLOCATION OF CASH FLOWS
On each Determination Date, the Servicer will determine the Class A
Required Amount and the Class B Required Amount. The "CLASS A REQUIRED
AMOUNT" means the amount, if any, by which the sum of Class A Monthly
Interest and any overdue Class A Monthly Interest on the related
Distribution Date (and default interest thereon), the Class A Investor
Default Amount for the related Monthly Period and, if the Bank is no longer
the Servicer, the Class A Monthly Servicing Fee for the related Monthly
Period exceeds the Class A Available Funds with respect to the related
Monthly Period. The "CLASS B REQUIRED AMOUNT" means the sum of (i) the
amount, if any, by which the sum of Class B Monthly Interest and any
overdue Class B Monthly Interest on the related Distribution Date (and
default interest thereon) and, if the Bank is no longer the Servicer, the
Class B Monthly Servicing Fee for the related Monthly Period exceeds the
Class B Available Funds with respect to the related Monthly Period and (ii)
the amount, if any, by which the Class B Investor Default Amount for the
related Monthly Period exceeds the amount of Excess Finance Charge
Collections available to make payments with respect thereto on the related
Transfer Date. If the Class A Required Amount is greater than zero, Excess
Finance Charge Collections will be used to pay the Class A Required Amount
with respect to such Distribution Date. If such Excess Finance Charge
Collections are insufficient to pay the Class A Required Amount,
Reallocated Principal Collections will then be used to fund the remaining
Class A Required Amount. If Reallocated Principal Collections with respect
to the related Monthly Period are insufficient to fund the remaining Class
A Required Amount for such related Monthly Period, then a portion of the
Excess Collateral Amount equal to such insufficiency (but not in excess of
the lesser of the Class A Investor Default Amount for such Monthly Period
and the Excess Collateral Amount) will be allocated to the Class A
Certificates to avoid a charge-off with respect to the Class A
Certificates. If the Excess Collateral Amount is reduced to zero, then a
portion of the Class B Invested Amount equal to any remaining insufficiency
(but not in excess of the lesser of the Class A Investor Default Amount for
such Monthly Period and the Class B Invested Amount) will be allocated to
the Class A Certificates to avoid a charge-off with respect to the Class A
Certificates. If the Class B Invested Amount is reduced to zero, the Class
A Invested Amount will be reduced by any remaining deficiency (but not in
excess of the Class A Investor Default Amount for such Monthly Period).
If the Class B Required Amount is greater than zero, any Reallocated
Excess Collateral Principal Collections remaining after application of such
amounts to any Class A Required Amount (after the application of Excess
Finance Charge Collections) will then be used to fund the Class B Required
Amount. If such remaining Reallocated Excess Collateral Principal
Collections with respect to the related Monthly Period are insufficient to
fund the Class B Required Amount for such related Monthly Period, then a
portion of any remaining Excess Collateral Amount equal to such
insufficiency (but not in excess of the lesser of the Class B Investor
Default Amount for such Monthly Period and the remaining Excess Collateral
Amount) will be allocated to the Class B Certificates to avoid a charge-off
with respect to the Class B Certificates. If the Excess Collateral Amount
is reduced to zero, the Class B Invested Amount will be reduced by any
remaining deficiency (but not in excess of the Class B Investor Default
Amount for such Monthly Period).
APPLICATION OF COLLECTIONS
Daily Allocations. The Servicer will instruct the Trustee to withdraw
from the Collection Account on each business day an amount equal to the
Transferor Percentage of the aggregate amount of such deposits in respect
of Principal Receivables and Finance Charge Receivables, respectively, and
pay such amounts to the holder of the Exchangeable Transferor Certificate;
provided, however, that if the Transferor Interest expressed as a
percentage of the aggregate amount of Principal Receivables is equal to or
less than the Minimum Transferor Interest such amount shall instead be
retained in the Collection Account and applied as Unallocated Principal
Collections; provided, further, that on any business day thereafter when
the Transferor Interest expressed as a percentage of the aggregate amount
of Principal Receivables is greater than the Minimum Transferor Interest,
the amount of Unallocated Principal Collections shall be released to the
holder of the Exchangeable Transferor Certificate.
With respect to the Certificates, the Servicer will instruct the
Trustee to make the following payments and deposits on each date of
processing; provided, however, that for so long as the Bank remains the
Servicer under the Pooling and Servicing Agreement and the Servicer has and
maintains a certificate of deposit rating of "P-1" by Moody's and of "A-1"
by Standard & Poor's and deposit insurance provided by either BIF or SAIF,
then the Servicer may make such deposits and payments on each Transfer Date
in an amount equal to the net amount of such deposits and payments which
would have been made had the conditions of this proviso not applied:
(a) during the Revolving Period, (i) allocate to the
Certificateholders an amount equal to the Investor Percentage of
collections of Finance Charge Receivables and deposit in the Finance
Charge Account (A) prior to the Calculation Date in each Monthly
Period an amount equal to the product of the Investor Percentage and
the aggregate amount of collections of Finance Charge Receivables, or
(B) on and after each such Calculation Date, the lesser of (x) the
product of the Investor Percentage and the aggregate amount of
collections of Finance Charge Receivables and (y) the excess of (1)
the amounts owing to Certificateholders with respect to interest for
the Distribution Date following the then current Monthly Period
(plus, if the Transferor is not the Servicer, the Investor Servicing
Fee) over (2) the amounts previously deposited in the Finance Charge
Account with respect thereto; on each date of processing on and after
the Calculation Date collections of Finance Charge Receivables
allocated to the Certificates in excess of the amount required to be
retained in the Finance Charge Account as provided above shall be
held by the Servicer and applied on each Transfer Date as described
below and (ii) allocate to the Certificateholders an amount equal to
the product of (A) the Investor Percentage and (B) the aggregate
amount of collections of Principal Receivables on such date of
processing and pay such amount to the holder of the Exchangeable
Transferor Certificate subject to the obligation of such holder to
make an amount equal to the Reallocated Principal Collections and
Excess Principal Collections for such Monthly Period available on the
related Transfer Date as described below; provided, however, that the
amount to be paid to the holder of the Exchangeable Transferor
Certificate shall be paid only if the Transferor Interest expressed
as a percentage of the aggregate amount of Principal Receivables is
greater than the Minimum Transferor Interest (after giving effect to
all Principal Receivables transferred to the Trust on such day) and
otherwise will be retained in the Collection Account and
applied as Unallocated Principal Collections; and provided, further,
that on and after the Calculation Date if the amounts previously
deposited in the Finance Charge Account with respect to the current
Monthly Period are less than the sum of the amounts owing to
Certificateholders with respect to interest for the Distribution Date
following the then current Monthly Period (plus, if the Transferor is
not the Servicer, the Investor 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 Excess Collateral Floating Allocation Percentage and (y)
collections of Principal Receivables on any 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; and, at such time as the
Finance Charge Deficit is equal to zero, such amounts may be paid
from the Principal Account to the holder of the Exchangeable
Transferor Certificate;
(b) during the Accumulation Period, (i) allocate to the
Certificateholders and retain in the Finance Charge Account an amount
equal to the product of (A) the Investor Percentage and (B) the
aggregate amount of collections of Finance Charge Receivables and
(ii) allocate to the Certificateholders and retain in the Principal
Account an amount equal to the product of (x) the Fixed/Floating
Allocation Percentage and (y) the aggregate amount of collections of
Principal Receivables (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 such holder to make an
amount equal to the Reallocated Principal Collections and Excess
Principal Collections for such Monthly Period available on the
related Transfer Date as described below), only if the Transferor
Interest expressed as a percentage of the aggregate amount of
Principal Receivables is greater than the Minimum Transferor Interest
(after giving effect to all Principal Receivables transferred to the
Trust on such day) and otherwise shall be retained in the Collection
Account and applied as Unallocated Principal Collections; 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 paid
from the Principal Account to the holder of the Exchangeable
Transferor Certificate; and
(c) during the Rapid Amortization Period, (i) allocate to the
Certificateholders and retain in the Finance Charge Account an amount
equal to the product of (A) the Investor Percentage and (B) the
aggregate amount of collections of Finance Charge Receivables and
(ii) allocate to the Certificateholders and retain in the Principal
Account an amount equal to the product of (x) the Fixed/Floating
Allocation Percentage and (y) the aggregate amount of collections of
Principal Receivables; 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
Certificateholders, the amount determined above will be paid to the
holder of the Exchangeable Transferor Certificate only if the
Transferor Interest expressed as a percentage of the aggregate amount
of Principal Receivables is greater than the Minimum Transferor
Interest (after giving effect to all Principal Receivables
transferred to the Trust on such day) and otherwise will be retained
in the Collection Account and applied as Unallocated Principal
Collections.
"CALCULATION DATE" means _________, ____ and the second business day
(which is a business day as defined for purposes of determining LIBOR)
prior to the 15th day of each calendar month thereafter.
Monthly Deposits During the Revolving Period and Accumulation Period.
During the Revolving Period, the Servicer will deposit in the Finance
Charge Account on each Transfer Date an amount equal to (i) the lesser of
(A) the product of (x) the Investor Percentage with respect to the
preceding Monthly Period and (y) the aggregate amount of collections of
Finance Charge Receivables for the preceding 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 clauses (a)(i)
through (iii), (b)(i) and (ii) and (c)(i) under "--Monthly Allocations" as
described below and clauses (a) through (k) of "--Excess Finance Charge
Collections" less (ii) the amounts deposited in the Finance Charge Account
daily during such Monthly Period as described above in "--Daily
Allocations." During the Revolving Period and the Accumulation Period, on
each Transfer Date the holder of the Exchangeable Transferor Certificate
will 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
retained in the Collection Account as described above in "--Daily
Allocations" with respect to the Revolving Period or 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 the Offered Series, not to exceed (a) during
the Revolving Period, the Investor Percentage of collections of Principal
Receivables for the related Monthly Period or (b) 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 Class A Monthly Principal, Class B Monthly Principal
or Excess Collateral Monthly Principal on the related Distribution Date or
Transfer Date, as applicable.
Monthly Allocations. On each Transfer Date, the Trustee, acting
pursuant to the Servicer's instructions, will make the following payments
and deposits:
(a) An amount equal to the Class A Available Funds for the
preceding 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 overdue Class A
Monthly Interest, plus any default interest with respect to
interest amounts that were due but not paid on a prior
Distribution Date, such interest to be computed at the Class A
Certificate Rate plus 2.0% per annum, will be deposited into
the Distribution Account for distribution to Class A
Certificateholders on the next succeeding Distribution Date;
(ii) if the Bank is no longer the Servicer, an amount
equal to the Class A Monthly Servicing Fee for the related
Monthly Period will be paid to the Servicer;
(iii) an amount equal to the Class A Investor Default
Amount, if any, for the related Monthly Period will be paid in
respect of principal to the holder of the Exchangeable
Transferor Certificate during the Revolving Period (provided
that if such amount exceeds the Transferor Interest, the excess
will be treated as Unallocated Principal Collections) and
deposited in the Principal Account and treated as a portion of
Available Investor Principal Collections during an Amortization
Period; and
(iv) the balance, if any, will constitute a portion of
Excess Finance Charge Collections and will be allocated and
distributed as described under "--Excess Finance Charge
Collections" below.
(b) An amount equal to the Class B Available Funds for the
preceding Monthly Period will be distributed in the following
priority:
(i) an amount equal to Class B Monthly Interest for such
Distribution Date, plus the amount of any overdue Class B
Monthly Interest, plus any default interest with respect to
interest amounts that were due but not paid on a prior
Distribution Date, such interest to be computed at the Class B
Certificate Rate plus 2.0% per annum, will be deposited into
the Distribution Account for distribution to Class B
Certificateholders on the next succeeding Distribution Date;
(ii) if the Bank is no longer the Servicer, an amount
equal to the Class B Monthly Servicing Fee for the related
Monthly Period will be paid to the Servicer; and
(iii) the balance, if any, will constitute a portion of
Excess Finance Charge Collections and will be allocated and
distributed as described under "--Excess Finance Charge
Collections" below.
(c) An amount equal to the Excess Collateral Available Funds
for the preceding Monthly Period will be distributed in the following
priority:
(i) if the Bank is no longer the Servicer, an amount
equal to the Excess Collateral Monthly Servicing Fee for the
related Monthly Period will be paid to the Servicer; and
(ii) the balance, if any, will constitute a portion of
Excess Finance Charge Collections and will be allocated and
distributed as described under "--Excess Finance Charge
Collections" below.
"EXCESS FINANCE CHARGE COLLECTIONS" means, with respect to any
Transfer Date, an amount equal to the sum of the amounts described in
clause (a)(iv), clause (b)(iii) and clause (c)(ii) above.
"CLASS A MONTHLY INTEREST" with respect to any Distribution Date will
be equal to the product of (i) the Class A Certificate Rate for the related
Interest Period, (ii) the actual number of days in such Interest Period
divided by 360 and (iii) the outstanding principal balance of the Class A
Certificates on the related Record Date or with respect to the first
Distribution Date, the initial Class A Invested Amount.
"CLASS A AVAILABLE FUNDS" means, with respect to any Monthly Period,
an amount equal to the sum of (a) the Class A Floating Allocation
Percentage of 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, 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 as described under "--Reserve Account" herein.
"CLASS A ACCOUNT PERCENTAGE" means, with respect to any Determination
Date, the percentage equivalent of a fraction, the numerator of which is
the aggregate amount on deposit in the Principal Funding Account with
respect to the Class A Certificates and the denominator of which is the
aggregate amount on deposit in the Principal Funding Account, in each case
as of the last day of the preceding Monthly Period.
"CLASS B MONTHLY INTEREST" with respect to any Distribution Date will
be equal to the product of (i) the Class B Certificate Rate for the related
Interest Period, (ii) the actual number of days in such Interest Period
divided by 360 and (iii) the Class B Invested Amount on the related Record
Date or with respect to the first Distribution Date, the initial Class B
Invested Amount.
"CLASS B AVAILABLE FUNDS" means, with respect to any Monthly Period,
an amount equal to the sum of (a) the Class B Floating Allocation
Percentage of 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, 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 as described under "--Reserve Account" herein.
"CLASS B ACCOUNT PERCENTAGE" means, with respect to any Determination
Date, the percentage equivalent of a fraction, the numerator of which is
the aggregate amount on deposit in the Principal Funding Account with
respect to the Class B Certificates, if any, and the denominator of which
is the aggregate amount on deposit in the Principal Funding Account, in
each case as of the last day of the preceding Monthly Period.
"EXCESS COLLATERAL AVAILABLE FUNDS" means, with respect to any
Monthly Period, an amount equal to the sum of (a) the Excess Collateral
Floating Allocation Percentage of 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
Excess Collateral Amount, the product of (i) the Excess Collateral Account
Percentage and (ii) the sum of the Principal Funding Investment Proceeds,
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 as described under
"--Reserve Account" herein.
"EXCESS COLLATERAL ACCOUNT PERCENTAGE" means, with respect to any
Determination Date, the percentage equivalent of a fraction, the numerator
of which is the aggregate amount on deposit in the Principal Funding
Account with respect to the Excess Collateral, if any, and the denominator
of which is the aggregate amount on deposit in the Principal Funding
Account, in each case as of the last day of the preceding Monthly Period.
ALLOCATION OF COLLECTIONS OF FINANCE CHARGE RECEIVABLES
The figure below demonstrates the manner in which collections of
Finance Charge Receivables are allocated and applied to Series 1999-__. The
figure is a simplified demonstration of certain allocation and payment
provisions and is qualified by the full descriptions of these provisions in
this supplement and the attached prospectus.
[chart showing allocation of collections of Finance Charge
Receivables]
EXCESS FINANCE CHARGE COLLECTIONS
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;
(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 each Transfer Date 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 thereafter will be deposited into the
Principal Account and treated as a portion of Available Investor
Principal Collections for the related Distribution Date as described
under "--Payments of Principal" below;
(c) an amount equal to the amount of interest which has accrued
with respect to the outstanding aggregate principal amount of the
Class B Certificates 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 on the related
Distribution Date or on any prior Distribution Date as described in
clause (b)(i) of "--Application of Collections--Monthly Allocations"
above but not yet paid 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 each
Transfer Date with respect to the Revolving Period (but not exceeding
the Transferor Interest 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 an Amortization Period will be
deposited into the Principal Account and treated as a portion of
Available Investor Principal Collections for the related Distribution
Date as described under "--Payments of Principal" below;
(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 each Transfer Date with respect to the Revolving Period, but not
in an amount exceeding the Transferor Interest 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 an
Amortization Period will be deposited into the Principal Account and
treated as a portion of Available Investor Principal Collections for
the related Distribution Date as described under "--Payments of
Principal" below;
(f) an amount equal to Excess Collateral Minimum Monthly
Interest for the related Transfer Date, plus the amount of any
overdue Excess Collateral Minimum Monthly Interest, will be paid to
the Excess Collateral Holders in accordance with the Transfer and
Administration Agreement;
(g) an amount equal to the unpaid Investor Servicing Fee
will be paid to the Servicer;
(h) an amount equal to the aggregate Excess Collateral Default
Amount, if any, for the related Distribution Date will be distributed
to the holder of the Exchangeable Transferor Certificate on each
Transfer Date with respect to the Revolving Period (but not exceeding
the Transferor Interest 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 an Amortization Period will be deposited
into the Principal Account and treated as a portion of Available
Investor Principal Collections for the related Distribution Date as
described under "--Payments of Principal" below;
(i) an amount equal to the aggregate amount by which the Excess
Collateral Amount has been reduced below the initial Excess
Collateral Amount for reasons other than the payment of principal to
the Excess Collateral Holders (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 each Transfer Date 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 an Amortization Period will be
deposited into the Principal Account and treated as a portion of
Available Investor Principal Collections for the related Distribution
Date as described under "--Payments of Principal" below;
(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 under "--Reserve Account," 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 clauses (a) through (j) above shall be paid to the
Excess Collateral Holders in accordance with a Transfer and
Administration Agreement between a Delaware business trust and the
Bank (the "TRANSFER AND ADMINISTRATION AGREEMENT").
"EXCESS COLLATERAL MINIMUM MONTHLY INTEREST" with respect to any
Transfer Date will be equal to the product of (i) the Excess Collateral
Minimum Rate for the related Interest Period, (ii) the actual number of
days in the related Interest Period divided by 360 and (iii) the Excess
Collateral Amount on the related Record Date or, with respect to the first
Transfer Date, the initial Excess Collateral Amount.
"EXCESS COLLATERAL MINIMUM RATE" means LIBOR plus ___% per annum or
such lesser rate as may be specified in the Transfer and Administration
Agreement.
PAYMENTS OF PRINCIPAL
The Trustee, acting pursuant to the Servicer's instructions, will
distribute Available Investor Principal Collections (see "--Principal
Payments" above) on deposit in the Principal Account in the following
priority:
(a) on each Transfer Date with respect to the Revolving Period,
all Available Investor Principal Collections with respect to the
preceding Monthly Period will be treated as Excess Principal
Collections and applied as described under "--Excess Principal
Collections" herein and "Description of the Certificates--Shared
Collections of Principal Receivables" in the attached prospectus;
(b) with respect to the Accumulation Period or the Rapid
Amortization Period, all Available Investor Principal Collections
with respect to the preceding Monthly Period and the other amounts
specified below will be distributed or deposited in the following
priority:
(i) an amount equal to the Class A Monthly Principal
plus, to the extent of any applicable Principal Shortfall,
Excess Principal Collections from other Series and Unallocated
Principal Collections, to the extent available, will be
deposited on each Transfer Date in the Principal Funding
Account for distribution to the Class A Certificateholders on
the Class A Scheduled Payment Date (with respect to the
Accumulation Period) or distributed to the Class A
Certificateholders on each Distribution Date until the Class A
Invested Amount is paid in full (with respect to the Rapid
Amortization Period);
(ii) on the Transfer Date related to the Class B
Principal Commencement Date and on each Transfer Date
thereafter, an amount equal to the Class B Monthly Principal
plus, to the extent of any applicable Principal Shortfall,
Excess Principal Collections from other Series and Unallocated
Principal Collections, to the extent available, will be
deposited in the Principal Funding Account for distribution to
the Class B Certificateholders on the Class B Scheduled Payment
Date (with respect to the Accumulation Period) or distributed
to the Class B Certificateholders on each Distribution Date
until the Class B Invested Amount is paid in full (with respect
to the Rapid Amortization Period); and
(iii) on the Transfer Date related to the Distribution
Date on which the Class B Invested Amount is deposited in full
in the Principal Funding Account or paid in full to the Class B
Certificateholders and on each Transfer Date thereafter, an
amount equal to the Excess Collateral Monthly Principal plus,
to the extent of any applicable Principal Shortfall, Excess
Principal Collections from other Series and Unallocated
Principal Collections, to the extent available, will be
deposited in the Principal Funding Account for distribution to
the Excess Collateral Holders on the Transfer Date immediately
preceding the Excess Collateral Scheduled Payment Date (with
respect to the Accumulation Period) or distributed to the
Excess Collateral Holders on each Transfer Date until the
Excess Collateral Amount is paid in full (with respect to the
Rapid Amortization Period); and
(c) on each Transfer Date with respect to the Accumulation
Period and the Rapid Amortization Period, the balance of Available
Investor Principal Collections not applied pursuant to (a) and (b)
above, if any, will be treated as Excess Principal Collections and
applied as described under "--Excess Principal Collections" herein
and "Description of the Certificates--Shared Collections of Principal
Receivables" in the attached prospectus.
"CLASS A MONTHLY PRINCIPAL" means, with respect to any Transfer Date
relating to the Accumulation Period or the Rapid Amortization Period, prior
to the payment in full of the Class A Invested Amount, an amount equal to
the least of (i) the Available Investor Principal Collections on deposit in
the Principal Account, (ii) for each Transfer Date with respect to the
Accumulation Period, prior to the payment in full of the Class A Invested
Amount, and on or prior to the Class A Scheduled Payment Date, the
applicable Controlled Deposit Amount and (iii) the Class A Adjusted
Invested Amount on such Transfer Date.
"CLASS B MONTHLY PRINCIPAL" with respect to each Transfer Date
relating to the Accumulation Period or the Rapid Amortization Period
beginning with the Transfer Date first preceding the Class B Principal
Commencement Date, prior to the payment in full of the Class B Invested
Amount, will equal the least of (i) the Available Investor Principal
Collections remaining on deposit in the Principal Account after application
thereof to Class A Monthly Principal on such Transfer Date, if any, (ii)
for each Transfer Date with respect to the Accumulation Period, prior to
the Class B Scheduled Payment Date, the applicable Controlled Deposit
Amount (minus the Class A Monthly Principal with respect to such Transfer
Date) and (iii) the Class B Adjusted Invested Amount on such Transfer Date.
"EXCESS COLLATERAL MONTHLY PRINCIPAL" with respect to each Transfer
Date relating to the Accumulation Period or the Rapid Amortization Period
beginning with the Transfer Date first preceding the Distribution Date on
which the Class B Invested Amount is deposited in full in the Principal
Funding Account or paid in full, prior to the payment in full of the Excess
Collateral Amount, will equal the least of (i) the Available Investor
Principal Collections remaining on deposit in the Principal Account after
application thereof to Class A Monthly Principal and Class B Monthly
Principal on such Transfer Date, if any, (ii) for each Transfer Date with
respect to the Accumulation Period, prior to the Excess Collateral
Scheduled Payment Date, the applicable Controlled Deposit Amount (minus the
Class A Monthly Principal and the Class B Monthly Principal with respect to
such Transfer Date) and (iii) the Excess Collateral Adjusted Amount on such
Transfer Date.
"CONTROLLED ACCUMULATION AMOUNT" means for any Transfer Date with
respect to the Accumulation Period, prior to the payment in full of the
Invested Amount, $________; provided, however, that if the commencement of
the Accumulation Period is delayed as described above under "--Postponement
of Accumulation Period," the Controlled Accumulation Amount may be higher
than the amount stated above for each Transfer Date with respect to the
Accumulation Period and will be determined by the Servicer in accordance
with the Pooling and Servicing Agreement based on the principal payment
rates for the Accounts and on the invested amounts of other Series (other
than certain excluded Series) which are scheduled to be in their revolving
periods and then scheduled to create Excess Principal Collections during
the Accumulation Period.
"ACCUMULATION SHORTFALL" initially means zero and thereafter means,
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 as
described in clause (b) of this section with respect to the Certificates
for the previous Monthly Period.
ALLOCATION OF COLLECTIONS OF PRINCIPAL RECEIVABLES
The figure below demonstrates the manner in which collections of
Principal Receivables are allocated and applied to Series 1999-__. The
figure is a simplified demonstration of certain allocation and payment
provisions and is qualified by the full descriptions of these provisions in
this supplement and the attached prospectus.
[figure showing allocation of collections of Principal Receivables]
REALLOCATED PRINCIPAL COLLECTIONS
On each Distribution Date, the Servicer will apply or cause the
Trustee to apply an amount, not to exceed the Excess Collateral Amount,
equal to the product of (a)(i) during the Revolving Period, the Excess
Collateral Floating Allocation Percentage or (ii) during an Amortization
Period, the Excess Collateral 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 (a) below are called "REALLOCATED EXCESS
COLLATERAL PRINCIPAL COLLECTIONS"):
(a) an amount equal to the sum of (i) 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 (ii) the Class B Required
Amount with respect to the related Monthly Period; and
(b) any such collections not applied in the foregoing manner
(and therefore not constituting Reallocated Excess Collateral
Principal Collections) will, on each Distribution Date with respect
to the Revolving Period, first be applied as Excess Principal
Collections for the benefit of other Series and then be distributed
to the holder of the Exchangeable Transferor Certificate, if the
Transferor Interest expressed as a percentage of the aggregate amount
of Principal Receivables is greater than the Minimum Transferor
Interest, or applied as Unallocated Principal Collections and on
Distribution Dates with respect to an Amortization Period will be
included in the funds available to make principal payments to the
Class A Certificateholders until the Class A Invested Amount is paid
in full and then to the Class B Certificateholders until the Class B
Invested Amount is paid in full and then to the Excess Collateral
Holders until the Excess Collateral Amount is paid in full.
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 (a) below are called "REALLOCATED CLASS B PRINCIPAL
COLLECTIONS" and the sum of Reallocated Excess Collateral Principal
Collections and Reallocated Class B Principal Collections is called
"REALLOCATED PRINCIPAL COLLECTIONS"):
(a) 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 (i) the amount of Excess Finance Charge Collections with
respect to such related Monthly Period and (ii) the amount of
Reallocated Excess Collateral Principal Collections applied with
respect thereto for the related Monthly Period; and
(b) any such collections not applied in the foregoing manner
(and therefore not constituting Reallocated Class B Principal
Collections) will, on each Distribution Date with respect to the
Revolving Period, first be applied as Excess Principal Collections
for the benefit of other Series and then be distributed to the holder
of the Exchangeable Transferor Certificate, if the Transferor
Interest expressed as a percentage of the aggregate amount of
Principal Receivables is greater than the Minimum Transferor
Interest, or applied as Unallocated Principal Collections and on
Distribution Dates with respect to an Amortization Period will be
included in the funds available to make principal payments to the
Class A Certificateholders until the Class A Invested Amount is paid
in full and then to the Class B Certificateholders until the Class B
Invested Amount is paid in full and then to the Excess Collateral
Holders until the Excess Collateral Amount is paid in full.
On each Distribution Date the Excess Collateral Amount will be
reduced by the amount of Reallocated Excess Collateral 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 Excess Collateral Amount to be a negative number, the Excess Collateral
Amount will be reduced to zero and the Class B Invested Amount will be
reduced by the amount by which the Excess Collateral Amount would have been
reduced below zero. In the event that the reallocation of collections of
Principal Receivables would cause the Class B Invested Amount to be a
negative number on any Distribution Date, collections of Principal
Receivables will 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.
DEFAULTED RECEIVABLES; INVESTOR CHARGE-OFFS
On each Determination Date, the Servicer will calculate the Investor
Default Amount for the preceding Monthly Period. The term "DEFAULT AMOUNT"
means, for any Monthly Period, an amount (which shall not be less than
zero) equal to (a) the aggregate amount of Principal Receivables (other
than Ineligible Receivables) in Defaulted Accounts on the day such Account
became a Defaulted Account for each day in such Monthly Period minus (b)
the aggregate amount of Recoveries received in such Monthly Period. The
term "INVESTOR DEFAULT AMOUNT" means, for any Monthly Period, the product
of (i) the Investor Percentage with respect to such Monthly Period and (ii)
the Default Amount for such Monthly Period. A portion of the Default Amount
will be allocated to the Class A Certificateholders (the "CLASS A INVESTOR
DEFAULT AMOUNT") on each Distribution Date in an amount equal to the
product of the Class A Floating Allocation Percentage applicable during the
related Monthly Period and the Default Amount for such Monthly Period. A
portion of the Default Amount will be allocated to the Class B
Certificateholders (the "CLASS B INVESTOR DEFAULT AMOUNT") on each
Distribution Date in an amount equal to the product of the Class B Floating
Allocation Percentage applicable during the related Monthly Period and the
Default Amount for such Monthly Period. A portion of the Default Amount
will be allocated to the Excess Collateral Holders (the "EXCESS COLLATERAL
DEFAULT AMOUNT") on each Distribution Date in an amount equal to the
product of the Excess Collateral Floating Allocation Percentage applicable
during the related Monthly Period and the Default Amount for such Monthly
Period.
On each Distribution Date, if the Class A Investor Default Amount for
such Distribution Date exceeds the sum of the Class A Floating Allocation
Percentage of collections in respect of Finance Charge Receivables
allocable with respect thereto, and the Excess Finance Charge Collections
and the Reallocated Principal Collections available to cover such amount
with respect to the Monthly Period immediately preceding such Distribution
Date, the Excess Collateral 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 Excess Collateral 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 Excess Collateral Amount
to be a negative number, the Excess Collateral Amount will be reduced to
zero, and the Class B Invested Amount will be reduced by the amount by
which the Excess Collateral 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"), which will have the effect of slowing or
reducing the return of principal to the Class A Certificateholders. 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 Transfer Date (but not
by an amount in excess of the aggregate Class A Investor Charge-Offs) by
the amount of Excess Finance Charge Collections allocated and available for
such purpose as described above under "--Excess Finance Charge
Collections."
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 Excess Collateral Principal Collections which
are allocated and available to fund such amount, the Excess Collateral
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 Excess Collateral 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 Excess Collateral Amount
to be a negative number, the Excess Collateral Amount will be reduced to
zero and the Class B Invested Amount will be reduced by the amount by which
the Excess Collateral 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 applied
to cover shortfalls in excess of the Excess Collateral Amount 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. The
Class B Invested Amount will thereafter be reimbursed (but not in the
excess of the unpaid principal balance of the Class B Certificates) on any
Transfer Date by the amount of Excess Finance Charge Collections allocated
and available for that purpose as described above under "--Excess Finance
Charge Collections."
If on any Distribution Date, the Excess Collateral Default Amount for
such Distribution Date exceeds the amount of Excess Finance Charge
Collections which are allocated and available to fund such amount as
described above under "--Excess Finance Charge Collections," the Excess
Collateral Amount (after giving effect to any adjustments with respect
thereto as described in the preceding paragraphs) will be reduced by the
amount of such excess, but not more than the lesser of the Excess
Collateral Default Amount and the Excess Collateral Amount for such
Distribution Date (an "EXCESS COLLATERAL CHARGE-OFF"). The Excess
Collateral Amount will also be reduced by the amount of Reallocated
Principal Collections and the amount of any portion of the Excess
Collateral Amount allocated to the Class A Certificates to avoid a
reduction in the Class A Invested Amount or to the Class B Certificates to
avoid a reduction in the Class B Invested Amount. The Excess Collateral
Amount will thereafter be reimbursed on any Transfer Date by the amount of
Excess Finance Charge Collections allocated and available for that purpose
as described above under "--Excess Finance Charge Collections."
PRINCIPAL FUNDING ACCOUNT
The Servicer will establish and maintain with a Qualified Institution
a principal funding account as a segregated trust account held for the
benefit of the Certificateholders (the "PRINCIPAL FUNDING ACCOUNT"). During
the Accumulation Period, the Trustee at the direction of the Servicer shall
transfer collections in respect of Principal Receivables (other than
Reallocated Principal Collections) and Excess Principal Collections from
other Series, if any, allocated to Series 1999-__ from the Principal
Account to the Principal Funding Account as described under "--Application
of Collections." Such collections will be retained in the Principal Funding
Account and ultimately used to pay the principal of the Certificates on the
Class A Scheduled Payment Date, the Class B Scheduled Payment Date and the
Excess Collateral Scheduled Payment Date or the first Distribution Date
with respect to the Rapid Amortization Period, whichever occurs earlier.
Funds on deposit in the Principal Funding Account will be invested to
the following Transfer Date by the Trustee at the direction of the Servicer
in Permitted Investments. Investment earnings (net of investment losses and
expenses) on funds on deposit in the Principal Funding Account (the
"PRINCIPAL FUNDING INVESTMENT PROCEEDS") during the Accumulation Period
will be included in Class A Available Funds, Class B Available Funds and
Excess Collateral Available Funds. If, for any Interest Period, the
Principal Funding Investment Proceeds are less than an amount equal to, for
each Interest Period, the Covered Amount, the amount of such deficiency
will be paid from the Reserve Account to the extent of the Available
Reserve Account Amount and, if necessary, from Excess Finance Charge
Collections and Reallocated Principal Collections.
RESERVE ACCOUNT
Pursuant to the Offered Series Supplement, the Servicer will
establish and maintain with a Qualified Institution the reserve account as
a segregated trust account held for the benefit of the Certificateholders
(the "RESERVE ACCOUNT"). The Reserve Account is established to assist with
the subsequent distribution of interest on the Certificates during the
Accumulation Period. On each Transfer Date from and after the Reserve
Account Funding Date, but prior to the termination of the Reserve Account,
the Trustee, acting pursuant to the Servicer's instructions, will apply
Excess Finance Charge Collections allocated to the Certificates (to the
extent described above under "--Excess Finance Charge Collections") to
increase the amount on deposit in the Reserve Account (to the extent such
amount is less than the Required Reserve Account Amount). The "RESERVE
ACCOUNT FUNDING DATE" will be the Transfer Date which commences no later
than three months prior to the commencement of the Accumulation Period, or
such earlier date as the Servicer may determine. The "REQUIRED RESERVE
ACCOUNT AMOUNT" for any Transfer Date on or after the Reserve Account
Funding Date will be equal to (a) 0.5% of the Invested Amount or (b) any
other amount designated by First USA; provided, that if such designation is
of a lesser amount, First USA shall have provided the Servicer, the Excess
Collateral Holders and the Trustee with evidence that the Rating Agency
Condition with respect to such designation has been satisfied and First USA
shall have delivered 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 First USA, 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 the Offered
Series. If the Accumulation Period is shortened to one month and First USA
believes the condition described in the preceding sentence will be
satisfied, First USA intends to provide such an officer's certificate
designating that the Required Reserve Account Amount will be zero.
Provided that the Reserve Account has not terminated as described
below, all amounts on deposit in the Reserve Account on any Transfer Date
(after giving effect to any deposits to, or withdrawals from, the Reserve
Account to be made on such Transfer Date) will be invested to the following
Transfer Date by the Trustee at the direction of the Servicer in Permitted
Investments. The interest and other investment income (net of investment
expenses and losses) earned on such investments will be retained in the
Reserve Account (to the extent the amount on deposit is less than the
Required Reserve Account Amount) or deposited in the Finance Charge Account
for application as described above under "--Application of
Collections--Monthly Allocations."
On or before each Transfer Date with respect to the Accumulation
Period and on the first Transfer Date with respect to the Rapid
Amortization Period, a withdrawal will be made from the Reserve Account and
the amount of such withdrawal will be included in Class A Available Funds,
Class B Available Funds and Excess Collateral Available Funds to be applied
to the payment of interest on the Certificates for such Transfer Date in an
amount equal to the lesser of (a) the Available Reserve Account Amount with
respect to such Transfer Date and (b) the excess, if any, of (x) the sum of
(a) with respect to the Class A Certificates, the product of (i) a fraction
the numerator of which is the actual number of days in such Interest Period
and the denominator of which is 360, (ii) the Class A Certificate Rate in
effect with respect to such Interest Period and (iii) the aggregate amount
on deposit in the Principal Funding Account with respect to Class A Monthly
Principal as of the last day of the Monthly Period preceding the Monthly
Period in which such Interest Period ends, (b) with respect to the Class B
Certificates, the product of (i) a fraction the numerator of which is the
actual number of days in such Interest Period and the denominator of which
is 360, (ii) the Class B Certificate Rate in effect with respect to such
Interest Period and (iii) the aggregate amount on deposit in the Principal
Funding Account with respect to Class B Monthly Principal as of the last
day of the Monthly Period preceding the Monthly Period in which such
Interest Period ends and (c) with respect to the Excess Collateral, the
product of (i) a fraction, the numerator of which is the actual number of
days in such Interest Period and the denominator of which is 360, (ii) the
Excess Collateral Minimum Rate in effect with respect to such Interest
Period and (iii) the aggregate amount on deposit in the Principal Funding
Account with respect to Excess Collateral Monthly Principal as of the last
day of the Monthly Period preceding the Monthly Period in which such
Interest Period ends (the "COVERED AMOUNT") over (y) the Principal Funding
Investment Proceeds with respect to such Transfer Date; provided, that the
amount of such withdrawal shall be reduced to the extent that funds
otherwise would be available to be deposited in the Reserve Account on such
Transfer Date. On each Transfer Date, the amount available to be withdrawn
from the Reserve Account (the "AVAILABLE RESERVE ACCOUNT AMOUNT") will be
equal to the lesser of the amount on deposit in the Reserve Account (before
giving effect to any deposit to be made to the Reserve Account on such
Transfer Date) and the Required Reserve Account Amount for such Transfer
Date.
The Reserve Account will be terminated following the earliest to
occur of (a) the termination of the Trust pursuant to the Pooling and
Servicing Agreement, (b) the date on which the Invested Amount is paid in
full, (c) if the Accumulation Period has not commenced, the occurrence of a
Pay Out Event with respect to the Certificates and (d) 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.
Upon the termination of the Reserve Account, all amounts on deposit therein
(after giving effect to any withdrawal from the Reserve Account on such
date as described above) will be deposited in the Finance Charge Account
and applied in accordance with the priority of payments described above
under "--Application of Collections--Monthly Allocations." Any amounts
withdrawn from the Reserve Account and distributed to the Excess Collateral
Holders as described above will not be available for distribution to the
Class A Certificateholders or the Class B Certificateholders.
COMPANION SERIES
The Series 1999-__ Certificates may be paired with one or more other
Series (each a "COMPANION SERIES"). Each Companion Series either will be
prefunded with an initial deposit to a prefunding account in an amount up
to the initial principal balance of such Companion Series, funded primarily
from the proceeds for the sale of such Companion Series, or will have a
variable principal amount. Any such prefunding account will be held for the
benefit of such Companion Series and not for the benefit of
Certificateholders. As principal is paid with respect to the Series 1999-__
Certificates, either (i) in the case of a prefunded Companion Series, an
equal amount of funds on deposit in any prefunding account for such
prefunded Companion Series will be released (which funds will be
distributed to First USA) or (ii) in the case of a Companion Series having
a variable principal amount, an interest in such variable Companion Series
in an equal or lesser amount may be sold by the Trust (and the proceeds
thereof will be distributed to First USA) and, in either case, the invested
amount in the Trust of such Companion Series will increase by a
corresponding amount. Upon payment in full of the Series 1999-__
Certificates, assuming that there have been no unreimbursed charge-offs
with respect to any related Companion Series, the aggregate invested amount
of such related Companion Series will have been increased by an amount up
to an aggregate amount equal to the Series 1999-__ Investor Interest paid
to the Series 1999-__ Certificateholders since the issuance of such
Companion Series. The issuance of a Companion Series will be subject to the
conditions described under "Description of the Certificates--Exchanges" in
the attached prospectus. There can be no assurance, however, that the terms
of any Companion Series might not have an impact on the timing or amount of
payments received by a Series 1999-__ Certificateholder. In particular, the
denominator of the Fixed/Floating Allocation Percentage may be increased
upon the occurrence of a Pay Out Event with respect to a Companion Series
resulting in a possible reduction of the percentage of collections of
Principal Receivables allocated to Series 1999-__ if such event allowed the
payment of principal at such time to the Companion Series and required
reliance by Series 1999-__ on clause (y) of the denominator of the
Fixed/Floating Allocation Percentage for Series 1999-__. See "Maturity
Considerations."
PAY OUT EVENTS
As described above, the Revolving Period will continue until the
commencement of the Accumulation Period, unless a Pay Out Event occurs
prior to such date. A "PAY OUT EVENT" refers to any of the following
events:
(a) failure on the part of the Transferor (i) to make any
payment or deposit on the date required under the Pooling and
Servicing Agreement or the offered Series Supplement (or within the
applicable grace period which will not exceed five days) or (ii) to
observe or perform in any material respect any other covenants or
agreements of the Transferor set forth in the Pooling and Servicing
Agreement or the Offered Series Supplement, which failure has a
material adverse effect on the Certificateholders and which continues
unremedied for a period of 60 days after written notice and continues
to materially and adversely affect the interests of the
Certificateholders (which determination shall be made without regard
to whether funds are available pursuant to any Enhancement) for such
period;
(b) any representation or warranty made by the Transferor in
the Pooling and Servicing Agreement or any information required to be
given by the Transferor to the Trustee to identify the Accounts
proves to have been incorrect in any material respect when made and
which continues to be incorrect in any material respect for a period
of 60 days after written notice and as a result of which the
interests of the Certificateholders are materially and adversely
affected and continue to be materially and adversely affected for
such period; provided, however, that a Pay Out Event pursuant to this
clause (b) shall not be deemed to occur thereunder if the Transferor
has accepted reassignment of the related Receivable or all such
Receivables, if applicable, during such period (or such longer period
as the Trustee may specify) in accordance with the provisions
thereof;
(c) certain events of insolvency or receivership
relating to the Transferor;
(d) the average Portfolio Yield for any three consecutive
Monthly Periods is less than the average Base Rate for such three
consecutive Monthly Periods;
(e) the Trust becomes subject to regulation as an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended;
(f) a failure by the Transferor to convey Receivables arising
under Additional Accounts to the Trust when required by the Pooling
and Servicing Agreement; or
(g) any Servicer Default occurs which would have a material
adverse effect on the Certificateholders.
In the case of any event described in clause (a), (b) or (g) above, a
Pay Out Event will be deemed to have occurred with respect to the
Certificates only if, after any applicable grace period, either the Trustee
or Certificateholders evidencing undivided interests aggregating more than
50% of the Investor Interest, by written notice to the Transferor and the
Servicer (and to the Trustee if given by the Certificateholders) declare
that a Pay Out Event has occurred with respect to the Certificates as of
the date of such notice. In the case of any event described in clause (c)
or (e), a Pay Out Event with respect to all Series then outstanding, and in
the case of any event described in clause (d) or (f), a Pay Out Event with
respect to only the Certificates, will be deemed to have occurred without
any notice or other action on the part of the Trustee or the
Certificateholders or all certificateholders, as appropriate, immediately
upon the occurrence of such event. On the date on which a Pay Out Event is
deemed to have occurred, the Rapid Amortization Period will commence. In
such event, distributions of principal to the Certificateholders will begin
on the first Distribution Date following the month in which such Pay Out
Event occurred. If, because of the occurrence of a Pay Out Event, the Rapid
Amortization Period begins earlier than the Monthly Period preceding the
month in which the Scheduled Payment Date occurs, Certificateholders will
begin receiving distributions of principal earlier than they otherwise
would have, which may shorten the average life of the Certificates.
If pursuant to certain provisions of Federal law, the Transferor
voluntarily enters liquidation or a receiver is appointed for the
Transferor, on the day of such event the Transferor will immediately cease
to transfer Principal Receivables to the Trust and promptly give notice to
the Trustee of such event. Within 15 days, the Trustee will publish a
notice of the liquidation or the appointment stating that the Trustee
intends to sell, dispose of, or otherwise liquidate the Receivables in a
commercially reasonable manner. With respect to each Series outstanding at
such time, unless otherwise instructed within a specified period by
certificateholders representing undivided interests aggregating more than
50% of the invested amount of such Series (or, if such Series has more than
one Class, of each Class of such Series, and with respect to Series
required to vote as a group, all Classes of all such Series), the Trustee
will sell, dispose of, or otherwise liquidate the portion of the
Receivables allocated to the Series with respect to which all outstanding
Classes did not vote to continue the Trust in accordance with the Pooling
and Servicing Agreement in a commercially reasonable manner and on
commercially reasonable terms. The proceeds from the sale, disposition or
liquidation of the Receivables will be treated as collections of the
Receivables and applied with respect to such Series as provided above under
"--Application of Collections." If the only Pay Out Event to occur is
either the insolvency of the Transferor or the appointment of a conservator
or receiver for the Transferor, the conservator or receiver may have the
power to prevent the early sale, liquidation or disposition of the
Receivables and the commencement of the Rapid Amortization Period. In
addition, a conservator or receiver may have the power to cause the early
sale of the Receivables and the early retirement of the Certificates. See
"Description of the Certificates--Pay Out Events" in the attached
prospectus for an additional discussion of the consequences of an
insolvency, conservatorship or receivership of the Transferor.
OPTIONAL REPURCHASE
The Invested Amount will be subject to optional repurchase by the
Transferor on any Distribution Date on or after the Distribution Date on
which the Invested Amount is reduced to an amount less than or equal to
$_________ (5% of the initial Invested Amount), if certain conditions set
forth in the Pooling and Servicing Agreement are met. The repurchase price
will be equal to the Invested Amount plus accrued and unpaid interest on
the Certificates through the last day of the Interest Period related to the
Distribution Date on which the repurchase occurs. See "Description of the
Certificates--Final Payment of Principal; Termination" in the attached
prospectus.
SERVICING COMPENSATION AND PAYMENT OF EXPENSES
The Servicer's compensation for its servicing activities and
reimbursement for its expenses will take the form of the payment to it of a
monthly servicing fee in an amount equal to the sum of, with respect to all
Series, one-twelfth of the product of the applicable servicing fee
percentages with respect to each Series and the allocable portion of the
Transferor Interest and the average amount of the Principal Receivables
during each month. The monthly servicing fee will be allocated between the
Transferor Interest, the Investor Interest and the Excess Collateral
Holders' Interest and the investor interests for all other Series. The
portion of the servicing fee allocable to the Investor Interest and the
Excess Collateral Holders' Interest on each Distribution Date (the
"INVESTOR SERVICING FEE") will be equal to one-twelfth of the product of
the Servicing Fee Percentage and the sum of the Class A Adjusted Invested
Amount, the Class B Adjusted Invested Amount and the Excess Collateral
Adjusted Amount on the last day of the related Monthly Period or, in the
case of the first Distribution Date, the product of (i) the actual number
of days from and including the Closing Date to and including __________
divided by 365, (ii) the Servicing Fee Percentage and (iii) the initial
Invested Amount. "CLASS A MONTHLY SERVICING FEE," "CLASS B MONTHLY
SERVICING FEE," and "EXCESS COLLATERAL MONTHLY SERVICING FEE," mean, with
respect to any Distribution Date, one-twelfth of the product of the
Servicing Fee Percentage and the Class A Adjusted Invested Amount, Class B
Adjusted Invested Amount or Excess Collateral Adjusted Amount, as
applicable, on the last day of the preceding Monthly Period. The
"SERVICING FEE PERCENTAGE" will mean 1.5% for so long as the Bank is the
Servicer or 2.0% if the Bank is no longer the Servicer. The Investor
Servicing Fee will be funded from Excess Finance Charge Collections and,
with respect to a Servicer other than the Bank, from the Investor
Percentage of collections of Finance Charge Receivables and Reallocated
Principal Collections. The remainder of the servicing fee will be allocable
to the Transferor Interest and the investor interests of other Series.
Neither the Trust nor the Certificateholders will have any obligation to
pay such portion of the servicing fee.
The Servicer will pay from its servicing compensation certain
expenses incurred in connection with servicing the Receivables including,
without limitation, payment of the fees and disbursements of the Trustee
and independent certified public accountants and other fees which are not
expressly stated in the Pooling and Servicing Agreement to be payable by
the Trust or the Certificateholders other than Federal, state and local
income and franchise taxes, if any, of the Trust.
REPORTS TO CERTIFICATEHOLDERS
The Trustee will publish or will cause to be published following each
Distribution Date (including the Stated Series Termination Date) in a daily
newspaper in Luxembourg (expected to be the Luxemburger Wort) a notice to
the effect that the information described in "Description of the
Certificates--Reports to Certificateholders" in the attached prospectus
will be available for review at the main office of the listing agent of the
Trust in Luxembourg.
Notices to Certificateholders will be given by publication in a daily
newspaper in Luxembourg, which is expected to be the Luxemburger Wort. In
the event that Definitive Certificates are issued, notices to
Certificateholders will also be given by mail to the addresses of such
holders as they appear in the Certificate register.
LISTING AND GENERAL INFORMATION
Application has been made to list the Offered Certificates on the
Luxembourg Stock Exchange. In connection with the listing application, the
Amended and Restated Articles of Association and By-laws of the Bank, as
well as legal notice relating to the issuance of the Offered Certificates
will be deposited prior to listing with the Chief Registrar of the District
Court in Luxembourg, where copies thereof may be obtained upon request.
Once the Offered Certificates have been so listed, trading of the Offered
Certificates may be effected on the Luxembourg Stock Exchange. The Class A
Certificates and the Class B Certificates have been accepted for clearance
through the facilities of DTC, Cedelbank and Euroclear (ISIN number for the
Class A Certificates _____________, and for the Class B Certificates
_____________, and Common Code number for the Class A Certificates
_____________, and for the Class B Certificates _____________.
The Bank has taken all reasonable care to ensure that the information
contained in this prospectus supplement and the prospectus in relation to
the Bank and the Offered Certificates is true and correct in all material
respects and that in relation to the Bank and the Offered Certificates
there are no facts the omission of which would make misleading any
statement herein or in the attached prospectus, whether fact or opinion.
The Bank accepts responsibility accordingly.
The transactions contemplated in this preliminary prospectus
supplement were authorized by resolutions adopted by the Bank on [September
__, 1999].
Copies of the Pooling and Servicing Agreement, the Offered Series
Supplement, the annual report of independent public accountants described
in "Description of the Certificates--Evidence as to Compliance" in the
attached prospectus, the documents listed under "Where You Can Find More
Information" and the reports to Certificateholders referred to under
"Reports to Certificateholders" and "Description of the
Certificates--Reports to Certificateholders" in the attached prospectus
will be available at the office of the listing agent of the Trust in
Luxembourg, whose address is 14 Boulevard Royal, 2449 Luxembourg,
Grand-Duche de Luxembourg. Financial information regarding the Bank is
included in the consolidated financial statements of BANK ONE in BANK ONE's
Annual Report for the fiscal year ended December 31, ____, which documents
are also available without charge at the office of the listing agent in
Luxembourg.
The Certificates, the Pooling and Servicing Agreement and the Offered
Series Supplement are governed by the laws of the State of Delaware.
ERISA CONSIDERATIONS
Section 406 of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), and Section 4975 of the Code prohibit certain
pension, profit sharing or other employee benefit plans, individual
retirement accounts or annuities and employee annuity plans and Keogh plans
(collectively, "BENEFIT PLANS") from engaging in certain transactions
involving "plan assets" with persons that are "parties in interest" under
ERISA or "disqualified persons" under the Code (collectively, "PARTIES IN
INTEREST") with respect to the Benefit Plan. A violation of these
"prohibited transaction" rules may generate excise tax and other
liabilities under ERISA and Section 4975 of the Code for such persons,
unless a statutory, regulatory or administrative exemption is available.
Benefit Plans that are governmental plans (as defined in section 3(32) of
ERISA) and certain church plans (as defined in section 3(33) of ERISA) are
not subject to ERISA requirements.
CLASS A CERTIFICATES
A violation of the prohibited transaction rules could occur if the
Class A Certificates were to be purchased with assets of any Benefit Plan
and the Transferor, the Trustee, any underwriters of such Series or any of
their affiliates were a Party in Interest with respect to such Benefit
Plan, unless a statutory, regulatory or administrative exemption is
available or an exemption applies under a regulation (the "PLAN ASSET
REGULATION") issued by the Department of Labor ("DOL"). The Transferor, the
Trustee, any underwriters of a Series and their affiliates are likely to be
Parties in Interest with respect to many Benefit Plans. Before purchasing
the Class A Certificates, a Benefit Plan fiduciary or other Benefit Plan
investor should consider whether a prohibited transaction might arise by
reason of the relationship between the Benefit Plan and the Transferor, the
Trustee, any underwriters of such Series or any of their affiliates and
consult their counsel regarding the purchase in light of the considerations
described below and in the attached prospectus.
Under certain circumstances, the Plan Asset Regulation treats the
assets of an entity in which a Benefit Plan holds an equity interest as
"plan assets" of such Benefit Plan. Because the Class A Certificates will
represent beneficial interests in the Trust, and despite the agreement of
the Transferor and the Certificate Owners to treat the Class A Certificates
as debt instruments, the Class A Certificates are likely to be considered
equity interests in the Trust for purposes of the Plan Asset Regulation,
with the result that the assets of the Trust are likely to be treated as
"plan assets" of the investing Benefit Plans for purposes of ERISA and
Section 4975 of the Internal Revenue Code of 1986, as amended (the "CODE"),
unless the exception for "publicly-offered securities" is applicable as
described in the attached prospectus. The Underwriters anticipate that the
Class A Certificates will meet the criteria for treatment as
"publicly-offered securities" as described in the attached prospectus. No
restrictions will be imposed on the transfer of the Class A Certificates.
It is expected that the Class A Certificates will be held by at least 100
or more investors who are independent of the issuer and of one another
("INDEPENDENT INVESTORS") at the conclusion of the initial public offering
although no assurance can be given, and no monitoring or other measures
will be taken to ensure, that such condition is met. The Class A
Certificates will be sold as part of an offering pursuant to an effective
registration statement under the Securities Act and then will be timely
registered under the Exchange Act.
If the foregoing exception under the Plan Asset Regulation were not
satisfied, transactions involving the Trust and Parties in Interest with
respect to a Benefit Plan that purchases or holds Class A Certificates or
Class B Certificates might be prohibited under Section 406 of ERISA and/or
Section 4975 of the Code and result in excise tax and other liabilities
under ERISA and Section 4975 of the Code unless an exemption were
available. The five DOL class exemptions described in the attached
prospectus may not provide relief for all transactions involving the assets
of the Trust even if they would otherwise apply to the purchase of a Class
A Certificate by a Benefit Plan.
CLASS B CERTIFICATES
The Underwriters currently do not expect that the Class B
Certificates will be held by at least 100 Independent Investors and,
therefore, do not expect that such Class B Certificates will qualify as
"publicly-offered securities" under the regulation referred to in the
preceding paragraph. Accordingly, the Class B Certificates may not be
acquired or held by (a) any employee benefit plan that is subject to ERISA,
(b) any plan or other arrangement (including an individual retirement
account or Keogh plan) that is subject to Section 4975 of the Code, or (c)
any entity whose underlying assets include "plan assets" under the
regulation by reason of any such plan's investment in the entity. By its
acceptance of a Class B Certificate, each Class B Certificateholder will be
deemed to have represented and warranted that it is not and will not be
subject to the foregoing limitation.
CONSULTATION WITH COUNSEL
In light of the foregoing, fiduciaries or other persons contemplating
purchasing Class A Certificates or Class B Certificates on behalf or with
"plan assets" of any Benefit Plan should consult their own counsel
regarding whether the Trust assets represented by the Class A Certificates
or Class B Certificates would be considered "plan assets," the consequences
that would apply if the Trust's assets were considered "plan assets," and
the possibility of exemptive relief from the prohibited transaction rules.
Finally, Benefit Plan fiduciaries and other Benefit Plan investors
should consider the fiduciary standards under ERISA or other applicable law
in the context of the Benefit Plan's particular circumstances before
authorizing an investment of a portion of the Benefit Plan's assets in the
Certificates. Accordingly, among other factors, Benefit Plan fiduciaries
and other Benefit Plan investors should consider whether the investment (i)
satisfies the diversification requirement of ERISA or other applicable law,
(ii) is in accordance with the Benefit Plan's governing instruments, and
(iii) is prudent in light of the "Risk Factors" and other factors discussed
in this supplement.
UNDERWRITING
Subject to the terms and conditions set forth in the Underwriting
Agreement dated __________, ____ (the "UNDERWRITING AGREEMENT") between
First USA and the underwriters named below (the "UNDERWRITERS"), First USA
has agreed to sell to the Underwriters and the Underwriters have agreed to
purchase, the principal amount of the Offered Certificates offered hereby
if any of the Offered Certificates are not purchased.
PRINCIPAL AMOUNT OF PRINCIPAL AMOUNT OF
UNDERWRITERS CLASS A CERTIFICATES CLASS B CERTIFICATES
- ------------ -------------------- --------------------
$ $
--------------- --------------
Total $ $
============== ==============
The price to public, Underwriters' discounts and commissions, the
concessions that the Underwriters may allow to certain dealers, and the
discounts that such dealers may reallow to certain other dealers, each
expressed as a percentage of the principal amount of the Class A and Class
B Certificates, shall be as follows:
UNDERWRITING
PRICE TO DISCOUNT AND
PUBLIC COMMISSION
Class A Certificates % %
Class B Certificates % %
After the offering is completed, First USA will receive the proceeds,
after deduction of the underwriting and other expenses, listed below:
<TABLE>
<CAPTION>
PROCEEDS TO TRANSFEROR UNDERWRITING
PROCEEDS TO (AS % OF THE PRINCIPAL DISCOUNTS AND
TRANSFEROR AMOUNT OF THE CERTIFICATES) CONCESSIONS
----------- --------------------------- -------------
<S> <C> <C> <C>
Class A Certificates $ % $
Class B Certificates $ % $
</TABLE>
After the initial public offering, the public offering price and
other selling terms may be changed by the Underwriters. Additional offering
expenses are estimated to be $--------.
The Underwriters may engage in over-allotment transactions,
stabilizing transactions, syndicate covering transactions and penalty bids
with respect to the Offered Certificates in accordance with Regulation M
under the Exchange Act. Over-allotment transactions involve syndicate sales
in excess of the offering size, which create a syndicate short position.
Stabilizing transactions permit bids to purchase the Offered Certificates
so long as the stabilizing bids do not exceed a specified maximum.
Syndicate covering transactions involve purchases of the Offered
Certificates in the open market after the distribution has been completed
in order to cover syndicate short positions. Penalty bids permit the
Underwriters to reclaim a selling concession from a syndicate member when
the Offered Certificates originally sold by such syndicate member are
purchased in a syndicate covering transaction to cover syndicate short
positions. Such over-allotment transactions, stabilizing transactions,
syndicate covering transactions and penalty bids may cause the price of the
Offered Certificates to be higher than it would otherwise be in the absence
of such transactions. Neither the Transferor nor the Underwriters represent
that the Underwriters will engage in any such transactions or that such
transactions, once commenced, will not be discontinued without notice at
any time.
The Transferor has been advised by each Underwriter that it proposes
initially to offer the Class A Certificates to the public at the price set
forth on the cover page hereof and to certain dealers at such price less
concessions not in excess of 0.____% of the principal amount of the Class A
Certificates. Each Underwriter may allow, and such dealers may reallow,
concessions not in excess of 0.081% of the principal amount of the Class A
Certificates to certain brokers and dealers. The Transferor has been
advised by each Underwriter that it proposes initially to offer the Class B
Certificates to the public at the price set forth on the cover page hereof
and to certain dealers at such price less concessions not in excess of
0.____% of the principal amount of the Class B Certificates. Each
Underwriter may allow, and such dealers may reallow, concessions not in
excess of 0.____% of the principal amount of the Class B Certificates to
certain brokers and dealers. After the initial public offering, the public
offering price and other selling terms may be changed bu the Underwriters.
Each Underwriter has represented and agreed that (a) it has only
issued or passed on and will only issue or pass on in the United Kingdom
any document received by it in connection with the issue of the Offered
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 (as amended) or who is a person to whom the document may otherwise
lawfully be issued or passed on, (b) it has complied and will 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 Offered Certificates in, from or otherwise involving the
United Kingdom and (c) if the Underwriter is an authorized person under the
Financial Services Act 1986, it has only promoted and will only promote (as
that term is defined in Regulation 1.02 of the Financial Services
(Promotion of Unregulated Schemes) Regulations 1991) to any person in the
United Kingdom the scheme described herein 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.
The Transferor will indemnify each Underwriter against certain
liabilities, including liabilities under the Securities Act or contribute
to payments the Underwriter may be required to make in respect thereof.
Each Underwriter has agreed to reimburse the Transferor for certain
expenses incurred in connection with the issuance and distribution of the
Offered Certificates.
In the ordinary course of business, each Underwriter and its
affiliates have engaged and may engage in investment banking and/or
commercial banking transactions with the Transferor, its affiliates and the
Trust. In addition, each Underwriter may from time to time take positions
in the Certificates and other certificates issued by the Trust.
Banc One Capital Markets, Inc. ("BOCM") is an affiliate of the
Transferor. Any obligations of BOCM are the sole obligations of BOCM and do
not create any obligations on the part of any of its affiliates.
BOCM may from time to time purchase or acquire a position in the
Certificates and may, at its option, hold or resell such Certificates. BOCM
expects to offer and sell previously issued Certificates in the course of
its business respective as a broker-dealer. BOCM may act as a principal or
agent in such transactions. This supplement and the attached prospectus may
be used by BOCM and its successors in connection with such transactions.
Such sales, if any, will be made at varying prices related to prevailing
market prices at the time of sale.
EXCHANGE LISTING
We have applied to list the Certificates on the Luxembourg Stock
Exchange. We cannot guaranty that the application for the listing will be
accepted. You should consult with Banque de Luxembourg, the Luxembourg
listing agent for the Certificates, 14 Boulevard Royal, 2449 Luxembourg,
Grand-Duche de Luxembourg, phone number (352) 499243063, to determine
whether or not the Certificates are listed on the Luxembourg Stock
Exchange.
ANNEX I
OTHER SERIES
The Trust has previously issued thirty-eight other Series that the
Transferor anticipates will remain outstanding on the Closing Date. The
table below sets forth the principal characteristics of such Series: Series
1994-4, Series 1994-6, Series 1994-7, Series 1994-8, Series 1995-2, Series
1995-5, Series 1995-6, Series 1996-1, Series 1996-2, Series 1996-3, Series
1996-4, Series 1996-6, Series 1996-7, Series 1996-8, Series 1997-1, Series
1997-2, Series 1997-3, Series 1997-4, Series 1997-5, Series 1997-6, Series
1997-7, Series 1997-8, Series 1997-9, Series 1997-10, Series 1998-1, Series
1998-2, Series 1998-3, Series 1998-4, Series 1998-5, Series 1998-6, Series
1998-7, Series 1998-8, Series 1998-9, Series 1999-1, Series 1999-2, Series
1999-3, Series 1999-4, Series 1999-A and Series 1999-B. For more specific
information with respect to any Series, any prospective investor should
contact the Servicer at (214) 849-3700. The Servicer will provide, without
charge, to any prospective purchaser of the Certificates, a copy of the
disclosure documents for any previous publicly issued Series.
<TABLE>
<CAPTION>
SERIES 1994-4
<S> <C>
1. Class A Certificates
Initial Invested Amount $726,450,000
Certificate Rate One Month LIBOR + 0.37%
Controlled Amortization Amount $60,537,500
Commencement of Controlled Amortization November 1, 2000
Period
Annual Servicing Fee Percentage 1.5%, subject to increase to 2.0%
Initial Collateral Invested Amount $87,000,000
Other Enhancement Subordination of Class B Certificates
Expected Final Payment Date November 15, 2001
Scheduled Series Termination Date August 15, 2003
Series Issuance Date June 9, 1994
2. Class B Certificates
Initial Invested Amount $56,550,000
Certificate Rate One Month LIBOR + 0.58%
Controlled Amortization Amount $56,550,000
Annual Servicing Fee Percentage Same as above for Class A Certificates
Initial Collateral Invested Amount Same as above for Class A Certificates
Expected Final Payment Date Same as above for Class A Certificates
Scheduled Series Termination Date Same as above for Class A Certificates
Series Issuance Date Same as above for Class A Certificates
SERIES 1994-6
1. Class A Certificates
Initial Invested Amount $750,000,000
Certificate Rate One Month LIBOR + 0.35%
Controlled Amortization Amount $62,500,000
Commencement of Controlled Amortization January 1, 2001
Period
Annual Servicing Fee Percentage 1.5%, subject to increase to 2.0%
Initial Collateral Invested Amount $89,820,000
Other Enhancement Subordination of Class B Certificates
Expected Final Payment Date January 15, 2002
Scheduled Series Termination Date October 15, 2003
Series Issuance Date August 24, 1994
2. Class B Certificates
Initial Invested Amount $58,380,000
Certificate Rate One Month LIBOR + 0.58%
Controlled Amortization Amount $58,380,000
Annual Servicing Fee Percentage Same as above for Class A Certificates
Initial Collateral Invested Amount Same as above for Class A Certificates
Expected Final Payment Date Same as above for Class A Certificates
Scheduled Series Termination Date Same as above for Class A Certificates
Series Issuance Date Same as above for Class A Certificates
SERIES 1994-7
1. Class A Certificates
Initial Invested Amount $750,000,000
Certificate Rate One Month LIBOR + 0.18%
Controlled Accumulation Amount
(subject to adjustment) $750,000,000
Commencement of Controlled Accumulation
Period (subject to adjustment) September 30, 1999
Annual Servicing Fee Percentage 1.5%, subject to increase to 2.0%
Initial Collateral Invested Amount $94,880,000
Other Enhancement Subordination of Class B Certificates
Expected Final Payment Date November 15, 1999
Scheduled Series Termination Date June 15, 2002
Series Issuance Date November 8, 1994
2. Class B Certificates
Initial Invested Amount $58,735,000
Certificate Rate One Month LIBOR + 0.40%
Annual Servicing Fee Percentage Same as above for Class A Certificates
Initial Collateral Invested Amount Same as above for Class A Certificates
Expected Final Payment Date Same as above for Class A Certificates
Scheduled Series Termination Date Same as above for Class A Certificates
Series Issuance Date Same as above for Class A Certificates
SERIES 1994-8
1. Class A Certificates
Initial Invested Amount $500,000,000
Certificate Rate Three Month LIBOR + 0.24%
Controlled Accumulation Amount
(subject to adjustment) $41,666,667
Commencement of Controlled Accumulation
Period(subject to adjustment) October 31, 2000
Annual Servicing Fee Percentage 1.5%, subject to increase to 2.0%
Initial Collateral Invested Amount $63,253,000
Other Enhancement Subordination of Class B Certificates
Expected Final Payment Date November 15, 2001
Scheduled Series Termination Date June 15, 2004
Series Issuance Date November 8, 1994
2. Class B Certificates
Initial Invested Amount $39,157,000
Certificate Rate Three Month LIBOR + .45%
Annual Servicing Fee Percentage Same as above for Class A Certificates
Initial Collateral Invested Amount Same as above for Class A Certificates
Expected Final Payment Date Same as above for Class A Certificates
Scheduled Series Termination Date Same as above for Class A Certificates
Series Issuance Date Same as above for Class A Certificates
SERIES 1995-2
1. Class A Certificates
Initial Invested Amount $660,000,000
Certificate Rate One Month LIBOR + 0.24%
Controlled Accumulation Amount
(subject to adjustment) $55,000,000
Commencement of Controlled Accumulation
Period (subject to adjustment) February 28, 2001
Annual Servicing Fee Percentage 1.5%, subject to increase to 2.0%
Initial Collateral Invested Amount $83,500,000
Other Enhancement Subordination of Class B Certificates
Expected Final Payment Date March 15, 2002
Scheduled Series Termination Date October 15, 2004
Series Issuance Date March 1, 1995
2. Class B Certificates
Initial Invested Amount $51,700,000
Certificate Rate One Month LIBOR + 0.425%
Annual Servicing Fee Percentage Same as above for Class A Certificates
Initial Collateral Invested Amount Same as above for Class A Certificates
Expected Final Payment Date Same as above for Class A Certificates
Scheduled Series Termination Date Same as above for Class A Certificates
Series Issuance Date Same as above for Class A Certificates
SERIES 1995-5
1. Class A Certificates
Initial Invested Amount $500,000,000
Certificate Rate One Month LIBOR + 0.17%
Controlled Accumulation Amount
(subject to adjustment) $41,666,667
Commencement of Controlled Accumulation
Period (subject to adjustment) August 31, 1999
Annual Servicing Fee Percentage 1.5%, subject to increase to 2.0%
Initial Collateral Invested Amount $57,230,000
Other Enhancement Subordination of Class B Certificates
Expected Final Payment Date September 15, 2000
Scheduled Series Termination Date April 15, 2003
Series Issuance Date September 14, 1995
2. Class B Certificates
Initial Invested Amount $45,180,000
Certificate Rate One Month LIBOR + 0.29%
Annual Servicing Fee Percentage Same as above for Class A Certificates
Initial Collateral Invested Amount Same as above for Class A Certificates
Expected Final Payment Date Same as above for Class A Certificates
Scheduled Series Termination Date Same as above for Class A Certificates
Series Issuance Date Same as above for Class A Certificates
SERIES 1995-6
1. Class A Certificates
Initial Invested Amount $1,245,000,000
Certificate Rate One Month LIBOR + 0.17%
Controlled Accumulation Amount
(subject to adjustment) $103,750,000
Commencement of Controlled Accumulation
Period (subject to adjustment) October 31, 1999
Annual Servicing Fee Percentage 1.5%, subject to increase to 2.0%
Initial Collateral Invested Amount $142,500,000
Other Enhancement Subordination of Class B Certificates
Expected Final Payment Date November 10, 2000
Scheduled Series Termination Date July 10, 2003
Series Issuance Date December 7, 1995
2. Class B Certificates
Initial Invested Amount $112,500,000
Certificate Rate One Month LIBOR + 0.33%
Annual Servicing Fee Percentage Same as above for Class A Certificates
Initial Collateral Invested Amount Same as above for Class A Certificates
Expected Final Payment Date Same as above for Class A Certificates
Scheduled Series Termination Date Same as above for Class A Certificates
Series Issuance Date Same as above for Class A Certificates
SERIES 1996-1
1. Class A Certificates
Initial Invested Amount $750,000,000
Certificate Rate One Month LIBOR + 0.16%
Controlled Accumulation Amount
(subject to adjustment) $75,301,250
Commencement of Controlled Accumulation
Period (subject to adjustment) February 29, 2000
Annual Servicing Fee Percentage 1.5%, subject to increase to 2.0%
Initial CIA Certificate Amount $85,845,000
Other Enhancement Subordination of Class B Certificates
Expected Final Payment Date March 15, 2001
Scheduled Series Termination Date November 15, 2003
Series Issuance Date March 6, 1996
2. Class B Certificates
Initial Invested Amount $67,770,000
Certificate Rate One Month LIBOR + 0.29%
Controlled Accumulation Amount
(subject to adjustment) Same as above for Class A Certificates
Commencement of Controlled Accumulation
Period (subject to adjustment) Same as above for Class A Certificates
Annual Servicing Fee Percentage Same as above for Class A Certificates
Initial CIA Certificate Amount Same as above for Class A Certificates
Expected Final Payment Date Same as above for Class A Certificates
Scheduled Series Termination Date Same as above for Class A Certificates
Series Issuance Date Same as above for Class A Certificates
SERIES 1996-2
1. Class A Certificates
Initial Invested Amount $600,000,000
Certificate Rate One Month LIBOR + 0.18%
Controlled Accumulation Amount
(subject to adjustment) $60,250,000
Commencement of Controlled Accumulation
Period (subject to adjustment) May 31, 2002
Annual Servicing Fee Percentage 1.5%, subject to increase to 2.0%
Initial CIA Certificate Amount $68,700,000
Other Enhancement Subordination of Class B Certificates
Expected Final Payment Date June 10, 2003
Scheduled Series Termination Date February 10, 2006
Series Issuance Date June 4, 1996
2. Class B Certificates
Initial Invested Amount $54,300,000
Certificate Rate One Month LIBOR + 0.33%
Controlled Accumulation Amount
(subject to adjustment) Same as above for Class A Certificates
Commencement of Controlled Accumulation
Period (subject to adjustment) Same as above for Class A Certificates
Annual Servicing Fee Percentage Same as above for Class A Certificates
Initial CIA Certificate Amount Same as above for Class A Certificates
Expected Final Payment Date Same as above for Class A Certificates
Scheduled Series Termination Date Same as above for Class A Certificates
Series Issuance Date Same as above for Class A Certificates
SERIES 1996-4
1. Class A Certificates
Initial Invested Amount $500,000,000
Certificate Rate One Month LIBOR + 0.19%
Controlled Accumulation Amount
(subject to adjustment) $50,200,834
Commencement of Controlled Accumulation
Period (subject to adjustment) July 31, 2005
Annual Servicing Fee Percentage 1.5%, subject to increase to 2.0%
Initial CIA Certificate Amount $57,230,000
Other Enhancement Subordination of Class B Certificates
Expected Final Payment Date August 10, 2006
Scheduled Series Termination Date April 10, 2009
Series Issuance Date August 6, 1996
2. Class B Certificates
Initial Invested Amount $45,180,000
Certificate Rate One Month LIBOR + 0.37%
Controlled Accumulation Amount
(subject to adjustment) Same as above for Class A Certificates
Commencement of Controlled Accumulation
Period (subject to adjustment) Same as above for Class A Certificates
Annual Servicing Fee Percentage Same as above for Class A Certificates
Initial CIA Certificate Amount Same as above for Class A Certificates
Expected Final Payment Date Same as above for Class A Certificates
Scheduled Series Termination Date Same as above for Class A Certificates
Series Issuance Date Same as above for Class A Certificates
SERIES 1996-6
1. Class A Certificates
Initial Invested Amount $862,650,000
Certificate Rate One Month LIBOR + 0.14%
Controlled Accumulation Amount
(subject to adjustment) $86,616,667
Commencement of Controlled Accumulation
Period (subject to adjustment) October 31, 2002
Annual Servicing Fee Percentage 1.5%, subject to increase to 2.0%
Initial CIA Certificate Amount $98,750,000
Other Enhancement Subordination of Class B Certificates
Expected Final Payment Date November 10, 2003
Scheduled Series Termination Date July 10, 2006
Series Issuance Date November 13, 1996
2. Class B Certificates
Initial Invested Amount $78,000,000
Certificate Rate One Month LIBOR + 0.35%
Controlled Accumulation Amount
(subject to adjustment) Same as above for Class A Certificates
Commencement of Controlled Accumulation
Period (subject to adjustment) Same as above for Class A Certificates
Annual Servicing Fee Percentage Same as above for Class A Certificates
Initial CIA Certificate Amount Same as above for Class A Certificates
Expected Final Payment Date Same as above for Class A Certificates
Scheduled Series Termination Date Same as above for Class A Certificates
Series Issuance Date Same as above for Class A Certificates
SERIES 1996-7
1. Class A Certificates
Initial Invested Amount $483,060,000
Certificate Rate One Month LIBOR + 0.095%
Controlled Accumulation Amount
(subject to adjustment) $48,500,000
Commencement of Controlled Accumulation
Period (subject to adjustment) January 1, 2000
Annual Servicing Fee Percentage 1.5%, subject to increase to 2.0%
Initial CIA Certificate Amount $55,290,000
Other Enhancement Subordination of Class B Certificates
Expected Final Payment Date February 10, 2000
Scheduled Series Termination Date October 10, 2002
Series Issuance Date December 11, 1996
2. Class B Certificates
Initial Invested Amount $43,650,000
Certificate Rate One Month LIBOR + 0.29%
Controlled Accumulation Amount
(subject to adjustment) Same as above for Class A Certificates
Commencement of Controlled Accumulation
Period (subject to adjustment) Same as above for Class A Certificates
Annual Servicing Fee Percentage Same as above for Class A Certificates
Initial CIA Certificate Amount Same as above for Class A Certificates
Expected Final Payment Date Same as above for Class A Certificates
Scheduled Series Termination Date Same as above for Class A Certificates
Series Issuance Date Same as above for Class A Certificates
SERIES 1996-8
1. Class A Certificates
Initial Invested Amount $400,000,000
Certificate Rate One Month LIBOR + 0.12%
Controlled Accumulation Amount
(subject to adjustment) $40,166,667
Commencement of Controlled Accumulation
Period (subject to adjustment) December 31, 2002
Annual Servicing Fee Percentage 1.5%, subject to increase to 2.0%
Initial CIA Certificate Amount $45,800,000
Other Enhancement Subordination of Class B Certificates
Expected Final Payment Date January 10, 2004
Scheduled Series Termination Date September 10, 2006
Series Issuance Date December 11, 1996
2. Class B Certificates
Initial Invested Amount $36,200,000
Certificate Rate One Month LIBOR + 0.34%
Controlled Accumulation Amount
(subject to adjustment) Same as above for Class A Certificates
Commencement of Controlled Accumulation
Period (subject to adjustment) Same as above for Class A Certificates
Annual Servicing Fee Percentage Same as above for Class A Certificates
Initial CIA Certificate Amount Same as above for Class A Certificates
Expected Final Payment Date Same as above for Class A Certificates
Scheduled Series Termination Date Same as above for Class A Certificates
Series Issuance Date Same as above for Class A Certificates
SERIES 1997-1
1. Class A Certificates
Initial Invested Amount $750,000,000
Certificate Rate One Month LIBOR + 0.10%
Controlled Accumulation Amount
(subject to adjustment) $75,301,250
Commencement of Controlled Accumulation
Period (subject to adjustment) January 31, 2003
Annual Servicing Fee Percentage 1.5%, subject to increase to 2.0%
Initial CIA Certificate Amount $85,845,000
Other Enhancement Subordination of Class B Certificates
Expected Final Payment Date February 17, 2004
Scheduled Series Termination Date October 17, 2006
Series Issuance Date February 4, 1997
2. Class B Certificates
Initial Invested Amount $67,770,000
Certificate Rate One Month LIBOR + 0.31%
Controlled Accumulation Amount
(subject to adjustment) Same as above for Class A Certificates
Commencement of Controlled Accumulation
Period (subject to adjustment) Same as above for Class A Certificates
Annual Servicing Fee Percentage Same as above for Class A Certificates
Initial CIA Certificate Amount Same as above for Class A Certificates
Expected Final Payment Date Same as above for Class A Certificates
Scheduled Series Termination Date Same as above for Class A Certificates
Series Issuance Date Same as above for Class A Certificates
SERIES 1997-2
1. Class A Certificates
Initial Invested Amount $500,000,000
Certificate Rate One Month LIBOR + 0.13%
Controlled Accumulation Amount
(subject to adjustment) $50,200,834
Commencement of Controlled Accumulation
Period (subject to adjustment) April 30, 2003
Annual Servicing Fee Percentage 1.5%, subject to increase to 2.0%
Initial CIA Certificate Amount $57,230,000
Other Enhancement Subordination of Class B Certificates
Expected Final Payment Date May 17, 2004
Scheduled Series Termination Date January 17, 2007
Series Issuance Date May 8, 1997
2. Class B Certificates
Initial Invested Amount $45,180,000
Certificate Rate One Month LIBOR + 0.33%
Controlled Accumulation Amount
(subject to adjustment) Same as above for Class A Certificates
Commencement of Controlled Accumulation
Period (subject to adjustment) Same as above for Class A Certificates
Annual Servicing Fee Percentage Same as above for Class A Certificates
Initial CIA Certificate Amount Same as above for Class A Certificates
Expected Final Payment Date Same as above for Class A Certificates
Scheduled Series Termination Date Same as above for Class A Certificates
Series Issuance Date Same as above for Class A Certificates
SERIES 1997-3
1. Class A Certificates
Initial Invested Amount $500,000,000
Certificate Rate One Month LIBOR + 0.11%
Controlled Accumulation Amount
(subject to adjustment) $50,200,834
Commencement of Controlled Accumulation
Period (subject to adjustment) May 31, 2001
Annual Servicing Fee Percentage 1.5%, subject to increase to 2.0%
Initial CIA Certificate Amount $57,230,000
Other Enhancement Subordination of Class B Certificates
Expected Final Payment Date June 17, 2002
Scheduled Series Termination Date February 17, 2005
Series Issuance Date June 10, 1997
2. Class B Certificates
Initial Invested Amount $45,180,000
Certificate Rate One Month LIBOR + 0.29%
Controlled Accumulation Amount
(subject to adjustment) Same as above for Class A Certificates
Commencement of Controlled Accumulation
Period (subject to adjustment) Same as above for Class A Certificates
Annual Servicing Fee Percentage Same as above for Class A Certificates
Initial CIA Certificate Amount Same as above for Class A Certificates
Expected Final Payment Date Same as above for Class A Certificates
Scheduled Series Termination Date Same as above for Class A Certificates
Series Issuance Date Same as above for Class A Certificates
SERIES 1997-4
1. Class A Certificates
Initial Invested Amount $500,000,000
Certificate Rate One Month LIBOR + 0.21%
Controlled Accumulation Amount
(subject to adjustment) $50,200,834
Commencement of Controlled Accumulation
Period (subject to adjustment) May 31, 2006
Annual Servicing Fee Percentage 1.5%, subject to increase to 2.0%
Initial CIA Certificate Amount $57,230,000
Other Enhancement Subordination of Class B Certificates
Expected Final Payment Date June 17, 2007
Scheduled Series Termination Date February 17, 2010
Series Issuance Date June 10, 1997
2. Class B Certificates
Initial Invested Amount $45,180,000
Certificate Rate One Month LIBOR + 0.41%
Controlled Accumulation Amount
(subject to adjustment) Same as above for Class A Certificates
Commencement of Controlled Accumulation
Period (subject to adjustment) Same as above for Class A Certificates
Annual Servicing Fee Percentage Same as above for Class A Certificates
Initial CIA Certificate Amount Same as above for Class A Certificates
Expected Final Payment Date Same as above for Class A Certificates
Scheduled Series Termination Date Same as above for Class A Certificates
Series Issuance Date Same as above for Class A Certificates
SERIES 1997-5
1. Class A Certificates
Initial Invested Amount $650,000,000
Certificate Rate One Month LIBOR + 0.14%
Controlled Accumulation Amount
(subject to adjustment) $65,260,834
Commencement of Controlled Accumulation
Period (subject to adjustment) July 31, 2003
Annual Servicing Fee Percentage 1.5%, subject to increase to 2.0%
Initial CIA Certificate Amount $74,395,000
Other Enhancement Subordination of Class B Certificates
Expected Final Payment Date August 17, 2004
Scheduled Series Termination Date April 17, 2007
Series Issuance Date August 7, 1997
2. Class B Certificates
Initial Invested Amount $58,735,000
Certificate Rate One Month LIBOR + 0.33%
Controlled Accumulation Amount
(subject to adjustment) Same as above for Class A Certificates
Commencement of Controlled Accumulation
Period (subject to adjustment) Same as above for Class A Certificates
Annual Servicing Fee Percentage Same as above for Class A Certificates
Initial CIA Certificate Amount Same as above for Class A Certificates
Expected Final Payment Date Same as above for Class A Certificates
Scheduled Series Termination Date Same as above for Class A Certificates
Series Issuance Date Same as above for Class A Certificates
SERIES 1997-6
1. Class A Certificates
Initial Invested Amount $1,300,000,000
Certificate Rate 6.42%
Controlled Accumulation Amount
(subject to adjustment) $130,521,667
Commencement of Controlled Accumulation
Period (subject to adjustment) June 30, 2001
Annual Servicing Fee Percentage 1.5%, subject to increase to 2.0%
Initial CIA Certificate Amount $148,790,000
Other Enhancement Subordination of Class B Certificates
Expected Final Payment Date July 17, 2002
Scheduled Series Termination Date March 17, 2005
Series Issuance Date September 9, 1997
2. Class B Certificates
Initial Invested Amount $117,470,000
Certificate Rate 6.58%
Controlled Accumulation Amount
(subject to adjustment) Same as above for Class A Certificates
Commencement of Controlled Accumulation
Period (subject to adjustment) Same as above for Class A Certificates
Annual Servicing Fee Percentage Same as above for Class A Certificates
Initial CIA Certificate Amount Same as above for Class A Certificates
Expected Final Payment Date Same as above for Class A Certificates
Scheduled Series Termination Date Same as above for Class A Certificates
Series Issuance Date Same as above for Class A Certificates
SERIES 1997-7
1. Class A Certificates
Initial Invested Amount $500,000,000
Certificate Rate One Month LIBOR + 0.098%
Controlled Accumulation Amount
(subject to adjustment) $50,200,834
Commencement of Controlled Accumulation
Period (subject to adjustment) August 31, 2003
Annual Servicing Fee Percentage 1.5%, subject to increase to 2.0%
Initial CIA Certificate Amount $57,230,000
Other Enhancement Subordination of Class B Certificates
Expected Final Payment Date September 17, 2004
Scheduled Series Termination Date May 17, 2007
Series Issuance Date September 9, 1997
2. Class B Certificates
Initial Invested Amount $45,180,000
Certificate Rate One Month LIBOR + 0.30%
Controlled Accumulation Amount
(subject to adjustment) Same as above for Class A Certificates
Commencement of Controlled Accumulation
Period (subject to adjustment) Same as above for Class A Certificates
Annual Servicing Fee Percentage Same as above for Class A Certificates
Initial CIA Certificate Amount Same as above for Class A Certificates
Expected Final Payment Date Same as above for Class A Certificates
Scheduled Series Termination Date Same as above for Class A Certificates
Series Issuance Date Same as above for Class A Certificates
SERIES 1997-8
1. Class A Certificates
Initial Invested Amount $780,000,000
Certificate Rate One Month LIBOR + 0.15%
Controlled Accumulation Amount
(subject to adjustment) $78,313,334
Commencement of Controlled Accumulation
Period (subject to adjustment) August 31, 2006
Annual Servicing Fee Percentage 1.5%, subject to increase to 2.0%
Initial CIA Certificate Amount $89,278,000
Other Enhancement Subordination of Class B Certificates
Expected Final Payment Date September 17, 2007
Scheduled Series Termination Date March 17, 2010
Series Issuance Date September 23, 1997
2. Class B Certificates
Initial Invested Amount $70,482,000
Certificate Rate One Month LIBOR + 0.36%
Controlled Accumulation Amount
(subject to adjustment) Same as above for Class A Certificates
Commencement of Controlled Accumulation
Period (subject to adjustment) Same as above for Class A Certificates
Annual Servicing Fee Percentage Same as above for Class A Certificates
Initial CIA Certificate Amount Same as above for Class A Certificates
Expected Final Payment Date Same as above for Class A Certificates
Scheduled Series Termination Date Same as above for Class A Certificates
Series Issuance Date Same as above for Class A Certificates
SERIES 1997-9
1. Class A Certificates
Initial Invested Amount $500,000,000
Certificate Rate One Month LIBOR + 0.06%
Controlled Accumulation Amount
(subject to adjustment) $50,200,834
Commencement of Controlled Accumulation
Period (subject to adjustment) September 30, 2003
Annual Servicing Fee Percentage 1.5%, subject to increase to 2.0%
Initial CIA Certificate Amount $57,230,000
Other Enhancement Subordination of Class B Certificates
Expected Final Payment Date October 17, 2004
Scheduled Series Termination Date June 17, 2007
Series Issuance Date October 9, 1997
2. Class B Certificates
Initial Invested Amount $45,180,000
Certificate Rate One Month LIBOR + 0.33%
Controlled Accumulation Amount
(subject to adjustment) Same as above for Class A Certificates
Commencement of Controlled Accumulation
Period (subject to adjustment) Same as above for Class A Certificates
Annual Servicing Fee Percentage Same as above for Class A Certificates
Initial CIA Certificate Amount Same as above for Class A Certificates
Expected Final Payment Date Same as above for Class A Certificates
Scheduled Series Termination Date Same as above for Class A Certificates
Series Issuance Date Same as above for Class A Certificates
SERIES 1997-10
1. Class A Certificates
Initial Invested Amount $700,000,000
Certificate Rate One Month LIBOR + 0.09%
Controlled Accumulation Amount
(subject to adjustment) $70,281,167
Commencement of Controlled Accumulation
Period (subject to adjustment) December 31, 1999
Annual Servicing Fee Percentage 1.5%, subject to increase to 2.0%
Initial CIA Certificates Amount $80,121,000
Other Enhancement Subordination of Class B Certificates
Expected Final Payment Date January 17, 2001
Scheduled Series Termination Date September 17, 2003
Series Issuance Date December 23, 1997
2. Class B Certificates
Initial Invested Amount $63,253,000
Certificate Rate One Month LIBOR + 0.27%
Controlled Accumulation Amount
(subject to adjustment) Same as above for Class A Certificates
Commencement of Controlled Accumulation
Period (subject to adjustment) Same as above for Class A Certificates
Annual Servicing Fee Percentage Same as above for Class A Certificates
Initial CIA Certificate Amount Same as above for Class A Certificates
Expected Final Payment Date Same as above for Class A Certificates
Scheduled Series Termination Date Same as above for Class A Certificates
Series Issuance Date Same as above for Class A Certificates
SERIES 1998-1
1. Class A Certificates
Initial Invested Amount $700,000,000
Certificate Rate One Month LIBOR + 0.08%
Controlled Accumulation Amount
(subject to adjustment) $70,281,167
Commencement of Controlled Accumulation
Period (subject to adjustment) April 30, 2002
Annual Servicing Fee Percentage 1.5%, subject to increase to 2.0%
Initial Excess Collateral Amount $80,121,000
Other Enhancement Subordination of Class B Certificates
Expected Final Payment Date May 18, 2003
Scheduled Series Termination Date January 18, 2006
Series Issuance Date May 21, 1998
2. Class B Certificates
Initial Invested Amount $63,253,000
Certificate Rate One Month LIBOR + 0.25%
Controlled Accumulation Amount
(subject to adjustment) Same as above for Class A Certificates
Commencement of Controlled Accumulation
Period (subject to adjustment) Same as above for Class A Certificates
Annual Servicing Fee Percentage Same as above for Class A Certificates
Initial Excess Collateral Amount Same as above for Class A Certificates
Expected Final Payment Date Same as above for Class A Certificates
Scheduled Series Termination Date Same as above for Class A Certificates
Series Issuance Date Same as above for Class A Certificates
SERIES 1998-2
1. Class A Certificates
Initial Invested Amount $579,000,000
Certificate Rate One Month LIBOR - 0.125%
Controlled Accumulation Amount
(subject to adjustment) $58,132,667
Commencement of Controlled Accumulation
Period (subject to adjustment) May 31, 2007
Annual Servicing Fee Percentage 1.5%, subject to increase to 2.0%
Initial Excess Collateral Amount $66,272,000
Other Enhancement Subordination of Class B Certificates
Expected Final Payment Date June 18, 2008
Scheduled Series Termination Date February 18, 2011
Series Issuance Date May 21, 1998
2. Class B Certificates
Initial Invested Amount $52,320,000
Certificate Rate One Month LIBOR - 0.125%
Controlled Accumulation Amount
(subject to adjustment) Same as above for Class A Certificates
Commencement of Controlled Accumulation
Period (subject to adjustment) Same as above for Class A Certificates
Annual Servicing Fee Percentage Same as above for Class A Certificates
Initial Excess Collateral Amount Same as above for Class A Certificates
Expected Final Payment Date Same as above for Class A Certificates
Scheduled Series Termination Date Same as above for Class A Certificates
Series Issuance Date Same as above for Class A Certificates
SERIES 1998-3
1. Class A Certificates
Initial Invested Amount $800,000,000
Certificate Rate One Month LIBOR + 0.06%
Controlled Accumulation Amount
(subject to adjustment) $80,321,334
Commencement of Controlled Accumulation
Period (subject to adjustment) May 31, 2000
Annual Servicing Fee Percentage 1.5%, subject to increase to 2.0%
Initial Excess Collateral Amount $91,567,000
Other Enhancement Subordination of Class B Certificates
Expected Final Payment Date June 18, 2001
Scheduled Series Termination Date February 18, 2004
Series Issuance Date June 25, 1998
2. Class B Certificates
Initial Invested Amount $72,289,000
Certificate Rate One Month LIBOR + 0.22%
Controlled Accumulation Amount
(subject to adjustment) Same as above for Class A Certificates
Commencement of Controlled Accumulation
Period (subject to adjustment) Same as above for Class A Certificates
Annual Servicing Fee Percentage Same as above for Class A Certificates
Initial Excess Collateral Amount Same as above for Class A Certificates
Expected Final Payment Date Same as above for Class A Certificates
Scheduled Series Termination Date Same as above for Class A Certificates
Series Issuance Date Same as above for Class A Certificates
SERIES 1998-4
1. Class A Certificates
Initial Invested Amount $700,000,000
Certificate Rate One Month LIBOR + 0.12%
Controlled Accumulation Amount
(subject to adjustment) $70,281,167
Commencement of Controlled Accumulation
Period (subject to adjustment) June 30, 2004
Annual Servicing Fee Percentage 1.5%, subject to increase to 2.0%
Initial Excess Collateral Amount $80,121,000
Other Enhancement Subordination of Class B Certificates
Expected Final Payment Date July 18, 2005
Scheduled Series Termination Date March 18, 2008
Series Issuance Date July 22, 1998
2. Class B Certificates
Initial Invested Amount $63,253,000
Certificate Rate One Month LIBOR + 0.30%
Controlled Accumulation Amount
(subject to adjustment) Same as above for Class A Certificates
Commencement of Controlled Accumulation
Period (subject to adjustment) Same as above for Class A Certificates
Annual Servicing Fee Percentage Same as above for Class A Certificates
Initial Excess Collateral Amount Same as above for Class A Certificates
Expected Final Payment Date Same as above for Class A Certificates
Scheduled Series Termination Date Same as above for Class A Certificates
Series Issuance Date Same as above for Class A Certificates
SERIES 1998-5
1. Class A Certificates
Initial Invested Amount $650,000,000
Certificate Rate One Month LIBOR + 0.10%
Controlled Accumulation Amount
(subject to adjustment) $65,260,834
Commencement of Controlled Accumulation
Period (subject to adjustment) July 31, 2002
Annual Servicing Fee Percentage 1.5%, subject to increase to 2.0%
Initial Excess Collateral Amount $74,395,000
Other Enhancement Subordination of Class B Certificates
Expected Final Payment Date August 18, 2003
Scheduled Series Termination Date April 18, 2006
Series Issuance Date August 27, 1998
2. Class B Certificates
Initial Invested Amount $58,735,000
Certificate Rate One Month LIBOR + 0.28%
Controlled Accumulation Amount
(subject to adjustment) Same as above for Class A Certificates
Commencement of Controlled Accumulation
Period (subject to adjustment) Same as above for Class A Certificates
Annual Servicing Fee Percentage Same as above for Class A Certificates
Initial Excess Collateral Amount Same as above for Class A Certificates
Expected Final Payment Date Same as above for Class A Certificates
Scheduled Series Termination Date Same as above for Class A Certificates
Series Issuance Date Same as above for Class A Certificates
SERIES 1998-6
1. Class A Certificates
Initial Invested Amount $800,000,000
Certificate Rate One Month LIBOR + 0.16%
Controlled Accumulation Amount
(subject to adjustment) $80,321,334
Commencement of Controlled Accumulation
Period (subject to adjustment) July 31, 2007
Annual Servicing Fee Percentage 1.5%, subject to increase to 2.0%
Initial Excess Collateral Amount $91,567,000
Other Enhancement Subordination of Class B Certificates
Expected Final Payment Date August 18, 2008
Scheduled Series Termination Date April 18, 2011
Series Issuance Date August 27, 1998
2. Class B Certificates
Initial Invested Amount $72,289,000
Certificate Rate One Month LIBOR + 0.36%
Controlled Accumulation Amount
(subject to adjustment) Same as above for Class A Certificates
Commencement of Controlled Accumulation
Period (subject to adjustment) Same as above for Class A Certificates
Annual Servicing Fee Percentage Same as above for Class A Certificates
Initial Excess Collateral Amount Same as above for Class A Certificates
Expected Final Payment Date Same as above for Class A Certificates
Scheduled Series Termination Date Same as above for Class A Certificates
Series Issuance Date Same as above for Class A Certificates
SERIES 1998-7
1. Class A Certificates
Initial Invested Amount $750,000,000
Certificate Rate One Month LIBOR + 0.10%
Controlled Accumulation Amount
(subject to adjustment) $75,301,250
Commencement of Controlled Accumulation
Period (subject to adjustment) July 31, 2000
Annual Servicing Fee Percentage 1.5%, subject to increase to 2.0%
Initial Excess Collateral Amount $85,845,000
Other Enhancement Subordination of Class B Certificates
Expected Final Payment Date August 18, 2001
Scheduled Series Termination Date April 18, 2004
Series Issuance Date September 17, 1998
2. Class B Certificates
Initial Invested Amount $67,770,000
Certificate Rate One Month LIBOR + 0.30%
Controlled Accumulation Amount
(subject to adjustment) Same as above for Class A Certificates
Commencement of Controlled Accumulation
Period (subject to adjustment) Same as above for Class A Certificates
Annual Servicing Fee Percentage Same as above for Class A Certificates
Initial Excess Collateral Amount Same as above for Class A Certificates
Expected Final Payment Date Same as above for Class A Certificates
Scheduled Series Termination Date Same as above for Class A Certificates
Series Issuance Date Same as above for Class A Certificates
SERIES 1998-8
1. Class A Certificates
Initial Invested Amount $500,000,000
Certificate Rate One Month LIBOR + 0.15%
Controlled Accumulation Amount
(subject to adjustment) $50,200,833
Commencement of Controlled Accumulation
Period (subject to adjustment) August 31, 2004
Annual Servicing Fee Percentage 1.5%, subject to increase to 2.0%
Initial Excess Collateral Amount $57,230,000
Other Enhancement Subordination of Class B Certificates
Expected Final Payment Date September 19, 2005
Scheduled Series Termination Date May 19, 2008
Series Issuance Date September 17, 1998
2. Class B Certificates
Initial Invested Amount $45,180,000
Certificate Rate One Month LIBOR + 0.41%
Controlled Accumulation Amount
(subject to adjustment) Same as above for Class A Certificates
Commencement of Controlled Accumulation
Period (subject to adjustment) Same as above for Class A Certificates
Annual Servicing Fee Percentage Same as above for Class A Certificates
Initial Excess Collateral Amount Same as above for Class A Certificates
Expected Final Payment Date Same as above for Class A Certificates
Scheduled Series Termination Date Same as above for Class A Certificates
Series Issuance Date Same as above for Class A Certificates
SERIES 1998-9
1. Class A Certificates Initial Invested Amount $650,000,000
Certificate Rate 5.28%
Controlled Accumulation Amount
(subject to adjustment) $62,260,584
Commencement of Controlled Accumulation
Period (subject to adjustment) December 31, 2002
Annual Servicing Fee Percentage 1.5%, subject to increase to 2.0%
Initial Excess Collateral Amount $52,299,000
Other Enhancement Subordination of Class B Certificates
Expected Final Payment Date January 20, 2004
Scheduled Series Termination Date September 18, 2006
Series Issuance Date December 22, 1998
2. Class B Certificates
Initial Invested Amount $44,828,000
Certificate Rate 5.55%
Controlled Accumulation Amount
(subject to adjustment) Same as above for Class A Certificates
Commencement of Controlled Accumulation
Period (subject to adjustment) Same as above for Class A Certificates
Annual Servicing Fee Percentage Same as above for Class A Certificates
Initial Excess Collateral Amount Same as above for Class A Certificates
Expected Final Payment Date Same as above for Class A Certificates
Scheduled Series Termination Date Same as above for Class A Certificates
Series Issuance Date Same as above for Class A Certificates
SERIES 1999-1
1. Class A Certificates
Initial Invested Amount $1,000,000,000
Certificate Rate One Month LIBOR + 0.15%
Controlled Accumulation Amount
(subject to adjustment) $100,401,584
Commencement of Controlled Accumulation
Period (subject to adjustment) January 31, 2003
Annual Servicing Fee Percentage 1.5%, subject to increase to 2.0%
Initial Excess Collateral Amount $114,458,000
Other Enhancement Subordination of Class B Certificates
Expected Final Payment Date February 19, 2004
Scheduled Series Termination Date October 19, 2006
Series Issuance Date February 24, 1999
2. Class B Certificates
Initial Invested Amount $90,361,000
Certificate Rate One Month LIBOR + 0.40%
Controlled Accumulation Amount
(subject to adjustment) Same as above for Class A Certificates
Commencement of Controlled Accumulation
Period (subject to adjustment) Same as above for Class A Certificates
Annual Servicing Fee Percentage Same as above for Class A Certificates
Initial Excess Collateral Amount Same as above for Class A Certificates
Expected Final Payment Date Same as above for Class A Certificates
Scheduled Series Termination Date Same as above for Class A Certificates
Series Issuance Date Same as above for Class A Certificates
SERIES 1999-2
1. Class A Certificates
Initial Invested Amount $500,000,000
Certificate Rate One Month LIBOR + 0.19%
Controlled Accumulation Amount
(subject to adjustment) $50,200,834
Commencement of Controlled Accumulation
Period (subject to adjustment) January 31, 2005
Annual Servicing Fee Percentage 1.5%, subject to increase to 2.0%
Initial Excess Collateral Amount $57,230,000
Other Enhancement Subordination of Class B Certificates
Expected Final Payment Date February 21, 2006
Scheduled Series Termination Date October 20, 2008
Series Issuance Date February 24, 1999
2. Class B Certificates
Initial Invested Amount $45,180,000
Certificate Rate One Month LIBOR + 0.44%
Controlled Accumulation Amount
(subject to adjustment) Same as above for Class A Certificates
Commencement of Controlled Accumulation
Period (subject to adjustment) Same as above for Class A Certificates
Annual Servicing Fee Percentage Same as above for Class A Certificates
Initial Excess Collateral Amount Same as above for Class A Certificates
Expected Final Payment Date Same as above for Class A Certificates
Scheduled Series Termination Date Same as above for Class A Certificates
Series Issuance Date Same as above for Class A Certificates
SERIES 1999-3
1. Class A Certificates
Initial Invested Amount $700,000,000
Certificate Rate One Month LIBOR + 0.15%
Controlled Accumulation Amount
(subject to adjustment) $69,444,500
Commencement of Controlled Accumulation
Period (subject to adjustment) March 31, 2003
Annual Servicing Fee Percentage 1.5%, subject to increase to 2.0%
Initial Excess Collateral Amount $79,167,000
Other Enhancement Subordination of Class B Certificates
Expected Final Payment Date April 19, 2004
Scheduled Series Termination Date December 19, 2006
Series Issuance Date May 4, 1999
2. Class B Certificates
Initial Invested Amount $54,167,000
Certificate Rate One Month LIBOR + 0.36%
Controlled Accumulation Amount
(subject to adjustment) Same as above for Class A Certificates
Commencement of Controlled Accumulation
Period (subject to adjustment) Same as above for Class A Certificates
Annual Servicing Fee Percentage Same as above for Class A Certificates
Initial Excess Collateral Amount Same as above for Class A Certificates
Expected Final Payment Date Same as above for Class A Certificates
Scheduled Series Termination Date Same as above for Class A Certificates
Series Issuance Date Same as above for Class A Certificates
SERIES 1999-4
1. Class A Certificates
Initial Invested Amount $500,000,000
Certificate Rate One Month LIBOR + 0.09%
Controlled Accumulation Amount
(subject to adjustment) $49,603,250
Commencement of Controlled Accumulation
Period (subject to adjustment) April 30, 2001
Annual Servicing Fee Percentage 1.5%, subject to increase to 2.0%
Initial Excess Collateral Amount $56,548,000
Other Enhancement Subordination of Class B Certificates
Expected Final Payment Date May 20, 2000
Scheduled Series Termination Date January 19, 2005
Series Issuance Date May 26, 1999
2. Class B Certificates
Initial Invested Amount $38,691,000
Certificate Rate One Month LIBOR + 0.30%
Controlled Accumulation Amount
(subject to adjustment) Same as above for Class A Certificates
Commencement of Controlled Accumulation
Period (subject to adjustment) Same as above for Class A Certificates
Annual Servicing Fee Percentage Same as above for Class A Certificates
Initial Excess Collateral Amount Same as above for Class A Certificates
Expected Final Payment Date Same as above for Class A Certificates
Scheduled Series Termination Date Same as above for Class A Certificates
Series Issuance Date Same as above forClass A Certificates
SERIES 1999-A
Initial Invested Amount $450,000,000
Invested Amount as of _____, 1999 $____________
Maximum Permitted Invested Amount $750,000,000
Certificate Rate Commercial Paper Index
Commencement of Amortization Period June 2002
Annual Servicing Fee Percentage 1.5%, subject to increase to 2.0%
Scheduled Series Termination Date January 2005
Series Issuance Date June 28, 1999
SERIES 1999-B
Initial Invested Amount $550,000,000
Invested Amount as of _____, 1999 $____________
Maximum Permitted Invested Amount $550,000,000
Certificate Rate Commercial Paper Index
Commencement of Amortization Period June 2002
Annual Servicing Fee Percentage 1.5%, subject to increase to 2.0%
Scheduled Series Termination Date January 2005
Series Issuance Date June 28, 1999
ANNEX II
GLOBAL CLEARANCE, SETTLEMENT AND TAX DOCUMENTATION
PROCEDURES
Except in certain limited circumstances, the globally offered First
USA Credit Card Master Trust Asset Backed Certificates, Series 1999-__,
Class A and Class B (the "GLOBAL SECURITIES") will be available only in
book-entry form. Investors in the Global Securities may hold such Global
Securities through any of The Depository Trust Company ("DTC"), Cedelbank
or Euroclear. The Global Securities will be tradeable as home market
instruments in both the European and U.S. domestic markets. Initial
settlement and all secondary trades will settle in same-day funds.
