AMENDMENT No. 8 dated as of April 1, 2001, to the
Pooling and Servicing Agreement dated as of June 1, 1993,
between PROVIDIAN NATIONAL BANK (formerly known as First
Deposit National Bank), a national banking association, as
Seller and Servicer, and BANKERS TRUST COMPANY, a New York
banking corporation, as Trustee.
WHEREAS the Seller, the Servicer and the Trustee are parties to the
Pooling and Servicing Agreement dated as of June 1, 1993, as amended by
AMENDMENT No. 1 dated as of May 1, 1994, AMENDMENT No. 2 dated as of June 1,
1995, AMENDMENT No. 3 dated as of March 1, 1997, AMENDMENT No. 4 dated as of
June 1, 1998, AMENDMENT No. 5 dated as of August 1, 1998, AMENDMENT No. 6 dated
as of February 1, 2000, AMENDMENT No. 7 dated as of March 1, 2000,and as
supplemented by SUPPLEMENTAL AGREEMENT No. 1 dated as of January 1, 1998 (as so
amended and supplemented, the "Agreement"); and
WHEREAS the Seller, the Servicer and the Trustee now wish to amend the
Agreement as set forth herein;
NOW, THEREFORE, the Seller, the Servicer and the Trustee hereby agree
as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms Not Defined Herein. All capitalized terms
used herein that are not defined herein shall have the meaning ascribed to them
in the Agreement.
ARTICLE II
AMENDMENTS TO AGREEMENT
SECTION 2.01. Amendment to Section 2.01 of the Agreement. Section 2.01
of the Agreement is amended by adding the following paragraph at the end of
Section 2.01:
The parties hereto intend that each transfer of Receivables and other
property pursuant to this Agreement or any Assignment constitutes a sale,
and not a secured borrowing, for accounting purposes. If, and to the extent
that, notwithstanding such intent the transfer pursuant to this Section
2.01 is not deemed to be a sale, the applicable Seller shall be deemed
hereunder to have granted and does hereby grant to the Trustee, on behalf
of the Trust and for the benefit of the Certificateholders, a security
interest in all of its right, title and interest, whether now owned or
hereafter acquired, in, to and under all of the Trust Assets, and this
Agreement constitutes a security agreement under applicable law.
SECTION 2.02. Amendment to Section 2.02 of the Agreement. Section 2.02
of the Agreement is amended by changing the caption thereof to "Acceptance by
Trustee; Permitted Trust Activities" and adding the following paragraph at the
end of Section 2.02:
(e) The purpose of the Trust is to engage in the following activities:
(i) to accept, acquire and hold, for the benefit of the
Certificateholders or any other owners of beneficial interests in the
Trust or its assets, (a) Trust Assets and all proceeds thereof,
(b) Participation Interests and Series Enhancement, (c) servicing
rights with respect to financial assets it holds, and (d) passive
derivative financial instruments that pertain to beneficial interests
issued or sold to Investor Certificateholders of one or more Series
(excluding any Investor Certificates issued or sold to the Sellers or
any Affiliate or agent of the Sellers), and passive derivative
financial instruments replacing any such instrument that has expired
or as to which the obligor has defaulted or been downgraded, provided
that all such assets held by the Trust do not involve the Trustee in
the making of decisions other than those inherent in servicing or
administering the Trust;
(ii) to issue Series of Investor Certificates and to issue the
Sellers' Interest, Supplemental Interests and other beneficial
interests in the Trust and its assets from time to time pursuant to
this Agreement and related Supplements;
(iii) to service, administer, collect, protect, invest and
distribute the assets of the Trust and the proceeds thereof;
(iv) to make distributions and payments to Investor
Certificateholders, to the holders of the Sellers' Interest and any
Supplemental Interests, to providers of Series Enhancement and
derivative financial instruments and to other owners of beneficial
interests in the Trust;
(v) to service or provide for the servicing of the assets of the
Trust and to pay Servicing Fees as provided in this Agreement and the
related Supplements, to pay Trustee's fees and expenses and other fees
and expenses as provided in this Agreement and the related Supplements
and other agreements entered into in connection with the servicing,
administration and operation of the Trust and the assets of the Trust;
(vi) to transfer, assign and otherwise convey any portion of the
Trust Assets released from the Trust; and
(vii) to engage in those activities, including entering into,
executing, delivering and performing agreements, certificates,
instruments, reports, notices, filings and other documents described
in this Agreement and the related Supplements or that are necessary,
suitable or convenient to accomplish the foregoing or are incidental
to the foregoing or are connected therewith.
