EXHIBIT 4.1
ASSUMPTION AGREEMENT FOR PARTNERS FIRST
This ASSUMPTION AGREEMENT (this "Agreement"), dated as of July 27, 2001,
by and among THE FIRST NATIONAL BANK OF ATLANTA d/b/a WACHOVIA BANK CARD
SERVICES, a national banking association (the "Bank"), FIRST USA BANK, NATIONAL
ASSOCIATION (the "Successor"), and THE BANK OF NEW YORK ("BONY"), as trustee for
the Partners First Credit Card Master Trust (the "Trustee").
W I T N E S S E T H :
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WHEREAS, the Bank and the Trustee are parties to the Amended and
Restated Pooling and Servicing Agreement, dated as of January 31, 2000, as
amended (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, in connection with a certain Amended and Restated Purchase
and Sale Agreement between the Bank and the Successor dated as of July 25, 2001
(the "Purchase Agreement"), the Bank will sell and the Successor will purchase
certain assets and the Bank will transfer and the Successor will assume certain
liabilities;
WHEREAS, in the event of a sale of substantially all of the assets of
the Transferor, the purchasing entity is required to assume the performance of
every covenant and obligation of the Transferor under Section 7.2 of the Pooling
and Servicing Agreement;
WHEREAS, the Bank, the Successor, and the Trustee wish for the
Successor to affirm that it is the successor in interest to the Bank's rights
and obligations as Transferor arising under the Pooling and Servicing Agreement
and each of the other Transaction Documents (as defined below) and is obligated
to perform all of the Bank's duties as Transferor under the Pooling and
Servicing Agreement and each of the other Transaction Documents;
WHEREAS, in the event of a sale of substantially all of the assets of
the Servicer, the purchasing entity is required to assume the performance of
every covenant and obligation of the Servicer under Section 8.2 of the Pooling
and Servicing Agreement;
WHEREAS, the Bank, the Successor, and the Trustee wish for the
Successor to affirm that it is the successor in interest to the Bank's rights
and obligations as Servicer arising under the Pooling and Servicing Agreement
and each of the other Transaction Documents and is obligated to perform all of
the Bank's duties as Servicer under the Pooling and Servicing Agreement and each
of the other Transaction Documents;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, in consideration of the terms and conditions hereof and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
undersigned do hereby agree as follows:
SECTION 1. Definitions.
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(A) Capitalized terms used herein and not otherwise defined herein
shall have their respective meanings in the Pooling and Servicing Agreement.
(B) "Transaction Documents" shall mean the Pooling and Servicing
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Agreement, as amended and supplemented, including by each assignment document
relating to the assignment of Receivables in Additional Accounts and each
Supplement with respect to any Series issued and currently outstanding, and each
Loan Agreement listed on Annex A attached hereto, as each such agreement has
been amended and assumed to the date hereof.
SECTION 2. Assumption.
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(A) The Bank and the Trustee hereby affirm that the Successor is the
successor in interest to all of the Bank's rights as Transferor, including all
rights, arising under the Transaction Documents and the Successor hereby affirms
that it is the successor in interest to all of the Bank's duties and obligations
as Transferor under the Transaction Documents and, for the benefit of the
Securityholders, the Trustee and the applicable Series Enhancer, the Successor
hereby assumes and agrees to perform all of the Bank's duties and obligations as
Transferor under the Transaction Documents and hereby assumes the performance of
every covenant and obligation of
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the Transferor under the Transaction Documents to the extent it is not already
obligated to do so by operation of law. The Successor agrees that it shall be
liable to the Securityholders, the Trustee and the applicable Series Enhancer
for all of the obligations of the Bank arising under and in accordance with the
Transaction Documents, whether arising prior to or after the date hereof. To the
extent that the Successor, as successor to the Bank, has any rights in the
Receivables now existing or hereafter arising in the Accounts (including
Additional Accounts) the Receivables of which have been designated for inclusion
in the Trust pursuant to the Pooling and Servicing Agreement, including any
Assignment of Receivables in Additional Accounts executed on or prior to the
date hereof (such Accounts, the "Existing Accounts"), the Successor hereby
grants and transfers to the Trust, for the benefit of the Securityholders, a
security interest in all of the Successor's right, title and interest in, to and
under the Receivables now existing or hereinafter arising in the Existing
Accounts and all other Trust Assets, to secure a loan in an amount equal to the
unpaid principal amount of the Investor Securities issued under the Pooling and
Servicing Agreement and the interest accrued at the related Security Rate.