Secondary market trading between investors holding Global Securities
through Cedelbank and Euroclear will be conducted in the ordinary way in
accordance with their normal rules and operating procedures and in
accordance with conventional eurobond practice (i.e., seven calendar day
settlement).
Secondary market trading between investors holding Global Securities
through DTC will be conducted according to the rules and procedures
applicable to U.S. corporate debt obligations and prior First USA Credit
Card Master Trust issues.
Secondary cross-market trading between Cedelbank Customers or
Euroclear Participants holding Certificates will be effected on a
delivery-against-payment basis through the respective Depositaries of
Cedelbank and Euroclear (in such capacity) and as Cedelbank Customers or
Euroclear Participants.
Non-U.S. holders (as described below) of Global Securities
will be subject to U.S. withholding taxes unless such
holders meet certain requirements and deliver appropriate U.S. tax
documents to the securities clearing organizations or their
participants.
Initial Settlement. All Global Securities will be held in book-entry
form by DTC in the name of Cede & Co. as nominee of DTC. Investors'
interests in the Global Securities will be represented through financial
institutions acting on their behalf as direct and indirect Participants. As
a result, Cedelbank and Euroclear will hold positions on behalf of their
customers and participants through their respective Depositaries, which in
turn will hold such positions in accounts as DTC Participants.
Investors electing to hold their Global Securities through DTC will
follow the settlement practices applicable to U.S. corporate debt
obligations and prior First USA Credit Card Master Trust issues. Investor
securities custody accounts will be credited with their holdings against
payment in same-day funds on the settlement date.
Investors electing to hold their Global Securities through Cedelbank
or Euroclear accounts will follow the settlement procedures applicable to
conventional eurobonds, except that there will be no temporary global
security and no "lock-up" or restricted period. Global Securities will be
credited to the securities custody accounts on the settlement date against
payment in same-day funds.
Secondary Market Trading. Since the purchaser determines the place of
delivery, it is important to establish at the time of the trade where both
the purchaser's and seller's accounts are located to ensure that settlement
can be made on the desired value date.
Trading between DTC Participants. Secondary market trading between
DTC Participants will be settled using the procedures applicable to prior
First USA Credit Card Master Trust issues in same-day funds.
Trading between Cedelbank Customers and/or Euroclear Participants.
Secondary market trading between Cedelbank Customers or Euroclear
Participants will be settled using the procedures applicable to
conventional eurobonds in same-day funds.
Trading between DTC seller and Cedelbank or Euroclear purchaser. When
Global Securities are to be transferred from the account of a DTC
Participant to the accounts of a Cedelbank Customer or a Euroclear
Participant, the purchaser will send instructions to Cedelbank or Euroclear
through a Cedelbank Customer or Euroclear Participant at least one business
day prior to settlement. Cedelbank or Euroclear, as the case may be, will
instruct their respective Depositaries to receive the Global Securities
against payment. Payment will include interest accrued on the Global
Securities from and including the last coupon payment date to and excluding
the settlement date, on the basis of actual days elapsed and a 360 day
year. Payment will then be made by the respective Depositary to the DTC
Participant's account against delivery of the Global Securities. After
settlement has been completed, the Global Securities will be credited to
the respective clearing system and by the clearing system, in accordance
with its usual procedures, to the Cedelbank Customer's or Euroclear
Participant's account. The Global Securities credit will appear the next
day (European time) and the cash debit will be back-valued to, and the
interest on the Global Securities will accrue from, the value date (which
would be the preceding day when settlement occurred in New York). If
settlement is not completed on the intended value date (i.e., the trade
fails), the Cedelbank or Euroclear cash debit will be valued instead as of
the actual settlement date.
Cedelbank Customers and Euroclear Participants will need to make
available to the respective clearing systems the funds necessary to process
same-day funds settlement. The most direct means of doing so is to
pre-position funds for settlement, either from cash on hand or existing
lines of credit, as they would for any settlement occurring within
Cedelbank or Euroclear. Under this approach, they may take on credit
exposure to Cedelbank or Euroclear until the Global Securities are credited
to their accounts one day later.
As an alternative, if Cedelbank or Euroclear has extended a line of
credit to them, Cedelbank Customers or Euroclear Participants can elect not
to pre-position funds and allow that credit line to be drawn upon the
finance settlement. Under this procedure, Cedelbank Customers or Euroclear
Participants purchasing Global Securities would incur overdraft charges for
one day, assuming they cleared the overdraft when the Global Securities
were credited to their accounts. However, interest on the Global Securities
would accrue from the value date. Therefore, in many cases the investment
income on the Global Securities earned during that one-day period may
substantially reduce or offset the amount of such overdraft charges,
although this result will depend on each Cedelbank Customer's or Euroclear
Participant's particular cost of funds.
Since the settlement is taking place during New York business hours,
DTC Participants can employ their usual procedures for sending Global
Securities to the respective Depositary for the benefit of Cedelbank
Customers or Euroclear Participants. The sale proceeds will be available to
the DTC seller on the settlement date. Thus, to the DTC Participants a
cross-market transaction will settle no differently than a trade between
two DTC Participants.
Trading between Cedelbank or Euroclear seller and DTC purchaser. Due
to time zone differences in their favor, Cedelbank Customers and Euroclear
Participants may employ their customary procedures for transactions in
which Global Securities are to be transferred by the respective clearing
system, through the respective Depositary, to a DTC Participant. The seller
will send instructions to Cedelbank or Euroclear through a Cedelbank
Customer or Euroclear Participant at least one business day prior to
settlement. In these cases, Cedelbank or Euroclear will instruct their
respective Depositary, as appropriate, to deliver the bonds to the DTC
Participant's account against payment. Payment will include interest
accrued on the Global Securities from and including the last coupon payment
date to and excluding the settlement date on the basis of actual days
elapsed and a 360 day year. The payment will then be reflected in the
account of the Cedelbank Customer or Euroclear Participant the following
day, and receipt of the cash proceeds in the Cedelbank Customer's or
Euroclear Participant's account would be back-valued to the value date
(which would be the preceding day, when settlement occurred in New York).
Should the Cedelbank Customer or Euroclear Participant have a line of
credit with its respective clearing system and elect to be in debit in
anticipation of receipt of the sale proceeds in its account, the
back-valuation will extinguish any overdraft charges incurred over that
one-day period. If settlement is not completed on the intended value date
(i.e., the trade fails), receipt of the cash proceeds in the Cedelbank
Customer's or Euroclear Participant's account would instead be valued as of
the actual settlement date.
Finally, day traders that use Cedelbank or Euroclear and that
purchase Global Securities from DTC Participants for delivery to Cedelbank
Customers or Euroclear Participants should note that these trades would
automatically fail on the sale side unless affirmative action were taken.
At least three techniques should be readily available to eliminate this
potential problem:
(a) borrowing through Cedelbank or Euroclear for one day (until
the purchase side of the day trade is reflected in their Cedelbank or
Euroclear accounts) in accordance with the clearing system's
customary procedures;
(b) borrowing the Global Securities in the U.S. from a DTC
Participant no later than one day prior to settlement, which would
give the Global Securities sufficient time to be reflected in their
Cedelbank or Euroclear accounts in order to settle the sale side of
the trade; or
(c) staggering the value dates for the buy and sell sides of
the trade so that the value date for the purchase from the
Participant is at least one day prior to the value date for the sale
to the Cedelbank Customer or Euroclear Participant.
CERTAIN U.S. FEDERAL INCOME TAX DOCUMENTATION REQUIREMENTS
A beneficial owner of Global Securities holding securities through
Cedelbank or Euroclear (or through DTC if the holder has an address outside
the U.S.) will be subject to the 30% U.S. withholding tax that generally
applies to payments of interest (including original issue discount) on
registered debt issued by U.S. Persons, unless (i) each clearing system,
bank or other financial institution that holds customers' securities in the
ordinary course of its trade or business in the chain of intermediaries
between such beneficial owner and the U.S. entity required to withhold tax
complies with applicable certification requirements and (ii) such
beneficial owner takes one of the following steps to obtain an exemption or
reduced tax rate:
Exemption for non-U.S. Persons (Form W-8). Beneficial owners of
Certificates that are non-U.S. Persons can obtain a complete exemption from
the withholding tax by filing a signed Form W-8 (Certificate of Foreign
Status). If the information shown on Form W-8 changes, a new Form W-8 must
be filed within 30 days of such change.
Exemption for non-U.S. Persons with effectively connected income
(Form 4224). A non-U.S. Person, including a non-U.S. corporation or bank
with a U.S. branch, for which the interest income is effectively connected
with its conduct of a trade or business in the United States, can obtain an
exemption from the withholding tax by filing Form 4224 (Exemption from
Withholding of Tax on Income Effectively Connected with the Conduct of a
Trade or Business in the United States).
Exemption or reduced rate for non-U.S. Persons resident in treaty
countries (Form 1001). Non-U.S. Persons that are Certificate Owners
residing in a country that has a tax treaty with the United States can
obtain an exemption or reduced tax rate (depending on the treaty terms) by
filing Form 1001 (Ownership, Exemption or Reduced Rate Certificate). If the
treaty provides only for a reduced rate, withholding tax will be imposed at
that rate unless the filer alternatively files Form W-8. Form 1001 may be
filed by the Certificate Owner or his agent.
Exemption for U.S. Persons (Form W-9). U.S. Persons can obtain a
complete exemption from the withholding tax by filing Form W-9 (Payer's
Request for Taxpayer Identification Number and Certification).
U.S. Federal Income Tax Reporting Procedure. The Certificate Owner of
a Global Security or, in the case of a Form 1001 or a Form 4224 filer, his
agent, files by submitting the appropriate form to the person through whom
it holds (the clearing agency, in the case of persons holding directly on
the books of the clearing agency).
The procedures described above would be changed under new Treasury
regulations which are effective for payments made after December 31, 2000.
The new Treasury regulations would combine several existing forms,
including Form W-8, Form 4224 and Form 1001, into a single, expanded Form
W-8. The new Forms W-8 are Form W-8BEN, Certificate of Foreign Status of
Beneficial Owner for U.S. Tax Withholding, that replaces the existing Form
W-8; Form W-8ECI, Certificate of Foreign Person's Claim for Exemption From
Withholding on Income Effectively Connected With the Conduct Of a Trade or
Business in the United States, that replaces the existing Form 4224;
Revised Form W-8 used as a substitute for existing Form 1001 to secure
treaty benefits; Form W-8EXP, Certificate of Foreign Government Or Other
Foreign Organization for United States Tax Withholding; and Form W-8IMY,
Certificate of Foreign Intermediary, Foreign Partnership, or Certain U.S.
Branches for U.S. Tax Withholding.
Certifications currently made on Forms W-8, 4224 or 1001 remain valid
until they expire under the existing regulations, but not after December
31, 2000, and a beneficial owner of a Global Certificate would have to
timely sign the appropriate W-8 Form to avoid withholding at a rate of 30%
in respect of payments of interest (including original issue discount) made
after December 31, 2000, or after the expiration of the current
certificate.
The term "U.S. PERSON" means (i) a citizen or resident of the United
States, (ii) a corporation or partnership organized in or under the laws of
the United States or any political subdivision thereof, (iii) an estate the
income of which is includible in gross income for United States tax
purposes, regardless of its source or (iv) a trust if a U.S. court is able
to exercise primary supervision over the administration of such trust and
one or more U.S. persons have the authority to control all substantial
decisions of such trust. This summary does not deal with all aspects of
U.S. Federal income tax withholding that may be relevant to foreign holders
of the Global Securities. Investors are advised to consult their own tax
advisors for specific tax advice concerning their holding and disposing of
the Global Securities.
INDEX OF TERMS FOR PROSPECTUS SUPPLEMENT
TERM PAGE
- ---- ----
Accounts.........................................................S-17
Accumulation Period..............................................S-31
Accumulation Period Length.......................................S-32
Accumulation Shortfall...........................................S-44
Addition Date....................................................S-34
Amortization Period..............................................S-32
Amortization Periods.............................................S-32
Available Investor Principal Collections.........................S-31
Available Reserve Account Amount.................................S-48
Average Principal Balance........................................S-34
BANC ONE...................................................S-17, S-18
Bank.............................................................S-17
BANK ONE.........................................................S-17
Bank Portfolio...................................................S-18
base rate...................................................S-6, S-26
Benefit Plans....................................................S-52
BOCM.............................................................S-55
Calculation Date.................................................S-38
Certificate Rate.................................................S-29
Certificateholders...............................................S-17
Certificates.....................................................S-17
Chevy Chase......................................................S-17
Class A Account Percentage.......................................S-39
Class A Adjusted Invested Amount.................................S-34
Class A Available Funds..........................................S-39
Class A Certificate Rate.........................................S-29
Class A Certificateholders.......................................S-17
Class A Certificateholders' Interest.............................S-33
Class A Certificates.............................................S-17
Class A Fixed/Floating Allocation Percentage.....................S-34
Class A Floating Allocation Percentage...........................S-33
Class A Invested Amount..........................................S-34
Class A Investor Charge-Off......................................S-47
Class A Investor Default Amount..................................S-46
Class A Monthly Interest.........................................S-39
Class A Monthly Principal........................................S-43
Class A Monthly Servicing Fee....................................S-51
Class A Required Amount..........................................S-36
Class A Scheduled Payment Date...................................S-25
Class B Account Percentage.......................................S-40
Class B Adjusted Invested Amount.................................S-35
Class B Available Funds..........................................S-40
Class B Certificate Rate.........................................S-29
Class B Certificateholders.......................................S-17
Class B Certificateholders' Interest.............................S-33
Class B Certificates.............................................S-17
Class B Fixed/Floating Allocation Percentage.....................S-34
Class B Floating Allocation Percentage...........................S-33
Class B Invested Amount..........................................S-34
Class B Investor Charge-Off......................................S-47
Class B Investor Default Amount..................................S-46
Class B Monthly Interest.........................................S-39
Class B Monthly Principal........................................S-44
Class B Monthly Servicing Fee....................................S-51
Class B Principal Commencement Date..............................S-32
Class B Required Amount..........................................S-36
Class B Scheduled Payment Date...................................S-25
Closing Date.....................................................S-29
Code.............................................................S-53
Companion Series.................................................S-49
Controlled Accumulation Amount...................................S-44
Controlled Deposit Amount........................................S-25
Covered Amount...................................................S-48
Cut-Off Date.....................................................S-21
Default Amount...................................................S-46
Distribution Date................................................S-29
DOL..............................................................S-52
employee benefit plans............................................S-7
ERISA............................................................S-52
ERISA Considerations..............................................S-7
Excess Collateral................................................S-17
Excess Collateral Account Percentage.............................S-40
Excess Collateral Adjusted Amount................................S-35
Excess Collateral Amount.........................................S-35
Excess Collateral Available Funds................................S-40
Excess Collateral Charge-Off.....................................S-47
Excess Collateral Default Amount.................................S-46
Excess Collateral Fixed/Floating Allocation
Percentage....................................................S-34
Excess Collateral Floating Allocation Percentage.................S-33
Excess Collateral Holders........................................S-17
Excess Collateral Holders' Interest..............................S-33
Excess Collateral Minimum Monthly Interest.......................S-42
Excess Collateral Minimum Rate...................................S-43
Excess Collateral Monthly Principal..............................S-44
Excess Collateral Monthly Servicing Fee..........................S-51
Excess Collateral Scheduled Payment Date.........................S-31
Excess Finance Charge Collections................................S-39
Excess Principal Collections.....................................S-32
Finance Charge Deficit...........................................S-37
First Commerce...................................................S-17
First USA........................................................S-17
Fixed/Floating Allocation Percentage.............................S-34
GE Capital.......................................................S-17
Global Securities..............................................A-II-1
Independent Investors............................................S-53
Interest Period..................................................S-29
Invested Amount..................................................S-35
Investor Default Amount..........................................S-46
Investor Interest................................................S-33
Investor Percentage..............................................S-33
Investor Servicing Fee...........................................S-51
LIBOR............................................................S-30
LIBOR Determination Date.........................................S-29
London business day..............................................S-29
loss percentage..................................................S-10
Monthly Period...................................................S-33
Offered Certificates.............................................S-17
Offered Series Supplement........................................S-17
Parties in Interest..............................................S-52
Pay Out Event....................................................S-49
payment rate.....................................................S-10
Percentage Allocation............................................S-37
Periodic Finance Charges.........................................S-18
plan..............................................................S-7
Plan Asset Regulation............................................S-52
plan assets.......................................................S-7
Pooling and Servicing Agreement..................................S-17
Portfolio Yield..................................................S-26
Predecessor Bank.................................................S-17
Principal Funding Account........................................S-47
Principal Funding Account Balance................................S-25
Principal Funding Investment Proceeds............................S-47
Principal Shortfalls.............................................S-32
publicly-offered securities.......................................S-7
Rapid Amortization Period........................................S-31
Rating Agency Condition..........................................S-17
Reallocated Class B Principal Collections........................S-45
Reallocated Excess Collateral Principal Collections..............S-45
Reallocated Principal Collections................................S-46
Receivables......................................................S-17
Record Date......................................................S-28
Reference Banks..................................................S-30
Removed Accounts.................................................S-21
Required Reserve Account Amount..................................S-48
Reserve Account..................................................S-48
Reserve Account Funding Date.....................................S-48
Revolving Period.................................................S-30
Scheduled Payment Date...........................................S-25
Servicer.........................................................S-17
Servicing Fee Percentage.........................................S-51
Stated Series Termination Date...................................S-25
Subordinate Principal Collections................................S-37
Telerate Page 3750...............................................S-30
Transfer and Administration Agreement............................S-42
Transferor.......................................................S-17
Transferor Percentage............................................S-35
Trust Portfolio..................................................S-21
Trustee..........................................................S-17
U.S. Person....................................................A-II-4
Underwriters.....................................................S-54
Underwriting Agreement...........................................S-54
yield percentage..................................................S-9
PRINCIPAL OFFICE OF
FIRST USA BANK, N.A.
201 North Walnut Street
Wilmington, Delaware 19801
TRUSTEE
The Bank of New York (Delaware)
White Clay Center
Route 273
Newark, Delaware 19711
PAYING AGENTS
The Bank of New York Banque de Luxembourg
101 Barclay Street, Floor 12E 14 Boulevard Royal
New York, New York 10286 2449 Luxembourg
Grand-Duche de Luxembourg
LISTING AGENT
Banque de Luxembourg
14 Boulevard Royal
2449 Luxembourg
Grand-Duche de Luxembourg
LEGAL ADVISOR TO THE BANK AND THE UNDERWRITERS
AS TO UNITED STATES LAW
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
INDEPENDENT ACCOUNTANTS TO THE BANK
Arthur Andersen, LLP
33 West Monroe Street
Chicago, Illinois 60603
$--------------
FIRST USA CREDIT
CARD MASTER TRUST
$--------------
CLASS A FLOATING RATE
ASSET BACKED CERTIFICATES,
SERIES 1999-__
$--------------
CLASS B FLOATING RATE
ASSET BACKED CERTIFICATES,
SERIES 1999-__
FIRST USA BANK, N.A.
TRANSFEROR AND SERVICER
PROSPECTUS SUPPLEMENT
----------, -----
UNDERWRITERS OF THE CLASS A CERTIFICATES
[NAME OF UNDERWRITERS]
UNDERWRITER OF THE CLASS B CERTIFICATES
[NAME OF UNDERWRITER]
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS SUPPLEMENT AND
THE ATTACHED PROSPECTUS. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE
YOU WITH DIFFERENT INFORMATION.
WE ARE NOT OFFERING THE CERTIFICATES IN ANY STATE
WHERE THE OFFER IS NOT PERMITTED.
WE DO NOT CLAIM THE ACCURACY OF THE INFORMATION IN THIS PROSPECTUS
SUPPLEMENT AND THE PROSPECTUS AS OF ANY DATE
OTHER THAN THE DATES STATED ON THEIR RESPECTIVE COVERS.
DEALERS WILL DELIVER A PROSPECTUS SUPPLEMENT AND PROSPECTUS WHEN
ACTING AS UNDERWRITERS OF THE CERTIFICATES AND WITH
RESPECT TO THEIR UNSOLD ALLOTMENTS OR SUBSCRIPTIONS. IN ADDITION,
ALL DEALERS SELLING THE CERTIFICATES WILL DELIVER A
PROSPECTUS SUPPLEMENT AND PROSPECTUS UNTIL _________, _____.
A certificate is not a deposit and neither the certificates nor the
underlying accounts or receivables are insured or guaranteed by the Federal
Deposit Insurance Corporation or any other governmental agency.
The certificates will represent interests in the trust only and will not
represent interests in or obligations of First USA Bank, N.A., the servicer
or any of their affiliates.
This prospectus may be used to offer and sell any series of certificates
only if accompanied by the prospectus supplement for that series.
The information in this prospectus is not complete and may be changed. We
can not sell these securities until the registration statement filed with
the Securities and Exchange Commission is effective. This prospectus is not
an offer to sell these securities and it is not soliciting an offer to buy
these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED SEPTEMBER 23, 1999
PROSPECTUS
FIRST USA CREDIT CARD MASTER TRUST
Issuer
FIRST USA BANK, N.A.
Transferor and Servicer
ASSET BACKED CERTIFICATES
THE TRUST--
o may periodically issue asset backed certificates in one or more
series with one or more classes; and
o will own--
o receivables in a portfolio of consumer revolving credit card
accounts;
o payments due on those receivables; and
o other property described in this prospectus and in the prospectus
supplement.
THE CERTIFICATES--
o will represent interests in a trust and will be paid only from
the assets of the trust;
o offered by this prospectus will be rated in one of the four
highest rating categories by at least one
nationally recognized rating organization;
o may have one or more forms of enhancement; and
o will be issued as part of a designated series which may include
one or more classes of certificates and enhancement.
THE CERTIFICATEHOLDERS--
o will receive interest and principal payments from a varying
percentage of credit card account collections.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES OR DETERMINED
WHETHER THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
---------, ------
TABLE OF CONTENTS
IMPORTANT NOTICE ABOUT INFORMATION PRESENTED IN
THIS PROSPECTUS AND THE PROSPECTUS
SUPPLEMENT.............................................................3
THE TRUST....................................................................5
FIRST USA'S CREDIT CARD ACTIVITIES...........................................5
General................................................................5
Description of FDR.....................................................8
Billing and Payments...................................................8
Delinquencies and Charge-Offs..........................................9
Interchange............................................................9
Recoveries.............................................................9
THE RECEIVABLES.............................................................10
MATURITY ASSUMPTIONS........................................................11
USE OF PROCEEDS.............................................................12
FIRST USA AND BANK ONE CORPORATION..........................................12
Year 2000 Readiness Disclosure........................................13
DESCRIPTION OF THE CERTIFICATES.............................................13
General...............................................................14
Book-Entry Registration...............................................15
Definitive Certificates...............................................18
Interest Payments.....................................................19
Principal Payments....................................................19
Revolving Period......................................................20
Controlled Amortization Period........................................20
Accumulation Period...................................................20
Rapid Amortization Period.............................................21
Shared Excess Finance Charge
Collections.....................................................21
Shared Collections of Principal
Receivables.....................................................21
Companion Series......................................................21
Transfer and Assignment of Receivables................................21
Exchanges.............................................................22
Representations and Warranties........................................23
Addition of Accounts..................................................25
Removal of Accounts...................................................25
Collection and Other Servicing
Procedures......................................................26
Trust Accounts........................................................26
Discount Receivables..................................................26
Investor Percentage and Transferor
Percentage......................................................27
Application of Collections............................................27
Funding Period........................................................28
Defaulted Receivables; Rebates and
Fraudulent Charges..............................................28
Investor Charge-Offs..................................................29
Defeasance............................................................29
Final Payment of Principal;
Termination.....................................................29
Pay Out Events........................................................30
Certain Matters Regarding the Transferor
and the Servicer................................................30
Servicer Default......................................................32
Reports to Certificateholders.........................................32
Reports; Notices......................................................33
Evidence as to Compliance.............................................33
Amendments............................................................34
List of Certificateholders............................................34
The Trustee...........................................................34
ENHANCEMENT.................................................................35
General...............................................................35
Subordination.........................................................35
Letter of Credit......................................................35
Cash Collateral Guaranty or Account...................................36
Collateral Invested Amount............................................36
Surety Bond or Insurance Policy.......................................36
Spread Account........................................................37
Reserve Account.......................................................37
CERTIFICATE RATINGS.........................................................37
CERTAIN LEGAL ASPECTS OF THE RECEIVABLES....................................38
Transfer of Receivables...............................................38
Certain Matters Relating to
Receivership....................................................38
Consumer Protection Laws..............................................39
Industry Litigation...................................................40
Other Litigation......................................................40
CERTAIN U.S. FEDERAL INCOME TAX CONSEQUENCES................................41
General...............................................................41
Characterization of the Certificates as
Indebtedness....................................................41
Proposed Legislation..................................................42
Taxation of Interest Income of
Certificateholders..............................................42
Sale or Other Disposition of a
Certificate.....................................................43
Tax Characterization of the Trust.....................................43
FASIT Legislation.....................................................44
Foreign Investors.....................................................45
State and Local Taxation..............................................46
ERISA CONSIDERATIONS........................................................46
PLAN OF DISTRIBUTION........................................................49
LEGAL MATTERS...............................................................49
REPORTS TO CERTIFICATEHOLDERS...............................................50
WHERE YOU CAN FIND MORE INFORMATION.........................................50
INDEX OF TERMS FOR PROSPECTUS...............................................51
IMPORTANT NOTICE ABOUT INFORMATION PRESENTED IN THIS
PROSPECTUS AND THE PROSPECTUS SUPPLEMENT
We provide information to you about the certificates in two separate
documents that progressively provide more detail: (a) this prospectus,
which provides general information, some of which may not apply to a
particular series of certificates, including your series, and (b) the
prospectus supplement, which will describe the specific terms of your
series of certificates, including:
o the timing and amount of interest and principal payments;
o information about the receivables;
o information about credit enhancement for each offered class;
o credit ratings; and
o the method for selling the certificates.
WHENEVER INFORMATION IN THE PROSPECTUS SUPPLEMENT IS MORE SPECIFIC
THAN THE INFORMATION IN THIS PROSPECTUS, YOU SHOULD RELY ON THE INFORMATION
IN THE PROSPECTUS SUPPLEMENT.
You should rely only on the information provided in this prospectus
and the prospectus supplement, including the information incorporated by
reference. We have not authorized anyone to provide you with different
information.
We include cross-references in this prospectus and in the prospectus
supplement to captions in these materials where you can find further
related discussions. The preceding table of contents and the table of
contents included in the prospectus supplement provide the pages on which
these captions are located.
You can find a listing of the pages where capitalized terms are
defined under the caption "Index of Terms for Prospectus" beginning on page
50 in this prospectus.
THE TRUST
The First USA Credit Card Master Trust (the "TRUST") was formed, in
accordance with the laws of the State of Delaware, pursuant to the Pooling
and Servicing Agreement dated as of September 1, 1992, as amended and
supplemented (the "POOLING AND SERVICING AGREEMENT"). The Trust was formed
for the transaction relating to the issuance of the Series 1992-1
Certificates, this transaction and similar transactions, as contemplated by
the Pooling and Servicing Agreement, and prior to formation had no assets
or obligations. The Trust will not engage in any business activity, other
than as described herein and in the related supplement to this Prospectus
(the "PROSPECTUS SUPPLEMENT"), but rather will only acquire and hold the
Receivables, issue (or cause to be issued) certificates representing
undivided interests in the Trust (the "Certificates"), the Exchangeable
Transferor Certificate and certificates representing additional Series or
Classes of Series and related activities (including, with respect to any
Series or Class of such Series, entering into any Enhancement agreement)
and make payments thereon. As a consequence, the Trust is not expected to
have any need for additional capital resources.
FIRST USA'S CREDIT CARD ACTIVITIES
GENERAL
The Receivables which First USA Bank, N.A. (the "BANK") has conveyed
and will convey to the Trust pursuant to the Pooling and Servicing
Agreement have been and will be generated from transactions made by holders
of selected VISA(R) and MasterCard(R) credit card accounts. The Bank
currently services the credit card accounts (the "TRUST PORTFOLIO").
Certain data processing and administrative functions associated with such
servicing are performed on behalf of the Bank by First Data Resources, Inc.
("FDR"). See "--Description of FDR."
The following discussion describes certain terms and characteristics
that generally apply to the accounts in the Bank Portfolio from which the
Accounts in the Trust Portfolio were selected. The Eligible Accounts from
which the Accounts were selected do not represent the entire Bank
Portfolio. In addition, Additional Accounts consist of Eligible Accounts
which may or may not currently be in existence and which may be selected
using different criteria from those used in selecting the Accounts already
included in the Trust Portfolio. See "Description of the
Certificates--Addition of Accounts." Consequently, actual loss and
delinquency, revenue and monthly payment rate experience with respect to
the Eligible Accounts and the Additional Accounts may be different from
such experience for the Trust Portfolio described in the related Prospectus
Supplement.
Growth Strategy and Origination. To achieve steady and diversified
growth, the Bank originates credit card accounts through several different
programs: (i) First USA brand products, (ii) partnership products such as
affinity group, financial institutions, sports marketing and co-branding
programs, and (iii) the acquisition of credit card portfolios from other
financial institutions. These programs (excluding portfolio acquisitions)
emphasize segmentation and use direct mail, telemarketing, take-one
application displays, events, media and the Internet as channels to market
the Bank's products. The Bank has also originated credit card accounts
through mailings to BANK ONE customers and prospects. Management believes
that such multi-faceted account origination programs help to ensure
balanced and reliable growth for the Bank.
- ---------------------
1 VISA(R) and MasterCard(R) are registered trademarks of VISA USA
Incorporated and MasterCard International Incorporated, respectively.
The First USA brand direct solicitation program represents the
greatest share of new account origination. The Bank has historically
emphasized direct solicitation as a source of new accounts as its expertise
has increased through experience and the benefit of numerous marketing,
credit and risk management tests. Currently, the Bank conducts national
direct mail and telemarketing solicitation to geographic areas that have
been selected from a process that includes a rigorous analysis of the
economic indicators of each region of the nation and targets the most
favorable regions. The Bank carefully targets consumers through various
data mining methods and targeting models. The Bank aligns the product
offering with the target customer segment along with the number and
sequence of offers in order to maximize penetration, response rates and
usage.
The affinity groups, financial institutions and sports marketing
programs are partnership programs which involve the active participation of
endorsing organizations. The affinity group marketing program involves the
solicitation of prospective individual cardmembers from identifiable groups
with a common interest or affiliation. In this program, the Bank has
entered into exclusive marketing arrangements with a number of affinity
groups. The Bank typically pays referral compensation to the affinity
groups for each new account generated. The Bank has a similar relationship
with certain professional sports organizations.
In its financial institutions program, the Bank maintains exclusive
marketing partnership relationships with banks, as well as mortgage
companies, insurance companies, brokerage firms and other financial
institutions. Through this program, participating financial institutions
offer VISA and MasterCard products to their customers without becoming
primary issuers. In addition to placing the name of the participating
financial institution on the front of the plastic card, the Bank typically
pays a referral fee for each account. The Bank believes that the
endorsement of the participating financial institution reduces overall
origination costs and encourages cardmember usage.
The Bank also participates in co-branding, which involves a
partnership between the Bank and a consumer products or services company to
solicit the customers of such company. Companies such as airlines, computer
on-line services, catalog companies and general retailers participate with
financial institutions in co-branding programs. The Bank typically pays a
portion of on-going revenue to the co-branding partner, with the benefit of
such payment generally accruing to the customer in the form of "points"
which can then be redeemed with the co-branding partner.
The Bank currently has relationships with over 1,500 partners in
these various programs. Management believes this network is one of the
largest of its kind in the nation.
Underwriting Procedures. Generally, the credit risk of each applicant
is evaluated by application of a credit scoring system, which is intended
to provide a general indication, based on the information available, of the
applicant's willingness and ability to repay his or her obligations. Most
applications are scored based on the information received on the
application as well as data obtained from an independent credit reporting
agency. In select cases, based on certain criteria, including likelihood of
fraud, and in accordance with criteria established by Bank management,
employment and earnings are verified by telephone. Credit limits are
determined based on income and score or, in the case of applications that
have not been scored, based on income and certain information obtained from
the application and the independent credit reporting agency. Cardholder
requests for increased credit limits are evaluated based on a current
credit bureau report, updated application data, and prior account
performance. In addition, credit limit increases are effected periodically
by the Bank for all cardholders meeting specific criteria.
For preapproved solicitations, the Bank generally purchases prospect
names that meet established credit criteria from credit bureaus. These
lists are further edited and matched against internal and external sources
to insure optimal quality and accuracy. The Bank then mails preapproved
solicitation packages requiring only the signature and a brief amount of
information from the prospect. Preapproved solicitations are targeted to
high quality prospects and exhibit similar credit quality results as
compared to non-preapproved solicitations.
For non-preapproved solicitations, the Bank purchases prospect names
from a variety of sources and then edits the list utilizing internal and
external sources to insure quality and accuracy. The prospective customers
on the final list are mailed solicitations which include full applications.
Respondents are approved or declined based on both the demographic
characteristics drawn from the application and a credit bureau check.
Portfolio Acquisitions and Mergers. In connection with the merger of
the Bank's predecessor, also named First USA Bank, National Association
(referred to in this document for the period prior to the merger as the
"PREDECESSOR BANK") and FCC National Bank, the credit card portfolios of
the Predecessor Bank and FCC National Bank were consolidated, thereby
increasing the size of the Predecessor Bank's portfolio by approximately
[$17 billion]. Prior to this merger, on July 1, 1998, BANC ONE CORPORATION
("BANC ONE") consolidated substantially all of its consumer credit card
operations in the Predecessor Bank. The Predecessor Bank has since added
receivables in accounts originated by the Predecessor Bank, Bank One, N.A.,
Bank One Arizona, NA and other affiliates of the Predecessor Bank to the
Trust. On September 30, 1998, the Predecessor Bank purchased the credit
card portfolio of Chevy Chase Bank F.S.B. ("CHEVY CHASE"). On November 16,
1998, the Predecessor Bank acquired accounts formerly owned by First
National Bank of Commerce ("FIRST COMMERCE") as a result of a merger
between First Commerce and Bank One, Louisiana, N.A. and the transfer by
Bank One, Louisiana, N.A. to the Predecessor Bank of substantially all of
such accounts. On December 24, 1998, the Predecessor Bank purchased a
portfolio of VISA and MasterCard credit card loans from General Electric
Capital Corporation ("GE CAPITAL"). The portfolio includes approximately
$2.2 billion in managed credit card loans. The Predecessor Bank has added
receivables from the accounts acquired from GE Capital to the Trust. The
Predecessor Bank had not added and the Bank has not added to the Trust
receivables in any of the accounts acquired from Chevy Chase or First
Commerce. A substantial portion of these portfolios (other than the GE
Capital portfolio) is currently subject to securitization through other
credit card master trusts. The Bank may, from time to time, add to the
Trust additional Receivables arising in accounts originated by affiliates
of the Bank or purchased by the Bank or the Predecessor Bank. Each such
addition of receivables in accounts originated by the bank and affiliates
of the Bank or purchased by the Bank to the trust is subject to certain
restrictions on addition of Accounts in the Pooling and Servicing
Agreement, including satisfaction of the Rating Agency Condition with
respect to such addition. "RATING AGENCY CONDITION" with respect to any
proposed action means the condition that each Rating Agency then rating any
Series of Certificates outstanding confirms in writing that such action
would not result in any downgrading or withdrawal of such Rating Agency's
rating of any Series of Certificates then outstanding. See "Description of
the Certificates-Addition of Accounts" herein. Prior to acquiring a
portfolio, the Bank reviews the historical performance and seasoning of the
portfolio and the policies and practices of the selling institution, but
individual accounts are not requalified by the Bank. There can be no
assurance that Accounts so acquired were originated in a manner consistent
with the Bank's policies as described under "--Growth Strategy and
Origination" and "-- Underwriting Procedures" above or that the
underwriting and qualification of such Accounts conformed to any given
standards. The Accounts include accounts previously acquired by the Bank.
Such accounts and any accounts acquired in the future may become Additional
Accounts provided that, at such time, they constitute Eligible Accounts.
See "The Receivables," "Description of the Certificates--Transfer and
Assignment of Receivables" and "-- Representations and Warranties."
DESCRIPTION OF FDR
With respect to the Accounts, certain data processing and
administrative functions associated with servicing the Receivables will
initially be performed by FDR. If FDR were to fail or become insolvent,
delays in processing and recovery of information with respect to charges
incurred by the respective cardholders could occur, and the replacement of
the services FDR currently provides to the Bank could be time-consuming. As
a result, delays in payments to Certificateholders could occur.
FDR is located in Omaha, Nebraska and provides computer data
processing services primarily to the bankcard industry. FDR is a subsidiary
of First Data Corp.
The Bank utilizes a variety of the services provided by FDR in
originating and servicing the Bank's VISA and MasterCard accounts,
including provision of network interface to other card processors through
VISA USA Incorporated and MasterCard International Incorporated. This
network provides cardholder authorizations in addition to a conduit for
funds transfer and settlement.
BILLING AND PAYMENTS
Cardholder Agreement. Each cardholder is subject to an agreement with
the Bank governing the terms and conditions of the related VISA or
MasterCard account. Pursuant to each such agreement, the Bank generally
reserves the right, upon advance notice to the cardholder, to add or to
change any terms, conditions, services or features of its VISA or
MasterCard accounts at any time, including increasing or decreasing
periodic finance charges, other charges or minimum payment terms. The
agreement with each cardholder provides that, subject to the requirements
of applicable law, after notice to a cardholder of any such new or changed
terms, such new or changed terms will become effective at the time stated
in such notice and will apply to all outstanding unpaid indebtedness as
well as new transactions.
A cardholder may use the credit card to purchase or lease goods or
services wherever the card is honored ("PURCHASES") or to obtain cash loans
("CASH ADVANCES") from any financial institution that accepts the card.
Purchases and Cash Advances may also be obtained through the use of
"Convenience Checks" issued by the Bank which may be completed and signed
by the cardholder in the same way as a regular personal check.
Billing, Payments and Fees. A billing statement is sent to each
cardholder at the end of each monthly billing cycle in which the account
has a debit or credit balance of more than one dollar or if a finance
charge has been imposed. The Bank may assess a late payment fee if it does
not receive the minimum payment by the payment due date shown on the
monthly billing statement. The Bank may assess a return check fee for each
payment check that is dishonored or that is unsigned or otherwise
irregular, an overlimit fee for Purchases or Cash Advances that cause the
credit line to be exceeded and administrative fees for certain functions
performed at the request of the cardholder. Unless otherwise arranged
between the Bank and the cardholder, any late payment fee, return check fee
or administrative fee is added to the account and treated as a Purchase. In
some cases, the Bank charges a nonrefundable Annual Membership Fee.
Periodic Finance Charges are not assessed in most circumstances on
Purchases if the entire balance shown on the previous billing statement was
paid in full by the payment due date. New Purchases and Cash Advances are
included in the calculation of the balance subject to finance charge as of
the later of the day that they are made and the first day of the billing
cycle during which they were posted to the account; or, if a Convenience
Check is used, the transaction date of the check. Aggregate monthly finance
charges for each account consist of the sum of the Cash Advance finance
charge (not applicable for certain accounts) for each new Cash Advance
posted to the account, transaction finance charge (not applicable for
certain accounts) plus the Periodic Finance Charge. The Bank issues
accounts with fixed periodic rates and accounts with floating periodic
rates that adjust periodically according to an index.
The foregoing provisions apply with respect to cardholders that have
entered into one of the Bank's standard agreements by, in the case of a new
account, signature, recorded verbal confirmation of disclosure information
or, in the case of an account acquired by the Bank from another
institution, acceptance of the terms of the Bank's agreement in writing or
by using the credit card after disclosure that the account will be governed
by such terms. If the cardholder of an account acquired by the Bank from
another institution has not entered into one of the Bank's standard
agreements, the terms of the account may continue to be governed by the
agreement between the cardholder and the seller of the account, which may
differ in material respects from the provisions described above.
DELINQUENCIES AND CHARGE-OFFS
The Bank considers any account contractually delinquent if the
minimum payment due thereunder is not received by the Bank by the date of
the statement following the statement on which the amount is first stated
to be due. An account is not treated as delinquent by the Bank if the
minimum payment is received by the next billing date. The Bank classifies
an account as "over limit" if its posted balance exceeds its credit limit.
Efforts to collect delinquent credit card receivables currently are
made by the Bank's collection department personnel with regional collection
units located in Wilmington, Delaware, Orlando, Florida, Columbus, Ohio,
Austin, Texas and Frederick, Maryland. Collection activities include
statement messages, telephone calls and formal collection letters.
Collectors generally initiate telephone contact with cardholders whose
accounts have become 5 days or more delinquent. In the event that initial
telephone contact fails to resolve the delinquency, the Bank continues to
contact the cardholder by telephone and by mail. The Bank may also enter
into arrangements with cardholders to extend or otherwise change payment
schedules as approved by one of the Bank's collection managers. Delinquency
levels are monitored daily by the respective collectors and aggregate
delinquency information is reported daily to senior management.
The Bank generally charges off an account immediately prior to the
end of the sixth billing cycle after having become contractually past due
unless a payment has been received in an amount sufficient to bring the
account into a different delinquency category or to bring the account
current. Charge-offs may occur earlier in some circumstances, as in the
case of bankrupt cardholders. At the time of charge-off, an evaluation is
made on a case by case basis whether to pursue further remedies. In most
cases outside collection agencies and, in some cases, outside attorneys,
are engaged. In some cases charged off accounts are sold to outside
collection agencies. The credit evaluation, servicing and charge-off
policies and collection practices of the Bank may change from time to time
in accordance with the Bank's business judgment and applicable law.
The Bank has a policy of restoring or "reaging" a delinquent account
to current status when the cardholder has made two consecutive payments
and, in the collector's judgment, has the ability to keep the account
current. A collector may recommend that an account be reaged in other
circumstances. All reaging must be approved by a supervisor and an account
may be reaged no more than once per year.
The Federal Financial Institutions Examination Council has adopted a
revised policy statement on the classification of retail credit. The
revised policy statement provides guidance for loans affected by
bankruptcy, fraudulent activity, and death; establishes standards for
reaging, extending, deferring, or rewriting of past due accounts; and
broadens the circumstances under which partial payments are recognized as
full payments for purposes of determining that a loan is no longer
delinquent.
INTERCHANGE
Creditors participating in the VISA and MasterCard associations
receive certain fees ("INTERCHANGE") as partial compensation for taking
credit risk, absorbing fraud losses and funding receivables for a limited
period prior to initial billing. Under the VISA and MasterCard systems, a
portion of Interchange in connection with cardholder charges for goods and
services is collected by banks that issue credit cards by applying a
discount to the amount paid by such banks to the banks that clear the
related transactions for merchants. Interchange will be allocated to the
Trust, by treating 1.3% (subject to adjustment at the option of the
Transferor upon the satisfaction of certain conditions as described herein
in "Description of the Certificates--Discount Receivables," which adjusted
percentage, if applicable will be specified in the applicable Prospectus
Supplement) of collections on the Receivables (whether arising from
Purchases or Cash Advances), other than collections with respect to
Periodic Finance Charges, Annual Membership Fees and Other Charges, as
collections of Discount Receivables.
RECOVERIES
The Transferor and the Servicer will be required, pursuant to the
terms of the Pooling and Servicing Agreement, to transfer to the Trust all
amounts received by the Transferor or the Servicer with respect to
Receivables in Defaulted Accounts, including amounts received by the
Transferor or the Servicer from the purchaser or transferee with respect to
the sale or other disposition of Receivables in Defaulted Accounts
("RECOVERIES"). In the event of any such sale or other disposition of
Receivables, Recoveries will not include amounts received by the purchaser
or transferee of such Receivables but will be limited to amounts received
by the Transferor or the Servicer from the purchaser or transferee.
Collections of Recoveries will be treated as collections of Principal
Receivables; provided, however, that to the extent the aggregate amount of
Recoveries received with respect to any Monthly Period exceeds the
aggregate amount of Principal Receivables (other than Ineligible
Receivables) in Defaulted Accounts on the day such Account became a
Defaulted Account for each day in such Monthly Period, the amount of such
excess will be treated as collections of Finance Charge Receivables.
THE RECEIVABLES
The property of the Trust includes and will include receivables (the
"RECEIVABLES") arising under certain VISA and MasterCard revolving credit
card accounts (the "ACCOUNTS") selected from the portfolio of VISA and
MasterCard accounts owned by the Transferor (the "BANK PORTFOLIO"), all
monies due or to become due in payment of the Receivables, all proceeds of
the Receivables and all monies on deposit in certain bank accounts of the
Trust (other than certain investment earnings on such amounts), Recoveries
and any Enhancement issued with respect to any Series or Class, as
described in the related Prospectus Supplement. The term "ENHANCEMENT"
means, with respect to any Series or Class thereof, any letter of credit,
cash collateral account or guaranty, collateral invested amount, guaranteed
rate agreement, maturity guaranty facility, tax protection agreement,
interest rate swap or other contract or agreement for the benefit of
Certificateholders of such Series. Enhancement may also take the form of
subordination of one or more Classes of a Series to any other Class or
Classes of a Series or a cross-support feature which requires collections
on Receivables of one Series to be paid as principal and/or interest with
respect to another Series. The Receivables included in the Trust may
consist of Accounts originated and owned by the Transferor and/or Accounts
otherwise acquired by the Transferor, as specified in the related
Prospectus Supplement.
The Predecessor Bank, as Transferor originally conveyed to the
Trustee all Receivables existing under certain Accounts that were selected
from the Bank Portfolio based on criteria provided in the Pooling and
Servicing Agreement as applied on August 21, 1992 (the "ORIGINAL CUT-OFF
DATE"), and on certain additional cut off dates with respect to additional
eligible revolving credit card accounts to be included as Accounts (the
"ADDITIONAL ACCOUNTS") and has conveyed and the Bank will convey all
Receivables arising under such Accounts from time to time thereafter until
termination of the Trust. See "Description of the Certificates--Addition of
Accounts."
The Receivables conveyed to the Trust have arisen and will arise in
Accounts selected from the Bank Portfolio on the basis of criteria set
forth in the Pooling and Servicing Agreement. The Transferor will have the
right (subject to certain limitations and conditions set forth in the
Pooling and Servicing Agreement) to designate from time to time Additional
Accounts and to transfer to the Trust all Receivables of such Additional
Accounts, whether such Receivables are then existing or thereafter created.
Any Additional Accounts designated pursuant to the Pooling and Servicing
Agreement must be Eligible Accounts as of the date the Transferor
designates such accounts as Additional Accounts. In addition, the
Transferor is required to designate Additional Accounts (x) to maintain the
Transferor Interest so that, during any period of 30 consecutive days, the
Transferor Interest averaged over that period and expressed as a percentage
of the aggregate amount of Principal Receivables equals or exceeds such
percentage as may be specified in any Series Supplement (such percentage,
the "MINIMUM TRANSFEROR INTEREST") of the average of the aggregate amount
of Principal Receivables for the same period, or (y) to maintain, for so
long as certificates of any Series (including the Certificates) remain
outstanding, an aggregate amount of Principal Receivables in amount equal
to or greater than the Minimum Aggregate Principal Receivables. "MINIMUM
AGGREGATE PRINCIPAL RECEIVABLES" shall mean an amount equal to (i) the sum
of the initial invested amounts for all Series then outstanding other than
any Series of variable funding certificates, (ii) with respect to any
Series of variable funding certificates in its revolving period, the then
current invested amount of such Series and (iii) with respect to any Series
of variable funding certificates in its amortization period, the invested
amount of such Series at the end of the last day of the Revolving Period
for such Series. The Transferor will convey the Receivables then existing
or thereafter created under such Additional Accounts to the Trust.
Throughout the term of the Trust, the Accounts from which the Receivables
arise will be the Accounts designated by the Transferor on the Original
Cut-Off Date plus any Additional Accounts minus any Removed Accounts. See
"Description of the Certificates-- Representations and Warranties."
The Receivables consist of amounts charged by cardholders for goods
and services and cash advances (such amounts, less the amount of Discount
Receivables, the "PRINCIPAL RECEIVABLES"), plus the related periodic
finance charges (the "PERIODIC FINANCE CHARGES"), annual membership fees
(the "ANNUAL MEMBERSHIP FEES"), and amounts charged to the Accounts in
respect of cash advance finance charges, late fees, overlimit fees, return
check fees and similar fees and charges (the "OTHER CHARGES"). Receivables
in an amount equal to the product of the Yield Factor (initially 1.3%) and
amounts charged by cardholders for goods and services and cash advances
(the "DISCOUNT RECEIVABLES") will be treated as Finance Charge Receivables
(Discount Receivables, together with the Periodic Finance Charges, Annual
Membership Fees and Other Charges, the "FINANCE CHARGE RECEIVABLES"). See
"Description of the Certificates--Discount Receivables." The Finance Charge
Receivables will not affect the amount of the Invested Amount represented
by the Certificates or the amount of the Transferor Interest, which are
determined on the basis of the amount of Principal Receivables in the
Trust.
During the term of the Trust, all new Receivables arising in the
Accounts will be transferred automatically to the Trust by the Transferor.
The total amount of Receivables in the Trust will fluctuate from day to day
because the amount of new Receivables arising in the Accounts and the
amount of payments collected on existing Receivables usually differ each
day. Because the Transferor Interest represents the interest in the
Principal Receivables in the Trust not represented by the Certificates or
any other Series of Certificates, the amount of the Transferor Interest
will fluctuate from day to day as Receivables are collected and new
Receivables are transferred to the Trust.
The aggregate undivided interest in the Principal Receivables in the
Trust evidenced by the Certificates will never exceed the aggregate
Invested Amount regardless of the total amount of Principal Receivables in
the Trust at any time.
The Prospectus Supplement relating to each Series of Certificates
will provide certain information about the Receivables in the Accounts
selected from the Bank Portfolio included in the Trust on the basis of
criteria set forth in the Pooling and Servicing Agreement (the "TRUST
PORTFOLIO") as of the date specified. Such information will include, but
not be limited to, the amount of Principal Receivables, the amount of
Finance Charge Receivables, the range of principal balances of the Accounts
and the average thereof, the range of credit limits of the Accounts and the
average thereof, the range of ages of the Accounts and the average thereof,
the geographic distribution of the Accounts, the types of Accounts and
delinquency and loss statistics relating to the Accounts.
MATURITY ASSUMPTIONS
Unless otherwise specified in the related Prospectus Supplement, for
each Series, following the Revolving Period, collections of Principal
Receivables are expected to be distributed to the holders of each class of
Certificates (the "CERTIFICATEHOLDERS") of such Series or any specified
class of Certificates (each, a "CLASS") thereof on each specified
Distribution Date during the Controlled Amortization Period or are expected
to be accumulated for payment to Certificateholders of such Series or any
specified Class thereof during the Accumulation Period and distributed on a
Scheduled Payment Date; provided, however, that, if the Rapid Amortization
Period commences, collections of Principal Receivables will be paid to
Certificateholders in the manner described herein and in the related
Prospectus Supplement. The related Prospectus Supplement will specify the
date on which the Controlled Amortization Period or the Accumulation
Period, as applicable, will commence, or how such date will be determined,
the principal payments expected or available to be received or accumulated
during such Controlled Amortization Period or Accumulation Period, or on
the Scheduled Payment Date, as applicable, the manner and priority of
principal accumulations and payments among the Classes of a Series of
Certificates and the Pay Out Events which, if any were to occur, would lead
to the commencement of the Rapid Amortization Period.
No assurance can be given, however, that collections of Principal
Receivables allocated to be paid to Certificateholders or the holders of
any specified Class thereof will be available for distribution or
accumulation for payment to Certificateholders on each Distribution Date
during the Controlled Amortization Period, or, with respect to the
Accumulation Period, on the Scheduled Payment Date, as applicable. In
addition, the Transferor can give no assurance that the payment rate
assumptions for any Series will prove to be correct. The related Prospectus
Supplement will provide certain historical data relating to payments by
cardholders, total charge-offs and other related information relating to
the Trust Portfolio. There can be no assurance that future events will be
consistent with such historical data.
The amount of collections of Receivables may vary from month to month
due to seasonal variations, general economic conditions and payment habits
of individual cardholders and number of collection days. There can be no
assurance that collections of Principal Receivables with respect to the
Trust Portfolio, and thus the rate at which the related Certificateholders
could expect to receive or accumulate payments of principal on their
Certificates during the Controlled Amortization Period, Accumulation
Period, Rapid Amortization Period or other type of amortization period
(each an "AMORTIZATION PERIOD") or on any Scheduled Payment Date, as
applicable, will be similar to any historical experience set forth in a
related Prospectus Supplement. If a Pay Out Event occurs, the average life
and maturity of such Series of Certificates could be significantly reduced.
In addition, there can be no assurance that the issuance of other Series of
Certificates or the terms of such other Series might not have an impact on
the timing of the payments received by Certificateholders.
The actual payment rate for any Series of Certificates may be slower
than the payment rate used to determine the amount of collections of
Principal Receivables scheduled or available to be distributed or
accumulated for later payment to Certificateholders or any specified Class
thereof during the Controlled Amortization Period or the Accumulation
Period or on the Scheduled Payment Date, as applicable, or a Pay Out Event
may occur which would initiate the Rapid Amortization Period. There can be
no assurance that the actual number of months elapsed from the date of
issuance of such Series of Certificates to the final Distribution Date with
respect to the Certificates will equal the expected number of months. In
addition if, after the issuance of a Series, a related Companion Series is
issued and a Rapid Amortization Period commences, payments to the Holders
of such Series may be delayed. See "Description of the
Certificates--Companion Series."
USE OF PROCEEDS
Unless otherwise specified in the related Prospectus Supplement, the
net proceeds from the sale of each Series of Certificates offered hereby
will be paid to the l Transferor. The Transferor will use such proceeds for
its general corporate purposes.
FIRST USA AND BANK ONE CORPORATION
First USA Bank, National Association. On September 17, 1999, the
Bank's predecessor, also named First USA Bank, National Association, a
direct wholly-owned subsidiary of BANK ONE CORPORATION ("BANK ONE") was
merged with and into FCC National Bank, an affiliated national banking
association and a direct wholly-owned subsidiary of BANK ONE, with FCC
National Bank as the surviving bank. The surviving bank was renamed "First
USA Bank, National Association" with its executive offices located at 201
North Walnut Street, Wilmington, Delaware 19801, telephone number (302)
594-4000.
The Bank is one of the nation's two largest issuers of VISA and
MasterCard credit cards in the United States. The Bank's revenues derive
primarily from interest income and fees on its credit card accounts and
interchange income. Its primary cash expenses include the cost of funding
credit card loans, credit losses, salaries and employee benefits, marketing
expenses, processing expenses and income taxes.
The Bank offers a broad array of bankcard products to targeted
segments of creditworthy consumers. The Bank's primary target market is
experienced users of general purpose credit products. The strategy of the
Bank is to offer uniquely tailored individualized products to profitable
consumer segments.
The Bank markets over 1,000 credit card products to customers
throughout the United States. These products cover a range which includes
standard card products, those that are identified and developed through
data mining efforts, as well as products that are developed and marketed
through partnership relationships. Products include designs that are
tailored to an individual's lifestyle, profession or interest; those that
are built around affiliations, such as universities or fraternal
organizations, co-brand relationships and programs with financial
institutions and an upscale platinum card product.
The Bank's products feature low interest rates, specific features and
benefits, unique card design and individualized credit lines. The Bank's
strategy is to target customers through a carefully matched combination of
pricing, credit analysis and packaging. Rates, fees, other features and
credit lines offered vary depending on the profile of targeted prospect
groups. The Bank generally markets its products with low introductory and
regular rates and no annual fee.
In line with its product diversity, the Bank has built and maintains
a broad set of distribution channels. The Bank is one of the leading direct
mailers and telemarketers in the industry and manages a large active sales
force to distribute its products via fairs, tradeshows and other events.
The Bank also markets its products through an array of Web sites and
utilizes other direct response media channels for distribution.
FCC National Bank, on June 24, 1999, launched WingspanBank.com, an
internet site offering consumers a wide range of financial products and
services brought together at one website, including traditional banking,
investment and planning services, and objective search tools.
BANK ONE CORPORATION. BANK ONE is a multi-bank holding company
organized in 1998 under the laws of the State of Delaware to effect the
merger, effective October 2, 1998, of First Chicago NBD Corporation with
BANC ONE CORPORATION.
Throughout its banking subsidiaries, BANK ONE provides domestic
retail banking, worldwide corporate and institutional banking and trust and
investment management services. BANK ONE operates banking offices in
Arizona, Colorado, Delaware, Florida, Illinois, Indiana, Kentucky,
Louisiana, Michigan, Ohio, Oklahoma, Texas, Utah, West Virginia and
Wisconsin. BANK ONE also owns nonbank subsidiaries that engage in
businesses related to banking and finance, including credit card and
merchant processing, consumer and education finance, mortgage lending and
servicing, insurance, venture capital, investment and merchant banking,
trust, brokerage, investment management, leasing, community development and
data processing.
Effective October 2, 1998, First Chicago NBD, a Delaware corporation,
merged with and into BANK ONE, the parent corporation of the Bank.
Immediately prior to such merger, BANC ONE CORPORATION, an Ohio corporation
("BANC ONE"), also merged with and into BANK ONE, which had been a
subsidiary, of BANC ONE prior to such merger. BANK ONE is a bank holding
company headquartered in Chicago, Illinois and registered under the Bank
Holding Company Act of 1956, as amended.
BANK ONE's executive offices are located at One First National Plaza,
Chicago, Illinois 60670, and its telephone number is (312)732-4000.
YEAR 2000 READINESS DISCLOSURE
BANK ONE, like most other companies, utilizes computer programs which
process transactions based on using two digits for the year of the
transaction rather than a full four digits. Programs processing Year 2000
transactions using only the last two digits "00" for the year may read the
date as 1900, not 2000. This can lead to significant processing
inaccuracies or render systems inoperable.
Solving the Year 2000 problem is a top priority for BANK ONE
CORPORATION. A focused comprehensive effort addresses every area of BANK
ONE to ensure products and services are able to accurately process dates
within and between the 20th and 21st centuries, including leap year
calculations. The Year 2000 issue is being addressed by either modifying,
retiring or replacing existing software applications and systems or
installing vendor upgrades.
A plan has been developed and is being followed to ensure that the
modifications, replacements and upgrades are implemented and thoroughly
tested on a timely basis. BANK ONE has met the regulatory guidelines for
June 30, 1999 that state testing of mission critical systems be complete
and that the implementation of mission critical systems be substantially
complete. Our applications, computers, systems software, telecommunications
systems, security devices, desktop PCs and servers, and office equipment
have undergone extensive testing and are largely Year 2000 ready. We will
continue to verify the readiness of computer applications, equipment and
contingency plans by testing them throughout the remainder of 1999. Other
areas of focus include the assessment of Year 2000 risk posed by our
customers and ensuring the availability of cash to meet customer demands.
Year 2000 readiness is highly dependent on external entities and is
not limited to operating risk. BANK ONE is working extensively with
external entities to ensure that their systems will be Year 2000 compliant;
however, BANK ONE bears risk and could be adversely affected if outside
parties, such as customers, vendors, utilities and government agencies, do
not appropriately address Year 2000 readiness issues.
DESCRIPTION OF THE CERTIFICATES
The Certificates will be issued in Series. Each Series will represent
an interest in the Trust other than the interests represented by any other
Series of Certificates issued by the Trust (which may include Series
offered pursuant to this Prospectus) and the Exchangeable Transferor
Certificate. Each Series will be issued pursuant to the Pooling and
Servicing Agreement entered into by the Bank and the Trustee and a series
supplement (a "SERIES SUPPLEMENT") to the Pooling and Servicing Agreement,
a copy of the form of which is filed as an exhibit to the Registration
Statement of which this Prospectus is a part. The Prospectus Supplement for
each Series will describe any provisions of the Pooling and Servicing
Agreement relating to such Series which may differ materially from the
Pooling and Servicing Agreement filed as an exhibit to the Registration
Statement. The following is a summary of the provisions common to each
Series of Certificates. The summary is qualified in its entirety by
reference to all of the provisions of the related Pooling and Servicing
Agreement and Series Supplement.
GENERAL
The assets of the Trust will be allocated among the
Certificateholders of each Series (the "INVESTOR INTEREST") of the Trust
and the holder of the Exchangeable Transferor Certificate and, in certain
circumstances, the related Enhancement Providers. The aggregate principal
amount of the interest of the Certificateholders of a Series in the Trust
is referred to herein as the "INVESTED AMOUNT" and is based on the
aggregate amount of the Principal Receivables in the Trust allocated to
such Series. The aggregate principal amount of the interest of the
Transferor in the Trust is referred to herein as the "TRANSFEROR INTEREST,"
and is based on the aggregate amount of Principal Receivables (the
"TRANSFEROR AMOUNT") in the Trust not allocated to the Certificateholders
or any Enhancement Provider. The certificate that evidences the Transferor
Interest is referred to herein as the "EXCHANGEABLE TRANSFEROR
CERTIFICATE."
The Certificates of each Series will represent undivided interests in
certain assets of the Trust, including the right to the applicable Investor
Percentage of all cardholder payments on the Receivables. For each Series
of Certificates, unless otherwise specified in the related Prospectus
Supplement, the Invested Amount on any date will be equal to the initial
Invested Amount as of the related Series Closing Date for such Series minus
the amount of principal paid to the Certificateholders prior to such date
and minus the amount of unreimbursed Investor Charge-Offs with respect to
such related Series prior to such date. If so specified in the Prospectus
Supplement relating to any Series of Certificates, under certain
circumstances the Invested Amount may be further adjusted by the amount of
principal allocated to Certificateholders, the funds on deposit in any
specified account, and any other amount specified in the related Prospectus
Supplement.
Each Series of Certificates may consist of one or more Classes, one
or more of which may be senior certificates ("SENIOR CERTIFICATES") and one
or more of which may be subordinated certificates ("SUBORDINATED
CERTIFICATES"). Each Class of a Series will evidence the right to receive a
specified portion of each distribution of principal or interest or both.
The Invested Amount with respect to a Series with more than one Class will
be allocated among the Classes as described in the related Prospectus
Supplement. The Certificates of a Class may differ from Certificates of
other Classes of the same Series in, among other things, the amounts
allocated to principal payments, maturity date, interest rate per annum
("CERTIFICATE Rate") and the availability of Enhancement.
The Certificateholders of each Series will have the right to receive
(but only to the extent needed to make required payments under the Pooling
and Servicing Agreement and the related Series Supplement and subject to
any reallocation of such amounts if the Series Supplement so provides)
varying percentages of the collections of Finance Charge Receivables and
Principal Receivables for each month and will be allocated a varying
percentage of the amount of Receivables in Accounts which were written off
as uncollectible by the Servicer ("DEFAULTED ACCOUNTS") for such month
(each such percentage, an "INVESTOR PERCENTAGE"). The related Prospectus
Supplement will specify the Investor Percentages with respect to the
allocation of collections of Principal Receivables, Finance Charge
Receivables and Receivables in Defaulted Accounts during the Revolving
Period, any Amortization Period and any Accumulation Period, as applicable.
If the Certificates of a Series offered hereby include more than one Class
of Certificates, the assets of the Trust allocable to the Certificates of
such Series may be further allocated among each Class in such Series as
described in the related Prospectus Supplement. See "--Investor Percentage
and Transferor Percentage."
The Certificates of each Series will represent interests in the Trust
only and will not represent interests in or recourse obligations of the
Bank or any of its affiliates. A Certificate is not a deposit and neither
the Certificates nor the underlying Accounts or Receivables are insured or
guaranteed by the Federal Deposit Insurance Corporation ("FDIC") or any
other governmental agency.
For each Series of Certificates, payments of interest and principal
will be made on Distribution Dates or other payment dates as specified in
the related Prospectus Supplement to Certificateholders in whose names the
Certificates were registered on the record dates (each, a "RECORD DATE")
specified in the related Prospectus Supplement. Interest will be
distributed to Certificateholders in the amounts, for the periods and on
the dates specified in the related Prospectus Supplement.
For each Series of Certificates, the Transferor initially will own
the Exchangeable Transferor Certificate. The Exchangeable Transferor
Certificate will represent the undivided interest in the Trust not
represented by the Certificates issued and outstanding under the Trust or
the rights, if any, of any Enhancement Providers to receive payments from
the Trust. The holder of the Exchangeable Transferor Certificate will have
the right to a percentage (the "TRANSFEROR PERCENTAGE") of all cardholder
payments from the Receivables in the Trust.
Unless otherwise specified in the related Prospectus Supplement, with
respect to each Series of Certificates, during the Revolving Period, the
Invested Amount will remain constant except under certain limited
circumstances. See "--Defaulted Receivables; Rebates and Fraudulent
Charges" and "--Investor Charge-Offs." The amount of Principal Receivables
in the Trust, however, will vary each day as new Principal Receivables are
created and others are paid or charged-off. The amount of the Transferor
Interest will fluctuate each day, therefore, to reflect the changes in the
amount of the Principal Receivables in the Trust. When a Series is
amortizing, the Invested Amount of such Series will generally decline as
payments of Principal Receivables are collected and distributed to the
Certificateholders. As a result, the Transferor Interest will generally
increase each month during an Amortization Period for any Series to reflect
the reductions in the Invested Amount of such Series and will also change
to reflect the variations in the amount of Principal Receivables in the
Trust. The Transferor Interest may also be reduced as the result of an
Exchange. See "--Exchanges."
Unless otherwise specified in the related Prospectus Supplement,
Certificates of each Series initially will be represented by certificates
registered in the name of the nominee of DTC (together with any successor
depository selected by the Transferor, the "DEPOSITORY") except as set
forth below. Unless otherwise specified in the related Prospectus
Supplement, with respect to each Series of Certificates, beneficial
interests in the Certificates will be available for purchase in minimum
denominations of $1,000 and integral multiples thereof in book-entry form
only. The Transferor has been informed by DTC that DTC's nominee will be
Cede & Co. ("CEDE"). No Certificate Owner acquiring an interest in the
Certificates will be entitled to receive a certificate representing such
person's interest in the Certificates unless Definitive Certificates are
issued. Unless and until Definitive Certificates are issued for any Series
under the limited circumstances described herein, all references herein to
actions by Certificateholders shall refer to actions taken by DTC upon
instructions from DTC Participants (as defined below), and all references
herein to distributions, notices, reports and statements to
Certificateholders shall refer to distributions, notices, reports and
statements to DTC or Cede, as the registered holder of the Certificates, as
the case may be, for distribution to Certificate Owners in accordance with
DTC procedures. See "--Book-Entry Registration" and "--Definitive
Certificates."
If so specified in the Prospectus Supplement relating to a Series,
application will be made to list the Certificates of such Series, or all or
a portion of any Class thereof, on the Luxembourg Stock Exchange or any
other specified exchange.
BOOK-ENTRY REGISTRATION
Unless otherwise specified in the related Prospectus Supplement, with
respect to each Series of Certificates in book-entry form,
Certificateholders may hold their Certificates through DTC (in the United
States) or Cedelbank or Euroclear (in Europe) which in turn hold through
DTC, if they are participants of such systems, or indirectly through
organizations that are participants in such systems.
Cede, as nominee for DTC, will hold the global Certificates.
Cedelbank and Euroclear will hold omnibus positions on behalf of the
Cedelbank Customers and the Euroclear Participants, respectively, through
customers' securities accounts in Cedelbank's and Euroclear's names on the
books of their respective depositaries (collectively, the "DEPOSITARIES")
which in turn will hold such positions in customers' securities accounts in
the Depositaries' names on the books of DTC.
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, as amended (the "EXCHANGE ACT"). DTC
holds securities that its participating organizations ("DTC PARTICIPANTS")
deposit with DTC. DTC also facilitates the clearance and settlement among
DTC Participants of securities transactions, such as transfers and pledges,
in deposited securities through electronic book-entry changes in DTC
Participants' accounts, thereby eliminating the need for physical movement
of securities certificates. DTC Participants include securities brokers and
dealers, banks, trust companies and clearing corporations and may include
certain other organizations. DTC is owned by a number of its DTC
Participants and the New York Stock Exchange, Inc., the American Stock
Exchange, Inc. and the National Association of Securities Dealers, Inc.
Indirect 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 DTC Participant, either
directly or indirectly ("INDIRECT PARTICIPANTS"). The rules applicable to
DTC and DTC Participants are on file with the Securities and Exchange
Commission (the "SEC").
DTC management is aware that some computer applications and systems
used for processing data were written using two digits rather than four to
define the applicable year, and therefore may not recognize a date using
"00" as the Year 2000. This could result in the inability of these systems
to properly process transactions with dates in the Year 2000 and
thereafter. DTC has developed and is implementing a program to address this
problem so that its applications and systems as the same relate to the
timely payment of distributions (including principal and interest payments)
to securityholders, book-entry deliveries and settlement of trades within
DTC continue to function properly. This program includes a technical
assessment and a remediation plan, each of which is complete. Additionally,
DTC plans to implement a testing phase of this program which is expected to
be completed within appropriate time frames.
In addition, DTC is contacting (and will continue to contact) third
party vendors that provide services to DTC to determine the extent of their
Year 2000 compliance, and DTC will develop contingency plans as it deems
appropriate to address failures in Year 2000 compliance on the part of
third party vendors. However, there can be no assurance that the systems of
third party vendors will be timely converted and will not adversely affect
the proper functioning of DTC's services.
The information set forth in the preceding two paragraphs has been
provided by DTC for informational purposes only and is not intended to
serve as a representation, warranty or contract modification of any kind.
The Transferor makes no representations as to the accuracy or completeness
of such information.
Transfers between DTC Participants will occur in accordance with DTC
rules. Transfers between Cedelbank Customers and Euroclear Participants
will occur in the ordinary way in accordance with their applicable
rules and operating procedures.
Cross-market transfers between persons holding directly or indirectly
through DTC in the United States, on the one hand, and directly or
indirectly through Cedelbank Customers or Euroclear Participants, on the
other, will be effected in DTC in accordance with DTC rules on behalf of
the relevant European international clearing system by its Depositary;
however, such cross-market transactions will require delivery of
instructions to the relevant European international clearing system by the
counterparty in such system in accordance with its rules and procedures and
within its established deadlines (European time). The relevant European
international clearing system will, if the transaction meets its settlement
requirements, deliver instructions to its Depositary to take action to
effect final settlement on its behalf by delivering or receiving securities
in DTC, and making or receiving payment in accordance with normal
procedures for same-day funds settlement applicable to DTC. Cedelbank
Customers and Euroclear Participants may not deliver instructions directly
to the Depositaries.
Because of time-zone differences, credits of securities in Cedelbank
or Euroclear as a result of a transaction with a DTC Participant will be
made during the subsequent securities settlement processing, dated the
business day following the DTC settlement date, and such credits or any
transactions in such securities settled during such processing will be
reported to the relevant Cedelbank Customer or Euroclear Participant on
such business day. Cash received in Cedelbank or Euroclear as a result of
sales of securities by or through a Cedelbank Customer or a Euroclear
Participant will be received with value on the DTC settlement date but will
be available in the relevant Cedelbank or Euroclear cash account only as of
the business day following settlement in DTC.
Certificate Owners that are not DTC Participants or Indirect
Participants but desire to purchase, sell or otherwise transfer ownership
of, or other interests in, Certificates may do so only through the DTC
Participants and Indirect Participants. In addition, Certificate Owners
will receive all distributions of principal of and interest on the
Certificates from the Trustee through DTC Participants who in turn will
receive them from DTC. Under a book-entry format, Certificate Owners may
experience some delay in their receipt of payments, since such payments
will be forwarded by the Trustee to Cede, as nominee for DTC. DTC will
forward such payments to DTC Participants which thereafter will forward
them to Indirect Participants or Certificate Owners. It is anticipated that
the only "Certificateholder" of Certificates in book-entry form will be
Cede, as nominee of DTC. Certificate Owners will not be recognized by the
Trustee as Certificateholders, as such term is used in the Pooling and
Servicing Agreement, and Certificate Owners will only be permitted to
exercise the rights of Certificateholders indirectly through the DTC
Participants who in turn will exercise the rights of Certificateholders
through DTC.
Under the rules, regulations and procedures creating and affecting
DTC and its operations, DTC is required to make book-entry transfers among
DTC Participants on whose behalf it acts with respect to the Certificates
and is required to receive and transmit distributions of principal of and
interest on the Certificates. DTC Participants and Indirect Participants
with which Certificate Owners have accounts with respect to the
Certificates similarly are required to make book-entry transfers and
receive and transmit such payments on behalf of their respective
Certificate Owners. Accordingly, although Certificate Owners will not
possess Certificates, Certificate Owners will receive payments and will be
able to transfer their interests.
Because DTC can only act on behalf of DTC Participants, who in turn
act on behalf of Indirect Participants and certain banks, the ability of a
Certificate Owner to pledge Certificates to persons or entities that do not
participate in the DTC system, or otherwise take actions in respect of such
Certificates, may be limited due to the lack of a physical certificate for
such Certificates.
DTC has advised the Transferor that it will take any action permitted
to be taken by a Certificateholder under the Pooling and Servicing
Agreement only at the direction of one or more DTC Participants to whose
account with DTC the Certificates are credited. Additionally, DTC has
advised the Transferor that it will take such actions with respect to
specified percentages of the Invested Amount only at the direction of and
on behalf of DTC Participants whose holdings include undivided interests
that satisfy such specified percentages. DTC may take conflicting actions
with respect to other undivided interests to the extent that such actions
are taken on behalf of DTC Participants whose holdings include such
undivided interests.
Cedelbank, societe anonyme ("CEDELBANK") is incorporated under the
laws of Luxembourg as a professional depository. Cedelbank holds securities
for its participating organizations ("CEDELBANK CUSTOMERS") and facilitates
the clearance and settlement of securities transactions between Cedelbank
Customers through electronic book-entry changes in accounts of Cedelbank
Customers, thereby eliminating the need for physical movement of
securities. Transactions may be settled in Cedelbank in any of 36
currencies, including United States dollars. Cedelbank provides to its
Cedelbank Customers, among other things, services for safekeeping,
administration, clearance and settlement of internationally traded
securities and securities lending and borrowing. Cedelbank deals with
domestic securities markets in over 30 countries through established
depository and custodial relationships. Cedelbank has established an
electronic bridge with Morgan Guaranty Trust as the Operator of the
Euroclear System ("MGT/EOC") in Brussels to facilitate settlement of trades
between Cedelbank and MGT/EOC. Cedelbank currently accepts over 110,000
securities issues on its books. As a professional depository, Cedelbank is
subject to regulation by the Luxembourg Commission for the Supervision of
the Financial Sector, which supervises Luxembourg banks. Cedelbank
Customers are recognized financial institutions around the world, including
underwriters, securities brokers and dealers, banks, trust companies,
clearing corporations and certain other organizations and may include the
underwriters of any Series of Certificates. Cedelbank Customers in the
United States are limited to securities brokers and dealers and banks.
Currently, Cedelbank has approximately 2,000 customers located in over 80
countries, including all major European countries, Canada and the United
States. Indirect access to Cedelbank is also available to others, such as
banks, brokers, dealers and trust companies that clear through or maintain
a custodial relationship with a Cedelbank Customer, either directly or
indirectly.
The Euroclear System (the "EUROCLEAR SYSTEM") was created in 1968 to
hold securities for participants of the Euroclear System ("EUROCLEAR
PARTICIPANTS") and to clear and settle transactions between Euroclear
Participants through simultaneous electronic book-entry delivery against
payment, thereby eliminating the need for physical movement of securities
and any risk from lack of simultaneous transfers of securities and cash.
Transactions may now be settled in any of 34 currencies, including United
States dollars. The Euroclear System includes various other services,
including securities lending and borrowing and interfaces with domestic
markets in several countries generally similar to the arrangements for
cross-market transfers with DTC described above. The Euroclear System is
operated by Morgan Guaranty Trust Company of New York's Brussels, Belgium
office (the "EUROCLEAR OPERATOR" or "EUROCLEAR"), under contract with
Euroclear Clearance System, S.C., a Belgian cooperative corporation (the
"COOPERATIVE"). All operations are conducted by the Euroclear Operator, and
all Euroclear securities clearance accounts and Euroclear cash accounts are
accounts with the Euroclear Operator, not the Cooperative. The Cooperative
establishes policy for the Euroclear System on behalf of Euroclear
Participants. Euroclear Participants include banks (including central
banks), securities brokers and dealers and other professional financial
intermediaries and may include the underwriters of any Series of
Certificates. Indirect access to the Euroclear System is also available to
other firms that clear through or maintain a custodial relationship with a
Euroclear Participant, either directly or indirectly.
The Euroclear Operator is the Belgian branch of a New York banking
corporation which is a member bank of the Federal Reserve System. As such,
it is regulated and examined by the Board of Governors of the Federal
Reserve System and the New York State Banking Department, as well as the
Belgian Banking Commission.
Securities clearance accounts and cash accounts with the Euroclear
Operator are governed by the Terms and Conditions Governing Use of
Euroclear and the related Operating Procedures of the Euroclear System and
applicable Belgian law (collectively, the "TERMS AND CONDITIONS"). The
Terms and Conditions govern transfers of securities and cash within the
Euroclear System, withdrawal of securities and cash from the Euroclear
System, and receipts of payments with respect to securities in the
Euroclear System. All securities in the Euroclear System are held on a
fungible basis without attribution of specific certificates to specific
securities clearance accounts. The Euroclear Operator acts under the Terms
and Conditions only on behalf of Euroclear Participants and has no record
of or relationship with persons holding through Euroclear Participants.
Distributions with respect to Certificates held through Cedelbank or
Euroclear will be credited to the cash accounts of Cedelbank Customers or
Euroclear Participants in accordance with the relevant system's rules and
procedures, to the extent received by its Depositary. Such distributions
will be subject to tax reporting in accordance with relevant United States
tax laws and regulations. See "Certain U.S. Federal Income Tax
Consequences." Cedelbank or the Euroclear Operator, as the case may be,
will take any other action permitted to be taken by a Certificateholder
under the Pooling and Servicing Agreement on behalf of a Cedelbank Customer
or Euroclear Participant only in accordance with its relevant rules and
procedures and subject to its Depositary's ability to effect such actions
on its behalf through DTC.
Although DTC, Cedelbank and Euroclear have agreed to the foregoing
procedures in order to facilitate transfers of Certificates among
participants of DTC and Euroclear and customers of Cedelbank, they are
under no obligation to perform or continue to perform such procedures and
such procedures may be discontinued at any time.
DEFINITIVE CERTIFICATES
Unless otherwise specified in the related Prospectus Supplement, the
Certificates of each Series otherwise issued in book-entry form will be
issued in fully registered, certificated form to Certificate Owners or
their nominees ("DEFINITIVE CERTIFICATES") rather than to DTC or its
nominee, only if (i) the Transferor advises the Trustee in writing that DTC
is no longer willing or able to discharge properly its responsibilities as
Depository with respect to such Series of Certificates, and the Trustee or
the Transferor is unable to locate a qualified successor, (ii) the
Transferor, at its option, advises the Trustee in writing that it elects to
terminate the book-entry system through DTC or (iii) after the occurrence
of a Servicer Default, Certificate Owners representing not less than 50%
(or such other percentage specified in the related Prospectus Supplement)
of the Invested Amount advise the Trustee and DTC through participants in
writing that the continuation of a book-entry system through DTC (or a
successor thereto) is no longer in the best interest of the Certificate
Owners.
Upon the occurrence of any of the events described in the immediately
preceding paragraph, DTC is required to notify all participants of the
availability through DTC of Definitive Certificates. Upon surrender by DTC
of the definitive certificate representing the Certificates and
instructions for re-registration, the Trustee will issue the Certificates
as Definitive Certificates, and thereafter the Trustee will recognize the
holders of such Definitive Certificates as holders under the Pooling and
Servicing Agreement ("HOLDERS").
Distribution of principal and interest on the Certificates will be
made by the Trustee directly to Holders of Definitive Certificates in
accordance with the procedures set forth herein and in the Pooling and
Servicing Agreement. Interest payments and any principal payments on each
Distribution Date or other payment date as specified in the related
Prospectus Supplement will be made to Holders in whose names the Definitive
Certificates were registered at the close of business on the related Record
Date. Distributions will be made by check mailed to the address of such
Holder as it appears on the register maintained by the Trustee or, if such
Holder holds more than an aggregate principal amount of such Definitive
Certificates to be specified in the Pooling and Servicing Agreement, by
wire transfer to such Holder's account. The final payment on any
Certificate (whether Definitive Certificates or the Certificates registered
in the name of Cede representing the Certificates), however, will be made
only upon presentation and surrender of such Certificate at the office or
agency specified in the notice of final distribution to Certificateholders.
The Trustee will provide such notice to registered Certificateholders not
later than the fifth day of the month of such final distributions.
Definitive Certificates will be transferable and exchangeable at the
offices of the Transfer Agent and Registrar specified in the Pooling and
Servicing Agreement, which shall initially be the Trustee. No service
charge will be imposed for any registration of transfer or exchange, but
the transfer agent and registrar may require payment of a sum sufficient to
cover any tax or other governmental charge imposed in connection therewith.
INTEREST PAYMENTS
For each Series of Certificates and Class thereof, interest will
accrue from the relevant Closing Date on the applicable Invested Amount,
plus, if applicable, the Pre-Funding Amount (or other amount specified in
the related Prospectus Supplement) at the applicable Certificate Rate,
which may be a fixed, floating or other type of rate as specified in the
related Prospectus Supplement. Interest will be distributed to
Certificateholders in the amounts and on the dates (which may be monthly,
quarterly, semiannually or otherwise as specified in the related Prospectus
Supplement) (each, a "DISTRIBUTION DATE"). Interest payments on any
Distribution Date will generally be funded from collections of Finance
Charge Receivables allocated to the Investor Interest during the preceding
monthly period or periods (each, a "MONTHLY PERIOD") and may be funded from
certain investment earnings on funds held in accounts of the Trust, from
any applicable Enhancement, if necessary, or certain other amounts as
specified in the related Prospectus Supplement. If the Distribution Dates
for payment of interest for a Series or Class occur less frequently than
monthly, such collections or other amounts (or the portion thereof
allocable to the Investor Interest of such Class) may be deposited in one
or more trust accounts (each, an "INTEREST FUNDING ACCOUNT") pending
distribution to the Certificateholders of such Series or Class, as
described in the related Prospectus Supplement. If a Series has more than
one Class of Certificates, each such Class may have a separate Interest
Funding Account. The Prospectus Supplement relating to each Series of
Certificates and each Class thereof will describe the amounts and sources
of interest payments to be made, the Certificate Rate for each Class
thereof, and, for a Series or each Class thereof bearing interest at a
floating Certificate Rate, the initial Certificate Rate, the dates and the
manner for determining subsequent Certificate Rates, and the formula, index
or other method by which such Certificate Rates are determined.
PRINCIPAL PAYMENTS
The principal of the Certificates of each Series offered hereby will
be scheduled to be paid either in installments commencing on a date
specified in the related Prospectus Supplement (the "PRINCIPAL COMMENCEMENT
DATE"), in which case such Series will have either a Controlled
Amortization Period, as described below, or on an expected date specified
in, or determined in the manner specified in, the related Prospectus
Supplement (the "SCHEDULED PAYMENT DATE"), in which case such Series will
have an Accumulation Period, as described below. If a Series has more than
one Class of Certificates, a different method of paying principal,
Principal Commencement Date or Scheduled Payment Date may be assigned to
each Class. The payment of principal with respect to the Certificates of a
Series or Class may commence earlier than the applicable Principal
Commencement Date or Scheduled Payment Date, and the final principal
payment with respect to the Certificates of a Series or Class may be made
later than the applicable expected payment date, Scheduled Payment Date or
other expected date, if a Pay Out Event occurs and the Rapid Amortization
Period commences with respect to such Series or Class or under certain
other circumstances described herein or in the related Prospectus
Supplement.
Unless otherwise specified in the related Prospectus Supplement,
during the Revolving Period for each Series of Certificates (which begins
on the Series Closing Date relating to such Series and ends with the
commencement of an Amortization Period), no principal payments will be made
to the Certificateholders of such Series. During the Controlled
Amortization Period or Accumulation Period, as applicable, which will be
scheduled to begin on the date specified in, or determined in the manner
specified in, the related Prospectus Supplement, and during the Rapid
Amortization Period, which will begin upon the occurrence of a Pay Out
Event, principal will be paid to the Certificateholders in the amounts and
on Distribution Dates specified in the related Prospectus Supplement or
will be accumulated in a trust account established for the benefit of such
Certificateholders (a "PRINCIPAL FUNDING ACCOUNT") for later distribution
to Certificateholders on the Scheduled Payment Date in the amounts
specified in the related Prospectus Supplement. Principal payments for any
Series or Class thereof will be funded from collections of Principal
Receivables received during the related Monthly Period or Periods as
specified in the related Prospectus Supplement and allocated to the
Investor Interest of such Series or Class and from certain other sources
specified in the related Prospectus Supplement. In the case of a Series
with more than one Class of Certificates, the Certificateholders of one or
more Classes may receive payments of principal at different times. The
related Prospectus Supplement will describe the manner, timing and priority
of payments of principal to Certificateholders of each Class.
Funds on deposit in any Principal Funding Account applicable to a
Series may be subject to a guaranteed rate agreement or investment contract
or other arrangement specified in the related Prospectus Supplement
intended to assure a minimum rate of return on the investment of such
funds. In order to enhance the likelihood of the payment in full of the
principal amount of a Series of Certificates or Class thereof at the end of
an Accumulation Period, such Series of Certificates or Class thereof may be
subject to a principal payment guaranty or other similar arrangement
specified in the related Prospectus Supplement.
REVOLVING PERIOD
Unless otherwise specified in the related Prospectus Supplement, with
respect to each Series and any Class thereof, no principal will be payable
to Certificateholders until the Principal Commencement Date or the
Scheduled Payment Date with respect to such Series or Class. For the period
beginning on the Closing Date and ending with the commencement of an
Amortization Period (the "REVOLVING PERIOD"), collections of Principal
Receivables otherwise allocable to the Investor Interest will, subject to
certain limitations, be paid from the Trust to the holder of the
Exchangeable Transferor Certificate or, under certain circumstances and if
so specified in the related Prospectus Supplement, will be treated as
Excess Principal Collections and paid to the holders of other Series of
Certificates issued by the Trust, as described herein and in the related
Prospectus Supplement. See "--Shared Collections of Principal Receivables."
CONTROLLED AMORTIZATION PERIOD
If the Prospectus Supplement relating to a Series so specifies,
unless a Rapid Amortization Period with respect to such Series commences,
the Certificates of such Series or any Class thereof will have an
amortization period (the "CONTROLLED AMORTIZATION PERIOD") during which
collections of Principal Receivables allocable to the Investor Interest of
such Series (and certain other amounts if so specified in the related
Prospectus Supplement) will be used on each Distribution Date to make
principal distributions in scheduled amounts to the Certificateholders of
such Series or any Class of such Series then scheduled to receive such
distributions. The amount to be distributed on any Distribution Date during
the Controlled Amortization Period will be limited to an amount (the
"CONTROLLED DISTRIBUTION AMOUNT") equal to an amount specified in the
related Prospectus Supplement (the "CONTROLLED AMORTIZATION AMOUNT") plus
any existing deficit Controlled Amortization Amount arising from prior
Distribution Dates. If a Series has more than one Class of Certificates,
each Class may have a separate Controlled Amortization Amount. In addition,
the related Prospectus Supplement may describe certain priorities among
such Classes with respect to such distributions. The Controlled
Amortization Period will commence at the close of business on the Principal
Commencement Date and continue until the earliest of (a) the commencement
of the Rapid Amortization Period, (b) payment in full of the Invested
Amount of the Certificates of such Series or Class and (c) the close of
business on the Stated Series Termination Date with respect to such Series.
ACCUMULATION PERIOD
If the Prospectus Supplement relating to a Series so specifies,
unless a Rapid Amortization Period with respect to such Series commences,
the Certificates of such Series or any Class thereof will have an
accumulation period (the "ACCUMULATION PERIOD") during which collections of
Principal Receivables allocable to the Investor Interest of such Series
(and certain other amounts if so specified in the related Prospectus
Supplement) will be deposited prior to each Distribution Date in a
Principal Funding Account and used to make distributions of principal to
the Certificateholders of such Series or Class on the Scheduled Payment
Date. If the Prospectus Supplement relating to a series so specifies, the
amount to be deposited in the Principal Funding Account on any date will be
limited to an amount (the "CONTROLLED DEPOSIT AMOUNT") equal to an amount
specified in the related Prospectus Supplement (the "CONTROLLED
ACCUMULATION AMOUNT") plus the amount of any shortfalls arising from the
failure to pay the Controlled Accumulation Amount on any prior Distribution
Dates. If a Series has more than one Class of Certificates, each Class may
have a separate Principal Funding Account and Controlled Accumulation
Amount. In addition, the related Prospectus Supplement may describe certain
priorities among such Classes with respect to deposits of principal into
such Principal Funding Account. The Accumulation Period will commence at
the close of business on a date specified in the related Prospectus
Supplement (subject to adjustment if so specified in the related Prospectus
Supplement) and continue until the earliest of (a) the commencement of the
Rapid Amortization Period, (b) payment in full of the Invested Amount of
the Certificates of such Series or Class and (c) the close of business on
the Stated Series Termination Date with respect to such Series.
Funds on deposit in any Principal Funding Account may be invested in
permitted investments or subject to a guaranteed rate or investment
agreement or other arrangement intended to assure a specified return on the
investment of such funds. Investment earnings on such funds may be applied
to pay interest on the related Series of Certificates. In order to enhance
the likelihood of payment in full of principal at the end of an
Accumulation Period with respect to a Series of Certificates, such Series
may be subject to a principal guaranty or other similar arrangement. See
"--Principal Payments."