The Trust shall not engage in any activity other than in connection with
the foregoing or other than as required or authorized by the terms of this
Agreement and the related Supplements and other related agreements,
certificates, instruments and documents.
SECTION 2.03. Amendment to Section 2.09 of the Agreement. Section 2.09
of the Agreement is amended by deleting the word "and" after paragraph (e)
thereof, replacing the period at the end of paragraph (f) thereof with a
semicolon, and adding the following paragraph immediately after paragraph (f)
thereof:
(g) Subject to the exceptions set forth in Section 2.09(h), (i) no
more than one Removal Date shall occur in any Monthly Period and (ii) for
each Removal Date, the Accounts to be designated as Removed Accounts shall
be selected at random by the Seller and the Removed Accounts shall not, as
of the Removal Notice Date, contain Principal Receivables which in the
aggregate exceed an amount equal to the excess, if any, of the Sellers'
Participation Amount over the Required Sellers' Participation Amount; and
(h) The following Accounts may be removed on any day and shall not be
subject to the limitations described in Section 2.09(g):
(i) any Accounts that contain Defaulted Receivables;
(ii) any Accounts described in the proviso of Section 2.09(d); or
(iii) any Accounts originated or acquired under an affinity,
private label, agent bank, co-branding or other arrangement with a
third party, which has been cancelled by such third party or which has
expired without renewal and which by its terms permits the third party
to purchase the Accounts or Receivables subject to such arrangement,
upon such cancellation or non-renewal.
SECTION 2.04. Amendments to Section 4.02 of the Agreement. (a) The
proviso in the third paragraph of Section 4.02 of the Agreement is deleted, and
inserted in its place is the following:
; provided, however, that the Trustee shall sell, liquidate or dispose of
an Eligible Investment before its maturity, if so directed by the Servicer,
if a default by, or a downgrade of, the obligor of such Eligible Investment
has occurred.
(b) The first proviso in the fifth paragraph of Section 4.02 of the
Agreement is deleted, and inserted in its place is the following:
; provided, however, that the Trustee shall sell, liquidate or dispose of
an Eligible Investment before its maturity, if so directed by the Servicer,
if a default by, or a downgrade of, the obligor of such Eligible Investment
has occurred.
SECTION 2.05. Amendment to Section 9.02(a) of the Agreement.
Section 9.02(a) of the Agreement is amended to read in its entirety as follows:
SECTION 9.02. Additional Rights upon the Occurrence of Certain
Events. (a)If an Insolvency Event occurs with respect to any of the Sellers
or any of the Sellers violates Section 2.07(c) for any reason, the Sellers
shall on the day any such Insolvency Event or violation occurs (the
"Appointment Date"), immediately cease to transfer Principal Receivables to
the Trust and shall promptly give notice to the Trustee thereof.
Notwithstanding any cessation of the transfer to the Trust of additional
Principal Receivables, Principal Receivables transferred to the Trust prior
to the occurrence of such Insolvency Event and Collections in respect of
such Principal Receivables and Finance Charge Receivables whenever created,
accrued in respect of such Principal Receivables, shall continue to be a
part of the Trust. Within 15 days after receipt of such notice by the
Trustee of the occurrence of such Insolvency Event or violation of Section
2.07(c), the Trustee shall (i) publish a notice in an Authorized Newspaper
that an Insolvency Event or violation has occurred and that the Trustee
intends to sell, dispose of or otherwise liquidate the Receivables and (ii)
give notice to Investor Certificateholders and each Series Enhancer
entitled thereto pursuant to the relevant Supplement describing the
provisions of this Section and requesting instructions from such Holders.