(B) The Bank and the Trustee hereby affirm that the Successor is the
successor in interest to all of the Bank's rights as Servicer, including the
right to receive the Servicing Fee, arising under the Transaction Documents and
the Successor hereby affirms that it is the successor in interest to all of the
Bank's duties and obligations as Servicer under the Transaction Documents and,
for the benefit of the Transferor, the Trustee and the applicable Series
Enhancer, the Successor hereby assumes and agrees to perform all of the Bank's
duties and obligations as Servicer under the Transaction Documents and hereby
assumes the performance of every covenant and obligation of the Servicer under
the Transaction Documents to the extent it is not already obligated to do so by
operation of law. The Successor agrees that it shall be liable to the
Transferor, the Trustee and the applicable Series Enhancer for all of the
obligations of the Bank arising under and in accordance with the Transaction
Documents, whether arising prior to or after the date hereof.
The Trustee hereby consents to the assumption herein by the Successor
of (i) all of the Bank's duties and obligations as Transferor and (ii) all of
the Bank's duties and obligations as Servicer under the Transaction Documents to
the extent the Successor is not already obligated by operation of law. The
Trustee shall look only to the Successor for the performance of (i) the Bank's
duties and obligations as Transferor and (ii) the Bank's duties and obligations
as Servicer arising under the Transaction Documents prior to or after the date
hereof; no provision hereof shall prevent the Trustee from making a claim for
indemnification against the
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Bank pursuant to Section 8.4 of the Pooling and Servicing Agreement arising out
of a claim on or prior to the date hereof, such indemnification obligation which
shall survive this Agreement.
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SECTION 3. Representations.
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Each of the Bank and the Successor represent to the others and the
Trustee as follows with respect to itself:
(a) Organization and Good Standing. It is a national association, duly
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organized and validly existing in good standing under the laws of the
United States and has full corporate power, authority and legal right to
own its properties and conduct its 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. It is duly qualified to do business and is in good
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standing (or is exempt from such requirement) as a national association, in
any state required in order to conduct business, and has obtained all
necessary licenses and approvals with respect to it required under federal
law; provided, however, that no representation or warranty is made with
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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
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the consummation of the transactions provided for in this Agreement have
been duly authorized by it by all necessary corporate action on its part
and this Agreement will remain, from the time of its execution, its
official record.
(d) No Conflict. The execution and delivery of this Agreement, the
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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 it is a party or by which it or any of its properties are bound.
(e) No Violation. The execution and delivery of this Agreement, the
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performance of the transaction contemplated by this Agreement and the
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fulfillment of the terms hereof will not conflict with or violate any
Requirements of Law applicable to it.
(f) No Proceedings. There are no proceedings or investigations pending or,
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to the best of its knowledge, threatened, against it before any court,
regulatory body, administrative agency or other tribunal or governmental
instrumentality (a) asserting the invalidity of this Agreement, (b) seeking
to prevent the consummation of any of the transactions contemplated by this
Agreement, (c) seeking any determination or ruling that, in the reasonable
judgment of it, would materially and adversely affect the performance by it
of its obligations under this Agreement, (d) seeking any determination or
ruling that would materially and adversely affect the validity or
enforceability of this Agreement or (e) seeking to affect adversely the
income tax attributes of the Trust.
(g) Transaction Documents. The Transaction Documents are in full force and
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effect as of the date hereof.