RAPID AMORTIZATION PERIOD
During the period from the day on which a Pay Out Event has occurred
with respect to a Series to the earlier of the date on which the Invested
Amount of the Certificates of such Series has been paid in full or the
related Stated Series Termination Date (the "RAPID AMORTIZATION PERIOD"),
unless otherwise provided in the related Prospectus Supplement, collections
of Principal Receivables allocable to the Investor Interest of such Series
(and certain other amounts if so specified in the related Prospectus
Supplement) will be distributed as principal payments to the
Certificateholders of such Series monthly on each Distribution Date with
respect to such Series in the manner and order of priority set forth in the
related Prospectus Supplement. During the Rapid Amortization Period with
respect to a Series, distributions of principal to Certificateholders will
not be limited by any Controlled Distribution Amount or Controlled Deposit
Amount. In addition, upon the commencement of the Rapid Amortization Period
with respect to a Series, unless otherwise specified in the related
Prospectus Supplement, any funds on deposit in a Principal Funding Account
with respect to such Series or any Class thereof will be paid to the
Certificateholders of such Series or Class on the first Distribution Date
in the Rapid Amortization Period. See "--Pay Out Events" for a discussion
of the events which might lead to commencement of the Rapid Amortization
Period.
SHARED EXCESS FINANCE CHARGE COLLECTIONS
If so specified in the related Prospectus Supplement, the
Certificateholders of a Series or any Class thereof may be entitled to
receive all or a portion of Excess Finance Charge Collections with respect
to another Series to cover any shortfalls with respect to amounts payable
from collections of Finance Charge Receivables allocable to such Series or
Class.
SHARED COLLECTIONS OF PRINCIPAL RECEIVABLES
Unless otherwise specified in the related Prospectus Supplement, to
the extent that collections of Principal Receivables and certain other
amounts that are allocated to the Invested Amount of any Series are not
needed to make payments or deposits with respect to such Series, such
collections ("EXCESS PRINCIPAL COLLECTIONS") will be applied to cover
principal payments due to or for the benefit of Certificateholders of
another Series. Any such reallocation will not result in a reduction in the
Invested Amount of the Series to which such collections were initially
allocated.
COMPANION SERIES
If so provided in the Prospectus Supplement relating to a Series,
each such Series is subject to being paired with another Series (in such
case, a "COMPANION SERIES"). The Prospectus Supplement for such Series and
the Prospectus Supplement for the Companion Series will each specify the
relationship between the Series.
TRANSFER AND ASSIGNMENT OF RECEIVABLES
With respect to the Trust, the Transferor has transferred and
assigned to the Trust of all its right, title and interest in and to
Receivables in certain Accounts which were selected from the Bank Portfolio
based upon criteria set forth in the Pooling and Servicing Agreement.
In connection with the transfer of the Receivables to the Trust, the
Transferor has indicated in its computer files that the Receivables have
been conveyed to the Trust. In addition, the Transferor has provided to the
Trustee computer files or microfiche lists containing a true and complete
list showing each Account, including each Additional Account, identified by
account number and by total outstanding balance, respectively. The
Transferor has not delivered and will not deliver to the Trustee any other
records or agreements relating to the Accounts or the Receivables, except
in connection with additions or removals of Accounts. Except as stated
above, the records and agreements relating to the Accounts and the
Receivables maintained by the Transferor or the Servicer are not segregated
by the Transferor or the Servicer from other documents and agreements
relating to other credit card accounts and receivables and are not stamped
or marked to reflect the transfer of the Receivables to the Trust, but the
computer records of the Transferor are required to be marked to evidence
such transfer. The Transferor has filed UCC financing statements with
respect to the Receivables meeting the requirements of Delaware state law.
See "Certain Legal Aspects of the Receivables."
EXCHANGES
The Pooling and Servicing Agreement provides for the Trustee to issue
two types of certificates: (i) one or more Series of Certificates that will
be transferable and have the characteristics described below and (ii) the
Exchangeable Transferor Certificate, a certificate which evidences the
Transferor Interest, which initially will be held by the Transferor and
will be transferable only as provided in the Pooling and Servicing
Agreement. The Pooling and Servicing Agreement also provides that, pursuant
to any one or more Series Supplements, the holder of the Exchangeable
Transferor Certificate may tender the Exchangeable Transferor Certificate,
or, if provided in the relevant Series Supplement, Certificates
representing any Series and the Exchangeable Transferor Certificate, to the
Trustee in exchange for one or more new Series (which may include Series
offered pursuant to this Prospectus) and a reissued Exchangeable Transferor
Certificate (any such tender, an "Exchange"). However, after giving effect
to the Exchange the Transferor Interest expressed as a percentage of the
aggregate amount of Principal Receivables must be equal to or exceed the
Minimum Transferor Interest. Pursuant to the Pooling and Servicing
Agreement, the holder of the Exchangeable Transferor Certificate may
define, with respect to any newly issued Series, certain terms including:
(i) its initial invested amount (or method for calculating such amount)
which amount may not be greater than the current principal amount of the
Exchangeable Transferor Certificate; (ii) its certificate rate (or formula
for the determination thereof); (iii) its payment dates and the date from
which interest shall accrue; (iv) its series termination date; and (v) such
other terms as the Transferor may deem appropriate (all such terms, the
"PRINCIPAL TERMS" of such Series). Upon the issuance of an additional
Series of Certificates, none of the Transferor, the Servicer, the Trustee
or the Trust will be required or will intend to obtain the consent of any
Certificateholder of any other Series previously issued by the Trust.
However, as a condition of an Exchange, the holder of the Exchangeable
Transferor Certificate will deliver to the Trustee written confirmation
that the Exchange will not result in the Rating Agency reducing or
withdrawing its rating of any Certificates of any outstanding Series. As
used herein, "RATING AGENCY" means a nationally recognized rating
organization selected by the Bank to rate any Series. The Transferor may
offer any Series to the public or other investors under a Prospectus or
other disclosure document (a "DISCLOSURE DOCUMENT") in offerings pursuant
to this Prospectus or in transactions either registered under the
Securities Act of 1933, as amended (the "SECURITIES ACT") or exempt from
registration thereunder directly, through the Underwriter or one or more
other underwriters, purchasers or placement agents, in fixed-price
offerings or in negotiated transactions or otherwise. Any such series may
be issued in fully registered or book-entry form in minimum denominations
by the Transferor. Other Series have been issued by the Trust and may be
issued concurrently herewith. The Transferor intends to offer, from time to
time, additional Series issued by the Trust.
Unless otherwise specified in the related Prospectus Supplement, the
holder of the Exchangeable Transferor Certificate may perform Exchanges and
define Principal Terms such that each Series issued by the Trust has a
period during which amortization or accumulation of the principal amount
thereof is intended to occur which may have a different length and begin on
a different date than such period for any other Series. Further, one or
more Series may be in their amortization or accumulation periods while
other Series are not. Moreover, each Series may have the benefit of an
Enhancement which is available only to such Series. Under the Pooling and
Servicing Agreement, the Trustee will hold any such form of Enhancement
only on behalf of the Series with respect to which it relates. The holder
of the Exchangeable Transferor Certificate may deliver a different form of
Enhancement agreement with respect to each Series. The holder of the
Exchangeable Transferor Certificate may specify different certificate rates
and monthly servicing fees with respect to each Series (or a particular
Class within such Series). The holder of the Exchangeable Transferor
Certificate will also have the option under the Pooling and Servicing
Agreement to vary between Series the terms upon which a Series (or a
particular Class within such Series) may be repurchased by the Transferor.
Additionally, certain Series may be subordinated to other Series, or
Classes within a Series may have different priorities. There will be no
limit to the number of Exchanges that may be performed under the Pooling
and Servicing Agreement.
Under the Pooling and Servicing Agreement and pursuant to a Series
Supplement, an Exchange may only occur upon the satisfaction of certain
conditions provided in the Pooling and Servicing Agreement. Under the
Pooling and Servicing Agreement, the holder of the Exchangeable Transferor
Certificate may perform an Exchange by notifying the Trustee at least five
days in advance of the date upon which the Exchange is to occur. Under the
Pooling and Servicing Agreement, the notice will state the designation of
any Series to be issued on the date of the Exchange and, with respect to
each such Series: (i) its initial principal amount (or method for
calculating such amount) which amount may not be greater than the current
principal amount of the Exchangeable Transferor Certificate, (ii) its
certificate rate (or method of calculating such rate) and (iii) the
Enhancement Provider, if any, which is expected to provide credit support
with respect to it. On the date of the Exchange, the Pooling and Servicing
Agreement provides that the Trustee will authenticate any such Series only
upon delivery to it of the following, among other things, (i) a Series
Supplement specifying the Principal Terms of such Series, (ii) an opinion
of counsel to the effect that, unless otherwise stated in the related
Series Supplement, the certificates of such Series will be characterized as
indebtedness for Federal income tax purposes under existing law, and that
the issuance of such Series will not have a material adverse effect on the
Federal income tax characterization of any outstanding Series, (iii) if
required by the related Series Supplement, the form of Enhancement, (iv) if
an Enhancement is required by the Series Supplement, an appropriate
Enhancement agreement with respect thereto, (v) written confirmation from
each Rating Agency that the Exchange will not result in such Rating
Agency's reducing or withdrawing its rating on any then outstanding Series
rated by it, (vi) the existing Exchangeable Transferor Certificate and, if
applicable, the certificates representing the Series to be exchanged, and
(vii) an officer's certificate of the Transferor to the effect that on the
date of the Exchange the Transferor, after giving effect to the Exchange,
would not be required to add Receivables from Additional Accounts pursuant
to the Pooling and Servicing Agreement, and the Transferor Interest
averaged expressed as a percentage of the aggregate amount of Principal
Receivables would be at least equal to a certain specified minimum
percentage (the "MINIMUM TRANSFEROR INTEREST"). Upon satisfaction of such
conditions, the Trustee will cancel the existing Exchangeable Transferor
Certificate and the certificates of the exchanged Series, if applicable,
and authenticate the new Series and a new Exchangeable Transferor
Certificate.
REPRESENTATIONS AND WARRANTIES
The Transferor has made and will make certain representations and
warranties to the Trust to the effect that, among other things, (a) as of
the date of issuance of a Series (a "SERIES CLOSING DATE"), the Transferor
was duly incorporated and in good standing and that it has the authority to
consummate the transactions contemplated by the Pooling and Servicing
Agreement and (b) as of the relevant cut-off date for each Series as
defined herein and in the related Prospectus Supplement (the "SERIES
CUT-OFF DATES") (or as of the date of the designation of Additional
Accounts), each Account was an Eligible Account (as defined below). If (i)
any of these representations and warranties proves to have been incorrect
in any material respect when made, and continues to be incorrect for 60
days after notice to the Transferor by the Trustee or to the Transferor and
the Trustee by the Certificateholders holding more than 50% of the Investor
Interest of the related Series, and (ii) as a result the interests of the
Certificateholders are materially and adversely affected, and continue to
be materially and adversely affected during such period, then the Trustee
or Certificateholders holding more than 50% of the Investor Interest may
give notice to the Transferor (and to the Trustee in the latter instance)
declaring that a Pay Out Event has occurred, thereby commencing the Rapid
Amortization Period. See "--Pay Out Events."
The Transferor has made and will make representations and warranties
to the Trust relating to the Receivables to the effect, among other things,
that (a) as of the Series Closing Date of the initial Series of
Certificates, the 1992-1 Series issued by the Trust (the "INITIAL CLOSING
DATE"), each of the Receivables then existing was an Eligible Receivable
(as defined below) and (b) as of the date of creation of any new
Receivable, such Receivable is an Eligible Receivable and the
representation and warranty set forth in clause (b) in the immediately
following paragraph is true and correct with respect to such Receivable. In
the event (i) of a breach of any representation and warranty set forth in
this paragraph, within 60 days, or such longer period as may be agreed to
by the Trustee, of the earlier to occur of the discovery of such breach by
the Transferor or Servicer or receipt by the Transferor of written notice
of such breach given by the Trustee, or, with respect to certain breaches
relating to prior liens, immediately upon the earlier to occur of such
discovery or notice and (ii) that as a result of such breach, the
Receivables in the related Accounts are charged off as uncollectible, the
Trust's rights in, to or under the Receivables or its proceeds are impaired
or the proceeds of such Receivables are not available for any reason to the
Trust free and clear of any lien, the Transferor shall accept reassignment
of each Principal Receivable as to which such breach relates (an
"INELIGIBLE RECEIVABLE") on the terms and conditions set forth below;
provided, however, that no such reassignment shall be required to be made
with respect to such Ineligible Receivable if, on any day within the
applicable period (or such longer period as may be agreed to by the
Trustee), the representations and warranties with respect to such
Ineligible Receivable shall then be true and correct in all material
respects. The Transferor shall accept reassignment of each such Ineligible
Receivable by (i) directing the Servicer to deduct the amount of each such
Ineligible Receivable from the aggregate amount of Principal Receivables
used to calculate the Transferor Interest and (ii) depositing into the
Collection Account an amount equal to the finance charge at the annual
percentage rate applicable to such Ineligible Receivable from the last date
billed through the end of the Monthly Period in which such reassignment
obligation arises. In the event that the exclusion of an Ineligible
Receivable from the calculation of the Transferor Interest would cause the
Transferor Interest to be a negative number, on the date of reassignment of
such Ineligible Receivable the Transferor shall make a deposit in the
Principal Account in immediately available funds in an amount equal to the
amount by which the Transferor Interest would be reduced below zero. Any
such deduction or deposit shall be considered a repayment in full of the
Ineligible Receivable. The obligation of the Transferor to accept
reassignment of any Ineligible Receivable is the sole remedy respecting any
breach of the representations and warranties set forth in this paragraph
with respect to such Receivable available to the Certificateholders or the
Trustee on behalf of Certificateholders.
The Transferor has made representations and warranties to the Trust
to the effect, among other things, that as of the Initial Closing Date (a)
the Pooling and Servicing Agreement constituted a legal, valid and binding
obligation of the Transferor and (b) the transfer of Receivables by it to
the Trust under the Pooling and Servicing Agreement constituted either a
valid transfer and assignment to the Trust of all right, title and interest
of the Transferor in and to the Receivables (other than Receivables in
Additional Accounts), whether then existing or thereafter created and the
proceeds thereof (including amounts in any of the accounts established for
the benefit of Certificateholders) or the grant of a first priority
perfected security interest in such Receivables (except for certain tax
liens) and the proceeds thereof (including amounts in any of the accounts
established for the benefit of Certificateholders), which is effective as
to each such Receivable upon the creation thereof. In the event of a breach
of any of the representations and warranties described in this paragraph,
either the Trustee or the holders of certificates evidencing undivided
interests in the Trust aggregating more than 50% of the Investor Interest
of all Series outstanding, by written notice to the Transferor (and to the
Trustee and the Servicer if given by the Certificateholders of all Series
outstanding), may direct the Transferor to accept reassignment of the Trust
Portfolio within 60 days of such notice, or within such longer period
specified in such notice. The Transferor will be obligated to accept
reassignment of the Trust Portfolio on a Distribution Date occurring within
such applicable period. Such reassignment will not be required to be made,
however, if at any time during such applicable period, or such longer
period, the representations and warranties shall then be true and correct
in all material respects. The deposit amount for such reassignment will be
equal to the Invested Amount for all Series of Certificates required to be
repurchased on the last day of the Monthly Period preceding the
Distribution Date on which the reassignment is scheduled to be made less
the amount, if any, previously allocated for payment of principal to such
Certificateholders on such Distribution Date, plus an amount equal to all
accrued and unpaid interest on such Certificates at the applicable
certificate rate through such last day of such Monthly Period, less the
amount transferred to the Distribution Account from the Finance Charge
Account in respect of interest on such Certificates. The payment of the
reassignment deposit amount and the transfer of all other amounts deposited
for the preceding month in the Distribution Account will be considered a
payment in full of the invested amount for all Series of Certificates
required to be repurchased and will be distributed upon presentation and
surrender of the Certificates for each such Series. If the Trustee or
Certificateholder gives a notice as provided above, the obligation of the
Transferor to make any such deposit will constitute the sole remedy
respecting a breach of the representations and warranties available to the
Trustee or such Certificateholders.
An "ELIGIBLE ACCOUNT" means, as of the Original Cut-Off Date (or,
with respect to Additional Accounts, as of their date of designation for
inclusion in the Trust), each Account owned by the Transferor (a) which was
in existence and maintained with the Transferor, (b) which is payable in
United States dollars, (c) the cardholder of which has provided, as his
most recent billing address, an address located in the United States or its
territories or possessions or any mailing address on any United States
armed forces military base of operations, including APO and FPO addresses,
(d) which has not been classified by the Transferor in its computer files
as being involved in a voluntary or involuntary bankruptcy proceeding, (e)
which has not been identified as an Account with respect to which the
related card has been lost or stolen, (f) which is not sold or pledged to
any other party at the time of its inclusion in the Trust, (g) which does
not have receivables which are sold or pledged to any other party at the
time of their inclusion in the Trust, and (h) which is a VISA or MasterCard
revolving credit card account.
An "ELIGIBLE RECEIVABLE" means each Receivable (a) which has arisen
under an Eligible Account, (b) which was created in compliance, in all
material respects, with all requirements of law applicable to the
Transferor, and pursuant to a credit card agreement which complies in all
material respects with all requirements of law applicable to the
Transferor, (c) with respect to which all consents, licenses or
authorizations of, or registrations with, any governmental authority
required to be obtained or given by the Transferor in connection with the
creation of such Receivable or the execution, delivery, creation and
performance by the Transferor of the related credit card agreement have
been duly obtained or given and are in full force and effect as of the date
of the creation of such Receivable, (d) as to which, at the time of its
inclusion in the Trust, the Transferor or the Trust had good and marketable
title free and clear of all liens and security interests arising under or
through the Transferor (other than certain tax liens for taxes not then due
or which the Transferor is contesting), (e) which is the legal, valid and
binding payment obligation of the cardholder thereof, legally enforceable
against such cardholder in accordance with its terms (with certain
bankruptcy-related exceptions) and (f) which constitutes an "account" under
Article 9 of the UCC as then in effect in the State of Delaware.
It is not required or anticipated that the Trustee will make any
initial or periodic general examination of the Receivables or any records
relating to the Receivables for the purpose of establishing the presence or
absence of defects, compliance with the Transferor's representations and
warranties or for any other purpose. The Servicer, however, will deliver to
the Trustee on or before March 31 of each year an opinion of counsel with
respect to the validity of the security interest of the Trust in and to the
Receivables.
ADDITION OF ACCOUNTS
As described above in "The Receivables," the Transferor will have the
right to designate for the Trust, from time to time, Additional Accounts to
be included as Accounts. In addition, the Transferor will be required to
designate Additional Accounts (i) if the average of the Transferor Interest
for any 30 consecutive days expressed as a percentage of the aggregate
amount of Principal Receivables is less than the Minimum Transferor
Interest, or (ii) if, on the last day of any Monthly Period, the aggregate
amount of Principal Receivables is less than the Minimum Aggregate
Principal Receivables. Receivables from such Additional Accounts shall be
transferred to the Trust on or before the tenth business day following such
30-day period or the last day of any Monthly Period, as the case may be.
The Transferor will convey to the Trust its interest in all Receivables of
such Additional Accounts, whether such Receivables are then existing or
thereafter created. The total amount of Receivables in the Trust will
fluctuate from day to day, because the amount of new Receivables arising in
the Accounts and the amount of payments collected on existing Receivables
usually differ each day.
Each Additional Account must be an Eligible Account at the time of
its designation. However, Additional Accounts may not be of the same credit
quality as the initial Accounts. Additional Accounts may have been
originated by the Transferor using credit criteria different from those
which were applied by the Transferor to the initial Accounts or may have
been acquired by the Transferor from a third-party financial institution
which may have had different credit criteria.
A conveyance by the Transferor to the Trust of Receivables in
Additional Accounts is subject to the following conditions, among others:
(i) the Transferor shall give the Trustee, each Rating Agency and the
Servicer written notice that such Additional Accounts will be included,
which notice shall specify the approximate aggregate amount of the
Receivables to be transferred; (ii) the Transferor shall have delivered to
the Trustee a written assignment (including an acceptance by the Trustee on
behalf of the Trust for the benefit of the Certificateholders) as provided
in the Pooling and Servicing Agreement relating to such Additional Accounts
(the "ASSIGNMENT") and, within five (5) business days thereafter, the
Transferor shall have delivered to the Trustee a computer file or
microfiche list, dated the date of such Assignment, containing a true and
complete list of such Additional Accounts; (iii) the Transferor shall
represent and warrant that (x) each Additional Account is, as of the date
the Account is selected to have its receivables added to the Trust (the
"ADDITION CUT-OFF DATE"), an Eligible Account, and each Receivable in such
Additional Account is, as of the Addition Cut-Off Date, an Eligible
Receivable, (y) no selection procedures believed by the Transferor to be
materially adverse to the interests of the Certificateholders were utilized
in selecting the Additional Accounts from the available Eligible Accounts
from the Bank Portfolio, and (z) as of the Addition Cut-Off Date, the
Transferor is not insolvent; (iv) the Transferor shall deliver an opinion
of counsel with respect to the security interest of the Trust in the
Receivables in the Additional Accounts transferred to the Trust; and (v)
the Trustee shall have received notice that the Rating Agency Condition has
been satisfied with respect to such addition.
REMOVAL OF ACCOUNTS
Subject to the conditions set forth in the next succeeding sentence,
the Transferor may, but shall not be obligated to, designate from time to
time, all Receivables from certain Accounts to be Removed Accounts, all
Receivables in which shall be subject to deletion and removal from the
Trust; provided, however, that the Transferor shall not make more than one
such designation in any Monthly Period. The Transferor will be permitted to
designate and require reassignment to it of the Receivables from Removed
Accounts only upon satisfaction of the following conditions: (i) the
removal of any Receivables of any Removed Accounts shall not, in the
reasonable belief of the Transferor, cause a Pay Out Event for any Series
to occur, cause the Transferor Interest expressed as a percentage of the
aggregate amount of Principal Receivables to be less than the Minimum
Transferor Interest on such date of removal, or result in the failure to
make any payment specified in the related Series Supplement with respect to
any Series; (ii) the Transferor shall have delivered to the Trustee for
execution a written assignment and, within five business days thereafter, a
computer file or microfiche list containing a true and complete list of all
Removed Accounts identified by account number and the aggregate amount of
the Receivables in such Removed Accounts; (iii) not more than 15% of the
Trust Portfolio is more than 34 days delinquent; (iv) the Transferor shall
represent and warrant that no selection procedures believed by the
Transferor to be materially adverse to the interests of the
Certificateholders were utilized in selecting the Removed Accounts to be
removed from the Trust; (v) the Rating Agency shall have received notice of
such proposed removal of Accounts and the Transferor shall not have
received notice from the Rating Agency that such proposed removal will
result in a downgrade of its then-current rating for any Series of
Certificates; (vi) the Principal Receivables of the Removed Accounts shall
not equal or exceed 5% of the aggregate amount of the Principal Receivables
in the Trust at such time; provided, that if any Series has been paid in
full, the Principal Receivables in such Removed Accounts may equal the
initial invested amount of such Series; and (vii) the Transferor shall have
delivered to the Trustee an officer's certificate confirming the items set
forth in clauses (i) through (vi) above.
COLLECTION AND OTHER SERVICING PROCEDURES
Pursuant to the Pooling and Servicing Agreement, the Servicer will be
responsible for servicing and administering the Receivables in accordance
with the Servicer's policies and procedures for servicing credit card
receivables comparable to the Receivables. The Servicer will be required to
maintain fidelity bond coverage insuring against losses through wrongdoing
of its officers and employees who are involved in the servicing of credit
card receivables covering such actions and in such amounts as the Servicer
believes to be reasonable from time to time.
TRUST ACCOUNTS
The Trustee has established and maintains in the name of the Trust
two separate accounts in a segregated trust account (which need not be a
deposit account), a "FINANCE CHARGE ACCOUNT" and a "PRINCIPAL ACCOUNT" for
the benefit of the Certificateholders of each Series. The Trustee has also
established a "DISTRIBUTION ACCOUNT" (a non-interest bearing segregated
demand deposit account established with a "QUALIFIED INSTITUTION" other
than the Transferor). The Servicer has established and maintains, in the
name of the Trust, for the benefit of Certificateholders of all Series, a
"COLLECTION ACCOUNT," which is a non-interest bearing segregated account
established and maintained with the Servicer or with a Qualified
Institution, defined as a depository institution, which may include the
Trustee, organized under the laws of the United States or any one of the
states thereof, which at all times has a certificate of deposit rating of
P-1 by Moody's Investors Service, Inc. (" MOODY'S") and of A-1+ by Standard
& Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc.
("STANDARD & POOR'S") or long-term unsecured debt obligation (other than
such obligation the rating of which is based on collateral or on the credit
of a person other than such institution or trust company) rating of Aa3 by
Moody's and AA- by Standard & Poor's and deposit insurance provided by
either the Bank Insurance Fund ("BIF") or the Savings Association Insurance
Fund ("SAIF"), each administered by the FDIC, or a depository institution,
which may include the Trustee, which is acceptable to the Rating Agency.
Funds in the Principal Account and the Finance Charge Account will be
invested, at the direction of the Servicer, in (i) obligations fully
guaranteed by the United States of America, (ii) demand deposits, time
deposits or certificates of deposit of depository institutions or trust
companies, the certificates of deposit of which have the highest rating
from Moody's and Standard & Poor's, (iii) commercial paper having, at the
time of the Trust's investment, a rating in the highest rating category
from Moody's and Standard & Poor's, (iv) bankers acceptances issued by any
depository institution or trust company described in clause (ii) above, (v)
money market funds which have the highest rating from, or have otherwise
been approved in writing by, Moody's and Standard & Poor's, (vi) certain
open end diversified investment companies, and (vii) any other investment
if the Rating Agency confirms in writing that such investment will not
adversely affect its then-current rating of the Certificates (such
investments, "PERMITTED INVESTMENTS"). Any earnings (net of losses and
investment expenses) on funds in the Finance Charge Account or the
Principal Account will be paid to the Transferor. The Servicer has the
revocable power to withdraw funds from the Collection Account and to
instruct the Trustee to make withdrawals and payments from the Finance
Charge Account and the Principal Account for the purpose of carrying out
the Servicer's duties under the Pooling and Servicing Agreement. The Paying
Agent specified in the Pooling and Servicing Agreement has the revocable
power to withdraw funds from the Distribution Account for the purpose of
making distributions to the Certificateholders.
DISCOUNT RECEIVABLES
The Pooling and Servicing Agreement provides that 1.3% (the "YIELD
FACTOR") of the amount of Receivables consisting of amounts charged by
cardholders for goods and services and cash advances will be treated as
Finance Charge Receivables (the "DISCOUNT RECEIVABLES"). On the date of
processing of any collections, the product of the Yield Factor and
collections of Receivables consisting of amounts charged by cardholders for
goods and services and cash advances on such day which otherwise would be
Principal Receivables will be deemed "DISCOUNT RECEIVABLE COLLECTIONS." An
amount equal to the product of (i) the Investor Percentage with respect to
Finance Charge Receivables for each Series of Certificates issued and
outstanding and (ii) the amount of such Discount Receivable Collections
will be deposited by the Servicer into the Collection Account and an amount
equal to the product of (i) the Transferor Percentage and (ii) the amount
of the Discount Receivable Collections will be paid to the holder of the
Exchangeable Transferor Certificate. The former amount deposited into the
Collection Account will be applied as provided below regarding payments
with respect to Finance Charge Receivables. The Transferor may at any time
increase the Yield Factor to a fixed percentage up to 4%; provided that the
Transferor must provide 30 days' prior written notice to the Servicer, the
Trustee, any Enhancement Provider and the Rating Agency of any such
designation, and such designation will become effective on the date
specified therein only if (i) in the reasonable belief of the Transferor
such designation would not cause a Pay Out Event to occur or an event
which, with notice or the lapse of time or both, would constitute a Pay Out
Event and (ii) the Rating Agency confirms in writing its then-current
rating on any outstanding series.
INVESTOR PERCENTAGE AND TRANSFEROR PERCENTAGE
The Servicer will allocate between the Invested Amount of each Series
issued by the Trust (and between each Class of each Series) and the
Transferor Interest, and, in certain circumstances, the interest of certain
Enhancement Providers, all amounts collected on Finance Charge Receivables,
all amounts collected on Principal Receivables and all Receivables in
Defaulted Accounts. The Servicer will make each allocation by reference to
the applicable Investor Percentage of each Series and the Transferor
Percentage, and, in certain circumstances, the percentage interest of
certain Enhancement Providers (the "ENHANCEMENT PERCENTAGE") with respect
to such Series. The Prospectus Supplement relating to a Series will specify
the Investor Percentage and, if applicable, the Enhancement Percentage (or
the method of calculating such percentage) with respect to the allocations
of collections of Principal Receivables, Finance Charge Receivables and
Receivables in Defaulted Accounts during the Revolving Period and any
Amortization Period, as applicable. In addition, for each Series of
Certificates having more than one Class, the related Prospectus Supplement
will specify the method of allocation between each Class.
The Transferor Percentage will, in all cases, be equal to 100% minus
the aggregate Investor Percentages and, if applicable, the Enhancement
Percentages, for all Series then outstanding.
APPLICATION OF COLLECTIONS
Allocations. Except as otherwise provided below or in a Series
Supplement, the Servicer will deposit into the Collection Account, no later
than the second business day following the date of processing, any payment
collected by the Servicer on the Receivables; provided, however, that the
Servicer need not deposit amounts to be paid to the holder of the
Exchangeable Transferor Certificate and certain amounts allocated to
Certificateholders of a Series, as specified in the related Series
Supplement, into the Collection Account, and provided, further, that for as
long as the Bank remains the Servicer under the Pooling and Servicing
Agreement, and (a)(i) the Servicer provides to the Trustee a letter of
credit covering collection risk of the Servicer acceptable to the Rating
Agency and (ii) the Transferor shall not have received a notice from the
Rating Agency that such letter of credit would result in the lowering of
such Rating Agency's then existing rating of any Series of Certificates
then outstanding, or (b) the Servicer has and maintains a certificate of
deposit rating of P-1 by Moody's and of A-1 by Standard & Poor's and
deposit insurance provided by either BIF or SAIF, then the Servicer may
make such deposits and payments on the business day immediately prior to
the Distribution Date (the "TRANSFER DATE") in an amount equal to the net
amount of such deposits and payments which would have been made had the
conditions of this proviso not applied.
Any amounts collected in respect of Principal Receivables not paid to
the Transferor because the Transferor Interest expressed as a percentage of
the aggregate amount of Principal Receivables has been reduced below the
Minimum Transferor Interest ("UNALLOCATED PRINCIPAL COLLECTIONS"), together
with any adjustment payments, as described below, will be held in the
Collection Account and only paid to the Transferor if and to the extent
that such percentage with respect to the Transferor Interest is greater
than the Minimum Transferor Interest. Unallocated Principal Collections
will be applied to principal shortfalls for each Series on the applicable
Transfer Date. If principal shortfalls for all Series exceed Unallocated
Principal Collections for any Monthly Period, Unallocated Principal
Collections will be allocated pro rata among the applicable Series based on
the relative amounts of principal shortfalls.
FUNDING PERIOD
For any Series of Certificates, the related Prospectus Supplement may
specify that for a period beginning on the Series Closing Date and ending
on a specified date before the commencement of an Amortization Period or
Accumulation Period with respect to such Series (the "FUNDING PERIOD"), the
aggregate amount of Principal Receivables in the Trust allocable to such
Series may be less than the aggregate principal amount of the Certificates
of such Series and that the amount of such deficiency (the "PRE-FUNDING
AMOUNT") will be held in a trust account established with the Trustee for
the benefit of the Certificateholders of such Series (the "PRE-FUNDING
ACCOUNT") pending the transfer of additional Receivables to the Trust or
pending the reduction of the Invested Amounts of other Series. The related
Prospectus Supplement will specify the initial Invested Amount with respect
to such Series, the aggregate principal amount of the Certificates of such
Series (the "FULL INVESTED AMOUNT") and the date by which the Invested
Amount is expected to equal the Full Invested Amount. The Invested Amount
of such a Series will increase as Receivables are delivered to the Trust or
as the Invested Amounts of other Series are reduced. The Invested Amount
may also decrease due to Investor Charge-Offs as provided in the related
Prospectus Supplement.
During the Funding Period, funds on deposit in the Pre-Funding
Account for a Series of Certificates will be withdrawn and paid to the
Transferor to the extent of any increases in the Invested Amount. In the
event that the Invested Amount does not for any reason equal the Full
Invested Amount by the end of the Funding Period, any amount remaining in
the Pre-Funding Account and any additional amounts specified in the related
Prospectus Supplement will be payable to the Certificateholders of such
Series in the manner and at such time as set forth in the related
Prospectus Supplement.
If so specified in the related Prospectus Supplement, monies in the
Pre-Funding Account will be invested by the Trustee in Permitted
Investments or will be subject to a guaranteed rate or investment agreement
or other similar arrangement, and, in connection with each Distribution
Date during the Funding Period, investment earnings on funds in the
Pre-Funding Account during the related Monthly Period will be withdrawn
from the Pre-Funding Account and deposited, together with any applicable
payment under a guaranteed rate or investment agreement or other similar
arrangement, into the Collection Account for distribution in respect of
interest on the Certificates of the related Series in the manner specified
in the related Prospectus Supplement.
DEFAULTED RECEIVABLES; REBATES AND FRAUDULENT CHARGES
For each Series of Certificates, on the first business day on or
before the eighth calendar day prior to each Distribution Date (the
"DETERMINATION DATE"), the Servicer will calculate the Investor Default
Amount for the preceding Monthly Period. Receivables in any Account will be
charged off as uncollectible in accordance with the Servicer's customary
and usual policies and procedures for servicing its own comparable credit
card accounts (such an Account, a "DEFAULTED ACCOUNT"). The term "DEFAULT
AMOUNT" means, for any Monthly Period, an amount (which shall not be less
than zero) equal to (a) the aggregate amount of Principal Receivables
(other than Ineligible Receivables) in Defaulted Accounts on the day such
Account became a Defaulted Account for each day in such Monthly Period
minus (b) the aggregate amount of Recoveries received in such Monthly
Period. A portion of the Default Amount (the "INVESTOR DEFAULT AMOUNT")
will be allocated to the Certificateholders for each Distribution Date in
an amount equal to the product of the Investor Percentage for the relevant
Series applicable during the related Monthly Period and the Default Amount
for such related Monthly Period. In the case of a Series of Certificates
having more than one Class, the Investor Default Amount will be allocated
among the Classes in the manner described in the related Prospectus
Supplement. If so provided in the related Prospectus Supplement, an amount
equal to the Investor Default Amount for any Monthly Period may be paid
from other amounts, including from Enhancement, and applied to pay
principal to Certificateholders or the holder of the Exchangeable
Transferor Certificate, as appropriate. In the case of a Series of
Certificates having one or more Classes of Subordinated Certificates, the
related Prospectus Supplement may provide that all or a portion of amounts
otherwise allocable to such Subordinated Certificates may be paid to the
Holders of the Senior Certificates to make up any Investor Default Amount
allocable to such Holders of the Senior Certificates.
If the Servicer adjusts the amount of any Principal Receivable
because of transactions occurring in respect of a rebate or refund to a
cardholder, or because such Principal Receivable was created in respect of
merchandise which was refused or returned by a cardholder, then the amount
of the Transferor Interest in the Trust will be reduced, on a net basis, by
the amount of the adjustment. In addition, the Transferor Interest in the
Trust will be reduced, on a net basis, as a result of transactions in
respect of any Principal Receivable which was discovered as having been
created through a fraudulent or counterfeit charge.
INVESTOR CHARGE-OFFS
With respect to each Series of Certificates, if the amount payable on
a Distribution Date or other specified date in respect of interest on the
Certificates, the Investor Servicing Fee (unless otherwise specified in the
related Prospectus Supplement), the Investor Default Amount and other
required fees exceeds the amount on deposit in the Collection Account
available therefor, available Enhancement amounts, if any, and amounts
available from other specified sources, then the Invested Amount with
respect to such Series will be reduced by the amount of such excess, but
not more than the Investor Default Amount (an "INVESTOR CHARGE-OFF").
Investor Charge-Offs will be reimbursed on any Distribution Date to the
extent amounts on deposit in the Collection Account and otherwise available
therefor exceed such interest, fees and any aggregate Investor Default
Amount payable on such date. Such reimbursement of Investor Charge-Offs
will result in an increase in the Invested Amount with respect to such
Series. In the case of a Series of Certificates having more than one Class,
the related Prospectus Supplement will describe the manner and priority of
allocating Investor Charge-Offs and reimbursements thereof among the
Invested Amounts of the Classes.
DEFEASANCE
If so specified in the related Prospectus Supplement relating to a
Series, the Transferor may terminate its substantive obligations in respect
of such Series or the Trust by depositing with the Trustee, from amounts
representing, or acquired with, collections of Receivables, money or
Permitted Investments sufficient to make all remaining scheduled interest
and principal payments on such Series or all outstanding Series of
Certificates of the Trust, as the case may be, on the dates scheduled for
such payments and to pay all amounts owing to any Enhancement Provider with
respect to such Series or all outstanding Series, as the case may be, if
such action would not result in a Pay Out Event for any Series. Prior to
its first exercise of its right to substitute money or Permitted
Investments for Receivables, the Transferor will deliver to the Trustee (i)
an opinion of counsel to the effect that such deposit and termination of
obligations will not result in the Trust being required to register as an
"investment company" within the meaning of the Investment Company Act of
1940, as amended and (ii) an opinion of counsel to the effect that, for
Federal income tax purposes, (a) such action will not adversely affect the
tax characterization as debt of Certificates of such Series or Class that
were characterized as debt at the time of their issuance, (b) following
such action the Trust will not be deemed to be an association (or publicly
traded partnership) taxable as a corporation and (c) such action will not
cause or constitute an event in which gain or loss would be recognized by
any Certificateholder or the Trust (an opinion of counsel with respect to
any matter to the effect referred to in clause (ii) with respect to any
action is referred to herein as a "TAX OPINION").
FINAL PAYMENT OF PRINCIPAL; TERMINATION
With respect to each Series, the Certificates will be subject to
optional repurchase by the Transferor on any Distribution Date after the
Invested Amount of such Series is reduced to an amount less than or equal
to the percentage of the initial outstanding principal amount of the
Certificates specified in the related Prospectus Supplement, if certain
conditions set forth in the Pooling and Servicing Agreement are met. Unless
otherwise specified in the related Prospectus Supplement, the repurchase
price will be equal to the Invested Amount of such Series (less the amount,
if any, on deposit in any Principal Funding Account with respect to such
Series), plus accrued and unpaid interest on the Certificates.
The Certificates of each Series will be retired on the day following
the Distribution Date on which the final payment of principal is scheduled
to be made to the Certificateholders, whether as a result of optional
reassignment to the Transferor or otherwise. Each Prospectus Supplement
will specify the final date on which principal and interest with respect to
the related Series of Certificates will be scheduled to be distributed (the
"STATED SERIES TERMINATION DATE"); provided, however, that the Certificates
may be subject to prior termination as provided above. If the Invested
Amount is greater than zero on the Stated Series Termination Date, the
Trustee will be required to sell or cause to be sold certain Receivables
allocable to such Series in the manner provided in the Pooling and
Servicing Agreement and Series Supplement and to pay the net proceeds of
such sale and any collections on the Receivables, up to an amount equal to
the sum of the Invested Amount plus accrued interest due on the
Certificates and any other amounts specified in the related Prospectus
Supplement, to the Certificateholders of such Series on such Stated Series
Termination Date as final payment of the Certificates.
Unless the Servicer and the holder of the Exchangeable Transferor
Certificate instruct the Trustee otherwise, the Trust will terminate on the
earlier of (a) the day after the Distribution Date with respect to any
Series following the date on which funds shall have been deposited in the
Distribution Account for the payment to Certificateholders of each Series
outstanding sufficient to pay in full the aggregate Investor Interest of
all Series outstanding plus accrued interest thereon at the applicable
certificate rates through the end of the related Monthly Period, or (b)
August 1, 2032. Upon the termination of the Trust and the surrender of the
Exchangeable Transferor Certificate, the Trustee shall convey to the holder
of the Exchangeable Transferor Certificate all right, title and interest of
the Trust in and to the Receivables and other funds of the Trust (other
than funds on deposit in the Distribution Account and other similar bank
accounts of the Trust with respect to other Series).
PAY OUT EVENTS
Unless otherwise specified in the related Prospectus Supplement, as
described above, the Revolving Period will continue through the date
specified in the related Prospectus Supplement unless a Pay Out Event
occurs prior to such date. A "PAY OUT EVENT" occurs with respect to all
Series issued by the Trust upon the occurrence of either of the following
events:
(a) certain events of insolvency or receivership relating to the
Transferor; or
(b) the Trust becomes subject to regulation as an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
In addition, a Pay Out Event may occur with respect to any Series
upon the occurrence of any other event specified in the related Prospectus
Supplement. On the date on which a Pay Out Event is deemed to have
occurred, the Rapid Amortization Period will commence. If, because of the
occurrence of a Pay Out Event, the Rapid Amortization Period begins earlier
than the scheduled commencement of a Controlled Amortization Period or an
Accumulation Period or prior to a Scheduled Payment Date,
Certificateholders will begin receiving distributions of principal earlier
than they otherwise would have, which may shorten the average life of the
Certificates.
If the only Pay Out Event to occur is either the insolvency of the
Transferor or the appointment of a receiver or conservator for the
Transferor, the receiver or conservator for the Transferor may have the
power to delay or prevent commencement of the Rapid Amortization Period.
In addition to the consequences of a Pay Out Event discussed above,
unless otherwise specified in the related Prospectus Supplement, if
pursuant to certain provisions of Federal law, the Transferor voluntarily
enters liquidation or a receiver is appointed for the Transferor, on the
day of such event the Transferor will immediately cease to transfer
Principal Receivables to the Trust and promptly give notice to the Trustee
of such event. Within 15 days, the Trustee will publish a notice of the
liquidation or the appointment stating that the Trustee intends to sell,
dispose of, or otherwise liquidate the Receivables in a commercially
reasonable manner. Unless otherwise instructed within a specified period by
Certificateholders representing undivided interests aggregating more than
50% of the Invested Amount of each such Series (or if any Series has more
than one Class, of each Class, and any other person specified in the
Pooling and Servicing Agreement) issued and outstanding, the Trustee will
sell, dispose of, or otherwise liquidate the portion of the Receivables
allocated to the Certificates and the Receivables allocable to other Series
with respect to which all outstanding Classes did not vote to continue the
Trust in accordance with the Pooling and Servicing Agreement in a
commercially reasonable manner and on commercially reasonable terms. The
proceeds from the sale, disposition or liquidation of the Receivables will
be treated as collections of the Receivables and applied with respect to
such Series as provided above in "--Application of Collections" and in the
related Prospectus Supplement.
If the only Pay Out Event to occur is either the insolvency of the
Transferor or the appointment of a conservator or receiver for the
Transferor, the conservator or receiver may have the power to prevent the
early sale, liquidation or disposition of the Receivables and the
commencement of the Rapid Amortization Period. In addition, a conservator
or receiver may have the power to cause the early sale of the Receivables
and the early retirement of the Certificates. See "Certain Legal Aspects of
the Receivables--Certain Matters Relating to Receivership."
CERTAIN MATTERS REGARDING THE TRANSFEROR AND THE SERVICER
First USA Bank, N.A. will service the Receivables (in such capacity,
the "SERVICER"). The principal executive office of the Bank is located at
201 North Walnut Street, Wilmington, Delaware 19801, telephone number (302)
594-4000. The Servicer will receive a fee as servicing compensation from
the Trust in respect of each Series in the amounts and at the times
specified in the related Prospectus Supplement (the "INVESTOR SERVICING
FEE"). The Investor Servicing Fee may be payable from Finance Charge
Receivables, Interchange or other amounts as specified in the related
Prospectus Supplement.
The Servicer may not resign from its obligations and duties under the
Pooling and Servicing Agreement, except upon determination that performance
of its duties is no longer permissible under applicable law. No such
resignation will become effective until the Trustee or a successor to the
Servicer has assumed the Servicer's responsibilities and obligations under
the Pooling and Servicing Agreement. The Bank, as initial Servicer, has
delegated some of its servicing duties to FDR; however, such delegation
does not relieve it of its obligation to perform such duties in accordance
with the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement provides that the Servicer will
indemnify the Trust and Trustee from and against any reasonable loss,
liability, expense, damage or injury suffered or sustained by reason of any
acts or omissions or alleged acts or omissions of the Servicer with respect
to the activities of the Trust or the Trustee; provided, however, that the
Servicer shall not indemnify (a) the Trustee for liabilities imposed by
reason of fraud, negligence, or willful misconduct by the Trustee in the
performance of its duties under the Pooling and Servicing Agreement, (b)
the Trust, the Certificateholders or the Certificate Owners for liabilities
arising from actions taken by the Trustee at the request of
Certificateholders, (c) the Trust, the Certificateholders or the
Certificate Owners for any losses, claims, damages or liabilities incurred
by any of them in their capacities as investors, including without
limitation, losses incurred as a result of defaulted Receivables or
Receivables which are written off as uncollectible or (d) the Trust, the
Certificateholders or the Certificate Owners for any liabilities, costs or
expenses of the Trust, the Certificateholders or the Certificate Owners
arising under any tax law, including without limitation, any Federal, state
or local income or franchise tax or any other tax imposed on or measured by
income (or any interest or penalties with respect thereto or arising from a
failure to comply therewith) required to be paid by the Trust, the
Certificateholders or the Certificate Owners in connection with the Pooling
and Servicing Agreement to any taxing authority.
In addition, the Pooling and Servicing Agreement provides that,
subject to certain exceptions, the Transferor will indemnify the Trust and
the Trustee from and against any reasonable loss, liability, expense,
damage or injury arising out of or based upon the arrangement created by
the Pooling and Servicing Agreement as though the Pooling and Servicing
Agreement created a partnership under the New York Uniform Partnership Act
in which the Transferor is a general partner.
The Pooling and Servicing Agreement provides that neither the
Transferor nor the Servicer nor any of their respective directors,
officers, employees or agents will be under any other liability to the
Trust, the Certificateholders or any other person for any action taken, or
for refraining from taking any action, in good faith pursuant to the
Pooling and Servicing Agreement. Neither the Transferor, the Servicer, nor
any of their respective directors, officers, employees or agents will be
protected against any liability which would otherwise be imposed by reason
of willful misfeasance, bad faith or gross negligence of the Transferor,
the Servicer or any such person in the performance of its duties or by
reason of reckless disregard of obligations and duties thereunder. In
addition, the Pooling and Servicing Agreement provides that the Servicer is
not under any obligation to appear in, prosecute or defend any legal action
which is not incidental to its servicing responsibilities under the Pooling
and Servicing Agreement and which in its opinion may expose it to any
expense or liability.
The Pooling and Servicing Agreement provides that, in addition to
Exchanges, the Transferor may transfer its interest in a portion of the
Exchangeable Transferor Certificate, provided that prior to any such
transfer (a) the Trustee receives written notification from each Rating
Agency that such transfer will not result in a lowering of its
then-existing rating of the Certificates rated by it and (b) the Trustee
receives a written opinion of counsel confirming that such transfer would
not adversely affect the treatment of the Certificates for each outstanding
Series as debt for Federal income tax purposes.
Any person into which, in accordance with the Pooling and Servicing
Agreement, the Transferor or the Servicer may be merged or consolidated or
any person resulting from any merger or consolidation to which the
Transferor or the Servicer is a party, or any person succeeding to the
business of the Transferor or the Servicer, upon execution of a supplement
to the Pooling and Servicing Agreement and delivery of an opinion of
counsel with respect to the compliance of the transaction with the
applicable provisions of the Pooling and Servicing Agreement, will be the
successor to the Transferor or the Servicer, as the case may be, under the
Pooling and Servicing Agreement.
SERVICER DEFAULT
In the event of any Servicer Default (as defined below), either the
Trustee or Certificateholders representing undivided interests aggregating
more than 50% of the aggregate investor interests for all outstanding
Series of Certificates, by written notice to the Servicer (and to the
Trustee if given by the Certificateholders), may terminate all of the
rights and obligations of the Servicer as servicer under the Pooling and
Servicing Agreement and in and to the Receivables and the proceeds thereof
and the Trustee may appoint a new Servicer (a "SERVICE TRANSFER"). The
rights and interest of the Transferor under the Pooling and Servicing
Agreement and in the Transferor Interest will not be affected by such
termination. The Trustee shall as promptly as possible appoint a successor
Servicer. If no such Servicer has been appointed and has accepted such
appointment by the time the Servicer ceases to act as Servicer, all
authority, power and obligations of the Servicer under the Pooling and
Servicing Agreement shall pass to and be vested in the Trustee. If the
Trustee is unable to obtain any bids from eligible servicers and the
Servicer delivers an officer's certificate to the effect that it cannot in
good faith cure the Servicer Default which gave rise to a transfer of
servicing, and if the Trustee is legally unable to act as successor
Servicer, then the Trustee shall give the Transferor the right of first
refusal to purchase the Receivables on terms equivalent to the best
purchase offer as determined by the Trustee.
A "SERVICER DEFAULT" refers to any of the following events:
(a) failure by the Servicer to make any payment, transfer or
deposit, or to give instructions to the Trustee to make certain
payments, transfers or deposits, on the date the Servicer is required
to do so under the Pooling and Servicing Agreement or any Series
Supplement (or within the applicable grace period, which shall not
exceed five (5) business days);
(b) failure on the part of the Servicer duly to observe or
perform in any respect any other covenants or agreements of the
Servicer which has a material adverse effect on the
Certificateholders of any Series then outstanding and which continues
unremedied for a period of 60 days after written notice and continues
to have a material adverse effect on the Certificateholders of any
Series, including the Certificates (which determination shall be made
without regard to whether funds are available from any Enhancement),
then outstanding for such period; or the delegation by the Servicer
of its duties under the Pooling and Servicing Agreement, except as
specifically permitted thereunder;
(c) any representation, warranty or certification made by the
Servicer in the Pooling and Servicing Agreement, or in any
certificate delivered pursuant to the Pooling and Servicing
Agreement, proves to have been incorrect when made which has a
material adverse effect on the Certificateholders of any Series,
including the Certificates (which determination shall be made without
regard to whether funds are available from any Enhancement), then
outstanding, and which continues to be incorrect in any material
respect for a period of 60 days after written notice and continues to
have a material adverse effect on such Certificateholders for such
period; or
(d) the occurrence of certain events of bankruptcy, insolvency
or receivership of the Servicer.
Notwithstanding the foregoing, a delay in or failure of performance
referred to in clause (a) above for a period of ten (10) business days, or
referred to under clause (b) or (c) for a period of 60 business days, shall
not constitute a Servicer Default if such delay or failure could not be
prevented by the exercise of reasonable diligence by the Servicer and such
delay or failure was caused by an act of God or other similar occurrence.
Upon the occurrence of any such event, the Servicer shall not be relieved
from using its best efforts to perform its obligations in a timely manner
in accordance with the terms of the Pooling and Servicing Agreement, and
the Servicer shall provide the Trustee, any Enhancement Provider, the
Transferor and the holders of Certificates of all Series outstanding prompt
notice of such failure or delay by it, together with a description of the
cause of such failure or delay and its efforts to perform its obligations.
In the event of a Servicer Default, if a conservator or receiver is
appointed for the Servicer and no Servicer Default other than such
conservatorship or receivership or the insolvency of the Servicer exists,
the conservator or receiver may have the power to prevent either the
Trustee or the majority of the Certificateholders from effecting a Service
Transfer.
REPORTS TO CERTIFICATEHOLDERS
Unless otherwise specified in the related Prospectus Supplement, for
each Series of Certificates, on each Distribution Date, or as soon
thereafter as is practicable, as specified in the related Prospectus
Supplement, the Trustee or any Paying Agent appointed by the Trustee will
forward to each Certificateholder of record a statement prepared by the
Servicer setting forth certain information with respect to the Trust and
the Certificates of each Series, including, among other things: (a) the
total amount distributed, (b) the amount of the distribution allocable to
principal of the Certificates, (c) the amount of distribution on such
Distribution Date allocable to interest on the Certificates, (d) the amount
of collections of Principal Receivables processed during the preceding
month or months since the last Distribution Date and allocated in respect
of the Certificates, (e) the amount of collections of Finance Charge
Receivables processed during the related Monthly Period and allocated in
respect of the Certificates, (f) the Investor Percentage for the related
Monthly Period, (g) the aggregate outstanding balance of Accounts which are
35 or more days contractually delinquent, by class of delinquency, as of
the end of the last day of the related Monthly Period, (h) the applicable
Investor Default Amount for the related Monthly Period, (i) the applicable
Investor Charge-Offs for the related Monthly Period and the amount of
Investor Charge-Offs reimbursed on the Transfer Date immediately preceding
the Distribution Date, (j) the amount of the Investor Servicing Fee for the
related Monthly Period, (k) the Invested Amount at the close of business on
the last day of the related Monthly Period, and (l) the amount available,
if any, pursuant to the applicable Enhancement.
On or before January 31 of each calendar year or such other date as
specified in the related Prospectus Supplement, the Trustee or any Paying
Agent appointed by the Trustee will furnish to each person who at any time
during the preceding calendar year was a Certificateholder of record, a
statement prepared by the Servicer containing the information required to
be contained in the regular monthly report to Certificateholders, as set
forth in clauses (a), (b) and (c) above aggregated for such calendar year
or the applicable portion thereof during which such person was a
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
Certificateholders to prepare their United States tax returns.
REPORTS; NOTICES
With respect to any Series which is listed on the Luxembourg Stock
Exchange, the Trustee will publish or will cause to be published following
each Distribution Date in a daily newspaper in Luxembourg (expected to be
the Luxemburger Wort) a notice to the effect that the information set forth
in the foregoing paragraph will be available for review at the main office
of the listing agent of the Trust in Luxembourg, Luxembourg.
In addition, with respect to such Series, notices to
Certificateholders will be given by publication in a daily newspaper in
Luxembourg, which is expected to be the Luxemburger Wort. In the event that
Definitive Certificates are issued, notices to Certificateholders will also
be given by mail to the addresses of such holders as they appear in the
Certificate Register referred to in the Pooling and Servicing Agreement.
EVIDENCE AS TO COMPLIANCE
The Pooling and Servicing Agreement provides that the Servicer will
cause a firm of independent public accountants to furnish to the Trustee on
an annual basis a report to the effect that such firm has reviewed the
Servicer's computer reports regarding the Receivables, including
information regarding delinquencies, charge-offs and yield and that such
reports are in agreement with monthly statements prepared by the Servicer
and distributed to the Trustee and the Certificateholders, except as set
forth in such report.
The Pooling and Servicing Agreement provides that the Servicer will
cause a firm of independent public accountants to furnish to the Trustee on
an annual basis a report to the effect that such firm has made a study and
evaluation in accordance with generally accepted auditing standards of the
Servicer's internal accounting controls relative to the servicing of the
Accounts and that, on the basis of such examination, such firm is of the
opinion (assuming the accuracy of reports by the Servicer's third party
agents) that the system of internal controls in effect for the reporting
period relating to servicing procedures performed by the Servicer, taken as
a whole, provided reasonable assurance that the internal control system was
sufficient for the prevention and detection of errors and irregularities
and that such servicing was conducted in compliance with such provisions of
the Pooling and Servicing Agreement with which such accountants can
reasonably be expected to possess adequate knowledge of the subject matter,
which are susceptible of positive assurance by such accountants and for
which their professional competence is relevant, except for such exceptions
as such firm shall believe to be immaterial and such other exceptions as
shall be set forth in such statement.
The Pooling and Servicing Agreement also provides for delivery to the
Trustee, on or before a certain date each year, of a certificate signed by
an officer of the Servicer stating that the Servicer has fulfilled its
obligations under the Pooling and Servicing Agreement throughout the
preceding twelve months or, if there has been a default in the fulfillment
of any such obligations, describing each such default.
AMENDMENTS
The Pooling and Servicing Agreement and any Series 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) the Rating Agency Condition will be satisfied
with respect to such amendment. Such an amendment may be entered into in
order to comply with or obtain the benefits of certain current and future
tax legislation (such as the legislation creating FASITs) as described
below under "Certain U.S. Federal Income Tax Consequences-FASIT
Legislation" or to modify the provisions of the Pooling and Servicing
Agreement relating to the removal of Accounts to be consistent with
accounting requirements for off balance sheet treatment for Receivables in
the Trust.
The Pooling and Servicing Agreement and the Series 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 Pooling and Servicing
Agreement or the Series 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 Pooling and Servicing Agreement, the Trustee will furnish
written notice of the substance of such amendment to each
Certificateholder. Any Series Supplement and any amendments regarding the
addition or removal of Receivables from the Trust will not be considered an
amendment requiring Certificateholder consent under the provisions of the
Pooling and Servicing Agreement and any Series Supplement.
LIST OF CERTIFICATEHOLDERS
With respect to each Series of Certificates, upon written request of
Certificateholders of record representing undivided interests in the Trust
aggregating not less than 10% (or such other percentage specified in the
related Prospectus Supplement) of the Invested Amount of a Series, the
Trustee after having been adequately indemnified by such Certificateholders
for its costs and expenses, and having given the Servicer notice that such
request has been made, will afford such Certificateholders access during
business hours to the current list of Certificateholders of the Trust for
purposes of communicating with other Certificateholders with respect to
their rights under the Pooling and Servicing Agreement. See "--Book-Entry
Registration" and "--Definitive Certificates" above.
THE TRUSTEE
The Bank of New York (Delaware) is currently the Trustee under the
Pooling and Servicing Agreement. The Transferor, the Servicer and their
respective affiliates may from time to time enter into normal banking and
trustee relationships with the Trustee and its affiliates. The Trustee, the
Transferor, the Servicer and any of their respective affiliates may hold
Certificates in their own names. In addition, for purposes of meeting the
legal requirements of certain local jurisdictions, the Trustee shall have
the power to appoint a co-trustee or separate trustees of all or any part
of the Trust. In the event of such appointment, all rights, powers, duties
and obligations conferred or imposed upon the Trustee by the Pooling and
Servicing Agreement shall be conferred or imposed upon the Trustee and such
separate trustee or co-trustee jointly, or, in any jurisdiction in which
the Trustee shall be incompetent or unqualified to perform certain acts,
singly upon such separate trustee or co-trustee who shall exercise and
perform such rights, powers, duties and obligations solely at the direction
of the Trustee.
The Trustee may resign at any time, in which event the Transferor
will be obligated to appoint a successor Trustee. The Transferor may also
remove the Trustee if the Trustee ceases to be eligible to continue as such
under the Pooling and Servicing Agreement or if the Trustee becomes
insolvent. In such circumstances, the Transferor will be obligated to
appoint a successor Trustee. Any resignation or removal of the Trustee and
appointment of a successor Trustee does not become effective until
acceptance of the appointment by the successor Trustee.
ENHANCEMENT
GENERAL
For any Series, "ENHANCEMENT" may be provided with respect to one or
more Classes thereof. Enhancement may be in the form of the subordination
of one or more Classes of the Certificates of such Series, the
establishment of a cash collateral guaranty or account, a letter of credit,
a surety bond, an insurance policy, a spread account, a reserve account,
the use of cross support features or another method of Enhancement
described in the related Prospectus Supplement, or any combination of the
foregoing. If so specified in the related Prospectus Supplement, any form
of Enhancement may be structured so as to be drawn upon by more than one
Class to the extent described therein.
The type, characteristics and amount of the Enhancement for any
Series or Class will be determined based on several factors, including the
characteristics of the Receivables and Accounts included in the Trust
Portfolio as of the Closing Date with respect to such Series and the
desired rating for each Class, and will be established on the basis of
requirements of each Rating Agency rating the Certificates of such Series
or Class.
Unless otherwise specified in the related Prospectus Supplement for a
Series, the Enhancement will not provide protection against all risks of
loss and will not guarantee repayment of the entire principal balance of
the Certificates and interest thereon. If losses occur which exceed the
amount covered by the Enhancement or which are not covered by the
Enhancement, Certificateholders will bear their allocable share of
deficiencies.
If Enhancement is provided with respect to a Series, the related
Prospectus Supplement will include a description of (a) the amount payable
under such Enhancement, (b) any conditions to payment thereunder not
otherwise described herein, (c) the conditions (if any) under which the
amount payable under such Enhancement may be reduced and under which such
Enhancement may be terminated or replaced and (d) any material provision of
any agreement relating to such Enhancement. Additionally, the related
Prospectus Supplement may set forth certain information with respect to the
issuer of any third party Enhancement (the "ENHANCEMENT PROVIDER"),
including (i) a brief description of its principal business activities,
(ii) its principal place of business, place of incorporation and the
jurisdiction under which it is chartered or licensed to do business, (iii)
if applicable, the identity of regulatory agencies which exercise primary
jurisdiction over the conduct of its business and (iv) its total assets,
and its stockholders' or policy holders' surplus, if applicable, and other
appropriate financial information as of the date specified in the related
Prospectus Supplement. If so specified in the related Prospectus
Supplement, the Enhancement with respect to a Series may be available to
pay principal of the Certificates of such Series following the occurrence
of certain Pay Out Events with respect to such Series. In such event, the
Enhancement Provider may have an interest in certain cash flows in respect
of the Receivables to the extent described in such Prospectus Supplement
(the "ENHANCEMENT INVESTED AMOUNT").
SUBORDINATION
If so specified in the related Prospectus Supplement, one or more
Classes of any Series will be subordinated as described in the related
Prospectus Supplement to the extent necessary to fund payments with respect
to the Senior Certificates or specified Certificates of another Series. The
rights of the holders of any such Subordinated Certificates to receive
distributions of principal and/or interest on any Distribution Date for
such Series will be subordinate in right and priority to the rights of the
holders of Senior Certificates, but only to the extent set forth in the
related Prospectus Supplement. If so specified in the related Prospectus
Supplement, subordination may apply only in the event of certain types of
losses not covered by another Enhancement. The related Prospectus
Supplement will also set forth information concerning the amount of
subordination of a Class or Classes of Subordinated Certificates in a
Series, the circumstances in which such subordination will be applicable,
the manner, if any, in which the amount of subordination will decrease over
time, and the conditions under which amounts available from payments that
would otherwise be made to holders of such Subordinated Certificates will
be distributed to holders of Senior Certificates. If collections of
Receivables otherwise distributable to holders of a subordinated Class of a
Series will be used as support for a Class of another Series, the related
Prospectus Supplement will specify the manner and conditions for applying
such a cross-support feature.
LETTER OF CREDIT
If so specified in the related Prospectus Supplement, support for a
Series or one or more Classes thereof will be provided by one or more
letters of credit. A letter of credit may provide limited protection
against certain losses in addition to or in lieu of other Enhancement. The
issuer of the letter of credit (the "L/C BANK") will be obligated to honor
demands with respect to such letter of credit, to the extent of the amount
available thereunder, to provide funds under the circumstances and subject
to such conditions as are specified in the related Prospectus Supplement.
The maximum liability of an L/C Bank under its letter of credit will
generally be an amount equal to a percentage specified in the related
Prospectus Supplement of the initial Invested Amount of a Series or a Class
of such Series. The maximum amount available at any time to be paid under a
letter of credit will be determined in the manner specified therein and in
the related Prospectus Supplement.
CASH COLLATERAL GUARANTY OR ACCOUNT
If so specified in the related Prospectus Supplement, support for a
Series or one or more Classes thereof will be provided by a guaranty (the
"CASH COLLATERAL GUARANTY") secured by the deposit of cash or certain
permitted investments in an account (the "CASH COLLATERAL ACCOUNT")
reserved for the beneficiaries of the Cash Collateral Guaranty or by a Cash
Collateral Account alone. The amount available pursuant to the Cash
Collateral Guaranty or the Cash Collateral Account will be the lesser of
amounts on deposit in the Cash Collateral Account and an amount specified
in the related Prospectus Supplement. The related Prospectus Supplement
will set forth the circumstances under which payments are made to
beneficiaries of the Cash Collateral Guaranty from the Cash Collateral
Account or from the Cash Collateral Account directly.
COLLATERAL INVESTED AMOUNT
If so specified in the related Prospectus Supplement, support for a
Series or one or more Classes thereof will be provided initially by an
undivided interest in the Trust (the "COLLATERAL INVESTED AMOUNT") in an
amount initially equal to a percentage of the Senior Certificates of such
Series as specified in the related Prospectus Supplement. Such Series may
also have the benefit of a Cash Collateral Guaranty or Cash Collateral
Account with an initial amount on deposit therein of zero or such amount as
specified in the related Prospectus Supplement which will be increased (i)
to the extent the Transferor elects, subject to certain conditions
specified in such Prospectus Supplement, to apply collections of Principal
Receivables allocable to the Collateral Invested Amount to decrease the
Collateral Invested Amount, (ii) to the extent collections of Principal
Receivables allocable to the Collateral Invested Amount are required to be
deposited into the Cash Collateral Account as specified in such Prospectus
Supplement and (iii) to the extent excess collections of Finance Charge
Receivables are required to be deposited into the Cash Collateral Account
as specified in such Prospectus Supplement. The total amount of the
Enhancement available pursuant to the Collateral Invested Amount and the
Cash Collateral Guaranty or Cash Collateral Account will be the lesser of
the sum of the Collateral Invested Amount and the amount on deposit in the
Cash Collateral Account and an amount specified in the related Prospectus
Supplement. The related Prospectus Supplement will set forth the
circumstances under which payments which otherwise would be made to holders
of the Collateral Invested Amount will be distributed to holders of Senior
Certificates and, if applicable, the circumstances under which payment will
be made to the beneficiaries of the Cash Collateral Guaranty or from the
Cash Collateral Account directly.
If so specified in the related Prospectus Supplement, the Collateral
Invested Amount may be issued in certificated form and may have voting and
certain other rights of a subordinated Class of Certificates. Any
Collateral Invested Amount issued in certificated form may be offered
hereby or under a separate Disclosure Document in transactions either
registered under the Securities Act or exempt from registration thereunder.
SURETY BOND OR INSURANCE POLICY
If so specified in the related Prospectus Supplement, insurance with
respect to a Series or one or more Classes thereof will be provided by one
or more insurance companies. Such insurance will guarantee, with respect to
one or more Classes of the related Series, distributions of interest or
principal in the manner and amount specified in the related Prospectus
Supplement.
If so specified in the related Prospectus Supplement, a surety bond
will be purchased for the benefit of the holders of any Series or Class of
such Series to assure distributions of interest or principal with respect
to such Series or Class of Certificates in the manner and amount specified
in the related Prospectus Supplement.
SPREAD ACCOUNT
If so specified in the related Prospectus Supplement, support for a
Series or one or more Classes thereof will be provided by the periodic
deposit of certain available excess cash flow from the Trust assets into an
account (the "SPREAD ACCOUNT") intended to assist with subsequent
distribution of interest on and principal of the Certificates of such Class
or Series in the manner specified in the related Prospectus Supplement.
RESERVE ACCOUNT
If so specified in the related Prospectus Supplement, support for a
Series or one or more Classes thereof will be provided by the establishment
of a reserve account (the "RESERVE ACCOUNT"). The Reserve Account may be
funded, to the extent provided in the related Prospectus Supplement, by an
initial cash deposit, the retention of certain periodic distributions of
principal or interest or both otherwise payable to one or more Classes of
Certificates, including the Subordinated Certificates, or both, or the
provision of a letter of credit, guaranty, insurance policy or other form
of credit or any combination thereof. The Reserve Account will be
established to assist with the subsequent distribution of principal or
interest on the Certificates of such Series or Class thereof in the manner
provided in the related Prospectus Supplement.
CERTIFICATE RATINGS
Any rating of the Certificates by a Rating Agency will indicate:
o its view on the likelihood that Certificateholders will
receive required interest and principal payments; and
o its evaluation of the Receivables and the availability of
any Enhancement for the Certificates.
Among the things a rating will not indicate are:
o the likelihood that principal payments will be made on a
scheduled payment date;
o the likelihood that a Pay Out Event will occur;
o the likelihood that a United States withholding tax will
be imposed on non-U.S. Certificateholders;
o the marketability of the Certificates;
o the market price of the Certificates; or
o whether the Certificates are an appropriate investment for
any purchaser.
A rating will not be a recommendation to buy, sell or hold the
Certificates. A rating may be lowered or withdrawn at any time by a Rating
Agency.
The Transferor will request a rating of the Certificates offered by
this Prospectus and the related Prospectus Supplement from at least one
Rating Agency. It will be a condition to the issuance of the Certificates
of each Series or Class offered pursuant to this Prospectus and the related
Prospectus Supplement (including each Series that includes a Pre-Funding
Account) that they be rated in one of the four highest rating categories by
at least one nationally recognized rating organization (each such rating
agency selected by the Transferor to rate any Series, a "RATING AGENCY").
The rating or ratings applicable to the Certificates of each Series or
Class offered hereby will be set forth in the related Prospectus
Supplement. Rating agencies other than those requested could assign a
rating to the Certificates and such a rating could be lower than any rating
assigned by a Rating Agency chosen by the Transferor.
CERTAIN LEGAL ASPECTS OF THE RECEIVABLES
TRANSFER OF RECEIVABLES
The Transferor has represented and warranted in the Pooling and
Servicing Agreement that the transfer of Receivables by it to the Trust is
either a valid transfer and assignment to the Trust of all right, title and
interest of the Transferor in and to the related Receivables, except for
the interest of the Transferor as holder of the Exchangeable Transferor
Certificate, or the grant to the Trust of a security interest in such
Receivables. The Transferor has also represented and warranted in the
Pooling and Servicing Agreement that, in the event the transfer of
Receivables by the Transferor to the Trust is deemed to create a security
interest under the Uniform Commercial Code as in effect in the State of
Delaware (the "UCC") there will exist a valid, subsisting and enforceable
first priority perfected security interest in such Receivables created
thereafter in favor of the Trust on and after their creation, except for
certain tax and other governmental liens, subject to the limitations below.
For a discussion of the Trust's rights arising from a breach of these
warranties, see "Description of the Certificates--Representations and
Warranties."
The Transferor has represented as to Receivables to be conveyed to
the Trust, that the Receivables are "accounts" for purposes of the UCC.
Both the transfer and assignment of accounts and the transfer of accounts
as security for an obligation are treated under Article 9 of the UCC as
creating a security interest therein and are subject to its provisions, and
the filing of an appropriate financing statement is required to perfect the
security interest of the Trust. Financing statements covering the
Receivables have been and will be filed with the appropriate governmental
authority to protect the interests of the Trust in the Receivables.
There are certain limited circumstances under the UCC in which a
prior or subsequent transferee of Receivables coming into existence after a
Series Closing Date could have an interest in such Receivables with
priority over the Trust's interest. Under the Pooling and Servicing
Agreement, however, the Transferor has represented and warranted that it
transferred the Receivables to the Trust free and clear of the lien of any
third party. In addition, the Transferor has covenanted that it will not
sell, pledge, assign, transfer or grant any lien on any Receivable (or any
interest therein) other than to the Trust. A tax or government lien or
other nonconsensual lien on property of the Transferor arising prior to the
time a Receivable comes into existence may also have priority over the
interest of the Trust in such Receivable. If the FDIC were appointed as
receiver of the Transferor, certain administrative expenses of the receiver
may also have priority over the interest of the Trust in such Receivable.
CERTAIN MATTERS RELATING TO RECEIVERSHIP
The Bank is chartered as a national banking association and is
subject to regulation and supervision by the United States Comptroller of
the Currency (the "COMPTROLLER"). If the Bank becomes insolvent or is in an
unsound condition or if certain other circumstances occur, the Comptroller
is authorized to appoint the FDIC as receiver.
The Federal Deposit Insurance Act ("FDIA"), as amended by the
Financial Institutions Reform, Recovery and Enforcement Act of 1989,
("FIRREA"), sets forth certain powers that the FDIC may exercise if it were
appointed as conservator or receiver of the Transferor or the Servicer.
Among other things, the FDIA grants such a conservator or receiver the
power to repudiate contracts of, and to request a stay of up to 90 days of
any judicial action or proceeding involving, the Transferor or the
Servicer.
To the extent that (i) the Transferor granted a security interest in
the Receivables to the Trust, (ii) the interest was validly perfected
before the Transferor's insolvency, (iii) the interest was not taken or
granted in contemplation of the Transferor's insolvency or with the intent
to hinder, delay or defraud the Transferor or its creditors, (iv) the
Pooling and Servicing Agreement is continuously a record of the Bank, and
(v) the Pooling and Servicing Agreement represents a bona fide and arm's
length transaction undertaken for adequate consideration in the ordinary
course of business and that the Trustee is the secured party and is not an
insider or affiliate of the Transferor, such valid perfected security
interest of the Trustee would be enforceable (to the extent of the Trust's
"actual direct compensatory damages") notwithstanding the insolvency of, or
the appointment of a receiver or conservator for, the Transferor and
payments to the Trust with respect to the Receivables (up to the amount of
such damages) should not be subject to an automatic stay of payment or to
recovery by the FDIC as conservator or receiver of the Transferor. If,
however, the FDIC were to assert that the security interest was unperfected
or unenforceable or were to require the Trustee to establish its right to
those payments by submitting to and completing the administrative claims
procedure established under FIRREA or the FDIC as conservator or receiver
were to request a stay of proceedings with respect to the Transferor as
provided under FIRREA, delays in payments on the Certificates and possible
reductions in the amount of those payments could occur. The FDIA does not
define the term "actual direct compensatory damages." The FDIC has stated
that a claim for "actual direct compensatory damages" is limited to such
damages determined as of the date of appointment of the FDIC as conservator
or receiver. Since the FDIC may delay repudiation or disaffirmation for up
to 180 days following such appointment, investors may not have a claim for
interest accrued during this 180 day period. In addition, in one case
involving the repudiation by the Resolution Trust Corporation, formerly a
sister agency of the FDIC, of certain secured zero-coupon bonds issued by a
savings association, a United States Federal district court held that
"actual direct compensatory damages" in the case of a marketable security
meant the market value of the repudiated bonds as of the date of
repudiation. If that court's view were applied to determine the Trust's
"actual direct compensatory damages" in the event the FDIC repudiated the
Transferor's obligations under the Pooling and Servicing Agreement, the
amount paid to Certificateholders could, depending upon circumstances
existing on the date of the repudiation, be less than the principal of the
Certificates and the interest accrued thereon to the date of payment.
The Pooling and Servicing Agreement provides that, upon the
appointment of a conservator or receiver or upon a voluntary liquidation
with respect to the Transferor, the Transferor will promptly give notice
thereof to the Trustee and a Pay Out Event will occur with respect to all
Series then outstanding. Pursuant to the Pooling and Servicing Agreement,
newly created Principal Receivables will not be transferred to the Trust on
and after any such appointment or voluntary liquidation, and the Trustee
will proceed to sell, dispose of or otherwise liquidate the Receivables in
a commercially reasonable manner and on commercially reasonable terms,
unless otherwise instructed within a specified period by holders of
Certificates representing undivided interests aggregating more than 50% of
the Invested Amount of each Series (or if any Series has more than one
Class, of each Class, and any other person specified in the Pooling and
Servicing Agreement or a Series Supplement), or unless otherwise required
by the FDIC as receiver or conservator of the Transferor. Under the Pooling
and Servicing Agreement, the proceeds from the sale of the Receivables
allocable to the Certificates would be treated as collections of the
Receivables and would be distributed to the Certificateholders. This
procedure could be delayed, as described above. If the only Pay Out Event
to occur is either the insolvency of the Transferor or the appointment of a
conservator or receiver for the Transferor, the FDIC as conservator or
receiver may have the power to prevent the early sale, liquidation or
disposition of the Receivables and the commencement of the Rapid
Amortization Period. In addition, a conservator or receiver may have the
power to cause the early sale of the Receivables and the early retirement
of the Certificates or to prohibit the continued transfer of Principal
Receivables to the Trust. However, if no Servicer Default other than the
conservatorship or receivership of the Servicer exists, the conservator or
receiver for the Servicer may have the power to prevent either the Trustee
or the Certificateholders from appointing a successor Servicer under the
Pooling and Servicing Agreement. See "Description of the Certificates--Pay
Out Events."
If, upon the insolvency of the Servicer, the Servicer were to be
placed into conservatorship or receivership, the FDIC as conservator or
receiver would have the power to repudiate and refuse to perform any
obligations, including servicing obligations, of the Servicer under the
Pooling and Servicing Agreement or any other contract, and to request a
stay of up to 90 days of any judicial action or proceeding involving the
Servicer.
In Octagon Gas Systems, Inc. v. Rimmer, 995 F.2d 948 (10th Cir.
1993), cert. denied, 114 S. Ct. 554 (1993) ("OCTAGON"), the United States
Court of Appeals for the 10th Circuit suggested that even where a transfer
of accounts from a seller to a buyer constitutes a "true sale," the
accounts would nevertheless constitute property of the seller's bankruptcy
estate in a bankruptcy of the seller. If the Transferor were to be placed
into receivership and a court were to follow the Octagon court's reasoning,
Certificateholders might experience delays in payment or possibly losses in
their investment in the Certificates. Counsel has advised the Transferor
that the facts of the Octagon case are distinguishable from those in the
sale transactions between the Transferor and the Trust and that the
reasoning of the Octagon case appears to be inconsistent with established
precedent and the UCC. In addition, because the Transferor, the Trust and
the transactions governed by the Pooling and Servicing Agreement do not
have any particular link to the 10th Circuit, it is unlikely that the
Transferor would be subject to a receivership proceeding in the 10th
Circuit. Accordingly, the Octagon case should not be binding precedent on a
court in a receivership proceeding.
CONSUMER PROTECTION LAWS
The relationship of the cardholder and credit card issuer is
extensively regulated by Federal and state consumer protection laws. With
respect to credit cards issued by First USA, the most significant laws
include the Federal Truth-in-Lending, Equal Credit Opportunity, Fair Credit
Reporting, Fair Debt Collection Practices and Electronic Funds Transfer
Acts. These statutes impose disclosure requirements when a credit card
account is advertised, when it is opened, at the end of monthly billing
cycles, and at year end. In addition, these statutes limit customer
liability for unauthorized use, prohibit certain discriminatory practices
in extending credit, and impose certain limitations on the type of
account-related charges that may be assessed. Cardholders are entitled
under these laws to have payments and credits applied to the credit card
accounts promptly, to receive prescribed notices and to require billing
errors to be resolved promptly.
The Trust may be liable for certain violations of consumer protection
laws that apply to the related Receivables, either as assignee from the
Transferor with respect to obligations arising before transfer of the
Receivables to the Trust or as a party directly responsible for obligations
arising after the transfer. In addition, a cardholder may be entitled to
assert such violations by way of set-off against his obligation to pay the
amount of Receivables owing. The Transferor warrants in the Pooling and
Servicing Agreement that all related Receivables have been and will be
created in compliance with the requirements of such laws. The Servicer also
agrees in the Pooling and Servicing Agreement to indemnify the Trust for,
among other things, any liability arising from such violations caused by
the Servicer. For a discussion of the Trust's rights arising from the
breach of these warranties, see "Description of the
Certificates--Representations and Warranties."
Various proposed laws and amendments to existing laws have from time
to time been introduced in Congress and certain state and local
legislatures that, if enacted, would further regulate the credit card
industry, certain of which would, among other things, impose a ceiling on
the rate at which a financial institution may assess finance charges and
fees on credit card accounts that would be substantially below the rates of
the finance charges and fees the Bank currently assesses on its accounts.
In particular, on May 5, 1999 an amendment to the Federal Truth-in-Lending
Act was passed by the House of Representatives as a part of the bankruptcy
reform bill and referred to the Senate. This amendment, among other things,
requires (i) disclosure as to the time it would take a consumer to repay a
balance if the consumer makes only the minimum payments, (ii) disclosure as
to when any introductory rate will expire, as well as the rate that will
then apply and (iii) disclosure in internet based solicitations identical
to that contained in direct mail solicitations. In addition, on May 4,
1999, President Clinton proposed similar legislation to require additional
disclosure in credit cards bills and solicitations.
The potential effect of any legislation which limits the amount of
finance charges and fees that may be charged on credit cards could be to
reduce the portfolio yield on the Accounts. If such portfolio yield is
reduced, a Pay Out Event may occur, and the Rapid Amortization Period would
commence.
The Soldiers' and Sailors' Civil Relief Act of 1940 allows
individuals on active duty in the military to cap the interest rate on
debts incurred before the call to active duty to 6% per annum. In addition,
subject to judicial discretion, any action or court proceeding in which an
individual in military service is involved may be stayed if the
individual's rights would be prejudiced by denial of such stay.
Application of Federal and state bankruptcy and debtor relief laws
would affect the interests of the Certificateholders if such laws result in
any related Receivables being written off as uncollectible when the amount
available under any Enhancement is equal to zero. See "Description of the
Certificates--Defaulted Receivables; Rebates and Fraudulent Charges."
INDUSTRY LITIGATION
In October 1998, the United States Department of Justice (the "DOJ")
filed an antitrust lawsuit in Federal court in Manhattan against VISA
U.S.A., Inc., VISA International Inc. (together, "VISA") and MasterCard
International Incorporated ("MASTERCARD INTERNATIONAL") alleging that the
two credit card associations restrain competition and limit consumer
choice. The DOJ in such lawsuit challenges, among other things, the control
of both VISA and MasterCard International by the same set of banks, as well
as the rules adopted by the two associations prohibiting members from
offering credit cards of competitors. In public statements, both VISA and
MasterCard International have contested the DOJ's allegations. The Bank is
unable to predict what the effect of such lawsuit may ultimately be on the
Bank's credit card business. A final adverse decision against VISA and
MasterCard International, or a similar settlement with the DOJ by the two
associations, could result in changes in the current associations and may
result in adverse consequences for members of the two associations, such as
the Bank.
OTHER LITIGATION
A number of lawsuits seeking class action certification have been
filed in both state and federal courts against the Bank. These lawsuits
challenge certain of the policies and practices of the Bank's credit card
business. Practices of the Bank which have been challenged in such cases
include, but are not limited to, the Bank's manner of charging fees on
certain accounts, the Bank's mailing of unsolicited credit cards, the
Bank's processing of payments and subsequent posting of late fees and
increasing annual percentage rates on certain accounts and the Bank's
policies on releasing certain cardholder information to third parties. A
few of these lawsuits have been preliminarily certified as class actions.
The Bank has defended itself against similar claims in the past and intends
to continue to do so in the future. While it is impossible to predict the
outcome of any of these lawsuits, the Bank believes that any liability
which might result from any of these lawsuits will not have a material
adverse effect on the Receivables of the Trust.
CERTAIN U.S. FEDERAL INCOME TAX CONSEQUENCES
GENERAL
The following discussion, summarizing certain anticipated United
States ("U.S.") Federal income tax aspects of the purchase, ownership and
disposition of the Certificates of a Series, is based upon the provisions
of the Internal Revenue Code of 1986, as amended (the "CODE"), proposed,
temporary and final Treasury regulations thereunder, and published rulings
and court decisions in effect as of the date hereof, all of which are
subject to change, possibly retroactively. This discussion does not address
every aspect of the U.S. Federal income tax laws that may be relevant to
Certificate Owners of a Series in light of their personal investment
circumstances or to certain types of Certificate Owners of a Series subject
to special treatment under U.S. Federal income tax laws (for example, banks
and life insurance companies). Each prospective Certificate Owner is urged
to consult its own tax advisor in determining the Federal, state, local and
foreign income and any other tax consequences of the purchase, ownership
and disposition of a Certificate.
CHARACTERIZATION OF THE CERTIFICATES AS INDEBTEDNESS
Unless otherwise specified in the related Prospectus Supplement,
special tax counsel to the Bank ("SPECIAL TAX COUNSEL") specified in such
Prospectus Supplement will, upon issuance of a Series of Certificates,
advise the Bank based on the assumptions and qualifications set forth in
the opinion that the Certificates of such Series that are offered pursuant
to a Prospectus Supplement (the "OFFERED CERTIFICATES," and for purposes of
this section "Certain U.S. Federal Income Tax Consequences" the term
"CERTIFICATE OWNER" refers to a holder of a beneficial interest in an
Offered Certificate) will be treated as indebtedness for Federal income tax
purposes. However, opinions of counsel are not binding on the Internal
Revenue Service (the "IRS") and there can be no assurance that the IRS
could not successfully challenge this conclusion.
The Transferor expresses in the Pooling and Servicing Agreement its
intent that for Federal, state and local income or franchise tax purposes,
the Offered Certificates of each Series will be indebtedness secured by the
Receivables. The Transferor agrees and each Certificateholder and
Certificate Owner, by acquiring an interest in an Offered Certificate,
agrees or will be deemed to agree, to treat the Offered Certificates of
such Series as indebtedness for Federal, state, local and foreign income or
franchise tax purposes. However, because different criteria are used to
determine the non-tax accounting characterization of the transactions
contemplated by the Pooling and Servicing Agreement, the Transferor expects
to treat such transaction, for regulatory and financial accounting
purposes, as a sale of an ownership interest in the Receivables and not as
a secured loan.
In general, whether for Federal income tax purposes a transaction
constitutes a sale of property or a loan, the repayment of which is secured
by the property, is a question of fact, the resolution of which is based
upon the economic substance of the transaction rather than its form or the
manner in which it is labeled. While the IRS and the courts have set forth
several factors to be taken into account in determining whether the
substance of a transaction is a sale of property or a secured loan for
Federal income tax purposes, the primary factor in making this
determination is whether the transferee has assumed the risk of loss or
other economic burdens relating to the property and has obtained the
benefits of ownership thereof. Unless otherwise set forth in a Prospectus
Supplement, it is expected that, as set forth in its opinion, Special Tax
Counsel will analyze and rely on several factors in reaching its opinion
that the weight of the benefits and burdens of ownership of the Receivables
has not been transferred to the Certificate Owners.
In some instances, courts have held that a taxpayer is bound by a
particular form it has chosen for a transaction, even if the substance of
the transaction does not accord with its form. Unless otherwise specified
in a Prospectus Supplement, it is expected that Special Tax Counsel will
advise that the rationale of those cases will not apply to the transaction
evidenced by a Series of Certificates, because the form of the transaction,
as reflected in the operative provisions of the documents, either is not
inconsistent with the characterization of the Offered Certificates of such
Series as debt for Federal income tax purposes or otherwise makes the
rationale of those cases inapplicable to this situation.
PROPOSED LEGISLATION
On February 1, 1999, President Clinton's Fiscal Year 2000 Budget
Proposal, or the Budget Proposal, was submitted to Congress. Among other
things, the Budget Proposal contains a legislative proposal that, if
adopted in its current form, would generally preclude taxpayers from taking
positions inconsistent with the "form" of their transaction if a "tax
indifferent party" has a direct or indirect interest in the transaction.
The Budget proposal would only apply to transactions entered into on or
after the date of first committee action. In addition, the Budget Proposal
provides several exceptions to this rule. One such exception would apply
where reporting the substance of a transaction more clearly reflects the
income of the taxpayer than reporting it in accordance with its "form." The
Budget Proposal would authorize the IRS to prescribe regulations to carry
out the purpose of the rule, including the exceptions thereto.
As currently drafted, it is unclear whether the Budget Proposal would
apply to securities such as the Certificates. It is impossible to predict
whether the proposed legislation will be enacted, and if so, in what form.
Prospective investors should consult their own tax advisors regarding the
proposed legislation.
TAXATION OF INTEREST INCOME OF CERTIFICATEHOLDERS
As set forth above, it is expected that, unless otherwise specified
in a Prospectus Supplement, Special Tax Counsel will advise the Bank that
the Offered Certificates will constitute indebtedness for Federal income
tax purposes, and accordingly, interest thereon will be includible in
income by Certificate Owners as ordinary income in accordance with their
respective methods of tax accounting. Interest received on the Offered
Certificates may also constitute "investment income" for purposes of
certain limitations of the Code concerning the deductibility of investment
interest expense.
While it is not anticipated that the Offered Certificates will be
issued at a greater than de minimis discount, under applicable Treasury
regulations (the "REGULATIONS") the Offered Certificates may nevertheless
be deemed to have been issued with original issue discount ("OID"). This
could be the case, for example, if interest payments for a Series are not
treated as "qualified stated interest" because the IRS determines that (i)
no reasonable legal remedies exist to compel timely payment and (ii) the
Offered Certificates do not have terms and conditions that make the
likelihood of late payment (other than a late payment that occurs within a
reasonable grace period) or nonpayment a remote contingency. Applicable
regulations provide that, for purposes of the foregoing test, the
possibility of nonpayment due to default, insolvency, or similar
circumstances, is ignored. Although this provision does not directly apply
to the Offered Certificates (because they have no actual default
provisions) the Transferor intends to take the position that, because
nonpayment can occur only as a result of events beyond its control
(principally, loss rates and payment delays on the Receivables
substantially in excess of those anticipated), nonpayment is a remote
contingency. Based on the foregoing, and on the fact that generally
interest will accrue on the Offered Certificates at a "qualified floating
rate," the Transferor intends to take the position that interest payments
on the Offered Certificates constitute qualified stated interest. If,
however, interest payments for a Series were not classified as "qualified
stated interest," all of the taxable income to be recognized with respect
to the Offered Certificates would be includible in income as OID but would
not be includible in income again when the interest is actually received.
If the Offered Certificates are in fact issued at a greater than de
minimis discount or are treated as having been issued with OID, the
following rules will apply. The excess of the "stated redemption price at
maturity" of an Offered Certificate over its original issue price (in this
case, the initial offering price at which a substantial amount of the
Offered Certificates are sold to the public) will constitute OID. A
Certificate Owner must include OID in income over the term of the Offered
Certificate under a constant yield method. In general, OID must be included
in income in advance of the receipt of cash representing that income. In
the case of a debt instrument as to which the repayment of principal may be
accelerated as a result of the prepayment of other obligations securing the
debt instrument (a "PREPAYABLE INSTRUMENT"), the periodic accrual of OID is
determined by taking into account both the prepayment assumptions used in
pricing the debt instrument and the prepayment experience. If this
provision applies to a Class of Certificates (which is not clear), the
amount of OID which will accrue in any given "accrual period" may either
increase or decrease depending upon the actual prepayment rate.
Accordingly, each Certificate Owner should consult its own tax advisor
regarding the impact to it of the OID rules if the Offered Certificates are
treated as having been issued with OID. Under the Regulations, a holder of
a Certificate issued with de minimis OID must include such OID in income
proportionately as principal payments are made on a Class of Certificates.
A Certificate Owner who purchases an Offered Certificate at a
discount from its adjusted issue price after its original issuance may be
subject to the "market discount" rules of the Code. These rules provide, in
part, for the treatment of gain attributable to accrued market discount as
ordinary income upon the receipt of partial principal payments or on the
sale or other disposition of the Offered Certificate, and for the deferral
of interest deductions with respect to debt incurred to acquire or carry
the market discount Offered Certificate.
A Certificate Owner who purchases an Offered Certificate after its
original issuance for an amount in excess of the sum of all amounts payable
on such Certificate after the purchase date other than payment of qualified
stated interest (the "REMAINING REDEMPTION AMOUNT") shall be considered to
have purchased the Certificate at a premium. Such Certificate Owner may
generally elect to amortize such premium (as an offset to interest income),
using a constant yield method, over the remaining term of the Certificate.
A Certificate Owner who purchases an Offered Certificate that was
issued with OID after its original issuance for an amount less than, or
equal to, the Remaining Redemption Amount but in excess of the Certificate
adjusted issue price (any such excess being "acquisition premium")
generally is permitted to reduce the daily portion of OID otherwise
includible in such Certificate Owner's taxable income.
SALE OR OTHER DISPOSITION OF A CERTIFICATE
In general, a Certificate Owner will recognize gain or loss upon the
sale, exchange, redemption, or other taxable disposition of an Offered
Certificate measured by the difference between (i) the amount of cash and
the fair market value of any property received (other than amounts
attributable to, and taxable as, accrued interest) and (ii) the Certificate
Owner's tax basis in the Offered Certificate (which is equal, in general,
to the purchase price of the Certificate increased by any OID or market
discount previously included in income by the holder and decreased by any
deductions previously allowed for amortizable bond premium and by any
payments reflecting principal or OID received with respect to such
Certificate). Subject to the market discount rules discussed above and to
the one-year holding requirement for long-term capital gain treatment, any
such gain or loss generally will be long-term capital gain, provided that
the Offered Certificate was held as a capital asset and provided, further,
that if the rules applicable to Prepayable Instruments apply, any OID not
previously accrued will be treated as ordinary income. The maximum ordinary
income tax rate for individuals, estates, and trusts exceeds the maximum
long-term capital gains tax rate for such taxpayers. In addition, capital
losses generally may be used only to offset capital gains.
TAX CHARACTERIZATION OF THE TRUST
The Pooling and Servicing Agreement permits the issuance of Classes
of Certificates that are treated for Federal income tax purposes either as
indebtedness or as an interest in a partnership. Accordingly, the Trust
could be characterized either as (i) a security device to hold Receivables
securing the repayment of the Certificates of all Series or (ii) a
partnership in which the Transferor and holder of certain classes of
Certificates are partners, and which has issued debt represented by other
Classes of Certificates (including, unless otherwise specified in a
Supplement, the Offered Certificates). In connection with the issuance of
Certificates of any Series, Special Tax Counsel will render an opinion to
the Bank, based on the assumptions and qualifications set forth therein,
that under then current law, the issuance of the Certificates of such
Series will not cause the Trust to be characterized for Federal income tax
purposes as an association (or publicly traded partnership) taxable as a
corporation. The assumptions and qualifications set forth in such opinion
will include the qualification that the opinion is limited to the issuance
of the Certificates of such Series by the Trust and an assumption that any
secondary transactions entered into with respect to any Class of
Certificates (such as the deposit of Certificates into a second trust and
the issuance of securities out of that trust) will not adversely affect the
Federal income tax status of the Trust.
The opinion of Special Tax Counsel with respect to Offered
Certificates and the Trust will not be binding on the courts or the IRS. It
is possible that the IRS could assert that, for purposes of the Code, the
transaction contemplated by this Prospectus and a Prospectus Supplement
constitutes a sale of the Receivables (or an interest therein) to the
Certificate Owners of one or more Series and that the proper classification
of the legal relationship between the Bank and some or all of the
Certificate Owners or Certificateholders of one or more Series resulting
from the transaction is that of a partnership, a publicly traded
partnership taxable as a corporation, or an association taxable as a
corporation. The Transferor currently does not intend to comply with the
Federal income tax reporting requirements that would apply if any Classes
of Certificates were treated as interests in a partnership or corporation
(unless, as is permitted by the Pooling and Servicing Agreement, an
interest in the Trust which is issued or sold is intended to be classified
as an interest in a partnership).
If the Trust were treated in whole or in part as a partnership in
which some or all Certificate Owners of one or more Series were partners,
that partnership could be classified as a publicly traded partnership
taxable as a corporation. A partnership will be classified as a publicly
traded partnership taxable as a corporation if equity interests therein are
traded on an "established securities market," or are "readily tradeable" on
a "secondary market" or its "substantial equivalent" unless certain
exceptions apply. One such exception would apply if the Trust is not
engaged in a "financial business" and 90% or more of its income consists of
interest and certain other types of passive income. Because Treasury
regulations do not clarify the meaning of the term "financial business" for
this purpose, it is unclear whether this exception applies. The Transferor
has taken and intends to take measures designed to reduce the risk that the
Trust could be classified as a publicly traded partnership taxable as a
corporation by reason of trading of interests in the Trust other than the
Offered Certificates and other certificates with respect to which an
opinion is rendered that such certificates constitute debt for Federal
income tax purposes. However, there can be no assurance that the Trust
could not become a publicly traded partnership, because certain of the
actions necessary to comply with such exceptions are not fully within the
control of the Transferor. Furthermore, certain Series issued prior to May
2, 1995 may not be able to be conformed to the measures taken by the
Transferor with respect to Series issued on or after that date.
If a transaction were treated as creating a partnership between the
Transferor and the Certificate Owners of one or more Series, the
partnership itself would not be subject to Federal income tax (unless it
were to be characterized as a publicly traded partnership taxable as a
corporation); rather, the partners of such partnership, including the
Certificate Owners of such Series, would be taxed individually on their
respective distributive shares of the partnership's income, gain, loss,
deductions and credits. The amount and timing of items of income and
deductions of a Certificate Owner could differ if the Offered Certificates
were held to constitute partnership interests, rather than indebtedness.
Moreover, unless the partnership were treated as engaged in a trade or
business, an individual's share of expenses of the partnership would be
miscellaneous itemized deductions that, in the aggregate, are allowed as
deductions only to the extent they exceed two percent of the individual's
adjusted gross income, and would be subject to reduction under Section 68
of the Code if the individual's adjusted gross income exceeded certain
limits. As a result, the individual might be taxed on a greater amount of
income than the stated rate on the Offered Certificates. Finally, if the
partnership were a publicly traded partnership that qualifies for exemption
from taxation as a corporation, all or a portion of any taxable income
allocated to a Certificate Owner that is a pension, profit-sharing or
employee benefit plan or other tax-exempt entity (including an individual
retirement account) may, under certain circumstances, constitute "unrelated
business taxable income" which generally would be taxable to the holder.
Partnership characterization also may have adverse state and local income
or franchise tax consequences for a Certificate Owner.
If it were determined that a transaction created an entity classified
as an association or as a publicly traded partnership taxable as a
corporation, the Trust would be subject to Federal income tax at corporate
income tax rates on the income it derives from the Receivables, which would
reduce the amounts available for distribution to the Certificate Owners,
possibly including Certificate Owners of a Class that is treated as
indebtedness. Such classification may also have adverse state and local tax
consequences that would reduce amounts available for distribution to
Certificate Owners. Cash distributions to the Certificate Owners (except
any Class not recharacterized as an equity interest in an association)
generally would be treated as dividends for tax purposes to the extent of
such deemed corporation's earnings and profits. Certain corporate
Certificate Owners might qualify for dividends-received deductions in
respect of such dividends.