Unless the Trustee shall have received instructions within 90 days from the
date notice pursuant to clause (i) above is first published from (x)
Holders of Investor Certificates evidencing more than 50% of the aggregate
unpaid principal amount of each Series or, with respect to any Series with
two or more Classes, of each Class, to the effect that such Investor
Certificateholders disapprove of the liquidation of the Receivables and
wish to continue having Principal Receivables transferred to the Trust as
before such Insolvency Event or violation, (y) to the extent provided in
the relevant Supplement, any Series Enhancer with respect to such Series,
and (z) each of the Sellers (other than the Seller that is the subject of
such Insolvency Event or violation), including any Additional Seller, any
Holder of a Supplemental Interest and any permitted assignee or successor
under Section 7.02, to such effect, the Trustee shall promptly sell,
dispose of or otherwise liquidate the Receivables by the solicitation of
competitive bids and on terms equivalent to the best purchase offer as
determined by the Trustee. The Sellers and Affiliates and agents of the
Sellers shall not be entitled to participate as a bidder in such sale of
the Receivables. 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.
SECTION 2.06. Amendment to Section 13.01(a) of the Agreement. Section
13.01(a) of the Agreement is amended by adding the following proviso at the end
of Section 13.01(a):
; provided, however, that notwithstanding the fact that clauses (i) and
(ii) of this Section 13.01(a) would otherwise apply, any amendment that
materially changes the permitted activities of the Trust described in
Section 2.02(e) shall require the consent of the Holders of Investor
Certificates evidencing more than 50% of the aggregate unpaid principal
amount of the Investor Certificates of all outstanding Series, but such
consent shall not be required if such amendment changing the permitted
activities of the Trust is (a) administrative in nature, (b) entered into
for the purpose of preserving the intended sales treatment under generally
accepted accounting principles, or the intended treatment for tax purposes,
of transactions under this Agreement, or (c) in response to regulatory or
legal changes.
SECTION 2.07. Amendment to Section 13.02(c) of the Agreement. Section
13.02(c) of the Agreement is amended by adding the following proviso at the end
of Section 13.02(c):
; provided, however, that each Seller and the Servicer may maintain offices
outside the United States that engage in servicing activities with respect
to the Receivables (other than receiving, processing or maintaining
Collections outside the United States), so long as the information
necessary to perfect or to continue the perfection of the Trust's security
interest in the Receivables and the proceeds thereof, including the account
number, the aggregate amount outstanding in such Account and the aggregate
amount of Principal Receivables outstanding in such Account, is also
maintained in its servicing records located in the United States.
SECTION 2.08. Amendment to Exhibit B of the Agreement. Section 3(d) of
Exhibit B to the Agreement is amended to read in its entirety as follows:
(d) The parties hereto intend that each transfer of Receivables and
other property pursuant to this Assignment constitutes a sale, and not a
secured borrowing, for accounting purposes, and that, to the extent that
the foregoing conveyance is not deemed to be a sale, each of the
Participating Sellers hereby grants to the Trustee a security interest in
all of its right, title and interest in and to the Receivables now existing
and hereafter created in the Additional Accounts designated by such
Participating Seller, all monies due to or to become due and all amounts
received with respect thereto and all proceeds (including "proceeds" as
defined in the UCC) thereof. This Assignment constitutes a security
agreement under applicable law.
ARTICLE III
MISCELLANEOUS
SECTION 3.01. Ratification of Agreement. As amended by this Amendment,
the Agreement is in all respects ratified and confirmed and the Agreement as
amended by this Amendment shall be read, taken and construed as one and the same
instrument.
SECTION 3.02. Amendment. The Agreement may be amended from time to
time only if the conditions set forth in Section 13.01 of the Agreement are
satisfied.
SECTION 3.03. Counterparts. This Amendment 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 shall constitute one and the same
instrument.
SECTION 3.04. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, 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 Seller, the Servicer and the Trustee have
caused this Amendment to be duly executed by their respective officers as of the
day and year first above written.
PROVIDIAN NATIONAL BANK,
Seller and Servicer,
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
BANKERS TRUST COMPANY,
Trustee,
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Assistant Vice President