SECTION 4. References to the Bank. The parties agree that references
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in the Transaction Documents to the "Transferor" or the "Servicer" shall be
deemed to refer wherever appropriate in the context, to the Successor.
SECTION 5. Conditions Precedent. The Bank, the Successor, and the
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Trustee agree that the consummation of the transactions contemplated by the
Purchase Agreement shall be conditions precedent to the effectiveness of this
Agreement.
SECTION 6. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
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CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
SECTION 7. Counterparts. This Agreement may be executed in any
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number of counterparts, each of which shall be deemed to be an original and all
of which together shall be deemed to be one and the same instrument.
SECTION 8. Amendments. The terms of this Agreement may not be
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amended, waived, modified or terminated except by written instrument signed by
the
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parties hereto. No such amendment or waiver shall extend to or affect any
obligation not expressly amended or waived or impair any rights consequent
thereon.
SECTION 9. Notices. All notices and communications under this
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Agreement shall be in writing and shall be mailed by registered or certified
mail, postage prepaid, or delivered by hand or transmitted by telex or other
communications device capable of transmitting or creating a written record:
(A) if to Successor:
First USA Bank, N.A.
201 North Walnut Street
Wilmington, Delaware 19801
Attention:
Telephone:
Fax:
with copies to:
Bank One, N.A.
One Bank Plaza, Ste IL1-0126
Chicago, IL 60670-0126
Attention:
Telephone: (312) 336-9730
Fax: (312) 407-1708
or at such other address as it may have furnished in writing to the Bank and the
Trustee;
(B) if to the Bank:
Wachovia Bank Card Services
3565 Piedmont Road
Atlanta, GA 30305
Attn: Charlie Hegarty
Fax: (404) 842-3236
with copies to:
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Wachovia Bank Card Services
3565 Piedmont Road
Atlanta, GA 30305
Attn: Joan Suttin
Fax: (404) 842-3236
or at such other address as it may have furnished in writing to the Successor
and the Trustee; and
(C) if to the Trustee:
The Bank of New York
101 Barclay Street, 12E
New York, NY 10286
Attention: Corporate Trust Department
Telephone: (212) 815-5000
Telecopy: (212) 815-5544
or at such other address as it may have furnished in writing to the Bank and the
Successor.
Any notice so addressed and mailed by registered or certified mail
shall be deemed to be given when received and any notice delivered by hand or
transmitted by telecommunications device shall be deemed to be given when so
delivered or transmitted as applicable. Each party agrees that all notices or
other communications permitted or required to be given to the Bank under the
Transaction Documents shall be given to the Successor at the address set forth
above or at such other address as the Successor may have furnished in writing to
the appropriate party.
SECTION 10. Successors and Assigns. Neither the obligations of the
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Successor nor the obligations of the Bank hereunder, nor the obligations of the
Trustee hereunder including any obligations assumed as a result of this
Agreement, shall be assigned to any person without the prior written consent of
the other parties hereto, except in accordance with the provisions of the
Transaction Documents. Subject to the preceding sentence, this Agreement shall
inure to the benefit of and be binding upon the successors and assigns of each
of the parties hereto.
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SECTION 11. Headings. The headings of Sections have been included
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herein for convenience only and should not be considered in interpreting this
Agreement.
SECTION 12. Survival of Representations. All representations
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contained in this Agreement shall survive the execution and delivery of this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
THE FIRST NATIONAL BANK OF
ATLANTA d/b/a WACHOVIA BANK CARD
SERVICES
By: /s/ Charles M. Hegarty
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Name: Charles M. Hegarty
Title: President
FIRST USA BANK, N.A., as Successor
By: /s/ Stephen R. Etherington
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Name: Stephen R. Etherington
Title: First Vice President
THE BANK OF NEW YORK, as Trustee
By: /s/ Cassandra D. Shedd
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Name: Cassandra D. Shedd
Title: Assistant Vice President
ANNEX A
TRANSACTION DOCUMENTS
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Loan Agreements Date of Original Agreement
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1. Series 1998-3 June 26, 1998
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