FASIT LEGISLATION
Certain provisions of the Code provide for the creation of a new type
of entity for Federal income tax purposes, the "financial asset
securitization investment trust" ("FASIT"). However, although these
provisions were effective September 1, 1997, many technical issues
concerning FASITs must be addressed by Treasury regulations which have not
yet been issued. Although transition rules permit an entity in existence on
August 31, 1997, such as the Trust, to elect FASIT status, at the present
time it is not clear how outstanding interests of such an entity would be
treated subsequent to such an election. The Pooling and Servicing Agreement
may be amended in accordance with the provisions thereof to provide that
the Transferor may cause a FASIT election to be made for the Trust if the
Transferor delivers to the Trustee an opinion of counsel to the effect
that, for Federal income tax purposes, (i) the issuance of FASIT regular
interests will not adversely affect the tax characterization as debt of
Certificates of any outstanding Series or Class that were characterized as
debt at the time of their issuance, (ii) following such issuance, the Trust
will not be deemed to be an association (or publicly traded partnership)
taxable as a corporation and (iii) such issuance will not cause or
constitute an event in which gain or loss would be recognized by any
Certificate Owners or the Trust.
FOREIGN INVESTORS
As set forth above, it is expected that Special Tax Counsel will
render an opinion, upon issuance, that the Offered Certificates will be
treated as debt for U.S. Federal income tax purposes. The following
information describes the U.S. Federal income tax treatment of investors
that are Foreign Investors if the Offered Certificates are treated as debt.
The term "Foreign Investor" means any person other than (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, (iii) an estate the income of which is includible in
gross income for U.S. Federal income tax purposes, regardless of its source
or (iv) a trust if a U.S. court is able to exercise primary supervision
over the administration and one or more U.S. persons have the authority to
control all its substantial decisions.
Interest, including OID, paid to a Foreign Investor will be subject
to U.S. withholding taxes at a rate of 30% unless (x) the income is
"effectively connected" with the conduct by such Foreign Investor of a
trade or business in the United States or (y) the Foreign Investor and each
securities clearing organization, bank, or other financial institution that
holds the Offered Certificates on behalf of the customer in the ordinary
course of its trade or business, in the chain between the Certificate Owner
and the U.S. person otherwise required to withhold the U.S. tax, complies
with applicable identification requirements and, in addition (i) the
non-U.S. Certificate Owner does not actually or constructively own 10
percent or more of the total combined voting power of all classes of stock
of the Transferor entitled to vote (or of a profits or capital interest of
a trust characterized as a partnership), (ii) the non-U.S. Certificate
Owner is not a controlled foreign corporation that is related to the
Transferor (or a trust treated as a partnership) through stock ownership,
(iii) the non-U.S. Certificate Owner is not a bank receiving interest
described in Code Section 881(c)(3)(A), (iv) such interest is not
contingent interest described in Code Section 871(h)(4), and (v) the
non-U.S. Certificate Owner does not bear certain relationships to any
holder of the Exchangeable Transferor Certificate other than the Transferor
or any holder of the Certificates of any Series not properly characterized
as debt. Applicable identification requirements generally will be satisfied
if there is delivered to a securities clearing organization (i) IRS Form
W-8 signed under penalties of perjury by the Certificate Owner, stating
that the Certificate Owner is not a U.S. person and providing such
Certificate Owner's name and address, (ii) IRS Form 1001, signed by the
Certificate Owner or such Certificate Owner's agent, claiming exemption
from withholding under an applicable tax treaty, or (iii) IRS Form 4224
signed by the Certificate Owner or such owner's agent, claiming exemption
from withholding of tax on income effectively connected with the conduct of
a trade or business in the United States; provided that in any such case
(x) the applicable form is delivered pursuant to applicable procedures and
is properly transmitted to the United States entity otherwise required to
withhold tax and (y) none of the entities receiving the form has actual
knowledge that the Certificate Owner is a U.S. person.
On October 6, 1997, the Department of the Treasury issued new
regulations (the "NEW REGULATIONS") which make certain modifications to the
withholding, backup withholding and information reporting rules described
above. The New Regulations attempt to unify certification requirements and
modify reliance standards. The New Regulations will generally be effective
for payments made after December 31, 2000, subject to certain transition
rules. For payments made after December 31, 2000, Foreign Investors would
generally be required to provide IRS Forms W-8BEN and W-8ECI in lieu of IRS
Form 1001 or Form 4224, respectively. Prospective investors are urged to
consult their own tax advisors regarding the New Regulations.
A Certificate Owner that is a nonresident alien or foreign
corporation will not be subject to U.S. Federal income tax on gain realized
upon the sale, exchange, or redemption of an Offered Certificate, provided
that (i) such gain is not effectively connected with the conduct of a trade
or business in the United States, (ii) in the case of a Certificate Owner
that is an individual, such Certificate Owner is not present in the United
States for 183 days or more during the taxable year in which such sale,
exchange, or redemption occurs, and (iii) in the case of gain representing
accrued interest, the conditions described in the second preceding
paragraph are satisfied.
If the interests of the Certificate Owners of a Series were
reclassified as interests in a partnership (not taxable as a corporation),
such recharacterization could cause a Foreign Investor to be treated as
engaged in a trade or business in the United States. In such event the
Certificate Owner of such Series would be required to file a Federal income
tax return and, in general, would be subject to Federal income tax,
including branch profits tax in the case of a Certificateholder that is a
corporation, on its net income from the partnership. Further, the
partnership would be required, on a quarterly basis, to pay withholding tax
equal to the sum, for each foreign partner, of such foreign partner's
distributive share of "effectively connected" income of the partnership
multiplied by the highest rate of tax applicable to that foreign partner.
The tax withheld from each foreign partner would be credited against such
foreign partner's U.S. Federal income tax liability.
If the Trust were taxable as a corporation, distributions to foreign
persons, to the extent treated as dividends, would generally be subject to
withholding at the rate of 30%, unless such rate were reduced by an
applicable tax treaty.
STATE AND LOCAL TAXATION
The discussion above does not address the tax treatment of the Trust,
the Certificates of any Series, or the Certificate Owners of any Series
under state tax laws. Each investor should consult its own tax advisor
regarding state and local tax consequences of purchase, ownership or
disposition of the Certificates of any Series under any state or local tax
law.
ERISA CONSIDERATIONS
Section 406 of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), and Section 4975 of the Code prohibit a pension,
profit sharing or other employee benefit plan from engaging in certain
transactions involving "plan assets" with persons that are "parties in
interest" under ERISA or "disqualified persons" under the Code with respect
to the plan. ERISA also imposes certain duties on persons who are
fiduciaries of plans subject to ERISA and prohibits certain transactions
between a plan and parties in interest with respect to such plans. Under
ERISA, any person who exercises any authority or control respecting the
management or disposition of the assets of a plan is considered to be a
fiduciary of such plan (subject to certain exceptions not here relevant). A
violation of these "prohibited transaction" rules may generate excise tax
and other liabilities under ERISA and the Code for such persons.
Plan fiduciaries must determine whether the acquisition and holding
of the Certificates of a Series and the operations of the Trust would
result in direct or indirect prohibited transactions under ERISA and the
Code. The operations of the Trust could result in prohibited transactions
if Benefit Plans that purchase the Certificates of a Series are deemed to
own an interest in the underlying assets of the Trust.
Pursuant to a final regulation (the "FINAL REGULATION") issued by the
Department of Labor ("DOL") concerning the definition of what constitutes
the "plan assets" of an employee benefit plan subject to ERISA or the Code,
or an individual retirement account ("IRA") (collectively referred to as
"BENEFIT PLANS"), the assets and properties of certain entities in which a
Benefit Plan makes an equity investment could be deemed to be assets of the
Benefit Plan in certain circumstances. Accordingly, if Benefit Plans
purchase Certificates of a Series, the Trust could be deemed to hold plan
assets unless one of the exceptions under the Final Regulation is
applicable to the Trust.
The Plan Asset Regulation only applies to the purchase by a Benefit
Plan of an "equity interest" in an entity. Assuming that interests in
Certificates of a Series are equity interests, the Plan Asset Regulation
contains an exception that provides that if a Benefit Plan acquires a
"publicly-offered security," the issuer of the security is not deemed to
hold plan assets. A publicly-offered security is a security that is (i)
freely transferable, (ii) part of a class of securities that is owned by
100 or more investors independent of the issuer and of one another and
(iii) either is (A) part of a class of securities registered under Section
12(b) or 12(g) of the Exchange Act or (B) sold to the plan as part of an
offering of securities to the public pursuant to an effective registration
statement under the Securities Act and the class of securities of which
such security is a part is registered under the Exchange Act within 120
days (or such later time as may be allowed by the SEC) after the end of the
fiscal year of the issuer during which the offering of such securities to
the public occurred. In addition, the Plan Asset Regulation provides that
if a Benefit Plan invests in an "equity interest" of an entity that is
neither a "publicly-offered security" nor a security issued by an
investment company registered under the Investment Company Act of 1940, as
amended, the Benefit Plan's assets include both the equity interest and an
undivided interest in each of the entity's underlying assets, unless it is
established that equity participation by "benefit plan investors" is not
"significant" or that another exception applies.
Under the Plan Asset Regulation, equity participation in an entity by
"benefit plan investors" is "significant" on any date if, immediately after
the most recent acquisition of any equity interest in the entity (other
than a publicly-offered class of equity), 25% or more of the value of any
class of equity interests in the entity (other than a publicly-offered
class) is held by "benefit plan investors." For purposes of this
determination, the value of equity interests held by a person (other than a
benefit plan investor) that has discretionary authority or control with
respect to the assets of the entity or that provides investment advice for
a fee with respect to such assets (or any affiliate of such person) is
disregarded. The term "benefit plan investor" is defined in the Plan Asset
Regulation as (a) any employee benefit plan (as defined in Section 3(3) of
ERISA), whether or not it is subject to the provisions of Title I of ERISA,
(b) any plan described in Section 4975(e)(1) of the Code and (c) any entity
whose underlying assets include plan assets by reason of a plan's
investment in the entity.
Unless otherwise specified in the related Prospectus Supplement, it
is anticipated that interests in the Certificates of a Series will meet the
criteria of publicly-offered securities as set forth above. Unless
otherwise specified in the related Prospectus Supplement, the underwriters
expect (although no assurances can be given) that interests in each Class
of Certificates of each Series offered hereby will be held by at least 100
independent investors at the conclusion of the offering for such Series;
there are no restrictions imposed on the transfer of interests in the
Certificates of such Series; and interests in the Certificates of such
Series will be sold as part of an offering pursuant to an effective
registration statement under the Securities Act and then will be timely
registered under the Exchange Act.
If interests in the Certificates of a Series fail to meet the
criteria of publicly-offered securities or investment by benefit plan
investors becomes significant and the Trust's assets are deemed to include
assets of Benefit Plans that are Certificateholders, transactions involving
the Trust and "parties in interest" or "disqualified persons" with respect
to such plans might be prohibited under Section 406 of ERISA and Section
4975 of the Code unless an exemption is applicable. In addition, the
Transferor or any underwriter of such Series may be considered to be a
party in interest, disqualified person or fiduciary with respect to an
investing Benefit Plan. Accordingly, an investment by a Benefit Plan in
Certificates may be a prohibited transaction under ERISA and the Code
unless such investment is subject to a statutory or administrative
exemption. Thus, for example, if a participant in any Benefit Plan is a
cardholder of one of the Accounts, under DOL interpretations the purchase
of interests in Certificates by such plan could constitute a prohibited
transaction. Such transactions may, however, be subject to statutory or
administrative exemptions from the penalties normally associated with
prohibited transactions. Five class exemptions issued by the DOL that could
apply in such event are DOL Prohibited Transaction Exemption ("PTE") 84-14
(Class Exemption for Plan Asset Transactions Determined by Independent
Qualified Professional Asset Managers), 91-38 (Class Exemption for Certain
Transactions Involving Bank Collective Investment Funds), 90-1 (Class
Exemption for Certain Transactions Involving Insurance Company Pooled
Separate Accounts), 95-60 (Class Exemption for Certain Transactions
Involving Insurance Company General Accounts) and 96-23 (Class Exemption
for Plan Asset Transactions Determined by In-House Asset Managers). There
is no assurance that these exemptions, even if all of the conditions
specified therein are satisfied, or any other exemption will apply to all
transactions involving the Trust's assets.
IN LIGHT OF THE FOREGOING, FIDUCIARIES OF A BENEFIT PLAN CONSIDERING
THE PURCHASE OF INTERESTS IN CERTIFICATES OF ANY SERIES SHOULD CONSULT
THEIR OWN COUNSEL AS TO WHETHER THE ASSETS OF THE TRUST WHICH ARE
REPRESENTED BY SUCH INTERESTS WOULD BE CONSIDERED PLAN ASSETS, AND WHETHER,
UNDER THE GENERAL FIDUCIARY STANDARDS OF INVESTMENT PRUDENCE AND
DIVERSIFICATION, AN INVESTMENT IN CERTIFICATES OF ANY SERIES IS APPROPRIATE
FOR THE BENEFIT PLAN TAKING INTO ACCOUNT THE OVERALL INVESTMENT POLICY OF
THE BENEFIT PLAN AND THE COMPOSITION OF THE BENEFIT PLAN'S INVESTMENT
PORTFOLIO. In addition, fiduciaries should consider the consequences that
would apply if the Trust's assets were considered plan assets, the
applicability of exemptive relief from the prohibited transaction rules and
whether all conditions for such exemptive relief would be satisfied.
In particular, insurance companies considering the purchase of
Certificates of any Series should consult their own employee benefits
counsel or other appropriate counsel with respect to the United States
Supreme Court's decision in John Hancock Mutual Life Insurance Co. v.
Harris Trust & Savings Bank, 114 S. Ct. 517 (1993) ("JOHN HANCOCK") and the
applicability of PTE 95-60. In John Hancock, the Supreme Court held that
assets held in an insurance company's general account may be deemed to be
"plan assets" under certain circumstances; however, PTE 95-60 may exempt
some or all of the transactions that could occur as the result of the
acquisition and holding of the Certificates of a Series by an insurance
company general account from the penalties normally associated with
prohibited transactions. Accordingly, investors should analyze whether John
Hancock and PTE 95-60 or any other exemption may have an impact with
respect to their purchase of the Certificates of any Series.
In addition, insurance companies considering the purchase of
Certificates using assets of a general account should consult their own
employee benefits counsel or other appropriate counsel with respect to the
effect of the Small Business Job Protection Act of 1996 which added a new
Section 401(c) of ERISA relating to the status of the assets of insurance
company general accounts under ERISA and Section 4975 of the Code. Pursuant
to Section 401(c), the DOL is required to issue final regulations (the
"GENERAL ACCOUNT REGULATIONS") with respect to insurance policies issued on
or before December 31, 1998 that are supported by an insurer's general
account. The General Account Regulations are intended to provide guidance
on which assets held by the insurer constitute "plan assets" for purposes
of the fiduciary responsibility provisions of ERISA and Section 4975 of the
Code. Section 401(c) also provides that, except in the case of avoidance of
the General Account Regulations and actions brought by the Secretary of
Labor relating to certain breaches of fiduciary duties that also constitute
breaches of state or Federal criminal law, until the date that is 18 months
after the General Account Regulations become final, no liability under the
fiduciary responsibility and prohibited transaction provisions of ERISA and
Section 4975 may result on the basis of a claim that the assets of the
general account of an insurance company constitute the plan assets of any
Benefit Plan. The DOL has recently issued proposed regulations under
Section 401(c). It should be noted that if the General Account Regulations
are adopted substantially in the form in which proposed, the General
Account Regulations may not exempt the assets of insurance company general
accounts from treatment as "plan assets" after December 31, 1998. The plan
asset status of insurance company separate accounts is unaffected by new
Section 401(c) of ERISA, and separate account assets continue to be treated
as the plan assets of any Benefit Plan invested in a separate account. Plan
investors considering the purchase of Certificates of any Series on behalf
of an insurance company general account should consult their legal advisors
regarding the effect of the General Account Regulations on such purchase.
PLAN OF DISTRIBUTION
Subject to the terms and conditions set forth in an underwriting
agreement (an "UNDERWRITING AGREEMENT") to be entered into with respect to
a Series of Certificates, the Transferor will agree to sell to each of the
underwriters named therein and in the related Prospectus Supplement, and
each of such underwriters will severally agree to purchase from the
Transferor, the principal amount of Certificates set forth therein and in
the related Prospectus Supplement (subject to proportional adjustment on
the terms and conditions set forth in the related Underwriting Agreement in
the event of an increase or decrease in the aggregate amount of
Certificates offered hereby and by the related Prospectus Supplement).
In each Underwriting Agreement, the several underwriters will agree,
subject to the terms and conditions set forth therein, to purchase all the
Certificates offered hereby and by the related Prospectus Supplement if any
of such Certificates are purchased. In the event of a default by any
underwriter, each Underwriting Agreement will provide that, in certain
circumstances, purchase commitments of the nondefaulting underwriters may
be increased or the Underwriting Agreement may be terminated.
Each Prospectus Supplement will set forth the price at which each
Series of Certificates or Class being offered thereby initially will be
offered to the public and any concessions that may be offered to certain
dealers participating in the offering of such Certificates. After the
initial public offering, the public offering price and such concessions may
be changed.
Each Underwriting Agreement will provide that the Transferor will
indemnify the related underwriters against certain liabilities, including
liabilities under the Securities Act of 1933, as amended, or contribute to
payments such underwriters may be required to make in respect thereof. The
place and time of delivery for any Series of Certificates in respect of
which this Prospectus is delivered will be set forth in the accompanying
Prospectus Supplement.
Banc One Capital Markets, Inc. ("BOCM") is an affiliate of the
Transferor. Any obligations of BOCM are the sole obligations of BOCM, and
do not create any obligations on the part of any of its affiliates.
BOCM may from time to time purchase or acquire a position in the
Certificates and may, at its option, hold or resell such Certificates. BOCM
expects to offer and sell previously issued Certificates in the course of
its business as a broker-dealer. BOCM may act as a principal or an agent in
such transactions. This Prospectus and the related Prospectus Supplement
may be used by BOCM and in connection with such transactions. Such sales,
if any, will be made at varying prices related to prevailing market prices
at the time of sale.
LEGAL MATTERS
Certain legal matters relating to the issuance of the Certificates
will be passed upon for the Transferor by Joanne K. Sundheim, Senior Vice
President and Associate General Counsel of First USA Bank, N.A., and by
special counsel, Skadden, Arps, Slate, Meagher & Flom LLP, New York, New
York. Certain legal matters relating to the issuance of the Certificates
and ERISA matters will be passed upon for the underwriters by Skadden,
Arps, Slate, Meagher & Flom LLP, New York, New York.
REPORTS TO CERTIFICATEHOLDERS
Unless and until Definitive Certificates are issued, annual, monthly
and special reports, containing information concerning the Trust and
prepared by the Servicer, will be sent on behalf of the Trust to Cede as
nominee of DTC and registered holder of the related Certificates, pursuant
to the Pooling and Servicing Agreement. See "Description of the
Certificates--Book-Entry Registration," "--Reports to Certificateholders"
and "--Evidence as to Compliance." Such reports will not constitute
financial statements prepared in accordance with generally accepted
accounting principles. The Servicer does not intend to send any financial
reports of the Bank to Certificateholders or to the Certificate Owners. The
Servicer will file with the SEC such periodic reports with respect to the
Trust as are required under the Exchange Act and the rules and regulations
of the SEC thereunder.
WHERE YOU CAN FIND MORE INFORMATION
We filed a registration statement relating to the Certificates with
the SEC. This Prospectus is part of the registration statement, but the
registration statement includes additional information.
The Servicer will file with the SEC all required annual, monthly and
special SEC reports and other information about the Trust.
You may read and copy any reports, statements or other information we
file at the SEC's public reference room at 450 Fifth Street, N.W.,
Washington, D.C. 20549. You may request copies of these documents, upon
payment of a duplicating fee, by writing to the SEC. Please call the SEC at
(800) SEC-0330 for further information on the operation of the public
reference rooms. Our SEC filings are also available to the public on the
SEC Internet site (http://www.sec.gov).
The SEC allows us to "incorporate by reference" information we file
with it, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference
is considered to be part of this Prospectus. Information that we file later
with the SEC will automatically update the information in this Prospectus.
In all cases, you should rely on the later information over different
information included in this Prospectus or the related Prospectus
Supplement. We incorporate by reference any future annual, monthly and
special SEC reports and proxy materials filed by or on behalf of the Trust
until we terminate our offering of the Certificates.
As a recipient of this Prospectus, you may request a copy of any
document we incorporate by reference, except exhibits to the documents
(unless the exhibits are specifically incorporated by reference), at no
cost, by writing or calling us at: First USA Bank, National Association,
201 North Walnut Street, Wilmington, Delaware 19801, (302) 594-4000.
INDEX OF TERMS FOR PROSPECTUS
TERM PAGE
- ---- ----
Accounts.................................................................5, 10
Accumulation Period.........................................................20
Addition Cut-Off Date.......................................................25
Additional Accounts.........................................................10
Amortization Period.........................................................11
Annual Membership Fees......................................................10
Assignment..................................................................25
BANC ONE.................................................................7, 13
Bank.........................................................................5
BANK ONE....................................................................12
Bank Portfolio..............................................................10
Benefit Plans...............................................................46
BIF.........................................................................26
BOCM........................................................................49
Cash Advances................................................................8
Cash Collateral Account.....................................................36
Cash Collateral Guaranty....................................................36
Cede........................................................................15
Cedelbank...................................................................17
Cedelbank Customers.........................................................17
Certificate Rate............................................................14
Certificateholders..........................................................11
Certificates.................................................................5
Chevy Chase..................................................................7
Class.......................................................................11
Code........................................................................41
Collateral Invested Amount..................................................36
Collection Account..........................................................26
Companion Series............................................................21
Comptroller.................................................................38
Controlled Accumulation Amount..............................................20
Controlled Amortization Amount..............................................20
Controlled Amortization Period..............................................20
Controlled Deposit Amount...................................................20
Controlled Distribution Amount..........................................20, 28
Cooperative.................................................................17
Default Amount..............................................................28
Defaulted Account...........................................................28
Defaulted Accounts..........................................................14
Definitive Certificates.....................................................18
Depositaries................................................................15
Depository..............................................................15, 27
Determination Date..........................................................28
Disclosure Document.........................................................22
Discount Receivable Collections.............................................27
Discount Receivables....................................................11, 27
Distribution Account........................................................26
Distribution Date...........................................................19
DOJ.........................................................................40
DOL.........................................................................46
DTC Participants............................................................15
Eligible Account............................................................24
Eligible Receivable.........................................................24
Enhancement.............................................................10, 35
Enhancement Invested Amount.................................................35
Enhancement Percentage......................................................27
Enhancement Provider........................................................35
ERISA.......................................................................46
Euroclear...................................................................17
Euroclear Operator..........................................................17
Euroclear Participants......................................................17
Euroclear System............................................................17
Excess Principal Collections................................................21
Exchange....................................................................22
Exchange Act................................................................15
Exchangeable Transferor Certificate.........................................14
FASIT.......................................................................44
FDIA........................................................................38
FDIC........................................................................14
FDR..........................................................................5
Final Regulation............................................................46
Finance Charge Account......................................................26
Finance Charge Receivables..................................................11
FIRREA......................................................................38
First Commerce...............................................................7
Full Invested Amount........................................................28
Funding Period..............................................................28
GE Capital...................................................................7
General Account Regulations.................................................48
Holders.....................................................................18
Indirect Participants.......................................................16
Ineligible Receivable.......................................................23
Initial Closing Date........................................................23
Interchange..................................................................9
Interest Funding Account....................................................19
Invested Amount.............................................................14
Investor Charge-Off.........................................................29
Investor Interest...........................................................14
Investor Percentage.........................................................14
Investor Servicing Fee......................................................31
IRA.........................................................................46
IRS.........................................................................41
L/C Bank....................................................................36
MasterCard International....................................................40
MGT/EOC.....................................................................17
Minimum Aggregate Principal Receivables.....................................10
Minimum Transferor Interest.............................................10, 23
Monthly Period..............................................................19
Moody's.....................................................................26
New Regulations.............................................................45
Octagon.....................................................................39
Offered Certificates........................................................41
OID.........................................................................42
Original Cut-Off Date.......................................................10
Other Charges...............................................................10
Pay Out Event...............................................................30
Periodic Finance Charges....................................................10
Permitted Investments.......................................................26
Pooling and Servicing Agreement..............................................5
Pre-Funding Account.........................................................28
Pre-Funding Amount..........................................................28
Predecessor Bank.............................................................7
Prepayable Instrument.......................................................42
Principal Account...........................................................26
Principal Commencement Date.................................................19
Principal Funding Account...................................................19
Principal Receivables.......................................................10
Principal Terms.............................................................22
Prospectus Supplement........................................................5
PTE.........................................................................47
Purchases....................................................................8
Qualified Institution.......................................................26
Rapid Amortization Period...................................................21
Rating Agency...........................................................22, 37
Rating Agency Condition......................................................7
Receivables.................................................................10
Record Date.................................................................14
Recoveries...................................................................9
Regulations.................................................................42
Remaining Redemption Amount.................................................43
Reserve Account.............................................................37
Revolving Period............................................................20
SAIF........................................................................26
Scheduled Payment Date......................................................19
SEC.........................................................................16
Securities Act..............................................................22
Senior Certificates.........................................................14
Series Closing Date.........................................................23
Series Cut-Off Dates........................................................23
Series Supplement...........................................................13
Service Transfer............................................................32
Servicer....................................................................30
Special Tax Counsel.........................................................41
Spread Account..............................................................37
Standard & Poor's...........................................................26
Stated Series Termination Date..............................................29
Subordinated Certificates...................................................14
Tax Opinion.................................................................29
Terms and Conditions........................................................18
Transferor Amount...........................................................14
Transferor Interest.........................................................14
Transferor Percentage.......................................................15
Trust Portfolio.............................................................11
Trust Portfolio..............................................................5
U.S.........................................................................41
UCC.........................................................................38
Unallocated Principal Collections...........................................27
Underwriting Agreement......................................................49
VISA........................................................................40
Yield Factor................................................................27
PART II
ITEM 14.OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is an itemized list of the estimated expenses to be incurred in
connection with the offering of the securities being offered hereunder other
than underwriting discounts and commissions.
Registration Fee $278
Printing and Engraving *
Trustee's Fees *
Legal Fees and Expenses *
Accountant's Fees and Expenses *
Rating Agency Fees *
Miscellaneous Fees *
------
Total *
======
- ------------------
* To be supplied by amendment.
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Article Tenth of the Bank's Articles of Incorporation provides that the
Bank shall indemnify every person who is or was a director, officer or
employee of the Bank or of any corporation which he served as a director,
officer or employee at the request of the Bank as part of his regularly
assigned duties against all liability (including, without limitation,
judgments, fines, penalties and settlements) and all reasonable expenses
(including, without limitation, attorneys' fees and investigative expenses)
that may be incurred or paid by him in connection with any claim, action,
suit or proceeding, whether civil, criminal or administrative (all referred
to hereafter as "claims") or in connection with any appeal relating thereto
in which he may become involved as a party or otherwise or with which he
may be threatened by reason of his being or having been a director, officer
or employee of the Bank or such other corporation, or by reason of any
action taken or omitted by him in his capacity as such director, officer or
employee, whether or not he continues to be such at the time such liability
or expenses are incurred; provided that nothing contained in Article Tenth
shall be construed to permit indemnification of any such person who is
adjudged guilty of, or liable for, willful misconduct, gross neglect of
duty or criminal acts, unless, at the time such indemnification is sought,
such indemnification in such instance is permissible under applicable law
and regulations, including published rulings of the Comptroller of the
Currency or other appropriate supervisory or regulatory authority; and
provided further that there shall be no indemnification of directors,
officers or employees against expenses, penalties or other payments
incurred in an administrative proceeding or action instituted by an
appropriate regulatory agency which proceeding or action results in a final
order assessing civil money penalties or requiring affirmative action by an
individual or individuals in the form of payments to the Bank.
Article Tenth provides that every person who may be indemnified under
the provisions of Article Tenth and who has been wholly successful on the
merits with respect to any claim shall be entitled to indemnification as of
right. Except as provided in the preceding sentence, any indemnification
under Article Tenth shall be at the sole discretion of the Board of
Directors and shall be made only if the Board of Directors or the Executive
Committee acting by a quorum consisting of directors who are not parties to
such claim shall find, or if independent legal counsel (who may be the
regular counsel of the Bank) selected by the Board of Directors or
Executive Committee, whether or not a disinterested quorum exists, shall
render their opinion that in view of all of the circumstances then
surrounding the claim, such indemnification is equitable and in the best
interest of the Bank. Among the circumstances to be taken into
consideration in arriving at such a finding or opinion is the existence or
non-existence of a contract of insurance or indemnity under which the Bank
would be wholly or partiall reimbursed for such indemnification, but the
existence or non-existence of such insurance is not the sole circumstance
to be considered nor shall it be whooly determinative of whether such
indemnification shall be made. In addition to such finding or opinion, no
indemnification under Article Tenth shall be made unless the Board of
Directors or the Executive Committee acting by a quorum consisting of
directors who are not parties to such claim shall find, or if independent
legal counsel (who may be the regular counsel of the Bank) selected by the
Board of Directors or the Executive Committee, whether or not a
disinterested quorum exists, shall render their opinion that the directors,
officer or employee acted in good faith in what he reasonably believed to
be the best interests of the Bank or such other corporation and further in
the case of any criminal action or proceeding, that the director, officer
or employee reasonably believed his conduct to be lawful. Determination of
any claim by judgment adverse to a director, officer or employee by
settlement with or without Court approval or conviction upon a pleas of
guilty or of nolo contendere or its equivalent shall not create a
presumption that a director, officer or employee failed to meet the
standards of conduct set forth in Article Tenth.
Article Tenth provides that expenses incurred with respect to any claim
may be advanced by the Bank prior to the final disposition thereof upon
receipt of an undertaking satisfactory to the Bank by or on behalf of the
recipient to repay such amount unless it is ultimately determined that he
is entitled to indemnification under Article Tenth.
Article Tenth provides that the rights to indemnification in Article
Tenth shall be in addition to any rights to which any director, officer or
employee may otherwise be entitled by contract or as a matter of law. Every
person who shall act as a director, officer or employee of the Bank shall
be conclusively presumed to be doing so in reliance upon the right of
indemnification provided for in Article Tenth.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
1.1 Form of Underwriting Agreement.
3.1 Articles of Association of the Bank.
3.2 Bylaws of the Bank.
4.1 Pooling and Servicing Agreement and agreements as exhibits
thereto; the first through eleventh amendments thereto.
4.2 Form of Series Supplement and exhibits.
5.1 Opinion of Joanne K. Sundheim with respect to legality.*
8.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP with
respect to tax matters.*
23.1 Consent of Joanne K. Sundheim included in her opinions,
filed as Exhibit 5.1.*
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom LLP included
in its opinions filed as Exhibit 8.1.*
__________________
* To be filed by amendment
(b) Financial Statements
All financial statements, schedules and historical financial
information have been omitted as they are not applicable.
ITEM 17. UNDERTAKINGS
The undersigned Registrant on behalf of the First USA Credit Card
Master Trust (the "TRUST") hereby undertakes as follows:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement: (i) to include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933 (the "ACT"); (ii) to reflect in the
prospectus any facts or events arising after the effective date of
the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the Registration
Statement; notwithstanding the foregoing, any increase or decrease in
the volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and
any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with
the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement; provided, however, that clauses (a)(i) and (a)(ii) will
not apply if the information required to be included in a
post-effective amendment thereby is contained in periodic reports
filed with or furnished to the SEC pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in this Registration Statement.
(b) That, for the purpose of determining any liability under
the Act, each such post-effective amendment shall be deemed to be a
new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered that remain unsold
at the termination of the offering.
(d) That, for purposes of determining any liability under the
Act, each filing of the Trust's annual report pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the Registration Statement shall be
deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(e) That insofar as indemnification for liabilities arising
under the Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described under
Item 15 above, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and
is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Act and will be governed by the final adjudication of such issue.
(f) That, for purposes of determining any liability under the
Act, the information omitted from the form of prospectus filed as
part of this Registration Statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the Registrant pursuant to
Rule 424(b)(1) or (4) under the Act shall be deemed to be part of
this Registrant Statement as of the time it was declared effective.
(g) That, for the purpose of determining any liability under
the Act, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, each co-registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-3, and
has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Wilmington,
State of Delaware, on September 21, 1999.
FIRST USA BANK, N.A.,
as originator of the Trust and co-registrant
and as servicer on behalf of the First USA
Credit Card Master Trust as co-registrant
By /s/ Jerry D. Holbrook
------------------------------------------
Jerry D. Holbrook
Vice President
KNOWN ALL MEN BY THESE PRESENTS, that each of the undersigned does
hereby constitute and appoint George P. Hubley, Clinton W. Walker, Thomas
J. Hopkins, M. Eileen Kennedy, Harry Hallowell and Sharon A. Renchof his
true and lawful attorney-in-fact and agent, each with full powers of
substitution, for him and on his behalf to sign, execute and file this
Registration Statement and any or all amendments (including, without
limitation, post-effective amendments and any amendment or amendments
increasing the amount of securities for which registration is being sought)
to this Registration Statement, with all exhibits and any and all documents
required to be filed with respect thereto, with the Securities and Exchange
Commission or any regulatory authority, granting unto such attorney-in-fact
and agent full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises in order
to effectuate the same as fully to all intents and purposes as he might or
could do if personally present, hereby ratifying and confirming all that
such attorney-in-fact and agents may lawfully do or cause to be done.
Pursuant to the Requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
FIRST USA BANK, N.A.
SIGNATURE TITLE
- --------- -----
PRINCIPAL EXECUTIVE OFFICER:
/s/ Richard W. Vague
- ------------------------------ Chairman of the Board and September 21, 1999
Richard W. Vague Chief Executive Officer
PRINCIPAL FINANCIAL AND
ACCOUNTING OFFICER:
/s/ George P. Hubley
- ------------------------------ Executive Vice President September 21, 1999
George P. Hubley and Chief Financial
Officer
DIRECTORS:
/s/ Roger S. Deacon September 21, 1999
- ------------------------------
Roger S. Deacon
/s/ George P. Hubley September 21, 1999
- ------------------------------
George P. Hubley
- ------------------------------ September 21, 1999
Gary J. Marino
/s/ Richard W. Vague September 21, 1999
- ------------------------------
Richard W. Vague
/s/ James W. Stewart
- ------------------------------ September 21, 1999
James W. Stewart
/s/ William J. Garner September 21, 1999
- ------------------------------
William J. Garner
</TABLE>
First USA Credit Card Master Trust
Class A Floating Rate Asset Backed Certificates,
Series 1999-_
Class B Floating Rate Asset Backed Certificates,
Series 1999-_
UNDERWRITING AGREEMENT
__________ __, 1999
[Underwriter],
as Representative of the
Underwriters set forth herein
[Address]
Ladies and Gentlemen:
First USA Bank, N.A., a national banking association (the
"Bank"), has duly authorized the issuance and sale to ___________________
_______________ (the "Representative"), ____________________, ____________
__________________ and as underwriters (collectively with the Representative,
the "Underwriters" and each individually, an "Underwriter") of First USA
Credit Card Master Trust $_____ aggregate principal amount of Class A Floating
Rate Asset Backed Certificates, Series 1999-_ (the "Class A Certificates")
and of First USA Credit Card Master Trust $ aggregate principal amount of
Class B Floating Rate Asset Backed Certificates, Series 1999-_ (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, as amended as of the
date hereof (the "Master Pooling and Servicing Agreement"), as supplemented
by the Series 1999-_ 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), a Delaware
banking corporation, as trustee (in such capacity, 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 MasterCard(R) and VISA(R)1 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- ) 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, including any
amendments thereto, the form of prospectus supplement, and any prospectuses
or prospectus supplements filed pursuant to Rule 424(b) under the Act
relating to the Certificates shall, except to the extent that the
Underwriters shall agree in writing to a modification, be in all
substantive respects in the form furnished to the Representative prior to
the Execution Time or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other changes
(beyond that contained in the latest preliminary prospectus supplement
which has previously been furnished to the Underwriters) as the Bank has
advised the Underwriters, prior to the Execution Time, will be included or
made therein.
For purposes of this Agreement, "Effective Time" means the
date and time as of which such registration statement, or the most recent
post-effective amendment thereto, if any, was declared effective by the
Commission, and "Effective Date" means the date of the Effective Time. Such
registration statement, as amended at the Effective Time, and including the
exhibits thereto and any material incorporated by reference therein
(including any Computational Materials, ABS Term Sheets, Structural Term
Sheets and Collateral Term Sheets (as defined in Section 3(b) hereof) filed
on Form 8-K), 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 accordance
with Rule
- -----------------------------
1 VISA(R) and MasterCard(R) are registered trademarks of
Visa USA Incorporated and MasterCard International Incorporated,
respectively.
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 under the Act (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 national banking association under the laws of the
United States, and has full corporate power, authority and legal right to
own its properties and conduct its business as such properties are
presently owned and such business is presently conducted, and to execute,
deliver and perform its obligations under this Agreement, the Pooling and
Servicing Agreement, the Certificates and the Transfer and Administration
Agreement, dated as of the Closing Date (the "Transfer and Administration
Agreement"), between the Bank and Bankers Trust (Delaware), a Delaware
banking corporation, not in its individual capacity but solely as Owner
Trustee on behalf of the First USA Secured Note Trust 1999-_ (in such
capacity, the "Owner Trustee").
(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 Transfer and Administration 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 Transfer
and Administration 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 Transfer and
Administration 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 Transfer and Administration Agreement or this Agreement,
will result in the breach of any term or provision of the organizational
documents 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
Transfer and Administration Agreement or the Certificates.
(k) Except as disclosed in the Base Prospectus inder
the heading "Certain Legal Aspects of the Receivables," 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 Transfer and Administration
Agreement, the Pooling and Servicing Agreement, or the Certificates, (ii)
assert the invalidity of this Agreement, the Transfer and Administration
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 Transfer and
Administration 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 Transfer and Administration 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 Transfer and
Administration 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 Transfer and
Administration 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.
(o) Arthur Andersen, LLP who have audited certain
financial statements of Bank One Corporation are independent public
accountants as required by the Act and the Rules and Regulations.
(p) As of the Closing Date, the Principal
Receivables transferred to the Trust pursuant to the Pooling and Servicing
Agreement will have an aggregate balance of not less than the sum of (i)
the aggregate outstanding principal amount of all classes of all Series
outstanding at the close of business on the Closing Date (including Series
1999-_), plus (ii) 4% of the amount stated in clause (i).
(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 , 1999 or on such
other date as shall be mutually agreed upon by the Bank and the
Underwriters (the "Closing Date"), the amount 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 % 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 % of the principal amount
thereof.
The closing of the sale of the Certificates (the "Closing")
shall be held at the offices of Skadden, Arps, Slate, Meagher & Flom LLP,
919 Third Avenue, New York, New York 10022, at 10:00 a.m., New York City
time, on the Closing Date. Payment of the purchase price for the
Certificates being sold and purchased hereunder shall be made on the
Closing Date by wire transfer of Federal or other immediately available
funds to an account to be designated one business day prior to the Closing
Date by the Bank, against delivery of the Certificates at the Closing on
the Closing Date. Each of the Certificates to be so delivered shall be
represented by one or more definitive certificates registered in the name
of Cede & Co., as nominee for The Depository Trust Company.
3. Offering by Underwriters. (a) It is understood
that after the Effective Date the Underwriters propose to offer
the Certificates for sale to the public as set forth in the
Prospectus.
(b) Each Underwriter may provide to prospective
investors the 1999-_ Term Sheet, dated, , 1999, relating to the
Certificates (the "1999-_ Term Sheet") prepared by the Bank and attached
hereto as Exhibit A, subject to the following conditions:
(i) Such Underwriter shall have complied
with the requirements of (A) the no-action letter, dated May
20, 1994, issued by the Commission to Kidder, Peabody
Acceptance Corporation I, Kidder, Peabody & Co. Incorporated
and Kidder Structured Asset Corporation, as made applicable to
other issuers and underwriters by the Commission in the response to
the request of the Public Securities Association, dated May 24,
1994 (collectively, the "Kidder/PSA Letter"), (B) the requirements
of the no-action letter, dated February 17, 1995, issued by the
Commission to the Public Securities Association (the "PSA Letter")
and (C) the requirements of the no-action letter, dated April 5,
1996, issued by the Commission to Greenwood Trust Company (the
"Greenwood Letter" and, together with the Kidder/PSA Letter and the
PSA Letter, the "No-Action Letters").
(ii) Each Underwriter, severally, represents
and warrants to the Bank that (a) it has not and will not use any
information that constitutes "Computational Materials" with respect
to the offering of the Certificates unless it has obtained the
prior written consent of the Bank to such usage and (b) other than
the 1999-_ Term Sheet, it has not and will not use any information
that constitutes "Series Term Sheets," "ABS Term Sheets,"
"Structural Term Sheets" or "Collateral Term Sheets" with respect
to the offering of the Certificates. For purposes hereof, "Series
Term Sheet" shall have the meaning given such term in the Greenwood
Letter and "Computational Materials" shall have the meaning given
such term in the No-Action Letters. For purposes hereof, "ABS Term
Sheets," "Structural Term Sheets" and "Collateral Term Sheets"
shall have the meanings given such terms in the PSA Letter.
4. Certain Agreements of the Bank. The Bank covenants and
agrees with the several Underwriters as follows:
(a) Immediately following the execution of this
Agreement, the Bank will prepare a Prospectus Supplement setting forth the
amount of Certificates covered thereby and the terms thereof not otherwise
specified in the Basic Prospectus, the price at which such Certificates are
to be purchased by the Underwriters, the initial public offering price, the
selling concessions and allowances, and such other information as the Bank
deems appropriate. The Bank will transmit the Prospectus including such
Prospectus Supplement to the Commission pursuant 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 and the Rules and Regulations thereunder, the Bank promptly will
advise the Representative thereof and will prepare and file, or cause to be
prepared and filed, with the Commission an amendment or supplement which
will correct such statement or omission, or an amendment or supplement
which will effect such compliance. Any such filing shall not operate as a
waiver or limitation on any condition or right of the Underwriters
hereunder.
(d) As soon as practicable, but not later than
sixteen months after the original effective date of the Registration
Statement, the Bank will cause the Trust to make generally available to
Certificateholders an earnings statement (or statements) of the Trust
covering a period of at least twelve months beginning after the effective
date of the Registration Statement which will satisfy the provisions of
Section 11(a) of the Act and Rule 158 promulgated thereunder.
(e) The Bank will furnish to the Underwriters copies
of the Registration Statement (one of which will be signed and will include
all exhibits), each related preliminary prospectus or prospectus
supplement, the Prospectus and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as the
Underwriters request.
(f) The Bank will promptly, from time to time, take
such action as any Underwriter may reasonably request to qualify the
Certificates for offering and sale under the securities laws of such
jurisdictions as such Underwriter may request and to comply with such laws
so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution
of the Certificates, provided that in connection therewith the Bank shall
not be required to qualify as a foreign corporation or dealer in securities
or to file a general consent to service of process in any jurisdiction.
(g) For a period from the date of this Agreement
until the retirement of the Certificates, the Bank will deliver to the
Representative the annual statements of compliance and the annual
independent certified public accountants' reports furnished to the Trustee
pursuant to the Pooling and Servicing Agreement, as soon as such statements
and reports are furnished to the Trustee.
(h) So long as any of the Certificates are
outstanding, the Bank will furnish to the Representative (i) as soon as
practicable after the end of the fiscal year all documents required to be
distributed to Certificateholders or filed with the Commission pursuant to
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
any order of the Commission thereunder and (ii) from time to time, any
other information concerning the Bank filed with any government or
regulatory authority which is otherwise publicly available, as the
Representative reasonably requests.
(i) To the extent, if any, that the rating provided
with respect to the Certificates by the rating agency or agencies that
initially rate the Certificates is conditional upon the furnishing of
documents or the taking of any other actions by the Bank, the Bank shall
use its best efforts to furnish such documents and take any such other
actions.
(j) The Bank will file with the Commission a
report on Form 8-K with respect to the 1999-_ Term Sheet and a report on
Form 8-K setting forth all Computational Materials described in Section 3
hereof provided to the Bank by any of the Underwriters and identified by
such Underwriter as such within the time period allotted for such filing
pursuant to the No- Action Letters.
5. Payment of Expenses. The Bank will pay all expenses
incident to the performance of its obligations under this Agreement,
including (i) the printing of the 1999-_ Term Sheet and any Computational
Materials described in Section 3 hereof, (ii) the printing of the
Prospectus and of each amendment or supplement thereto, (iii) the
preparation of this Agreement, the Transfer and Administration Agreement
and the Pooling and Servicing Agreement, (iv) the preparation, issuance and
delivery of the Certificates to the Underwriters, (v) the fees and
disbursements of the Bank's counsel and accountants, (vi) the qualification
of the Certificates under securities laws in accordance with the provisions
of Section 4(f) hereof, including filing fees and the fees and
disbursements of counsel for the Underwriters and in connection with the
preparation of any blue sky and legal investment survey, (vii) the printing
and delivery to the Underwriters of copies of the 1999-_ Term Sheet and any
Computational Materials described in Section 3 hereof, (viii) the printing
and delivery to the Underwriters of copies of the Prospectus and of each
amendment or supplement thereto, (ix) the printing and delivery to the
Underwriters of copies of any blue sky or legal investment survey prepared
in connection with the Certificates, (x) any fees charged by rating
agencies for the rating of the Certificates, (xi) the fees and expenses, if
any, incurred with respect to any filing with the National Association of
Securities Dealers, Inc. and (xii) the fees and expenses of the Trustee and
its counsel. The Underwriters have agreed to reimburse the Bank for
expenses not to exceed $ 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 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 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 Arthur Andersen, LLP, 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 BANK 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 K. Sundheim, Associate General Counsel of
the Bank, shall have furnished to the Representative her 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) The Bank has been duly organized and is
validly existing as a national banking association in good standing
under the laws of the United States 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 Transfer and
Administration 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 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;
(iii) Each of the Pooling and Servicing
Agreement and the Transfer and Administration Agreement 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) 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;
(iv) This Agreement has been duly authorized,
executed and delivered by the Bank;
(v) 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;
(vi) 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 organizational documents or by-laws or any material
indenture, loan agreement or other material agreement to which the
Bank is a party or by which the Bank is bound;
(vii) 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;
(viii) 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 opinion) comply as to form
with the Act and the Rules and Regulations;
(ix) 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
(x) 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 her discussions with the Bank, its accountants and
others, however, no facts have come to her attention that cause her
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
opinion), contains any untrue statement of a material fact or omits
to state a material 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 its opinion to
Moody's Investors Service, Inc. ("Moody's"), Standard & Poor's Ratings, a
division of The McGraw-Hill Companies, Inc.("Standard & Poor's"), and Fitch
IBCA, Inc. ("Fitch") with respect to certain bank regulatory 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 Transfer and Administration 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 national banking associations 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 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 Pooling and
Servicing Agreement and this Agreement conform in all material
respects to the descriptions thereof contained in the Prospectus;
(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 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 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 its 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;
(iv) The Supplement has been duly authorized,
executed and delivered by the Trustee, and the Pooling and
Servicing Agreement constitutes a legal, valid and binding
agreement of the Trustee, enforceable against the Trustee in
accordance with its terms, except (x) as may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to 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 against the Trustee 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
against the Trustee, 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 performance by the Trustee of its
obligations under the Pooling and Servicing 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 performance by the Trustee of its
obligations under the Pooling and Servicing 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
activities of the Trustee, except such as have been obtained, taken
or made.
(j) Richards, Layton & Finger, counsel
for First USA Secured Note Trust 1999-_ (the "Owner Trust") in connection
with the Transfer and Administration Agreement and the Indenture dated as
of the Closing Date, between the Owner Trust and The Bank of New York, as
indenture trustee, shall have furnished to the Representative its 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) The Owner Trust is a business trust duly
formed, validly existing and in good standing under the laws of the
State of Delaware and has the power and authority to execute,
deliver and perform its obligations under the Transfer and
Administration Agreement and the Indenture;
(ii) The Transfer and Administration
Agreement, the Indenture and the secured notes issued by the Owner
Trust pursuant to the Indenture (the "Notes") have been duly
authorized, executed and delivered by the Owner Trust, and the
Transfer and Administration Agreement, the Indenture and the Notes
constitute legal, valid and binding agreements of the Owner Trust,
enforceable against the Owner Trust in accordance with their
respective terms, except (x) as may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
relating to 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 Owner Trustee), (y) that the enforceability of
the Transfer and Administration Agreement, the Indenture and the
Notes against the Owner Trust 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 Transfer and Administration Agreement
and the Indenture may be unenforceable, in whole or in part against
the Owner Trust, but the inclusion of such provisions does not
affect the validity of the Transfer and Administration Agreement
and the Indenture, taken as a whole, and the Transfer and
Administration 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;
(iii) The execution and delivery by the Owner
Trust of the Transfer and Administration Agreement, the Indenture
and the Notes and the performance by the Owner Trust of its
obligations under the Transfer and Administration Agreement, the
Indenture and the Notes do not conflict with or result in a
violation of (x) any law or regulation of the State of Delaware
applicable to the Owner Trust, or (y) the Trust Agreement; and
(iv) The execution and delivery by the Owner
Trust of the Transfer and Administration Agreement, the Indenture
and the Notes and the performance by the Owner Trustee of its
obligations under the Transfer and Administration Agreement, the
Indenture and the Notes do not require any approval, authorization
or other action by, or filing with, any governmental authority of
the State of Delaware having jurisdiction over the Owner Trust,
except such as have been obtained, taken or made.
(k) Richards, Layton & Finger, counsel for the Owner
Trustee in connection with the Trust Agreement, dated as of , 1999 (the
"trust Agreement"), between the Bank and the Owner Trustee, shall have
furnished to the Representative its 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) The Owner 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
Trust Agreement;
(ii) The Trust Agreement has been duly
authorized, executed and delivered by the Owner Trustee, and the
Trust Agreement constitutes a legal, valid and binding agreement of
the Owner Trustee, enforceable against the Owner Trustee in
accordance with its terms, except (x) as may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to 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 Owner Trustee), (y) that the enforceability of
the Trust Agreement against the Owner Trustee 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 Trust Agreement may be
unenforceable, in whole or in part against the Owner Trustee, but
the inclusion of such provisions does not affect the validity of
the Trust Agreement, taken as a whole, and the Trust 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;
(iii) The execution and delivery by the Owner
Trustee of the Trust Agreement, and the performance by the Owner
Trustee of its obligations under the Trust 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 Owner Trustee, or (y) the
organizational documents of the Owner Trustee; and
(iv) The execution and delivery by the Owner
Trustee of the Trust Agreement and the performance by the Owner
Trustee of its obligations under the Trust 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
activities of the Owner Trustee, except such as have been obtained,
taken or made.
(l) The Representative shall have received evidence
satisfactory to the Representative and its counsel that, on or before the
Closing Date, 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.
(m) The Class A Certificates shall be rated "AAA" by
Standard & Poor's, "Aaa" by Moody's and "AAA" by Fitch and the Class B
Certificates shall be rated at least "A" by Standard & Poor's, at least
"A2" by Moody's and at least "A+" by Fitch on the Closing Date, and letters
to such effect dated the Closing Date shall have been received from each
Rating Agency.
(n) 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
prospectus, 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 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 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 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 underwriter, 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:
(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 (as amended) 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 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 , Attention: , 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: Joanne K. Sundheim, Senior Vice President and
Associate General Counsel, telephone: (302) 434-7677, telecopier: (302)
884-8361, with a copy to Bank One Corporation, 150 East Gay Street, 20th
Floor, Columbus, Ohio 43215, Attention: Rebekah Sayers, Transaction
Manager, Structured Finance, telephone: (614) 248-9153, telecopier: (614)
248-9544.
13. Secondary Trust or Special Purpose Vehicle. Each
Underwriter severally represents that it will not, at any time that such
Underwriter is acting as an "underwriter" (as defined in Section 2(11) of
the Act) with respect to the Certificates, transfer, deposit or otherwise
convey any Certificates into a trust or other type of special purpose
vehicle that issues securities or other instruments backed in whole or in
part by, or that represents interests in, such Certificates without the
prior written consent of the Bank.
14. Successors. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective successors and
assigns. Nothing expressed herein is intended or shall be construed to give
any person other than the persons referred to in the preceding sentence any
legal or equitable right, remedy or claim under or in respect of this
Agreement.
15. Severability of Provisions. Any covenant, provision,
agreement or term of this Agreement that is prohibited or is held to be
void or 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.
16. Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties hereto with respect to the
matters and transactions contemplated hereby and supersedes all prior
agreements and understandings whatsoever relating to such matters and
transactions.
17. Amendment. Neither this Agreement nor any term hereof
may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought.
18. Headings. The headings in this Agreement are for the
purposes of reference only and shall not limit or otherwise affect the
meaning hereof.
19. Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which
shall together constitute one instrument.
20. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO THE CONFLICT OF LAW PROVISIONS THEREOF.
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, N.A.,
as Transferor and Servicer
By:_____________________________
Name:
Title:
The foregoing Underwriting Agreement
is hereby agreed to as of the date
first above written.
[Underwriter],
for itself and as Representative
of the Underwriters named in
Schedule A hereto
By:________________________________
Name:
Title:
SCHEDULE A
Aggregate Principal
Amount of the Class A
Underwriter Certificates
- ----------- ----------------------
Total . . . . . . . . . . . . $
=======================
Aggregate Principal
Amount of the Class B
Underwriter Certificates
- ----------- ----------------------
Total . . . . . . . . . . . . $
=======================
ARTICLES OF ASSOCIATION
OF
FIRST USA BANK, NATIONAL ASSOCIATION
FIRST. The title of this Association shall be First USA Bank, National
Association.
SECOND. The main office of the Association shall be in the City of Wilmington,
County of New Castle, State of Delaware. The general business of the
association shall be conducted at its main office and its branches.
THIRD. The Board of Directors of this Association shall consist of not less
than five nor more than twenty-five persons, the exact number to be fixed
and determined from time to time by resolution of a majority of the full
Board of Directors or by resolution of a majority of the shareholders at
any annual or special meeting thereof. Each director shall own common or
preferred stock of the Association, or of a holding company owning the
Association, with an aggregate par, fair market or equity value of not less
than $1,000, as of either (i) the date of purchase, (ii) the date the
person became a director, or (iii) the date of that person's most recent
election to the Board of Directors, whichever is more recent. Any
combination of common or preferred stock of the Association or holding
company may be used.
Any vacancy in the Board of Directors may be filled by action of a majority
of the remaining directors between meetings of shareholders. The Board of
Directors may not increase the number of directors between meetings of
shareholders to a number which: (1) exceeds by more than two the number of
directors last elected by shareholders where the number was 15 or less; or
(2) exceeds by more than four the number of directors last elected by
shareholders where the number was 16 or more, but in no event shall the
number of directors exceed 25.
Terms of directors, including directors selected to fill vacancies, shall
expire at the next regular meeting of shareholders at which directors are
elected, unless the directors resign or are removed from office.
Despite the expiration of a director's term, the director shall continue to
serve until his or her successor is elected and qualifies or until there is
a decrease in the number of directors and his or her position is
eliminated.
Honorary or advisory members of the Board of Directors, without voting
power or power of final decision in matters concerning the business of the
Association, may be appointed by resolution of a majority of the full Board
of Directors, or by resolution of shareholders at any annual or special
meeting. Honorary or advisory directors shall not be counted to determine
the number of directors of the Association or the presence of a quorum in
connection with any board action, and shall not be required to own
qualifying shares.
FOURTH. There shall be an annual meeting of the shareholders to elect
directors and transact whatever other business may be brought before the
meeting. It shall be held at the main office or any other convenient place
the Board of Directors may designate, on the day of each year specified
therefor in the Bylaws or, if that day falls on a legal holiday in the
state in which the Association is located, on the next following banking
day. If no election is held on the day fixed or in the event of a legal
holiday on the following banking day, an election may be held on any
subsequent day within 60 days of the day fixed, to be designated by the
Board of Directors or, if the directors fail to fix the day, by
shareholders representing two-thirds of the shares issued and outstanding.
In all cases at least 10 days advance notice of the meeting shall be given
to the shareholders by first class mail unless such notice is waived by
shareholders.
In all elections of directors, the number of votes each common shareholder
may cast will be determined by multiplying the number of shares such
shareholder owns by the number of directors to be elected. Those votes may
be cumulated and cast for a single candidate or may be distributed among
two or more candidates in the manner selected by the shareholder. On all
other questions, each common shareholder shall be entitled to one vote for
each share of stock held by such shareholder. If the issuance of preferred
stock with voting rights has been authorized by a vote of shareholders
owning a majority of the common stock of the Association, preferred
shareholders will have cumulative voting rights and will be included within
the same class as common shareholders, for purposes of elections of
directors.
A director may resign at any time by delivering written notice to the Board
of Directors, its chairperson, or to the Association, which resignation
shall be effective when the notice is delivered unless the notice specifies
a later effective date.
A director may be removed by shareholders at a meeting called to remove him
or her, when notice of the meeting stating that the purpose or one of the
purposes is to remove him or her is provided, if there is a failure to
fulfill one of the affirmative requirements for qualification, or for
cause, provided, however, that a director may not be removed if the number
of votes sufficient to elect him or her under cumulative voting is voted
against his or her removal.
FIFTH. The authorized amount of capital stock of this Association shall be
one hundred seventy-five thousand (175,000) shares of common stock of the
par value of one hundred dollars ($100.00) each; but said capital stock may
be increased or decreased from time to time, according to the provisions of
the laws of the United States.
No holder of shares of the capital stock of any class of the Association
shall have any preemptive or preferential right of subscription to any
shares of any class of stock of the Association, whether now or hereafter
authorized, or to any obligations convertible into stock of the
Association, issued or sold, nor any right of subscription to any thereof
other than such, if any, as the Board of Directors, in its discretion, may
from time to time determine and at such price as the Board of Directors may
from time to time fix.
Unless otherwise specified in the Articles of Association or required by
law, (1) all matters requiring shareholder action, including amendments to
the Articles of Association, must be approved by shareholders owning a
majority voting interest in the outstanding voting stock, and (2) each
shareholder shall be entitled to one vote per share.
Unless otherwise specified in the Articles of Association or required by
law, all shares of voting stock shall be voted together as a class on any
matters requiring shareholder approval. If a proposed amendment would
affect two or more classes or series in the same or a substantially similar
way, all the classes or series so affected must vote together as a single
voting group on the proposed amendment.
Shares of the same class or series may be issued as a dividend on a pro
rata basis and without consideration. Shares of another class or series may
be issued as share dividends in respect of a class or series of stock if
approved by a majority of the votes entitled to be cast by the class or
series to be issued unless there are no outstanding shares of the class or
series to be issued. Unless otherwise provided by the Board of Directors,
the record date for determining shareholders entitled to a share dividend
shall be the date the Board of Directors authorizes the share dividend.
Unless otherwise provided in the Bylaws, the record date for determining
shareholders entitled to notice of and to vote at any meeting is the close
of business on the day before the first notice is mailed or otherwise sent
to the shareholders, provided that in no event may a record date be more
than 70 days before the meeting.
If a shareholder is entitled to fractional shares pursuant to preemptive
rights, a stock dividend, consolidation or merger, reverse stock split or
otherwise, the Association may: (a) issue fractional shares or; (b) in lieu
of the issuance of fractional shares, issue script or warrants entitling
the holder to receive a full share upon surrendering enough script or
warrants to equal a full share; (c) if there is an established and active
market in the Association's stock, make reasonable arrangements to provide
the shareholder with an opportunity to realize a fair price through sale of
the fraction, or purchase of the additional fraction required for a full
share; (d) remit the cash equivalent of the fraction to the shareholder; or
(e) sell full shares representing all the fractions at public auction or to
the highest bidder after having solicited and received sealed bids from at
least three licensed stock brokers, and distribute the proceeds pro rata to
shareholders who otherwise would be entitled to the fractional shares. The
holder of a fractional share is entitled to exercise the rights of a
shareholder, including the right to vote, to receive dividends, and to
participate in the assets of the Association upon liquidation, in
proportion to the fractional interest. The holder of script or warrants is
not entitled to any of these rights unless the script or warrants
explicitly provide for such rights. The script or warrants may be subject
to such additional conditions as: (1) that the script or warrants will
become void if not exchanged for full shares before a specified date; and
(2) that the shares for which the script or warrants are exchangeable may
be sold at the option of the Association and the proceeds paid to
scriptholders.
The Association, at any time and from time to time, may authorize and issue
debt obligations, whether or not subordinated, without the approval of the
shareholders. Obligations classified as debt, whether or not subordinated,
which may be issued by the Association without the approval of
shareholders, do not carry voting rights on any issue, including an
increase or decrease in the aggregate number of the securities, or the
exchange or reclassification of all or part of securities into securities
of another class or series.
SIXTH. The Board of Directors shall appoint one of its members president of
this Association, and one of its members chairperson of the board and shall
have the power to appoint one or more vice presidents, a secretary who
shall keep minutes of the directors' and shareholders' meetings and be
responsible for authenticating the records of the Association, and such
other officers and employees as may be required to transact the business of
this Association. A duly appointed officer may appoint one or more officers
or assistant officers if authorized by the Board of Directors in accordance
with the Bylaws.
The Board of Directors shall have the power to:
(1) Define the duties of the officers, employees, and agents of the
Association.
(2) Delegate the performance of its duties, but not the responsibility
for its duties, to the officers, employees, and agents of the
Association.
(3) Fix the compensation and enter into employment contracts with its
officers and employees upon reasonable terms and conditions
consistent with applicable law.
(4) Dismiss officers and employees.
(5) Require bonds from officers and employees and to fix the penalty
thereof.
(6) Ratify written policies authorized by the Association's management
or committees of the Board of Directors.
(7) Regulate the manner in which any increase or decrease of the
capital of the Association shall be made, provided that nothing
herein shall restrict the power of shareholders to increase or
decrease the capital of the Association in accordance with law, and
nothing shall raise or lower from two-thirds the percentage for
shareholder approval to increase or reduce the capital.
(8) Manage and administer the business and affairs of the Association.
(9) Amend or repeal Bylaws, except to the extent that the Articles of
Association reserve this power in whole or in part to shareholders.
(10) Make contracts.
(11) Generally perform all acts that are legal for a Board of Directors
to perform.
SEVENTH. The Board of Directors shall have the power to change the location
of the main office of this Association to any other place within the limits
of the City of Wilmington, State of Delaware, without the approval of the
shareholders; and shall have the power to change the location of the main
office of this Association to any other place outside the limits of the
City of Wilmington, State of Delaware, but not more than thirty miles
beyond such limits, with the affirmative vote of shareholders owning
two-thirds of the stock of the Association, subject to receipt of a
certificate of approval from the Office of the Comptroller of the Currency.
The Board of Directors shall have the power to establish or change the
location of any branch or branches of the Association to any other location
permitted under applicable law without the approval of the shareholders,
subject to approval by the Office of the Comptroller of the Currency. The
Board of Directors shall have the power to establish or change the location
of any nonbranch office or facility of the Association without the approval
of the shareholders.
EIGHTH. The corporate existence of this Association shall continue until
termination according to the laws of the United States.
NINTH. The Board of Directors of this Association, or any shareholders
owning, in the aggregate, not less than 20 percent of the stock of this
Association, may call a special meeting of shareholders at any time. Unless
otherwise provided by the Bylaws or the laws of the United States, or
waived by shareholders, a notice of the time, place, and purpose of every
annual and special meeting of the shareholders shall be given by
first-class mail, postage prepaid, mailed at least 10, and no more than 60,
days prior to the date of the meeting to each shareholder of record at
his/her address as shown upon the books of this Association. Unless
otherwise provided by the Bylaws, any action requiring approval of
shareholders must be effected at a duly called annual or special meeting.
TENTH. The Association shall provide indemnification as set forth below:
Every person who is or was a director, officer or employee of the
Association or of any other corporation which he served as a director,
officer or employee at the request of the Association as part of his
regularly assigned duties may be indemnified by the Association in
accordance with the provisions of this Article against all liability
(including, without limitation, judgments, fines, penalties, and
settlements) and all reasonable expenses (including, without limitation,
attorneys' fees and investigative expenses) that may be incurred or paid by
him in connection with any claim, action, suit or proceeding, whether
civil, criminal or administrative (all referred to hereafter in this
Article as "Claims") or in connection with any appeal relating thereto in
which he may become involved as a party or otherwise or with which he may
be threatened by reason of his being or having been a director, officer or
employee of the Association or such other corporation, or by reason of any
action taken or omitted by him in his capacity as such director, officer or
employee, whether or not he continues to be such at the time such liability
or expenses are incurred; provided that nothing contained in this Article
shall be construed to permit indemnification of any such person who is
adjudged guilty of, or liable for, willful misconduct, gross neglect of
duty or criminal acts, unless, at the time such indemnification is sought,
such indemnification in such instance is permissible under applicable law
and regulations, including published rulings of the Comptroller of the
Currency or other appropriate supervisory or regulatory authority; and
provided further that there shall be no indemnification of directors,
officers, or employees against expenses, penalties, or other payments
incurred in an administrative proceeding or action instituted by an
appropriate regulatory agency which proceeding or action results in a final
order assessing civil money penalties or requiring affirmative action by an
individual or individuals in the form of payments to the Association.
Every person who may be indemnified under the provisions of this Article
and who has been wholly successful on the merits with respect to any Claim
shall be entitled to indemnification as of right. Except as provided in the
preceding sentence, any indemnification under this Article shall be at the
sole discretion of the Board of Directors and shall be made only if the
Board of Directors or the Executive Committee acting by a quorum consisting
of directors who are not parties to such Claim shall find or if independent
legal counsel (who may be the regular counsel of the Association) selected
by the Board of Directors or Executive Committee whether or not a
disinterested quorum exists shall render their opinion that in view of all
of the circumstances then surrounding the Claim, such indemnification is
equitable and in the best interests of the Association. Among the
circumstances to be taken into consideration in arriving at such a finding
or opinion is the existence or non-existence of a contract of insurance or
indemnity under which the Association would be wholly or partially
reimbursed for such indemnification, but the existence or non-existence of
such insurance is not the sole circumstance to be considered nor shall it
be wholly determinative of whether such indemnification shall be made. In
addition to such finding or opinion, no indemnification under this Article
shall be made unless the Board of Directors or the Executive Committee
acting by a quorum consisting of directors who are not parties to such
Claim shall find or if independent legal counsel (who may be the regular
counsel of the Association) selected by the Board of Directors or Executive
Committee whether or not a disinterested quorum exists shall render their
opinion that the directors, officer or employee acted in good faith in what
he reasonably believed to be the best interests of the Association or such
other corporation and further in the case of any criminal action or
proceeding, that the director, officer or employee reasonably believed his
conduct to be lawful. Determination of any Claim by judgment adverse to a
director, officer or employee by settlement with or without Court approval
or conviction upon a plea of guilty or of nolo contendere or its equivalent
shall not create a presumption that a director, officer or employee failed
to meet the standards of conduct set forth in this Article. Expenses
incurred with respect to any Claim may be advanced by the Association prior
to the final disposition thereof upon receipt of an undertaking
satisfactory to the Association by or on behalf of the recipient to repay
such amount unless it is ultimately determined that he is entitled to
indemnification under this Article.
The rights of indemnification provided in this Article shall be in addition
to any rights to which any director, officer or employee may otherwise be
entitled by contract or as a matter of law. Every person who shall act as a
director, officer or employee of this Association shall be conclusively
presumed to be doing so in reliance upon the right of indemnification
provided for in this Article.
ELEVENTH. These Articles of Association may be amended at any regular or
special meeting of the shareholders by the affirmative vote of the holders
of a majority of the stock of this Association, unless the vote of the
holders of a greater amount of stock is required by law, and in that case
by the vote of the holders of such greater amount. The Association's Board
of Directors may propose one or more amendments to the Articles of
Association for submission to the shareholders.
BY-LAWS
OF
FIRST USA BANK, NATIONAL ASSOCIATION
ARTICLE I
CORPORATE GOVERNANCE
To the extent not inconsistent with applicable Federal banking
statutes or regulations, or safe and sound banking practices, the Bank
shall follow the corporate governance procedures of the Delaware General
Corporation Law, as amended.
ARTICLE II
SHAREHOLDERS
SECTION 1. Annual Meeting. The regular annual meeting of shareholders
of the Bank to elect directors and to transact whatever other business may
properly come before the meeting shall be held in its main office on the
third Tuesday in May if not a legal holiday under the Laws of Delaware, and
if a legal holiday, then on the next business day following, at 1:30 P.M.,
or on such other date and time as shall be designated by the Board of
Directors. If, for any cause, the annual election of directors should not
be held on that date, the Board shall order the election to be held on some
subsequent day, of which special notice shall be given.
SECTION 2. Judges of Election. To the extent required by law, the
Board of Directors shall, prior to the time of the election of directors,
appoint three persons to be Judges of Election, who shall hold and conduct
the same, and who shall, after the election has been held, certify under
their hands to the Controller of the Bank the result thereof and the names
of the directors-elect.
SECTION 3. Notice to Directors-Elect. The Secretary upon receiving
the Certificate of the Judges of Election as aforesaid, shall cause the
same to be recorded upon the minute book of the Bank, and shall notify the
directors-elect of their election and of the time at which they are
required to meet at the main office of the Bank for the purpose of
organizing the new Board. If at the time fixed for the meeting of the
directors-elect there should not be a quorum present, the members present
may adjourn from time to time until a quorum is obtained.
SECTION 4. Special Meetings. Special meetings of the shareholders may
be called in accordance with Article NINTH of the Bank's Articles of
Association.
SECTION 5. Record Date. The Board of Directors may fix in advance a
day not more than sixty (60) or less than ten (10) days prior to the date
of holding any regular or special meeting of shareholders as the day as of
which shareholders entitled to notice of and to vote at such meeting shall
be determined.
SECTION 6. Notice. The Bank shall mail notice of any meeting of
shareholders at least 10 days prior to the meeting by first class mail,
unless the Office of the Comptroller of the Currency determines that an
emergency circumstance exists. If the Bank is a wholly owned subsidiary of
a company, the sole shareholder may waive notice of the shareholder's
meeting.
SECTION 7. Consent of Shareholders in Lieu of Annual or Special
Meeting. Unless otherwise restricted by law or the Articles of Association,
any action which may be taken at any annual or special shareholder meeting
may be taken without a meeting, without prior notice and without a vote, if
written consent setting forth the action so taken shall be signed by the
holders of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting
at which all shares entitled to vote thereon were present and voted. Prompt
notice of the taking of the corporate action without a meeting by less than
unanimous written consent shall be given to those shareholders that did not
give written consent.
SECTION 8. Minutes. The proceedings of shareholders at all regular
and special meetings or by written consent in lieu of a meeting shall be
recorded in the minute book, together with the Articles of Association of
the Bank and the returns of the Judges of Election. The minutes of each
meeting shall be signed by the Presiding Officer, and attested by the
Secretary, or other officer of the Bank acting in place of the Secretary.
ARTICLE III
DIRECTORS
SECTION 1. Authority. The Board of Directors shall have the power to
manage and administer the business and affairs of the Bank. Except as
expressly limited by law, all corporate powers of the Bank shall be vested
in and may be exercised by the Board of Directors.
SECTION 2. Number. The Board of Directors shall at all times consist
of not less than five or more than twenty-five individuals. The exact
number within such minimum and maximum limits shall be fixed and determined
from time to time by resolution of a majority of the full Board of
Directors or by resolution of the shareholders at any meeting thereof;
provided, however, that the Board of Directors may not increase the number
of directors to a number which: (1) exceeds by more than two the number of
directors last elected by shareholders where such number was fifteen or
less; or (ii) exceeds by more than four the number of directors last
elected by shareholders where such number was sixteen or more, but in no
event shall the number of directors exceed twenty-five.
SECTION 3. Term of Office. Each director shall hold office from the
date of his election or appointment until the next annual shareholder
meeting. Any director ceasing to be the owner of the amount of stock
required by law or in any other manner becoming disqualified shall
thereupon vacate his office as director.
SECTION 4. Compensation. The Board of Directors may provide that a
reasonable fee be paid to any of its members or to the members of any duly
authorized committee for services rendered. No such payment shall preclude
any director from serving the Bank in any other capacity and receiving
compensation therefor.
SECTION 5. Regular Meetings. Regular meetings of the Board of
Directors shall be held on such dates, times and locations as determined by
the Chairman of the Board and communicated in writing to the directors.
SECTION 6. Special Meeting. Special meetings of the Board of
Directors may be called by the Chairman of the Board or the President. Such
meetings shall be held at such times and at such places as shall be
determined by the officer calling the meeting. Notice of any special
meeting of directors shall be given to each director at the director's
business or residence in writing by hand delivery, first-class or overnight
mail or courier service, telegram or facsimile transmission, or orally by
telephone. If mailed by first-class mail, such notice shall be deemed
adequately delivered when deposited in the United States mail so addressed,
with postage thereon prepaid, at least two (2) days before such meeting. If
by telegram, overnight mail or courier service, such notice shall be deemed
adequately delivered when the telegram is delivered to the telegraph
company or the notice is delivered to the overnight mail or courier service
company at least twenty-four (24) hours before such meeting. If by
facsimile transmission, such notice shall be deemed adequately delivered
when the notice is transmitted at least twelve (12) hours before such
meeting. Such notice need not state the purposes of the meeting. Any or all
directors may waive notice of any meeting, either before or after the
meeting. Attendance of a director at a meeting shall constitute a waiver of
notice of such meeting, except when the director attends for the express
purpose of objecting, at the beginning of the meeting, to the transaction
of any business because the meeting is not lawfully called or convened.
SECTION 7. Quorum; Majority Vote. A quorum of directors shall be
required to transact business at any regular or special meeting of the
Board of Directors. A majority of the directors shall constitute a quorum.
Each director shall be entitled to one vote. A vote by a majority of the
directors present at any regular or special meeting of the Board of
Directors at which a quorum is present shall be required to approve any
matter or proposal at any such meeting.
SECTION 8. Vacancies. When any vacancy occurs in the Board of
Directors, a majority of the remaining members of the Board, according to
the laws of the United States, may appoint a director to fill such vacancy
at any regular meeting of the Board of Directors, or at a special meeting
called for that purpose at which a quorum is present, or if the directors
remaining in office constitute fewer than a quorum of the Board of
Directors, by the affirmative vote of a majority of all the directors
remaining in office, or by shareholders at a special meeting called for
that purpose. At any such shareholder meeting, each shareholder entitled to
vote shall have the right to multiply the number of votes he or she is
entitled to cast by the number of vacancies being filled and cast the
product for a single candidate or distribute the product among two or more
candidates. A vacancy that will occur at a specific later date (by reason
of a resignation effective at a later date) may be filled before the
vacancy occurs but the new director may not take office until the vacancy
occurs.
SECTION 9. Presiding Officer. The Chairman of the Board shall preside
at all meetings of the Board of Directors at which he is present. In the
absence of the Chairman of the Board, the President shall perform the
duties of the Chairman of the Board and shall preside at the meetings of
the Board of Directors. In the absence of the Chairman of the Board and the
President, the Vice Chairman of the Board (or in the event there be more
than one Vice Chairman of the Board, the Vice Chairmen of the Board in the
order designated, or in the absence of any designation, then in the order
of their election), or, if there is no Vice Chairman, that Executive Vice
President who has served as a director for the longest period, shall
perform their duties and shall preside at the meetings of the Board of
Directors.
SECTION 10. Minutes of Meeting. The Secretary shall act as secretary
to the Board of Directors to take minutes at any regular or special meeting
of the Board of Directors. If the Secretary is not present at any such
meeting, the Chairman of the Board may designate a secretary pro tem to
take minutes at the meeting. The Secretary or secretary pro tern shall
record the actions and proceedings at each regular or special meeting of
the Board of Directors as minutes of the meeting and shall maintain such
minutes in a minute book of proceedings of such meetings of the Board of
Directors. Minutes of each such meeting shall be signed by the presiding
officer and secretary of each meeting.
SECTION 11. Participation in Meetings by Telephone. Unless otherwise
restricted by law or the Articles of Association, members of the Board of
Directors, or of any committee thereof, may participate in a meeting of the
Board of Directors or committee by means of conference telephone or similar
communications equipment which allows each person participating in the
meeting to hear each other. Participation in such a meeting shall
constitute presence in person at such meeting.
SECTION 12. Consent of Directors in Lieu of Meeting. Unless otherwise
restricted by law or the Articles of Association, any action required or
permitted to be taken at any meeting of the Board of Directors, or of any
committee thereof, may be taken without a meeting if all members of the
Board or committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the Board
or committee.
SECTION 13. Committees. The Board of Directors may, by resolution
passed by a majority of the entire Board, designate one or more committees,
each committee to consist of two or more of the Directors of the Bank. The
Board of Directors may designate one or more Directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. Any such committee, to the extent provided in the
resolution, shall have and may exercise the powers of the Board of
Directors in the management of the business and affairs of the Bank, and
may authorize the seal of the Bank to be affixed to all papers which may
require it; provided, however, that in the absence or disqualification of
any member of such committee or committees, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he
or they constitute a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in the place of any such absent or
disqualified member. Such committee or committees shall have such name or
names as may be determined from time to time by resolution adopted by the
Board of Directors. As used in these By-Laws, "entire Board" means the
total number of Directors the Bank would have if there were no vacancies.
There shall be an Executive Committee composed and created as the
Board of Directors may designate by resolution passed by a majority of the
entire Board. During intervals between the regular meetings of the Board of
Directors, the Executive Committee, to the extent permitted by law, the
Articles of Association of the Bank and the By-Laws, shall have and may
exercise the powers of the Board of Directors in the management of the
business and affairs of the Bank.
Unless otherwise provided by the Board of Directors, a majority of
the members of any committee appointed by the Board of Directors pursuant
to this Section shall constitute a quorum at any meeting thereof and the
act of a majority of the members present at a meeting at which a quorum is
present shall be the act of such committee. Any such committee shall,
subject to any rules prescribed by the Board of Directors, prescribe its
own rules for calling, giving notice of and holding meetings and its method
of procedure at such meetings and shall keep a written record of all action
taken by it. Each committee shall keep regular minutes of its meetings and
report the same to the Board of Directors when required.
SECTION 14. Honorary Directors. Any person who has at any time been
Chairman of the Board, President or Vice Chairman of the Board of the Bank
may, after retirement from the Board of Directors, be appointed by the
Board of Directors as an Honorary Director on a year-to-year basis. In no
case shall an Honorary Director serve as such for more than five years.
Honorary Directors shall serve in an advisory capacity to the Board of
Directors, shall have no vote and shall not be considered directors for the
purpose of determining a quorum. Honorary Directors shall be reimbursed for
their expenses in attending meetings of the Board of Directors and shall
receive such fees, if any, for attendance at each meeting of the Board of
Directors as may be fixed from time to time by the Board of Directors but
shall not receive any other directors' fees or any other compensation for
their services.
ARTICLE IV
OFFICERS
SECTION 1. Officer Titles. The officers of the Bank shall include a
Chairman of the Board and a President and may include one or more Vice
Chairmen of the Board, Executive Vice Presidents, Senior Vice Presidents,
First Vice Presidents, Vice Presidents and Assistant Vice Presidents, a
General Auditor, a General Counsel, a Cashier, a Controller, a Treasurer, a
Secretary and such other officers as may be appropriate for the prompt and
orderly transaction of the business of the Bank. Individuals appointed as
Chairman of the Board, President and Vice Chairman of the Board must be
members of the Board. The same person may hold any two or more offices. The
Chairman of the Board or the President shall have such authority to
establish officer titles as from time to time delegated by the Board of
Directors and to delegate such authority further to other officers of the
Bank.
SECTION 2. Executive Management. The Chairman of the Board or the
President, as determined by the Board of Directors, shall be the chief
executive officer of the Bank. In case of the death or disability of the
Chairman of the Board, his powers shall be exercised and his duties
discharged by the President. In the event of the death or disability of the
Chairman of the Board and the President, the Vice Chairman of the Board (or
in the event there be more than one Vice Chairman of the Board, the Vice
Chairmen of the Board in the order designated, or in the absence of any
designation, then in the order of their election), if any, or, if there is
no Vice Chairman, then the Executive Vice President who has served as a
Director for the longest period, shall exercise the powers and discharge
the duties of the Chairman of the Board.
SECTION 3. Election of Officers. The Board of Directors of the Bank
shall have authority to appoint the officers of the Bank. The Chairman of
the Board or the President shall have such authority to appoint officers as
from time to time delegated by the Board of Directors, and to delegate such
authority further to other officers of the Bank.
SECTION 4. Authority and Responsibility. The authorities and
responsibilities of all officers, in addition to those specifically
prescribed herein, shall be those usually pertaining to their respective
offices, or as may be designated by the Board of Directors or by the
Chairman of the Board or by the President, or by any officer of the Bank
designated by one of the foregoing.
SECTION 5. Term of Office. Officers shall be appointed for an
indefinite term, and their employment may be terminated or they may be
removed from office at any time. The Board of Directors shall have
authority to terminate or remove officers of the Bank. The Chairman of the
Board or the President shall have such authority to terminate or remove
officers as from time to time delegated by the Board of Directors, and to
delegate such authority further to other officers of the Bank.
SECTION 6. Surety. All officers and employees of the Bank who shall
be responsible for any moneys, funds or valuables of the Bank shall give
bond, or be covered by a blanket bond, in such penal sum and with such
security as shall be approved by the Board, conditioned for the faithful
and honest discharge of their duties as such officers or employees and that
they will faithfully apply and account for all such moneys, funds and
valuables and deliver the same on proper demand to the order of the Board
of the Bank, or to the person or persons authorized to receive the same.
ARTICLE V
SEAL
SECTION 1. Description. The Seal of the Bank shall include the name
of the Bank.
SECTION 2. Attestation. Any instrument which is executed for and on
behalf of the Bank by its duly authorized officers may, when necessary, be
attested and sealed with the corporate seal by any officer of the Bank
other than the officer who executes such instrument on behalf of the Bank.
ARTICLE VI
TRANSFERS OF REAL ESTATE
Any Vice President or higher ranking officer shall have authority on
behalf of and in the name of the Bank, to execute any document or
instrument and to take action which may be necessary or appropriate to
purchase, convey, lease, or otherwise affect any real estate or interest in
real estate owned or to be owned by the Bank; provided, however, any
document or instrument purchasing, conveying or leasing real estate used or
to be used by the Bank as banking facilities must be executed by a Senior
Vice President or higher ranking officer, or any other officer designated
by any of the foregoing. Any Assistant Vice President or higher-ranking
officer shall have authority to execute and deliver on behalf of and in the
name of the Bank, releases of mortgages or trust deeds.
ARTICLE VII
STOCK AND STOCK CERTIFICATES
SECTION 1. Increase of Stock. In the event of any increase in the
capital stock of the Bank the preemptive rights of the shareholders in
respect of any such increased stock shall be as set forth in Article FIFTH
of the Articles of Association.
Any warrants or certificates issuable to shareholders in connection
with any increase of the capital stock of the Bank, shall be delivered to
the respective shareholders entitled thereto, either by hand or by mail,
first-class postage prepaid, addressed to their respective addresses as
shown on the books of the Bank.
If, in the event of a sale of additional shares, any subscription
rights shall not have been exercised at the expiration of the specified
subscription period, such unsubscribed new shares may be issued and sold at
such price, not less than the par value thereof, to such persons and on
such terms as the Board of Directors may determine.
SECTION 2. Transfers of Stock. The stock of the Bank shall be
assignable only upon the books of the Bank, subject to the restrictions of
the Act, and a transfer book shall be kept in which all assignments and
transfers of stock shall be made. Transfers of stock may be suspended
preparatory to any election or payment of any dividends.
SECTION 3. Certificates of Stock. Certificates of stock signed by any
Vice President or higher ranking officer and the Cashier, Controller,
Secretary or any Assistant Cashier, Assistant Controller or Assistant
Secretary may be issued to shareholders, and the Certificates shall state
upon the face thereof that the stock is transferable only upon the books of
the Bank. If such Certificates are manually countersigned by two other
officers of the Bank, the signatures of the officers designated in the
preceding sentence may be facsimiles, engraved or printed. In case any
officer who has signed or whose facsimile signature has been placed upon
such Certificates shall have ceased to be such officer before such
Certificates are issued, they may be issued by the Bank with the same
effect as if such officer had not ceased to be such at the date of issue.
In case of transfer of stock, new Certificates of stock shall not be
issued until other Certificate or Certificates of stock of an equal amount
shall first have been surrendered and cancelled.
Any one of the following officers of the Bank: the Chairman of the
Board, the President, any Vice Chairman of the Board, the Secretary of the
Bank or the General Counsel is each hereby authorized to cause new
Certificates of stock of the Bank to be issued to replace Certificates
reported to have been lost, stolen or destroyed, upon receipt of: (a)
appropriate affidavit or affidavits setting forth whether the Certificates
were lost, stolen or destroyed and the circumstances thereof, and (b) a
bond or bonds (blanket or otherwise) or an agreement or agreements of
indemnity, sufficient in the opinion of any of such officers to protect the
interests of the Bank issuing such new Certificates.
ARTICLE VIII
BANKING HOURS
The Bank shall be open for business during such days of the year and
for such hours as the Board of Directors or any officer of the Bank
designated by the Board of Directors may from time to time determine.
ARTICLE IX
CONTRACTS, CERTIFICATES OF DEPOSIT AND NOTES
SECTION 1. Execution of Contracts. Any officer of the bank and such
other persons as may be authorized by the Board of Directors are severally
and respectively authorized to execute documents and to take action in the
Bank's name in connection with any and all transactions conducted in the
ordinary course of business of the Bank.
SECTION 2. Certificates of Deposit and Notes. Notwithstanding the
foregoing, all certificates of deposits and notes evidencing obligations of
the Bank shall be signed either manually or by facsimile signature by any
officer of the Bank, and, if such signature is not a manual signature,
shall be validated by the manual signature of another officer of the Bank
whose signature does not already appear on said certificate of deposit or
note or by the authorized officers of corporate fiduciaries or agents with
whom the Board of Directors may from time to time by resolution authorize
the officers of the Bank to contract for services in connection with the
validation and delivery of certificates of deposit or notes issued by the
Bank.
ARTICLE X
VOTING RIGHTS
The vote of the Bank as stockholder in any corporation in which it
may hold stock or upon any securities carrying voting rights which it shall
have the right to vote in its individual capacity as a Bank, shall be cast
at any stockholders' or shareholders' meeting by any Vice President or
higher ranking officer, or the Secretary, Controller or Cashier, in person,
or by some person or persons authorized by written proxy signed by one of
said officers.
In all cases where shares of stock or other securities carrying
voting rights and owned by the Bank shall be held in the name of a nominee
of the Bank, any Vice President or higher ranking officer, or the
Secretary, Controller or Cashier, may authorize such nominee to vote such
stock or other securities in person, either unconditionally or upon such
terms, limitations, or conditions as such officer may direct, or any such
officer may authorize such nominee to execute a proxy to vote such shares
of stock or other securities carrying voting rights, either unconditionally
or upon such terms, conditions and/or limitations as such officer shall
approve.
ARTICLE XI
EXAMINATIONS
It shall be the duty of the Auditor to examine, from time to time,
the various operations of the Bank, verify its assets and liabilities, and
perform such other procedures as are required to determine that the
accounting records are accurate and to ascertain whether the Bank is in a
sound and solvent condition. Major discrepancies and defalcations shall be
reported to the Board promptly and other reports shall be made directly to
the Board when deemed appropriate either by the Auditor or the Board. In
the event of the death, resignation, absence or inability of the Auditor,
the Board of Directors shall appoint a competent person who shall make such
examinations and reports, pending the election of a successor to the
Auditor or the return of the Auditor to his duties.
ARTICLE XII
BONDS OF INDEMNITY
Bonds of indemnity given to secure the issuance of duplicate or
substitute notes, bonds, stock certificates, checks, debentures or other
securities which may have been lost, destroyed or stolen or to secure the
payment of any such lost, destroyed or stolen securities or to secure the
payment by the Bank of funds deposited by any public authorities, shall be
executed by any Assistant Vice President or higher ranking officer, and, if
required, sealed with the corporate seal and attested by some other officer
of the Bank.
ARTICLE XIII
AUTHORITY TO SELL STOCKS, BONDS, ETC.
SECTION 1. U.S. Obligations. Any Assistant Vice President or higher
ranking officer may at any time, in his discretion, sell, assign and
transfer any and all United States bonds now standing, or which may
hereafter stand, in the name of the Bank, and to appoint one or more
attorneys for that purpose.
SECTION 2. Other Obligations. Any Assistant Vice President or higher
ranking officer may at any time, in his discretion, sell, assign and
transfer any and all notes, bonds, certificates of indebtedness or
obligations of any corporation, firm or individual, which said notes,
bonds, certificates of indebtedness or obligations are now registered, or
may hereafter be registered, in the name of, or for the benefit of, the
Bank, or are payable or indorsed to the Bank.
SECTION 3. Stock. Any Assistant Vice President or higher ranking
officer may at any time in his discretion, sell, assign and transfer to any
assignee or transferee, for and on behalf of the Bank and in its name, any
and all shares of capital stock of any corporation or corporations held by
the Bank.
ARTICLE XIV
AMENDMENT OF BY-LAWS
These By-Laws may be changed or amended by the vote of a majority of
the directors present at any regularly constituted meeting of the Board of
Directors.
ARTICLE XV
EMERGENCY OPERATION OF BANK
In the event of an emergency declared by the President of the United
States or the person performing his functions, due to threatened or actual
enemy attack or disaster, the officers and employees of the Bank will
continue to conduct the affairs of the Bank under such guidance from the
directors as may be available, except as to matters which by statute
require specific approval of the Board of Directors, and subject to
conformance with any governmental directives during the emergency.
ARTICLE XVI
DELEGATION OF AUTHORITY
Each of the Chairman of the Board, the President, any member of the
Board and the Secretary of the Bank are severally and respectively
authorized to designate in writing such persons who shall be authorized in
the name and on behalf of the Bank to sign any document or instrument,
including certificates of deposit and notes, and to take action which may
be necessary or appropriate to the conduct of the Bank's business, in its
individual capacity or any other capacity. Any such authorization to sign
such document or instrument and to take any action may be general or
limited as is determined in the discretion of the Chairman of the Board,
the President, any member of the Board or the Secretary.
By-Laws of First USA Bank, National Association effective upon the merger
of FCC National Bank and First USA Bank, National Association.
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FIRST USA BANK
Transferor and Servicer
and
NATIONSBANK OF VIRGINIA, N.A.
Trustees
on behalf of the Certificateholders
of the First USA Credit Card Master Trust
------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of September 1, 1992
- ---------------------------------------------------------------------------
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS............................................................... 1
Section 1.1 Definitions.......................................... 1
Section 1.2 Other Definitional Provisions........................ 22
ARTICLE II
CONVEYANCE OF RECEIVABLES;
ISSUANCE OF CERTIFICATES
Section 2.1 Conveyance of Receivables............................ 24
Section 2.2 Acceptance by Trustee................................ 26
Section 2.3 Representations and Warranties of the
Transferor......................................... 27
Section 2.4 Representations and Warranties of the
Transferor Relating to the Agreement and
the Receivables.................................... 29
Section 2.5 Covenants of the Transferor.......................... 37
Section 2.6 Addition of Accounts................................. 40
Section 2.7 Removal of Accounts.................................. 43
Section 2.8 Discount Receivables................................. 45
ARTICLE III
ADMINISTRATION AND SERVICING
OF RECEIVABLES
Section 3.1 Acceptance of Appointment and Other Matters
Relating to the Servicer........................... 47
Section 3.2 Servicing Compensation............................... 50
Section 3.3 Representations and Warranties of the Servicer....... 51
Section 3.4 Reports and Records for the Trustee.................. 53
Section 3.5 Annual Servicer's Certificate........................ 54
Section 3.6 Annual Independent Accountants' Servicing
Report............................................. 55
Section 3.7 Tax Treatment........................................ 56
Section 3.8 Notices to the Transferor............................ 57
ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND ALLOCATION
AND APPLICATION OF COLLECTIONS
Section 4.1 Rights of Certificateholders......................... 58
Section 4.2 Establishment of Accounts............................ 58
Section 4.3 Collections and Allocations.......................... 61
ARTICLE V
[ARTICLE V IS RESERVED AND SHALL
BE SPECIFIED IN ANY SUPPLEMENT
WITH RESPECT TO ANY SERIES)
ARTICLE VI
THE CERTIFICATES
Section 6.1 The Certificates..................................... 66
Section 6.2 Authentication of Certificates....................... 67
Section 6.3 Registration of Transfer and Exchange
of Certificates.................................... 68
Section 6.4 Mutilated, Destroyed, Lost or Stolen
Certificates....................................... 71
Section 6.5 Persons Deemed Owners................................ 72
Section 6.6 Appointment of Paying Agent.......................... 73
Section 6.7 Access to List of Certificateholders' Names
and Addresses...................................... 75
Section 6.8 Authenticating Agent................................. 75
Section 6.9 Tender of Exchangeable Transferor Certificate........ 77
Section 6.10 Book-Entry Certificates.............................. 80
Section 6.11 Notices to Clearing Agency........................... 81
Section 6.12 Definitive Certificates.............................. 82
Section 6.13 Global Certificate; Euro-Certificate
Exchange Date...................................... 83
Section 6.14 Meetings of Certificateholders....................... 83
ARTICLE VII
OTHER MATTERS RELATING TO THE TRANSFEROR
Section 7.1 Liability of the Transferor.......................... 84
Section 7.2 Merger or Consolidation of, or Assumption of
the Obligations of, the Transferor................ 84
Section 7.3 Limitation on Liability.............................. 85
Section 7.4 Liabilities.......................................... 86
ARTICLE VIII
OTHER MATTERS RELATING
TO THE SERVICER
Section 8.1 Liability of the Servicer............................ 87
Section 8.2 Merger or Consolidation of, or Assumption of
the Obligations of, the Servicer................... 87
Section 8.3 Limitation on Liability of the Servicer
and Others......................................... 88
Section 8.4 Servicer Indemnification of the Trust and
the Trustee....................................... 89
Section 8.5 The Servicer Not to Resign........................... 90
Section 8.6 Access to Certain Documentation and Information
Regarding the Receivables.......................... 90
Section 8.7 Delegation of Duties................................. 90
Section 8.8 Examination of Records............................... 91
ARTICLE IX
PAY OUT EVENTS
Section 9.1 Pay Out Events....................................... 92
Section 9.2 Additional Rights Upon the Occurrence of
Certain Events..................................... 92
ARTICLE X
SERVICER DEFAULTS
Section 10.1 Servicer Defaults.................................... 96
Section 10.2 Trustee to Act; Appointment of Successor............. 99
Section 10.3 Notification to Certificateholders...................101
Section 10.4 Waiver of Past Defaults..............................102
ARTICLE XI
THE TRUSTEE
Section 11.1 Duties of Trustee....................................103
Section 11.2 Certain Matters Affecting the Trustee................105
Section 11.3 Trustee Not Liable for Recitals in Certificates......107
Section 11.4 Trustee May Own Certificates.........................108
Section 11.5 The Servicer to Pay Trustee's Fees and Expenses......108
Section 11.6 Eligibility Requirements for Trustee.................108
Section 11.7 Resignation or Removal of Trustee....................109
Section 11.8 Successor Trustee....................................110
Section 11.9 Merger or Consolidation of Trustee...................111
Section 11.10 Appointment of Co-Trustee or Separate Trustee........111
Section 11.11 Tax Returns..........................................113
Section 11.12 Trustee May Enforce Claims Without Possession
of Certificates....................................113
Section 11.13 Suits for Enforcement................................113
Section 11.14 Rights of Certificateholders to Direct Trustee.......114
Section 11.15 Representations and Warranties of Trustee............114
Section 11.16 Maintenance of Office or Agency......................115
ARTICLE XII
TERMINATION
Section 12.1 Termination of Trust.................................116
Section 12.2 Optional Purchase....................................118
Section 12.3 Final Payment with Respect to any Series.............118
Section 12.4 Termination Rights of Holder of Exchangeable
Transferor Certificate.............................120
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.1 Amendment............................................122
Section 13.2 Protection of Right Title and Interest to Trust......123
Section 13.3 Limitation on Rights of Certificateholders...........125
Section 13.4 Governing Law........................................126
Section 13.5 Notices..............................................126
Section 13.6 Severability of Provisions...........................127
Section 13.7 Assignment...........................................127
Section 13.8 Certificates Non-Assessable and Fully Paid...........127
Section 13.9 Further Assurances...................................128
Section 13.10 No Waiver; Cumulative Remedies.......................128
Section 13.11 Counterparts.........................................128
Section 13.12 Third-Party Beneficiaries............................128
Section 13.13 Actions by Certificateholders........................128
Section 13.14 Rule 144A Information................................129
Section 13.15 Merger and Integration...............................129
Section 13.16 Heading..............................................129
EXHIBITS
Exhibit A Form of Exchangeable Transferor Certificate
Exhibit B Form of Assignment of Receivables in Additional Accounts
Exhibit C Form of Monthly Servicer's Certificate
Exhibit D Form of Annual Servicer's Certificate
Exhibit E Form of Opinion of Counsel Regarding Additional Accounts
Exhibit F Form of Annual Opinion of Counsel
Exhibit G Form of Reassignment of Receivables
Exhibit H Form of Reconveyance of Receivables
SCHEDULES
Schedule 1 List of Account [Deemed Incorporated]
POOLING AND SERVICING AGREEMENT, dated as of September 1, 1992
by and between FIRST USA BANK, a Delaware chartered banking Corporation, as
Transferor and Servicer, and NATIONSBANK OF VIRGINIA, N.A., a national
banking association organized and existing under the laws of the United
States, as Trustee.
In consideration of the mutual agreements herein contained,
each party agrees as follows for the benefit of the other parties and the
Certificateholders:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Whenever used in this Agreement, the
following words and phrases shall have the following meanings:
"Account Information" shall have the meaning specified in
subsection 2.02(b).
"Account" shall mean each VISA(R) and MasterCard(R)* credit
card account established pursuant to a Credit Card Agreement between the
Transferor and any Person identified by account number and by the
Receivable balance as of August 21, 1992 and as of each Addition Cut-Off
Date in each computer file or microfiche list delivered to the Trustee by
the Transferor pursuant to Section 2.01 or 2.06. The definition of Account
shall include each Transferred Account. The term "Account" shall be deemed
to refer to an Additional Account only from and after the Addition Date
with respect thereto, and the term "Account" shall be deemed to refer to
any Removed Account only prior to the Removal Date with respect thereto.
- ------------
* VISA(R) and MasterCard(R) are registered trademarks of VISA USA, Inc.
and of MasterCard International Incorporated, respectively.
"Addition Cut Off Date" shall mean each date as of which
Additional Accounts shall be selected to be included as Accounts pursuant
to Section 2.06.
"Addition Date" shall mean each date as of which Additional
Accounts will be included as Accounts pursuant to Section 2.06.
"Additional Accounts" shall have the meaning specified in
subsection 2.06(a).
"Adjustment Payment" shall have the meaning specified in
subsection 4.03(c).
"Affiliate" of any Person shall mean any other Person
controlling, controlled by or under common control with such Person.
"Aggregate Investor Default Amount" shall have, with respect to
any Series of Certificates, the meaning stated in the related Supplement.
"Aggregate Invested Amount" shall mean, as of any date of
determination, the sum of the Invested Amounts of all Series of
Certificates issued and outstanding on such date of determination.
"Aggregate Investor Percentage" with respect to Principal
Receivables, Finance Charge Receivables and Receivables in Defaulted
Accounts, as the case may be, shall mean, as of any date of determination,
the sum of such Investor Percentages of all Series of Certificates issued
and outstanding on such date of determination; provided, however, that the
Aggregate Investor Percentage shall not exceed 100%.
"Agreement" shall mean this Pooling and Servicing Agreement and
all amendments hereof and supplements hereto, including any Supplement.
"Allocated Collections" shall have the meaning specified in
subsection 4.03(f).
"Amortization Period" shall mean, with respect to any Series,
the period following the related Revolving Period, which shall be the
controlled amortization period, the rapid amortization period, or other
amortization or accumulation period, in each case as defined with respect
to such Series in the related Supplement.
"Annual Membership Fee" shall have the meaning specified in the
Credit Card Agreement applicable to each Account for annual membership fees
or similar terms.
"Applicants" shall have the meaning specified in Section 6.07.
"Appointment Day" shall have the meaning specified in
subsection 9.02(a).
"Assignment" shall have the meaning specified in subsection
2.06(c)(ii).
"Authorized Newspaper" shall mean a newspaper of general
circulation in the Borough of Manhattan, The City of New York printed in
the English language and customarily published on each Business Day,
whether or not published on Saturdays, Sundays and holidays.
"Average Principal Receivables" shall mean, for any period, an
amount equal to (a) the sum of the aggregate amount of Principal
Receivables at the end of each day during such period divided by (b) the
number of days in such period.
"Bank Portfolio" shall mean the MasterCard and VISA accounts
originated by the Transferor.
"Bearer Certificates" shall have the meaning specified in
Section 6.01.
"Bearer Rules" shall mean the provisions of the Internal
Revenue Code, in effect from time to time, governing the treatment of
bearer obligations, including sections 163(f), 871, 881, 1441, 1442 and
4701, and any regulations thereunder including, to the extent applicable to
any Series, Proposed or Temporary Regulations.
"BIF" shall mean the Bank Insurance Fund administered by the
FDIC.
"Book-Entry Certificates" shall mean certificates evidencing a
beneficial interest in the Investor Certificates, ownership and transfers
of which shall be made through book entries by a Clearing Agency as
described in Section 6.10; provided, that after the occurrence of a
condition whereupon book-entry registration and transfer are no longer
authorized and Definitive Certificates are to be issued to the Certificate
Owners, such certificates shall no longer be ""Book-Entry Certificates."
"Business Day" shall mean any day other than a Saturday, a
Sunday or a day on which banking institutions in New York, New York, or
Richmond, Virginia (or, with respect to any Series, any additional city
specified in the related Supplement) are authorized or obligated by law or
executive order to be closed.
"Cash Advance Fees" shall have the meaning specified in the
Credit Card Agreement applicable to each Account for cash advance fees or
similar terms.
"CEDEL" shall mean Centrale de Livraison de Valeurs Mobilieres
S.A.
"Certificate" shall mean any one of the Investor Certificates
of any Series or the Exchangeable Transferor Certificate.
"Certificateholder" or "Holder" shall mean the Person in whose
name a Certificate is registered in the Certificate Register and, if
applicable, the holder of any Bearer Certificate or Coupon, as the case may
be.
"Certificate Interest" shall mean interest payable in respect
of the Investor Certificates of any Series pursuant to Article IV of the
Supplement for such Series.
"Certificate Owner" shall mean, with respect to a Book-Entry
Certificate, the Person who is the beneficial owner of such Book-Entry
Certificate, as may be reflected on the books of the Clearing Agency, or on
the books of a Person maintaining an account with such Clearing Agency
(directly or as an indirect participant, in accordance with the rules of
such Clearing Agency).
"Certificate Principal" shall mean principal payable in respect
of the Investor Certificates of any Series pursuant to Article IV of this
Agreement.
"Certificate Rate" shall mean, with respect to any Series of
Certificates (or, for any Series with more than one class, for each class
of such Series), the percentage (or formula on the basis of which such rate
shall be determined) stated in the related Supplement; provided, that
unless otherwise provided in a Supplement, such rate shall be calculated on
the basis of a 360-day year consisting of twelve 30-day months.
"Certificate Register" shall mean the register maintained
pursuant to Section 6.03, providing for the registration of the
Certificates and transfers and exchanges thereof.
"Class" shall mean, with respect to any Series, any one of the
classes of Certificates of that Series as specified in the related
Supplement.
"Clearing Agency" shall mean an organization registered as a
"clearing agency"" pursuant to Section 17A of the Securities Exchange Act
of 1934, as amended.
"Clearing Agency Participant" shall mean a broker, dealer,
bank, other financial institution or other Person for whom from time to
time a Clearing Agency or Foreign Clearing Agency effects book-entry
transfers and pledges of securities deposited with the Clearing Agency or
Foreign Clearing Agency.
"Closing Date" shall mean, with respect to any Series, the date
of issuance of such Series of Certificates, as specified in the related
Supplement.
"Collection Account" shall have the meaning specified in
subsection 4.02(a).
"Collections" shall mean all payments (including Insurance
Proceeds) received by the Servicer in respect of the Receivables, in the
form of cash, checks, wire transfers, ATM transfers or other form of
payment in accordance with the Credit Card Agreement in effect from time to
time on any Receivables. A Collection processed on an Account in excess of
the aggregate amount of Receivables in such Account as of the Date of
Processing of such Collection shall be deemed to be a payment in respect of
Principal Receivables to the extent of such excess. Collections with
respect to any Monthly Period shall include the amount of Interchange (if
any) allocable to any Series of Certificates pursuant to any Supplement
with respect to such Monthly Period (to the extent received by the Trust
and deposited into the Finance Charge Account or any Series Account as the
case may be, on the Transfer Date following such Monthly Period), to be
applied as if such Collections were Finance Charge Receivables for all
purposes. Collections with respect to any Monthly Period shall also include
the amount deposited by the Transferor into the Finance Charge Account (or
Series Account if provided in any Supplement) pursuant to Section 2.08.
"Corporate Trust Office" shall mean the principal office of the
Trustee at which at any particular time its corporate trust business shall
be administered, which office at the date of the execution of this
Agreement is located at 600 East Main Street, 17th Floor, Richmond,
Virginia 23219, Attention: John A. Dracos, Jr.
"Coupon" shall have the meaning specified in Section 6.01.
"Credit Adjustment" shall have the meaning specified in
subsection 4.03(c).
"Credit Card Agreement" shall mean the Agreement and Federal
Truth in Lending Statement for MasterCard and VISA credit card accounts
between any Obligor and First USA Bank as such agreements may be amended,
modified or otherwise changed from time to time.
"Credit Card Guidelines" shall mean the Transferor's policies
and procedures relating to the operation of its credit card business,
including, without limitation, the policies and procedures for determining
the creditworthiness of credit card customers, the extension of credit to
credit card customers, and relating to the maintenance of credit card
accounts and collection of credit card receivables, as such policies and
procedures may be amended from time to time.
"Cut Off Date" shall mean August 21, 1992.
"Date of Processing" shall mean, with respect to any
transaction, the date on which such transaction is first recorded on the
Servicer's computer master file of VISAu and MasterCardu accounts (without
regard to the effective date of such recordation).
"Default Amount" shall mean, with respect to any Defaulted
Account, the amount of Principal Receivables (other than Ineligible
Receivables) in such Defaulted Account on the day such Account became a
Defaulted Account.
"Defaulted Account" shall mean each Account with respect to
which, in accordance with the Credit Card Guidelines or the Servicer's
customary and usual servicing procedures for servicing credit card
receivables comparable to the Receivables, the Servicer has charged off the
Receivables in such Account as uncollectible; an Account shall become a
Defaulted Account on the day on which such Receivables are recorded as
charged off as uncollectible on the Servicer's computer master file of VISA
and MasterCard accounts. Notwithstanding any other provision hereof, any
Receivables in a Defaulted Account that are Ineligible Receivables shall be
treated as Ineligible Receivables rather than Receivables in Defaulted
Accounts.
"Definitive Certificate" shall have the meaning specified in
Section 6.10.
"Depository" shall have the meaning specified in Section 6.10.
"Depository Agreement" shall mean, with respect to each Series,
the agreement among the Transferor, the Trustee and the Clearing Agency, or
as otherwise provided in the related Supplement.
"Determination Date" shall mean the first Business Day on or
before the eighth calendar day prior to each Distribution Date.
"Discount Receivables" shall mean on any Date of Processing,
the sum of (a) the aggregate Discount Receivables at the end of the prior
Date of Processing plus (b) any new Discount Receivables created on such
Date of Processing minus (c) any Discount Receivables Collections received
on such Date of Processing. Discount Receivables created on any Date of
Processing shall mean the product of the amount of any Principal
Receivables created on such Date of Processing (without giving effect to
the proviso in the definition of Principal Receivables) and the Yield
Factor.
"Discount Receivable Collections" shall mean on any Date of
Processing, the product of (a) a fraction the numerator of which is the
amount of Discount Receivables and the denominator of which is the sum of
the Principal Receivables and the Discount Receivables in each case (for
both numerator and denominator) at the end of the prior Monthly Period and
(b) collections of Principal Receivables on such Date of Processing.
"Distribution Account" shall have the meaning specified in
subsection 4.02(c).
"Distribution Date" shall mean, unless otherwise specified in
any Supplement for the related Series, the fifteenth day of each month or,
if such fifteenth day is not a Business Day, the next succeeding Business
Day.
"Dollars", "$" or "U.S. $" shall mean United States dollars.
"Draft Fees" shall have the meaning specified in the Credit
Card Agreement applicable to each Account for any draft fees or similar
terms.
"Eligible Account" shall mean, as of the Cut Off Date (or, with
respect to Additional Accounts as of the relevant Addition Cut Off Date),
each Account owned by the Transferor:
(a) which was in existence and maintained with the Transferor
prior to its selection for inclusion in the Trust;
(b) which is payable in Dollars;
(c) the Obligor on which has provided, as its most recent
billing address, an address which is located in the United States or its
territories or possessions;
(d) which the Transferor has not classified on its electronic
records as stolen or lost;
(e) which has not been identified by the Transferor in its
computer files as being involved in a voluntary or involuntary bankruptcy
proceeding;
(f) which has not been sold or pledged to any other party and
which does not have receivables which have been sold or pledged to any
other party;
(g) which is a VISA or MasterCard revolving credit card
account; and
(h) which the Transferor has not charged off in its customary
and usual manner for charging off such Accounts as of the Cut Off Date (or,
with respect to Additional Accounts, as of the relevant Addition Cut Off
Date).
"Eligible Receivable" shall mean each Receivable:
(a) which has arisen under an Eligible Account (in the case of
Accounts conveyed to the Trust on the Initial Closing Date as of the Cut
Off Date and in the case of Additional Accounts as of the relevant Addition
Cut Off Date);
(b) which was created in compliance, in all material respects,
with all Requirements of Law applicable to the Transferor and pursuant to a
Credit Card Agreement which complies, in all material respects, with all
Requirements of Law applicable to the Transferor;
(c) with respect to which all consents, licenses, approvals or
authorizations of, or registrations or declarations with, any Governmental
Authority required to be obtained, effected or given by the Transferor in
connection with the creation of such Receivable or the execution, delivery
and performance by the Transferor of the Credit Card Agreement pursuant to
which such Receivable was created, have been duly obtained, effected or
given and are in full force and effect as of such date of creation;
(d) as to which, at the time of and at all times after the
creation of such Receivable, the Transferor or the Trust had good and
marketable title thereto, free and clear of all Liens arising under or
through the Transferor or any of its Affiliates (other than Liens permitted
pursuant to subsection 2.05(b));
(e) which is the legal, valid and binding payment obligation of
the Obligor thereon, enforceable against such Obligor in accordance with
its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws,
now or hereafter in effect, affecting the enforcement of creditors' rights
in general and except as such enforceability may be limited by general
principles of equity (whether considered in a suit at law or in equity);
and
(f) which constitutes an "account" under and as defined in
Article 9 of the UCC as then in effect in the State of Delaware.
"Enhancement" shall mean, with respect to any Series, the cash
collateral account, letter of credit, guaranteed rate agreement, maturity
guaranty facility, tax protection agreement, interest rate swap or any
other contract or agreement for the benefit of the Certificateholders of
such Series (or Certificateholders of a Class within such Series) as
designated in the applicable Supplement.
"Enhancement Provider" shall mean, with respect to any Series,
the Person, if any, designated as such in the related Supplement.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time.
"Euroclear Operator" shall mean Morgan Guaranty Trust Company
of New York, Brussels, Belgium office, as operator of the Euroclear System.
"Excess Amount Principal Allocation" shall have the meaning
specified in subsection 4.03(f).
"Excess Principal Collections" shall mean, with respect to a
Distribution Date, the aggregate amount for all outstanding Series of
Principal Collections which the related Supplements specify are to be
treated as "Excess Principal Collections" for such Distribution Date.
"Exchange" shall mean either of the procedures described under
Section 6.09.
"Exchangeable Transferor Certificate" shall mean the
certificate executed by the Transferor and authenticated by the Trustee,
substantially in the form of Exhibit A and exchangeable as provided in
Section 6.09; provided, that at any time there shall be only one
Exchangeable Transferor Certificate.
"Exchange Date" shall have the meaning, with respect to any
Series issued pursuant to an Exchange, specified in Section 6.09.
"Exchange Notice" shall have the meaning, with respect to any
Series issued pursuant to an Exchange, specified in Section 6.09.
"Extended Trust Termination Date" shall have the meaning
specified in subsection 12.01(a).
"FDIC" shall mean the Federal Deposit Insurance Corporation.
"Finance Charge Account" shall have the meaning specified in
subsection 4.02(b).
"Finance Charge Receivables" shall mean Receivables created in
respect of the Periodic Finance Charges, Annual Membership Fees, Cash
Advance Fees, Late Fees, overlimit fees, return check fees and similar fees
and charges and Discount Receivables. Finance Charge Receivables with
respect to any Monthly Period shall include the amount of Interchange (if
any) allocable to any Series of Certificates pursuant to any Supplement
with respect to such Monthly Period (to the extent received by the Trust
and deposited into the Finance Charge Account or any Series Account, as the
case may be, on the Transfer Date following such Monthly Period).
"Foreign Clearing Agency" shall mean CEDEL and the Euroclear
Operator.
"Global Certificate" shall have the meaning specified in
Section 6.13.
"Group" shall mean, with respect to any Series, the group of
Series in which the related Supplement specifies such Series is to be
included.
"Governmental Authority" shall mean the United States of
America, any state or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Ineligible Receivable" shall have the meaning specified in
subsection 2.04(d)(iii).
"Initial Closing Date" shall mean September 24, 1992.
"Initial Invested Amount" shall mean, with respect to any
Series of Certificates, the amount stated in the related Supplement.
"Insolvency Event" shall have the meaning specified in
subsection 9.02(a).
"Insurance Proceeds" shall mean any amounts recovered by the
Servicer pursuant to any credit insurance policies covering any Obligor
with respect to Receivables under such Obligor's Account.
"Interchange" shall mean interchange fees payable to the
Transferor, in its capacity as credit card issuer, through VISA USA, Inc.
and MasterCard International Incorporated.
"Internal Revenue Code" shall mean the Internal Revenue Code of
1986, as amended from time to time.
"Invested Amount" shall have, with respect to any Series of
Certificates, the meaning stated in the related Supplement.
"Investment Company Act" shall mean the Investment Company Act
of 1940, as amended from time to time.
"Investor Account" shall mean each of the Finance Charge
Account, the Principal Account and the Distribution Account.
"Investor Certificate" shall mean any one of the certificates
(including, without limitation, the Bearer Certificates, the Registered
Certificates or the Global Certificates) executed by the Transferor and
authenticated by the Trustee substantially in the form (or forms in the
case of a Series with multiple classes) of the investor certificate
attached to the related Supplement.
"Investor Certificateholder" shall mean the Holder of record of
an Investor Certificate.
"Investor Charge Off" shall have, with respect to each Series,
the meaning specified in the applicable Supplement.
"Investor Default Amount" shall have, with respect to any
Series of Certificates, the meaning stated in the related Supplement.
"Investor Exchange" shall have the meaning specified in
subsection 6.09(b).
"Investor Monthly Servicing Fee" shall have, with respect to
each Series, the meaning specified in Section 3.02.
"Investor Percentage" shall have, with respect to Principal
Receivables, Finance Charge Receivables and Receivables in Defaulted
Accounts, and any Series of Certificates, the meaning stated in the related
Supplement.
"Late Fees" shall have the meaning specified in the Credit Card
Agreement applicable to each Account for late fees or similar terms.
"Lien" shall mean any mortgage, deed of trust, pledge,
hypothecation, assignment, participation or equity interest, deposit
arrangement, encumbrance, lien (statutory or other), preference, priority
or other security agreement or preferential arrangement of any kind or
nature whatsoever, including, without limitation, any conditional sale or
other title retention agreement, any financing lease having substantially
the same economic effect as any of the foregoing and the filing of any
financing statement under the UCC (other than any such financing statement
filed for informational purposes only) or comparable law of any
jurisdiction to evidence any of the foregoing; provided, however, that any
assignment pursuant to Section 7.02 shall not be deemed to constitute a
Lien.
"Minimum Aggregate Principal Receivables" shall mean, as of any
date of determination, an amount equal to the sum of the Initial Invested
Amounts for all outstanding Series on such date.
"Minimum Transferor Interest" shall have the meaning specified
in subsection 2.06(a).
"Monthly Period" shall mean, unless otherwise defined in any
Supplement, the period from and including the first day of a calendar month
to and including the last day of a calendar month.
"Monthly Transferor Servicing Fee" shall have the meaning
specified in Section 3.02.
"Monthly Servicing Fee" shall have the meaning specified in
Section 3.02.
"Moody's" shall mean Moody's Investors Service, Inc.
"Notice Date" shall have the meaning specified in subsection
2.06(c)(i).
"Obligor" shall mean, with respect to any Account, the Person
or Persons obligated to make payments with respect to such Account,
including any guarantor thereof.
"Officer's Certificate" shall mean a certificate signed by any
Vice President or more senior officer of the Transferor or Servicer and
delivered to the Trustee.
"Opinion of Counsel" shall mean a written opinion of counsel,
who may be counsel for or an employee of the Person providing the opinion,
and who shall be reasonably acceptable to the Trustee.
"Outstanding Series" shall have the meaning specified in
subsection 4.03(f).
"Paying Agent" shall mean any paying agent appointed pursuant
to Section 6.06 and shall initially be the Trustee.
"Pay Out Commencement Date" shall mean, with respect to each
Series, (a) the date on which a Trust Pay Out Event is deemed to occur
pursuant to Section 9.01 or (b) a Series Pay Out Event is deemed to occur
pursuant to the Supplement for such Series.
"Pay Out Event" shall mean, with respect to each Series, a
Trust Pay Out Event or a Series Pay Out Event.
"Periodic Finance Charges" shall have the meaning specified in
the Credit Card Agreement applicable to each Account for finance charges
(due to periodic rate) or any similar term.
"Permitted Investments" shall mean, unless otherwise provided
in the Supplement with respect to any Series (a) negotiable instruments or
securities represented by instruments in bearer or registered form which
evidence (i) obligations of or fully guaranteed by the United States of
America; (ii) time deposits, promissory notes, or certificates of deposit
of any depositary institution or trust company incorporated under the laws
of the United States of America or any state thereof and subject to
supervision and examination by federal or state banking or depositary
institution authorities; provided, however, that at the time of the Trust's
investment or contractual commitment to invest therein, the certificates of
deposit or short-term deposits of such depositary institution or trust
company shall have a credit rating from Moody's and Standard & Poor's of
P-1 and A-1+, respectively; (iii) commercial paper having, at the time of
the Trust's investment or contractual commitment to invest therein, a
rating from Moody's and Standard & Poor's of P-1 and A-1+, respectively;
(iv) bankers acceptances issued by any depository institution or trust
company described in clause (a)(ii) above; and (v) investments in money
market funds rated AAA-m or AAA-mg by Standard & Poor's and P-1 by Moody's
or otherwise approved in writing by each Rating Agency; (b) demand deposits
in the name of the Trust or the Trustee in any depositary institution or
trust company referred to in clause (a) (ii) above; (c) securities not
represented by an instrument that are registered in the name of the Trustee
upon books maintained for that purpose by or on behalf of the issuer
thereof and identified on books maintained for that purpose by the Trustee
as held for the benefit of the Trust or the Certificateholders, and
consisting of shares of an open end diversified investment company which is
registered under the Investment Company Act which (i) invests its assets
exclusively in obligations of or guaranteed by the United States of America
or any instrumentality or agency thereof having in each instance a final
maturity date of less than one year from their date of purchase or other
Permitted Investments, (ii) seeks to maintain a constant net asset value
per share, (iii) has aggregate net assets of not less than $100,000,000 on
the date of purchase of such shares and (iv) which each Rating Agency
designates in writing will not result in a withdrawal or downgrading of its
then current rating of any Series rated by it; and (d) any other investment
if the Rating Agency confirms in writing that such investment will not
adversely affect its then current rating of the Investor Certificates.
"Person" shall mean any legal person, including any individual,
corporation, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, governmental entity or other entity of
similar nature.
"Pool Factor" shall mean, unless any Series is issued in more
than one Class as stated in any related Supplement, a number carried out to
seven decimals representing the ratio of the applicable Invested Amount as
of such Record Date (determined after taking into account any reduction in
the Invested Amount which will occur on the following Distribution Date) to
the applicable Initial Invested Amount.
"Principal Account" shall have the meaning specified in
subsection 4.02(b).
"Principal Receivable" shall mean each Receivable other than
(i) Finance Charge Receivables, (ii) Receivables in Defaulted Accounts and
(iii) Discount Receivables. A Receivable shall be deemed to have been
created at the end of the day on the Date of Processing of such Receivable.
In calculating the aggregate amount of Principal Receivables on any day,
the amount of Principal Receivables shall be reduced by the aggregate
amount of credit balances in the Accounts on such day. Any Receivables
which the Transferor is unable to transfer as provided in subsection
2.05(e) shall not be included in calculating the aggregate amount of
Principal Receivables.
"Principal Shortfalls" shall mean, with respect to a
Distribution Date, the aggregate amount of all outstanding Series which the
related Supplements specify are "Principal Shortfalls" for such
Distribution Date.
"Principal Terms" shall have the meaning, with respect to any
Series issued pursuant to an Exchange, specified in subsection 6.09(c).
"Publication Date" shall have the meaning specified in
subsection 9.02(a).
"Qualified Institution" shall have the meaning specified in
subsection 4.02(a) (iii).
"Rating Agency" shall mean, with respect to each Series, the
rating agency or agencies, if any, specified in the related Supplement.
"Reassignment" shall have the meaning specified in subsection
2.07(b) (ii).
"Reassignment Date" shall have the meaning specified in
subsection 2.04(e).
"Receivable" shall mean any amount owing by the Obligors
including, without limitation, amounts owing for the payment of goods and
services, cash advances, access checks, Annual Membership Fees, Cash
Advance Fees, Periodic Finance Charges, Late Fees, overlimit fees, return
check fees and credit insurance premiums and Special Fees, if any.
"Record Date" shall mean, with respect to any Distribution
Date, the last Business Day of the preceding Monthly Period.
"Registered Certificates" shall have the meaning specified in
Section 6.01.
"Removal Date" shall mean the date on which Receivables in
certain designated Removed Accounts will be reassigned by the Trustee to
the Transferor.
"Removal Notice Date" shall mean the day no later than the
fifth Business Day prior to a Removal Date.
"Removed Accounts" shall have the meaning specified in
subsection 2.07(a).
"Requirements of Law" for any Person shall mean the certificate
of incorporation or articles of association and by-laws or other
organizational or governing documents of such Person, and any law, treaty,
rule or regulation, or determination of an arbitrator or Governmental
Authority, in each case applicable to or binding upon such Person or to
which such Person is subject, whether federal, state or local (including,
without limitation, usury laws, the federal Truth in Lending Act and
Regulation Z and Regulation B of the Board of Governors of the Federal
Reserve System).
"Responsible Officer" shall mean any officer within the
Corporate Trust Office (or any successor group of the Trustee), including
any Vice President or any other officer of the Trustee customarily
performing functions similar to those performed by any person who at the
time shall be an above-designated officer and who shall have direct
responsibility for the administration of this Agreement.
"Retired Series" shall have the meaning specified in subsection
4.03(f).
"Revolving Period" shall have, with respect to each Series, the
meaning specified in the related Supplement.
"SAIF" shall mean the Savings Association Insurance Fund
administered by the FDIC.
"Secured Obligations" shall have the meaning specified in
Section 2.01.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Series" shall mean any series of Investor Certificates, which
may include within any such Series a Class or Classes of Investor
Certificates subordinate to another such Class or Classes of Investor
Certificates.
"Series Account" shall mean any account or accounts established
pursuant to a Supplement for the benefit of such Series.
"Series Pay Out Event" shall have, with respect to any Series,
the meaning specified pursuant to the Supplement for the related Series.
"Series Servicing Fee Percentage" shall mean, with respect to
any Series, the amount specified in the related Supplement.
"Series Termination Date" shall mean, with respect to any
Series of Certificates, the date stated in the related Supplement.
"Service Transaction Fees" shall have the meaning specified in
the Credit Card Agreement applicable to each Account for any service
transaction fees or similar terms.
"Servicer" shall mean initially First USA Bank, and its
permitted successors and assigns and thereafter any Person appointed as
successor as herein provided to service the Receivables.
"Servicer Default" shall have the meaning specified in Section
10.01.
"Servicing Officer" shall mean any officer of the Servicer
involved in, or responsible for, the administration and servicing of the
Receivables whose name appears on a list of servicing officers furnished to
the Trustee by the Servicer, as such list may from time to time be amended.
"Standard & Poor's" shall mean Standard & Poor's Corporation.
"Successor Servicer" shall have the meaning specified in
subsection 10.02(a).
"Supplement" shall mean, with respect to any Series, a
supplement to this Agreement complying with the terms of Section 6.09 of
this Agreement, executed in conjunction with any issuance of any Series of
Certificates (or, in the case of the Issuance of Certificates on the
Initial Closing Date, the supplement executed in connection with the
issuance of such Certificates).
"Termination Notice" shall have, with respect to any Series,
the meaning specified in subsection 10.01(d).
"Transfer Agent and Registrar" shall have the meaning specified
in Section 6.03 and shall initially be the Trustee's Corporate Trust
Office.
"Transfer Date" shall mean, with respect to any Series, the
Business Day immediately prior to each Distribution Date.
"Transferor" shall mean First USA Bank, a Delaware chartered
banking Corporation.
"Transferor Exchange" shall have the meaning specified in
subsection 6.09(b).
"Transferor Interest" shall mean, on any date of determination,
the aggregate amount of Principal Receivables at the end of the day
immediately prior to such date of determination, minus the Aggregate
Invested Amount at the end of such day.
"Transferor Percentage" shall mean, on any date of
determination, when used with respect to Principal Receivables, Finance
Charge Receivables and Receivables in Defaulted Accounts, a percentage
equal to 100% minus the Aggregate Investor Percentage with respect to such
categories of Receivables.
"Transferred Account" shall mean (a) an Account with respect to
which a new credit account number has been issued by the Servicer or the
Transferor under circumstances resulting from a lost or stolen credit card
or from the transfer from one affinity group to another affinity group and
not requiring standard application and credit evaluation procedures under
the Credit Card Guidelines or (b) an Eligible Account resulting from the
conversion of an Account that was a standard account to a premium account
or from a premium account to a standard account, and which in either case
can be traced or identified by reference to or by way of the computer files
or microfiche lists delivered to the Trustee pursuant to Section 2.01 or
2.06 as an account into which an Account has been transferred.
"Trust" shall mean the trust created by this Agreement, the
corpus of which shall consist of the Receivables now existing or hereafter
created and all monies due or to become due with respect thereto, all
proceeds (as defined in Section 9-306 of the UCC as in effect in the State
of Delaware) of the Receivables and Insurance Proceeds relating thereto,
the right to receive certain amounts paid or payable as Interchange (if
provided for in any Supplement), such funds as from time to time are
deposited in the Collection Account, the Finance Charge Account, the
Principal Account, the Distribution Account and any Series Account and the
rights to any Enhancement with respect to any Series.
"Trust Extension" shall have the meaning specified in
subsection 12.01(a).
"Trust Pay Out Event" shall have, with respect to each Series,
the meaning specified in Section 9.01.
"Trust Termination Date" shall mean the earlier to occur of (i)
unless a Trust Extension shall have occurred, the day after the
Distribution Date with respect to any Series following the date on which
funds shall have been deposited in the Distribution Account or the
applicable Series Account for the payment of Investor Certificateholders of
each Series then issued and outstanding sufficient to pay in full the
Aggregate Invested Amount plus interest accrued at the applicable
Certificate Rate through the end of the related Monthly Period prior to the
Distribution Date with respect to each such Series, (ii) if a Trust
Extension shall have occurred, the Extended Trust Termination Date, and
(iii) August 1, 2032.
"Trustee" shall mean NationsBank of Virginia, N.A., a national
banking association, and its successors and any Person resulting from or
surviving any consolidation or merger to which it or its successors may be
a party and any successor trustee appointed as herein provided.
"UCC" shall mean the Uniform Commercial Code, as amended from
time to time, as in effect in any specified jurisdiction.
"Unallocated Principal Collections" shall have the meaning
specified in subsection 4.03(f).
"Undivided Interest" shall mean the undivided interest in the
Trust evidenced by an Investor Certificate.
"Yield Factor" shall mean the fixed percentage designated by
the Transferor pursuant to Section 2.08.
Section 1.2 Other Definitional Provisions.
(a) All terms defined in any Supplement or this Agreement shall
have the defined meanings when used in any certificate or other document
made or delivered pursuant hereto unless otherwise defined therein.
(b) As used herein and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined
in Section 1.01, and accounting terms partially defined in Section 1.01 to
the extent not defined, shall have the respective meanings given to them
under generally accepted accounting principles or regulatory accounting
principles, as applicable. To the extent that the definitions of accounting
terms herein are inconsistent with the meanings of such terms under
generally accepted accounting principles or regulatory accounting
principles, the definitions contained herein shall control.
(c) The agreements, representations and warranties of First USA
Bank in this Agreement and in any Supplement in each of its capacities as
Transferor and Servicer shall be deemed to be the agreements,
representations and warranties of First USA Bank solely in each such
capacity for so long as First USA Bank acts in each such capacity under
this Agreement.
(d) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to any Supplement or
this Agreement as a whole and not to any particular provision of this
Agreement or any Supplement; and Section, subsection, Schedule and Exhibit
references contained in this Agreement or any Supplement are references to
Sections, subsections, Schedules and Exhibits in or to this Agreement or
any Supplement unless otherwise specified. The Monthly Servicer Report, the
form of which is attached as Exhibit C to this Agreement, shall be in
substantially the form of Exhibit C, with such changes as the Servicer may
determine to be necessary or desirable; provided, however, that no such
change shall serve to exclude information required by the Agreement or any
Supplement. The Servicer shall, upon making such determination, deliver to
the Trustee and each Rating Agency an Officer's Certificate to which shall
be annexed the form of the related Exhibit, as so changed. Upon the
delivery of such Officer's Certificate to the Trustee, the related Exhibit,
as so changed, shall for all purposes of this Agreement constitute such
Exhibit. The Trustee may conclusively rely upon such Officer's Certificate
in determining whether the related Exhibit, as changed, conforms to the
requirements of this Agreement.
[End of Article I]
ARTICLE II
CONVEYANCE OF RECEIVABLES;
ISSUANCE OF CERTIFICATES
Section 2.1 Conveyance of Receivables. The Transferor does
hereby transfer, assign, set-over, and otherwise convey to the Trust for
the benefit of the Certificateholders, without recourse, all of its right,
title and interest in and to the Receivables now existing and hereafter
created and arising in connection with the Accounts (other than Receivables
in Additional Accounts), all monies due or to become due with respect
thereto (including all Finance Charge Receivables), all proceeds of such
Receivables and Insurance Proceeds relating to such Receivables. The
foregoing transfer, assignment, set-over and conveyance does not constitute
and is not intended to result in a creation or an assumption by the Trust,
the Trustee or any Investor Certificateholder of any obligation of the
Transferor, the Servicer or any other Person in connection with the
Accounts or Receivables or any agreement or instrument relating thereto,
including, without limitation, any obligation to any Obligors, merchant
banks, merchants clearance systems, VISA USA, Inc., Mastercard
International Incorporated or any insurers.
In connection with such transfer, assignment, set-over and
conveyance, the Transferor agrees to record and file, at its own expense, a
financing statement (including any continuation statements with respect to
such financing statement when applicable) with respect to the Receivables
now existing and hereafter created for the transfer of accounts (as defined
in Section 9-106 of the UCC as in effect in the State of Delaware) meeting
the requirements of applicable state law in such manner and in such
jurisdictions as are necessary to perfect the assignment of the Receivables
to the Trust, and to deliver a file-stamped copy of such financing
statement or continuation statement or other evidence of such filing (which
may, for purposes of this Section 2.01, consist of telephone confirmation
of such filing) to the Trustee on or prior to the date of issuance of the
Certificates, and in the case of any continuation statements filed pursuant
to this Section 2.01, as soon as practicable after receipt thereof by the
Transferor. The foregoing transfer, assignment, set-over and conveyance to
the Trust shall be made to the Trustee, on behalf of the Trust, and each
reference in this Agreement to such transfer, assignment, set-over and
conveyance shall be construed accordingly.
In connection with such transfer, the Transferor agrees, at its
own expense, on or prior to the Initial Closing Date (i) to annotate and
indicate in its computer files that Receivables created in connection with
the Accounts (other than any Additional Accounts) have been transferred to
the Trust pursuant to this Agreement for the benefit of the
Certificateholders and (ii) to deliver to the Trustee a computer file or
microfiche list containing a true and complete list of all such Accounts,
identified by account number and setting forth the Receivable balance as of
August 21, 1992. Such file or list shall be marked as Schedule 1 to this
Agreement, delivered to the Trustee as confidential and proprietary, and is
hereby incorporated into and made a part of this Agreement. The Transferor
further agrees not to alter the file designation referenced in clause (i)
of this paragraph with respect to any Account during the term of this
Agreement unless and until such Account becomes a Removed Account.
The Transferor hereby grants and transfers to the Trustee a
first priority perfected security interest in all of the Transferor's
right, title and interest in, to and under the Receivables now existing and
hereafter created and arising in connection with the Accounts (other than
Receivables in Additional Accounts), all payments on such Receivables, all
Insurance Proceeds relating thereto and all proceeds thereof, to secure a
loan in an amount equal to the unpaid principal amount of the investor
certificates issued hereunder or to be issued pursuant to this Agreement
and the interest accrued at the related certificate rate (the "Secured
Obligations"), and that this Agreement shall constitute a security
agreement under applicable law.
Pursuant to the request of the Transferor, the Trustee shall
cause Certificates in authorized denominations evidencing the entire
interest in the Trust to be duly authenticated and delivered to or upon the
order of the Transferor pursuant to Section 6.02.
Section 2.2 Acceptance by Trustee.
(a) The Trustee hereby acknowledges its acceptance, on behalf
of the Trust, of all right, title and interest previously held by the
Transferor in and to the Receivables now existing and hereafter created and
arising in connection with the Accounts (other than Receivables in
Additional Accounts), all monies due or to become due with respect thereto
(including all Finance Charge Receivables), all proceeds of such
Receivables, Insurance Proceeds relating to such Receivables, and the
proceeds thereof, and declares that it shall maintain such right, title and
interest, upon the Trust herein set forth, for the benefit of all
Certificateholders. The Trustee further acknowledges that, prior to or
simultaneously with the execution and delivery of this Agreement, the
Transferor delivered to the Trustee the computer file or microfiche list
described in the third paragraph of Section 2.01.
(b) The Trustee hereby agrees not to disclose to any Person any
of the account numbers or other information contained in the computer files
or microfiche lists delivered to the Trustee by the Transferor pursuant to
Sections 2.01, 2.06 and 2.07 ("Account Information") except as is required
in connection with the performance of its duties hereunder or in enforcing
the rights of the Certificateholders or to a Successor Servicer appointed
pursuant to Section 10.02, any successor trustee appointed pursuant to
Section 11.08, any co-trustee or separate trustee appointed pursuant to
Section 11.10 or any other Person in connection with a UCC search or as
mandated pursuant to any Requirement of Law applicable to the Trustee. The
Trustee agrees to take such measures as shall be reasonably requested by
the Transferor to protect and maintain the security and confidentiality of
such information, and, in connection therewith, shall allow the Transferor
to inspect the Trustee's security and confidentiality arrangements from
time to time during normal business hours. In the event that the Trustee is
required by law to disclose any Account Information, the Trustee shall
provide the Transferor with prompt written notice, unless such notice is
prohibited by law, of any such request or requirement so that the
Transferor may request a protective order or other appropriate remedy. The
Trustee shall make best efforts to provide the Transferor with written
notice no later than five days prior to any disclosure pursuant to this
subsection 2.02(b).
(c) The Trustee shall have no power to create, assume or incur
indebtedness or other liabilities in the name of the Trust other than as
contemplated in this Agreement.
Section 2.3 Representations and Warranties of the Transferor.
The Transferor hereby represents and warrants to the Trust as of the
Initial Closing Date:
(a) Organization and Good Standing. The Transferor is a
Delaware chartered banking corporation duly organized and validly existing
in good standing under the Laws of the State of Delaware and has full
corporate power, authority and legal right to own its properties and
conduct its business as such properties are presently owned and such
business is presently conducted, and to execute, deliver and perform its
obligations under this Agreement and to execute and deliver to the Trustee
the Certificates pursuant hereto.
(b) Due Qualification. The Transferor is duly qualified to do
business and is in good standing (or is exempt from such requirement) in
any state required in order to conduct business, and has obtained all
necessary licenses and approvals with respect to the Transferor required
under federal and Delaware law; provided, however, that no representation
or warranty is made with respect to any qualifications, licenses or
approvals which the Trustee would have to obtain to do business in any
state in which the Trustee seeks to enforce any Receivable.
(c) Due Authorization. The execution and delivery of this
Agreement and the execution and delivery to the Trustee of the Certificates
by the Transferor and the consummation of the transactions provided for in
this Agreement have been duly authorized by the Transferor by all necessary
corporate action on its part and this Agreement will remain, from the time
of its execution, an official record of the Transferor.
(d) No Conflict. The execution and delivery of this Agreement
and the Certificates, the performance of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof will not conflict
with, result in any breach of any of the material terms and provisions of,
or constitute (with or without notice or lapse of time or both) a material
default under, any indenture, contract, agreement, mortgage, deed of trust,
or other instrument to which the Transferor is a party or by which it or
any of its properties are bound.
(e) No Violation. The execution and delivery of this Agreement
and the Certificates, the performance of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof will not conflict
with or violate any Requirements of Law applicable to the Transferor.
(f) No Proceedings. There are no proceedings or investigations
pending or, to the best knowledge of the Transferor, threatened against the
Transferor before any court, regulatory body administrative agency, or
other tribunal or governmental instrumentality (i) asserting the invalidity
of this Agreement or the Certificates, (ii) seeking to prevent the issuance
of the Certificates or the consummation of any of the transactions
contemplated by this Agreement or the Certificates, (iii) seeking any
determination or ruling that, in the reasonable judgment of the Transferor,
would materially and adversely affect the performance by the Transferor of
its obligations under this Agreement, (iv) seeking any determination or
ruling that would materially and adversely affect the validity or
enforceability of this Agreement or the Certificates or (v) seeking to
affect adversely the income tax attributes of the Trust.
(g) Eligibility of Accounts. As of the Cut Off Date, each
Account was an Eligible Account selected at random from among the Eligible
Accounts in the Bank Portfolio.
(h) Transferor's Deposit Accounts. As of the Initial Closing
Date, deposits in the Transferor's deposit accounts were insured to the
limits provided by law by BIF.
(i) All Consents Required. All appraisals, authorizations,
consents, orders or other actions of any Person or of any governmental body
or official required in connection with the execution and delivery of this
Agreement and the Certificates, the performance of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof,
have been obtained.
For the purposes of the representations and warranties
contained in this Section 2.03 and made by the Transferor on the Initial
Closing Date, "Certificates" shall mean the Certificates issued on the
Initial Closing Date. The representations and warranties set forth in this
Section 2.03 shall survive the transfer and assignment of the respective
Receivables to the Trust, and termination of the rights and obligations of
the Servicer pursuant to Section 10.01. The Transferor hereby represents
and warrants to the Trust, with respect to any Series of Certificates, as
of its Closing Date, unless otherwise stated in such Supplement, that the
representations and warranties of the Transferor set forth in Section 2.03,
are true and correct as of such date (for the purposes of such
representations and warranties, "Certificates" shall mean the Certificates
issued on the related Closing Date). Upon discovery by the Transferor, the
Servicer or the Trustee of a breach of any of the foregoing representations
and warranties, the party discovering such breach shall give prompt written
notice to the others.
Section 2.4 Representations and Warranties of the Transferor
Relating to the Agreement and the Receivables.
(a) Binding Obligation; Valid Transfer and Assignment. The
Transferor hereby represents and warrants to the Trust that, as of the
Initial Closing Date:
(i) This Agreement constitutes a legal, valid and binding
obligation of the Transferor, enforceable against the Transferor in
accordance with its terms, except (A) as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect affecting
the enforcement of creditors' rights in general and the rights of
creditors of national banking associations, and (B) as such
enforceability may be limited by general principles of equity
(whether considered in a suit at law or in equity).
(ii) This Agreement constitutes either (A) a valid
transfer, assignment, set-over and conveyance to the Trust of all
right, title and interest of the Transferor in and to the Receivables
now existing and hereafter created and arising in connection with the
Accounts (other than Receivables in Additional Accounts), all
proceeds of such Receivables and Insurance Proceeds relating thereto
and such Receivables and all proceeds thereof and Insurance Proceeds
relating thereto will be held by the Trust free and clear of any Lien
of any Person claiming through or under the Transferor or any of its
Affiliates except for (x) Liens permitted under subsection 2.05(b),
(y) the interest of the Transferor as Holder of the Exchangeable
Transferor Certificate and (z) the Transferor's right, if any, to
interest accruing on, and investment earnings, if any, in respect of
the Finance Charge Account, the Principal Account or any Series
Account, as provided in this Agreement or the related Supplement, or
(B) a grant of a security interest (as defined in the UCC as in
effect in the State of Delaware) in such property to the Trust, which
is enforceable with respect to the existing Receivables (other than
Receivables in Additional Accounts), the proceeds thereof and
Insurance Proceeds relating thereto upon execution and delivery of
this Agreement, and which will be enforceable with respect to such
Receivables hereafter created, the proceeds thereof and Insurance
Proceeds relating thereto, upon such creation. If this Agreement
constitutes the grant of a security interest to the Trust in such
property, upon the filing of the financing statement described in
Section 2.01 and in the case of the Receivables hereafter created and
proceeds thereof and Insurance Proceeds relating thereto, upon such
creation, the Trust shall have a first priority perfected security
interest in such property (subject to Section 9-306 of the UCC as in
effect in the State of Delaware), except for Liens permitted under
subsection 2.05(b). Neither the Transferor nor any Person claiming
through or under the Transferor shall have any claim to or interest
in the Principal Account, the Finance Charge Account, the
Distribution Account or any Series Account, except for the
Transferor's rights to receive interest accruing on, and investment
earnings in respect of, the Finance Charge Account and Principal
Account as provided in this Agreement (or, if applicable, any Series
Account as provided in any Supplement) and, if this Agreement
constitutes the grant of a security interest in such property, except
for the interest of the Transferor in such property as a debtor for
purposes of the UCC as in effect in the State of Delaware.
(b) Eligibility of Receivables. The Transferor hereby
represents and warrants to the Trust as of the Initial Closing Date and as
of each Addition Date, as the case may be, that:
(i) Each Receivable is an Eligible Receivable as of the
Cut Off Date or the Addition Date, as applicable.
(ii) Each Receivable then existing has been conveyed to
the Trust free and clear of any Lien of any Person claiming through
or under the Transferor or any of its Affiliates (other than Liens
permitted under subsection 2.05(b)) and in compliance, in all
material respects, with all Requirements of Law applicable to the
Transferor.
(iii) With respect to each Receivable then existing, all
consents, licenses, approvals or authorizations of or registrations
or declarations with any Governmental Authority required to be
obtained, effected or given by the Transferor in connection with the
conveyance of such Receivable to the Trust have been duly obtained,
effected or given and are in full force and effect.
(iv) On each day on which any new Receivable is created,
the Transferor shall be deemed to represent and warrant to the Trust
that (A) each Receivable created on such day is an Eligible
Receivable, (B) each Receivable created on such day has been conveyed
to the Trust in compliance, in all material respects, with all
Requirements of Law applicable to the Transferor, (C) with respect to
each such Receivable, all consents, licenses, approvals or
authorizations of or registrations or declarations with, any
Governmental Authority required to be obtained, effected or given by
the Transferor in connection with the conveyance of such Receivable
to the Trust have been duly obtained, effected or given and are in
full force and effect and (D) the representations and warranties set
forth in subsection 2.04(a) are true and correct with respect to each
Receivable created on such day as if made on such day.
(v) As of the Initial Closing Date, Schedule l to this
Agreement, and as of the applicable Addition Date with respect to
Additional Accounts, the related computer file or microfiche list
referred to in Section 2.06, is an accurate and complete listing in
all material respects of all the Accounts as of August 21, 1992, or
with respect to Additional Accounts, as of the applicable Addition
Date, and the information contained therein with respect to the
identity of such Accounts and the Receivables existing thereunder is
true and correct in all material respects as of August 21, 1992 or
such applicable Addition Date, as of the Cut Off Date, the aggregate
amount of Receivables in all the Accounts was $406,709,099, of which
$394,803,925 were Principal Receivables.
(c) Notice of Breach. The representations and warranties set
forth in this Section 2.04 shall survive the transfer and assignment of the
respective Receivables to the Trust. Upon discovery by the Transferor, the
Servicer or the Trustee of a breach of any of the representations and
warranties set forth in this Section 2.04, the party discovering such
breach shall give prompt written notice to the other parties mentioned
above. The Transferor agrees to cooperate with the Servicer and the Trustee
in attempting to cure any such breach.
(d) Transfer of Ineligible Receivables.
(i) Automatic Removal. In the event of a breach with
respect to a Receivable of any representations and warranties set
forth in subsection 2.04(b)(ii), or in the event that a Receivable is
not an Eligible Receivable as a result of the failure to satisfy the
conditions set forth in clause (d) of the definition of Eligible
Receivable, and any of the following three conditions is met: (A) as
a result of such breach or event such Receivable is charged off as
uncollectible or the Trust's rights in, to or under such Receivable
or its proceeds are impaired or the proceeds of such Receivable are
not available for any reason to the Trust free and clear off any
Lien; (B) the Lien upon the subject Receivable (1) arises in favor of
the United States of America or any State or any agency or
instrumentality thereof and involves taxes or liens arising under
Title IV of ERISA or (2) has been consented to by the Transferor; or
(C) the unsecured short-term debt rating of the Transferor is not at
least P-1 by Moody's and the Lien upon the subject Receivable ranks
prior to the Lien created pursuant to this Agreement; then, upon the
earlier to occur of the discovery of such breach or event by the
Transferor or the Servicer or receipt by the Transferor of written
notice of such breach or event given by the Trustee, each such
Receivable shall be automatically removed from the Trust on the terms
and conditions set forth in subsection 2.04(d)(iii).
(ii) Removal After Cure Period. In the event of a breach
of any of the representations and warranties set forth in subsection
2.04(b) other than a breach or event as set forth in clause (d)(i)
above, and as a result of such breach the related Account becomes a
Defaulted Account or the Trust's rights in, to or under the
Receivable or its proceeds are impaired or the proceeds of such
Receivable are not available for any reason to the Trust free and
clear of any Lien, then, upon the expiration of 60 days (or such
longer period as may be agreed to by the Trustee in its sole
discretion, but in no event later than 120 days) from the earlier to
occur of the discovery of any such event by either the Transferor or
the Servicer, or receipt by the Transferor of written notice of any
such event given by the Trustee, each such Receivable shall be
removed from the Trust on the terms and conditions set forth in
subsection 2.04(d)(iii); provided, however, that no such removal
shall be required to be made if, on any day within such applicable
period, such representations and warranties with respect to such
Receivable shall then be true and correct in all material respects as
if such Receivable had been created on such day.
(iii) Procedures for Removal. When the provisions of
subsection 2.04(d)(i) or (ii) above require removal of a Receivable,
the Transferor shall accept reassignment of such Receivable (an
"Ineligible Receivable") by directing the Servicer to deduct the
principal balance of each such Ineligible Receivable from the
Principal Receivables in the Trust and to decrease the Transferor
Interest by such amount. On and after the date of such removal, each
Ineligible Receivable shall be deducted from the aggregate amount of
Principal Receivables used in the calculation of any Investor
Percentage, the Transferor Percentage or the Transferor Interest. In
the event that the exclusion of an Ineligible Receivable from the
calculation of the Transferor Interest would cause the Transferor
Interest to be reduced below zero or would otherwise not be permitted
by law, the Transferor shall immediately, but in no event later than
10 Business Days after such event, make a deposit in the Collection
Account (for allocation as a Principal Receivable) in immediately
available funds prior to the next succeeding Transfer Date in an
amount equal to the amount by which the Transferor Interest would be
reduced below zero. The portion of such deposit allocated to the
Investor Certificates of each Series shall be distributed to the
Investor Certificateholders of each Series in the manner specified in
Article IV, if applicable, on the Distribution Date relating to the
Monthly Period in which ouch deposit is made. Upon the reassignment
to the Transferor of an Ineligible Receivable, the Trust shall
automatically and without further action be deemed to transfer,
assign, set-over and otherwise convey to the Transferor, without
recourse, representation or warranty, all the right, title and
interest of the Trust in and to such Ineligible Receivable, all
monies due or to become due with respect thereto and all proceeds
thereof and Insurance Proceeds relating thereto allocated to such
Ineligible Receivable pursuant to any Supplement. Such reassigned
Ineligible Receivable shall be treated by the Trust as collected in
full as of the date on which it was transferred. The Trustee shall
execute such documents and instruments of transfer or assignment and
take other actions as shall reasonably be requested by the Transferor
to evidence the conveyance of such Ineligible Receivable pursuant to
this subsection 2.04(d)(iii) (and any costs or expenses incurred by
the Trustee in connection with such conveyance shall be reimbursed by
the Servicer). The obligation of the Transferor, set forth in this
subsection 2.04(d)(iii), or the automatic removal of such Receivable
from the Trust, as the case may be, shall constitute the sole remedy
respecting any breach of the representations and warranties set forth
in the above-referenced subsections with respect to such Receivable
available to Certificateholders or the Trustee on behalf of
Certificateholders.
(iv) Proceeds Held by Servicer. For the purposes of
subsections 2.04(d)(i) and (ii) above, proceeds of a Receivable shall
not be deemed to be impaired hereunder solely because such proceeds
are held by the Servicer (if the Servicer is the Transferor) for more
than the applicable period under Section 9-306(3) of the UCC as in
effect in the State of Delaware.
(e) Reassignment of Trust Portfolio. In the event of a breach
of any of the representations and warranties set forth in subsection
2.04(a), either the Trustee or the Holders of Investor Certificates
evidencing Undivided Interests aggregating more than 50% of the Aggregate
Invested Amount, by notice then given in writing to the Transferor (and to
the Trustee and the Servicer, if given by the Investor Certificateholders),
may direct the Transferor to accept reassignment of an amount of Principal
Receivables (as specified below) within 60 days of such notice (or within
such longer period as may be specified in such notice), and the Transferor
shall be obligated to accept reassignment of such Principal Receivables on
a Distribution Date specified by the Transferor (such Distribution Date,
the "Reassignment Date") occurring within such applicable period on the
terms and conditions set forth below; provided, however, that no such
reassignment shall be required to be made if, at any time during such
applicable period, the representations and warranties contained in
subsection 2.04(a) shall then be true and correct in all material respects.
The Transferor shall deposit on the Transfer Date (in New York Clearing
House, next day funds) preceding the Reassignment Date an amount equal to
the reassignment deposit amount for such Receivables in the Distribution
Account or Series Account, as provided in the related Supplement, for
distribution to the Investor Certificateholders pursuant to Article XII.
The reassignment deposit amount with respect to each Series for such
reassignment, unless otherwise stated in the related Supplement, shall be
equal to (i) the Invested Amount of such Series at the end of the day on
the last day of the Monthly Period preceding the Reassignment Date, less
the amount, if any, previously allocated for payment of principal to such
Certificateholders on the related Distribution Date in the Monthly Period
in which the Reassignment Date occurs, plus (ii) an amount equal to all
interest accrued but unpaid on the Investor Certificates of such Series at
the applicable Certificate Rate through such last day, less the amount, if
any, previously allocated for payment of interest to the Certificateholders
of such Series on the related Distribution Date in the Monthly Period in
which the Reassignment Date occurs. Payment of the reassignment deposit
amount with respect to each Series, and all other amounts in the
Distribution Account or the applicable Series Account in respect of the
preceding Monthly Period shall be considered a prepayment in full of the
Receivables represented by the Investor Certificates. On the Distribution
Date following the Transfer Date on which such amount has been deposited in
full into the Distribution Account or the applicable Series Account, the
Receivables and all monies due or to become due with respect thereto and
all proceeds of the Receivables and Insurance Proceeds relating thereto and
Interchange (if any) allocated to the Receivables pursuant to any
Supplement shall be released to the Transferor after payment of all amounts
otherwise due hereunder on or prior to such dates and the Trustee shall
execute and deliver such instruments of transfer or assignment, in each
case without recourse, representation or warranty, as shall be prepared by
and as are reasonably requested by the Transferor to vest in the
Transferor, or its designee or assignee, all right, title and interest of
the Trust in and to the Receivables, all monies due or to become due with
respect thereto and all proceeds of the Receivables and Insurance Proceeds
relating thereto allocated to the Receivables pursuant to any Supplement
(and any costs or expenses incurred by the Trustee in connection with such
reassignment shall be reimbursed by the Servicer). If the Trustee or the
Investor Certificateholders give notice directing the Transferor to accept
reassignment as provided above, the obligation of the Transferor to accept
reassignment of the Receivables and pay the reassignment deposit amount
pursuant to this subsection 2.04(e) shall constitute the sole remedy
respecting a breach of the representations and warranties contained in
subsection 2.04(a) available to the Investor Certificateholders or the
Trustee on behalf of the Investor Certificateholders.
Section 2.5 Covenants of the Transferor. The Transferor hereby
covenants that:
(a) Receivables to be Accounts. The Transferor will take no
action to cause any Receivable to be evidenced by any instrument (as
defined in the UCC as in effect in the State of Delaware). Each Receivable
shall be payable pursuant to a contract which does not create a Lien on any
goods purchased thereunder. The Transferor will take no action to cause any
Receivable to be anything other than an "account" (as defined in the UCC as
in effect in the State of Delaware).
(b) Security Interests. Except for the conveyances hereunder,
the Transferor will not sell, pledge, assign or transfer to any other
Person, or grant, create, incur, assume or suffer to exist any Lien on any
Receivable, whether now existing or hereafter created, or any interest
therein; the Transferor will immediately notify the Trustee of the
existence of any Lien on any Receivable; and the Transferor shall defend
the right, title and interest of the Trust in, to and under the
Receivables, whether now existing or hereafter created, against all claims
of third parties claiming through or under the Transferor; provided,
however, that nothing in this subsection 2.05(b) shall prevent or be deemed
to prohibit the Transferor from suffering to exist upon any of the
Receivables any Liens for municipal or other local taxes if such taxes
shall not at the time be due and payable or if the Transferor shall
currently be contesting the validity thereof in good faith by appropriate
proceedings and shall have set aside on its books adequate reserves with
respect thereto.
(c) Credit Card Agreements and Account Guidelines. The
Transferor shall comply with and perform its obligations under the Credit
Card Agreements relating to the Accounts and the Credit Card Guidelines and
all applicable rules and regulations of VISA USA, Inc. and MasterCard
International Incorporated except insofar as any failure to comply or
perform would not materially and adversely affect the rights of the Trust
or the Certificateholders hereunder or under the Certificates. The
Transferor may change the terms and provisions of the Credit Card
Agreements or the Credit Card Guidelines in any respect (including, without
limitation, the reduction of the required minimum monthly payment, the
calculation of the amount, or the timing, of charge offs and the Periodic
Finance Charges and other fees to be assessed thereon) only if such change
(i) would not, in the reasonable belief of the Transferor, cause a Pay Out
Event to occur, and (ii) is made applicable to the comparable segment of
the revolving credit card accounts owned and serviced by the Transferor
which have characteristics the same as, or substantially similar to, the
Accounts that are the subject of such change, except as otherwise
restricted by an endorsement, sponsorship, or other agreement between the
Transferor and an unrelated third party or by the terms of the Credit Card
Agreements.
(d) Account Allocations.
(i) In the event that the Transferor is unable for any
reason to transfer Receivables to the Trust in accordance with the
provisions of this Agreement (including, without limitation, by
reason of the application of the provisions of Section 9.02 or an
order by any federal governmental agency having regulatory authority
over the Transferor or any court of competent jurisdiction that the
Transferor not transfer any additional Principal Receivables to the
Trust) then, in any such event, (A) the Transferor agrees to allocate
and pay to the Trust, after the date of such inability, all
Collections with respect to Principal Receivables, and all amounts
which would have constituted Collections with respect to Principal
Receivables but for the Transferor's inability to transfer such
Receivables (up to an aggregate amount equal to the amount of
Principal Receivables in the Trust on such date); (B) the Transferor
agrees to have such amounts applied as Collections in accordance with
Article IV; and (C) for only so long as all Collections and all
amounts which would have constituted Collections are allocated and
applied in accordance with clauses (A) and (B) above, Principal
Receivables (and all amounts which would have constituted Principal
Receivables but for the Transferor's inability to transfer
Receivables to the Trust) that are written off as uncollectible in
accordance with this Agreement shall continue to be allocated in
accordance with Article IV, and all amounts that would have
constituted Principal Receivables but for the Transferor's inability
to transfer Receivables to the Trust shall be deemed to be Principal
Receivables for the purpose of calculating (i) the applicable
Investor Percentage with respect to any Series and (ii) the Aggregate
Investor Percentage thereunder. If the Transferor is unable pursuant
to any Requirement of Law to allocate Collections as described above,
the Transferor agrees that it shall in any such event allocate, after
the occurrence of such event, payments on each Account with respect
to the principal balance of such Account first to the oldest
principal balance of such Account and to have such payments applied
as Collections in accordance with Article IV. The parties hereto
agree that Finance Charge Receivables, whenever created, accrued in
respect of Principal Receivables that have been conveyed to the
Trust, or that would have been conveyed to the Trust but for the
above described inability to transfer such Receivables, shall
continue to be a part of the Trust notwithstanding any cessation of
the transfer of additional Principal Receivables to the Trust and
Collections with respect thereto shall continue to be allocated and
paid in accordance with Article IV.
(ii) In the event that, pursuant to subsection 2.04(d),
the Transferor accepts reassignment of an Ineligible Receivable as a
result of a breach of the representations and warranties in
subsection 2.04(b) relating to such Receivable, then, in any such
event, the Transferor agrees to account for payments received with
respect to such Ineligible Receivable separately from its accounting
for Collections on Principal Receivables retained by the Trust. If
payments received from or on behalf of an Obligor are not
specifically applicable either to an Ineligible Receivable of such
Obligor reassigned to the Transferor or to the Receivables of such
Obligor retained in the Trust, then the Transferor agrees to allocate
payments proportionately based on the total amount of Principal
Receivables of such Obligor retained in the Trust and the total
amount owing by such Obligor on any Ineligible Receivables reassigned
to the Transferor, and the portion allocable to any Principal
Receivables retained in the Trust shall be treated as Collections and
deposited in accordance with the provisions of Article IV.
(e) Delivery of Collections. The Transferor agrees to pay to
the Servicer all payments received by the Transferor in respect of the
Receivables as soon as practicable after receipt thereof by the Transferor.
(f) Conveyance of Accounts. The Transferor covenants and agrees
that it will not convey, assign, exchange or otherwise transfer the
Accounts to any Person prior to the termination of this Agreement pursuant
to Article XII; provided, however, that the Transferor shall not be
prohibited hereby from conveying, assigning, exchanging or otherwise
transferring the Accounts in connection with a transaction complying with
the provisions of Section 7.02.
Section 2.6 Addition of Accounts.
(a) If, (i) during any period of thirty consecutive days, the
Transferor Interest averaged over that period is less than 5% (or such
higher percentage as may be specified in any Supplement, such percentage
the "Minimum Transferor Interest") of the Average Principal Receivables,
the Transferor shall designate additional eligible MasterCard or VISA
accounts from the Bank Portfolio ("Additional Accounts") to be included as
Accounts in a sufficient amount such that the average of the Transferor
Interest as a percentage of the Average Principal Receivables for such
30-day period, computed by assuming that the amount of the Average
Principal Receivables of such Additional Accounts shall be deemed to be
outstanding in the Trust during each day of such 30-day period, is at least
equal to the Minimum Transferor Interest, or (ii) on any Record Date the
aggregate amount of Principal Receivables is less than the Minimum
Aggregate Principal Receivables, the Transferor shall designate Additional
Accounts to be included as Accounts in a sufficient amount such that the
aggregate amount of Principal Receivables will be equal to or greater than
the Minimum Aggregate Principal Receivables. Receivables from such
Additional Accounts shall be transferred to the Trust on or before the
tenth Business Day following such thirty-day period or Record Date, as the
case may be.
(b) In addition to its obligation under subsection 2.06(a), the
Transferor may, but shall not be obligated to, designate from time to time
Additional Accounts of the Transferor to be included as Accounts; provided,
that the Transferor shall not make more than one such designation in any
one Monthly Period.
(c) The Transferor agrees that any such transfer of Receivables
from Additional Accounts, under subsection 2.06(a) or (b) shall satisfy the
following conditions (to the extent provided below):
(i) on or before the fifth Business Day prior to the
Addition Date with respect to additions pursuant to subsection
2.06(a) and on or before the tenth Business Day prior to the Addition
Date with respect to additions pursuant to subsection 2.06(b) (the
"Notice Date"), the Transferor shall give the Trustee, each Rating
Agency and the Servicer written notice that such Additional Accounts
will be included, which notice shall specify the approximate
aggregate amount of the Receivables to be transferred;
(ii) on or before the Addition Date, the Transferor shall
have delivered to the Trustee a written assignment (including an
acceptance by the Trustee on behalf of the Trust for the benefit of
the Investor Certificateholders) in substantially the form of Exhibit
B (the "Assignment") and the Transferor shall have indicated in its
computer files that the Receivables created in connection with the
Additional Accounts have been transferred to the Trust and, within
five Business Days thereafter, the Transferor shall have delivered to
the Trustee a computer file or microfiche list containing a true and
complete list of all Additional Accounts, identified by account
number and the aggregate amount of the Receivables in such Additional
Accounts, as of the Addition Cut Off Date, which computer file or
microfiche list shall be as of the date of such Assignment
incorporated into and made a part of such Assignment and this
Agreement;
(iii) the Transferor shall represent and warrant that (x)
each Additional Account is, as of the Addition Cut Off Date, an
Eligible Account, and each Receivable in such Additional Account, is,
as of the Addition Cut Off Date, an Eligible Receivable, (y) no
selection procedures believed by the Transferor to be materially
adverse to the interests of the Investor Certificateholders were
utilized in selecting the Additional Accounts from the available
Eligible Accounts from the Bank Portfolio, and (z) as of the Addition
Date, the Transferor is not insolvent;
(iv) the Transferor shall represent and warrant that, as
of the Addition Date, the Assignment constitutes either (x) a valid
transfer and assignment to the Trust of all right, title and interest
of the Transferor in and to the Receivables then existing and
thereafter created in the Additional Accounts, and all proceeds (as
defined in the UCC as in effect in the State of Delaware) of such
Receivables and Insurance Proceeds relating thereto and such
Receivables and all proceeds thereof and Insurance Proceeds relating
thereto will be held by the Trust free and clear of any Lien of any
Person claiming through or under the Transferor or any of its
Affiliates, except for (i) Liens permitted under subsection 2.05(b),
(ii) the interest of the Transferor as Holder of the Exchangeable
Transferor Certificate and (iii) the Transferor's right to receive
interest accruing on, and investment earnings in respect of, the
Finance Charge Account and the Principal Account, or any Series
Account as provided in this Agreement and any related Supplement or
(y) a grant of a security interest (as defined in the UCC as in
effect in the State of Delaware) in such property to the Trust, which
is enforceable with respect to then existing Receivables of the
Additional Accounts, the proceeds (as defined in the UCC as in effect
in the State of Delaware) thereof and Insurance Proceeds relating
thereto upon the conveyance of such Receivables to the Trust, and
which will be enforceable with respect to the Receivables thereafter
created in respect of Additional Accounts conveyed on such Addition
Date, the proceeds (as defined in the UCC as in effect in the State
of Delaware) thereof and Insurance Proceeds relating thereto upon
such creation; and (z) if the Assignment constitutes the grant of a
security interest to the Trust in such property, upon the filing of a
financing statement as described in Section 2.01 with respect to such
Additional Accounts and in the case of the Receivables thereafter
created in such Additional Accounts and the proceeds (as defined in
the UCC as in effect in the State of Delaware) thereof, and Insurance
Proceeds relating thereto, upon such creation, the Trust shall have a
first priority perfected security interest in such property (subject
to Section 9-306 of the UCC as in effect in the State of Delaware),
except for Liens permitted under subsection 2.05(b);
(v) the Transferor shall deliver an Officer's Certificate
substantially in the form of Schedule 2 to Exhibit B to the Trustee
confirming the items set forth in paragraph (ii) above;
(vi) the Transferor shall deliver an Opinion of Counsel
with respect to the Receivables in the Additional Accounts to the
Trustee (with a copy to the Rating Agency) substantially in the form
of Exhibit E; and
(vii) the Transferor shall have received notice from
Standard & Poor's and Moody's that the inclusion of such accounts as
Additional Accounts pursuant to subsection 2.06(b) will not result in
the reduction or withdrawal of its then existing rating of any Series
of Investor Certificates then issued and outstanding and shall have
delivered such notice to the Trustee.
Section 2.7 Removal of Accounts.
(a) Subject to the conditions set forth below, the Transferor
may, but shall not be obligated to, designate Receivables from Accounts for
deletion and removal ("Removed Accounts") from the Trust; provided,
however, that the Transferor shall not make more than one such designation
in any Monthly Period. On or before the fifth Business Day (the "Removal
Notice Date") prior to the date on which the designated Removed Accounts
will be reassigned by the Trustee to the Transferor (the "Removal Date"),
the Transferor shall give the Trustee and the Servicer written notice that
the Receivables from such Removed Accounts are to be reassigned to the
Transferor.
(b) The Transferor shall be permitted to designate and require
reassignment to it of the Receivables from Removed Accounts only upon
satisfaction of the following conditions:
(i) On any Removal Notice Date, the Principal Receivables
of the Removed Accounts to be reassigned back to the Seller on the
related Removal Date shall not equal or exceed 5% of the aggregate
amount of the Principal Receivables on such Removal Date; provided,
that if any Series has been paid in full, the Principal Receivables
in such Removed Accounts may equal the Initial Invested Amount of
such Series;
(ii) The removal of any Receivables of any Removed
Accounts on any Removal Date shall not, in the reasonable belief of
the Seller, cause a Pay Out Event to occur;
(iii) on or prior to the Removal Date, the Transferor
shall have delivered to the Trustee for execution a written
assignment in substantially the form of Exhibit G (the
"Reassignment") and, within five Business Days thereafter, the
Transferor shall have delivered to the Trustee a computer file or
microfiche list containing a true and complete list of all Removed
Accounts identified by account number and the aggregate amount of the
Receivables in such Removed Accounts as of the Removal Date, which
computer file or microfiche list shall as of the Removal Date modify
and amend and be made a part of this Agreement;
(iv) the Transferor shall represent and warrant that no
selection procedures believed by the Transferor to be materially
adverse to the interests of the Certificateholders were utilized in
selecting the Removed Accounts to be removed from the Trust;
(v) As of the Removal Notice Date, not more than 15% of
the Receivables are more than 34 days delinquent;
(vi) on or before the tenth Business Day prior to the
Removal Date, each Rating Agency shall have received notice of such
proposed removal of the Receivables of such Accounts and the
Transferor shall have received notice prior to the Removal Date from
such Rating Agency that such proposed removal will not result in a
downgrade or withdrawal of its then current rating of any outstanding
Series of the Investor Certificates;
(vii) on any Removal Notice Date, the amount of the
Principal Receivables of the Removed Accounts to be reassigned to the
Transferor on the related Removal Date shall not equal or exceed 7%
of the aggregate amount of the Principal Receivables on such Removal
Date; provided, that if any Series has been paid in full, the
Principal Receivables in such Removed Accounts may equal the Initial
Invested Amount of such Series; and
(viii) the Transferor shall have delivered to the Trustee
an Officer's Certificate confirming the items set forth in clauses
(i) through (vi) above. The Trustee may conclusively rely on such
Officer's Certificate, shall have no duty to make inquiries with
regard to the matters set forth therein and shall incur no liability
in so relying.
Upon satisfaction of the above conditions, the Trustee shall
execute and deliver the Reassignment to the Transferor, and the Receivables
from the Removed Accounts shall no longer constitute a part of the Trust.
Section 2.8 Discount Receivables. (a) The Transferor shall
designate a fixed percentage (the "Yield Factor"), initially equal to 1.3%,
of all Receivables other than Periodic Finance Charges, Annual Membership
Fees, Cash Advance Fees, Late Fees, overlimit fees, return check fees and
similar fees and other charges and Receivables in Defaulted Accounts
outstanding on any date of determination to be treated as Finance Charge
Receivables ("Discount Receivables").
(b) The Transferor, in accordance with Section 4.03, shall (i)
deposit into the Collection Account in immediately available funds an
amount equal to the product of (a) the aggregate Investor Percentages for
all Series with respect to Finance Charge Receivables and (b) the aggregate
amount of the Discount Receivable Collections processed on such day and
(ii) pay to the Holder of the Exchangeable Transferor Certificate an amount
equal to the product of (a) the Transferor Percentage and (b) the aggregate
amount of such Discount Receivable Collections. The deposit made by the
Transferor into the Collection Account under the preceding sentence shall
be considered a payment of such Discount Receivables and shall be applied
as Finance Charge Receivables in accordance with Article IV.
(c) The Transferor shall have the option to increase the Yield
Factor to an amount not greater than 4%. The Transferor shall provide to
the Servicer, the Trustee, any Enhancement Provider and the Rating Agency
30 days' prior written notice of such designation, and such designation
shall become effective on the date designated therein (i) unless such
designation in the reasonable belief of the Transferor would cause a Pay
Out Event to occur, or an event which, with notice or the lapse of time or
both, would constitute a Pay Out Event and (ii) only if each Rating Agency
shall have delivered a letter to the Transferor and the Trustee confirming
that its then current rating of the Investor Certificates of any Series
then outstanding will not be reduced or withdrawn as a result of such
designation.
[End of Article II]
ARTICLE III
ADMINISTRATION AND SERVICING
OF RECEIVABLES
Section 3.1 Acceptance of Appointment and Other Matters
Relating to the Servicer.
(a) The Transferor agrees to act as the Servicer under this
Agreement. The Investor Certificateholders of each Series by their
acceptance of the related Certificates consent to the Transferor acting as
Servicer.
(b) The Servicer shall service and administer the Receivables
and shall collect payments due under the Receivables in accordance with its
customary and usual servicing procedures for servicing credit card
receivables comparable to the Receivables and in accordance with the Credit
Card Guidelines and shall have full power and authority, acting alone or
through any party properly designated by it hereunder, to do any and all
things in connection with such servicing and administration which it may
deem necessary or desirable. Without limiting the generality of the
foregoing and subject to Section 10.01, the Servicer is hereby authorized
and empowered (i) to make withdrawals from the Collection Account as set
forth in this Agreement, (ii) unless such power and authority is revoked by
the Trustee on account of the occurrence of a Servicer Default pursuant to
Section 10.01, to instruct the Trustee to make withdrawals and payments,
from the Finance Charge Account, the Principal Account and any Series
Account, in accordance with such instructions as set forth in this
Agreement, (iii) unless such power and authority is revoked by the Trustee
on account of the occurrence of a Servicer Default pursuant to Section
10.01, to instruct the Trustee in writing, as set forth in this Agreement,
(iv) to execute and deliver, on behalf of the Trust for the benefit of the
Certificateholders, any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge, and all other
comparable instruments, with respect to the Receivables and, after the
delinquency of any Receivable and to the extent permitted under and in
compliance with applicable law and regulations, to commence enforcement
proceedings with respect to such Receivables and (v) to make any filings,
reports, notices, applications, registrations with, and to seek any
consents or authorizations from the Securities and Exchange Commission and
any state securities authority on behalf of the Trust as may be necessary
or advisable to comply with any federal or state securities or reporting
requirements. The Trustee agrees that it shall promptly follow the
instructions of the Servicer to withdraw funds from the Principal Account,
the Finance Charge Account or any Series Account and to take any action
required under any Enhancement at such time as required under this
Agreement. The Trustee shall execute at the Servicer's written request such
documents prepared by the Transferor and acceptable to the Trustee as may
be necessary or appropriate to enable the Servicer to carry out its
servicing and administrative duties hereunder.
(c) In the event that the Transferor is unable for any reason
to transfer Receivables to the Trust in accordance with the provisions of
this Agreement (including, without limitation, by reason of the application
of the provisions of Section 9.02 or the order of any federal governmental
agency having regulatory authority over the Transferor or any court of
competent jurisdiction that the Transferor not transfer any additional
Principal Receivables to the Trust) then, in any such event, (A) the
Servicer agrees to allocate, after such date, all Collections with respect
to Principal Receivables, and all amounts which would have constituted
Collections with respect to Principal Receivables but for the Transferor's
inability to transfer such Receivables (up to an aggregate amount equal to
the aggregate amount of Principal Receivables in the Trust as of such date)
in accordance with subsection 2.05(e); (B) the Servicer agrees to apply
such amounts as Collections in accordance with Article IV, and (C) for only
so long as all Collections and all amounts which would have constituted
Collections are allocated and applied in accordance with clauses (A) and
(B) above, Principal Receivables and all amounts which would have
constituted Principal Receivables but for the Transferor's inability to
transfer Receivables to the Trust that are written off as uncollectible in
accordance with this Agreement shall continue to be allocated in accordance
with Article IV and all amounts which would have constituted Principal
Receivables but for the Transferor's inability to transfer Receivables to
the Trust shall be deemed to be Principal Receivables for the purpose of
calculating the applicable Investor Percentage thereunder. If the Servicer
is unable pursuant to any Requirement of Law to allocate payments on the
Accounts as described above, the Servicer agrees that it shall in any such
event allocate, after the occurrence of such event, payments on each
Account with respect to the principal balance of such Account first to the
oldest principal balance of such Account and to have such payments applied
as Collections in accordance with Article IV. The parties hereto agree that
Finance Charge Receivables, whenever created, accrued in respect of
Principal Receivables which have been conveyed to the Trust, or which would
have been conveyed to the Trust but for the above described inability to
transfer such Receivables, shall continue to be a part of the Trust
notwithstanding any cessation of the transfer of additional Principal
Receivables to the Trust and Collections with respect thereto shall
continue to be allocated and paid in accordance with Article IV.
(d) In the event that pursuant to subsection 2.04(d), the
Transferor accepts reassignment of an Ineligible Receivable as a result of
a breach of the representations and warranties in subsection 2.04(b)
relating to such Receivable, then, in any such event, the Servicer agrees
to account for payments received with respect to such Ineligible Receivable
separately from its accounting for Collections on Principal Receivables
retained by the Trust. If payments received from or on behalf of an Obligor
are not specifically applicable either to an Ineligible Receivable of such
Obligor reassigned to the Transferor or to Receivables of such Obligor
retained in the Trust, then the Servicer agrees to allocate payments
proportionately based on the total amount of Principal Receivables of such
Obligor retained in the Trust and the total amount owing by such Obligor on
any Ineligible Receivables purchased by the Transferor, and the portion
allocable to any Principal Receivables retained in the Trust shall be
treated as Collections and deposited in accordance with the provisions of
Article IV.
(e) The Servicer shall not be obligated to use separate
servicing procedures, offices, employees or accounts for servicing the
Receivables from the procedures, offices, employees and accounts used by
the Servicer in connection with servicing other credit card receivables.
(f) The Servicer shall maintain fidelity bond coverage insuring
against losses through wrongdoing of its officers and employees who are
involved in the servicing of credit card receivables covering such actions
and in such amounts as the Servicer believes to be reasonable from time to
time.
Section 3.2 Servicing Compensation. As compensation for its
servicing activities hereunder and reimbursement for its expenses as set
forth in the immediately following paragraph, the Servicer shall be
entitled to receive a monthly servicing fee in respect of any Monthly
Period prior to the termination of the Trust pursuant to Section 12.01
(with respect to each Monthly Period, the "Monthly Servicing Fee"). The
share of the Monthly Servicing Fee allocable to each Series of Investor
Certificateholders with respect to any Monthly Period (or portion thereof)
shall be payable on the related Transfer Date and, with respect to each
Series (unless otherwise provided in the related Supplement), shall be
equal to one-twelfth of the product of (A) the applicable Series Servicing
Fee Percentage per annum and (B) the Invested Amount of such Series as of
the last day of the Monthly Period preceding such Transfer Date (the
"Investor Monthly Servicing Fee") and shall be paid to the Servicer
pursuant to Article IV. The servicing fee payable by the Holder of the
Exchangeable Transferor Certificate shall be equal to the product of
one-twelfth of the product of (A) the Transferor Interest and (B) the
weighted average of the Series Servicing Fee Percentages with respect to
each Series of Investor Certificates then outstanding (the "Monthly
Transferor Servicing Fee"). The Monthly Servicing Fee shall equal the sum
of (x) the aggregate amount of Investor Monthly Servicing Fees with respect
to each Series then outstanding and (y) the Monthly Transferor Servicing
Fee. The Investor Monthly Servicing Fee with respect to any Series is
payable in arrears on the related Transfer Date (unless otherwise provided
in the related Supplement) and the Monthly Transferor Servicing Fee is
payable in arrears no later than the last Transfer Date with respect to any
Series occurring in a Monthly Period. The Monthly Transferor Servicing Fee
and, unless otherwise provided in a Supplement, each Investor Monthly
Servicing Fee, shall be calculated on the basis of a 360-day year
consisting of twelve 30-day months.
The Servicer's expenses include the amounts due to the Trustee
pursuant to Section 11.05 and the reasonable fees and disbursements of
independent public accountants and all other expenses incurred by the
Servicer in connection with its activities hereunder; provided, that the
Servicer shall not be liable for any liabilities, costs or expenses of the
Trust, the Investor Certificateholders or the Certificate Owners arising
under any tax law, including without limitation any federal, state or local
income or franchise taxes or any other tax imposed on or measured by income
(or any interest or penalties with respect thereto or arising from a
failure to comply therewith). The Servicer shall be required to pay such
expenses for its own account and shall not be entitled to any payment
therefor other than the Monthly Servicing Fee.
Section 3.3 Representations and Warranties of the Servicer.
First USA Bank, as initial Servicer, hereby makes, and any Successor
Servicer by its appointment hereunder shall make the following
representations and warranties on which the Trustee has relied in accepting
the Receivables in trust and in authenticating the Certificates issued on
the Initial Closing Date:
(a) Organization and Good Standing. The Servicer is a Delaware
chartered banking corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has full corporate
power, authority and legal right to own its properties and conduct its
credit card business as such properties are presently owned and such
business is presently conducted, and to execute, deliver and perform its
obligations under this Agreement.
(b) Due Qualification. The Servicer is not required to qualify
nor register as a foreign corporation in any state in order to service the
Receivables as required by this Agreement and has obtained all licenses and
approvals necessary in order to so service the Receivables as required
under federal and Delaware law. If the Servicer shall be required by any
Requirement of Law to so qualify or register or obtain such license or
approval, then it shall do so.
(c) Due Authorization. The execution, delivery, and performance
of this Agreement have been duly authorized by the Servicer by all
necessary corporate action on the part of the Servicer and this Agreement
will remain, from the time of its execution, an official record of the
Servicer.
(d) Binding Obligation. This Agreement constitutes a legal,
valid and binding obligation of the Servicer, enforceable in accordance
with its terms, except as enforceability be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereinafter in effect, affecting the enforcement of creditors'
rights in general and the rights of creditors of national banking
associations.
(e) No Violation. The execution and delivery of this Agreement
by the Servicer, and the performance of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof applicable to the
Servicer, will not conflict with, violate, result in any breach of any of
the material terms and provisions of, or constitute (with or without notice
or lapse of time or both) a default under, any Requirement of Law
applicable to the Servicer or any indenture, contract, agreement, mortgage,
deed of trust or other instrument to which the Servicer is a party or by
which it is bound.
(f) No Proceedings. There are no proceedings or investigations
pending or, to the best knowledge of the Servicer, threatened against the
Servicer before any court, regulatory body, administrative agency or other
tribunal or governmental instrumentality seeking to prevent the issuance of
the Certificates or the consummation of any of the transactions
contemplated by this Agreement, seeking any determination or ruling that,
in the reasonable judgment of the Servicer, would materially and adversely
affect the performance by the Servicer of its obligations under this
Agreement, or seeking any determination or ruling that would materially and
adversely affect the validity or enforceability of this Agreement.
(g) Compliance with Requirements of Law. The Servicer shall
duly satisfy all obligations on its part to be fulfilled under or in
connection with each Receivable and the related Account, will maintain in
effect all qualifications required under Requirements of Law in order to
service properly each Receivable and the related Account and will comply in
all material respects with all other Requirements of Law in connection with
servicing each Receivable and the related Account the failure to comply
with which would have a material adverse effect on the Certificateholders
or any Enhancement Provider.
(h) Protection of Certificateholders' Rights. The Servicer
shall take no action which, nor omit to take any action the omission of
which, would impair the rights of Certificateholders in any Receivable or
the related Account or the rights of any Enhancement Provider, nor shall it
reschedule, revise or defer payments due on any Receivable except in
accordance with the Credit Card Guidelines.
(i) All Consents. All authorizations, consents, order or
approvals of or registrations or declarations with any Governmental
Authority required to be obtained, effected or given by the Servicer in
connection with the execution and delivery of this Agreement by the
Servicer and the performance of the transactions contemplated by this
Agreement by the Servicer, have been duly obtained, effected or given and
are in full force and effect.
(j) Rescission or Cancellation. The Servicer shall not permit
any rescission or cancellation of any Receivable except as ordered by a
court of competent jurisdiction or other Governmental Authority or in
accordance with the normal operating procedures of the Servicer.
(k) Receivables Not To Be Evidenced by Promissory Notes. Except
in connection with its enforcement or collection of an Account, the
Servicer will take no action to cause any Receivable to be evidenced by an
instrument or chattel paper (as defined in the UCC as in effect in the
State of Delaware).
Section 3.4 Reports and Records for the Trustee.
(a) Daily Reports. On each Business Day, the Servicer, with
prior notice, shall prepare and make available at the office of the
Servicer for inspection by the Trustee a record setting forth (i) the
aggregate amount of Collections processed by the Servicer on the preceding
Business Day and (ii) the aggregate amount of Receivables as of the close
of business on the preceding Business Day.
(b) Monthly Servicer's Certificate. Unless otherwise stated in
the related Supplement with respect to any Series, on each Determination
Date the Servicer shall forward, as provided in Section 13.05, to the
Trustee, the Paying Agent, any Enhancement Provider and each Rating Agency,
a certificate of a Servicing Officer in the form of Exhibit C (which
includes the Schedule thereto specified as such in each Supplement) setting
forth (i) the aggregate amount of Collections processed during the
preceding Monthly Period, (ii) the aggregate amount of the applicable
Investor Percentage of Collections of Principal Receivables processed by
the Servicer pursuant to Article IV during the preceding Monthly Period
with respect to each Series then outstanding, (iii) the aggregate amount of
the applicable Investor Percentage of Collections of Finance Charge
Receivables processed by the Servicer pursuant to Article IV during the
Preceding Monthly Period with respect to each Series then outstanding, (iv)
the aggregate amount of Principal Receivables outstanding as of the end of
the last day of the preceding Monthly Period, (v) the balance on deposit in
the Finance Charge Account and the Principal Account or any Series Account
applicable to any Series then outstanding on such Determination Date with
respect to Collections processed by the Servicer during the preceding
Monthly Period, (vi) the aggregate amount, if any, of withdrawals, drawings
or payments under any Enhancement, if any, for each Series then outstanding
required to be made with respect to the previous Monthly Period in the
manner provided in the related Supplement, (vii) the sum of all amounts
payable to the Investor Certificateholders of each Series on the succeeding
Distribution Date in respect of Certificate Principal and Certificate
Interest and (viii) such other matters as are set forth in Exhibit C.
Section 3.5 Annual Servicer's Certificate. The Servicer will
deliver, as provided in Section 13.05, to the Trustee, any Enhancement
Provider and the Rating Agency, an Officer's Certificate substantially in
the form of Exhibit D stating that (a) a review of the activities of the
Servicer during the twelve-month period (which shall be the period from
July 1 of the preceding calendar year to and including June 30 of such
calendar year) and of its performance under this Agreement was made under
the supervision of the officer signing such certificate and (b) to the best
of such officer's knowledge, based on such review, the Servicer has fully
performed all its obligations under this Agreement throughout such period,
or, if there has been a default in the performance of any such obligation,
specifying each such default known to such officer and the nature and
status thereof. A copy of such certificate may be obtained by any Investor
Certificateholder by a request in writing to the Trustee addressed to the
Corporate Trust Office.
Section 3.6 Annual Independent Accountants' Servicing Report.
(a) On or before September 30, of each calendar year, beginning
with September 30, 1993, the Servicer shall cause a firm of nationally
recognized independent public accountants (who may also render other
services to the Servicer or the Transferor) to furnish a report to the
Trustee, any Enhancement Provider and the Rating Agency, to the effect that
such firm has made a study and evaluation in accordance with generally
accepted auditing standards of the Servicer's internal accounting controls
relative to the servicing of Accounts under this Agreement, and that, on
the basis of such examination, such firm is of the opinion (assuming the
accuracy of any reports generated by the Servicer's third party agents)
that the system of internal accounting controls in effect for the fiscal
year ending on June 30 of such year relating to servicing procedures
performed by the Servicer, taken as a whole, provided reasonable assurance
that internal control system was sufficient for the prevention and
detection of errors and irregularities and that such servicing was
conducted in compliance with such provisions of this Agreement of which
such accountants can reasonably be expected to possess adequate knowledge
of the subject matter, which are susceptible of positive assurance by such
accountants and for which their professional competence is relevant, except
for such exceptions as they believe to be immaterial and such other
exceptions as shall be set forth in such statement. A copy of such report
may be obtained by any Investor Participation Certificateholder by a
request in writing to the Trustee addressed to the Corporate Trust Office.
(b) On or before September 30 of each calendar year, beginning
with September 30, 1993, the Servicer shall cause a firm of nationally
recognized independent certified public accountants (who may also render
other services to the Servicer or the Transferor) to furnish a report to
the Trustee, any Enhancement Provider and the Rating Agency to the effect
that they have compared the mathematical calculations of each amount set
forth in the monthly certificates forwarded by the Servicer pursuant to
subsection 3.04(b) during the period covered by such report (which shall be
the period from July 1 of the preceding calendar year to and including June
30 of such calendar year, or for the initial period, from the Closing Date
until June 30, 1993) with the Servicer's computer reports which were the
source of such amounts and that on the basis of such comparison, such
amounts are in agreement, except for such exceptions as they believe to be
immaterial and such other exceptions as shall be set forth in such report.
A copy of such report may be obtained by any Investor Certificateholder by
a request in writing to the Trustee addressed to the Corporate Trust
Office.
Section 3.7 Tax Treatment. The Transferor has structured this
Agreement and the Investor Certificates with the intention that the
Investor Certificates will qualify under applicable federal, state, local
and foreign tax law as indebtedness. The Transferor, the Servicer, the
Holder of the Exchangeable Transferor, Certificate, each Investor
Certificateholder, and each Certificate Owner, agree to treat and to take
no action inconsistent with the treatment of the Investor Certificates (or
beneficial interest therein) as indebtedness for purposes of federal,
state, local and foreign income or franchise taxes and any other tax
imposed on or measured by income. Each Investor Certificateholder and the
Holder of the Exchangeable Transferor Certificate, by acceptance of its
Certificate and each Certificate Owner, by acquisition of a beneficial
interest in a Certificate, agree to be bound by the provisions of this
Section 3.07. Each Certificateholder agrees that it will cause any
Certificate Owner acquiring an interest in a Certificate through it to
comply with this Agreement as to treatment as indebtedness under applicable
tax law, as described in this Section 3.07. Furthermore, the Trustee shall
treat the Trust as a security device only, and shall not file tax returns
or obtain an employer identification number on behalf of the Trust.
Section 3.8 Notices to the Transferor. In the event that the
Transferor is no longer acting as Servicer, any Successor Servicer
appointed pursuant to Section 10.02 shall deliver or make available to the
Transferor each certificate and report required to be prepared, forwarded
or delivered thereafter pursuant to Sections 3.04, 3.05 and 3.06.
[End of Article III]
ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND ALLOCATION
AND APPLICATION OF COLLECTIONS
Section 4.1 Rights of Certificateholders. Each Series of
Investor Certificates shall represent Undivided Interests in the Trust,
including the benefits of any Enhancement issued with respect to such
Series and the right to receive the Collections and other amounts at the
times and in the amounts specified in this Article IV to be deposited in
the Investor Accounts or to be paid to the Investor Certificateholders of
such Series; provided, however, that the aggregate interest represented by
such Certificates at any time in the Principal Receivables shall not exceed
an amount equal to the Invested Amount at such time. The Exchangeable
Transferor Certificate shall represent the remaining undivided interest in
the Trust, including the right to receive the Collections and other amounts
at the times and in the amounts specified in this Article IV to be paid to
the Holder of the Exchangeable Transferor Certificate; provided, however,
that the aggregate interest represented by such Certificate at any time in
the Principal Receivables shall not exceed the Transferor Interest at such
time and such Certificate shall not represent any interest in the Investor
Accounts, except as provided in this Agreement, or the benefits of any
Enhancement issued with respect to any Series.
Section 4.2 Establishment of Accounts.
(a) The Collection Account. The Servicer, for the benefit of
the Certificateholders, shall establish in the name of the Trustee, on
behalf of the Trust, a non-interest bearing segregated account (the
"Collection Account") bearing a designation clearly indicating that the
funds deposited therein are held in trust for the benefit of the
Certificateholders, and shall cause such Collection Account to be
established and maintained, with (i) in a segregated trust account with the
corporate trust department of a depository institution or trust company
(which may include the Trustee or an Affiliate of the Servicer) organized
under the laws of the United States of America or any one of the states
thereof or the District of Columbia and with deposit insurance provided by
BIF or SAIF which at all times maintains a long-term deposit rating of at
least Baa3 by Moody's and having corporate trust powers and acting as
trustee for funds deposited therein; provided, however, that such account
need not be maintained as a segregated trust account with the corporate
trust department of such institution if at all times the certificates of
deposit, short-term deposits or commercial paper or the long-term unsecured
debt obligations (other than such obligation whose rating is based on
collateral or on the credit of a Person other than such institution or
trust company) of such depository institution or trust company shall have a
credit rating from Moody's and Standard & Poor's of P-1 and A-1+,
respectively, in the case of the certificates of deposit, short-term
deposits or commercial paper, or a rating from Moody's of at least Aa2 and
from Standard & Poor's of AAA in the case of the long-term unsecured debt
obligations, or (ii) a depository institution, which may include the
Trustee, which is acceptable to the Rating Agency (a "Qualified
Institution"); provided further, that upon the insolvency of the Servicer,
the Collection Account shall not be permitted to be maintained with the
Servicer. Pursuant to authority granted to it pursuant to subsection
3.01(b), the Servicer shall have the revocable power to withdraw funds from
the Collection Account for the purposes of carrying out its duties
hereunder.
(b) The Finance Charge and Principal Accounts. The Trustee, for
the benefit of the Investor Certificateholders, shall establish and
maintain with the Trustee in the name of the Trust two segregated trust
accounts (the "Finance Charge Account" and the "Principal Account,"
respectively), bearing a designation clearly indicating that the funds
therein are held for the benefit of the Investor Certificateholders. The
Trustee shall possess all right, title and interest in all funds on deposit
from time to time in the Finance Charge Account and the Principal Account
and in all proceeds thereof. The Finance Charge Account and the Principal
Account shall be under the sole dominion and control of the Trustee for the
benefit of the Investor Certificateholders. Pursuant to authority granted
to it hereunder, the Servicer shall have the revocable power to instruct
the Trustee to withdraw funds from the Finance Charge Account and Principal
Account for the purpose of carrying out the Servicer's or the Trustee's
duties hereunder. The Trustee at all times shall maintain accurate records
reflecting each transaction in the Principal Account and the Finance Charge
Account and that funds held therein shall at all times be held in trust for
the benefit of the Investor Certificateholders.
(c) The Distribution Account. The Trustee, for the benefit of
the Investor Certificateholders, shall cause to be established and
maintained in the name of the Trust, with an office or branch of a
Qualified Institution (other than the Transferor), a non-interest bearing
segregated demand deposit account (the "Distribution Account") bearing a
designation clearly indicating that the funds deposited therein are held in
trust for the benefit of the Investor Certificateholders. The Trustee shall
possess all right, title and interest in all funds on deposit from time to
time in the Distribution Account and in all proceeds thereof. The
Distribution Account shall be under the sole dominion and control of the
Trustee for the benefit of the Investor Certificateholders.
(d) Administration of the Investor Accounts. Funds on deposit
in the Principal Account and the Finance Charge Account shall at all times
be invested in Permitted Investments. Any such investment shall mature and
such funds shall be available for withdrawal on or prior to the Transfer
Date following the Record Date occurring in the Monthly Period in which
such funds were processed for collection. The Trustee shall maintain for
the benefit of the Investor Certificateholders possession of the negotiable
instruments or securities evidencing the Permitted Investments described in
clause (a) of the definition thereof from the time of purchase thereof
until the time of sale or maturity provided, that no such investment shall
be disposed of prior to its maturity date. At the end of each month, all
interest and earnings (net of losses and investment expenses) on funds on
deposit in the Principal Account and the Finance Charge Account shall be
deposited by the Trustee in a separate deposit account with a Qualified
Institution in the name of the Servicer, or a Person designated in writing
by the Servicer, which shall not constitute a part of the Trust, or shall
otherwise be turned over by the Trustee to the Servicer not less frequently
than monthly. Subject to the restrictions set forth above, the Servicer, or
a Person designated in writing by the Servicer, of which the Trustee shall
have received written notification thereof, shall have the authority to
instruct the Trustee with respect to the investment of funds on deposit in
the Principal Account and the Finance Charge Account. For purposes of
determining the availability of funds or the balances in the Finance Charge
Account and the Principal Account for any reason under this Agreement, all
investment earnings on such funds shall be deemed not to be available or on
deposit.
Section 4.3 Collections and Allocations.
(a) Collections. Except as provided below, the Servicer shall
deposit all Collections in the Collection Account as promptly as possible
after the Date of Processing of such Collections, but in no event later
than the second Business Day following such Date of Processing. In the
event of the insolvency of the Servicer, then, immediately upon the
occurrence of such event and thereafter, the Servicer shall deposit all
Collections into the Collection Account which shall be established and
maintained with a Qualified Institution other than the Servicer in
accordance with subsection 4.02(a), and in no such event shall the Servicer
deposit any Collections thereafter into any account established, held or
maintained with the Servicer.
The Servicer shall allocate such amounts to each Series of
Investor Certificates and to the Holder of the Exchangeable Transferor
Certificate in accordance with this Article IV and shall withdraw the
required amounts from the Collection Account or pay such amounts to the
Holder of the Exchangeable Transferor Certificate in accordance with this
Article IV, in both cases as modified by any Supplement. The Servicer shall
make such deposits or payments on the date indicated therein by wire
transfer or as otherwise provided in the Supplement for any Series of
Certificates with respect to such Series.
Notwithstanding anything in this Agreement to the contrary, for
so long as, and only so long as, the Transferor shall remain the Servicer
hereunder, and (a) (i) the Servicer provides to the Trustee a letter of
credit or other form of Enhancement covering the risk of collection of the
Servicer, and (ii) the Transferor shall not have received a notice from
such Rating Agency that such a letter of credit or other form of
Enhancement would result in the lowering of such Rating Agency's
then-existing rating of the Investor Certificates, or (b) the Servicer
shall have and maintain a certificate of deposit or short-term deposit
rating of P-1 by Moody's and of A-1 by Standard & Poor's and deposit
insurance provided by BIF or SAIF, the Servicer need not deposit
Collections from the Collection Account into the Principal Account or the
Finance Charge Account or any Series Account, as provided in any
Supplement, or make payments to the Holder of the Exchangeable Transferor
Certificate, prior to the close of business on the day any Collections are
deposited in the Collection Account as provided in Article IV, but may make
such deposits, payments and withdrawals on each Transfer Date in an amount
equal to the net amount of such deposits, payments and withdrawals which
would have been made but for the provisions of this paragraph.
(b) Allocations for the Exchangeable Transferor Certificate.
Throughout the existence of the Trust, unless otherwise stated in any
Supplement, the Servicer shall allocate to the Holder of the Exchangeable
Transferor Certificate an amount equal to the product of (A) the Transferor
Percentage and (B) the aggregate amount of such Collections allocated to
Principal Receivables and Finance Charge Receivables, respectively, in
respect of each Monthly Period. Notwithstanding anything in this Agreement
to the contrary, unless otherwise stated in any Supplement, the Servicer
need not deposit this amount or any other amounts so allocated to the
Exchangeable Transferor Certificate pursuant to any Supplement into the
Collection Account and shall pay, or be deemed to pay, such amounts as
collected to the Holder of the Exchangeable Transferor Certificate.
(c) Adjustments for Miscellaneous Credits and Fraudulent
Charges. The Servicer shall be obligated to reduce on a net basis each
Monthly Period the aggregate amount of Principal Receivables used to
calculate the Transferor Interest as provided in this subsection 4.03(c) (a
"Credit Adjustment") with respect to any Principal Receivable (i) which was
created in respect of merchandise refused or returned by the Obligor
thereunder or as to which the Obligor thereunder has asserted a
counterclaim or defense, (ii) which is reduced by the Servicer by any
rebate, refund, charge-back or adjustment (including Servicer errors) or
(iii) which was created as a result of a fraudulent or counterfeit charge.
In the event that the inclusion of the amount of a Credit
Adjustment in the calculation of the Transferor Interest would cause the
Transferor Interest to be an amount less than zero, the Transferor shall
make a deposit, no later than the Business Day following the Date of
Processing of such Credit Adjustment, in the Principal Account (for
allocation as a Principal Receivable pursuant to Article IV) in immediately
available funds in an amount equal to the amount by which such Credit
Adjustment exceeds the Transferor Interest on such Date of Processing (each
such deposit, an "Adjustment Payment").
(d) Transfer of Defaulted Accounts. Unless otherwise provided
in any Supplement, on the date on which an Account becomes a Defaulted
Account, the Trust shall automatically and without further action or
consideration be deemed to transfer, set over, and otherwise convey to the
Transferor, without recourse, representation or warranty, all the right,
title and interest of the Trust in and to Receivables in such Defaulted
Account, all monies due or to become due with respect thereto, all proceeds
thereof and Insurance Proceeds relating thereto allocable to the Trust with
respect to such Receivables.
(e) Allocation for Series. On each Determination Date,
Collections for the preceding Monthly Period shall be allocated to each
Series as follows. Each Series' allocable share of such Collections in
respect of Finance Charge Receivables, Principal Receivables and
Receivables in Defaulted Accounts, respectively, shall be determined by
multiplying the aggregate amount of such Collections by such Investor
Percentage with respect to such type of Receivables and such Monthly
Period. Adjustment Payments and Unallocated Principal Collections shall be
allocated on each Determination Date to each Series in the same manner as
Collections of Principal Receivables. The Servicer shall, prior to the
close of business on the day any Collections are deposited in the
Collection Account, withdraw the required amounts from the Collection
Account and deposit such amounts into the Principal Account or the Finance
Charge Account or pay such amounts to the Holder of the Exchangeable
Transferor Certificate in accordance with the provisions of Article IV.
(f) Unallocated Principal Collections. If, pursuant to any
provisions of Article IV, Collections allocated to Principal Receivables
with respect to any Series would cause such Series (a "Retired Series") to
be paid in full or if, pursuant to such provisions, Collections of
Principal Receivables allocated to the Holder of the Exchangeable
Transferor Certificate would cause the Transferor Interest to be a negative
number (any such Collections being referred to as "Allocated Collections")
or such Collections are treated hereunder as an Adjustment Payment, any
Collections of Principal Receivables allocated to a Retired Series or to
the Transferor Interest in excess of Allocated Collections or any
Adjustment Payment ("Unallocated Principal Collections") shall be
reallocated to any outstanding Series which would not have been allocated
additional Principal Receivables but for the application of this
subparagraph (any such allocation, an "Excess Amount Principal Allocation,"
and any such Series, an "Outstanding Series"). Any Excess Amount Principal
Allocation shall be performed assuming that (a) the character of
Unallocated Principal Collections as Principal Receivables shall not be
altered, (b) the Investor Percentages with respect to any Outstanding
Series shall be recalculated assuming that the Retired Series has been
retired and that only the Outstanding Series are outstanding, (c) Allocated
Collections have been paid to the Retiring Series, and (d) if the payment
of Allocated Collections as described above causes a Pay Out Event to
occur, Unallocated Principal Collections shall be allocated as if such Pay
Out Event has occurred.
[THE REMAINDER OF ARTICLE IV IS
RESERVED AND SHALL BE SPECIFIED IN ANY
SUPPLEMENT WITH RESPECT TO ANY SERIES]
[End of Article IV]
ARTICLE V
[ARTICLE V IS RESERVED AND SHALL BE
SPECIFIED IN ANY SUPPLEMENT WITH
RESPECT TO ANY SERIES)
[End of Article V]
ARTICLE VI
THE CERTIFICATES
Section 6.1 The Certificates. Subject to Sections 6.10 and
6.13, the Investor Certificates of each Series and any Class thereof may be
issued in bearer form (the "Bearer Certificates") with attached interest
coupons and a special coupon (collectively, the "Coupons") or in fully
registered form (the "Registered Certificates"), and shall be substantially
in the form of the exhibits with respect thereto attached to the related
Supplement. The Exchangeable Transferor Certificate shall be substantially
in the form of Exhibit A. The Investor Certificates and the Exchangeable
Transferor Certificate shall, upon issue pursuant hereto or to Section 6.09
or Section 6.10, be executed and delivered by the Transferor to the Trustee
for authentication and redelivery as provided in Sections 2.01 and 6.02.
Any Investor Certificate shall be issuable in a minimum denomination of
$1,000 Undivided Interest and integral multiples thereof, unless otherwise
specified in any Supplement, and shall be issued upon original issuance in
an original principal amount equal to the Initial Invested Amount. The
Exchangeable Transferor Certificate shall be issued as a single
certificate. Each Certificate shall be executed by manual or facsimile
signature on behalf of the Transferor by its President or any Vice
President. Certificates bearing the manual or facsimile signature of the
individual who was, at the time when such signature was affixed, authorized
to sign on behalf of the Transferor or the Trustee shall not be rendered
invalid, notwithstanding that such individual has ceased to be so
authorized prior to the authentication and delivery of such Certificates or
does not hold such office at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein, executed by
or on behalf of the Trustee by the manual signature of a duly authorized
signatory, and such certificate upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the
date of their authentication except Bearer Certificates which shall be
dated the applicable Issuance Date as provided in the related Supplement.
Section 6.2 Authentication of Certificates. Contemporaneously
with the initial assignment and transfer of the Receivables, whether now
existing or hereafter created (other than Receivables in Additional
Accounts) and the other components to the Trust, the Trustee shall
authenticate and deliver the initial Series of Investor Certificates, upon
the written order of the Transferor, to the underwriters for the sale of
the Book-Entry Certificates evidenced by such Investor Certificates, and
against payment to the Transferor of the Initial Invested Amount (net of
any purchase or underwriting discount). Upon the receipt of such payment
and the issuance of the Investor Certificates, such Investor Certificates
shall be fully paid and non-assessable. The Trustee shall authenticate and
deliver the Exchangeable Transferor Certificate to the Transferor
simultaneously with its delivery to the Transferor of the initial Series of
Investor Certificates. Upon an Exchange as provided in Section 6.09 and the
satisfaction of certain other conditions specified therein, the Trustee
shall authenticate and deliver the Investor Certificates of additional
Series (with the designation provided in the related Supplement), upon the
order of the Transferor, to the persons designated in such Supplement. Upon
the order of the Transferor, the Certificates of any Series shall be duly
authenticated by or on behalf of the Trustee, in authorized denominations
equal to (in the aggregate) the Initial Invested Amount of such Series of
Investor Certificates. If specified in the related Supplement for any
Series, the Trustee shall authenticate and deliver outside the United
States the Global Certificate that is issued upon original issuance
thereof, upon the written order of the Transferor, to the Depository
against payment of the purchase price therefor. If specified in the related
Supplement for any Series, the Trustee shall authenticate Book-Entry
Certificates that are issued upon original issuance thereof, upon the
written order of the Transferor, to a Clearing Agency or its nominee as
provided in Section 6.10 against payment of the purchase price thereof.
Section 6.3 Registration of Transfer and Exchange of
Certificates.
(a) The Trustee shall cause to be kept at the office or agency
to be maintained by a transfer agent and registrar (the "Transfer Agent and
Registrar"), in accordance with the provisions of Section 11.16, a register
(the "Certificate Register") in which, subject to such reasonable
regulations as it may prescribe, the Transfer Agent and Registrar shall
provide for the registration of the Investor Certificates of each Series
(unless otherwise provided in the related Supplement) and of transfers and
exchanges of the Investor Certificates as herein provided. The Trustee is
hereby initially appointed Transfer Agent and Registrar for the purposes of
registering the Investor Certificates and transfers and exchanges of the
Investor Certificates as herein provided. If any form of Investor
Certificate is issued as a Global Certificate, the Trustee may, or if and
so long as any Series of Investor Certificates are listed on the Luxembourg
Stock Exchange and such exchange shall so require, the Trustee shall
appoint a co-transfer agent and co-registrar in Luxembourg or another
European city. Any reference in this Agreement to the Transfer Agent and
Registrar shall include any co-transfer agent and co-registrar unless the
context otherwise requires. The Trustee shall be permitted to resign as
Transfer Agent and Registrar upon 30 days' written notice to the Servicer.
In the event that the Trustee shall no longer be the Transfer Agent and
Registrar, the Transferor shall appoint a successor Transfer Agent and
Registrar.
Upon surrender for registration of transfer of any Certificate
at any office or agency of the Transfer Agent and Registrar, the Transferor
shall execute, subject to the provisions of subsection 6.03(c), and the
Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of like aggregate Undivided Interests; provided, that the
provisions of this paragraph shall not apply to Bearer Certificates.
At the option of an Investor Certificateholder, Investor
Certificates may be exchanged for other Investor Certificates of the same
Series in authorized denominations of like aggregate Undivided Interests,
upon surrender of the Investor Certificates to be exchanged at any such
office or agency. At the option of any Holder of Registered Certificates,
Registered Certificates may be exchanged for other Registered Certificates
of the same Series in authorized denominations of like aggregate Undivided
Interests in the Trust, upon surrender of the Registered Certificates to be
exchanged at any office or agency of the Transfer Agent and Registrar
maintained for such purpose. At the option of a Bearer Certificateholder,
subject to applicable laws and regulations (including without limitation,
the Bearer Rules), Bearer Certificates may be exchanged for other Bearer
Certificates or Registered Certificates of the same Series in authorized
denominations of like aggregate Undivided Interests in the Trust, in the
manner specified in the Supplement for such Series, upon surrender of the
Bearer Certificates to be exchanged at an office or agency of the Transfer
Agent and Registrar located outside the United States. Each Bearer
Certificate surrendered pursuant to this Section 6.03 shall have attached
thereto (or be accompanied by) all unmatured Coupons, provided that any
Bearer Certificate so surrendered after the close of business on the Record
Date preceding the relevant Distribution Date after the related Series
Termination Date need not have attached the Coupons relating to such
Distribution Date.
Whenever any Investor Certificates of any Series are so
surrendered for exchange, the Transferor shall execute, and the Trustee
shall authenticate and (unless the Transfer Agent and Registrar is
different than the Trustee, in which case the Transfer Agent and Registrar
shall) deliver, the Investor Certificates of such Series which the
Certificateholder making the exchange is entitled to receive. Every
Investor Certificate presented or surrendered for registration of transfer
or exchange shall be accompanied by a written instrument of transfer in a
form satisfactory to the Trustee and the Transfer Agent and Registrar duly
executed by the Certificateholder thereof or his attorney-in-fact duly
authorized in writing.
The preceding provisions of this Section 6.03 notwithstanding,
the Trustee or the Transfer Agent and Registrar, as the case may be, shall
not be required to register the transfer of or exchange any Investor
Certificate of any Series for a period of 15 days preceding the due date
for any payment with respect to the Investor Certificates of such Series.
Unless otherwise provided in the related Supplement, no service
charge shall be made for any registration of transfer or exchange of
Certificates, but the Transfer Agent and Registrar may require payment of a
sum sufficient to cover any tax or governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
All Investor Certificates (together with any Coupons attached
to Bearer Certificates) surrendered for registration of transfer and
exchange shall be canceled by the Transfer Agent and Registrar and disposed
of in a manner satisfactory to the Trustee. The Trustee shall cancel and
destroy the Global Certificates upon its exchange in full for Definitive
Certificates and shall deliver a certificate of destruction to the
Transferor. Such certificate shall also state that a certificate or
certificates of each Foreign Clearing Agency to the effect referred to in
Section 6.13 was received with respect to each portion of the Global
Certificate exchanged for Definitive Certificates.
The Transferor shall execute and deliver to the Trustee or the
Transfer Agent and Registrar, as applicable, Bearer Certificates and
Registered Certificates in such amounts and at such times as are necessary
to enable the Trustee to fulfill its responsibilities under this Agreement
and the Certificates.
(b) Except as provided in Section 6.09 or 7.02 or in any
Supplement, in no event shall the Exchangeable Transferor Certificate or
any interest therein be transferred, sold, exchanged, pledged, participated
or otherwise assigned hereunder, in whole or in part, unless the Transferor
shall have consented in writing to such transfer and unless the Trustee
shall have received (1) confirmation in writing from each Rating Agency
that such transfer will not result in a lowering or withdrawal of its
then-existing rating of any Series of Investor Certificates, and (2) an
Opinion of Counsel that such transfer does not (i) adversely affect the
conclusions reached in any of the federal income tax opinions dated the
applicable Closing Date issued in connection with the original issuance of
any Series of Investor Certificates or (ii) result in a taxable event to
the holders of any such Series; provided, however, that unless the consent
of Holders of Investor Certificates evidencing more than 50% of the
Aggregate Invested Amount is obtained for such transfer, the Holder of the
Exchangeable Transferor Certificate shall be permitted to transfer the
Exchangeable Transferor Certificate only if the Holder of the Exchangeable
Transferor Certificate shall have provided the Trustee with an Opinion of
Counsel to the effect that the contemplated transfer would be treated as a
financing and not as a sale of an equity interest in the Receivables or an
equity interest in an entity that owns the Receivables for federal income
tax purposes.
(c) Unless otherwise provided in the related Supplement,
registration of transfer of Registered Certificates containing a legend
relating to the restrictions on transfer of such Registered Certificates
(which legend shall be set forth in the Supplement relating to such
Investor Certificates) shall be effected only if the conditions set forth
in such related Supplement are satisfied.
Whenever a Registered Certificate containing the legend set
forth in the related Supplement is presented to the Transfer Agent and
Registrar for registration of transfer, the Transfer Agent and Registrar
shall promptly seek instructions from the Servicer regarding such transfer.
The Transfer Agent and Registrar and the Trustee shall be entitled to
receive written instructions signed by a Servicing Officer prior to
registering any such transfer or authenticating new Registered
Certificates, as the case may be. The Servicer hereby agrees to indemnify
the Transfer Agent and Registrar and the Trustee and to hold each of them
harmless against any loss, liability or expense incurred without negligence
or bad faith on their part arising out of or in connection with actions
taken or omitted by them in reliance on any such written instructions
furnished pursuant to this subsection 6.03(c).
(d) The Transfer Agent and Registrar will maintain an office or
offices or an agency or agencies where Investor Certificates of such Series
may be surrendered for registration of transfer or exchange.
Section 6.4 Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate (together, in the case of Bearer
Certificates, with all unmatured Coupons, if any, appertaining thereto) is
surrendered to the Transfer Agent and Registrar, or the Transfer Agent and
Registrar receives evidence to its satisfaction of the destruction, loss or
theft of any Certificate and (b) there is delivered to the Transfer Agent
and Registrar and the Trustee such security or indemnity as may be required
by them to save each of them harmless, then, in the absence of notice to
the Trustee that such Certificate has been acquired by a bona fide
purchaser, the Transferor shall execute and the Trustee shall authenticate
and (unless the Transfer Agent and Registrar is different from the Trustee,
in which case the Transfer Agent and Registrar shall) deliver (in
compliance with applicable law), in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
tenor and aggregate Undivided Interest. In connection with the issuance of
any new Certificate under this Section 6.04, the Trustee or the Transfer
Agent and Registrar may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the
Trustee and the Transfer Agent and Registrar) connected therewith. Any
duplicate Certificate issued pursuant to this Section 6.04 shall constitute
complete and indefeasible evidence of ownership in the Trust, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section 6.5 Persons Deemed Owners. Prior to due presentation of
a Certificate for registration of transfer, the Trustee, the Paying Agent,
the Transfer Agent and Registrar and any agent of any of them may treat the
Person in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions pursuant to Article
V (as described in any Supplement) and for all other purposes whatsoever,
and neither the Trustee, the Paying Agent, the Transfer Agent and Registrar
nor any agent of any of them shall be affected by any notice to the
contrary; provided, however, that in determining whether the holders of
Investor Certificates evidencing the requisite Undivided Interests have
given any request, demand, authorization, direction, notice, consent or
waiver hereunder, Investor Certificates owned by the Transferor, the
Servicer or any Affiliate thereof shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Investor Certificates which a
Responsible Officer in the Corporate Trust Office of the Trustee knows to
be so owned shall be so disregarded. Investor Certificates so owned that
have been pledged in good faith shall not be disregarded as outstanding, if
the pledgee establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Investor Certificates and that the
pledgee is not the Transferor, the Servicer or an Affiliate thereof.
In the case of a Bearer Certificate, the Trustee, the Paying
Agent, the Transfer Agent and Registrar and any agent of any of them may
treat the holder of a Bearer Certificate or Coupon as the owner of such
Bearer Certificate or Coupon for the purpose of receiving distributions
pursuant to Article IV and Article XII and for all other purposes
whatsoever, and neither the Trustee, the Paying Agent, the Transfer Agent
and Registrar nor any agent of any of them shall be affected by any notice
to the contrary. Certificates so owned which have been pledged in good
faith shall not be disregarded and may be regarded as outstanding, if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Investor Certificates and that the pledgee
is not the Transferor, the Servicer or an Affiliate thereof.
Section 6.6 Appointment of Paying Agent.
(a) The Paying Agent shall make distributions to Investor
Certificateholders from the appropriate account or accounts maintained for
the benefit of Certificateholders as specified in this Agreement or the
related Supplement for any Series pursuant to Articles IV and V hereof. Any
Paying Agent shall have the revocable power to withdraw funds from such
appropriate account or accounts for the purpose of making distributions
referred to above. The Trustee (or the Servicer if the Trustee is the
Paying Agent) may revoke such power and remove the Paying Agent, if the
Trustee (or the Servicer if the Trustee is the Paying Agent) determines in
its sole discretion that the Paying Agent shall have failed to perform its
obligations under this Agreement in any material respect or for other good
cause. The Trustee (or the Servicer if the Trustee is the Paying Agent)
shall notify Moody's of the removal of any Paying Agent. The Paying Agent,
unless the Supplement with respect to any Series states otherwise, shall
initially be the Trustee. If any form of Investor Certificate is issued as
a Global Certificate, or if and so long as any Series of Investor
Certificates are listed on the Luxembourg Stock Exchange and the Trustee
shall have received written notice that such exchange shall so require, the
Trustee shall appoint a co-paying agent in Luxembourg or another European
city. The Trustee shall be permitted to resign as Paying Agent upon 30
days' written notice to the Servicer. In the event that the Trustee shall
no longer be the Paying Agent, the Transferor shall appoint a successor to
act as Paying Agent (which shall be a bank or trust company). The
provisions of Sections 11.01, 11.02 and 11.03 shall apply to the Trustee
also in its role as Paying Agent, for so long as the Trustee shall act as
Paying Agent. Any reference in this Agreement to the Paying Agent shall
include any co-paying agent unless the context requires otherwise. Any
costs or expenses incurred by the Trustee in connection with the
appointment of a co-paying agent or successor paying agent shall be
reimbursed by the Servicer.
If specified in the related Supplement for any Series, so long
as the Investor Certificates of such Series are outstanding, the Transferor
shall maintain a co-paying agent in New York City (for Registered
Certificates only) or any other city designated in such Supplement which,
if and so long as any Series of Investor Certificates is listed on the
Luxembourg Stock Exchange or other stock exchange and such exchange so
requires, shall be in Luxembourg or the location required by such other
stock exchange.
(b) The Trustee shall cause the Paying Agent (other than
itself) to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee that such Paying Agent will hold
all sums, if any, held by it for payment to the Certificateholders in trust
for the benefit of the Certificateholders entitled thereto until such sums
shall be paid to such Certificateholders and shall agree, and if the
Trustee is the Paying Agent it hereby agrees, that it shall comply with all
requirements of the Internal Revenue Code regarding the withholding by the
Trustee of payments in respect of federal income taxes due from Certificate
Owners.
Section 6.7 Access to List of Certificateholders' Names and
Addresses. The Trustee will furnish or cause to be furnished by the
Transfer Agent and Registrar to the Servicer or the Paying Agent, within
five Business Days after receipt by the Trustee of a request therefor from
the Servicer or the Paying Agent, respectively, in writing, a list in such
form as the Servicer or the Paying Agent may reasonably require, of the
names and addresses of the Investor Certificateholders as of the most
recent Record Date for payment of distributions to Investor
Certificateholders. Unless otherwise provided in the related Supplement,
holders of Investor Certificates evidencing Undivided Interests aggregating
not less than 10% of the Invested Amount of the Investor Certificates of
any Series (the "Applicants") may apply in writing to the Trustee, and if
such application states that the Applicants desire to communicate with
other Investor Certificateholders of any Series with respect to their
rights under this Agreement or under the Investor Certificates and is
accompanied by a copy of the communication which such Applicants propose to
transmit, then the Trustee, after having been adequately indemnified by
such Applicants for its costs and expenses, shall afford or shall cause the
Transfer Agent and Registrar to afford such Applicants access during normal
business hours to the most recent list of Certificateholders held by the
Trustee and shall give the Servicer notice that such request has been made,
within five Business Days after the receipt of such application. Such list
shall be as of a date no more than 45 days prior to the date of receipt of
such Applicants' request. Every Certificateholder, by receiving and holding
a Certificate, agrees with the Trustee that neither the Trustee, the
Transfer Agent and Registrar, nor any of their respective agents shall be
held accountable by reason of the disclosure of any such information as to
the names and addresses of the Certificateholders hereunder, regardless of
the source from which such information was obtained.
Section 6.8 Authenticating Agent.
(a) The Trustee may appoint one or more authenticating agents
with respect to the Certificates which shall be authorized to act on behalf
of the Trustee in authenticating the Certificates in connection with the
issuance, delivery, registration of transfer, exchange or repayment of the
Certificates. Whenever reference is made in this Agreement to the
authentication of Certificates by the Trustee or the Trustee's certificate
of authentication, such reference shall be deemed to include authentication
on behalf of the Trustee by an authenticating agent and a certificate of
authentication executed on behalf of the Trustee by an authenticating
agent. Each authenticating agent must be acceptable to the Transferor.
(b) Any institution succeeding to the corporate agency business
of an authenticating agent shall continue to be an authenticating agent
without the execution or filing of any paper or any further act on the part
of the Trustee or such authenticating agent.
(c) An authenticating agent may at any time resign by giving
written notice of resignation to the Trustee and to the Transferor. The
Trustee may at any time terminate the agency of an authenticating agent by
giving notice of termination to such authenticating agent and to the
Transferor. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time an authenticating agent shall cease to
be acceptable to the Trustee or the Transferor, the Trustee promptly may
appoint a successor authenticating agent. Any successor authenticating
agent upon acceptance of its appointment hereunder shall become vested with
all the rights, powers and duties of its predecessor hereunder, with like
effect as if originally named as an authenticating agent. No successor
authenticating agent shall be appointed unless acceptable to the Trustee
and the Transferor.
(d) The Trustee agrees to pay each authenticating agent from
time to time reasonable compensation for its services under this Section
6.08, and the Trustee shall be entitled to be reimbursed and the Servicer
shall reimburse the Trustee for such reasonable payments actually made,
subject to the provisions of Section 11.05.
(e) The provisions of Sections 11.01, 11.02 and 11.03 shall be
applicable to any authenticating agent.
(f) Pursuant to an appointment made under this Section 6.08,
the Certificates may have endorsed thereon, in lieu of the Trustee's
certificate of authentication, an alternate certificate of authentication
in substantially the following form:
This is one of the certificates described in the Pooling and
Servicing Agreement.
as Authenticating Agent
for the Trustee,
By:____________________________
Authorized Officer
Section 6.9 Tender of Exchangeable Transferor Certificate.
(a) Upon any Exchange, the Trustee shall issue to the Holder of
the Exchangeable Transferor Certificate under Section 6.01, for execution
and redelivery to the Trustee for authentication under Section 6.02, one or
more new Series of Investor Certificates. Any such Series of Investor
Certificates shall be substantially in the form specified in the related
Supplement and shall bear, upon its face, the designation for such Series
to which it belongs, as selected by the Transferor. Except as specified in
any Supplement for a related Series, all Investor Certificates of any
Series shall rank pari passu and be equally and ratably entitled as
provided herein to the benefits hereof (except that the Enhancement
provided for any Series shall not be available for any other Series)
without preference, priority or distinction on account of the actual time
or times of authentication and delivery, all in accordance with the terms
and provisions of this Agreement and the related Supplement.
(b) The Holder of the Exchangeable Transferor Certificate may
tender the Exchangeable Transferor Certificate to the Trustee in exchange
for (i) one or more newly issued Series of Investor Certificates and (ii) a
reissued Exchangeable Transferor Certificate (any such tender, a
"Transferor Exchange"). In addition, to the extent permitted for any Series
of Investor Certificates as specified in the related Supplement, the
Investor Certificateholders of such Series may tender their Investor
Certificates and the Holder of the Exchangeable Transferor Certificate may
tender the Exchangeable Transferor Certificate to the Trustee pursuant to
the terms and conditions set forth in such Supplement in exchange for (i)
one or more newly issued Series of Investor Certificates and (ii) a
reissued Exchangeable Transferor Certificate (an "Investor Exchange"). The
Transferor Exchange and Investor Exchange are referred to collectively
herein as an "Exchange." The Holder of the Exchangeable Transferor
Certificate may perform an Exchange by notifying the Trustee, in writing at
least five days in advance (an "Exchange Notice") of the date upon which
the Exchange is to occur (an "Exchange Date"). Any Exchange Notice shall
state the designation of any Series to be issued on the Exchange Date and,
with respect to each such Series: (a) its Initial Invested Amount (or the
method for calculating such Initial Investor Interest), which at any time
may not be greater than the current principal amount of the Exchangeable
Transferor Certificate at such time (or in the case of an Investor
Exchange, the sum of the Invested Amount of the Series of Investor
Certificates to be exchanged plus the current principal amount of the
Exchangeable Transferor Certificate), (b) its Certificate Rate (or the
method for allocating interest payments or other cash flows to such
Series), if any, and (c) the Enhancement Provider, if any, with respect to
such Series. On the Exchange Date, the Trustee shall authenticate and
deliver any such Series of Investor Certificates only upon delivery to it
of the following: (a) a Supplement satisfying the criteria set forth in
subsection 6.09(c) executed by the Transferor and specifying the Principal
Terms of such Series, (b) the applicable Enhancement, if any, (c) the
agreement, if any, pursuant to which the Enhancement Provider agrees to
provide the Enhancement, if any, (d) an Opinion of Counsel to the effect
that, unless otherwise stated in the related Supplement, the newly issued
Series of Investor Certificates will be treated as debt for Federal income
tax purposes and that the issuance of the newly issued Series of Investor
Certificates will not adversely affect the Federal income tax
characterization of the Holder of any outstanding Series of Investor
Certificates or any Certificate Owner, (e) written confirmation from each
Rating Agency that the Exchange will not result in such Rating Agency's
reducing or withdrawing its rating on any then outstanding Series as to
which it is a Rating Agency, (f) an Officer's Certificate signed by a Vice
President (or any more senior officer) of the Transferor, that on the
Exchange Date (i) the Transferor, after giving effect to the Exchange,
would not be required to add Additional Accounts pursuant to subsection
2.06(a) and (ii) after giving effect to such Exchange, the Transferor
Interest would be at least equal to the Minimum Transferor Interest, and
(g) the existing Exchangeable Transferor Certificate or applicable Investor
Certificates, as the case may be. Upon satisfaction of such conditions, the
Trustee shall cancel the existing Exchangeable Transferor Certificate or
applicable Investor Certificates, as the case may be, and issue, as
provided above, such Series of Investor Certificates and a new Exchangeable
Transferor Certificate, dated the Exchange Date. There is no limit to the
number of Exchanges that may be performed under the Agreement.
(c) In conjunction with an Exchange, the parties hereto shall
execute a Supplement, which shall specify the relevant terms with respect
to any newly issued Series of Investor Certificates, which may include
without limitation: (i) its name or designation, (ii) an Initial Invested
Amount or the method of calculating the Initial Invested Amount, (iii) the
Certificate Rate (or formula for the determination thereof), (iv) the
Closing Date, (v) the rating agency or agencies rating such Series, (vi)
the name of the Clearing Agency, if any, (vii) the rights of the Holder of
the Exchangeable Transferor Certificate that have been transferred to the
Holders of such Series pursuant to such Exchange (including any rights to
allocations of Collections of Finance Charge Receivables and Principal
Receivables), (viii) the interest payment date or dates and the date or
dates from which interest shall accrue, (ix) the method of allocating
Collections with respect to Principal Receivables for such Series and, if
applicable, with respect to other Series and the method by which the
principal amount of Investor Certificates of such Series shall amortize or
accrete and the method for allocating Collections with respect to Finance
Charge Receivables and Receivables in Defaulted Accounts, (x) the names of
any accounts to be used by such Series and the terms governing the
operation of any such account, (xi) the Series Servicing Fee Percentage,
(xii) the Minimum Transferor Interest, the Series Termination Date, (xiii)
the terms of any Enhancement with respect to such Series, (xiv) the
Enhancement Provider, if applicable, (xv) the base rate applicable to such
Series, (xvi) the terms on which the Certificates of such Series may be
repurchased or remarketed to other investors, (xvii) any deposit into any
account provided for such Series, (xviii) the number of Classes of such
Series, and if more than one Class, the rights and priorities of each such
Class, (xix) whether Interchange or other fees will be included in the
funds available to be paid for such Series, (xx) the priority of any Series
with respect to any other Series, (xxi) the rights, if any, of the holders
of the Exchangeable Transferor Certificates that have been transferred to
the holders of such Series, (xxii) the Pool Factor, (xxiii) the Minimum
Aggregate Principal Receivables, (xxiv) whether such Series will be part of
a Group, and (xxv) any other relevant terms of such Series (including
whether or not such Series will be pledged as collateral for an issuance of
any other securities, including commercial paper) (all such terms, the
"Principal Terms" of such Series). The terms of such Supplement may modify
or amend the terms of this Agreement solely as applied to such new Series.
If on the date of the issuance of such series there is issued and
outstanding one or more Series of Investor Certificates and no Series of
Investor Certificates is currently rated by a Rating Agency, then as a
condition to such Exchange a nationally recognized investment banking firm
or commercial bank shall also deliver to the Trustee an officer's
certificate stating, in substance, that the Exchange will not have an
adverse effect on the timing or distribution of payments to such other
Series of Investor Certificates then issued and outstanding
Section 6.10 Book-Entry Certificates. Unless otherwise
provided in any related Supplement, the Investor Certificates, upon
original issuance, shall be issued in the form of typewritten Certificates
representing the Book-Entry Certificates, to be delivered to the depository
specified in such Supplement (the "Depository") which shall be the Clearing
Agency or Foreign Clearing Agency, by or on behalf of such Series. The
Investor Certificates of each Series shall, unless otherwise provided in
the related Supplement, initially be registered on the Certificate Register
in the name of the nominee of the Clearing Agency or Foreign Clearing
Agency. No Certificate Owner will receive a definitive certificate
representing such Certificate Owner's interest in the related Series of
Investor Certificates, except as provided in Section 6.12. Unless and until
definitive, fully registered Investor Certificates of any Series
("Definitive Certificates") have been issued to Certificate Owners pursuant
to Section 6.12:
(i) the provisions of this Section 6.10 shall be in full
force and effect with respect to each such Series;
(ii) the Transferor, the Servicer, the Paying Agent, the
Transfer Agent and Registrar and the Trustee may deal with the
Clearing Agency and the Clearing Agency Participants for all purposes
(including the making of distributions on the Investor Certificates
of each such Series) as the authorized representatives of the
Certificate Owners;
(iii) to the extent that the provisions of this Section
6.10 conflict with any other provisions of this Agreement, the
provisions of this Section 6.10 shall control with respect to each
such Series; and
(iv) the rights of Certificate Owners of each such Series
shall be exercised only through the Clearing Agency or Foreign
Clearing Agency and the applicable Clearing Agency Participants and
shall be limited to those established by law and agreements between
such Certificate Owners and the Clearing Agency or Foreign Clearing
Agency and/or the Clearing Agency Participants. Pursuant to the
Depository Agreement applicable to a Series, unless and until
Definitive Certificates of such Series are issued pursuant to Section
6.12, the initial Clearing Agency will make book-entry transfers
among the Clearing Agency Participants and receive and transmit
distributions of principal and interest on the Investor Certificates
to such Clearing Agency Participants.
Section 6.11 Notices to Clearing Agency. Whenever notice or
other communication to the Certificateholders is required under this
Agreement, unless and until Definitive Certificates shall have been issued
to Certificate Owners pursuant to Section 6.12, the Trustee shall give all
such notices and communications specified herein to be given to Holders of
the Investor Certificates to the Clearing Agency or Foreign Clearing Agency
for distribution to Holders of Investor Certificates.
Section 6.12 Definitive Certificates. If (i) (A) the
Transferor advises the Trustee in writing that the Clearing Agency or
Foreign Clearing Agency is no longer willing or able to discharge properly
its responsibilities under the applicable Depository Agreement, and (B) the
Transferor is unable to locate a qualified successor, (ii) the Transferor,
at its option, advises the Trustee in writing that it elects to terminate
the book-entry system through the Clearing Agency or Foreign Clearing
Agency with respect to any Series of Certificates or (iii) after the
occurrence of a Servicer Default, Certificate Owners of a Series
representing beneficial interests aggregating not less than 50% of the
Invested Amount of such Series advise the Trustee and the applicable
Clearing Agency or Foreign Clearing Agency through the applicable Clearing
Agency Participants in writing that the continuation of a book-entry system
through the applicable Clearing Agency or Foreign Clearing Agency is no
longer in the best interests of the Certificate Owners, the Trustee shall
notify all Certificate Owners of such Series, through the applicable
Clearing Agency Participants, of the occurrence of any such event and of
the availability of Definitive Certificates to Certificate Owners of such
Series requesting the same. Upon surrender to the Trustee of the Investor
Certificates of such Series by the applicable Clearing Agency or Foreign
Clearing Agency, accompanied by registration instructions from the
applicable Clearing Agency or Foreign Clearing Agency for registration, the
Trustee shall issue the Definitive Certificates of such Series. Neither the
Transferor nor the Trustee shall be liable for any delay in delivery of
such instructions and may conclusively rely on, and shall be protected in
relying on, such instructions. Upon the issuance of Definitive Certificates
of such Series all references herein to obligations imposed upon or to be
performed by the applicable Clearing Agency or Foreign Clearing Agency
shall be deemed to be imposed upon and performed by the Trustee, to the
extent applicable with respect to such Definitive Certificates, and the
Trustee shall recognize the Holders of the Definitive Certificates of such
Series as Certificateholders of such Series hereunder.
Section 6.13 Global Certificate; Euro-Certificate Exchange
Date. If specified in the related Supplement for any Series, the Investor
Certificates may be initially issued in the form of a single temporary
Global Certificate (the "Global Certificate") in bearer form, without
interest coupons, in the denomination of the Initial Invested Amount and
substantially in the form attached to the related Supplement. Unless
otherwise specified in the related Supplement, the provisions of this
Section 6.13 shall apply to such Global Certificate. The Global Certificate
will be authenticated by the Trustee upon the same conditions, in
substantially the same manner and with the same effect as the Definitive
Certificates. The Global Certificate may be exchanged in the manner
described in the related Supplement for Registered or Bearer Certificates
in definitive form.
Section 6.14 Meetings of Certificateholders.
To the extent provided by the Supplement for any Series issued
in whole or in part in Bearer Certificates, the Servicer or the Trustee may
at any time call a meeting of the Certificateholders of such Series, to be
held at such time and at such place as the Servicer or the Trustee, as the
case may be, shall determine, for the purpose of approving a modification
of or amendment to, or obtaining a waiver of, any covenant or condition set
forth in this Agreement with respect to such Series or in the Certificates
of such Series, subject to Section 13.01 of this Agreement.
[End of Article VI]
ARTICLE VII
OTHER MATTERS RELATING TO THE TRANSFEROR
Section 7.1 Liability of the Transferor. The Transferor shall
be liable in accordance herewith to the extent of the obligations
specifically undertaken by the Transferor.
Section 7.2 Merger or Consolidation of, or Assumption of the
Obligations of, the Transferor.
(a) The Transferor shall not consolidate with or merge into any
other corporation or convey or transfer its properties and assets
substantially as an entirety to any Person, unless:
(i) the corporation formed by such consolidation or into
which the Transferor is merged or the Person which acquires by
conveyance or transfer the properties and assets of the Transferor
substantially as an entirety shall be, if the Transferor is not the
surviving entity, organized and existing under the laws of the United
States of America or any State or the District of Columbia, and shall
be a national banking association, state banking corporation or other
entity which is not subject to the bankruptcy laws of the United
States of America and shall expressly assume, by an agreement
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the performance of every covenant and
obligation of the Transferor, as applicable hereunder and shall
benefit from all the rights granted to the Transferor, as applicable
hereunder. To the extent that any right, covenant or obligation of
the Transferor, as applicable hereunder, is inapplicable to the
successor entity, such successor entity shall be subject to such
covenant or obligation, or benefit from such right, as would apply,
to the extent practicable, to such successor entity. In furtherance
hereof, in applying this Section 7.02 to a successor entity, Section
9.02 hereof shall be applied by reference to events of involuntary
liquidation, receivership or conservatorship applicable to such
successor entity as shall be set forth in the officer's certificate
described in subsection 7.02(a)(ii);
(ii) the Transferor shall have delivered to the Trustee
an Officer's Certificate signed by a Vice President (or any more
senior officer) of the Transferor stating that such consolidation,
merger, conveyance or transfer and such supplemental agreement comply
with this Section 7.02 and that all conditions precedent herein
provided for relating to such transaction have been complied with and
an Opinion of Counsel that such supplemental agreement is legal,
valid and binding; and
(iii) the Servicer shall have delivered notice to the
Rating Agency of such consolidation, merger, conveyance or transfer.
(b) The obligations of the Transferor hereunder shall not be
assignable nor shall any Person succeed to the obligations of the
Transferor hereunder except for mergers, consolidations, assumptions or
transfers in accordance with the provisions of the foregoing paragraph.
Section 7.3 Limitation on Liability. The directors, officers,
employees or agents of the Transferor shall not be under any liability to
the Trust, the Trustee, the Certificateholders, any Enhancement Provider or
any other Person hereunder or pursuant to any document delivered hereunder,
it being expressly understood that all such liability is expressly waived
and released as a condition of, and as consideration for, the execution of
this Agreement and any Supplement and the issuance of the Certificates;
provided, however, that this provision shall not protect the officers,
directors, employees, or agents of the Transferor against any liability
which would otherwise be imposed by reason of willful misfeasance, bad
faith or gross negligence in the performance of duties or by reason of
reckless disregard of obligations and duties hereunder. Except as provided
in Section 7.04, the Transferor shall not be under any liability to the
Trust, the Trustee, the Certificateholders, any Enhancement Provider or any
other Person for any action taken or for refraining from the taking of any
action in its capacity as Transferor pursuant to this Agreement or any
Supplement whether arising from express or implied duties under this
Agreement or any Supplement; provided, however, that this provision shall
not protect the Transferor against any liability which would otherwise be
imposed by reason of willful misfeasance, bad faith or gross negligence in
the performance of duties or by reason of reckless disregard of obligations
and duties hereunder. The Transferor and any director, officer, employee or
agent may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters
arising hereunder.
Section 7.4 Liabilities. By entering into this Agreement, the
Transferor agrees to be liable, directly to the injured party, for the
entire amount of any losses, claims, damages or liabilities (other than
those incurred by an Investor Certificateholder as a result of defaults in
payment of the Receivables) arising out of or based on the arrangement
created by this Agreement and the actions of the Servicer taken pursuant
hereto as though this Agreement created a partnership under the New York
Uniform Partnership Act in which the Transferor is a general partner. The
Transferor agrees to pay, indemnify and hold harmless each Investor
Certificateholder against and from any and all such losses, claims, damages
and liabilities except to the extent that they arise from any action by
such Investor Certificateholder. In the event of a service transfer, the
Successor Servicer will indemnify and hold harmless the Transferor against
and from any losses, claims, damages and liabilities of the Transferor as
described in this Section arising from the actions or omissions of such
Successor Servicer.
[End of Article VII]
ARTICLE VIII
OTHER MATTERS RELATING
TO THE SERVICER
Section 8.1 Liability of the Servicer. The Servicer shall be
liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Servicer in such capacity herein.
Section 8.2 Merger or Consolidation of, or Assumption of the
Obligations of, the Servicer. The Servicer shall not consolidate with or
merge into any other corporation or convey or transfer its properties and
assets substantially as an entirety to any Person, unless:
(i) the corporation formed by such consolidation or into
which the Servicer is merged or the Person which acquires by
conveyance or transfer the properties and assets of the Servicer
substantially as an entirety shall be a corporation organized and
existing under the laws of the United States of America or any State
or the District of Columbia, and shall be a state or national banking
association or other entity which is not subject to the bankruptcy
laws of the United States of America and, if the Servicer is not the
surviving entity, shall expressly assume, by an agreement
supplemental hereto, executed and delivered to the Trustee in form
satisfactory to the Trustee, the performance of every covenant and
obligation of the Servicer hereunder (to the extent that any right,
covenant or obligation of the Servicer, as applicable hereunder, is
inapplicable to the successor entity, such successor entity shall be
subject to such covenant or obligation, or benefit from such right,
as would apply, to the extent practicable, to such successor entity);
(ii) the Servicer shall have delivered to the Trustee an
Officer's Certificate that such consolidation, merger, conveyance or
transfer and such supplemental agreement comply with this Section
8.02 and that all conditions precedent herein provided for relating
to such transaction have been complied with and an Opinion of Counsel
that such supplemental agreement is legal, valid and binding with
respect to the Servicer; and
(iii) the Servicer shall have delivered notice to the
Rating Agency of such consolidation, merger, conveyance or transfer.
Section 8.3 Limitation on Liability of the Servicer and Others.
The directors, officers, employees or agents of the Servicer shall not be
under any liability to the Trust, the Trustee, the Certificateholders, any
Enhancement Provider or any other Person hereunder or pursuant to any
document delivered hereunder, it being expressly understood that all such
liability is expressly waived and released as a condition of, and as
consideration for, the execution of this Agreement and any Supplement and
the issuance of the Certificates; provided, however, that this provision
shall not protect the directors, officers, employees and agents of the
Servicer against any liability which would otherwise be imposed by reason
of willful misfeasance, bad faith or gross negligence in the performance of
duties or by reason of reckless disregard of obligations and duties
hereunder. Except as provided in Section 8.04 with respect to the Trust and
the Trustee, its officers, directors, employees and agents, the Servicer
shall not be under any liability to the Trust, the Trustee, its officers,
directors, employees and agents, the Certificateholders or any other Person
for any action taken or for refraining from the taking of any action in its
capacity as Servicer pursuant to this Agreement or any Supplement;
provided, however, that this provision shall not protect the Servicer
against any liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or gross negligence in the performance of duties or
by reason of its reckless disregard of its obligations and duties hereunder
or under any Supplement. The Servicer may rely in good faith on any
document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder. The Servicer shall not be
under any obligation to appear in, prosecute or defend any legal action
which is not incidental to its duties to service the Receivables in
accordance with this Agreement which in its reasonable opinion may involve
it in any expense or liability.
Section 8.4 Servicer Indemnification of the Trust and the
Trustee. The Servicer shall indemnify and hold harmless the Trust, the
Investor Certificateholders and the Trustee, its officers, directors,
employees and agents, from and against any reasonable loss, liability,
expense, damage or injury suffered or sustained by reason of any acts or
omissions or alleged acts or omissions of the Servicer with respect to
activities of the Trust or the Trustee pursuant to this Agreement or any
Supplement, or by reason of the acceptance of this Trust by the Trustee,
the issuance by the Trust of the Certificates, any Servicer Default, any
termination of the rights and obligations of the Servicer including, but
not limited to, any judgment, award, settlement, reasonable attorneys' fees
and other costs or expenses incurred in connection with the defense of any
actual or threatened action, proceeding or claim; provided, however, that
the Servicer shall not indemnify the Trustee or the Investor
Certificateholders if such acts, omissions or alleged acts or omissions
constitute or are caused by fraud, negligence, or willful misconduct by the
Trustee; provided further, that the Servicer shall not indemnify the Trust,
the Investor Certificateholders or the Certificate Owners for any
liabilities, costs or expenses of the Trust with respect to any action
taken by the Trustee at the request of the Investor Certificateholders;
provided further, that the Servicer shall not indemnify the Trust, the
Investor Certificateholders or the Certificate Owners as to any losses,
claims or damages incurred by any of them in their capacities as investors,
including without limitation losses incurred as a result of Defaulted
Accounts or Receivables which are written off as uncollectible; and
provided further, that the Servicer shall not indemnify the Trust, the
Investor Certificateholders or the Certificate Owners for any liabilities,
costs or expenses of the Trust, the Investor Certificateholders or the
Certificate Owners arising under any tax law, including without limitation,
any federal, state, local or foreign income or franchise taxes or any other
tax imposed on or measured by income (or any interest or penalties with
respect thereto or arising from a failure to comply therewith) required to
be paid by the Trust, the Investor Certificateholders or the Certificate
Owners in connection herewith to any taxing authority. Any such
indemnification shall not be payable from the assets of the Trust. The
provisions of this indemnity shall run directly to and be enforceable by an
injured party subject to the limitations hereof and shall survive the
resignation or removal of the Servicer, the resignation or removal of the
Trustee and/or the termination of the Trust and shall survive the
termination of the Trust.
Section 8.5 The Servicer Not to Resign. The Servicer shall not
resign from the obligations and duties hereby imposed on it except upon
determination that (i) the performance of its duties hereunder is no longer
permissible under applicable law and (ii) there is no reasonable action
which the Servicer could take to make the performance of its duties
hereunder permissible under applicable law. Any such determination
permitting the resignation of the Servicer shall be evidenced as to clause
(i) above by an Opinion of Counsel to such effect delivered to the Trustee.
No such resignation shall become effective until the Trustee or a Successor
Servicer shall have assumed the responsibilities and obligations of the
Servicer in accordance with Section 10.02 hereof. If the Trustee is unable
within 120 days of the date of such determination to appoint a Successor
Servicer, the Trustee shall serve as Successor Servicer hereunder (but
shall have continued authority to appoint another Person as Successor
Servicer).
Section 8.6 Access to Certain Documentation and Information
Regarding the Receivables. The Servicer shall provide to the Trustee access
to the documentation regarding the Accounts and the Receivables in such
cases where the Trustee is required in connection with the enforcement of
the rights of the Investor Certificateholders, or by applicable statutes or
regulations, to review such documentation, such access being afforded
without charge but only (i) upon reasonable request, (ii) during normal
business hours, (iii) subject to the Servicer's normal security and
confidentiality procedures and (iv) at offices designated by the Servicer.
Nothing in this Section 8.06 shall derogate from the obligation of the
Transferor, the Trustee or the Servicer to observe any applicable law
prohibiting disclosure of information regarding the Obligors and the
failure of the Servicer to provide access as provided in this Section 8.06
as a result of such obligations shall not constitute a breach of this
Section 8.06.
Section 8.7 Delegation of Duties. It is understood and agreed
by the parties hereto that the Servicer may delegate certain of its duties
hereunder to First Data Resources, Inc., a Delaware corporation. In the
ordinary course of business, the Servicer may at any time delegate any
duties hereunder to any Person who agrees to conduct such duties in
accordance with the Credit Card Guidelines. Any such delegations shall not
relieve the Servicer of its liability and responsibility with respect to
such duties, and shall not constitute a resignation within the meaning of
Section 8.05 hereof. If any such delegation is to a party other than First
Data Resources, Inc., notification thereof shall be given to each Rating
Agency.
Section 8.8 Examination of Records. The Servicer shall clearly
and unambiguously identify each Account (including any Additional Account
designated pursuant to Section 2.06) in its computer or other records to
reflect that the Receivables arising in such Account have been conveyed to
the Trust pursuant to this Agreement. The Servicer shall, prior to the sale
or transfer to a third party of any receivable held in its custody, examine
its computer and other records to determine that such receivable is not a
Receivable.
[End of Article VIII]
ARTICLE IX
PAY OUT EVENTS
Section 9.1 Pay Out Events. If any one of the following events
(each, a "Trust Pay Out Event") shall occur:
(a) the Transferor shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceedings of or
relating to all or substantially all of its property, or a decree or order
of a court or agency or supervisory authority having jurisdiction in the
premises for the appointment of a conservator or receiver or liquidator in
any insolvency, readjustment of debt, marshalling of assets and liabilities
or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Transferor; or the Transferor
shall admit in writing its inability to pay its debts generally as they
become due, file a petition to take advantage of any applicable insolvency
or reorganization statute, make an assignment for the benefit of its
creditors or voluntarily suspend payment of its obligations; or the
Transferor shall become unable for any reason to transfer Receivables to
the Trust in accordance with the provisions of this Agreement; or
(b) Trust shall become subject to regulation by the Securities
and Exchange Commission as an "investment company" within the meaning of
the Investment Company Act;
then a Pay Out Event with respect to all Series of Certificates shall occur
without any notice or other action on the part of the Trustee or the
Investor Certificateholders immediately upon the occurrence of such event.
Section 9.2 Additional Rights Upon the Occurrence of Certain
Events.
(a) If the Transferor shall consent to the appointment of a
conservator or receiver or liquidator for the winding-up or liquidation of
its affairs, or a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
conservator or receiver or liquidator for the winding-up or liquidation of
its affairs shall have been entered against the Transferor (an "Insolvency
Event"), the Transferor shall on the day of such Insolvency Event (the
"Appointment Day") immediately cease to transfer Principal Receivables to
the Trust and shall promptly give notice to the Trustee of such Insolvency
Event. Notwithstanding any cessation of the transfer to the Trust of
additional Principal Receivables, Finance Charge Receivables, whenever
created, accrued in respect of Principal Receivables which have been
transferred to the Trust shall continue to be a part of the Trust, and
Collections with respect thereto shall continue to be allocated and paid in
accordance with Article IV. Within 15 days of the Appointment Day, the
Trustee shall (i) publish a notice in an Authorized Newspaper that an
Insolvency Event has occurred and that the Trustee intends to sell, dispose
of or otherwise liquidate the Receivables in a commercially reasonable
manner and (ii) send written notice to the Investor Certificateholders
describing the provisions of this Section 9.02 and requesting instructions
from such Holders, which notice shall request each Investor
Certificateholder to advise the Trustee in writing that it elects one of
the following options: (A) the Investor Certificateholder wishes the
Trustee to instruct the Servicer not to sell, dispose of or otherwise
liquidate the Receivables, or (B) the Investor Certificateholder wishes the
Trustee to instruct the Servicer to sell, dispose of or otherwise liquidate
the Receivables and to instruct the Servicer to reconstitute the Trust upon
the same terms and conditions set forth herein, or (C) the Investor
Certificateholder refuses to advise the Trustee as to the specific action
the Trustee shall instruct the Servicer to take. If after 60 days from the
day notice pursuant to clause (i) above is first published (the
"Publication Date"), the Trustee shall not have received written
instructions of Holders of Investor Certificates representing Undivided
Interests aggregating in excess of 50% of the related Invested Amount of
each Series (or in the case of a series having more than one class of
investor certificates, each class of such series) to the effect that the
Trustee shall not instruct the Servicer to sell, dispose of, or otherwise
liquidate the Receivables and to instruct the Servicer to reconstitute the
Trust upon the same terms and conditions as set forth herein, the Trustee
shall instruct the Servicer to proceed to sell, dispose of, or otherwise
liquidate the Receivables in a commercially reasonable manner and on
commercially reasonable terms, which shall include the solicitation of
competitive bids and the Servicer shall proceed to consummate the sale,
liquidation or disposition of the Receivables as provided above with the
highest bidder for the Receivables. If, however, with respect to the
portion of the Receivables allocable to any outstanding Series, the holders
of more than 50% of the principal amount of each class of such Series
instruct the Trustee not to sell the portion of the Receivables allocable
to such Series, the Trust shall continue with respect to such Series
pursuant to the terms of the Agreement and the Supplement. The portion of
the Receivables allocable to any Series shall be equal to the sum of (1)
the product of (A) the Transferor Percentage, (B) the aggregate outstanding
Principal Receivables and (C) a fraction the numerator of which is the
related Investor Percentage of Collections of Finance Charge Receivables
and the denominator of which is the sum of all Investor Percentages with
respect to Collections of Finance Charge Receivables for all Series
outstanding and (2) the Invested Amount of such Series. The Transferor or
any of its Affiliates shall be permitted to bid for the Receivables. In
addition the Transferor or any of its Affiliates shall have the right to
match any bid by a third person and be granted the right to purchase the
Receivables at such matched bid price. The Trustee may obtain a prior
determination from any such conservator, receiver or liquidator that the
terms and manner of any proposed sale, disposition or liquidation are
commercially reasonable. The provisions of Sections 9.01 and 9.02 shall not
be deemed to be mutually exclusive.
(b) The proceeds from the sale, disposition or liquidation of
the Receivables pursuant to subsection (a) above shall be treated as
Collections on the Receivables and shall be allocated and deposited in
accordance with the provisions of Article IV; provided, however that the
proceeds for any such sale, disposition or liquidation of Receivables which
respect a Series but not all of the outstanding Series shall but applied
solely to make payments to such Series; provided further, that the Trustee
shall determine conclusively in its sole discretion the amount of such
proceeds which are allocable to Finance Charge Receivables and the amount
of such proceeds which are allocable to Principal Receivables. Unless the
Trustee receives written instructions from Investor Certificateholders of
one or more Series to continue the Trust with respect to such Series as
provided in subsection 9.02(b) above, on the day following the last
Distribution Date in the Monthly Period during which such proceeds are
distributed to the Investor Certificateholders of each Series, the Trust
shall terminate.
(c) The Trustee may appoint an agent or agents to assist with
its responsibilities pursuant to this Article IX with respect to
competitive bids.
[End of Article IX]
ARTICLE X
SERVICER DEFAULTS
Section 10.1 Servicer Defaults. If any one of the following
events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer
or deposit or to give instructions or notice to the Trustee pursuant to
Article IV or to instruct the Trustee to make any required drawing,
withdrawal, or payment under any Enhancement on or before the date
occurring five Business Days after the date such payment, transfer, deposit
withdrawal or drawing or such instruction or notice is required to be made
or given, as the case may be, under the terms of this Agreement;
(b) failure on the part of the Servicer duly to observe or
perform in any respect any other covenants or agreements of the Servicer
set forth in this Agreement, which has a material adverse effect on the
Investor Certificateholders of any Series and which continues unremedied
for a period of 60 days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to the
Servicer by the Trustee, or to the Servicer and the Trustee by the Holders
of Investor Certificates evidencing Undivided Interests aggregating not
less than 50% of the Invested Amount of any Series adversely affected
thereby and continues to materially adversely affect such Investor
Certificateholders for such period; or the Servicer shall delegate its
duties under this Agreement, except as permitted by Section 8.07;
(c) any representation, warranty or certification made by the
Servicer in this Agreement or in any certificate delivered pursuant to this
Agreement shall prove to have been incorrect when made, which has a
material adverse effect on the Investor Certificateholders of any Series
and which continues to be incorrect in any material respect for a period of
60 days after the date on which written notice of such failure, requiring
the same to be remedied, shall have been given to the Servicer by the
Trustee, or to the Servicer and the Trustee by the Holders of Investor
Certificates evidencing Undivided Interests aggregating not less than 50%
of the Invested Amount of any Series adversely affected thereby and
continues to materially adversely affect such Investor Certificateholders
for such period; or
(d) the Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceedings of or
relating to the Servicer or of or relating to all or substantially all of
its property, or a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and Liabilities or similar proceedings, or for
the winding-up or liquidation of its affairs, shall have been entered
against the Servicer, and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or the Servicer shal
admit in writing its inability to pay its debts generally as they become
due, file a petition to take advantage of any applicable insolvency or
reorganization statute, make any assignment for the benefit of its
creditors or voluntarily suspend payment of its obligations;
then, so long as such Servicer Default shall not have been remedied, either
the Trustee, or the Holders of Investor Certificates evidencing Undivided
Interests aggregating more than 50% of the Aggregate Invested Amount, by
notice then given in writing to the Servicer (and to the Trustee if given
by the Investor Certificateholders) (a "Termination Notice"), may terminate
all of the rights and obligations of the Servicer as Servicer under this
Agreement. After receipt by the Servicer of such Termination Notice, and on
the date that a Successor Servicer shall have been appointed by the Trustee
pursuant to Section 10.02, all authority and power of the Servicer under
this Agreement shall pass to and be vested in a Successor Servicer; and,
without limitation, the Trustee is hereby authorized and empowered (upon
the failure of the Servicer to cooperate) to execute and deliver, on behalf
of the Servicer, as attorney-in-fact or otherwise, all documents and other
instruments upon the failure of the Servicer to execute or deliver such
documents or instruments, and to do and accomplish all other acts or things
necessary or appropriate to effect the purposes of such transfer of
servicing rights and obligations. The Servicer agrees to cooperate with the
Trustee and such Successor Servicer in effecting the termination of the
responsibilities and rights of the Servicer to conduct servicing hereunder
including, without limitation, the transfer to such Successor Servicer of
all authority of the Servicer to service the Receivables provided for under
this Agreement, including, without limitation, all authority over all
Collections which shall on the date of transfer be held by the Servicer for
deposit, or which have been deposited by the Servicer, in the Collection
Account, the Finance Charge Account or the Principal Account, and any
Series Account, or which shall thereafter be received with respect to the
Receivables, and in assisting the Successor Servicer and in enforcing all
rights to Insurance Proceeds and Interchange (if any) applicable to the
Trust. The Servicer shall promptly transfer its electronic records or
electronic copies thereof relating to the Receivables to the Successor
Servicer in such electronic form as the Successor Servicer may reasonably
request and shall promptly transfer to the Successor Servicer all other
records, correspondence and documents necessary for the continued servicing
of the Receivables in the manner and at such times as the Successor
Servicer shall reasonably request. To the extent that compliance with this
Section 10.01 shall require the Servicer to disclose to the Successor
Servicer information of any kind which the Servicer reasonably deems to be
confidential, the Successor Servicer shall be required to enter into such
customary licensing and confidentiality agreements as the Servicer shall
deem necessary to protect its interests. The Servicer shall, on the date of
any servicing transfer, transfer all of its rights and obligations under
the Enhancement with respect to any Series to the Successor Servicer.
Notwithstanding the foregoing, a delay in or failure of
performance referred to in subsection 10.01(a) for a period of 10 Business
Days or under subsection 10.01(b) or (c) for a period of 60 Business Days,
shall not constitute a Servicer Default if such delay or failure could not
be prevented by the exercise of reasonable diligence by the Servicer and
such delay or failure was caused by an act of God or the public enemy, acts
of declared or undeclared war, public disorder, rebellion, riot or
sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes,
earthquakes, nuclear disasters or meltdowns, floods, power outages or
similar causes. The preceding sentence shall not relieve the Servicer from
using its best efforts to perform its obligations in a timely manner in
accordance with the terms of this Agreement and the Servicer shall provide
the Trustee, any Enhancement Provider, the Transferor and the Holders of
Investor Certificates with an Officer's Certificate giving prompt notice of
such failure or delay by it, together with a description of the cause of
such failure or delay and its efforts so to perform its obligations.
Section 10.2 Trustee to Act; Appointment of Successor.
(a) On and after the receipt by the Servicer of a Termination
Notice pursuant to Section 10.01, the Servicer shall continue to perform
all servicing functions under this Agreement until the date specified in
the Termination Notice or otherwise specified by the Trustee in writing or,
if no such date is specified in such Termination Notice, or otherwise
specified by the Trustee, until a date mutually agreed upon by the Servicer
and Trustee. The Trustee shall notify each Rating Agency of such removal of
the Servicer. The Trustee shall, as promptly as possible after the giving
of a Termination Notice appoint a successor servicer (the "Successor
Servicer"), and such Successor Servicer shall accept its appointment by a
written assumption in a form acceptable to the Trustee. The Trustee may
obtain bids from any potential successor servicer. If the Trustee is unable
to obtain any bids from any potential successor servicer and the Servicer
delivers an Officer's Certificate to the effect that they cannot in good
faith cure the Servicer Default which gave rise to a transfer of servicing,
and if the Trustee is legally unable to act as Successor Servicer, then the
Trustee shall notify each Enhancement Provider of the proposed sale of the
Receivables and shall provide each such Enhancement Provider an opportunity
to bid on the Receivables and shall offer the Transferor the right of first
refusal to purchase the Receivables on terms equivalent to the best
purchase offer as determined by the Trustee, but in no event less than an
amount equal to the Aggregate Invested Amount on the date of such purchase
plus all interest accrued but unpaid on all of the outstanding Investor
Certificates at the applicable Certificate Rate through the date of such
purchase; provided, however, that if the short-term deposits or long-term
unsecured debt obligations of the Transferor (or if neither such deposits
nor such obligations of the Transferor are rated by Moody's, if Moody's is
a Rating Agency with respect to any Series of Certificates outstanding,
then of the holding company of the Transferor so long as such holding
company shall be First USA, Inc.) are not rated at the time of such
purchase at least P-3 or Baa-3, respectively, by Moody's, if Moody's is a
Rating Agency with respect to any Series of Certificates outstanding, no
such purchase by the Transferor shall occur unless the Transferor shall
deliver an Opinion of Counsel reasonably acceptable to the Trustee that
such purchase would not constitute a fraudulent conveyance of the
Transferor. The proceeds of such sale shall be deposited in the
Distribution Account or any Series Account, as provided in the related
Supplement, for distribution to the Investor Certificateholders of each
outstanding Series pursuant to Section 12.03 of the Agreement. In the event
that a Successor Servicer has not been appointed and has not accepted its
appointment at the time when the Servicer ceases to act as Servicer, the
Trustee without further action shall automatically be appointed the
Successor Servicer (but shall have continued authority, to appoint another
Person as Successor Servicer). Notwithstanding the above, the Trustee
shall, if it is legally unable to act, petititon a court of competent
jurisdiction to appoint any established financial institution having, in
the case of an entity that is subject to risk-based capital adequacy
requirements, risk-based capital of at least $50,000,000 or, in the case of
an entity that is not subject to risk-based capital requirements, having a
net worth of not less than $50,000,000 and whose regular business includes
the servicing of VISA or MasterCard credit card receivables as the
Successor Servicer hereunder.
(b) Upon its appointment, the Successor Servicer shall be the
successor in all respects to the Servicer with respect to servicing
functions under this Agreement and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the
Servicer by the terms and provisions hereof, and all references in this
Agreement to the Servicer shall be deemed to refer to the Successor
Servicer. Any Successor Servicer, by its acceptance of its appointment,
will automatically agree to be bound by the terms and provisions of each
Enhancement.
(c) In connection with such appointment and assumption, the
Trustee shall be entitled to such compensation, or may make such
arrangements for the compensation of the Successor Servicer out of
Collections, as it and such Successor Servicer shall agree; provided,
however, that no such compensation shall be in excess of the Monthly
Servicing Fee permitted to the Servicer pursuant to Section 3.02. The
Transferor agrees that if the Servicer is terminated hereunder, it will
agree to deposit a portion of the Collections in respect of Finance Charge
Receivables that it is entitled to receive pursuant to Article IV to pay
its share of the compensation of the Successor Servicer.
(d) All authority and power granted to the Successor Servicer
under this Agreement shall automatically cease and terminate upon
termination of the Trust pursuant to Section 12.01 and shall pass to and be
vested in the Transferor and, without limitation, the Transferor is hereby
authorized and empowered to execute and deliver, on behalf of the Successor
Servicer, as attorney-in-fact or otherwise, all documents and other
instruments, and to do and accomplish all other acts or things necessary or
appropriate to effect the purposes of such transfer of servicing rights.
The Successor Servicer agrees to cooperate with the Transferor in effecting
the termination of the responsibilities and rights of the Successor
Servicer to conduct servicing on the Receivables. The Successor Servicer
shall transfer its electronic records relating to the Receivables to the
Transferor in such electronic form as the Transferor may reasonably request
and shall transfer all other records, correspondence and documents to the
Transferor in the manner and at such times as the Transferor shall
reasonably request. To the extent that compliance with this Section 10.02
shall require the Successor Servicer to disclose to the Transferor
information of any kind which the Successor Servicer deems to be
confidential, the Transferors shall be required to enter into such
customary licensing and confidentiality agreements as the Successor
Servicer shall deem necessary to protect its interests.
Section 10.3 Notification to Certificateholders. Within two
Business Days after the Servicer becomes aware of any Servicer Default, the
Servicer shall give prompt written notice thereof to the Trustee and any
Enhancement Provider and the Trustee shall give notice to the Investor
Certificateholders at their respective addresses appearing in the
Certificate Register. Upon any termination or appointment of a Successor
Servicer pursuant to this Article X, the Trustee shall give prompt written
notice thereof to Investor Certificateholders at their respective addresses
appearing in the Certificate Register.
Section 10.4 Waiver of Past Defaults. The Holders of Investor
Certificates evidencing Undivided Interests aggregating not less than
66-2/3% of the Invested Amount of each Series adversely affected by any
default by the Servicer or Transferor may, on behalf of all
Certificateholders of such Series, waive any default by the Servicer or
Transferor in the performance of its obligations hereunder and its
consequences, except a default in the failure to make any required deposits
or payments of interest or principal relating to such Series pursuant to
Article IV which default does not result from the failure of the Paying
Agent to perform its obligations to make any required deposits or payments
of interest and principal in accordance with Article IV. Upon any such
waiver of a past default, such default shall cease to exist, and any
default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereon except to the extent
expressly so waived.
[End of Article X]
ARTICLE XI
THE TRUSTEE
Section 11.1 Duties of Trustee.
(a) The Trustee, prior to the occurrence of any Servicer
Default and after the curing of all Servicer Defaults which may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement. If a Responsible Officer has
received written notice that a Servicer Default has occurred (and such
Servicer Default has not been cured or waived), the Trustee shall exercise
such of the rights and powers vested in it by this Agreement, and use the
same degree of care and skill in its exercise, as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs; provided, however, that if the Trustee shall assume the duties of
the Servicer pursuant to Section 8.05 or 10.02, the Trustee in performing
such duties shall use the degree of skill and attention customarily
exercised by a servicer with respect to comparable receivables that it
services for itself or others.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Trustee which are specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them to
determine whether they substantially conform to the requirements of this
Agreement.
(c) Subject to subsection 11.01(a), no provision of this
Agreement shall be construed to relieve the Trustee from liability for its
own negligent action, its own negligent failure to act or its own
misconduct; provided, however, that:
(i) the Trustee shall not be personally liable for an
error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts;
(ii) the Trustee shall not be personally liable with
respect to any action taken, suffered or omitted to be taken by it in
good faith in accordance with the direction of the Holders of
Investor Certificates evidencing Undivided Interests aggregating more
than 50% of the Invested Amount of any Series relating to the time,
method and place of conducting any proceeding for any remedy
available to the Trustee with respect to such Series, or exercising
any trust or power conferred upon the Trustee with respect to such
Series, under this Agreement; and
(iii) the Trustee shall not be charged with knowledge of
any failure by the Servicer referred to in clauses (a) and (b) of
Section 10.01 or of any breach by the Servicer contemplated by clause
(c) of Section 10.01 or any Pay-Out Event unless a Responsible
Officer of the Trustee obtains actual knowledge of such failure,
breach or Pay-Out Event or the Trustee receives written notice of
such failure, breach or Pay-Out Event from the Servicer or any
Holders of Investor Certificates evidencing Undivided Interests
aggregating not less than 10% of the Invested Amount of any Series
adversely affected thereby.
(d) The Trustee shall not be required to expend or risk its own
funds or otherwise incur financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if
there is reasonable ground for believing that the repayment of such funds
or adequate indemnity against such risk or liability is not reasonably
assured to it, and none of the provisions contained in this Agreement shall
in any event require the Trustee to perform, or be responsible for the
manner of performance of, any of the obligations of the Servicer under this
Agreement except during such time, if any, as the Trustee shall be the
successor to, and be vested with the rights, duties, powers and privileges
of, the Servicer in accordance with the terms of this Agreement.
(e) Except for actions expressly authorized by this Agreement,
the Trustee shall take no action reasonably likely to impair the interests
of the Trust in any Receivable now existing or hereafter created or to
impair the value of any Receivable now existing or hereafter created.
(f) Except as provided in this subsection 11.01(f), the Trustee
shall have no power to vary the corpus of the Trust including, without
limitation, the power to (i) accept any substitute obligation for a
Receivable initially assigned to the Trust under Section 2.01 or 2.06
hereof, (ii) add any other investment, obligation or security to the Trust,
except for an addition permitted under Section 2.06 or (iii) withdraw from
the Trust any Receivables, except for a withdrawal permitted under Sections
2.07, 9.02, 10.02, 12.01 or 12.02 or subsections 2.04(d), 2.04(e) or
Article IV.
(g) In the event that the Paying Agent or the Transfer Agent
and Registrar shall fail to perform any obligation, duty or agreement in
the manner or on the day required to be performed by the Paying Agent or
the Transfer Agent and Registrar, as the case may be, under this Agreement,
the Trustee shall be obligated promptly upon its knowledge thereof by a
Responsible Officer of the Trustee to perform such obligation, duty or
agreement in the manner so required.
(h) If the Transferor has agreed to transfer any of its credit
card receivables (other than the Receivables) to another Person, upon the
written request of the Transferor, the Trustee will enter into such
intercreditor agreements with the transferee of such receivables as are
customary and necessary to identify separately the rights, if any, of the
Trust and such other Person in the Transferor's credit card receivables;
provided, that the Trust shall not be required to enter into any
intercreditor agreement which could adversely affect the interests of the
Certificateholders or the Trustee and, upon the request of the Trustee, the
Transferor will deliver an Opinion of Counsel on any matters relating to
such intercreditor agreement, reasonably requested by the Trustee.
Section 11.2 Certain Matters Affecting the Trustee. Except as
otherwise provided in Section 11.01:
(a) the Trustee may rely on and shall be protected in acting
on, or in refraining from acting in accord with, any assignment of
Receivables in Additional Accounts, the initial report, the monthly
Servicer's certificate, the annual Servicer's certificate, the monthly
payment instructions and notification to the Trustee, the monthly
Certificateholder's statement, any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document believed by it to be genuine and to have been signed or
presented to it pursuant to this Agreement by the proper party or parties;
(b) the Trustee may consult with counsel, and any Opinion of
Counsel shall be full and complete authorization and protection in respect
of any action taken or suffered or omitted by it hereunder in good faith
and in accordance with such Opinion of Counsel;
(c) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement or any Enhancement, or
to institute, conduct or defend any litigation hereunder or in relation
hereto, at the request, order or direction of any of the Certificateholders
or any Enhancement Provider, pursuant to the provisions of this Agreement,
unless such Certificateholders or Enhancement Provider shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses
and liabilities which may be incurred therein or thereby; nothing contained
herein shall, however, relieve the Trustee of the obligations, upon the
occurrence of any Servicer Default (which has not been cured or waived), to
exercise such of the rights and powers vested in it by this Agreement and
any Enhancement, and to use the same degree of care and skill in its
exercise as a prudent person would exercise or use under the circumstances
in the conduct of his own affairs;
(d) the Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Agreement;
(e) the Trustee shall not be bound to make any investigation
into the facts of matters stated in any assignment of Receivables in
Additional Accounts, the initial report, the monthly Servicer's
certificate, the annual Servicer's certificate, the monthly payment
instructions and notification to the Trustee, the monthly
Certificateholders statement, any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document, unless requested in writing so to do by
Holders of Investor Certificates evidencing Undivided Interests aggregating
more than 50% of the Invested Amount of any Series which could be adversely
affected if the Trustee does not perform such acts;
(f) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian, and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent,
attorney or custodian appointed with due care by it hereunder; and
(g) except as may be required by subsection 11.01(a), the
Trustee shall not be required to make any initial or periodic examination
of any documents or records related to the Receivables or the Accounts for
the purpose of establishing the presence or absence of defects, the
compliance by the Transferor with its representations and warranties or for
any other purpose.
(h) whenever in the administration of this Agreement the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officer's Certificate; and
Section 11.3 Trustee Not Liable for Recitals in Certificates.
The Trustee assumes no responsibility for the correctness of the recitals
contained herein and in the Certificates (other than the certificate of
authentication on the Certificates). Except as set forth in Section 11.15,
the Trustee makes no representations as to the validity or sufficiency of
this Agreement or of the Certificates (other than the certificate of
authentication on the Certificates) or of any Receivable or related
document. The Trustee shall not be accountable for the use or application
by the Transferor of any of the Certificates or of the proceeds of such
Certificates, or for the use or application of any funds paid to the
Transferor in respect of the Receivables or deposited in or withdrawn from
the Collection Account, the Principal Account or the Finance Charge
Account, or any Series Account or other accounts now or hereafter
established to effectuate the transactions contemplated herein and in
accordance with the terms hereof.
Section 11.4 Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of
Investor Certificates with the same rights as it would have if it were not
the Trustee.
Section 11.5 The Servicer to Pay Trustee's Fees and Expenses.
The Servicer covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to receive, reasonable compensation
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) for all services rendered by
the Trustee in the execution of the Trust hereby created and in the
exercise and performance of any of the powers and duties hereunder of the
Trustee, and, subject to Section 8.04, the Servicer will pay or reimburse
the Trustee (without reimbursement from any Investor Account, any Series
Account or otherwise) upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance
with any of the provisions of this Agreement (including the reasonable fees
and expenses of its agents and counsel) except any such expense,
disbursement or advance as may arise from its own negligence or bad faith
and except as provided in the following sentence. If the Trustee is
appointed Successor Servicer pursuant to Section 10.02, the provisions of
this Section 11.05 shall not apply to expenses, disbursements and advances
made or incurred by the Trustee in its capacity as Successor Servicer
(which shall be covered out of the Monthly Servicing Fee).
The obligations of the Servicer under this Section 11.05 shall
survive the termination of the Trust and the resignation or removal of the
Trustee.
Section 11.6 Eligibility Requirements for Trustee. The Trustee
hereunder shall at all times be a corporation organized and doing business
under the laws of the United States of America or any state thereof
authorized under such laws to exercise corporate trust powers, having a
long-term unsecured debt rating of at least Baa3 by Moody's and BBB- by
Standard & Poor's having, in the case of an entity that is subject to
risk-based capital adequacy requirements, risk-based capital of at least
$50,000,000 or, in the case of an entity that is not subject to risk-based
capital adequacy requirements, having a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by federal or
state authority. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purpose of this Section
11.06, the combined capital and surplus of such corporation shall be deemed
to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section
11.06, the Trustee shall resign immediately in the manner and with the
effect specified in Section 11.07.
Section 11.7 Resignation or Removal of Trustee.
(a) The Trustee may at any time resign and be discharged from
the Trust hereby created by giving written notice thereof to the Servicer.
Upon receiving such notice of resignation, the Servicer shall promptly
appoint a successor trustee by written instrument, in duplicate, one copy
of which instrument shall be delivered to the resigning Trustee and one
copy to the successor trustee. If no successor trustee shall have been so
appointed and have accepted such appointment within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor
trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 11.06 hereof and shall fail to
resign after written request therefor by the Transferor, or if at any time
the Trustee shall be legally unable to act, or shall be adjudged a bankrupt
or insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Transferor may, but shall not be
required to, remove the Trustee and promptly appoint a successor trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee.
(c) Any resignation or removal of the Trustee and appointment
of a successor trustee pursuant to any of the provisions of this Section
11.07 shall not become effective until acceptance of appointment by the
successor trustee as provided in Section 11.08 hereof and any liability of
the Trustee arising hereunder shall survive such appointment of a successor
trustee.
Section 11.8 Successor Trustee.
(a) Any successor trustee appointed as provided in Section
11.07 hereof shall execute, acknowledge and deliver to the Transferor and
to its predecessor Trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor
Trustee shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with
the like effect as if originally named as Trustee herein. The predecessor
Trustee shall deliver to the successor trustee all documents and statements
held by it hereunder, and the Transferor and the predecessor Trustee shall
execute and deliver such instruments and do such other things as may
reasonably be required for fully and certainly vesting and confirming in
the successor trustee all such rights, powers, duties and obligations.
(b) No successor trustee shall accept appointment as provided
in this Section 11.08 unless at the time of such acceptance such successor
trustee shall be eligible under the provisions of Section 11.06 hereof.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 11.08, such successor trustee shall mail notice of
such succession hereunder to all Certificateholders at their addresses as
shown in the Certificate Register.
Section 11.9 Merger or Consolidation of Trustee. Any Person
into which the Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person
succeeding to the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such corporation shall be
eligible under the provisions of Section 11.06 hereof, without the
execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding.
Section 11.10 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Agreement, at
any time, for the purpose of meeting any legal requirements of any
jurisdiction in which any part of the Trust may at the time be located, the
Trustee shall have the power and may execute and deliver all instruments to
appoint one or more Persons to act as a co-trustee or co-trustees, or
separate trustee or separate trustees, of all or any part of the Trust, and
to vest in such Person or Persons, in such capacity and for the benefit of
the Certificateholders, such title to the trust, or any part thereof, and,
subject to the other provisions of this Section 11.10, such powers, duties,
obligations, rights and trusts as the Trustee may consider necessary or
desirable. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 11.06
and no notice to Certificateholders of the appointment of any co-trustee or
separate trustee shall be required under Section 11.08 hereof.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions
and conditions:
(i) all rights, powers, duties and obligations conferred
or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Trustee
joining in such act), except to the extent that under any laws of any
jurisdiction in which any particular act or acts are to be performed
(whether as Trustee hereunder or as successor to the Servicer
hereunder), the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties
and obligations (including the holding of title to the Trust or any
portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely
at the direction of the Trustee;
(ii) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder; and
(iii) the Trustee may at any time accept the resignation
of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to
this Agreement and the conditions of this Article XI. Each separate trustee
and co-trustee, upon its acceptance of the trusts conferred, shall be
vested with the estates or property specified in its instrument of
appointment, either jointly with the Trustee or separately, as may be
provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the
conduct of, affecting the liability of, or affording protection to, the
Trustee. Every such instrument shall be filed with the Trustee and a copy
thereof given to the Servicer.
(d) Any separate trustee or co-trustee may at any time
constitute the Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under
or in respect to this Agreement on its behalf and in its name. If any
separate trustee or co-trustee shall die, become incapable of acting,
resign or be removed, all of its estates, properties, rights, remedies and
trusts shall vest in and be exercised by the Trustee, to the extent
permitted by law, without the appointment of a new or successor trustee.
Section 11.11 Tax Returns. In the event the Trust shall be
required to file tax returns, the Servicer, shall at its expense prepare or
cause to be prepared any tax returns required to be filed by the Trust and,
to the extent possible, shall remit such returns to the Trustee for
signature at least five days before such returns are due to be filed. The
Trustee is hereby authorized to sign any such return on behalf of the
Trust. The Servicer shall prepare or shall cause to be prepared all tax
information required by law to be distributed to Certificateholders and
shall deliver such information to the Trustee at least five days prior to
the date it is required by law to be distributed to Certificateholders. The
Trustee, upon request, will furnish the Servicer with all such information
known to the Trustee as may be reasonably required in connection with the
preparation of all tax returns of the Trust and shall, upon request,
execute such return. In no event shall the Trustee or the Servicer be
liable for any liabilities, costs or expenses of the Trust, the Investor
Certificateholders or the Certificate Owners arising under any tax law,
including without limitation federal, state, local or foreign income or
excise taxes or any other tax imposed on or measured by income (or any
interest or penalty with respect thereto or arising from a failure to
comply therewith).
Section 11.12 Trustee May Enforce Claims Without Possession of
Certificates. All rights of action end claims under this Agreement or any
Series of Certificates may be prosecuted and enforced by the Trustee
without the possession of any of the Certificates or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by
the Trustee shall be brought in its own name as trustee. Any recovery of
judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, be for the ratable benefit of any Series of
Certificateholders in respect of which such judgment has been obtained.
Section 11.13 Suits for Enforcement. If a Servicer Default
shall occur and be continuing, the Trustee, in its discretion may, subject
to the provisions of Section 10.01, proceed to protect and enforce its
rights and the rights of any Series of Certificateholders under this
Agreement by a suit, action or proceeding in equity or at law or otherwise,
whether for the specific performance of any covenant or agreement contained
in this Agreement or in aid of the execution of any power granted in this
Agreement or for the enforcement of any other legal, equitable or other
remedy as the Trustee, being advised by counsel, shall deem most effectual
to protect and enforce any of the rights of the Trustee or any Series of
Certificateholders.
Section 11.14 Rights of Certificateholders to Direct Trustee.
Holders of Investor Certificates evidencing Undivided Interests aggregating
more than 50% of the Aggregate Invested Amount (or, with respect to any
remedy, trust or power that does not relate to all Series, 50% of the
aggregate Invested Amount of the Investor Certificates of all Series to
which such remedy, trust or power relates) shall have the right to direct
the time, method, and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee; provided, however, that, subject to Section 11.01, the Trustee
shall have that the right to decline to follow any such direction if the
Trustee being advised by counsel determines that the action so directed may
not lawfully be taken, or if the Trustee in good faith shall, by a
Responsible Officer or Responsible Officers of the Trustee, determine that
the proceedings so directed would be illegal or involve it in personal
liability or be unduly prejudicial to the rights of Certificateholders not
parties to such direction; and provided further that nothing in this
Agreement shall impair the right of the Trustee to take any action deemed
proper by the Trustee and which is not inconsistent with such direction of
such Holders of Investor Certificates.
Section 11.15 Representations and Warranties of Trustee. The
Trustee represents and warrants that:
(i) the Trustee is a national banking association
organized, existing and authorized to engage in the business of
banking under the laws of the United States;
(ii) the Trustee has full power, authority and right to
execute, deliver and perform this Agreement, and has taken all
necessary action to authorize the execution, delivery and performance
by it of this Agreement; and
(iii) this Agreement has been duly executed and delivered
by the Trustee.
Section 11.16 Maintenance of Office or Agency. The Trustee will
maintain at its expense an office or offices, or agency or agencies, where
notices and demands to or upon the Trustee in respect of the Certificates
and this Agreement may be served. The Trustee initially appoints its
Corporate Trust Office as its office for such purposes. The Trustee will
give prompt written notice to the Servicer and to Certificateholders (or in
the case of Holders of Bearer Certificates, in the manner provided for in
the related Supplement) of any change in the location of the Certificate
Register or any such office or agency.
[End of Article XI]
ARTICLE XII
TERMINATION
Section 12.1 Termination of Trust.
(a) The respective obligations and responsibilities of the
Transferor, the Servicer and the Trustee created hereby (other than the
obligation of the Trustee to make payments to Certificate holders as
hereafter set forth) shall terminate, except with respect to the duties
described in Section 8.04 and 11.05 and subsection 2.04(c) and 12.03(b), on
the Trust Termination Date; provided, however, that the Trust shall not
terminate on the date specified in clause (i) of the definition of "Trust
Termination Date" if each of the Servicer and the Holder of the
Exchangeable Transferor Certificate notify the Trustee in writing, not
later than 5 Business Days preceding such date, that they desire that the
Trust not terminate on such date, which notice (such notice, a "Trust
Extension") shall specify the date on which the Trust shall terminate (such
date, the "Extended Trust Termination Date"); provided, however, that the
Extended Trust Termination Date shall be not later than August 1, 2032. The
Servicer and the Holder of the Exchangeable Transferor Certificate may, on
any date following the Trust Extension, so long as no Series of
Certificates is outstanding, deliver a notice in writing to the Trustee
changing the Extended Trust Termination Date.
(b) In the event that (i) the Trust has not terminated by the
last Distribution Date occurring in the second month preceding the Trust
Termination Date, and (ii) the Invested Amount of any Series (after giving
effect to all transfers, withdrawals, deposits and drawings to occur on
such date and the payment of principal on any Series of Certificates to be
made on the related Distribution Date during such month pursuant to Article
IV) would be greater than zero, the Servicer shall sell within 30 days
after such Transfer Date all the Receivables. The Servicer shall notify
each Enhancement Provider of the proposed sale of the Receivables and shall
provide each Enhancement Provider an opportunity to bid on the Receivables.
The Transferor shall have the right of first refusal to purchase the
Receivables on terms equivalent to the best purchase offer as determined by
the Trustee in its sole discretion. The proceeds of any such sale shall be
treated as Collections on the Receivables and shall be allocated and
deposited in accordance with Article IV; provided, however, that the
Trustee shall determine conclusively in its sole discretion the amount of
such proceeds which are allocable to Finance Charge Receivables and the
amount of such proceeds which are allocable to Principal Receivables.
During such thirty-day period, the Servicer shall continue to collect
payments on the Receivables and allocate and deposit such payments in
accordance with the provisions of Article IV.
(c) All principal or interest with respect to any Series of
Investor Certificates shall be due and payable no later than the Series
Termination Date with respect to such Series. Unless otherwise provided in
a Supplement, in the event that the Invested Amount of any Series of
Certificates is greater than zero on its Series Termination Date, after
giving effect to all transfers, withdrawals, deposits and drawings to occur
on such date and the payment of principal to be made on such Series on such
date, the Trustee will sell or cause to be sold, and pay the proceeds to
all Certificateholders of such Series pro rata in final payment of all
principal of and accrued interest on such Series of Certificates, an amount
of Principal Receivables and the related Finance Charge Receivables (or
interests therein) up to 110% of the Invested Amount of such Series at the
close of business on such date (but not more than an amount of Receivables
equal to the sum of (1) the product of (A) the Transferor Percentage, (B)
the aggregate outstanding Principal Receivables and (C) a fraction the
numerator of which is the related Investor Percentage of Collections of
Finance Charge Receivables and the denominator of which is the sum of all
Investor Percentages with respect to Collections of Finance Charge
Receivables of all Series outstanding and (2) the Invested Amount of such
Series). The Trustee shall notify each Enhancement Provider of the proposed
sale of such Receivables and shall provide each Enhancement Provider an
opportunity to bid on such Receivables. The Transferor shall be permitted
to purchase such Receivables in such case and shall have a right of first
refusal with respect thereto. Any proceeds of such sale in excess of such
principal and interest paid shall be paid to the Holder of the Exchangeable
Transferor Certificate. Upon such Series Termination Date with respect to
the applicable Series of Certificates, final payment of all amounts
allocable to any Investor Certificates of such Series shall be made in the
manner provided in Section 12.03.
Section 12.2 Optional Purchase. (a) If so provided in any
Supplement, the Transferor may, but shall not be obligated to, cause a
final distribution to be made in respect of the related Series of
Certificates on a Distribution Date specified in such Supplement by
depositing into the Distribution Account or the applicable Series Account,
not later than the Transfer Date preceding such Distribution Date, for
application in accordance with Section 12.03, the amount specified in such
Supplement; provided, however that if the short-term deposits or long-term
unsecured debt obligations of the Transferor (or, if neither such deposits
nor such obligations of the Transferor are rated by Moody's, then the
short-term deposits or long-term unsecured debt obligations of the holding
company of the Transferor so long as such holding company is First USA,
Inc.) are not rated at the time of such purchase of Receivables at least
P-3 or Baa-3, respectively, by Moody's, no such event shall occur unless
the Transferor shall deliver an Opinion of Counsel reasonably acceptable to
the Trustee that such deposit into the Distribution Account or any Series
Account as provided in the related Supplement would not constitute a
fraudulent conveyance of the Transferor.
(b) The amount deposited pursuant to subsection 12.02(a) shall
be paid to the Investor Certificateholders of the related Series pursuant
to Section 12.03 on the related Distribution Date following the date of
such deposit. All Certificates of a Series which are purchased by the
Transferor pursuant to subsection 12.02(a) shall be delivered by the
Transferor upon such purchase to, and be canceled by, the Transfer Agent
and Registrar and be disposed of in a manner satisfactory to the Trustee
and the Transferor. The Invested Amount of each Series which is purchased
by the Transferor pursuant to subsection 12.02(a) shall, for the purposes
of the definition of "Transferor Interest," be deemed to be equal to zero
on the Distribution Date following the making of the deposit, and the
Transferor Interest shall thereupon be deemed to have been increased by the
Invested Amount of such Series.
Section 12.3 Final Payment with Respect to any Series.
(a) Written notice of any termination, specifying the
Distribution Date upon which the Investor Certificateholders of any Series
may surrender their Certificates for payment of the final distribution with
respect to such Series and cancellation, shall be given (subject to at
least two Business Days' prior notice from the Servicer to the Trustee) by
the Trustee to Investor Certificateholders of such Series mailed not later
than the fifth day of the month of such final distribution (or in the
manner provided by the Supplement relating to such Series) specifying (i)
the Distribution Date (which shall be the Distribution Date in the month
(x) in which the deposit is made pursuant to subsection 2.04(e), 9.02(a),
10.02(a), or subsection 12.02(a) of the Agreement or such other section as
may be specified in the related Supplement, or (y) in which the related
Series Termination Date occurs) upon which final payment of such Investor
Certificates will be made upon presentation and surrender of such Investor
Certificates at the office or offices therein designated (which, in the
case of Bearer Certificates, shall be outside the United States), (ii) the
amount of any such final payment and (iii) that the Record Date otherwise
applicable to such Distribution Date is not applicable, payments being made
only upon presentation and surrender of the Investor Certificates at the
office or offices therein specified. The Servicer's notice to the Trustee
in accordance with the preceding sentence shall be accompanied by an
Officers' Certificate setting forth the information specified in Article V
of this Agreement covering the period during the then current calendar year
through the date of such notice and setting forth the date of such final
distribution. The Trustee shall give such notice to the Transfer Agent and
Registrar and the Paying Agent at the time such notice is given to such
Investor Certificateholders.
(b) Notwithstanding the termination of the Trust pursuant to
subsection 12.01(a) or the occurrence of the Series Termination Date with
respect to any Series, all funds then on deposit in the Finance Charge
Account, the Principal Account, the Distribution Account or any Series
Account applicable to the related Series shall continue to be held in trust
for the benefit of the Certificateholders of the related Series and the
Paying Agent or the Trustee shall pay such funds to the Certificateholders
of the related Series upon surrender of their Certificates (which
surrenders and payments, in the case of Bearer Certificates, shall be made
only outside the United States). In the event that all of the Investor
Certificateholders of any Series shall not surrender their Certificates for
cancellation within six months after the date specified in the
above-mentioned written notice, the Trustee shall give a second written
notice (or, in the case of Bearer Certificates, publication notice) to the
remaining Investor Certificateholders of such Series upon receipt of the
appropriate records from the Transfer Agent and Registrar to surrender
their Certificates for cancellation and receive the final distribution with
respect thereto. If within one and one half years after the second notice
with respect to a Series, all the Investor Certificates of such Series
shall not have been surrendered for cancellation, the Trustee may take
appropriate steps or may appoint an agent to take appropriate steps, to
contact the remaining Investor Certificateholders of such Series concerning
surrender of their Certificates, and the cost thereof shall be paid out of
the funds in the Distribution Account or any Series Account held for the
benefit of such Investor Certificateholders. The Trustee and the Paying
Agent shall pay to the Transferor upon request any monies held by them for
the payment of principal or interest which remains unclaimed for two years.
After payment to the Transferor, Investor Certificateholders entitled to
the money must look to the Transferor for payment as general creditors
unless an applicable abandoned property law designates another Person.
(c) All Certificates surrendered for payment of the final
distribution with respect to such Certificates and cancellation shall be
canceled by the Transfer Agent and Registrar and be disposed of in a manner
satisfactory to the Trustee and the Transferor.
Section 12.4 Termination Rights of Holder of Exchangeable
Transferor Certificate. Upon the termination of the Trust pursuant to
Section 12.01, and after payment of all amounts due hereunder on or prior
to such termination and the surrender of the Exchangeable Transferor
Certificate, the Trustee shall execute a written reconveyance substantially
in the form of Exhibit H pursuant to which it shall reconvey to the Holder
of the Exchangeable Transferor Certificate (without recourse,
representation or warranty) all right, title and interest of the Trust in
the Receivables, whether then existing or thereafter created, all moneys
due or to become due with respect thereto (including all accrued interest
theretofore posted as Finance Charge Receivables) and all proceeds thereof
and Insurance Proceeds relating thereto and Interchange (if any) allocable
to the Trust pursuant to any Supplement, except for amounts held by the
Trustee pursuant to subsection 12.03(b). The Trustee shall execute and
deliver such instruments of transfer and assignment, in each case without
recourse, as shall be reasonably requested by the Holder of the
Exchangeable Transferor Certificate to vest in such Holder all right, title
and interest which the Trust had in the Receivables (and any costs or
expenses incurred by the Trustee in connection with such reconveyances
shall be reimbursed by the Servicer).
[End Of Article XII]
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.1 Amendment.
(a) This Agreement or any Supplement may be amended in writing
from time to time by the Servicer, the Transferor and the Trustee, without
the consent of any of Certificateholders; provided, that such action shall
not, as evidenced by an Opinion of Counsel for the Transferor addressed and
delivered to the Trustee, adversely affect in any material respect the
interests of any Investor Certificateholder; provided further, that each
Rating Agency shall have notified the Transferor, the Servicer and the
Trustee in writing that such action will not result in a reduction or
withdrawal of the rating of any outstanding Series or Class to which it is
a Rating Agency and provided, further, that the Trustee may, but shall not
be obligated to, enter into any such amendment which materially affects the
Trustee's rights, duties or immunities under this Agreement or otherwise.
(b) This Agreement or any Supplement may also be amended in
writing from time to time by the Servicer, the Transferor and the Trustee
with the consent of the Holders of Investor Certificates evidencing
Undivided Interests aggregating not less than 66-2/3% of the Invested
Amount of each outstanding Series adversely affected by such amendment for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or any Supplement or
modifying in any manner the rights of Investor Certificateholders of any
Series then issued and outstanding; provided, however, that no such
amendment shall (i) reduce in any manner the amount of, or delay the timing
of, distributions which are required to be made on any Investor
Certificates of such Series without the consent of each Investor
Certificateholders of such Series, (ii) change the definition of or the
manner of calculating the Invested Amount, the Investor Percentage or the
Investor Default Amount of such Series without the consent of each Investor
Certificateholder of such Series or (iii) reduce the aforesaid percentage
required to consent to any such amendment, without the consent of each
Investor Certificateholder of all Series adversely affected. The Trustee
may, but shall not be obligated to, enter into any such amendment which
affects the Trustee's rights, duties or immunities under this Agreement or
otherwise.
(c) Notwithstanding anything in this Section 13.01 to the
contrary, the Series Supplement with respect to any Series may be amended
on the items and in accordance with the procedures provided in such Series
Supplement.
(d) Promptly after the execution of any such amendment (other
than an amendment pursuant to paragraph (a)), the Trustee shall furnish
notification of the substance of such amendment to each Investor
Certificateholder of each Series adversely affected and ten Business Days
prior to the proposed effective date for such amendment the Trustee shall
furnish notification of the substance of such amendment to each Rating
Agency providing a rating for such Series.
(e) It shall not be necessary for the consent of Investor
Certificateholders under this Section 13.01 to approve the particular form
of any proposed amendment, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents and of
evidencing the authorization of the execution thereof by Investor
Certificateholders shall be subject to such reasonable requirements as the
Trustee may prescribe.
(f) Any Series Supplement executed and delivered pursuant to
Section 6.09 and any amendments regarding the addition to or removal of
Receivables from the Trust as provided in Sections 2.06 and 2.07, executed
in accordance with the provisions hereof, shall not be considered
amendments to this Agreement for the purpose of subsections 13.01(a) and
(b).
(g) In connection with any amendment, the Trustee may request
an Opinion of counsel from the Transferor or Servicer to the effect that
the amendment complies with all requirements of this Agreement.
Section 13.2 Protection of Right Title and Interest to Trust.
(a) The Servicer shall cause this Agreement, all amendments
hereto and/or all financing statements and continuation statements and any
other necessary documents covering the Certificateholders and the Trustee's
right, title and interest to the Trust to be promptly recorded, registered
and filed, and at all times to be kept recorded, registered and filed, all
in such manner and in such places as may be required by law fully to
preserve and protect the right, title and interest of the
Certificateholders or the Trustee, as the case may be, hereunder to all
property comprising the Trust. The Servicer shall deliver to the Trustee
file-stamped copies of, or filing receipts for, any document recorded,
registered or filed as provided above, as soon as available following such
recording, registration or filing. The Transferor shall cooperate fully
with the Servicer in connection with the obligations set forth above and
will execute any and all documents reasonably required to fulfill the
intent of this subsection 13.02(a).
(b) Within 30 days after the Transferor makes any change in its
name, identity or corporate structure which would make any financing
statement or continuation statement filed in accordance with paragraph (a)
above materially misleading within the meaning of Section 9-402(7) of the
UCC as in effect in the State of Delaware, the Transferor shall give the
Trustee notice of any such change and shall file such financing statements
or amendments as may be necessary to continue the perfection of the Trust's
security interest in the Receivables and the proceeds thereof.
(c) Each of the Transferor and the Servicer will give the
Trustee prompt written notice of any relocation of any office from which it
services Receivables or keeps records concerning the Receivables or of its
principal executive office and whether, as a result of such relocation, the
applicable provisions of the UCC would require the filing of any amendment
of any previously filed financing or continuation statement or of any new
financing statement and shall file such financing statements or amendments
as may be necessary to continue the perfection of the Trust's security
interest in the Receivables and the proceeds thereof. Each of the
Transferor and the Servicer will at all times maintain each office from
which it services Receivables and its principal executive office within the
United States of America.
(d) The Servicer will deliver to the Trustee: (i) upon each date
that any Additional Accounts are to be included in the Accounts pursuant to
Section 2.06, an Opinion of Counsel substantially in the form of Exhibit E;
and (ii) on or before March 31 of each year, beginning withMarch 31, 1992,
an Opinion of Counsel, substantially in the form of Exhibit F.
Section 13.3 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Investor Certificateholder
shall not operate to terminate this Agreement or the Trust, nor shall such
death or incapacity entitle such Certificateholder's legal representatives
or heirs to claim an accounting or to take any action or commence any
proceeding in any court for a partition or winding up of the Trust, nor
otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
(b) No Investor Certificateholder shall have any right to vote
(except with respect to the Investor Certificateholders as provided in
Section 13.01 hereof) or in any manner otherwise control the operation and
management of the Trust, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from
time to time as members of an association; nor shall any Investor
Certificateholder be under any liability to any third person by reason of
any action taken by the parties to this Agreement pursuant to any provision
hereof.
(c) No Certificateholder shall have any right by virtue of any
provisions of this Agreement to institute any suit, action or proceeding in
city or at law upon or under or with respect to this Agreement, unless such
Certificateholder previously shall have given written notice to the
Trustee, and unless the Holders of Certificates evidencing Undivided
Interests aggregating more than 50% of the Invested Amount of any Series
which may be adversely affected but for the institution of such suit,
action or proceeding, shall have made written request upon the Trustee to
institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity
as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt
of such notice, request and offer of indemnity, shall have neglected or
refused to institute any such action, suit or proceeding; it being
understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that
no one or more Certificateholders shall have the right in any manner
whatever by virtue or by availing itself or themselves of any provisions of
this Agreement to affect, disturb or prejudice the rights of the
Certificateholders of any other of the Certificates, or to obtain or seek
to obtain priority over or preference to any other such Certificateholder,
or to enforce any right under this Agreement, except in the manner herein
provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of
this Section 13.03, each and every Certificateholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
Section 13.4 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT REFERENCE TO
ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 13.5 Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given
if personally delivered at, sent by facsimile to, sent by courier at or
mailed by registered mail, return receipt requested, to (a) in the case of
the Transferor and the Servicer, to 201 North Walnut Street, Wilmington,
Delaware 19801, Attention: George Hubley, with a copy to First USA, Inc.,
2001 Bryan Tower, 38th Floor, Dallas, Texas 75201, Attention Philip Taken,
General Counsel, (b) in the case of the Trustee, to the Corporate Trust
Office (c) in the case of the Enhancement Provider for a particular Series,
the address, if any, specified in the Supplement relating to such Series
and (d) in the case of the Rating Agency for a particular Series, the
address, if any, specified in the Supplement relating to such Series; or,
as to each party, at such other address as shall be designated by such
party in a written notice to each other party. Unless otherwise provided
with respect to any Series in the related Supplement any notice required or
permitted to be mailed to a Certificateholder shall be given by first class
mail, postage prepaid, at the address of such Certificateholder as shown in
the Certificate Register, or with respect to any notice required or
permitted to be made to the Holders of Bearer Certificates, by publication
in the manner provided in the related Supplement. If and so long as any
Series or Class is listed on the Luxembourg Stock Exchange and such
Exchange shall so require, any Notice to Investor Certificateholders shall
be published in an authorized newspaper of general circulation in
Luxembourg within the time period prescribed in this Agreement. Any notice
so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the
Certificateholder receives such notice.
Section 13.6 Severability of Provisions. If any one or more of
the covenants, agreements, provisions or terms of this Agreement shall for
any reason whatsoever be held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way
affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or rights of the Certificateholders
thereof.
Section 13.7 Assignment. Notwithstanding anything to the
contrary contained herein, except as provided in Section 8.02, this
Agreement may not be assigned by the Servicer without the prior consent of
Holders of Investor Certificates evidencing Undivided Interests aggregating
not less than 66 2/3% of the Invested Amount of each Series on a Series by
Series basis.
Section 13.8 Certificates Non-Assessable and Fully Paid. It is
the intention of the parties to this Agreement that the Certificateholders
shall not be personally liable for obligations of the Trust, that the
Undivided Interests represented by the Certificates shall be non-assessable
for any losses or expenses of the Trust or for any reason whatsoever, and
that Certificates upon authentication thereof by the Trustee pursuant to
Sections 2.01 and 6.02 are and shall be deemed fully paid.
Section 13.9 Further Assurances. The Transferor and the
Servicer agree to do and perform, from time to time, any and all acts and
to execute any and all further instruments required or reasonably requested
by the Trustee more fully to effect the purposes of this Agreement,
including, without limitation, the execution of any financing statements or
continuation statements relating to the Receivables for filing under the
provisions of the UCC of any applicable jurisdiction.
Section 13.10 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Trustee, any
Enhancement Provider or the Investor Certificateholders, any right, remedy,
power or privilege hereunder, shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of
any other right, remedy, power or privilege. The rights, remedies, powers
and privileges herein provided are cumulative and not exhaustive of any
rights, remedies, powers and privileges provided by law.
Section 13.11 Counterparts. This Agreement may be executed in
two or more counterparts (and by different parties on separate
counterparts), each of which shall be an original, but all of which
together shall constitute one and the same instrument.
Section 13.12 Third-Party Beneficiaries. This Agreement will
inure to the benefit of and be binding upon the parties hereto, the
Certificateholders and, to the extent provided in the related Supplement,
to the Enhancement Provider named therein, and their respective successors
and permitted assigns. Except as otherwise provided in this Article XIII,
no other Person will have any right or obligation hereunder.
Section 13.13 Actions by Certificateholders.
(a) Wherever in this Agreement a provision is made that an
action may be taken or a notice, demand or instruction given by Investor
Certificateholders, such action, notice or instruction may be taken or
given by any Investor Certificateholder, unless such provision requires a
specific percentage of Investor Certificateholders.
(b) Any request, demand, authorization, direction, notice,
consent, waiver or other act by a Certificateholder shall bind such
Certificateholder and every subsequent holder of such Certificate issued
upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done or omitted to be done by the
Trustee or the Servicer in reliance thereon, whether or not notation of
such action is made upon such Certificate.
Section 13.14 Rule 144A Information. For so long as any of
the Investor Certificates of any Series or any Class are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities Act,
each of the Transferor, the Servicer, the Trustee and the Enhancement
Provider for such Series agree to cooperate with each other to provide to
any Investor Certificateholders of such Series or Class and to any
prospective purchaser of Certificates designated by such an Investor
Certificateholder upon the request of such Investor Certificateholder or
prospective purchaser, any information required to be provided to such
holder or prospective purchaser to satisfy the condition set forth in Rule
144A(d)(4) under the Securities Act.
Section 13.15 Merger and Integration. Except as specifically
stated otherwise herein, this Agreement sets forth the entire understanding
of the parties relating to the subject matter hereof, and all prior
understandings, written or oral, are superseded by this Agreement. This
Agreement may not be modified, amended, waived or supplemented except as
provided herein.
Section 13.16 Heading. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation
of any provision hereof.
[End of Article XIII]
IN WITNESS WHEREOF, the Transferor, the Servicer and the
Trustee have caused this Agreement to be duly executed by their respective
officers as of the day and year first above written.
FIRST USA BANK
Transferor and Servicer
By: /s/ George Hubley
__________________________________
Name: George Hubley
Title: Senior Vice President
Finance & Accounting
NATIONSBANK OF VIRGINIA, N.A.,
Trustee
By: /s/ John A. Dracos, Jr.
___________________________________
Name: John A. Dracos, Jr.
Title: Trust Officer
EXHIBIT A
FORM OF EXCHANGEABLE TRANSFEROR CERTIFICATE
No. 1 One Unit
FIRST USA CREDIT CARD MASTER TRUST
ASSET BACKED CERTIFICATE
THIS CERTIFICATE WAS ISSUED PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY BE SOLD
ONLY PURSUANT TO A REGISTRATION STATEMENT EFFECTIVE UNDER THE ACT OR AN
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE ACT. IN ADDITION, THE
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO RESTRICTIONS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. A COPY OF THE POOLING
AND SERVICING AGREEMENT WILL BE FURNISHED TO THE HOLDER OF THIS CERTIFICATE
BY THE TRUSTEE UPON WRITTEN REQUEST.
This Certificate represents an
Undivided Interest in the
First USA Credit Card Master Trust
Evidencing an Undivided Interest in a trust, the corpus of which consists
of a portfolio of VISA and MasterCard* credit card receivables generated or
acquired by First USA Bank and other assets and interests constituting the
Trust under the Pooling and Servicing Agreement described below.
(Not an interest in or a recourse obligation of
First USA Bank or any Affiliate thereof.)
- --------------
* MasterCard and VISA are registered trademarks of MsterCard
International Incorporated and of VISA USA, Inc., respectively.
This certifies that FIRST USA BANK (the "Holder") is the
registered owner of an undivided interest in a trust (the "Trust"), the
corpus of which consists of a portfolio of receivables (the "Receivables")
now existing or hereafter created under selected VISA and Mastercard credit
card accounts (the "Accounts") of First USA Bank (the "Transferor"), a
Delaware chartered banking corporation organized under the laws of the
State of Delaware, all monies due in payment of the Receivables, all
proceeds of such Receivables and Insurance Proceeds relating to the
Receivables, and the other assets and interests constituting the Trust
pursuant to a Pooling and Servicing Agreement dated as of September 1,
1992, as supplemented by any Supplement relating to a Series of Investor
Certificates (the "Pooling and Servicing Agreement"), by and between First
USA Bank, as Transferor and Servicer, and NationsBank of Virginia, N.A., as
Trustee (the "Trustee"), a summary of certain of the pertinent provisions
of which is set forth hereinbelow.
To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is issued under and is subject to the terms, provisions
and conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Holder by virtue of
the acceptance hereof assents and by which the Holder is bound.
This Certificate has not been registered or qualified under the
Securities Act of 1933, as amended, or any state securities law. No sale,
transfer or other disposition of this Certificate shall be permitted other
than in accordance with the provisions of Section 6.03, 6.09 or 7.02 of the
Pooling and Servicing Agreement.
The Receivables consist of Principal Receivables which arise
generally from the purchase of goods and services and of amounts advanced
to cardholders as cash advances, and of Finance Charge Receivables which
arise generally from Periodic Finance Charges and other fees and charges,
as more fully specified in the Pooling and Servicing Agreement.
This Certificate is the Exchangeable Transferor Certificate
(the "Certificate"), which represents an Undivided Interest in the Trust,
including the right to receive the Collections and other accounts at the
times and in the amounts specified in the Pooling and Servicing Agreement
to be paid to the Holder of the Exchangeable Transferor Certificate. The
aggregate interest represented by this Certificate at any time in the
Principal Receivables in the Trust shall not exceed the Transferor Interest
at such time. In addition to this Certificate, Series of Investor
Certificates will be issued to investors pursuant to the Pooling and
Servicing Agreement, each of which will represent an Undivided Interest in
the Trust. This Certificate shall not represent any interest in the
Investor Accounts, any Series Accounts or any Enhancement, except to the
extent provided in the Pooling and Servicing Agreement. The Transferor
Interest on any date of determination will be an amount equal to the
aggregate amount of Principal Receivables at the end of the day immediately
prior to such date of determination minus the Aggregate Invested Amount at
the end of such day.
The Servicer shall deposit all Collections in the Collection
Account as promptly as possible after the Date of Processing of such
Collections, but in no event later than the second Business Day following
such Date of Processing (except as provided below and except as provided in
any Supplement to the Pooling and Servicing Agreement). Unless otherwise
stated in any Supplement, throughout the existence of the Trust, the
Servicer shall allocate to the Holder of the Certificate an amount equal to
the product of (A) the Transferor Percentage and (B) the aggregate amount
of such Collections allocated to Principal Receivables and Finance Charge
Receivables, respectively, in respect of each Monthly Period.
Notwithstanding the first sentence of this paragraph, the Servicer need not
deposit this amount or any other amounts so allocated to the Certificate
pursuant to the Pooling and Servicing Agreement into the Collection Account
and shall pay, or be deemed to pay, such amounts as collected to the Holder
of the Certificate.
First USA Bank, as Servicer, is entitled to receive as
servicing compensation a monthly servicing fee. The portion of the
servicing fee which will be allocable to the Holder of the Certificate
pursuant to the Pooling and Servicing Agreement will be payable by the
Holder of the Certificate and neither the Trust nor the Trustee or the
Investor Certificateholders will have any obligation to pay such portion of
the servicing fee.
This Certificate does not represent a recourse obligation of,
or any interest in, the Transferor or the Servicer, and neither the
Certificates nor the Accounts or Receivables are insured or guaranteed by
the Federal Deposit Insurance Corporation or any other governmental agency.
This Certificate is limited in right of payment to certain Collections
respecting the Receivables, all as more specifically set forth hereinabove
and in the Pooling and Servicing Agreement.
Upon the termination of the Trust pursuant to Section 12.01 of
the Pooling and Servicing Agreement, the Trustee shall assign and convey to
the Holder of the Certificate (without recourse, representation or
warranty) all right, title and interest of the Trust in the Receivables,
whether then existing or thereafter created, and all proceeds thereof and
Insurance Proceeds relating thereto. The Trustee shall execute and deliver
such instruments of transfer and assignment, in each case without recourse,
as shall be reasonably requested by the Holder of the Certificate to vest
in such Holder all right, title and interest which the Trustee had in the
Receivables.
Unless the certificate of authentication hereon has been
executed by or on behalf of the Trustee, by manual signature, this
Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, First USA Bank has caused this Certificate
to be duly executed under its official seal.
By:____________________________
Senior Vice President
[SEAL]
Attested to:
By:__________________________
Date:
CERTIFICATE OF AUTHENTICATION
This is the Exchangeable Transferor Certificate referred to in
the within-mentioned Pooling and Servicing Agreement.
NATIONSBANK OF VIRIGINA, N.A.,
as Trustee
By:_______________________________
Authorized Signatory
EXHIBIT B
FORM OF ASSIGNMENT OF RECEIVABLES IN ADDITIONAL ACCOUNTS
ASSIGNMENT No. __ OF RECEIVABLES IN ADDITIONAL ACCOUNTS, dated
as of ________ __, ____ by and between FIRST USA BANK, a Delaware chartered
banking corporation organized under the laws of the State of Delaware (the
"Bank"), to NATIONSBANK OF VIRGINIA, N.A., a national banking organized and
existing under the laws of the United States (the "Trustee") pursuant to
the Pooling and Servicing Agreement referred to below.
W I T N E S S E T H:
WHEREAS, the Bank and the Trustee are parties to the Pooling
and Servicing Agreement, dated as of September 1, 1992 (hereinafter as such
agreement may have been, or may from time to time be, amended, supplemented
or otherwise modified, the "Pooling and Servicing Agreement");
WHEREAS, pursuant to the Pooling and Servicing Agreement, the
Bank wishes to designate Additional Accounts of the Bank to be included as
Accounts and to convey the Receivables of such Additional Accounts, whether
now existing or hereafter created, to the Trust as part of the corpus of
the Trust (as each such term is defined in the Pooling and Servicing
Agreement); and
WHEREAS, the Trustee is willing to accept such designation and
conveyance subject to the terms and conditions hereof;
NOW, THEREFORE, the Bank and the Trustee hereby agree as
follows:
1. Defined Terms. All terms defined in the Pooling and
Servicing Agreement and used herein shall have such defined meanings
when used herein, unless otherwise defined herein.
"Addition Date" shall mean, with respect to the
Additional Accounts designated hereby, ____________, ____.
"Notice Date" shall mean, with respect to the Additional
Accounts designated hereby, _________, ______ (which shall be a date
on or prior to the fifth Business Day prior to the Addition Date with
respect to additions pursuant to subsection 2.06(a) of the Pooling
and Servicing Agreement and the tenth Business Day prior to the
Addition Date with respect to additions pursuant to subsection2.06(b)
of the Pooling and Servicing Agreement).
2. Designation of Additional Accounts. The Bank shall
deliver to the Trustee not later than five Business Days after the
Addition Date, a computer file or microfiche list containing a true
and complete list of each Mastercard and VISA account which as of the
Addition Date shall be deemed to be an Additional Account, such
accounts being identified by account number and by the amount of
Receivables in such accounts as of the close of business on the
Addition Date. Such list shall be delivered five Business Days after
the date of this Agreement and shall be marked as Schedule l to this
Assignment and, as of the Addition Date, shall be incorporated into
and made a part of this Assignment.
3. Conveyance of Receivables.
The Bank does hereby transfer, assign, set-over and otherwise
convey to the Trust for the benefit of the Certificateholders, without
recourse on and after the Addition Date, all right, title and interest of
the Bank in and to the Receivables now existing and hereafter created in
the Additional Accounts designated hereby, all monies due or to become due
with respect thereto (including all Finance Charge Receivables) and all
proceeds of such Receivables and Insurance Proceeds relating thereto.
(a) In connection with such transfer, the Bank
agrees to record and file, at its own expense, a financing
statement with respect to the Receivables now existing and
hereafter created in the Additional Accounts designated hereby
(which may be a single financing statement with respect to all
such Receivables) for the transfer of accounts as defined in
Section 9.106 of the UCC as in effect in the State of Delaware
meeting the requirements of applicable state law in such manner
and such jurisdictions as are necessary to perfect the
assignment of such Receivables to the Trust, and to deliver a
file-stamped copy of such financing statement or other evidence
of such filing (which may, for purposes of this Section 3,
consist of telephone confirmation of such filing) to the
Trustee on or prior to the date of this Assignment.
(b) In connection with such transfer, the Bank
further agrees, at its own expense, on or prior to the date of
this Assignment to indicate in its computer files that
Receivables created in connection with the Additional Accounts
designated hereby have been transferred to the Trust pursuant
to this Assignment for the benefit of the Certificateholders.
4. Acceptance by Trustee. The Trustee hereby
acknowledges its acceptance on behalf of the Trust for the benefit of
the Certificateholders of all right, title and interest previously
held by the Bank in and to the Receivables now existing and hereafter
created, and declares that it shall maintain such right, title and
interest, upon the trust herein set forth, for the benefit of all
Certificateholders.
5. Representations and Warranties of the Bank. The Bank
hereby represents and warrants to the Trust as of the Addition Date:
(a) Legal Valid and Binding Obligation. This
Assignment constitutes a legal, valid and binding obligation of
the Bank enforceable against the Bank in accordance with its
terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect affecting the
enforcement of creditors' rights in general and the rights of
creditors of national banking associations and except as such
enforceability may be limited by general principles of equity
(whether considered in a suit at law or in equity).
(b) Eligibility of Accounts and Receivables. Each
Additional Account designated hereby is an Eligible Account and
each Receivable in such Additional Account is an Eligible
Receivable.
(c) Selection Procedures. No selection procedures
believed by the Bank to be materially adverse to the interests
of the Investor Certificateholders were utilized in selecting
the Additional Accounts designated hereby from the available
Eligible Accounts in the Bank Portfolio.
(d) Insolvency. The Bank is not insolvent and,
after giving effect to the conveyance set forth in Section 3 of
this Assignment, will not be insolvent.
(e) Security Interest. This Assignment constitutes
either (i) a valid transfer and assignment to the Trust of all
right, title and interest of the Bank in and to Receivables now
existing and hereafter created in the Additional Accounts
designated hereby, and all proceeds (as defined in the UCC as
in effect in the State of Delaware) of such Receivables and
Insurance Proceeds relating thereto, and such Receivables and
any proceeds thereof and Insurance Proceeds relating thereto
will be held by the Trust free and clear of any Lien of any
Person claiming through or under the Bank or any of its
Affiliates except for (x) Liens permitted under subsection
2.05(b) of the Pooling and Servicing Agreement, (y) the
interest of the Holder of the Exchangeable Transferor
Certificate and (z) the Bank's right to receive interest
accruing on, and investment earnings in respect of, the Finance
Charge Account and the Principal Account as provided in the
Pooling and Servicing Agreement; or (ii) it constitutes a grant
of a security interest (as defined in the UCC as in effect in
the State of Delaware) in such property to the Trust, which is
enforceable with respect to the existing Receivables of the
Additional Accounts designated hereby, the proceeds (as defined
in the UCC as in effect in the State of Delaware) thereof and
Insurance Proceeds relating thereto upon the conveyance of such
Receivables to the Trust, and which will be enforceable with
respect to the Receivables thereafter created in respect of
Additional Accounts designated hereby, the proceeds (as defined
in the UCC as in effect in the State of Delaware) thereof and
Insurance Proceeds relating thereto, upon such creation; and
(iii) if this Assignment constitutes the grant of a security
interest to the Trust in such property, upon the filing of a
financing statement described in Section 3 of this Assignment
with respect to the Additional Accounts designated hereby and
in the case of the Receivables of such Additional Accounts
thereafter created and the proceeds (as defined in the UCC as
in effect in the State of Delaware) thereof, and Insurance
Proceeds relating to such Receivables, upon such creation, the
Trust shall have a first priority perfected security interest
in ouch property, except for Liens permitted under subsection
2.05(b) of the Pooling and Servicing Agreement.
6. Conditions Precedent. The acceptance by the Trustee
set forth in Section 4 and the amendment of the Pooling and Servicing
Agreement set forth in Section 7 are subject to the satisfaction, on
or prior to the Addition Date, of the following conditions precedent:
(a) Officer's Certificate. The Bank shall have
delivered to the Trustee a certificate of a Vice President or
more senior officer substantially in the for: of Schedule 2
hereto, certifying that (i) all requirements set forth in
Section 2.06 of the Pooling and Servicing Agreement for
designating Additional Accounts and conveying the Principal
Receivables of such Accounts, whether now existing or hereafter
created, have been satisfied and (ii) each of the
representations and warranties made by the Bank in Section 5 is
true and correct as of the Addition Date. The Trustee may
conclusively rely on such Officer's Certificate, shall have no
duty to make inquiries with regard to the matters set forth
therein, end shall incur no liability In so relying.
(b) Opinion of Counsel. The Bank shall have
delivered to the Trustee en Opinion of Counsel with respect to
the Additional Accounts designated hereby substantially in the
form of Exhibit E to the Pooling and Servicing Agreement.
(c) Additional Information. The Bank shall have
delivered to the Trustee such information as was reasonably
requested by the Trustee to satisfy itself as to the accuracy
of the representation and warranty set forth in subsection 5(d)
to this Agreement.
7. Amendment of the Pooling and Servicing Agreement. The
Pooling and Servicing Agreement is hereby amended to provide that all
references therein to the "Pooling and Servicing Agreement," to "this
Agreement" and "herein" shall be deemed from and after the Addition
Date to be a dual reference to the Pooling and Servicing Agreement as
supplemented by this Assignment. Except as expressly amended hereby,
all of the representations, warranties, terms, covenants and
conditions of the Pooling and Servicing Agreement shall remain
unamended and shall continue to be, and shall remain, in full force
and effect in accordance with its terms and except as expressly
provided herein shall not constitute or be deemed to constitute a
waiver of compliance with or a consent to noncompliance with any term
or provision of the Pooling and Servicing Agreement.
8. Counterparts. This Assignment may be executed in two
or more counterparts (and by different parties on separate
counterparts), each of which shall be an original, but all of which
together shall constitute one and the same instrument.
9. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE,
WITHOUT REGARD TO ITS CONFLICT OF LAW PROVISIONS.
IN WITNESS WHEREOF, the undersigned have caused this Assignment
of Receivables in Additional Accounts to be duly executed and delivered by
their respective duly authorized officers on the day and year first above
written.
FIRST USA BANK,
By:________________________________
Name:
Title
NATIONSBANK OF VIRGINIA, N.A.
Trustee
By:________________________________
Name:
Title:
Schedule 1
to Assignment of
Receivables in
Additional Accounts
ADDITIONAL ACCOUNTS
Schedule 2
to Assignment of
Receivables in
Additional Acccounts
First USA Bank,
First USA Credit Card Master Trust
Officer's Certificate
____________________, a duly authorized officer of First USA
Bank, a Delaware chartered banking corporation (the "Bank"), hereby
certifies and acknowledges on behalf of the Bank that to the best of his
knowledge the following statements are true on ______, ____, (the "Addition
Date"), and acknowledges on behalf of the Bank that this Officer's
Certificate will be relied upon by ______________ as Trustee (the
"Trustee") of the First USA Credit Card Master Trust in connection with the
Trustee entering into Assignment No. of Receivables in Additional Accounts,
dated as of the Addition Date (the "Assignment"), by and between the Bank
and the Trustee, in connection with the Pooling and Servicing Agreement,
dated as of September 1, 1992, as heretofore supplemented and amended (the
"Pooling and Servicing Agreement") pursuant to which the Bank, as
Transferor and Servicer, and the Trustee are parties. The undersigned
hereby certifies and acknowledges on behalf of the Bank that:
(a) On or prior to the Addition Date, the Bank has delivered to
the Trustee the Assignment (including on acceptance by the Trustee on
behalf of the Trust for the benefit of the Investor Certificateholders) and
the Bank his Indicated in its computer files that the Receivables created
in connection with the Additional Accounts have been transferred to the
Trust and within five Business Days after the Addition Date the Bank shall
deliver to the Trustee a [computer file or] microfiche list containing a
true and complete list of all Additional Accounts identified by account
number and the aggregate amount of the Receivables in such Additional
Accounts as of the Addition Date, which computer file or microfiche list
shall be as of the date of such Assignment, incorporated into and made a
part of such Assignment and the Pooling and Servicing Agreement.
(b) Legal Valid and Binding Obligation. The Assignment
constitutes a legal, valid and binding obligation of the Bank, enforceable
against the Bank in accordance with its terms, except as ouch
enforceability may be limited by applicable bankruptcy, Insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors' rights in general and the rights of
creditors of national banking associations and except as such
enforceability lay be limited by general principles of equity (whether
considered in a suit at law or in equity).
(c) Eligibility of Accounts. Each Additional Account designated
Pursuant to the Assignment is on Eligible Account.
(d) Selection Procedures. No selection procedures believed by
the Bank to be materially adverse to the interests of the Investor
Certificateholders were utilized in selecting the Additional Accounts
designated hereby from the available Eligible Accounts in the Bank
Portfolio.
(e) Insolvency. The Bank is not insolvent and, after giving
effect to the conveyance set forth in Section 3 of the Assignment, will not
be insolvent.
(f) Security Interest. The Assignment constitutes either (i) a
valid transfer and assignment to the Trust of all right, title and interest
of the Bank in and to Receivables now existing and hereafter created in the
Additional Accounts designated pursuant to the Assignment, and all proceeds
(as defined in the UCC as in effect in the State of Delaware) of such
Receivables and Insurance Proceeds relating thereto, and such Receivables
and any proceeds thereof, and Insurance Proceeds relating thereto will be
held by the Trust free and clear of any Lien of any Person claiming through
or under the Transferor or any of its Affiliates except for (x) Liens
permitted under subsection 2.05(b) of the Pooling and Servicing Agreement,
(y) the interest of the Bank as holder of the Exchangeable Transferor
Certificate and (z) the Bank's right to receive interest accruing on, and
investment earnings in respect of, the Finance Charge Account and the
Principal Account [or any Series Account] as provided in the Pooling and
Servicing Agreement and any Supplement; or (ii) a grant of a security
interest (as defined in the UCC as in effect in the State of Delaware) in
such property to the Trust, which is enforceable with respect to the
existing Receivables of the Additional Accounts designated pursuant to the
Assignment, the proceeds (as defined in the UCC as in effect in the State
of Delaware) thereof and Insurance Proceeds relating thereto upon the
conveyance of such Receivables to the Trust, and which will be enforceable
with respect to the Receivables thereafter created in respect of Additional
Accounts designated pursuant to the Assignment, the proceeds (05 defined in
the UCC as in effect in the State of Delaware) thereof and Insurance
Proceeds relating thereto, upon such creation; and (iii) if the Assignment
constitutes the grant of a security interest to the Trust in such property,
upon the filing of a financing statement described in Section 3 of the
Assignment with respect to the Additional Accounts designated pursuant to
the Assignment and in the case of the Receivables of such Additional
Accounts thereafter created and the proceeds (as defined in the UCC as in
effect in the State of Delaware) thereof, and Insurance Proceeds relating
to such Receivables, upon such creation, the Trust shall have a first
priority perfected security Interest in such property, except for Liens
permitted under subsection 2.05(b) of the Pooling and Servicing Agreement.
(g) Requirements off Pooling and Servicing Agreement. All
requirements set forth in Section 2.06 of the Pooling and Servicing
Agreement for designating Additional Accounts and conveying the Principal
Receivables of such Accounts, whether now existing or hereafter created,
have been satisfied.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, I have hereunto set my hand this
___________ day of ________ ____.
FIRST USA BANK,
By:______________________________
Name:
Title:
EXHIBIT C
FORM OF MONTHLY SERVICER'S CERTIFICATE
FIRST USA BANK
----------------------------------
FIRST USA CREDIT CARD MASTER TRUST
-----------------------------------
The undersigned, a duly authorized representative of First USA
Bank, (the "Bank"), as Servicer pursuant to the Pooling and Servicing
Agreement dated as of September 1, 1992 (the "Pooling and Servicing
Agreement") by and between the Bank and NationsBank of Virginia, N.A., as
Trustee, does hereby certify as follows:
1. Capitalized terms used in this Certificate have their
respective meanings set forth in the Pooling and Servicing Agreement;
provided, that the "preceding Monthly Period" shall mean the Monthly
Period immediately preceding the calendar month in which this
Certificate is delivered. This Certificate is delivered pursuant to
subsection 3.04(b) of the Pooling and Servicing Agreement. References
herein to certain sections and subsections are references to the
respective sections and subsections of the Pooling and Servicing
Agreement.
2. The Bank is Servicer under the Pooling and Servicing
Agreement.
3. The undersigned is a Servicing Officer.
4. The date of this Certificate is a Determination Date
under the Pooling and Servicing Agreement.
5. The aggregate amount of Collections
processed during the preceding Monthly Period was
equal to................................................ $___________
6. The aggregate amount of Receivables
processed as of the end of the last day of the
preceding Monthly Period was equal to................... $___________
7. The Aggregate Investor Percentage of
Collections of Finance Charge Receivables processed
by the Servicer during the preceding Monthly Period
was equal to............................................ $___________
8. The Aggregate Investor Percentage of
Collections of Principal Receivables processed by
the Servicer during the current month is equal to....... $___________
9. The aggregate amount of Interchange
to be deposited in the Finance Charge Account on
the Transfer Date of the current month is equal to...... $___________
10. To the knowledge of the undersigned, there are no Liens on
any Receivables in the Trust except as described below:
[If applicable, insert "None".]
IN WITNESS WHEREOF, the undersigned has duly executed and
delivered this certificate this ___ day of ________________, ____.
FIRST USA BANK,
Servicer
By:_______________________________
Name:
Title:
Schedule To Monthly
Servicer's Certificate*
FIRST USA BANK
----------------------------------
FIRST USA CREDIT CARD MASTER TRUST
----------------------------------
* A separate schedule is to be attached for each
Series, with appropriate changes and additions
to reflect the specifics of the related Series
Supplement
EXHIBIT D
FORM OF ANNUAL SERVICER'S CERTIFICATE
FIRST USA BANK
----------------------------------
FIRST USA CREDIT CARD MASTER TRUST
----------------------------------
The undersigned, a duly authorized representative of First USA
Bank (the "Bank"), as Servicer pursuant to the Pooling and Servicing
Agreement dated as of September 1, 1992 (the "Pooling and Servicing
Agreement") by and between the Bank and NationsBank of Virginia, N.A., as
trustee, (the "Trustee") does hereby certify that:
1. The Bank is Servicer under the Pooling and Servicing
Agreement.
2. The undersigned is duly authorized pursuant to the Pooling
and Servicing Agreement to execute and deliver this Certificate to the
Trustee.
3. This Certificate is delivered pursuant to Section 3.05 of
the Pooling and Servicing Agreement.
4. A review of the activities of the Servicer during (the
period from the Closing Date until) (the twelve month period ended) June
30, 19__ was conducted under our supervision.
5. Based on such review, the Servicer has, to the best of our
knowledge, fully performed all its obligations under the Pooling and
Servicing Agreement throughout such period and no default in the
performance of such obligations has occurred or is continuing except as set
forth in paragraph 6 below.
6. The following is a description of each default in the
performance of the Servicer's obligations under the provisions of the
Pooling and Servicing Agreement, including any Supplement, known to us to
have been made during such period which sets forth in detail (i) the nature
of each such default, (ii) the action taken by the Servicer, If any, to
remedy each such default and (iii) the current status of each such default:
[If applicable, insert "None."]
IN WITNESS WHEREOF, the undersigned has duly executed this
certificate this ___ day of ________, ____.
_____________________________________
Name:
Title: Vice President
EXHIBIT E
FORM OF OPINION OF COUNSEL REGARDING ADDITIONAL ACCOUNTS
PROVISIONS TO BE INCLUDED IN OPINION OF COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 2.06(c)(vi)
OF THE POOLING AND SERVICING AGREEMENT
The opinions set forth below may be subject to certain
qualifications, assumptions, limitations and exceptions taken or made in
the opinion of the Transferor's counsel with respect to similar matters
delivered on the Closing Date. Such counsel may rely as to factual matters
on certificates of officers of the Transferor and the Servicer.
(i) The Assignment has been duly authorized, executed and
delivered by the Transferor and constitutes the valid and legally binding
agreement of the Transferor, enforceable against the Transferor in
accordance with its terms subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditor's rights and to general
equity principles.
(ii) The provisions of the Pooling and Servicing Agreement are
effective to create, in favor of the Trustee for the benefit of the Holders
of the Certificates, a valid security interest in the Receivables and the
proceeds thereof. Such security interest constitutes a first priority
perfected security interest in such Receivables and the proceeds thereof.
No other security interest of any creditor of the Transferor is equal or
prior to the security interest of the Trustee in such Receivables.
(iii) No filing or other action, other than the filing of a
Uniform Commercial Code financing statement in the recording offices in the
Relevant UCC State is necessary to perfect or maintain the security
interest in the Receivables and the proceeds thereof, except that (a)
appropriate Uniform Commercial Code continuation statements must be filed
within the period of six months prior to the expiration of five years from
the date of the original filing, (b) if the Transferor changes its name,
identity or corporate structure, appropriate Uniform Commercial Code
financing statements must be filed prior to the expiration of four months
after the Transferor changes its name, identity or corporate structure and
(c) if the Transferor changes its chief executive office or principal place
of business to a jurisdiction other than the State of New York, such
security interest must be perfected in such jurisdiction within four months
of the date on which the change occurs (or earlier, if perfection under the
laws of such jurisdiction would have otherwise ceased as set forth in
clause (a) above).
EXHIBIT F
FORM OF ANNUAL OPINION OF COUNSEL
The opinion set forth below, which is to be delivered pursuant
to subsection 13.02(d)(ii) of the Pooling and Servicing Agreement, may be
subject to certain qualifications, assumptions, limitations and exceptions
taken or made in the opinion of counsel delivered on the Closing Date with
respect to similar matters.
No filing or other action, other than such filing or action
described in such opinion, is necessary from the date of such opinion
through March 1 of the following year to continue the perfected status of
the interest of the Trust in the collateral described in the financing
statements referred to in such opinion.
EXHIBIT G
FORM OF REASSIGNMENT OF RECEIVABLES
REASSIGNMENT NO. __ OF RECEIVABLES, dated as of ________ __,
____, by and between FIRST USA BANK, a Delaware chartered banking
corporation organized under the laws of the State of Delaware (the "Bank"),
and NATIONSBANK OF VIRGINIA, N.A., a national banking association organized
under the laws of the United States (the "Trustee") pursuant to the Pooling
and Servicing Agreement referred to below.
W I T N E S S E T H:
WHEREAS, the Bank and the Trustee are parties to the Pooling
and Servicing Agreement, dated as of September 1, 1992 (hereinafter as such
agreement may have been, or may from time to time be, amended, supplemented
or otherwise modified, the "Pooling and Servicing Agreement");
WHEREAS, pursuant to the Pooling and Servicing Agreement, the
Bank wishes to remove all Receivables from certain designated Accounts of
the Bank (the "Removed Accounts") and to cause the Trustee to reconvey the
Receivables of such Removed Accounts, whether now existing or hereafter
created, from the Trust to the Bank (as each such term is defined in the
Pooling and Servicing Agreement); and
WHEREAS, the Trustee is willing to accept such designation and
to reconvey the Receivables in the Removed Accounts subject to the terms
and conditions hereof.
NOW THEREFORE, the Bank and the Trustee hereby agree as
follows:
1. Defined Terms. All terms defined in the Pooling and
Servicing Agreement and used herein shall have such defined meanings
when used herein, unless otherwise defined herein.
"Removal Date" shall mean, with respect to the Removed
Accounts designated hereby, __________, ____.
"Removal Notice Date" shall mean, with respect to the
Removed Accounts designated hereby, ______, ______ (which shall be a
date on or prior to the fifth Business Day prior to the Removal
Date).
2. Designation of Removed Accounts. The Bank shall
deliver to the Trustee, not later than five Business Days after the
Removal Date, a computer file or microfiche list containing a true
and complete list of each Mastercard and VISA account which as of the
Removal Date shall be deemed to be a Removed Account, such accounts
being identified by account number and by the aggregate amount of
Receivables in such accounts as of the close of business on the
Removal Date. Such list shall be marked as Schedule l to this
Reassignment and shall be incorporated into and made a part of this
Reassignment as of the Removal Date.
3. Conveyance of Receivables.
(a) The Trustee does hereby reconvey to the Bank, without
recourse on and after the Removal Date, all right, title and interest
of the Trust in and to the Receivables now existing and hereafter
created in the Removed Accounts designated hereby, all monies due or
to become due with respect thereto (including all Finance Charge
Receivables), all proceeds (as defined in Section 9-306 of the UCC as
in effect in the State of Delaware) of such Receivables and Insurance
Proceeds relating thereto.
(b) In connection with such transfer, the Trustee agrees
to execute and deliver to the Bank on or prior to the date of this
Reassignment, a termination statement with respect to the Receivables
now existing and hereafter created in the Removed Accounts designated
hereby (which may be a single termination statement with respect to
all such Receivables) evidencing the release by the Trust of its Lien
on the Receivables in the Removed Accounts, and meeting the
requirements of applicable state law, in such manner and such
jurisdictions as are necessary to remove such Lien.
4. Representations and Warranties of the Bank. The Bank hereby
represents and warrants to the Trust as of the Removal Date:
(a) Legal valid and Binding Obligation. This
Reassignment constitutes a legal, valid and binding obligation
of the Bank enforceable against the Bank in accordance with its
terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect affecting the
enforcement of creditors' rights in general and the rights of
creditors of national banking associations and except as such
enforceability may be limited by general principles of equity
(whether considered in a suit at law or In equity).
(b) Selection Procedures. No selection procedures
believed by the Bank to be materially adverse to the interests
of the Investor Certificateholders were utilized in selecting
the Removed Accounts designated hereby.
5. Conditions Precedent. The amendment of the Pooling and
Servicing Agreement set forth in Section 6 hereof is subject to the
satisfaction, on or prior to the Removal Date, of the following
condition precedent:
The Bank shall have delivered to the Trustee an
Officer's Certificate certifying that (i) as of the Removal
Date, all requirements set forth in Section 2.07 of the Pooling
and Servicing Agreement for designating Removed Accounts and
reconveying the Receivables of such Removed Accounts, whether
now existing or hereafter created, have been satisfied, and
(ii) each of the representations and warranties made by the
Bank in Section 4 hereof is true and correct as of the Removal
Date. The Trustee may conclusively rely on such Officer's
Certificate, shall have no duty to make inquiries with regard
to the matters set forth therein and shall incur no liability
in so relying.
6. Amendment of the Pooling and Servicing Agreement. The
Pooling and Servicing Agreement is hereby amended to provide that all
references therein to the "Pooling and Servicing Agreement", to "this
Agreement" and "herein" shall be deemed from and after the Removal
Date to be a dual reference to the Pooling and Servicing Agreement as
supplemented by this Reassignment. Except as expressly amended
hereby, all of the representations, warranties, terms, covenants and
conditions of the Pooling and Servicing Agreement shall remain
unamended and shall continue to be, and shall remain, in full force
and effect in accordance with its terms and except as expressly
provided herein shall not constitute or be deemed to constitute a
waiver of compliance with or a consent to non-compliance with any
term or provision of the Pooling and Servicing Agreement.
7. Counterparts. This Reassignment may be executed in two
or more counterparts, and by different parties on separate
counterparts, each of which shall be an original, but all of which
together shall constitute one and the same instrument.
8. Governing Law. THIS REASSIGNMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE
TO ITS CONFLICT OF LAW PROVISIONS.
IN WITNESS WHEREOF, the undersigned have caused this
Reassignment of Receivables to be duly executed and delivered by their
respective duly authorized officers on the day and year first above
written.
FIRST USA BANK
By: ______________________________
Name:
Title:
NATIONSBANK OF VIRGINIA, N.A.
Trustee
By: _______________________________
Name:
Title:
Schedule 1
to Reassignment
of Receivables
REMOVED ACCOUNTS
EXHIBIT H
FORM OF RECONVEYANCE OF RECEIVABLES
RECONVEYANCE of RECEIVABLES, dated as of _____ __ , 19__ by and
between First USA Bank, a Delaware chartered banking corporation organized
under the laws of the State of Delaware (the "Transferor"), and NationsBank
of Virginia, N.A., a national banking association organized and existing
under the laws of the United States (the "Trustee") pursuant to the Pooling
and Servicing Agreement referred to below.
W I T N E S S E T H:
WHEREAS, the Transferor and the Trustee are parties to the
Pooling and Servicing Agreement dated as of September 1, 1992 (hereinafter
as such agreement may have been, or may from time to time be, amended,
supplemented or otherwise modified, the "Pooling and Servicing Agreement");
WHEREAS, pursuant to the Pooling and Servicing Agreement, the
Transferor wishes to cause the Trustee to reconvey all of the Receivables
and proceeds thereof, whether now existing or hereafter created, from the
Trust to the Transferor pursuant to the terms of Section 12.04 of the
Pooling and Servicing Agreement upon termination of the Trust pursuant to
subsection 12.01(a) of the Pooling and Servicing Agreement (as each such
term is defined in the Pooling and Servicing Agreement);
WHEREAS, the Trustee is willing to reconvey the Receivables
subject to the terms and conditions hereof;
NOW THEREFORE, the Transferor and the Trustee hereby agree as
follows:
1. Defined Terms. All terms defined in the Pooling and
Servicing Agreement and used herein shall have such defined meanings when
used herein, unless otherwise defined herein.
"Reconveyance Date" shall mean _____ __, 19__.
2. Return of Lists of Accounts. The Trustee shall deliver to
the Transferor, not later than three Business Days after the Reconveyance
Date, each and every computer file or microfiche list of Accounts delivered
to the Trustee pursuant to the terms of the Pooling and Servicing
Agreement.
3. Conveyance of Receivables. (a) The Trustee does hereby
reconvey to the Transferor, without recourse, on and after the Reconveyance
Date, all right, title and interest of the Trust in and to each and every
Receivable now existing and hereafter created in the Accounts, all monies
due or to become due with respect thereto (including all Finance Charge
Receivables, all proceeds (as defined in Section 9-306 of the UCC as in
effect in the State of Delaware) of such receivables and Insurance Proceeds
relating to such Receivables, except for amounts, if any, held by the
Trustee pursuant to subsection 12.03(b) of the Pooling and Servicing
Aqreement.
(b) In connection with such transfer, the Trustee agrees
to execute and deliver to the Transferor on or prior to the date of this
Reconveyance, such UCC termination statements as the Transferor may
reasonably request, evidencing the release by the Trust of its lien on the
Receivables.
4. Counterparts. This Reconveyance may be executed in two or
more counterparts (and by different parties on separate counterparts), each
of which shall be an original, but all of which together shall constitute
one and the same instrument.
5. Governing Law. THIS RECONVEYANCE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS.
IN WITNESS WHEREOF, the undersigned have caused this
Reconveyance of Receivables to be duly executed and delivered by their
respective duly authorized officers on the day and year first above
written.
FIRST USA BANK,
By _________________________________
Title:
NATIONSBANK OF VIRGINIA, N.A.
Trustee
By _________________________________
Title:
SCHEDULE 1
LIST OF ACCOUNTS
Delivered to Trustee only
[Deemed Incorporated]
FIRST USA BANK
as Transferor and Servicer
and
NATIONSBANK OF VIRGINIA, N.A.
as Trustee on behalf of the Investor Certificateholders
First USA Credit Card Master Trust
FIRST AMENDMENT
Dated as of April 14, 1994
to
POOLING AND SERVICING AGREEMENT
Dated as of September 1, 1992
FIRST AMENDMENT to POOLING AND SERVICING AGREEMENT, dated as of
April 14, 1994 (the "Amendment") by and between FIRST USA BANK, as
Transferor and Servicer (in such capacities, the "Transferor" and the
"Servicer," respectively) and NATIONSBANK OF VIRGINIA, N.A., as Trustee
(the "Trustee").
WHEREAS, the Transferor, the Servicer and the Trustee have
heretofore executed and delivered the Pooling and Servicing Agreement dated
as of September 1, 1992 (the "Master Pooling and Servicing Agreement"),
between the Transferor, the Servicer and the Trustee for the issuance by
the First USA Credit Card Master Trust (the "Trust") of the Investor
Certificates and the Exchangeable Transferor Certificate;
WHEREAS, Section 13.01(a) of the Master Pooling and Servicing
Agreement provides that the Servicer, the Transferor and the Trustee,
without the consent of the Investor Certificateholders may amend the Master
Pooling and Servicing Agreement from time to time so long as the Trustee
shall have received (i) from the Rating Agency then rating the Investor
Certificates, a written notification that such action will not result in a
reduction or withdrawal of the rating of any outstanding Series which it is
then rating and (ii) an Opinion of Counsel to the effect that such
amendment will not adversely affect in any material respect the interests
of the Investor Certificateholders;
WHEREAS, the Trustee has received from (i) each Rating Agency, a
letter confirming the current rating of each outstanding Series and (ii) an
Opinion of Counsel to the effect that such amendment will not adversely
affect in any material respect the interests of the Investor
Certificateholders; and
WHEREAS, all other conditions precedent to the execution of this
Amendment have been complied with;
NOW, THEREFORE, the Servicer, the Transferor and the Trustee are
executing and delivering this Amendment in order to waive the provision of
the Master Pooling and Servicing Agreement specified below in the following
manner.
Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Master Pooling and Servicing Agreement.
SECTION 1.1 Waiver of proviso in Section 2.06(b). In connection
with the Transferor's delivery of Receivables in Additional Accounts
pursuant to Assignment No. 4 of Receivables in Additional Accounts, the
Servicer, the Transferor and the Trustee hereby waive the restriction in
the fifth and sixth lines of Section 2.06(b) of the Master Pooling and
Servicing Agreement.
SECTION 2.1 Ratification of Master Pooling and Servicing
Agreement. As amended by this Amendment, the Master Pooling and Servicing
Agreement is in all respects ratified and confirmed, and the Master Pooling
and Servicing Agreement as so amended by this First Amendment shall be
read, taken and construed as one and the same instrument.
SECTION 3.1 No Waiver of Past Default. The execution and
delivery of this Amendment shall not constitute a waiver of a past default
under the Master Pooling and Servicing Agreement or impair any right
consequent thereon.
SECTION 4.1 Counterparts. The Amendment may be executed
simultaneously in any number of counterparts, each of which counterparts
shall be deemed to be an original, and all of which counterparts shall
constitute one and the same instrument.
SECTION 5.1 GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, AND THE OBLIGATIONS,
RIGHTS, AND REMEDIES OF THE PARTIES UNDER THIS FIRST AMENDMENT SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 6.1 Effective Date. This First Amendment shall become
effective as of the day and year first above written.
IN WITNESS WHEREOF, the Servicer, the Transferor and the Trustee
have caused this First Amendment to be duly executed by their respective
officers, thereunto duly authorized, as of the day and year first above
written.
FIRST USA BANK
as Transferor and Servicer
By: /s/ Steven McDonald
_______________________________
Name: Steven McDonald
Title: Senior Vice President
NATIONSBANK OF VIRGINIA, N.A.
as Trustee
By: /s/ John A. Dracos, Jr.
________________________________
Name: John A. Dracos, Jr.
Title: Assistant Vice President
SECOND AMENDMENT TO THE
POOLING AND SERVICING AGREEMENT
SECOND AMENDMENT TO POOLING AND SERVICING AGREEMENT dated as of
May 4, 1995 (this "Amendment"), by and between FIRST USA BANK, as
Transferor and Servicer (in such capacities, the "Transferor" and the
"Servicer," respectively), and NATIONSBANK, N.A., as Trustee (the
"Trustee").
WHEREAS, the Transferor, the Servicer and the Trustee have
heretofore executed and delivered a Pooling and Servicing Agreement dated
as of September 1, 1992 (the "Master Pooling and Servicing Agreement"),
between the Transferor, the Servicer and the Trustee for the issuance by
the First USA Credit Card Master Trust (the "Trust") of the Investor
Certificates and the Exchangeable Transferor Certificate;
WHEREAS, Section 13.01(a) of the Master Pooling and Servicing
Agreement provides that the Servicer, the Transferor and the Trustee,
without the consent of the Investor Certificateholders may amend the Master
Pooling and Servicing Agreement from time to time so long as the Trustee
shall have received (i) from each Rating Agency then rating the Investor
Certificates, a written notification that such action will not result in a
reduction or withdrawal of the rating of any outstanding Series which it is
then rating and (ii) an Opinion of Counsel to the effect that such
amendment will not adversely affect in any material respect the interests
of the Investor Certificateholders;
WHEREAS, the Trustee has received from (i) each Rating Agency,
a letter confirming the current rating of each outstanding Series and (ii)
an Opinion of Counsel to the effect that such amendment will not adversely
affect in any material respect the interests of the Investor
Certificateholders; and
WHEREAS, all other conditions precedent to the execution of
this Amendment have been complied with;
NOW, THEREFORE, the Servicer, the Transferor and the Trustee
are executing and delivering this Amendment in order to amend the
provisions of the Master Pooling and Servicing Agreement in the manner set
forth below.
Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Master Pooling and Servicing Agreement.
SECTION 1.1 Defined Terms.
The preamble to the definition of "Eligible Account" is hereby
amended by inserting the phrase "or Addition Date" immediately after the
words "Addition Cut Off Date."
Subsection (f) of the definition of "Eligible Account" is
hereby amended by deleting subsection (f) thereof and substituting in its
place the following subsection (f):
"(f) which has not been sold or pledged to any other party and
which does not have receivables which, in the case of Accounts identified
on the Cut Off Date, have been sold or pledged to any other party or, in
the case of Accounts identified on any Addition Cut Off Date, are at the
time of transfer to the Trust sold or pledged to any other party;"
Subsection (d) of the definition of "Eligible Receivable" is
hereby amended by deleting subsection (d) thereof and substituting in its
place the following subsection (d):
"(d) as to which, as of the Closing Date, or in the case of
Additional Receivables as of the relevant Addition Date, the Transferor or
the Trust had good and marketable title thereto, free and clear of all
Liens arising under or through the Transferor or any of its Affiliates
(other than Liens permitted pursuant to subsection 2.05(b));"
SECTION 2.1 Trustee Name Change. Wherever used in the Pooling
Agreement, all references to the name of the Trustee as "NationsBank of
Virginia, N.A." are hereby amended to read "NationsBank, N.A."
SECTION 3.1 Ratification of Master Pooling and Servicing
Agreement. As amended by this Amendment, the Master Pooling and Servicing
Agreement is in all respects ratified and confirmed, and the Master Pooling
and Servicing Agreement, as so amended by this Amendment, shall be read,
taken and construed as one and the same instrument.
SECTION 4.1 Severability. If any one or more of the covenants,
agreements, provisions or terms or portions thereof of this Amendment shall
be for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms or portions thereof shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Amendment and
shall in no way affect the validity or enforceability of the other
provisions or portions of this Amendment.
SECTION 5.1 Counterparts. This Amendment may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
SECTION 6.1 GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Servicer, the Transferor and the
Trustee have caused this Second Amendment to be executed by their
respective officers, thereunto duly authorized, as of the day and year
first above written.
FIRST USA BANK
as Transferor and Servicer
By:/s/ Steven L. McDonald
_____________________________
Name: Steven L. McDonald
Title:Senior Vice President
NATIONSBANK, N.A.
Trustee
By:/s/ John A. Dracos
_____________________________
Name: John A. Dracos
Title:Vice President
THIRD AMENDMENT TO THE
POOLING AND SERVICING AGREEMENT
THIRD AMENDMENT TO POOLING AND SERVICING AGREEMENT dated as of
November 3, 1995 (this "Amendment"), by and between FIRST USA BANK, as
Transferor and Servicer (in such capacities, the "Transferor" and the
"Servicer," respectively), and NATIONSBANK, N.A., as Trustee (the
"Trustee").
WHEREAS, the Transferor, the Servicer and the Trustee have
heretofore executed and delivered a Pooling and Servicing Agreement dated
as of September 1, 1992 (the "Master Pooling and Servicing Agreement"),
between the Transferor, the Servicer and the Trustee for the issuance by
the First USA Credit Card Master Trust (the "Trust") of the Investor
Certificates and the Exchangeable Transferor Certificate;
WHEREAS, Section 13.01(a) of the Master Pooling and Servicing
Agreement provides that the Servicer, the Transferor and the Trustee,
without the consent of the Investor Certificateholders may amend the Master
Pooling and Servicing Agreement from time to time so long as the Trustee
shall have received (i) from each Rating Agency then rating the Investor
Certificates, a written notification that such action will not result in a
reduction or withdrawal of the rating of any outstanding Series which it is
then rating and (ii) an Opinion of Counsel to the effect that such
amendment will not adversely affect in any material respect the interests
of the Investor Certificateholders;
WHEREAS, the Trustee has received from (i) each Rating Agency,
a letter confirming the current rating of each outstanding Series and (ii)
an Opinion of Counsel to the effect that such amendment will not adversely
affect in any material respect the interests of the Investor
Certificateholders; and
WHEREAS, all other conditions precedent to the
execution of this Amendment have been complied with;
NOW, THEREFORE, the Servicer, the Transferor and the Trustee
are executing and delivering this Amendment in order to amend the
provisions of the Master Pooling and Servicing Agreement in the manner set
forth below.
Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Master Pooling and Servicing Agreement.
SECTION 1.1 Defined Terms. Section 1.01 of the Master Pooling
and Servicing Agreement is hereby amended by deleting the defined term
listed below and substituting therefor the following definition:
"Determination Date" shall mean, unless otherwise specified in
any Supplement for the related Series, the first Business Day
on or before the eighth calendar day prior to each Distribution
Date.
SECTION 2.1 Ratification of Master Pooling and Servicing
Agreement. As amended by this Amendment, the Master Pooling and Servicing
Agreement is in all respects ratified and confirmed, and the Master Pooling
and Servicing Agreement, as so amended by this Amendment, shall be read,
taken and construed as one and the same instrument.
SECTION 3.1 Severability. If any one or more of the covenants,
agreements, provisions or terms or portions thereof of this Amendment shall
be for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms or portions thereof shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Amendment and
shall in no way affect the validity or enforceability of the other
provisions or portions of this Amendment.
SECTION 4.1 Counterparts. This Amendment may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
SECTION 5.1 GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Servicer, the Transferor and the
Trustee have caused this Amendment to be executed by their respective
officers, thereunto duly authorized, as of the day and year first above
written.
FIRST USA BANK
as Transferor and Servicer
By: /s/ Steven L. McDonald
-------------------------------
Name: Steven L. McDonald
Title: Senior Vice President
NATIONSBANK, N.A.
as Trustee
By: /s/Sally P. Gleason
-------------------------------
Name: Sally P. Gleason
Title: Asst. Vice President
FOURTH AMENDMENT TO THE
POOLING AND SERVICING AGREEMENT
FOURTH AMENDMENT TO POOLING AND SERVICING AGREEMENT dated as of
January 26, 1996 (this "Amendment") , by and between FIRST USA BANK, as
Transferor and Servicer (in such capacities, the "Transferor" and the
"Servicer," respectively), and THE BANK OF NEW YORK (DELAWARE), as Trustee
(the "Trustee").
WHEREAS, the Transferor, the Servicer and the Trustee have
heretofore executed and delivered a Pooling and Servicing Agreement dated
as of September 1, 1992 (the "Master Pooling and Servicing Agreement") ,
between the Transferor, the Servicer and the Trustee for the issuance by
the First USA Credit Card Master Trust (the "Trust") of the Investor
Certificates and the Exchangeable Transferor Certificate;
WHEREAS, Section 13.01(a) of the Master Pooling and Servicing
Agreement provides that the Servicer, the Transferor and the Trustee,
without the consent of the investor Certificateholders may amend the Master
Pooling and Servicing Agreement from time to time so long as the Trustee
shall have received (i) from each Rating Agency then rating the investor
Certificates, a written notification that such action will not result in a
reduction or withdrawal of the rating of any outstanding Series which it is
then rating and (ii) an opinion of Counsel to the effect that such
amendment will not adversely affect in any material respect the interests
of the Investor Certificateholders;
WHEREAS, the Trustee has received from (i) each Rating Agency, a
letter confirming the current rating of each outstanding Series and (ii) an
Opinion of Counsel to the effect that such amendment will not adversely
affect in any material respect the interests of the Investor
Certificateholders; and
WHEREAS, all other conditions precedent to the execution of this
Amendment have been complied with;
NOW, THEREFORE, the Servicer, the Transferor and the Trustee are
executing and delivering this Amendment in order to amend the provisions of
the Master Pooling and Servicing Agreement in the manner set forth below.
Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Mast"er Pooling and Servicing Agreement.
SECTION 1.1 Defined-Terms. Section 1.01 of the Master Pooling
and Servicing Agreement is hereby amended by deleting the defined term
"Addition Cut Off Date" and substituting therefor the following defined
term:
"Addition Cut Off Date" shall mean each date as of which
Additional Accounts shall be selected to be included as Accounts
pursuant to Section 2.06; provided, however, that in no event shall an
Addition Cut Off Date be greater than ten months prior to the related
Addition Date.
SECTION 2.1 Ratification of Master Pooling and Servicing
Agreement. As amended by this Amendment, the Master Pooling and Servicing
Agreement is in all respects ratified and confirmed, and the Master Pooling
and Servicing Agreement, as so amended by this Amendment, shall be read,
taken and construed as one and the same instrument.
SECTION 3.1 Severability. If any one or more of the covenants,
agreements, provisions or terms or portions thereof of this Amendment shall
be for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms or portions thereof shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Amendment and
shall in no way affect the validity or enforceability of the other
provisions or portions of this Amendment.
SECTION 4.1 Counterparts. This Amendment may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
SECTION 5.1 GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH TEE LAWS OF TH33 STATE OF DELAWARE, WITHOUT REFERENCE TO
ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS the Servicer, the Transferor and the Trustee have
caused this Amendment to be executed by their respective officers,
thereunto duly authorized, as of the day and year first above written.
FIRST USA BANK
as Transferor and Servicer
By:/s/ Steven. McDonald
_____________________________
Name: Steven L. McDonald
Title: Senior Vice President
THE BANK OF NEW YORK (DELAWARE)
as Trustee
By:/s/ Sally P. Gleason
_____________________________
Name: Sally P. Gleason
Title: Assistant Vice President
FIFTH AMENDMENT TO THE
POOLING AND SERVICING AGREEMENT
FIFTH AMENDMENT TO THE POOLING AND SERVICING AGREEMENT dated as
of June 28, 1996 (this "Amendment") , by and between FIRST USA BANK, as
Transferor and Servicer (in such capacities, the "Transferor" and the
"Servicer," respectively), and THE BANK OF NEW YORK (DELAWARE), as
Trustee (the "Trustee").
WHEREAS, the Transferor, the Servicer and the Trustee have
heretofore executed and delivered a Pooling and Servicing Agreement dated
as of September 1, 1992 (as amended and supplemented through the date
hereof, the "Master Pooling and Servicing Agreement") , between the
Transferor, the Servicer and the Trustee for the issuance by the First USA
Credit Card Master Trust (the "Trust") of the Investor Certificates and the
Exchangeable Transferor Certificate;
WHEREAS, Section 13. 01 (a) of the Master Pooling and Servicing
Agreement provides that the Servicer, the Transferor and the Trustee,
without the consent of the Investor Certificateholders may amend the Master
Pooling and Servicing Agreement from time to time so long as the Trustee
shall have received W from each Rating Agency then rating the Investor
Certificates, a written notification that such action will not result in a
reduction or withdrawal of the rating of any outstanding Series which it is
then rating and (ii) an Opinion of Counsel to the effect that such
amendment will not adversely affect in any material respect the interests
of the Investor Certificateholders;
WHEREAS, the Trustee has received from (i) each Rating Agency, a
letter confirming the current rating of each outstanding Series and (ii)
an Opinion of Counsel to the effect that such amendment will not adversely
affect in any material respect the interests of the Investor
Certificateholders; and
WHEREAS, all other conditions precedent to the execution of this
Amendment have been complied with;
NOW, THEREFORE, the Servicer, the Transferor and the Trustee are
executing and delivering this Amendment in order to amend the provisions of
the Master Pooling and Servicing Agreement in the manner set forth below.
Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Master Pooling and Servicing Agreement.
SECTION 1.1 Defined Terms.
a) Section 1.01 of the Master Pooling and Servicing Agreement is
hereby amended by deleting the definition of the term "Collections" and
substituting therefor the following definition:
"Collections" shall mean all payments (including Recoveries
of Principal Receivables or Finance Charge Receivables and Insurance
Proceeds) received by the Servicer in respect of the Receivables, in
the form of cash, checks, wire transfers, ATM transfers or other form
of payment in accordance with the Credit Card Agreement in effect from
time to time on any Receivables. A Collection processed on an Account
in excess of the aggregate amount of Receivables in such Account as of
the Date of Processing of such Collection shall be deemed to be a
payment in respect of Principal Receivables to the extent of such
excess. Collections with respect to any Monthly Period shall include
the amount of Interchange (if any) allocable to any Series of
Certificates pursuant to any Supplement with respect to such Monthly
Period (to the extent received by the Trust and deposited into the
Finance Charge Account or any Series Account as the case may be, on
the Transfer Date following such Monthly Period), to be applied as if
such Collections were Finance Charge Receivables for all purposes.
Collections with respect to any Monthly Period shall also include the
amount deposited by the Transferor into the Finance Charge Account (or
Series Account if provided in any Supplement) pursuant to Section
2.08. Collections of Recoveries will be treated as Collections of
Principal Receivables; provided, however, that to the extent the
aggregate amount of Recoveries received with respect to any Monthly
Period exceeds the aggregate amount of Principal Receivables (other
than Ineligible Receivables) in Defaulted Accounts on the day such
Account became a Defaulted Account for each day in such Monthly
Period, the amount of such excess shall be treated as Collections of
Finance Charge Receivables.
(b) Section 1.01 of the Master Pooling and Servicing Agreement is
hereby further amended by deleting the definition of the term "Default
Amount" and substituting therefor the following definition:
"Default Amount" shall mean for any Monthly Period, an
amount (which shall not be less than zero) equal to (a) the aggregate
amount of Principal Receivables (other than Ineligible Receivables) in
Defaulted Accounts on the day such Account became a Defaulted Account
for each day in such Monthly Period minus (b) the aggregate amount of
Recoveries received in such Monthly Period.
(c) Section 1.01 of the Master Pooling and Servicing Agreement is
hereby further amended by adding the following definition of the term
"Recoveries" after the definition of the term "Record Date":
"Recoveries" shall mean all amounts received by the
Transferor or the Servicer with respect to Receivables in Defaulted
Accounts, including amounts received by the Transferor or the Servicer
from the purchaser or transferee with respect to the sale or other
disposition of Receivables in Defaulted Accounts and all rights (but
not obligations) under any agreement to sell or transfer such
Receivables (including any rights to payment from any purchaser or
transferee in connection with such sale or other disposition) . In the
event of any such sale or disposition of such Receivables, Recoveries
shall not include amounts received by the purchaser or transferee of
such Receivables but shall be limited to amounts received by the
Transferor or the Servicer from the purchaser or transferee and all
rights of the Transferor and the Servicer against the purchaser or
transferee, including any right to payment.
(d) Section 1.01 of the Master Pooling and Servicing Agreement is
hereby further amended by deleting the definition of the term "Trust" and
substituting therefor the following definition:
"Trust" shall mean the trust created by this Agreement, the
corpus of which shall consist of the Receivables now existing or
hereafter created and all monies due or to become due with respect
thereto, all proceeds (as defined in Section 9-306 of the TJCC as in
effect in the State of Delaware) including, without limitation,
Recoveries of the Receivables and Insurance Proceeds relating thereto,
the right to receive certain amounts paid or payable as Interchange
(if provided for in any Supplement) , such funds as from time to time
are deposited in the Collection Account, the Finance Charge Account,
the Principal Account, the Distribution Account and any Series Account
and the rights to any Enhancement with respect to any Series.
SECTION 2.1 Transfer of Ineligible Receivables. Section 2.04 of
the Master Pooling and Servicing Agreement is hereby amended by deleting
the word "ouch" in the fourth sentence of subsection (d) (iii) thereof and
replacing it with the word "such".
SECTION 3.1 Transfer of Defaulted Accounts. Section 4.03 of the
Master Pooling and Servicing Agreement is hereby amended by deleting
subsection (d) thereof and replacing it with the following:
(d) Transfer of Defaulted Accounts. Unless otherwise
provided in any Supplement, in consideration of receiving Recoveries
as provided in Section 4. 03 (g) hereof , on the date on which an
Account becomes a Defaulted Account, the Trust shall automatically and
without further action or consideration be deemed to transfer, set
over, and otherwise convey to the Transferor, without recourse,
representation or warranty, all the right, title and interest of the
Trust in and to the Receivables in such Defaulted Account, all monies
due or to become due with respect thereto, all proceeds thereof
allocable to the Trust with respect to such Receivables, excluding
Recoveries relating thereto, which shall remain an asset of the Trust.
SECTION 4.1 Recoveries. Section 4.03 of the Master Pooling and
Servicing Agreement is hereby amended by adding a new subsection (g)
thereto which shall read in its entirety as follows:
(g) Recoveries. On or prior to the earliest Determination
Date in each Monthly Period, the Transferor shall notify the Servicer
of the amount of Recoveries to be included as Collections with respect
to the preceding Monthly Period. On the earliest Transfer Date in each
Monthly Period, the Transferor shall pay to the Servicer and the
Servicer shall deposit into the Collection Account, the amount of
Recoveries to be so included as Collections with respect to the
preceding Monthly Period; provided, however, that such deposit need-
be made only to the extent that such funds are required to be retained
in the Principal Account or the Finance Charge Account for the benefit
of any Series pursuant to the provisions of Article IV of this
Agreement or any Series Supplement.
SECTION 5.1 Ratification of Master Pooling and Servicing
Agreement. As amended by this Amendment, the Master Pooling and Servicing
Agreement is in all respects ratified and confirmed, and the Master Pooling
and Servicing Agreement, as so amended by this Amendment, shall be read,
taken and construed as one and the same instrument.
SECTION 6.1 Severability. If any one or more of the covenants,
agreements, provisions or terms or portions thereof of this Amendment shall
be for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms or portions thereof shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Amendment and
shall in no way affect the validity or enforceability of the other
provisions or portions of this Amendment.
SECTION 7.1 Counterparts. This Amendment may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
SECTION 8.1 GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WIT33 THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO
ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 9.1 Effective Date. The provisions of this Amendment
shall take effect as of the opening of business on July 1, 1996
(THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Servicer, the Transferor and the Trustee
have caused this Amendment to be executed by their respective officers,
thereunto duly authorized, as of the day and year first above written.
FIRST USA BANK
as Transferor and Servicer
By:/s/ W. Todd Peterson
_____________________________
Name: W. Todd Peterson
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By:/s/ Melissa J. Beneduce
_____________________________
Name: Melissa J. Beneduce
Title: Assistant Vice President
SIXTH AMENDMENT TO
THE POOLING AND SERVICING AGREEMENT
SIXTH AMENDMENT TO POOLING AND SERVICING AGREEMENT dated as of
August 27, 1997 (this "Amendment"), by and between FIRST USA BANK, as
Transferor and Servicer (in such capacities, the "Transferor" and the
"Servicer," respectively), and THE BANK OF NEW YORK (DELAWARE), as Trustee
(the "Trustee").
WHEREAS, the Transferor, the Servicer and the Trustee have
heretofore executed and delivered a Pooling and Servicing Agreement dated
as of September 1, 1992 (as amended and supplemented through the date
hereof, the "Master Pooling and Servicing Agreement"), between the
Transferor, the Servicer and the Trustee for the issuance by the First USA
Credit Card Master Trust (the "Trust") of the Investor Certificates and the
Exchangeable Transferor Certificate;
WHEREAS, Section 13.01(a) of the Master Pooling and Servicing
Agreement provides that the Servicer, the Transferor and the Trustee,
without the consent of the Investor Certificateholders may amend the Master
Pooling and Servicing Agreement from time to time so long as the Trustee
shall have received (i) from each Rating Agency then rating the Investor
Certificates, a written notification that such action will not result in a
reduction or withdrawal of the rating of any outstanding Series which it is
then rating and (ii) an Opinion of Counsel to the effect that such
amendment will not adversely affect in any material respect the interests
of the Investor Certificateholders;
WHEREAS, the Trustee has received from (i) each Rating Agency, a
letter confirming the current rating of each outstanding Series and (ii) an
Opinion of Counsel to the effect that such amendment will not adversely
affect in any material respect the interests of the Investor
Certificateholders; and
WHEREAS, all other conditions precedent to the execution of this
Amendment have been complied with;
NOW, THEREFORE, the Servicer, the Transferor and the Trustee are
executing and delivering this Amendment in order to amend the provisions of
the Master Pooling and Servicing Agreement in the manner set forth below.
Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Master Pooling and Servicing Agreement.
SECTION 1.1 Definitions. Section 1.01 of the Master Pooling and
Servicing Agreement is hereby amended by deleting the definition of
"Business Day" and substituting therefor the following definition:
"Business Day" shall mean any day other than a Saturday, a Sunday
or a day on which banking institutions in New York, New York, Newark,
Delaware or Wilmington, Delaware (or, with respect to any Series, any
additional city specified in the related Supplement) are authorized or
obligated by law or executive order to be closed.
SECTION 2.1 Collections. Section 4.03(a) of the Master Pooling
and Servicing Agreement is hereby amended by deleting the third paragraph
thereof and substituting therefor the following paragraph:
Notwithstanding anything in this Agreement to the contrary, for
so long as, and only so long as, the Transferor shall remain the
Servicer hereunder, and (a)(i) the Servicer provides to the
Trustee a letter of credit or other form of Enhancement covering
the risk of collection of the Servicer, and (ii) the Transferor
shall not have received a notice from any Rating Agency that such
a letter of credit or other form of Enhancement would result in
the lowering of such Rating Agency's then-existing rating of the
Investor Certificates, or (b) the Servicer shall have and
maintain a certificate of deposit or short-term deposit rating of
P-1 by Moody's and of A-1 by Standard & Poor's and deposit
insurance provided by BIF or SAIF, the Servicer need not deposit
Collections into the Collection Account, the Principal Account,
the Finance Charge Account or any Series Account, as provided in
any Supplement, or make payments to the Holder of the
Exchangeable Transferor Certificate, as provided in Article IV,
but may make such deposits, payments and withdrawals on each
Transfer Date in an amount equal to the net amount of such
deposits, payments and withdrawals which would have been made but
for the provisions of this paragraph.
SECTION 3.1 Addition of Accounts. Section 2.06(b) of the Master
Pooling and Servicing Agreement is hereby amended by deleting the text
thereof and replacing it with the following:
In addition to its obligation under subsection 2.06(a), the
Transferor may, but shall not be obligated to, designate from
time to time Additional Accounts of the Transferor to be included
as Accounts.
SECTION 4.1 Ratification of Master Pooling and Servicing
Agreement. As amended by this Amendment, the Master Pooling and Servicing
Agreement is in all respects ratified and confirmed, and the Master Pooling
and Servicing Agreement, as so amended by this Amendment, shall be read,
taken and construed as one and the same instrument.
SECTION 5.1 Severability. If any one or more of the covenants,
agreements, provisions or terms or portions thereof of this Amendment shall
be for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms or portions thereof shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Amendment and
shall in no way affect the validity or enforceability of the other
provisions or portions of this Amendment.
SECTION 6.1 Counterparts. This Amendment may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
SECTION 7.1 GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Servicer, the Transferor and the Trustee
have caused this Amendment to be executed by their respective officers,
thereunto duly authorized, as of the day and year first above written.
FIRST USA BANK,
as Transferor and Servicer
By: /s/ Peter W. Atwater
____________________________
Name: Peter W. Atwater
Title: Executive Vice President
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By: /s/ Reyne A. Macadaeg
______________________________
Name: Reyne A. Macadaeg
Title: Assistant Vice President
SEVENTH AMENDMENT TO
THE POOLING AND SERVICING AGREEMENT
SEVENTH AMENDMENT TO POOLING AND SERVICING AGREEMENT dated as of
April 15, 1998 (this "Amendment"), by and between FIRST USA BANK, as
Transferor and Servicer (in such capacities, the "Transferor" and the
"Servicer," respectively), and THE BANK OF NEW YORK (DELAWARE), as Trustee
(the "Trustee").
WHEREAS, the Transferor, the Servicer and the Trustee have
heretofore executed and delivered a Pooling and Servicing Agreement dated
as of September 1, 1992 (as amended and supplemented through the date
hereof, the "Master Pooling and Servicing Agreement"), between the
Transferor, the Servicer and the Trustee for the issuance by the First USA
Credit Card Master Trust (the "Trust") of the Investor Certificates and the
Exchangeable Transferor Certificate;
WHEREAS, Section 13.01(a) of the Master Pooling and Servicing
Agreement provides that the Servicer, the Transferor and the Trustee,
without the consent of the Investor Certificateholders may amend the Master
Pooling and Servicing Agreement from time to time so long as the Trustee
shall have received (i) from each Rating Agency then rating the Investor
Certificates, a written notification that such action will not result in a
reduction or withdrawal of the rating of any outstanding Series which it is
then rating and (ii) an Opinion of Counsel to the effect that such
amendment will not adversely affect in any material respect the interests
of the Investor Certificateholders;
WHEREAS, the Trustee has received from (i) each Rating Agency, a
letter confirming the current rating of each outstanding Series and (ii) an
Opinion of Counsel to the effect that such amendment will not adversely
affect in any material respect the interests of the Investor
Certificateholders; and
WHEREAS, all other conditions precedent to the execution of this
Amendment have been complied with;
NOW, THEREFORE, the Servicer, the Transferor and the Trustee are
executing and delivering this Amendment in order to amend the provisions of
the Master Pooling and Servicing Agreement in the manner set forth below.
Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Master Pooling and Servicing Agreement.
SECTION 1.1 Amendments.
(a) Definition of Business Day. Section 1.01 of the Master
Pooling and Servicing Agreement is hereby amended by deleting the
definition of "Business Day" and replacing it with the following:
""Business Day" shall mean any day other than a Saturday, a
Sunday or a day on which banking institutions are authorized or
obligated by law or executive order to be closed in (a) New York, New
York, (b) Newark, Delaware, (c) with respect to any Series for which
payments to any Certificateholders are to be made outside of the
United States, the city or cities in which the Paying Agents for such
Series located outside of the United States have their principal place
of business, and (d) with respect to any Series, any additional city
specified in the related Supplement."
(b) Annual Servicer's Certificate. Section 3.05 of the
Master Pooling and Servicing Agreement is hereby amended by deleting the
text thereof and replacing it with the following:
"Section 3.05 Annual Servicer's Certificate. Within four
months after the end of each fiscal year of the Servicer, the Servicer
will deliver, as provided in Section 13.05, to the Trustee, any
Enhancement Provider and the Rating Agency, an Officer's Certificate
substantially in the form of Exhibit D stating that (a) a review of
the activities of the Servicer during the prior twelve-month period
(or, with respect to the report to be delivered on or before April 30,
1998, the six-month period from July 1, 1997 through December 31,
1997) and of its performance under this Agreement was made under the
supervision of the officer signing such certificate, (b) to the best
of such officer's knowledge, based on such review, the Servicer has
fully performed all its obligations under this Agreement throughout
such period, or, if there has been a default in the performance of any
such obligation, specifying each such default known to such officer
and the nature and status thereof and (c) the report required to be
delivered to the Servicer by the independent certified public
accountants pursuant to subsection 3.06(b) of this Agreement has been
delivered to the Servicer, and such report contains no exceptions,
except for such exceptions as the independent certified public
accountants believe to be immaterial and such other exceptions as may
be set forth in such report. Such Officer's Certificate shall specify
all exceptions listed in the independent certified public accountants'
report referred to in clause (c) above. A copy of such certificate
may be obtained by any Investor Certificateholder by a request in
writing to the Trustee addressed to the Corporate Trust Office."
(c) Annual Independent Accountants' Servicing Report.
Section 3.06 of the Master Pooling and Servicing Agreement is hereby
amended by deleting the text thereof and replacing it with the following:
"Section 3.06 Annual Independent Accountants' Servicing
Report.
(a) Within four months after the end of each fiscal year of
the Servicer, the Servicer shall cause a firm of nationally recognized
independent public accountants (who may also render other services to
the Servicer or the Transferor) to furnish a report to the Trustee,
any Enhancement Provider and the Rating Agency, to the effect that
such firm has examined the assertion of the Servicer that it has
maintained effective internal control over the servicing of Accounts
under this Agreement and has complied with the provisions of this
Agreement with respect to the servicing of Accounts, and that such
firm has completed such examination in accordance with standards
established by the American Institute of Certified Public Accountants
and that, on the basis of such examination, such firm is of the
opinion (assuming the accuracy of any reports generated by the
Servicer's third party agents) that such assertion is fairly stated in
all material respects. A copy of such report may be obtained by any
Investor Certificateholder by a request in writing to the Trustee
addressed to the Corporate Trust Office.
(b) Within four months after the end of each fiscal year of
the Servicer, the Servicer shall cause a firm of nationally recognized
independent certified public accountants (who may also render other
services to the Servicer or the Transferor) to furnish a report to the
Servicer to the effect that they have compared the mathematical
calculations of each amount set forth in the monthly certificates
forwarded by the Servicer pursuant to subsection 3.04(b) during the
period covered by such report (which shall be each fiscal year of the
Servicer or, with respect to the report to be delivered on or before
April 30, 1998, the six-month period from July 1, 1997 through
December 31, 1997) with the Servicer's computer reports which were the
source of such amounts and that on the basis of such comparison, such
amounts are in agreement, except for such exceptions as they believe
to be immaterial and such other exceptions as shall be set forth in
such report."
SECTION 2.1 Ratification of Master Pooling and Servicing
Agreement. As amended by this Amendment, the Master Pooling and Servicing
Agreement is in all respects ratified and confirmed, and the Master Pooling
and Servicing Agreement, as so amended by this Amendment, shall be read,
taken and construed as one and the same instrument.
SECTION 3.1 Severability. If any one or more of the covenants,
agreements, provisions or terms or portions thereof of this Amendment shall
be for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms or portions thereof shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Amendment and
shall in no way affect the validity or enforceability of the other
provisions or portions of this Amendment.
SECTION 4.1 Counterparts. This Amendment may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
SECTION 5.1 GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Servicer, the Transferor and the Trustee
have caused this Amendment to be executed by their respective officers,
thereunto duly authorized, as of the day and year first above written.
FIRST USA BANK,
as Transferor and Servicer
By: /s/ Tracie H. Klein
----------------------------
Name: Tracie H. Klein
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By: /s/ Reyne A. Macadaeg
--------------------------------
Name: Reyne A. Macadaeg
Title: Assistant Vice President
EIGHTH AMENDMENT TO
THE POOLING AND SERVICING AGREEMENT
EIGHTH AMENDMENT TO POOLING AND SERVICING AGREEMENT dated as of
June 30, 1998 (this "Amendment"), by and between FIRST USA BANK, as
Transferor and Servicer (in such capacities, the "Transferor" and the
"Servicer," respectively), and THE BANK OF NEW YORK (DELAWARE), as Trustee
(the "Trustee").
WHEREAS, the Transferor, the Servicer and the Trustee have
heretofore executed and delivered a Pooling and Servicing Agreement dated
as of September 1, 1992 (as amended and supplemented through the date
hereof, the "Master Pooling and Servicing Agreement"), between the
Transferor, the Servicer and the Trustee for the issuance by the First USA
Credit Card Master Trust (the "Trust") of the Investor Certificates and the
Exchangeable Transferor Certificate;
WHEREAS, Section 13.01(a) of the Master Pooling and Servicing
Agreement provides that the Servicer, the Transferor and the Trustee,
without the consent of the Investor Certificateholders may amend the Master
Pooling and Servicing Agreement from time to time so long as the Trustee
shall have received (i) from each Rating Agency then rating the Investor
Certificates, a written notification that such action will not result in a
reduction or withdrawal of the rating of any outstanding Series which it is
then rating and (ii) an Opinion of Counsel to the effect that such
amendment will not adversely affect in any material respect the interests
of the Investor Certificateholders;
WHEREAS, the Trustee has received from (i) each Rating Agency, a
letter confirming the current rating of each outstanding Series and (ii) an
Opinion of Counsel to the effect that such amendment will not adversely
affect in any material respect the interests of the Investor
Certificateholders; and
WHEREAS, all other conditions precedent to the execution of this
Amendment have been complied with;
NOW, THEREFORE, the Servicer, the Transferor and the Trustee are
executing and delivering this Amendment in order to amend the provisions of
the Master Pooling and Servicing Agreement in the manner set forth below.
Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Master Pooling and Servicing Agreement.
SECTION 1. Amendments. Subsection 6.03(b) of the Master
Pooling and Servicing Agreement is hereby amended by deleting the text
thereof and replacing it with the following:
(b) Except as provided in Section 6.09 or 7.02 or in
any Supplement, in no event shall the Exchangeable
Transferor Certificate or any interest therein be
transferred, sold, exchanged, pledged, participated or
otherwise assigned hereunder, in whole or in part,
unless the Transferor shall have consented in writing
to such transfer and unless the Trustee shall have
received (x) an Opinion of Counsel that such transfer
(i) does not adversely affect the conclusions reached
in any of the federal income tax opinions dated the
applicable Closing Date issued in connection with the
original issuance of any Series of Investor
Certificates and (ii) will not cause the Trust to be
deemed to be an association or "publicly traded
partnership" (within the meaning of Section 7704(b) of
the Internal Revenue Code) taxable as a corporation and
(y) with respect to any such transfer, sale, exchange,
pledge, participation or assignment to an entity which
is not an Affiliate of the Transferor, confirmation in
writing from each Rating Agency that such transfer will
not result in a lowering or withdrawal of its then-
existing rating of any Series of Investor Certificates.
The Transferor shall give each Rating Agency notice of
any such transfer, sale, exchange, pledge,
participation or assignment to an Affiliate of the
Transferor.
SECTION 2. Ratification of Master Pooling and Servicing
Agreement. As amended by this Amendment, the Master Pooling and Servicing
Agreement is in all respects ratified and confirmed, and the Master Pooling
and Servicing Agreement, as so amended by this Amendment, shall be read,
taken and construed as one and the same instrument.
SECTION 3. Severability. If any one or more of the covenants,
agreements, provisions or terms or portions thereof of this Amendment shall
be for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms or portions thereof shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Amendment and
shall in no way affect the validity or enforceability of the other
provisions or portions of this Amendment.
SECTION 4. Counterparts. This Amendment may be executed in
one or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
SECTION 5. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO
ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Servicer, the Transferor and the Trustee
have caused this Amendment to be executed by their respective officers,
thereunto duly authorized, as of the day and year first above written.
FIRST USA BANK,
as Transferor and Servicer
By: /s/ Suzanne Bachman
----------------------------
Name: Suzanne Bachman
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By: /s/ Reyne A. Macadaeg
------------------------------
Name: Reyne A. Macadaeg
Title: Assistant Vice President
NINTH AMENDMENT TO
THE POOLING AND SERVICING AGREEMENT
NINTH AMENDMENT TO POOLING AND SERVICING AGREEMENT, dated as of
July 21, 1998 (this "Amendment"), by and between FIRST USA BANK, N.A., as
Transferor and Servicer (in such capacities, the "Transferor" and the
"Servicer," respectively), and THE BANK OF NEW YORK (DELAWARE), as Trustee
(in such capacity, the "Trustee").
WHEREAS, the Transferor, the Servicer and the Trustee have
heretofore executed and delivered a Pooling and Servicing Agreement, dated
as of September 1, 1992 (as amended and supplemented through the date
hereof and as the same may be further amended, supplemented or otherwise
modified and in effect from time to time, the "Master Pooling and Servicing
Agreement"), by and between the Transferor, the Servicer and the Trustee,
for the issuance by the First USA Credit Card Master Trust (the "Trust") of
the Investor Certificates and the Exchangeable Transferor Certificate;
WHEREAS, Section 13.01(a) of the Master Pooling and Servicing
Agreement provides that the Servicer, the Transferor and the Trustee,
without the consent of the Investor Certificateholders, may amend the
Master Pooling and Servicing Agreement from time to time so long as the
Trustee shall have received (i) from each Rating Agency then rating the
Investor Certificates, a written notification that such action will not
result in a reduction or withdrawal of the rating of any outstanding Series
which it is then rating and (ii) an Opinion of Counsel to the effect that
such amendment will not adversely affect in any material respect the
interests of the Investor Certificateholders;
WHEREAS, the Trustee has received (i) from each Rating Agency, a
letter confirming the current rating of each outstanding Series and (ii) an
Opinion of Counsel to the effect that such amendment will not adversely
affect in any material respect the interests of the Investor
Certificateholders; and
WHEREAS, all other conditions precedent to the execution of this
Amendment have been complied with;
NOW, THEREFORE, the Servicer, the Transferor and the Trustee are
executing and delivering this Amendment in order to amend the provisions of
the Master Pooling and Servicing Agreement in the manner set forth below.
Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Master Pooling and Servicing Agreement.
SECTION 1. Name Change. Wherever used in the Master Pooling and
Servicing Agreement, including in the exhibits and schedules thereto, (a)
all references to the Transferor or the Servicer as "First USA Bank, a
Delaware chartered banking corporation" are hereby amended to read "First
USA Bank, N.A., a national banking association" and (b) all references to
the name of the Transferor or the Servicer as "First USA Bank" are hereby
amended to read "First USA Bank, N.A." .
SECTION 2. Amendments to Section 2.03. (a) Section 2.03(a) of
the Master Pooling and Servicing Agreement is hereby amended by deleting
the words "Delaware chartered banking corporation duly organized and
validly existing in good standing under the Laws of the State of Delaware"
therefrom and substituting therefor the words "national banking association
duly organized and validly existing in good standing under the laws of the
United States".
(b) Section 2.03(b) of the Master Pooling and Servicing
Agreement is hereby amended by deleting the words "and Delaware" therefrom.
SECTION 3. Amendments to Section 3.03. (a) Section 3.03(a) of
the Master Pooling and Servicing Agreement is hereby amended by deleting
the words "Delaware chartered banking corporation duly organized and
validly existing in good standing under the laws of the State of Delaware"
therefrom and substituting therefor the words "national banking association
duly organized and validly existing in good standing under the laws of the
United States".
(b) Section 3.03(b) of the Master Pooling and Servicing
Agreement is hereby amended by deleting the words "and Delaware" therefrom.
SECTION 4. Amendment to Section 11.15. Section 11.15(i) is
hereby amended by deleting the words "national banking association" and
substituting therefor the words "Delaware chartered banking corporation".
SECTION 5. Ratification of Master Pooling and Servicing
Agreement. As amended by this Amendment, the Master Pooling and Servicing
Agreement is in all respects ratified and confirmed, and the Master Pooling
and Servicing Agreement, as so amended by this Amendment, shall be read,
taken and construed as one and the same instrument.
SECTION 6. Severability. If any one or more of the covenants,
agreements, provisions or terms or portions thereof of this Amendment shall
be for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms or portions thereof shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Amendment and
shall in no way affect the validity or enforceability of the other
provisions or portions of this Amendment.
SECTION 7. Counterparts. This Amendment may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
SECTION 8. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Servicer, the Transferor and the Trustee
have caused this Amendment to be executed by their respective officers,
thereunto duly authorized, as of the day and year first above written.
FIRST USA BANK, N.A.
as Transferor and Servicer
By: /s/ Rebekah A. Sayers
---------------------------
Name: Rebekah A. Sayers
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By: /s/ Reyne A. Macadaeg
-----------------------------
Name: Reyne A. Macadaeg
Title: Assistant Vice President
TENTH AMENDMENT TO
THE POOLING AND SERVICING AGREEMENT
TENTH AMENDMENT TO POOLING AND SERVICING AGREEMENT, dated as of
August 14, 1998 (this "Amendment"), by and between FIRST USA BANK, N.A., as
Transferor and Servicer (in such capacities, the "Transferor" and the
"Servicer," respectively), and THE BANK OF NEW YORK (DELAWARE), as Trustee
(in such capacity, the "Trustee").
WHEREAS, the Transferor, the Servicer and the Trustee have
heretofore executed and delivered a Pooling and Servicing Agreement, dated
as of September 1, 1992 (as amended and supplemented through the date
hereof and as the same may be further amended, supplemented or otherwise
modified and in effect from time to time, the "Master Pooling and Servicing
Agreement"), by and between the Transferor, the Servicer and the Trustee,
for the issuance by the First USA Credit Card Master Trust (the "Trust") of
the Investor Certificates and the Exchangeable Transferor Certificate;
WHEREAS, Section 13.01(a) of the Master Pooling and Servicing
Agreement provides that the Servicer, the Transferor and the Trustee,
without the consent of the Investor Certificateholders, may amend the
Master Pooling and Servicing Agreement from time to time so long as the
Trustee shall have received (i) from each Rating Agency then rating the
Investor Certificates, a written notification that such action will not
result in a reduction or withdrawal of the rating of any outstanding Series
which it is then rating and (ii) an Opinion of Counsel to the effect that
such amendment will not adversely affect in any material respect the
interests of the Investor Certificateholders;
WHEREAS, the Trustee has received (i) from each Rating Agency, a
letter confirming the current rating of each outstanding Series and (ii) an
Opinion of Counsel to the effect that such amendment will not adversely
affect in any material respect the interests of the Investor
Certificateholders; and
WHEREAS, all other conditions precedent to the execution of this
Amendment have been complied with;
NOW, THEREFORE, the Servicer, the Transferor and the Trustee are
executing and delivering this Amendment in order to amend the provisions of
the Master Pooling and Servicing Agreement in the manner set forth below.
Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Master Pooling and Servicing Agreement.
SECTION 1. Amendments to Section 1.01. (a) The definition of
"Eligible Account" set forth in Section 1.01 of the Master Pooling and
Servicing Agreement is hereby amended by deleting subsection (c) thereof
and substituting in its place the following subsection (c):
"(c) the Obligor on which has provided, as its most recent
billing address, an address which is located in the United States or
its territories or possessions or a Military Address;"
(b) Section 1.01 of the Master Pooling and Servicing Agreement
is hereby further amended by adding the following definition thereto in the
proper order therefor:
""Military Address" shall mean any mailing address on any
United States armed forces military base of operations, including APO
and FPO Addresses."
SECTION 2. Amendment to Section 2.06(a). Section 2.06(a) of the
Master Pooling and Servicing Agreement is hereby amended by deleting such
subsection in its entirety and substituting therefor the following:
"(a) If, (i) during any period of thirty consecutive days,
the Transferor Interest averaged over that period is less than 4% (or
such higher percentage as may be specified in any Supplement, such
percentage the "Minimum Transferor Interest") of the Average Principal
Receivables, the Transferor shall designate additional eligible
MasterCard or VISA accounts from the Bank Portfolio ("Additional
Accounts") to be included as Accounts in a sufficient amount such that
the average of the Transferor Interest as a percentage of the Average
Principal Receivables for such 30-day period, computed by assuming
that the amount of the Average Principal Receivables of such
Additional Accounts shall be deemed to be outstanding in the Trust
during each day of such 30-day period, is at least equal to the
Minimum Transferor Interest, or (ii) on any Record Date the aggregate
amount of Principal Receivables is less than the Minimum Aggregate
Principal Receivables, the Transferor shall designate Additional
Accounts to be included as Accounts in a sufficient amount such that
the aggregate amount of Principal Receivables will be equal to or
greater than the Minimum Aggregate Principal Receivables. Receivables
from such Additional Accounts shall be transferred to the Trust on or
before the tenth Business Day following such thirty-day period or
Record Date, as the case may be."
SECTION 3. Amendment to Section 4.03(b). Section 4.03(b) of the
Master Pooling and Servicing Agreement is hereby amended by deleting such
subsection in its entirety and substituting therefor the following:
"(b) Allocations for the Exchangeable Transferor
Certificate. Throughout the existence of the Trust, unless otherwise
stated in any Supplement, the Servicer shall allocate to the Holder of
the Exchangeable Transferor Certificate an amount equal to the product
of (A) the Transferor Percentage and (B) the aggregate amount of such
Collections allocated to Principal Receivables and Finance Charge
Receivables, respectively, in respect of each Monthly Period;
provided, however, that amounts payable to the Holder of the
Exchangeable Transferor Certificate pursuant to this clause (b) shall
instead be deposited in the Collection Account to the extent that the
Transferor Interest is less than the Minimum Transferor Interest.
Notwithstanding anything in this Agreement to the contrary, unless
otherwise stated in any Supplement, the Servicer need not deposit this
amount or any other amounts so allocated to the Exchangeable
Transferor Certificate pursuant to any Supplement into the Collection
Account and shall pay, or be deemed to pay, such amounts as collected
to the Holder of the Exchangeable Transferor Certificate."
SECTION 4. Amendment to Section 4.03(f). Section 4.03(f) of the
Master Pooling and Servicing Agreement is hereby amended by deleting such
subsection in its entirety and substituting therefor the following:
"(f) Unallocated Principal Collections. If, pursuant to
any provisions of Article IV, Collections allocated to Principal
Receivables with respect to any Series would cause such Series (a
"Retired Series") to be paid in full or if, pursuant to such
provisions, Collections of Principal Receivables are allocated to the
Holder of the Exchangeable Transferor Certificate and the Transferor
Interest is equal to or less than the Minimum Transferor Interest or
the payment of such amount to the Transferor would cause the
Transferor Interest to be equal to or less than the Minimum Transferor
Interest (any such Collections being referred to as "Allocated
Collections") or any Adjustment Payment is made, any Collections of
Principal Receivables allocated to a Retired Series in excess of the
amount required to pay such Series in full, or to the Transferor
Interest if the Transferor Interest is or would be caused to be less
than the Minimum Transferor Interest or any Adjustment Payment
("Unallocated Principal Collections") shall be retained in the
Collection Account. If on any Business Day following a Business Day
on which Unallocated Principal Collections were retained in the
Collection Account the Transferor Interest is greater than the Minimum
Transferor Interest, such Unallocated Principal Collections may be
released to the Holder of the Exchangeable Transferor Certificate. On
each Transfer Date with respect to each Series in the Monthly Period
succeeding the Monthly Period in which Unallocated Principal
Collections were retained in the Collection Account, such Unallocated
Principal Collections shall be reallocated to outstanding Series (any
such allocation, an "Excess Amount Principal Allocation," and any such
Series, an "Outstanding Series"). Any Excess Amount Principal
Allocation shall be performed assuming that (a) the character of
Unallocated Principal Collections as Principal Receivables shall not
be altered, (b) the Investor Percentages with respect to any
Outstanding Series shall be recalculated assuming that the Retired
Series has been retired and that only the Outstanding Series are
outstanding, (c) Allocated Collections have been paid to the Retiring
Series, (d) if the payment of Allocated Collections as described above
causes a Pay Out Event to occur, Unallocated Principal Collections
shall be allocated as if such Pay Out Event has occurred and (e) the
Unallocated Principal Collections available on any Transfer Date with
respect to any Series shall be applied as if they were available on
the last Business Day of the preceding Monthly Period. On each
Transfer Date immediately preceding each Distribution Date related to
the Amortization Period for any Series, Unallocated Principal
Collections will be deposited in the Principal Account for such Series
to the extent of the lesser of (x) the Principal Shortfall on the last
Business Day of the preceding Monthly Period for such Series and (y)
the aggregate amount of Unallocated Principal Collections retained in
the Collection Account on such day. If more that one Series is in its
Amortization Period, Unallocated Principal Collections retained in the
Collection Account shall be allocated to each outstanding Series pro
rata based on the Principal Shortfall, if any, for each such Series on
the last Business Day of the preceding Monthly Period, and then, at
the option of the Transferor, any remainder may be applied as
principal with respect to any Series of variable funding certificates.
The Servicer shall pay any remaining Shared Principal Collections on
such Transfer Date to the Transferor; provided, that if the Transferor
Interest as determined on such Business Day does not exceed the
Minimum Transferor Interest, then such remaining Unallocated Principal
Collections shall be deposited in the Collection Account in an amount
equal to the lesser of (i) the remaining Unallocated Principal
Collections and (ii) the excess of the Minimum Transferor Interest
over the Transferor Interest on such Business Day."
SECTION 5. Ratification of Master Pooling and Servicing
Agreement. As amended by this Amendment, the Master Pooling and Servicing
Agreement is in all respects ratified and confirmed, and the Master Pooling
and Servicing Agreement, as so amended by this Amendment, shall be read,
taken and construed as one and the same instrument.
SECTION 6. Severability. If any one or more of the covenants,
agreements, provisions or terms or portions thereof of this Amendment shall
be for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms or portions thereof shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Amendment and
shall in no way affect the validity or enforceability of the other
provisions or portions of this Amendment.
SECTION 7. Counterparts. This Amendment may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
SECTION 8. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Servicer, the Transferor and the Trustee
have caused this Amendment to be executed by their respective officers,
thereunto duly authorized, as of the day and year first above written.
FIRST USA BANK, N.A.
as Transferor and Servicer
By: /s/ Rebekah A. Sayers
___________________________
Name: Rebekah A. Sayers
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By: /s/ Cheryl L. Laser
____________________________
Name: Cheryl L. Laser
Title: Assistant Vice President
ELEVENTH AMENDMENT TO
THE POOLING AND SERVICING AGREEMENT
ELEVENTH AMENDMENT TO POOLING AND SERVICING AGREEMENT, dated as
of August 31, 1999 (this "Amendment"), by and between FIRST USA BANK,
NATIONAL ASSOCIATION, as Transferor and Servicer (in such capacities, the
"Transferor" and the "Servicer," respectively), and THE BANK OF NEW YORK
(DELAWARE), as Trustee (in such capacity, the "Trustee").
WHEREAS, the Transferor, the Servicer and the Trustee have
heretofore executed and delivered a Pooling and Servicing Agreement, dated
as of September 1, 1992 (as amended and supplemented through the date
hereof and as the same may be further amended, supplemented or otherwise
modified and in effect from time to time, the "Master Pooling and Servicing
Agreement"), by and between the Transferor, the Servicer and the Trustee,
for the issuance by the First USA Credit Card Master Trust (the "Trust") of
the Investor Certificates and the Exchangeable Transferor Certificate;
WHEREAS, Section 13.01(a) of the Master Pooling and Servicing
Agreement provides that the Servicer, the Transferor and the Trustee,
without the consent of the Investor Certificateholders, may amend the
Master Pooling and Servicing Agreement from time to time so long as the
Trustee shall have received (i) from each Rating Agency then rating the
Investor Certificates, a written notification that such action will not
result in a reduction or withdrawal of the rating of any outstanding Series
which it is then rating and (ii) an Opinion of Counsel to the effect that
such amendment will not adversely affect in any material respect the
interests of the Investor Certificateholders;
WHEREAS, the Trustee has received (i) from each Rating Agency, a
letter confirming the current rating of each outstanding Series and (ii) an
Opinion of Counsel to the effect that such amendment will not adversely
affect in any material respect the interests of the Investor
Certificateholders; and
WHEREAS, all other conditions precedent to the execution of this
Amendment have been complied with;
NOW, THEREFORE, the Servicer, the Transferor and the Trustee are
executing and delivering this Amendment in order to amend the provisions of
the Master Pooling and Servicing Agreement in the manner set forth below.
Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Master Pooling and Servicing Agreement.
SECTION 1. Defined Terms. Section 1.01 of the Master Pooling
and Servicing Agreement is hereby amended by adding the following
definitions thereto in the proper order therefor:
"Aggregate Addition Limit" shall mean the aggregate number
of accounts that may be added as Additional Accounts without prior
satisfaction of the Rating Agency Condition, equal to the aggregate
number of Accounts (exclusive of the aggregate amount of Accounts that
are Approved Accounts), which would either (x) with respect to any
consecutive three-month period, equal 15% of the aggregate number of
Accounts (inclusive of the aggregate number of Accounts that are
Approved Accounts added during such period) as of the first day of
such three-month period or (y) with respect to any twelve-month
period, equal 20% of aggregate number of Accounts (inclusive of the
aggregate number of Accounts that are Approved Accounts added during
such period) as of the first day of such twelve-month period.
"Approved Accounts" shall mean each Additional Account added
to the Trust with respect to which the Rating Agency Condition has
been satisfied.
"Fitch" shall mean Fitch IBCA, Inc.
"Opinion Delivery Date" shall mean March 31, June 30,
September 30 and December 31 of each year; provided, however, that if
in connection with the issuance of a Series of Certificates an Opinion
of Counsel substantially in the form of Exhibit E has been delivered
within the three month period preceding either of such dates then such
date shall not be an "Opinion Delivery Date."
"Rating Agency Condition" shall mean, at any time with
respect to a Series, the written confirmation of the Rating Agency
that a specified event or modification of the terms of such Series
will not result in the withdrawal or downgrade of the rating of the
Certificates of any Series then in effect.
SECTION 2. Amendment to Section 2.06. Section 2.06 of the
Master Pooling and Servicing Agreement is hereby replaced in its entirety
with the following:
Section 2.06 Addition of Accounts.
(a) Required Additions. If, (i) during any period of
thirty consecutive days, the Transferor Interest averaged over that
period is less than 4% (or such higher percentage as may be specified
in any Supplement, such percentage the "Minimum Transferor Interest")
of the Average Principal Receivables, the Transferor shall designate
additional eligible MasterCard or VISA accounts from the Bank
Portfolio ("Additional Accounts") to be included as Accounts in a
sufficient amount such that the average of the Transferor Interest as
a percentage of the Average Principal Receivables for such 30-day
period, computed by assuming that the amount of the Average Principal
Receivables of such Additional Accounts shall be deemed to be
outstanding in the Trust during each day of such 30-day period, is at
least equal to the Minimum Transferor Interest, or (ii) on any Record
Date the aggregate amount of Principal Receivables is less than the
Minimum Aggregate Principal Receivables, the Transferor shall
designate Additional Accounts to be included as Accounts in a
sufficient amount such that the aggregate amount of Principal
Receivables will be equal to or greater than the Minimum Aggregate
Principal Receivables. Receivables from such Additional Accounts
shall be transferred to the Trust on or before the tenth Business Day
following such thirty-day period or Record Date, as the case may be.
(b) Permitted Additions. In addition to its obligation
under subsection 2.06(a), the Transferor may, but shall not be
obligated to, designate from time to time Additional Accounts of the
Transferor to be included as Accounts.
(c) The Transferor agrees that any such transfer of
Receivables from Additional Accounts, under subsection 2.06(a) or (b)
shall satisfy the following conditions (to the extent provided below):
(i) on or before the fifth Business Day prior to the
Addition Date with respect to additions pursuant to subsection
2.06(a) and on or before the tenth Business Day prior to the
Addition Date with respect to additions pursuant to subsection
2.06(b) (the "Notice Date"), the Transferor shall give the
Trustee, each Rating Agency and the Servicer written notice that
such Additional Accounts will be included, which notice shall
specify the approximate aggregate amount of the Receivables to be
transferred;
(ii) on or before the Addition Date, the Transferor
shall have delivered to the Trustee a written assignment
(including an acceptance by the Trustee on behalf of the Trust
for the benefit of the Investor Certificateholders) in
substantially the form of Exhibit B (the "Assignment") and the
Transferor shall have indicated in its computer files that the
Receivables created in connection with the Additional Accounts
have been transferred to the Trust and, within five Business Days
thereafter, the Transferor shall have delivered to the Trustee a
computer file or microfiche list containing a true and complete
list of all Additional Accounts, identified by account number and
the aggregate amount of the Receivables in such Additional
Accounts, as of the Addition Cut Off Date, which computer file or
microfiche list shall be as of the date of such Assignment
incorporated into and made a part of such Assignment and this
Agreement;
(iii) the Transferor shall represent and warrant that
(x) each Additional Account is, as of the Addition Cut Off Date,
an Eligible Account, and each Receivable in such Additional
Account, is, as of the Addition Cut Off Date, an Eligible
Receivable, (y) no selection procedures believed by the
Transferor to be materially adverse to the interests of the
Investor Certificateholders were utilized in selecting the
Additional Accounts from the available Eligible Accounts from the
Bank Portfolio, and (z) as of the Addition Date, the Transferor
is not insolvent;
(iv) the Transferor shall represent and warrant that,
as of the Addition Date, the Assignment constitutes either (x) a
valid transfer and assignment to the Trust of all right, title
and interest of the Transferor in and to the Receivables then
existing and thereafter created in the Additional Accounts, and
all proceeds (as defined in the UCC as in effect in the State of
Delaware) of such Receivables and Insurance Proceeds relating
thereto and such Receivables and all proceeds thereof and
Insurance Proceeds relating thereto will be held by the Trust
free and clear of any Lien of any Person claiming through or
under the Transferor or any of its Affiliates, except for (i)
Liens permitted under subsection 2.05(b), (ii) the interest of
the Transferor as Holder of the Exchangeable Transferor
Certificate and (iii) the Transferor's right to receive interest
accruing on, and investment earnings in respect of, the Finance
Charge Account and the Principal Account, or any Series Account
as provided in this Agreement and any related Supplement or (y) a
grant of a security interest (as defined in the UCC as in effect
in the State of Delaware) in such property to the Trust, which is
enforceable with respect to then existing Receivables of the
Additional Accounts, the proceeds (as defined in the UCC as in
effect in the State of Delaware) thereof and Insurance Proceeds
relating thereto upon the conveyance of such Receivables to the
Trust, and which will be enforceable with respect to the
Receivables thereafter created in respect of Additional Accounts
conveyed on such Addition Date, the proceeds (as defined in the
UCC as in effect in the State of Delaware) thereof and Insurance
Proceeds relating thereto upon such creation; and (z) if the
Assignment constitutes the grant of a security interest to the
Trust in such property, upon the filing of a financing statement
as described in Section 2.01 with respect to such Additional
Accounts and in the case of the Receivables thereafter created in
such Additional Accounts and the proceeds (as defined in the UCC
as in effect in the State of Delaware) thereof, and Insurance
Proceeds relating thereto, upon such creation, the Trust shall
have a first priority perfected security interest in such
property (subject to Section 9-306 of the UCC as in effect in the
State of Delaware), except for Liens permitted under subsection
2.05(b);
(v) the Transferor shall deliver an Officer's
Certificate substantially in the form of Schedule 2 to Exhibit B
to the Trustee confirming the items set forth in paragraph (ii)
above;
(vi) on or before the Opinion Delivery Date, the
Transferor shall deliver to the Trustee (with a copy to each
Rating Agency) an Opinion of Counsel with respect to the
Receivables arising in Accounts included as Additional Accounts
during the preceding three month period substantially in the form
of Exhibit E; and
(vii) if (a) with respect to any three-month period or
with respect to any twelve-month period, the aggregate number of
Accounts designated to have their Receivables added to the Trust
shall exceed the applicable Aggregate Addition Limit or (b) the
Accounts designated to have their Receivables added to the Trust
were not originated by the Transferor, the Transferor shall have
received notice from Standard & Poor's, Moody's and Fitch that
the inclusion pursuant to subsection 2.06(b) of accounts as
Additional Accounts that are in excess of the applicable
Aggregate Addition Limit or were not originated by the Transferor
will not result in the reduction or withdrawal of its then
existing rating of any Series of Investor Certificates then
issued and outstanding and shall have delivered such notice to
the Trustee.
SECTION 3. Ratification of Master Pooling and Servicing
Agreement. As amended by this Amendment, the Master Pooling and Servicing
Agreement is in all respects ratified and confirmed, and the Master Pooling
and Servicing Agreement, as so amended by this Amendment, shall be read,
taken and construed as one and the same instrument.
SECTION 4. Severability. If any one or more of the covenants,
agreements, provisions or terms or portions thereof of this Amendment shall
be for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms or portions thereof shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Amendment and
shall in no way affect the validity or enforceability of the other
provisions or portions of this Amendment.
SECTION 5. Counterparts. This Amendment may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
SECTION 6. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Servicer, the Transferor and the Trustee
have caused this Amendment to be executed by their respective officers,
thereunto duly authorized, as of the day and year first above written.
FIRST USA BANK, NATIONAL ASSOCIATION
as Transferor and Servicer
By:/s/ Thomas J. Hopkins
_______________________________
Name: Thomas J. Hopkins
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By:/s/ Betty A. Cocozza
________________________________
Name: Betty A. Cocozza
Title: Agent
FIRST USA BANK, N.A.
Transferor and Servicer
and
THE BANK OF NEW YORK (DELAWARE)
on behalf of the Certificateholders
_____________________________
SERIES 1999-_ SUPPLEMENT
Dated as of _____, ______
to
POOLING AND SERVICING AGREEMENT
Dated as of September 1, 1992, as amended
__________________________
$_____________
FIRST USA CREDIT CARD MASTER TRUST
Series 1999-_
TABLE OF CONTENTS
Page
SECTION 1. Designation . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 2. Definitions . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 3. Reassignment and Transfer Terms . . . . . . . . . . . . . . 27
SECTION 4. Delivery and Payment for the Series 1999-_
Certificates . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 5. Depositary; Form of Delivery of the Series
1999-_ Certificates . . . . . . . . . . . . . . . . . . . 28
SECTION 6. Article IV of Agreement . . . . . . . . . . . . . . . . . . 28
Article IV
Rights of Certificateholders and
Allocation and Application of Collections . . . . . . 29
Section 4.04 Rights of Certificateholders . . . . . . . . . . . . . 29
Section 4.05 Collections and Allocation . . . . . . . . . . . . . . 30
Section 4.06 Determination of Monthly Interest for
the Series 1999-_ 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 . . . . . . . . . . . . . . . . . . . 40
Section 4.10 Payment of Class A Certificate and
Class B 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 1999-_ Certificates . . . . . . . . . . . . 48
Section 4.14 Reallocated Principal Collections for
the Series 1999-_ Certificates . . . . . . . . . . . . 51
Section 4.15 [RESERVED] . . . . . . . . . . . . . . . . . . . . . . 52
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 8. Series 1999-_ Pay Out Events . . . . . . . . . . . . . . . 61
SECTION 9. Series 1999-_ Termination . . . . . . . . . . . . . . . . . 63
SECTION 10. Periodic Finance Charges and Other Fees . . . . . . . . . 63
SECTION 11. Transfer of Excess Collateral Amount . . . . . . . . . . . 64
SECTION 12. Compliance with Withholding Requirements . . . . . . . . . 67
SECTION 13. Tax Characterization of the Excess
Collateral . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 14. [RESERVED] . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 15. Amendment and Ratification of Agreement . . . . . . . . . 68
SECTION 16. Counterparts . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 17. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 18. Additional Representations and Warranties
of the Servicer . . . . . . . . . . . . . . . . . . . . . 69
SECTION 19. Appointment of co-Paying Agent, co-Transfer
Agent and co-Registrar . . . . . . . . . . . . . . . . . 67
EXHIBITS
EXHIBIT A Form of Class A Certificate
EXHIBIT B Form of Class B Certificate
EXHIBIT C DTC Letter of Representations
EXHIBIT D Form of Monthly Allocations and Payment Instructions
EXHIBIT E Form of Monthly Certificateholders'
Statement
EXHIBIT F Form of Transferee Representation Letter
SERIES 1999-_ SUPPLEMENT, dated as of ________, ______(this
"Series Supplement") by and between FIRST USA BANK, N.A., a national
banking association, 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, N.A. 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 Class A Certificates
and the Class B Certificates (each as defined below) and for the issuance
of the Excess Collateral (as defined below).
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 Investor Certificates of Series
1999-_ 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 1999-_
Certificates." The Series 1999-_ Certificates shall be issued in three
Classes, two of which shall be designated generally as the Class A Floating
Rate Asset Backed Certificates, Series 1999-_ (the "Class A Certificates")
and the Class B Floating Rate Asset Backed Certificates, Series 1999-_ (the
"Class B Certificates"). In addition, there is hereby created a third
Class of uncertificated interests in the Trust which shall be designated
generally as the Excess Collateral, Series 1999-_ (the "Excess
Collateral"), and which shall be treated as a Class of "Investor
Certificates" for all purposes under the Agreement and this Series
Supplement; provided, however, that the provisions of subsection 6.09(b) of
the Agreement 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 shall not apply to the Excess
Collateral and, except as expressly provided herein, the provisions of
Article VI and Article XII of the Agreement relating to the authentication,
delivery, presentation, cancellation and surrender of registered
Certificates shall not apply to the Excess Collateral.
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 1999-_ 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 __________, ______ 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 1999-_
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 1999-_) 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 1999-_
Certificates for the previous Monthly Period.
"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 Excess
Collateral Adjusted Amount.
"Agreement" shall mean the Pooling and Servicing Agreement dated
as of September 1, 1992 between First USA Bank, N.A., as Transferor and
Servicer, and the Trustee, as amended and as the same may be further
amended or otherwise modified from time to time.
"Amortization Period" shall mean, with respect to the Series
1999-_ 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 Excess
Collateral Holders of the Excess Collateral Amount, and (ii) the Scheduled
Series 1999-_ 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) 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 (iii) 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 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 Excess Collateral Minimum 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 Excess Collateral Amount, respectively, as
of the last day of such Monthly Period) plus the product of 2.00% and the
percentage equivalent of a fraction the numerator of which is the Adjusted
Invested Amount and the denominator of which is the Invested Amount each as
of the last day of such Monthly Period.
"BDL" shall mean Banque de Luxembourg.
"Business Day" shall mean, for the purpose of determining LIBOR,
any day other than a Saturday, Sunday or day on which banking institutions
in London, England, trading in Dollar deposits in the London interbank
market, or banking institutions in New York, New York, or in Newark,
Delaware, are authorized or obligated by law or executive order to be
closed and for all other purposes shall have the meaning provided in the
Agreement.
"Calculation Date" shall mean _______, _____ and the second
Business Day (as defined for purposes of determining LIBOR) prior to the
15th day of each calendar month thereafter.
"Class A Account Percentage" shall mean, with respect to any
Determination Date, the percentage equivalent of a fraction, the numerator
of which is the aggregate amount deposited in the Principal Funding Account
on prior Transfer Dates pursuant to subsection 4.09(e)(i) and the
denominator of which is the aggregate amount on deposit in the Principal
Funding Account as of the last day of the preceding Monthly Period.
"Class A Adjusted Invested Amount" shall mean, with respect to
any date of determination, an amount not less than zero equal to the
Class A Invested Amount minus the Principal Funding Account Balance on such
date of determination.
"Class A Available Funds" shall mean, with respect to any Monthly
Period, an amount equal to the sum of (a) the Class A Floating Allocation
Percentage of the Collections of Finance Charge Receivables in respect of
such Monthly Period and (b) with respect to any Monthly Period during the
Accumulation Period prior to the payment in full of the Class A Invested
Amount, the product of (i) the Class A Account Percentage and (ii) the sum
of the Principal Funding Investment Proceeds pursuant to subsection 4.16(b)
of the Agreement, if any, with respect to the related Transfer Date and the
amounts, if any, to be withdrawn from the Reserve Account which will be
deposited into the Finance Charge Account on the related Transfer Date
pursuant to subsections 4.17(b), 4.17(d), 4.17(e) and 4.17(f) of the
Agreement.
"Class A Certificate Rate" shall mean a per annum rate of 0.__%
in excess of LIBOR as determined (i) on ________, ____ for the period from
and including the Closing Date through and including ________, ____, 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 1999-_ Certificateholders' Interest evidenced by the Class A
Certificates.
"Class A Certificates" shall mean any of the certificates
executed by the Transferor and authenticated by or on behalf of the
Trustee, substantially in the form of Exhibit A hereto.
"Class A Default Interest" shall have the meaning specified in
subsection 4.06(a) of the Agreement.
"Class A Floating Allocation Percentage" shall mean, with respect
to any Monthly Period, the percentage equivalent of a fraction, the
numerator of which is the Class A Adjusted Invested Amount as of the last
day of the preceding Monthly Period and the denominator of which is the
total amount of Principal Receivables in the Trust as of the last day of
such preceding Monthly Period; provided, however, that, with respect to the
first Monthly Period, the Class A Floating Allocation Percentage shall mean
the percentage equivalent of a fraction, the numerator of which is the
Class A Initial Invested Amount and the denominator of which is the total
amount of Principal Receivables in the Trust on the Closing Date; provided
further, that with respect to any Monthly Period in which an Addition Date
or a Removal Date occurs and the Servicer need not make daily deposits of
Collections into the Collection Account, the denominator in the definition
of the Class A Floating Allocation Percentage shall be the Average
Principal Balance; provided further, that with respect to any Monthly
Period in which an Addition Date or Removal Date occurs and the Servicer is
required to make daily deposits of Collections into the Collection Account,
the denominator in the definition of the Class A Floating Allocation
Percentage shall be (1) the aggregate amount of Principal Receivables in
the Trust at the end of the day on the last day of the prior Monthly Period
for the period from and including the first day of such 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 $_________.
"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.
"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 $_______.
"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 Required Amount" shall have the meaning specified in
Section 4.08 of the Agreement.
"Class A Scheduled Payment Date" shall mean the ___________
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.
"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.__%
in excess of LIBOR as determined (i) on ________, _____ for the period from
and including the Closing Date through and including _______, _____, 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 1999-_ 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/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 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 $________.
"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 Excess Collateral
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.
"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 $_______.
"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 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 Available
Investor Principal Collections allocable to the Investor Certificates
remaining after payments have been made to the Class A Certificates on such
Distribution Date, the Distribution Date following the Distribution Date on
which the Class A Invested Amount is paid in full.
"Class B Required Amount" shall have the meaning specified in
Section 4.08 of the Agreement.
"Class B Scheduled Payment Date" shall mean the _____________
Distribution Date.
"Closing Date" shall mean _______, ____
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Collateral Base Rate" shall mean, with respect to any Monthly
Period, the sum of (a) the weighted average of the Class A Certificate
Rate, the Class B Certificate Rate and the Excess Collateral Minimum Rate
(weighted based on the Class A Invested Amount, the Class B Invested Amount
and the Excess Collateral Amount, respectively, as of the last day of such
Monthly Period) plus (b) the Series Servicing Fee Percentage per annum.
"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, $__________; provided, however, that if the
Accumulation Period Length is determined to be less than 12 months pursuant
to subsection 4.09(i) of the Agreement, the Controlled Accumulation Amount
for each Transfer Date with respect to the Accumulation Period prior to the
payment in full of the Invested Amount will be equal to (i) the product of
(x) the Initial Invested Amount and (y) the Accumulation Period Factor for
such Monthly Period divided by (ii) the Required Accumulation Factor
Number.
"Controlled Deposit Amount" shall mean, with respect to any
Transfer Date, the sum of (a) the Controlled Accumulation Amount for such
Transfer Date and (b) any existing Accumulation Shortfall.
"Covered Amount" shall mean, with respect to any Interest Period
during the Accumulation Period prior to the payment in full of the Invested
Amount, the sum of (a) with respect to the Class A Certificates, the
product of (i) a fraction, the numerator of which is the actual number of
days in such Interest Period and the denominator of which is 360, (ii) the
Class A Certificate Rate in effect with respect to such Interest Period and
(iii)the aggregate amount on deposit in the Principal Funding Account with
respect to Class A Monthly Principal as of the last day of the Monthly
Period preceding the Monthly Period in which such Interest Period ends, (b)
with respect to the Class B Certificates, the product of (i) a fraction,
the numerator of which is the actual number of days in such Interest Period
and the denominator of which is 360, (ii) the Class B Certificate Rate in
effect with respect to such Interest Period and (iii) the aggregate amount
on deposit in the Principal Funding Account with respect to Class B Monthly
Principal as of the last day of the Monthly Period preceding the Monthly
Period in which such Interest Period ends, and (c) with respect to the
Excess Collateral, the product of (i) a fraction, the numerator of which is
the actual number of days in such Interest Period and the denominator of
which is 360, (ii) the Excess Collateral Minimum Rate in effect with
respect to such Interest Period and (iii) the aggregate amount on deposit
in the Principal Funding Account with respect to Excess Collateral Monthly
Principal as of the last day of the Monthly Period preceding the Monthly
Period in which such Interest Period ends.
"Daily Deposit Date" shall mean the Determination Date on which
the Excess Spread Percentage 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 and Class B Default Interest
distributable in respect of the Class A Certificates and Class B
Certificates, respectively, 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 _______, ____ and the __th day of
each calendar month thereafter, or if such __th 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 Excess
Collateral, and with respect to the Class B Certificates, the subordination
of the Excess Collateral.
"Enhancement Provider" shall mean the Excess Collateral Holders.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"Excess Collateral" shall mean an undivided interest in the Trust
which shall consist of the right to receive from the Trust an amount equal
to (i) to the extent necessary to make the required payments to the Excess
Collateral Holders under this Series Supplement, the portion of Collections
allocable thereto under the Agreement and this Series Supplement, and funds
on deposit in the Collection Account allocable thereto pursuant to the
Agreement and this Series Supplement, and (ii) amounts available pursuant
to subsection 4.13(k) of the Agreement.
"Excess Collateral 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.
"Excess Collateral Adjusted Amount" shall mean, with respect to
any date of determination, an amount not less than zero equal to the Excess
Collateral 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.
"Excess Collateral Amount" shall mean, when used with respect to
any date of determination, an amount equal to (a) the Excess Collateral
Initial Amount, minus (b) the aggregate amount of principal payments made
to Excess Collateral Holders prior to such day, minus (c) the aggregate
amount of Excess Collateral 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 Excess Collateral Initial Amount), minus (e) an amount
equal to the amount by which the Excess Collateral 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 Excess Collateral Amount may not be reduced below zero.
"Excess Collateral Available Funds" shall mean, with respect to
any Monthly Period, an amount equal to the sum of (a) the Excess Collateral
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 Excess Collateral Amount, the product of (i) the Excess Collateral
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.
"Excess Collateral Charge-Offs" shall have the meaning specified
in subsection 4.12(c) of the Agreement.
"Excess Collateral 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 Excess Collateral Percentage applicable for the related Monthly Period.
"Excess Collateral 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 Excess Collateral
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.
"Excess Collateral Floating Allocation Percentage" shall mean,
with respect to any Monthly Period, the percentage equivalent of a
fraction, the numerator of which is the Excess Collateral Adjusted 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 Excess Collateral Floating
Allocation Percentage shall mean the percentage equivalent of a fraction,
the numerator of which is the Excess Collateral Initial 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 Excess Collateral 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 Excess Collateral 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.
"Excess Collateral Holders" shall mean the Person or Persons so
designated in the Transfer and Administration Agreement.
"Excess Collateral Initial Amount" shall mean the aggregate
initial principal amount of the Excess Collateral Amount, which is
$__________.
"Excess Collateral Interest Shortfall" shall have the meaning
specified in subsection 4.06(c) of the Agreement.
"Excess Collateral Minimum Monthly Interest" shall mean the
monthly interest distributable in respect of the Excess Collateral Amount
as calculated in accordance with subsection 4.06(c) of the Agreement.
"Excess Collateral Minimum Rate" shall mean a per annum rate of
1.00% in excess of LIBOR as determined (i) on _______, _____ for the period
from and including the Closing Date and (ii) on the related LIBOR
Determination Date with respect to each Interest Period thereafter, or such
lesser rate as may be designated in the Transfer and Administration
Agreement.
"Excess Collateral Monthly Principal" shall mean the monthly
principal distributable in respect of the Excess Collateral Amount as
calculated in accordance with subsection 4.07(c) of the Agreement.
"Excess Collateral Monthly Servicing Fee" shall mean, with
respect to any Distribution Date, one-twelfth of the product of the Series
Servicing Fee Percentage and the Excess Collateral Adjusted Amount on the
last day of the preceding Monthly Period; provided, however, that with
respect to the initial Monthly Period the Excess Collateral Monthly
Servicing Fee shall be $_______.
"Excess Collateral 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 Excess
Collateral Floating Allocation Percentage, and (b) with respect to
Principal Receivables during the Amortization Period, the Excess Collateral
Fixed/Floating Allocation Percentage.
"Excess Collateral Principal Commencement Date" shall mean (a)
with respect to the Accumulation Period, the first Distribution Date on
which an amount equal to the sum of the Class A Invested Amount and the
Class B Invested Amount has been deposited in the Principal Funding 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.
"Excess Collateral Scheduled Payment Date" shall mean the __________
Transfer Date.
"Excess Finance Charge Collections" shall mean, with respect to
any Transfer Date, the sum of the amounts, if any, specified pursuant to
subsections 4.09(a)(iv), 4.09(b)(iii) and 4.09(c)(ii) of the Agreement with
respect to such Transfer Date.
"Excess Principal Collections" shall mean, as the context
requires, either (a) the amount allocated to the Investor Certificates
which, in accordance with subsections 4.05(b)(ii), 4.05(c)(ii) and 4.05(f)
of the Agreement, may be applied to Principal Shortfalls with respect to
other outstanding Series or (b) the amounts allocated to the investor
certificates of other Series which the applicable supplements for such
Series specify are to be treated as "Excess Principal Collections" and
which may be applied to cover Principal Shortfalls with respect to the
Investor Certificates.
"Excess Spread Percentage" shall mean, with respect to any
Monthly Period, the amount, if any, by which (i) the Net Portfolio Yield
exceeds (ii) the Collateral Base Rate.
"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
applicable Excess Collateral Floating Allocation Percentage.
"Initial Invested Amount" shall mean the aggregate initial
principal amount of the Investor Certificates of Series 1999-_, which is
$_________.
"Initial Purchaser" shall have the meaning specified in
subsection 11(c) of this Series Supplement.
"Interest Period" shall mean, with respect to a Distribution Date
and, with respect to the Excess Collateral, the Transfer Date relating to
such 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 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 Excess Collateral 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 Excess Collateral 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
Excess Collateral Adjusted Amount with respect to any date of
determination.
"Investor Certificateholder" shall mean the Holder of record of
an Investor Certificate of Series 1999-_.
"Investor Certificates" shall mean the Class A Certificates, the
Class B Certificates and the Excess Collateral.
"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 Excess Collateral Default
Amount for such Distribution Date.
"Investor Monthly Servicing Fee" shall, with respect to any
Distribution Date, be equal to one-twelfth of the product of (A) the Series
Servicing Fee Percentage and (B) the Adjusted Invested Amount as of the
last day of the Monthly Period preceding such Transfer Date; provided,
however, that with respect to the initial Monthly Period the Investor
Monthly Servicing Fee shall be $_______.
"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) _____, _____for the
period from and including the Closing Date through and including ________,
_____ 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, 4% 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 Excess Collateral Minimum Monthly Interest distributable in respect
of the Series 1999-_ 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
1999-_ Certificates shall begin on and include the Closing Date and shall
end on and include _______, ____
"Monthly Principal" shall mean the monthly principal
distributable in respect of the Series 1999-_ Certificates as calculated in
accordance with Section 4.07 of the Agreement.
"Net Portfolio Yield" shall mean for the Series 1999-_
Certificates, with respect to any Monthly Period, the annualized percentage
equivalent of a fraction, the numerator of which is an amount equal to the
amount of Collections of Finance Charge Receivables allocated to the Series
1999-_ Certificates for such Monthly Period 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 sum of the Class A
Adjusted Invested Amount, the Class B Adjusted Invested Amount and the
Excess Collateral Adjusted Amount as of the last day of the preceding
Monthly Period.
"Pay Out Commencement Date" shall mean the earliest to occur of
(i) the date on which a Trust Pay Out Event is deemed to occur pursuant to
Section 9.01 of the Agreement, (ii) the date on which a Series 1999-_ 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 1999-_ 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, (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 to be
calculated on a cash basis after subtracting an amount equal to the
Investor Default Amount for such Monthly Period, and the denominator of
which is the Invested Amount as of the last day of the preceding Monthly
Period.
"Principal Funding Account" shall have the meaning set forth in
subsection 4.16(a) of the Agreement.
"Principal Funding Account Balance" shall mean, with respect to
any date of determination during the Accumulation Period, the principal
amount, if any, on deposit in the Principal Funding Account on such date of
determination.
"Principal Funding Investment Proceeds" shall mean, with respect
to each Interest Period during the Accumulation Period, the investment
earnings on funds in the Principal Funding Account (net of investment
expenses and losses) for such Interest Period.
"Principal Funding Investment Shortfall" shall mean, with respect
to each Interest Period during the Accumulation Period, the amount, if any,
by which the Principal Funding Investment Proceeds are less than the
Covered Amount.
"Principal Shortfalls" shall mean, with respect to any
Distribution Date (a) during the Accumulation Period, the amount, if any,
by which the Controlled Deposit Amount exceeds the sum of the Class A
Monthly Principal, Class B Monthly Principal and Excess Collateral 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 Excess Collateral
Principal Commencement Date, the amount if any, by which the Excess
Collateral Amount exceeds the Excess Collateral Monthly Principal for such
Distribution Date.
"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 1999-_ Termination Date.
"Rating Agency" shall mean each of Fitch IBCA, Inc., Moody's and
Standard & Poor's.
"Rating Agency Condition" shall mean the notification in writing
by each Rating Agency to the Transferor, the Servicer and the Trustee that
any action will not result in any Rating Agency reducing or withdrawing its
then existing rating of the investor certificates of any outstanding Series
or class with respect to which it is a Rating Agency.
"Reallocated Class B Principal Collections" shall have the
meaning specified in subsection 4.14(b) of the Agreement.
"Reallocated Excess Collateral 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 Excess Collateral
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 Excess
Collateral Holders 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 1999-_.
"Reserve Account" shall have the meaning specified in subsection
4.17(a) of the Agreement.
"Reserve Account Funding Date" shall mean the Transfer Date which
occurs not later than the earliest of (a) the Transfer Date with respect to
the Monthly Period which commences 3 months prior to the commencement of
the Accumulation Period; (b) the first Transfer Date for which the
Portfolio Adjusted Yield is less than 2.0%, but in such event the Reserve
Account Funding Date shall not be required to occur earlier than the
Transfer Date which commences 12 months prior to the commencement of the
Accumulation Period; (c) the first Transfer Date for which the Portfolio
Adjusted Yield is less than 3.0%, but in such event the Reserve Account
Funding Date shall not be required to occur earlier than the Transfer Date
which commences 6 months prior to the commencement of the Accumulation
Period; or (d) the first Transfer Date for which the Portfolio Adjusted
Yield is less than 3.5%, but in such event the Reserve Account Funding Date
shall not be required to occur earlier than the Transfer Date which
commences 4 months prior to the commencement of the Accumulation Period.
"Reserve Account Surplus" shall mean, as of any Transfer Date
following the Reserve Account Funding Date, the amount, if any, by which
the amount on deposit in the Reserve Account exceeds the Required Reserve
Account Amount.
"Reserve Draw Amount" shall have the meaning specified in
subsection 4.17(c) of the Agreement.
"Reversion Date" shall mean the first Determination Date
following any Daily Deposit Date on which the Excess Spread Percentage for
the Monthly Period preceding such Determination Date is equal to or exceeds
2.50% per annum.
"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 1999-_ Termination Date" shall mean the
___________ Distribution Date.
"Series 1999-_" shall mean the Series of the First USA Credit
Card Master Trust represented by the Investor Certificates.
"Series 1999-_ Certificateholder" shall mean the holder of record
of any Series 1999-4 Certificate.
"Series 1999-_ Certificateholders' Interest" shall have the
meaning specified in Section 4.04 of the Agreement.
"Series 1999-_ Certificates" shall have the meaning specified in
Section 1 of this Series Supplement.
"Series 1999-_ Pay Out Event" shall have the meaning specified in
Section 8 of this Series Supplement.
"Series 1999-_ 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 1999-_
Termination Date.
"Series Servicing Fee Percentage" shall mean 1.50% for so long as
First USA Bank, N.A. is the Servicer or 2.00% if First USA Bank, N.A. is no
longer the Servicer.
"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 Excess Collateral (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.
"Transfer and Administration Agreement" shall mean the agreement
among the Transferor and the Excess Collateral Holders, dated the Closing
Date, as amended, supplemented or otherwise modified from time to time.
"Unpaid Investor Monthly Servicing Fee" shall mean with respect
to any Transfer Date, the amount of the Investor Monthly Servicing Fee with
respect to such Transfer Date not distributed to the Servicer pursuant to
subsection 4.09(a)(ii), subsection 4.09(b)(ii), subsection 4.09(c)(i), or
subsection 4.13(a) of the Agreement and any overdue Investor Monthly
Servicing Fee from prior Transfer Dates.
SECTION 3. Reassignment and Transfer Terms. The Series 1999-_
Certificates shall be subject to retransfer to the Transferor at its
option, in accordance with the terms specified in subsection 12.02(a) of
the Agreement, on any Distribution Date on or after the Distribution Date
on which the Invested Amount is reduced to an amount less than or equal to
5% of the Initial Invested Amount. The deposit required in connection with
any such repurchase shall be equal to the Invested Amount plus accrued and
unpaid interest on the Series 1999-_ Certificates through the Record Date
preceding the Distribution Date on which the repurchase occurs.
SECTION 4. Delivery and Payment for the Series 1999-_
Certificates. The Transferor shall execute and deliver the Class A
Certificates and the Class B Certificates to the Trustee for authentication
in accordance with Section 6.01 of the Agreement. The Trustee shall
deliver the Class A Certificates and the Class B Certificates when
authenticated in accordance with Section 6.02 of the Agreement.
SECTION 5. Depositary; Form of Delivery of the Series 1999-_
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.
(b) The Depositary for Series 1999-_ 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 1999-_ 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 1999-_ 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 1999-_ 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 1999-_ Certificateholders.
(c) The Distribution Account. The Trustee, for the benefit of
the Series 1999-_ 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 1999-_
Certificateholders. The Trustee shall possess all right, title
and interest in all funds on deposit from time to time in the
Distribution Account and in all proceeds thereof. The
Distribution Account shall be under the sole dominion and control
of the Trustee for the benefit of the Series 1999-_
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 1999-_ 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 1999-_
Certificateholders' Interest"). The Excess Collateral 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 1999-_ Certificates as described in this Article IV.
(b) Daily Allocations During the Revolving Period. During the
Revolving Period, the Servicer shall, prior to the close of business on
each Date of Processing, allocate the following amounts as set forth below:
(i) Allocate to the Series 1999-_ 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 1999-_ 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 $________ to be applied as
Collections of Finance Charge Receivables allocated to the Series
1999-_ 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 1999-_ Certificateholders the
Floating Allocation Percentage of Collections of Finance Charge
Receivables and deposit and retain in the Finance Charge Account an
amount equal to the product of (i) the Floating Allocation Percentage
and (ii) the aggregate amount of Collections of Finance Charge
Receivables on such Date of Processing.
(ii) Allocate to the Series 1999-_ 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 the Minimum Transferor
Interest (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 Excess Collateral Floating
Allocation Percentage and (y) the Collections of Principal Receivables
on any such Date of Processing ("Subordinate Principal Collections")
with respect to the then current Monthly Period will be deposited into
the Principal Account on a daily basis during such Monthly Period in
an aggregate amount not to exceed the Finance Charge Deficit; at such
time as the Finance Charge Deficit is equal to zero, such amounts may
be released from the Principal Account and paid to the holder of the
Exchangeable Transferor Certificate, subject to the preceding proviso.
(c) Daily Allocations During the Accumulation Period. During
the Accumulation Period, the Servicer shall, prior to the close of business
on each Date of Processing, allocate the following amounts as set forth
below:
(i) Allocate to the Series 1999-_ 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 1999-_ 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
the Minimum Transferor Interest (after giving effect to all Principal
Receivables transferred to the Trust on such day) and otherwise shall
be deposited in the Collection Account and applied in accordance with
subsection 4.03(f) of the Agreement; provided, further, that on and
after the Calculation Date if there is a Finance Charge Deficit,
Subordinate Principal Collections with respect to each Monthly Period
will be deposited into the Principal Account on a daily basis during
such Monthly Period in an aggregate amount not to exceed the Finance
Charge Deficit; at such time as the Finance Charge Deficit is equal to
zero, such amounts may be released from the Principal Account to the
holder of the Exchangeable Transferor Certificate, subject to the
preceding proviso.
(d) Daily Allocations During the Rapid Amortization Period.
During the Rapid Amortization Period, the Servicer shall, prior to the
close of business on each Date of Processing, allocate the following
amounts as set forth below:
(i) Allocate to the Series 1999-_ 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 1999-_ 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 1999-_ 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 the Minimum
Transferor Interest (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 1999-_ Certificateholders and
deposit in the Finance Charge Account an amount equal to (i) the lesser of
(A) the product of (x) the Floating Allocation Percentage with respect to
the preceding Monthly Period and (y) the aggregate amount of Collections of
Finance Charge Receivables for the related Monthly Period, and (B) the
aggregate of the amounts to be applied from amounts on deposit in the
Finance Charge Account on such Transfer Date pursuant to subsections
4.09(a)(i) through (iii), 4.09(b)(i) and (ii), 4.09(c)(i) and 4.13(a)
through (k) of the Agreement, 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, N.A., as Transferor or Servicer,
pursuant to this Agreement or the Transfer and Administration Agreement,
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, N.A., 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 1999-_, 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 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 1999-_. 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
1999-_ Certificates. (a) The amount of monthly interest (for the Series
1999-_ 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 (a) the Class A Certificate rate for the period from and including the
Closing Date to and including _______, ____, (b)__ divided by 360 and (c)
the Class A Initial Invested Amount.
On the Determination Date preceding each Distribution Date, the
Servicer shall determine an amount (the "Class A Interest Shortfall") equal
to the excess, if any, of (x) the aggregate Class A Monthly Interest for
the Interest Period applicable to the preceding Distribution Date over (y)
the amount which was paid to the Class A Certificateholders in respect of
interest on such preceding Distribution Date. If there is a Class A
Interest Shortfall with respect to any Distribution Date, an additional
amount ("Class A Default Interest") shall be payable as provided herein
with respect to the Class A Certificates on each Distribution Date
following such Distribution Date to and including the Distribution Date on
which such Class A Interest Shortfall is paid to Class A Certificateholders
equal to the product of (i) the product of (x) the Class A Certificate Rate
plus 2.00% per annum and (y) a fraction the numerator of which is the
actual number of days in the related Interest Period and the denominator of
which is 360 and (ii) such Class A Interest Shortfall. Notwithstanding
anything to the contrary herein, Class A Default Interest shall be payable
or distributed to Class A Certificateholders only to the extent permitted
by applicable law.
(b) The amount of monthly interest (for the Series 1999-_
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 (a) the
outstanding principal amount of the Class B Certificate rate for the period
from and through the Closing Date to and including _______, ____, (b) __
divided by 360 and (c) the Class B Initial Invested Amount.
On the Determination Date preceding each Distribution Date, the
Servicer shall determine an amount (the "Class B Interest Shortfall") equal
to the excess, if any, of (x) the aggregate Class B Monthly Interest for
the Interest Period applicable to the preceding Distribution Date over (y)
the amount which was paid to the Class B Certificateholders in respect of
interest on such preceding Distribution Date. If there is a Class B
Interest Shortfall with respect to any Distribution Date, an additional
amount ("Class B Default Interest") shall be payable as provided herein
with respect to the Class B Certificates on each Distribution Date
following such Distribution Date to and including the Distribution Date on
which such Class B Interest Shortfall is paid to Class B Certificateholders
equal to the product of (i) the product of (x) the Class B Certificate Rate
plus 2.00% per annum and (y) a fraction the numerator of which is the
actual number of days in the related Interest Period and the denominator of
which is 360 and (ii) such Class B Interest Shortfall. Notwithstanding
anything to the contrary herein, Class B Default Interest shall be payable
or distributed to Class B Certificateholders only to the extent permitted
by applicable law.
(c) The minimum amount of monthly interest (for the Series 1999-
_ Certificates, the "Excess Collateral Minimum Monthly Interest")
distributable with respect to the Excess Collateral on any Transfer Date
shall be an amount equal to the product of (i) the product of (x) the
Excess Collateral Minimum Rate and (y) a fraction , the numerator of which
is the actual number of days in the related Interest Period and the
denominator is which is 360 and (ii) the Excess Collateral Amount as of the
close of business on the last day of the preceding Monthly Period;
provided, however, that with respect to the first Transfer Date, Excess
Collateral Minimum Monthly Interest shall be equal to the product of (a)
the Excess Collateral Minimum Rate for the period from and including the
Closing Date to and including ________, ____, (b) a fraction the numerator
of which is __ and the denominator of which is 360, and (c) the Excess
Collateral Initial Amount.
On the Determination Date preceding each Transfer Date, the
Servicer shall determine an amount (the "Excess Collateral Interest
Shortfall") equal to the excess, if any, of (x) the aggregate Excess
Collateral Minimum Monthly Interest for the Interest Period applicable to
the preceding Transfer Date over (y) the amount which was paid to the
Excess Collateral Holders in respect of interest on such preceding Transfer
Date pursuant to the terms hereof.
Section 4.07 Determination of Monthly Principal. (a) The amount
of monthly principal (the "Class A Monthly Principal") distributable from
the Principal Account with respect to the Class A Certificates on each
Transfer Date beginning with the Transfer Date in the month following the
month in which the Accumulation Period or, if earlier, the Rapid
Amortization Period begins shall be equal to the least of (i) the Available
Investor Principal Collections on deposit in the Principal Account with
respect to such Transfer Date, (ii) for each Transfer Date with respect to
the Accumulation Period prior to the Class A Scheduled Payment Date, the
Controlled Deposit Amount for such Transfer Date and (iii) the Class A
Adjusted Invested Amount on such Transfer Date prior to any deposit into
the Principal Funding Account to be made on such day.
(b) The amount of monthly principal (the "Class B Monthly
Principal") distributable from the Principal Account with respect to the
Class B Certificates on each Transfer Date, beginning with the Transfer
Date first preceding the Class B Principal Commencement Date, shall be an
amount equal to the least of (i) the Available Investor Principal
Collections on deposit in the Principal Account with respect to such
Transfer Date (minus the portion of such Available Investor Principal
Collections applied to Class A Monthly Principal on such Transfer Date),
(ii) for each Transfer Date with respect to the Accumulation Period prior
to the Class B Scheduled Payment Date, the Controlled Deposit Amount for
such Transfer Date (minus the Class A Monthly Principal for 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 "Excess Collateral
Monthly Principal") distributable from the Principal Account with respect
to the Excess Collateral on each Transfer Date, beginning with the Transfer
Date first preceding the Excess Collateral 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 Excess Collateral 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 Excess Collateral Adjusted Amount on such Transfer Date
(after taking into account any adjustments to be made on such Transfer Date
pursuant to Sections 4.12 and 4.14 of the Agreement on such Transfer Date).
Section 4.08 Coverage of Required Amount for the Investor
Certificates. On each Determination Date, the Servicer shall determine the
amount (the "Class A Required Amount"), if any, by which the sum of (i)
Class A Monthly Interest for the following Distribution Date, (ii) any
Class A Monthly Interest previously due but not paid to the Class A
Certificateholders on a prior Distribution Date, (iii) Class A Default
Interest, if any, for such Distribution Date and any Class A Default
Interest previously due but not paid to the Class A Certificateholders on a
prior Distribution Date, (iv) if First USA Bank, N.A. 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,
N.A. 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 related
Determination Date. In the event that the Class A Required Amount for such
Distribution Date is greater than zero all or a portion of the Excess
Finance Charge Collections with respect to the related Transfer Date in an
amount equal to the Class A Required Amount for such Distribution Date
shall be distributed from the Finance Charge Account on such Distribution
Date pursuant to subsection 4.13(a) of the Agreement. In the event that
the Class A Required Amount for such Transfer Date exceeds the amount of
Excess Finance Charge Collections with respect to such Transfer Date, the
Collections of Principal Receivables allocable to the Excess Collateral 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 Excess Collateral (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 D 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, N.A. is no longer the Servicer, an
amount equal to the Class A Monthly Servicing Fee for such
Distribution Date shall be distributed to the Servicer;
(iii) an amount equal to the aggregate Class A Investor
Default Amount, if any, for such Distribution Date shall be (A)
distributed to the Holder of the Exchangeable Transferor Certificate
on Distribution Dates with respect to the Revolving Period, but not
exceeding the Transferor Interest (determined as of such Distribution
Date after giving effect to any Principal Receivables transferred to
the Trust during the Monthly Period relating to such Distribution
Date, any such amount in excess of the Transferor Interest to be
treated as Unallocated Principal Collections) and (B) deposited in the
Principal Account and treated as a portion of Available Investor
Principal Collections for Distribution Dates with respect to the
Amortization Period; and
(iv) the balance, if any, shall constitute Excess Finance
Charge Collections and shall be allocated and distributed as set forth
in Section 4.13 of the Agreement.
(b) On the Transfer Date preceding each Distribution Date, an
amount equal to the Class B Available Funds deposited or deemed to have
been deposited in 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, N.A. 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 Excess Collateral Available Funds deposited or deemed
to have been deposited in the Finance Charge Account for the related
Monthly Period will be distributed in the following priority:
(i) if First USA Bank, N.A. is no longer the Servicer, an
amount equal to the Excess Collateral 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 Collections of Principal Receivables 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
the Minimum Transferor Interest (after giving effect to the inclusion
in the Trust of all Receivables created on or prior to such Transfer
Date and after giving effect to Collections of Principal Receivables
on such Transfer Date) and otherwise shall be considered as
Unallocated Principal Collections and deposited into the Principal
Account in accordance with subsection 4.03(f) of the Agreement.
(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
plus the other amounts set forth below 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 and Unallocated Principal Collections
allocated to the Investor Certificates in accordance with subsection
4.03(f) of the Agreement, 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 and Unallocated Principal Collections allocated to the Investor
Certificates in accordance with subsection 4.03(f) of the Agreement,
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 Excess
Collateral Monthly Principal plus, to the extent of any applicable
Principal Shortfall for the related Distribution Date, Excess
Principal Collections from other Series and Unallocated Principal
Collections allocated to the Investor Certificates in accordance with
subsection 4.03(f) of the Agreement, to the extent available, shall be
(A) during the Accumulation Period, deposited into the Principal
Funding Account, and (B) during the Rapid Amortization Period, paid to
the Excess Collateral Holders;
(iv) an amount equal to the lesser of (A) the product of
(1) a fraction, the numerator of which is equal to the Available
Investor Principal Collections remaining after the application
specified in subsections 4.09(e)(i), (ii) and (iii) above and the
denominator of which is equal to the sum of the Available Investor
Principal Collections available for sharing as specified in the
related Series Supplement for each other Series and (2) the Principal
Shortfalls for all Series and (B) the Available Investor Principal
Collections, shall remain in the Principal Account to be treated as
Excess Principal Collections and applied to Series other than this
Series 1999-_; 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 the Minimum Transferor
Interest (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 (i) deposit in the Distribution
Account the amount deposited in the Principal Funding Account pursuant to
subsections 4.09(e)(i) and 4.09(e)(ii) of the Agreement and (ii) pay to the
Excess Collateral Holders, in accordance with subsection 5.01(c) of the
Agreement, an amount equal to the lesser of the amount deposited in the
Principal Funding Account pursuant to subsection 4.09(e)(iii) of the
Agreement and the Excess Collateral Amount.
(g) [Reserved]
(h) On the earlier to occur of the first Distribution Date with
respect to the Rapid Amortization Period or the Class A Scheduled Payment
Date and on each Distribution Date thereafter, the Trustee shall pay in
accordance with Section 5.01 of the Agreement from the Distribution Account
the amount so deposited into the Distribution Account pursuant to
subsection 4.09(f)(i) 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; and
(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.
(i) The Accumulation Period is scheduled to commence at the
close of business on __________, _____; provided, however, that, if the
Accumulation Period Length (determined as described below) is less than 12
months, the date on which the Accumulation Period actually commences may,
at the option of the Servicer, upon written notice to the Trustee, be
delayed to the first Business Day of the month that is the number of months
prior to the Class A Scheduled Payment Date at least equal to the
Accumulation Period Length and, as a result, the number of Monthly Periods
in the Accumulation Period will at least equal the Accumulation Period
Length. On each Determination Date until the Accumulation Period begins,
the Servicer will determine the "Accumulation Period Length" which will
equal the number of months such that the sum of the Accumulation Period
Factors for each month during such period will be equal to or greater than
the Required Accumulation Factor Number; provided, however, that the
Accumulation Period Length will not be less than one month.
Section 4.10 Payment of Class A Certificate and Class B
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 and 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.
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 Excess
Collateral Amount will be reduced by the amount of such excess, but not
more than the Excess Collateral 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 Excess Collateral Amount
to be a negative number, the Excess Collateral Amount will be reduced to
zero, and the Class B Invested Amount will be reduced by the amount by
which the Excess Collateral Amount would have been reduced below zero. In
the event that such reduction would cause the Class B Invested Amount to be
a negative number, the Class B Invested Amount will be reduced to zero, and
the Class A Invested Amount will be reduced by the amount by which the
Class B Invested Amount would have been reduced below zero, but not more
than the Class A Investor Default Amount for such Distribution Date (a
"Class A Investor Charge-Off"). If the Class A Invested Amount has been
reduced by the amount of any Class A Investor Charge-Offs, it will be
reimbursed on any Distribution Date (but not by an amount in excess of the
aggregate Class A Investor Charge-Offs) by the amount of Excess Finance
Charge Collections allocated and available for such purpose pursuant to
subsection 4.13(b) of the Agreement.
(b) On each Distribution Date, the Servicer shall calculate the
Class B Investor Default Amount. If on any Distribution Date, the Class B
Investor Default Amount for such Distribution Date exceeds the amount of
Excess Finance Charge Collections and Reallocated Principal Collections
which are allocated and available to fund such amount pursuant to
subsection 4.13(d) and Section 4.14 of the Agreement, the Excess Collateral
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 Excess Collateral 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 Excess
Collateral Amount to be a negative number, the Excess Collateral Amount
shall be reduced to zero and the Class B Invested Amount shall be reduced
by the amount by which the Excess Collateral 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 Excess Collateral 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
Excess Collateral Default Amount. If on any Distribution Date, the Excess
Collateral 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 Excess Collateral Amount (after giving effect to any
adjustments with respect thereto as described in the preceding paragraphs)
will be reduced by the amount of such excess but not more than the Excess
Collateral Amount for such Distribution Date (an "Excess Collateral Charge-
Off"). The Excess Collateral 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 Excess Collateral 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 Excess Collateral Amount will
thereafter be reimbursed (but not by an amount in excess of the unpaid
principal balance of the Excess Collateral Amount) 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
1999-_ 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;
(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 Excess Collateral Minimum Monthly
Interest for such Transfer Date, plus the amount of any Excess Collateral
Minimum Monthly Interest previously due but not paid to the Excess
Collateral Holders on a prior Transfer Date will be paid to the Excess
Collateral Holders in accordance with subsection 5.01(c) of the Agreement;
(g) an amount equal to the Unpaid Investor Monthly Servicing
Fee, with respect to the related Distribution Date, will be paid to the
Servicer;
(h) an amount equal to the aggregate Excess Collateral 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 Excess
Collateral Amount has been reduced below the Excess Collateral Initial
Amount for reasons other than the payment of principal to the Excess
Collateral Holders (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 paid to the
Excess Collateral Holders in accordance with subsection 5.01(c) of the
Agreement.
Section 4.14 Reallocated Principal Collections for the Series
1999-_ Certificates.
(a) On each Distribution Date, the Servicer will apply or cause
the Trustee to apply an amount, not to exceed the Excess Collateral Amount,
equal to the product of (a)(i) during the Revolving Period, the Excess
Collateral Floating Allocation Percentage or (ii) during an Amortization
Period, the Excess Collateral 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 Excess
Collateral 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 Excess Collateral
Principal Collections) will, on Distribution Dates with respect to the
Revolving Period, be applied as Available Investor Principal
Collections.
(b) On each Distribution Date, the Servicer will apply or cause
the Trustee to apply an amount, not to exceed the Class B Invested Amount,
equal to the product of (a)(i) during the Revolving Period, the Class B
Floating Allocation Percentage or (ii) during an Amortization Period, the
Class B Fixed/Floating Allocation Percentage and (b) the amount of
Collections of Principal Receivables with respect to the related Monthly
Period in the following priority (such collections applied in accordance
with clause (i) below are called "Reallocated Class B Principal
Collections"):
(i) an amount equal to the excess, if any, of the Class A
Required Amount with respect to such related Monthly Period over the
sum of (x) the amount of Excess Finance Charge Collections with
respect to such related Monthly Period and (y) the amount of
Reallocated Excess Collateral 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 Excess Collateral Amount shall be
reduced by the amount of Reallocated Excess Collateral 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 Excess Collateral Amount to be a negative number, the Excess Collateral
Amount shall be reduced to zero and the Class B Invested Amount shall be
reduced by the amount by which the Excess Collateral Amount would have been
reduced below zero. In the event that the reallocation of Collections of
Principal Receivables would cause the Class B Invested Amount to be a
negative number on any Distribution Date, Collections of Principal
Receivables 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 one-month 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 one-month period. The Trustee shall request the principal London office
of each of the Reference Banks to provide a quotation of its rate. If at
least two such quotations are provided, the rate for that LIBOR
Determination Date shall be the arithmetic mean of the quotations. If
fewer than two quotations are provided as requested, the rate for that
LIBOR Determination Date will be the arithmetic mean of the rates quoted by
major banks in New York City, selected by the Servicer, at approximately
11:00 a.m., New York City time, on that day for loans in United States
dollars to leading European banks for a one-month period.
(b) The Class A Certificate Rate and the Class B Certificate
Rate applicable to the then current and the immediately preceding Interest
Periods may be obtained by any Series 1999-_ Certificateholder by
telephoning the Paying Agent at (800) 254-2826.
(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 and to be published in a daily newspaper in
Luxembourg 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 and to be published in a daily newspaper in Luxembourg as soon as
possible after the Trustee receives notification from the Servicer of the
Class A Monthly Interest and the Class B Monthly Interest, but in no event
later than the first day of such Interest Period.
Section 4.16 Principal Funding Account.
(a) The Servicer shall establish and maintain with a Qualified
Institution, which may be the Trustee, in the name of the Trustee, on
behalf of the Trust, for the benefit of the Investor Certificateholders, a
segregated trust account with the corporate trust department of such
Qualified Institution (the "Principal Funding Account"), bearing a
designation clearly indicating that the funds deposited therein are held
for the benefit of the Investor Certificateholders. The Trustee shall
possess all right, title and interest in all funds on deposit from time to
time in the Principal Funding Account and in all proceeds thereof. The
Principal Funding Account shall be under the sole dominion and control of
the Trustee for the benefit of the Investor Certificateholders. If any
time the institution holding the Principal Funding Account ceases to be a
Qualified Institution the Transferor shall notify the Trustee, and the
Trustee upon being notified (or the Servicer on its behalf) shall, within
ten (10) Business Days, establish a new Principal Funding Account meeting
the conditions specified above with a Qualified Institution, and shall
transfer any cash or any investments to such new Principal Funding Account.
The Trustee, at the written direction of the Servicer, shall (i) make
withdrawals from the Principal Funding Account from time to time, in the
amounts and for the purposes set forth in this Supplement, and (ii) on each
Transfer Date (from and after the commencement of the Accumulation Period)
prior to termination of the Principal Funding Account make a deposit into
the Principal Funding Account in the amount specified in, and otherwise in
accordance with, subsection 4.09(e) of the Agreement.
(b) Funds on deposit in the Principal Funding Account shall be
invested at the written direction of the Servicer by the Trustee in
Permitted Investments. Funds on deposit in the Principal Funding Account
on any Transfer Date, after giving effect to any withdrawals from the
Principal Funding Account on such Transfer Date, shall be invested in such
investments that will mature so that such funds will be available for
withdrawal on or prior to the following Transfer Date. The 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 Excess Collateral
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 Excess Collateral Holders. An amount equal to
any Principal Funding Investment Shortfall will be deposited in the Finance
Charge Account on each Transfer Date from the Reserve Account to the extent
funds are available pursuant to subsections 4.17(d), 4.17(e) and 4.17(f) of
the Agreement. Principal Funding Investment Proceeds (including reinvested
interest) shall not be considered part of the amounts on deposit in the
Principal Funding Account for purposes of this Series Supplement.
Section 4.17 Reserve Account.
(a) The Servicer shall establish and maintain with a Qualified
Institution, which may be the Trustee, in the name of the Trustee, on
behalf of the Trust, for the benefit of the Investor Certificateholders, a
segregated trust account with the corporate trust department of such
Qualified Institution (the "Reserve Account"), bearing a designation
clearly indicating that the funds deposited therein are held for the
benefit of the Investor Certificateholders. The Trustee shall possess all
right, title and interest in all funds on deposit from time to time in the
Reserve Account and in all proceeds thereof. The Reserve Account shall be
under the sole dominion and control of the Trustee for the benefit of the
Investor Certificateholders. If at any time the institution holding the
Reserve Account ceases to be a Qualified Institution the Transferor shall
notify the Trustee, and the Trustee upon being notified (or the Servicer on
its behalf) shall, within 10 Business Days, establish a new Reserve Account
meeting the conditions specified above with a Qualified Institution, and
shall transfer any cash or any investments to such new Reserve Account.
The Trustee, at the written direction of the Servicer, shall (i) make
withdrawals from the Reserve Account from time to time in an amount up to
the Available Reserve Account Amount at such time, for the purposes set
forth in this Supplement, and (ii) on each Transfer Date (from and after
the Reserve Account Funding Date) prior to termination of the Reserve
Account make a deposit into the Reserve Account in the amount specified in,
and otherwise in accordance with, subsection 4.13(j) of the Agreement.
(b) Funds on deposit in the Reserve Account shall be invested at
the written direction of the Servicer by the Trustee in Permitted
Investments. Funds on deposit in the Reserve Account on any Transfer Date,
after giving effect to any withdrawals from the Reserve Account on such
Transfer Date, shall be invested in such investments that will mature so
that such funds will be available for withdrawal on or prior to the
following Transfer Date. The Trustee shall maintain for the benefit of the
Investor Certificateholders possession of the negotiable instruments or
securities, if any, evidencing such Permitted Investments. No Permitted
Investment shall be disposed of prior to its maturity. On each Transfer
Date, all interest and earnings (net of losses and investment expenses)
accrued since the preceding Transfer Date on funds on deposit in the
Reserve Account shall be retained in the Reserve Account (to the extent
that the Available Reserve Account Amount is less than the Required Reserve
Account Amount) and the balance, if any, shall be deposited into the
Finance Charge Account for application as Collections of Finance Charge
Receivables allocable to the Investor Certificates on such Transfer Date.
For purposes of determining the availability of funds or the balance in the
Reserve Account for any reason under this Supplement, except as otherwise
provided in the preceding sentence, investment earnings on such funds shall
be deemed not to be available or on deposit.
(c) On each Transfer Date with respect to the Accumulation
Period prior to the payment in full of the Invested Amount and the first
Transfer Date with respect to the Rapid Amortization Period, the Servicer
shall calculate the "Reserve Draw Amount" which shall be equal to the
Principal Funding Investment Shortfall with respect to each Transfer Date
with respect to the Accumulation Period or the first Transfer Date with
respect to the Rapid Amortization Period; provided, however, that such
amount will be reduced to the extent that funds otherwise would be
available for deposit in the Reserve Account under subsection 4.13(j) of
the Agreement with respect to such Transfer Date.
(d) In the event that for any Transfer Date the Reserve Draw
Amount is greater than zero, the Reserve Draw Amount, up to the Available
Reserve Account Amount, shall be withdrawn from the Reserve Account on such
Transfer Date by the Trustee (acting in accordance with the written
instructions of the Servicer), deposited into the Finance Charge Account
for application in accordance with Section 4.09 of the Agreement.
(e) In the event that the Reserve Account Surplus on any
Transfer Date, after giving effect to all deposits to and withdrawals from
the Reserve Account with respect to such Transfer Date, is greater than
zero, the Trustee, acting in accordance with the written instructions of
the Servicer, shall withdraw from the Reserve Account and deposit in the
Finance Charge Account an amount equal to such Reserve Account Surplus for
application in accordance with Section 4.09 of the Agreement.
(f) Upon the earliest to occur of (i) the termination of the
Trust pursuant to Article XII of the Agreement, (ii) the day on which the
Invested Amount is paid in full to the Series 1999-_ Certificateholders,
(iii) if the Accumulation Period has not commenced, the occurrence of a Pay
Out Event with respect to Series 1999-_ 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 1999-_
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 1999-_ Certificates:
ARTICLE V
DISTRIBUTIONS AND REPORTS TO INVESTOR
CERTIFICATEHOLDERS
Section 5.01 Distributions.
(a) On each Distribution Date, the Paying Agent shall distribute
(in accordance with the certificate delivered by the Servicer to the
Trustee pursuant to subsection 3.04(b) of the Agreement) to each Class A
Certificateholder of record on the preceding Record Date (other than as
provided in subsection 2.04(e) or in Section 12.03 of the Agreement
respecting a final distribution) such Certificateholder's pro rata share
(based on the aggregate Undivided Interests represented by Class A
Certificates held by such Certificateholder) of amounts on deposit in the
Distribution Account as are payable to the Class A Certificateholders
pursuant to subsection 4.09(h) and Section 4.10 of the Agreement by check
mailed to each Class A Certificateholder at such Certificateholder's
address as it appears on the Certificate Register or, in the case of Class
A Certificateholders holding Class A Certificates evidencing Undivided
Interests aggregating not less than 80% of the Invested Amount, by wire
transfer, at the expense of such Class A Certificateholder, to an account
or accounts designated by such Class A Certificateholder by written notice
given to the Paying Agent not less than five days prior to the related
Distribution Date; provided, however, that the final payment in retirement
of the Class A Certificates will be made only upon presentation and
surrender of the Class A Certificates at the office or offices specified in
the notice of such final distribution delivered by the Trustee pursuant to
Section 12.03 of the Agreement.
(b) On each Distribution Date, the Paying Agent shall distribute
(in accordance with the certificate delivered by the Servicer to the
Trustee pursuant to subsection 3.04(b) of the Agreement) to each Class B
Certificateholder of record on the preceding Record Date (other than as
provided in subsection 2.04(e) or in Section 12.03 of the Agreement
respecting a final distribution) such Certificateholder's pro rata share
(based on the aggregate Undivided Interests represented by Class B
Certificates held by such Certificateholder) of amounts on deposit in the
Distribution Account as are payable to the Class B Certificateholders
pursuant to subsection 4.09(h) and Section 4.10 of the Agreement by check
mailed to each Class B Certificateholder at such Certificateholder's
address as it appears on the Certificate Register or, in the case of Class
B Certificateholders holding Class B Certificates evidencing Undivided
Interests aggregating not less than 80% of the Class B Invested Amount, by
wire transfer, at the expense of such Class B Certificateholder, to an
account or accounts designated by such Class B Certificateholder by written
notice given to the Paying Agent not less than five days prior to the
related Distribution Date; provided, however, that the final payment in
retirement of the Class B Certificates will be made only upon presentation
and surrender of the Class B Certificates at the office or offices
specified in the notice of such final distribution delivered by the Trustee
pursuant to Section 12.03 of the Agreement.
(c) On each Transfer Date, the Trustee shall distribute (in
accordance with the certificate delivered by the Servicer to the Trustee
pursuant to subsection 3.04(b) of the Agreement) to the Excess Collateral
Holders the amounts payable to the Excess Collateral Holder pursuant to
subsection 4.09(e)(iii), subsection 4.09(f)(ii), subsection 4.13(f),
subsection 4.13(k) and subsection 4.16(b) of the Agreement by wire
transfer, at the expense of such Excess Collateral Holders, to an account
or accounts designated by such Excess Collateral Holders by written notice
given to the Trustee not less than five days prior to the related Transfer
Date.
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 E 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 Excess
Collateral Amount, respectively;
(v) the amount of Collections of Finance Charge Receivables
processed during the related Monthly Period and allocated in respect
of the Class A Certificates, the Class B Certificates and the Excess
Collateral Amount, 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 Excess Collateral 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
Excess Collateral 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 Excess
Collateral 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 Excess Collateral 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 Excess Collateral Monthly
Servicing Fee for the related Monthly Period;
(xii) the amount of Reallocated Excess Collateral Principal
Collections and Reallocated Class B Principal Collections with respect
to such Distribution Date;
(xiii) the Excess Collateral Amount as of the close of
business on such Distribution Date;
(xiv) the Portfolio Yield for the related Monthly Period;
(xv) the Base Rate for the related Monthly Period;
(xvi) the Principal Funding Account Balance on the related
Transfer Date;
(xvii) the Accumulation Shortfall;
(xviii) the Accumulation Period Commencement Date and the
Accumulation Period Length; and
(xix) 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 2000, the
Trustee shall distribute to each Person who at any time during the
preceding calendar year was a Class A Certificateholder or a Class B
Certificateholder, a statement prepared by the Servicer containing the
information required to be contained in the regular monthly report to
Series 1999-_ 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 1999-_ Certificateholder,
together with such other customary information (consistent with the
treatment of the Class A Certificates and Class B Certificates as debt) as
the Trustee or the Servicer deems necessary or desirable to enable the
Class A Certificateholders and the Class B Certificateholders to prepare
their tax returns. Such obligations of the Trustee shall be deemed to have
been satisfied to the extent that substantially comparable information
shall be provided by the Trustee pursuant to any requirements of the Code
as from time to time in effect.
SECTION 8. Series 1999-_ Pay Out Events. If any one of the
following events shall occur with respect to the Series 1999-_
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 1999-_
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 1999-_
Certificates evidencing Undivided Interests aggregating not less than 50%
of the Invested Amount of this Series 1999-_, and continues to affect
materially and adversely the interests of the Series 1999-_
Certificateholders for such period;
(b) any representation or warranty made by the Transferor in the
Agreement or this Series Supplement, or any information contained in a
computer file or microfiche list required to be delivered by the Transferor
pursuant to Section 2.01 or 2.06 of the Agreement, (i) shall prove to have
been incorrect in any material respect when made or when delivered, which
continues to be incorrect in any material respect for a period of 60 days
after the date on which written notice of such failure, requiring the same
to be remedied, shall have been given to the Transferor by the Trustee, or
to the Transferor and the Trustee by the Holders of the Series 1999-_
Certificates evidencing Undivided Interests aggregating more than 50% of
the Invested Amount of this Series 1999-_ and (ii) as a result of which the
interests of the Series 1999-_ Certificateholders are materially and
adversely affected and continue to be materially and adversely affected for
such period; provided, however, that a Series 1999-_ 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 1999-_ 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 1999-_ Certificates evidencing
Undivided Interests aggregating more than 50% of the Invested Amount of
this Series 1999-_ 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 1999-_ 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 1999-_ Pay Out Event shall occur without
any notice or other action on the part of the Trustee or the Series 1999-_
Certificateholders immediately upon the occurrence of such event.
For purposes of Series 1999-_, the fifth sentence of subsection
9.02(a) of the Agreement shall be amended to read in its entirety as
follows:
"If, however, with respect to the portion of the Receivables
allocable to any outstanding Series, the holders of more than 50%
of the principal amount of the Class A Certificates and the Class
B Certificates and in the case of the Excess Collateral Amount,
holders of more than 50% of the principal amount of the Excess
Collateral Amount as well as more than 50% of holders of
interests in the right to receive interest payments in respect of
the Excess Collateral Amount, instruct the Trustee not to sell
the portion of the Receivables allocable to such Series, the
Trust shall continue with respect to such Series pursuant to the
terms of the Agreement and the Supplement."
SECTION 9. Series 1999-_ Termination. The right of the Series
1999-4 Certificateholders to receive payments from the Trust will terminate
on the first Business Day following the Series 1999-_ 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 Excess Collateral. (a) No portion of
the Excess Collateral 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. No portion of the Excess Collateral or any interest
therein may be Transferred to any Person (other than Bankers Trust
(Delaware), not in its individual capacity but solely in its capacity as
owner trustee of the First USA Secured Note Trust 1999-_ and The Bank of
New York, not in its individual capacity but solely in its capacity as
indenture trustee for the First USA Secured Note Trust 1999-_) (each, an
"Assignee"), unless the Assignee shall have executed and delivered the
certification referred to in subsection 11(e) below. Any attempted
Transfer that would cause the number of Targeted Holders to exceed ninety-
nine shall be void.
(b) Each Assignee 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 Excess
Collateral may constitute unrelated business taxable income or (iii) a
Person not described in (i) or (ii) whose ownership of any interest in the
Excess Collateral is effectively connected with the conduct of a trade or
business within the United States (within the meaning of the Code) or (B)
an estate or trust the income of which is includible in gross income for
U.S. federal income tax purposes. Each Assignee 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 any interest in the Excess
Collateral, 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 any
interest in the Excess Collateral, 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 Trustee.
(c) Each Initial Purchaser of any interest in the Excess
Collateral and any Assignee thereof shall certify to the Transferor, the
Servicer and the Trustee that, in the case of any Assignee, it has not
acquired and, in the case of each Initial Purchaser and any Assignee, it
will not sell, trade or transfer any interest in the Excess Collateral or
cause an interest in the Excess Collateral to be marketed on or through an
"established securities market" within the meaning of Section 7704(b)(1) of
the Code and any treasury regulation thereunder, including, without
limitation, an over-the-counter-market or an interdealer quotation system
that regularly disseminates firm buy or sell quotations. In addition, any
Assignee shall certify, prior to any delivery or Transfer to it of any
Excess Collateral that it is not and will not become, for so long as it
holds an interest in the Excess Collateral, a partnership, Subchapter S
corporation or grantor trust for U.S. federal income tax purposes or, if it
is such a Person, the Excess Collateral will represent not more than 50% of
the value of all of its assets. Each Initial Purchaser of an interest in
the Excess Collateral 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 its
certifications described in this subsection 11(c). For purposes of this
Section 11, "Initial Purchaser" shall mean the Transferor, Bankers Trust
(Delaware), not in its individual capacity but solely in its capacity as
owner trustee of the First USA Secured Note Trust 1999-_ and The Bank of
New York, not in its individual capacity but solely in its capacity as
indenture trustee for the First USA Secured Note Trust 1999-_.
(d) Each Initial Purchaser of any interest in the Excess
Collateral shall, by its acceptance of the Excess Collateral, be deemed to
have certified and each Assignee shall certify to the Transferor, the
Servicer and the Trustee (i) that it has purchased its interest in the
Excess Collateral for investment only and not with a view to any public
distribution thereof, (ii) that it will not offer, sell, pledge or
otherwise transfer its interest in all or any portion of the Excess
Collateral, except in compliance with the Securities Act and other
applicable laws and only (1) to the Transferor or (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) and
(iii) its purchase of its interest in the Excess Collateral is not being
made in reliance on the Prospectus. No Excess Collateral Holders will have
the right to require the Transferor to register the Excess Collateral or
any other securities under the Securities Act or any other securities laws.
Each holder by accepting a beneficial interest in the Excess Collateral is
deemed to represent that it is an institutional "accredited investor" (as
defined in rule 501(a)(1), (2), (3) or (7) under the Securities Act).
(e) Any request for registration of transfer of all or any
portion of the Excess Collateral shall be made at the office of the
Transfer Agent and Registrar and shall be accompanied by a letter of
representations from the prospective Excess Collateral Holders
substantially in the form attached as Exhibit F, executed by the ultimate
beneficial purchaser of the Excess Collateral Amount (or any portion
thereof) in person or by such prospective Excess Collateral Holder'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, the Excess Collateral (or such portion thereof) shall be
transferred upon the Certificate Register. Such transfers of all or any
portion of the Excess Collateral shall be subject to the restrictions set
forth in this Section 11 and to such other restrictions as shall be set
forth in the letter of representations, substantially in the form attached
as Exhibit F, executed by the purchasing Excess Collateral Holder.
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 portion of the Excess Collateral or any interest therein
may be Transferred (including in the initial offering) to (a) an "employee
benefit plan" (as defined in Section 3(3) of ERISA), including governmental
plans and church plans, (b) any "plan" (as defined in Section 4975(e)(1) of
the Code) including individual retirement accounts and Keogh plans, or (c)
any other entity whose underlying assets include "plan assets" (within the
meaning of Department of Labor Regulation Section 2510.3-101, 29 C.F.R.
section 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.
(g) The Transferor and the Servicer will facilitate any transfer
of the Excess Collateral consistent with the requirements of this Section
11, including assisting in the determination as to whether the number of
Targeted Holders would exceed ninety-nine.
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 Excess Collateral Holders 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 Excess Collateral Holders 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 Excess Collateral Holders
pursuant to federal withholding requirements, the Trustee or the Paying
Agent shall indicate to such Excess Collateral Holders the amount withheld
and all such amounts shall be deemed to have been paid to such Excess
Collateral Holder and the Excess Collateral Holders shall have no claim
therefor.
SECTION 13. Tax Characterization of the Excess Collateral. It
is the intention of the parties hereto that the provisions of Section 3.07
of the Agreement shall not apply to cause the Excess Collateral to be
treated as debt for Federal, state and local income and franchise tax
purposes, but rather it is the intention of the parties hereto that Excess
Collateral be treated for Federal, state and local income and franchise tax
purposes as an equity interest in the assets of the Trust. In the event
that the Excess Collateral is not so treated, it is the intention of the
parties that the Excess Collateral be treated as an interest in a
partnership that owns the Receivables.
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, N.A. 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, 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, N.A., 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 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.
IN WITNESS WHEREOF, the Transferor, the Servicer and the Trustee
have caused this Series 1999-_ Supplement to be duly executed by their
respective officers as of the day and year first above written.
FIRST USA BANK, N.A.,
Transferor and Servicer
By: ______________________________
Name:
Title:
THE BANK OF NEW YORK (DELAWARE),
Trustee
By: _____________________________
Name:
Title:
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: ___________, ____ CUSIP NO. _________
FIRST USA CREDIT CARD MASTER TRUST CLASS A FLOATING RATE
ASSET BACKED CERTIFICATE, SERIES 1999-_
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, N.A. (the "Bank").
(Not an interest in or a recourse obligation
of First USA Bank, N.A, 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,
- --------
* VISA (R) and MasterCard (R) are registered trade marks of Visa
USA Incorporated and MasterCard International Incorporated,
respectively.
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 supplemented by the Series 1999-_
Supplement (the "Series 1999-_ Supplement"), dated as of _________, ____,
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 1999-_ 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 1999-_" (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, Series 1999-_ (the "Class B Certificates")
with the intention that the Class A Certificates and the Class B
Certificates will qualify under applicable tax law as indebtedness, and the
Transferor and each holder of a Class A Certificate (a "Class A
Certificateholder") or any interest therein, by acceptance of its Class A
Certificate or any interest therein, agrees to treat the Class A
Certificates for purposes of federal, state, local and foreign income or
franchise taxes and any other tax imposed on or measured by income, as
indebtedness.
The Trust's assets are allocated in part to the holders of the
Class A Certificates, the holders of the Class B Certificates and the
holders of the First USA Credit Card Master Trust Excess Collateral, Series
1999-_ (the "Excess Collateral") (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
Excess Collateral, 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 Excess Collateral (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 $___________. The Class
A Invested Amount for any monthly Distribution Date will be an amount equal
to $___________, 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 (i) at the rate of
_.______% per annum on the Class A Initial Invested Amount for the period
from _________, ____ through and including _________, _____, and (ii) for
each Interest Period thereafter, the Class A Certificates will bear
interest at a per annum rate of 0.__% 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 A Certificate Rate"). Interest will be
distributed to the extent of available funds on _______, ____, and on the
nineteenth 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 1999-_
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 _________, ____
and on each Distribution Date thereafter until the Scheduled Series 1999-_
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 Excess Collateral 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 1999-_ Termination Date. On each Transfer Date
following the commencement of the Accumulation Period, prior to the earlier
of the payment of the Class A Invested Amount in full and the commencement
of the Rapid Amortization Period, the Trustee will deposit in the Principal
Funding Account an amount equal to the least of (a) Available Investor
Principal Collections with respect to the preceding Monthly Period, (b) the
applicable Controlled Deposit Amount and (c) the Class A Adjusted Invested
Amount prior to any such deposit on such day. Amounts in the Principal
Funding Account will be paid to the Class A Certificateholders on the Class
A Scheduled Payment Date. After the full amount of the Class A Invested
Amount has been deposited in the Principal Funding Account and beginning
with the Transfer Date related to the Class B Principal Commencement Date,
prior to the commencement of the Rapid Amortization Period, the Trustee
will deposit in the Principal Funding Account an amount equal to the least
of (a) the Available Investor Principal Collections with respect to the
preceding Monthly Period remaining after application thereof to the Class A
Invested Amount, (b) the applicable Controlled Deposit Amount (minus the
Class A Monthly Principal with respect to such Transfer Date) and (c) the
Class B Adjusted Invested Amount prior to any such deposit on such day.
After payment in full of the Class A Invested Amount, amounts in the
Principal Funding Account will be paid to the Class B Certificateholders on
the Class B Scheduled Payment Date. After the full amount of the sum of the
Class A Invested Amount and the Class B Invested Amount has been deposited
in the Principal Funding Account, prior to the commencement of the Rapid
Amortization Period, the Trustee will deposit in the Principal Funding
Account an amount equal to the least of (a) the Available Investor
Principal Collections with respect to the preceding Monthly Period
remaining after application thereof to the Class A Invested Amount and the
Class B Invested Amount, (b) the applicable Controlled Deposit Amount
(minus the Class A Monthly Principal and the Class B Monthly Principal with
respect to such Transfer Date) and (c) the Excess Collateral Adjusted
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 Excess Collateral Holders on
the Excess Collateral 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 Excess
Collateral 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 ____ _____ 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 Excess Collateral Amount have been paid in full and (ii) the
Scheduled Series 1999-_ 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 Excess Collateral Holders, 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 _________, ____ (or if such
day is not a Business Day, the next succeeding Business Day) (the
"Scheduled Series 1999-_ Termination Date"). After the Scheduled Series
1999-_ 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 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 1999-_ 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 1999-_
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.
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 __th day of
- ----, ----
FIRST USA BANK, N.A.
By:______________________________
Name:
Title:
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: ______, ____
By: ______________________________
Name:
Title:
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, N.A. 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: _________, ____ CUSIP NO. _________
FIRST USA CREDIT CARD MASTER TRUST CLASS B FLOATING RATE
ASSET BACKED CERTIFICATE, SERIES 1999-_
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, N.A.
(the "Bank").
(Not an interest in or a recourse obligation
of First USA Bank, N.A., 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
supplemented by the Series 1999-_ Supplement (the "Series 1999-4
Supplement"), dated as of ________, ____, 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 1999-_ 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
- --------
* VISA (R) and MasterCard (R) are registered trade marks of Visa
USA Incorporated and MasterCard International Incorporated,
respectively.
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
B Floating Rate Asset Backed Certificates, Series 1999-_" (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 1999-_ (the "Class A Certificates")
with the intention that the Class A Certificates and the Class B
Certificates will qualify under applicable tax law as indebtedness, and the
Transferor and each holder of a Class B Certificate (a "Class B
Certificateholder") or any interest therein, by acceptance of its Class B
Certificate or any interest therein, agrees to treat the Class B
Certificates for purposes of federal, state, local and foreign income or
franchise taxes and any other tax imposed on or measured by income, as
indebtedness.
The Trust's assets are allocated in part to the holders of the
Class A Certificates, the holders of the Class B Certificates and the
holders of the First USA Credit Card Master Trust Excess Collateral, Series
1999-_ (the "Excess Collateral Holders") (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 Excess Collateral, 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 Excess Collateral (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 $__________. The Class B
Invested Amount for any monthly Distribution Date will be an amount equal
to (i) $__________, 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 Excess Collateral 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 (i) at the rate of
_._____% per annum on the Class B Initial Invested Amount for the period
from ________, ______ through and including ________, ____ and (ii) for
each Interest Period thereafter, the Class B Certificates will bear
interest at a per annum rate of 0.__% 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 _________, _____, and on
the nineteenth 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 1999-_ 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 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 _________, ____ and on each Distribution Date
thereafter until the Scheduled Series 1999-_ 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 Excess Collateral 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 1999-_ Termination Date. On each Transfer Date
following the commencement of the Accumulation Period, prior to the earlier
of the payment of the Class A Invested Amount in full and the commencement
of the Rapid Amortization Period, the Trustee will deposit in the Principal
Funding Account an amount equal to the least of (a) Available Investor
Principal Collections with respect to the preceding Monthly Period, (b) the
applicable Controlled Deposit Amount and (c) the Class A Adjusted Invested
Amount prior to any such deposit on such day. Amounts in the Principal
Funding Account will be paid to the Class A Certificateholders on the Class
A Scheduled Payment Date. After the full amount of the Class A Invested
Amount has been deposited in the Principal Funding Account and beginning
with the Transfer Date related to the Class B Principal Commencement Date,
prior to the commencement of the Rapid Amortization Period, the Trustee
will deposit in the Principal Funding Account an amount equal to the least
of (a) the Available Investor Principal Collections with respect to the
preceding Monthly Period remaining after application thereof to the Class A
Invested Amount, (b) the applicable Controlled Deposit Amount (minus the
Class A Monthly Principal with respect to such Transfer Date) and (c) the
Class B Adjusted Invested Amount prior to any such deposit on such day.
After payment in full of the Class A Invested Amount, amounts in the
Principal Funding Account will be paid to the Class B Certificateholders on
the Class B Scheduled Payment Date. After the full amount of the sum of the
Class A Invested Amount and the Class B Invested Amount has been deposited
in the Principal Funding Account, prior to the commencement of the Rapid
Amortization Period, the Trustee will deposit in the Principal Funding
Account an amount equal to the least of (a) the Available Investor
Principal Collections with respect to the preceding Monthly Period
remaining after application thereof to the Class A Invested Amount and the
Class B Invested Amount, (b) the applicable Controlled Deposit Amount
(minus the Class A Monthly Principal and the Class B Monthly Principal with
respect to such Transfer Date) and (c) the Excess Collateral Adjusted
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 Excess Collateral Holders on
the Excess Collateral 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 Excess
Collateral 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 __________ Distribution Date if the Class A Invested
Amount is paid in full, Available Investor Principal Collections and Excess
Principal Collections allocable to Series 1999-_ 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 1999-_ are insufficient to pay in full the Class B Invested
Amount on the ____________ 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 Excess Collateral Amount have been paid in full and (ii) the
Scheduled Series 1999-_ 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 Excess Collateral Holders, 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 (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 _____ _____ 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 _________, ____ (or if such
day is not a Business Day, the next succeeding Business Day) (the
"Scheduled Series 1999-_ Termination Date"). After the Series 1999-_
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 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 1999-_ 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 1999-_
Supplement or of modifying in any manner the rights of certificateholders
of any then outstanding Series. No such amendment, however, may (a) reduce
in any manner the amount of, or delay the timing of, distributions required
to be made on any such Series, (b) change the definition of or the manner
of calculating the interest of any certificateholder of such Series, or (c)
reduce the aforesaid percentage of undivided interests the holders of which
are required to consent to any such amendment, in each case without the
consent of all certificateholders of all Series adversely affected.
Promptly following the execution of any amendment to the Agreement, the
Trustee will furnish written notice of the substance of such amendment to
each Class B Certificateholder.
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 __th day of
- -----, ----
FIRST USA BANK, N.A.
By:____________________________
Name:
Title:
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: ________, ____
By: ________________________________
Name:
Title:
EXHIBIT D
MONTHLY ALLOCATIONS AND PAYMENT INSTRUCTIONS AND
NOTIFICATION TO THE TRUSTEE
FIRST USA BANK, N.A.
------------------------------------------------
FIRST USA CREDIT CARD MASTER TRUST, SERIES 1999-_
------------------------------------------------
Monthly Period:
Distribution Date:
Transfer Date:
The undersigned, a duly authorized representative of First USA Bank, N.A.
(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 1999-_ Supplement, dated as of _______, ____ (the "Supplement"),
by and between the Bank and The Bank of New York (Delaware), as Trustee
(the "Trustee"), does hereby certify as follows:
A. 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.
B. The Bank is Servicer under the Pooling and Servicing Agreement.
C. The undersigned is a Servicing Officer.
D. The date of this notice is a Determination Date under the
Pooling and Servicing Agreement.
<TABLE>
<CAPTION>
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:
<S> <C> <C> <C>
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 subsection 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, N.A., 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
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, N.A., 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. Excess Collateral Finance Charge Allocations
Principal Funding Investment Proceeds N/A
Reserve Account Withdrawals N/A
__________
Total Excess Collateral Available Funds
B. Pursuant to subsection 4.09(c)(i):
Excess Collateral Monthly Servicing Fee for the preceding
Monthly Period if First USA Bank, N.A., 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 ==========
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
F. Pursuant to subsection 4.13(f):
1. Excess Collateral Monthly Interest for the preceding
Interest Period on the aggregate outstanding principal
balance of the Excess Collateral
(Actual/360)
2. Overdue Interest
3. Excess Collateral Default Amount __________
G. Pursuant to subsection 4.13(g):
Unpaid Investor Monthly Servicing Fee for the preceding Monthly
Period to be paid to First USA Bank, N.A.
H. Pursuant to subsection 4.13(h):
Excess Collateral Default Amount for the preceding
Monthly Period
I. Pursuant to subsection 4.13(i):
Reimbursement of Excess Collateral 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 paid to Excess Collateral Holders
Total (Excess F/C Collections from 4(A) above) ==========
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. Excess Collateral Principal Collections
Excess Collateral Default Amt (during Accumulation Period)
Excess Collateral Charge-Offs (during Accumulation Period) __________
Total Excess Collateral Monthly Principal
4. Excess Principal Collections (other series) __________
Total Principal Collections ==========
B. Allocation of Principal Collections
1. Amount of Excess Collateral 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 Excess Collateral Holders
7. Payment of principal to Principal Funding Account
8. Amount returned to Bank __________
Total Principal Allocations ==========
IV. TRUSTEE DISBURSEMENT SUMMARY
(1) Investor Monthly Servicing Fee paid to First USA Bank, N.A.
(2) Total Default Amounts paid to First USA Bank, N.A.
(3) Monthly Principal Collections to First USA Bank, N.A. __________
Total to First USA Bank
(4) Deposit to Reserve Account
(5) Interest payment to Class A Certificateholders (DTC)
(6) Interest payment to Class B Certificateholders (DTC)
(7) Interest payment to Excess Collateral Holders
(8) Certificate Principal to Principal Funding Account
(9) Principal to Certificateholders (DTC)
(10) Investor Principal Collections to other Series
(11) Monthly Principal Payment to Excess Collateral Holders
(12) Excess Spread paid to Excess Collateral Holders
Total Disbursements ==========
Total Class A, B and Excess Collateral funds to be allocated ==========
----------------------------
EXHIBIT E
MONTHLY CERTIFICATEHOLDERS' STATEMENT
FIRST USA BANK, N.A.
------------------------------------------------
FIRST USA CREDIT CARD MASTER TRUST, SERIES 1999-_
------------------------------------------------
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, N.A. (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 1999-_ 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
Excess Collateral Amt.
B. The amount of the distribution in respect of interest on the
Certificates, per $1,000 original certificate principal amount
Class A
Class B
Excess Collateral 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
Excess Collateral 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
Excess Collateral 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
Excess Collateral Amt. __________
Total ==========
(b) Principal Funding Investment Proceeds (to Class A) N/A
(c) Withdrawals from Reserve Account (to Class A) N/A
__________
Class A Available Funds ==========
(d) Principal Funding Investment Proceeds (to Class B) N/A
__________
(e) Withdrawals from Reserve Account (to Class B) N/A
__________
Class B Available Funds ==========
(f) Principal Funding Investment Proceeds (to Excess Collateral) N/A
__________
(g) Withdrawals from Reserve Account (to Excess Collateral) N/A
__________
Excess Collateral 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
Excess Collateral 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
Excess Collateral Amt. __________
Total
(d) During the Amortization Period: The Invested
Amount as of _______ (the last day of the Revolving
Period)
Class A N/A
Class B N/A
Excess Collateral 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
Excess Collateral 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
Excess Collateral Amt. __________
Total ==========
F. Investor Charge-Offs & Reimbursements of Charge-Offs.
(a) The aggregate amount of Class A Investor Charge- Offs and
the reductions in the Class B Invested Amount and the
Excess Collateral Amount
Class A
Class B
Excess Collateral 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 Excess Collateral Amount
Class A
Class B
Excess Collateral 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
Excess Collateral Amt. __________
Total ==========
H. Reallocated Principal Collections.
The amount of Reallocated Excess Collateral and Class B
Principal Collections applied in respect of Interest
Shortfalls, Investor Default Amounts or Investor
Charge-Offs for the prior month.
Class B
Excess Collateral Amt. __________
Total ==========
I. Excess Collateral Amount.
The amount of the Excess Collateral 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 Portfolio Yield.
The Portfolio Yield for the related Monthly Period
K. The Base Rate.
The Base Rate for the related Monthly Period
3. Information Regarding the Principal Funding Account.
A. Accumulation Period
(a) Accumulation Period Commencement Date
(b) Accumulation Period length (months)
(c) Accumulation Period Factor
(d) Required Accumulation Factor Number
(e) Controlled Accumulation Amount
(f) Minimum Payment Rate (last 12 months)
B. Principal Funding Account.
Beginning Balance
Plus: Principal Collections for Related Monthly Period from
Principal Account
Plus: Interest on Principal Funding Account Balance for
Related Monthly Period N/A
Less: Withdrawals to Finance Charge Account N/A
Less: Withdrawals to Distribution Account __________
Ending Balance
C. Accumulation Shortfall.
The Controlled Deposit Amount for the previous
Monthly Period N/A
__________
Less: The amount deposited into the Principal Funding
Account for the Previous Monthly Period N/A
==========
Accumulation Shortfall N/A
==========
Aggregate Accumulation Shortfalls N/A
D. Principal Funding Investment Shortfall.
Covered Amount N/A
Less: Principal Funding Investment Proceeds N/A
__________
Principal Funding Investment Shortfall N/A
4. Information Regarding the Reserve Account.
A. Required Reserve Account Analysis.
(a) Required Reserve Account Amount percentage (0.5% of Class
A Invested Amount or other amount designated by
Transferor)
(b) Required Reserve Account Amount ($)
(c) Required Reserve Account Balance after effect of any
transfers on the Related Transfer Date
(d) Reserve Draw Amount transferred to the Finance
Charge Account on the Related Transfer Date
B. Reserve Account Investment Proceeds.
Reserve Account Investment Proceeds transferred to the
Finance Charge Account on the Related Transfer Date N/A
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
</TABLE>
EXHIBIT F
[DATE]
First USA Bank, N.A.
201 North Walnut Street
Wilmington, Delaware 19801
The Bank of New York (Delaware)
White Clay Center
Route 273
Newark, Delaware 19711
Re: Excess Collateral, Series 1999-_
Ladies and Gentlemen:
In connection with our proposed purchase of $__________ in principal
amount of First USA Credit Card Master Trust, Excess Collateral, Series
1999-_ (the "Excess Collateral"), we confirm that:
1. We have received such information and documentation as we deem
necessary in order to make our investment decision. We understand that such
information and documentation speaks only as of its date and that the
information contained therein 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 relating
to the Excess Collateral set forth in the Pooling and Servicing Agreement,
dated as of September 1, 1992, as amended and as supplemented by the Series
1999-_ Supplement dated as of _______, _____ (the "Series 1999-_
Supplement" and together with the Pooling and Servicing Agreement, the
"Pooling and Servicing Agreement"), each by and between First USA Bank,
N.A., as transferor and servicer, and The Bank of New York (Delaware) and
agree to be bound by, and not to reoffer, resell, pledge or otherwise
transfer (any such act, a "Transfer") the Excess Collateral except in
compliance with such restrictions and conditions including but not limited
to those in Section 11 of the Series 1999-_ Supplement.
3. We understand that the Excess Collateral has 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 Excess Collateral 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 or (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).
4. We have neither acquired nor will we Transfer any Excess
Collateral we acquire (or any interest therein) or cause any Excess
Collateral (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 Excess Collateral, a partnership, Subchapter S corporation or
grantor trust for United States federal income tax purposes or, if we are
such a Person, the Excess Collateral does not represent more than 50% of
the value of all of our assets.
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 Excess
Collateral is effectively connected with a such person's conduct of a trade
or business within the United States (within the meaning 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. 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 an interest in the Excess Collateral,
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 an interest in the Excess Collateral, 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 Trustee). We recognize that if we are a tax-exempt
entity, payments with respect to the Excess Collateral may constitute
unrelated business taxable income.
7. We understand that a subsequent Transfer of the Excess Collateral
will be void if such Transfer would cause the number of Targeted Holders
(as defined in the Series 1999-_ Supplement) to exceed ninety nine.
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 and 5.
9. We are 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
Excess Collateral, and we and any account for which we are acting are each
able to bear the economic risk of our or its investment.
10. We are acquiring the Excess Collateral 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 not (a) an "employee benefit plan" (as defined in Section
3(3) of ERISA), including governmental plans and church plans, (b) 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 (c) 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. ss.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
12. We understand that any purported Transfer of any Excess
Collateral Amount 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 an
interest in the Excess Collateral occurring any time after the Transfer in
which it acquired such Excess Collateral) shall be null and void and the
purported transferee shall not be recognized by the Trust or any other
person as an Excess Collateral Holder for any purpose.
13. We further understand that, on any proposed resale, pledge or
transfer of any Excess Collateral, we will be required to furnish to the
Trustee and the Registrar, such certifications 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 Excess Collateral and the Pooling and
Servicing Agreement pursuant to which the Excess Collateral were issued and
we agree that if we determine to Transfer any Excess Collateral, 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 Excess Collateral purchased by us will bear a
legend to the foregoing effect.
14. The person signing this letter on behalf of the ultimate
beneficial purchaser of the Excess Collateral has been duly authorized by
such beneficial purchaser of the Excess Collateral to do so.
You are entitled to rely upon this letter and 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:
