Exhibit 99.01
FIRST AMENDMENT TO
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THE AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT
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FIRST AMENDMENT TO THE AMENDED AND RESTATED POOLING AND
SERVICING AGREEMENT, dated as of March 27, 2002 (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 predecessors to First USA Bank, National
Association and the Trustee have heretofore executed and delivered a Pooling and
Servicing Agreement, dated as of October 26, 1995, which was amended and
restated in its entirety as of June 4, 1999 (as amended and supplemented or
otherwise modified, including by the Assumption Agreement for Wachovia, dated as
of July 27, 2001, by and among The First National Bank of Atlanta d/b/a Wachovia
Bank Card Services, First USA Bank, National Association, as the successor
Transferor and Servicer, and the Trustee, 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"), relating to
the Wachovia Credit Card Master Trust (the "Trust");
WHEREAS, Section 13.1(a) of the Master Pooling and Servicing
Agreement provides that the Servicer, the Transferor and the Trustee, without
the consent of the Certificateholders, may amend the Master Pooling and
Servicing Agreement from time to time so long as (i) each Rating Agency then
rating the Investor Certificates shall have notified the Transferor, the
Servicer and the Trustee in writing (which writing need only be addressed to any
one of the Transferor, the Servicer or the Trustee) that such action will not
result in a reduction or withdrawal of the rating of any outstanding Series or
Class which it is then rating, (ii) the Trustee shall have received an Officer's
Certificate to the effect that such amendment, in the reasonable belief of the
Transferor, will not adversely affect in any material respect the interests of
any Investor Certificateholders, and (iii) the Trustee shall have received a Tax
Opinion.
WHEREAS, the Trustee has received (i) from each Rating Agency,
a letter confirming the current rating of each outstanding Series, (ii) an
Officer's Certificate to the effect that in the reasonable belief of the
Transferor, such amendment will not adversely affect in any material respect the
interests of any Investor Certificateholders, and (iii) a Tax Opinion.
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. (a) Section 1.1 of the Master
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Pooling and Servicing Agreement is hereby amended by adding the following
definitions thereto in the proper order therefor:
"Amendment Closing Date" shall mean March 27, 2002.
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"Delaware Act" shall mean the Asset-Backed Securities
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Facilitation Act located in Title 6, Chapter 27A of the Delaware
Code.
"Permitted Activities" shall mean the primary activities of
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the Trust, which shall be:
(a) holding Receivables transferred from the Transferor and
other assets of the Trust, including any Credit
Enhancement with respect to any Series and passive
derivative financial instruments that pertain to
beneficial interests issued or sold to parties other
than the Transferor, its Affiliates or its agents;
(b) issuing Certificates and other interests in the Trust
assets;
(c) receiving Collections and making payments on such
Certificates and interests in accordance with the terms
of this Agreement and any Supplement; and
(d) engaging in other activities that are necessary or
incidental to accomplish these limited purposes.
"SFAS 140" shall mean Statement of Financial Accounting
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Standards No. 140, Accounting for Transfers and Servicing of
Financial Assets and Extinguishments of Liabilities (or any
replacement FASB Statement, or amendment or interpretation thereof).
"Trust Assets" shall have the meaning specified in Section
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2.1.
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(b) Section 1.1 of the Master Pooling and Servicing Agreement is
hereby amended by replacing the definitions contained therein with the following
definitions in the proper order therefor:
"Certificateholder" or "Holder" shall mean the Person in
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whose name a Certificate is registered in the Certificate Register, if
applicable, the holder of any Bearer Certificate or Coupon, as the case
may be, or such other Person deemed to be a "Certificateholder" or
"Holder" in any related Supplement, and if used with respect to the
Transferor Certificate, the Person in whose name the Transferor
Certificate is registered in the Certificate Register or the Person in
whose name ownership of the uncertificated interest in the Transferor
Amount is recorded in the books and records of the Trustee.
"Holder of the Transferor Certificate" or "holder of the
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Transferor Certificate" shall mean the Holder of the Transferor
Certificate or the Holder of any uncertificated interest in the
Transferor Amount.
"Transferor Certificate" shall mean (a) if the Transferor
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elects to evidence its interest in the Transferor Amount in
certificated form pursuant to Section 6.1, a certificate executed by
the Transferor and authenticated by the Trustee, substantially in the
form of Exhibit A and exchangeable as provided in Section 6.9, or (b)
if the Transferor elects not to evidence its interest in the Transferor
Amount in certificated form, the uncertificated interest in the
Transferor Amount; provided, that at any time there shall be only one
Transferor Certificate; provided, further, that in any Supplement,
"Transferor Certificate" shall mean either a certificate executed and
delivered by the Transferor and authenticated by the Trustee
substantially in the form of Exhibit A or the uncertificated interest
in the Transferor Amount.
Section 2. Amendments to Section 2.1. (a) Section 2.1 of the
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Master Pooling and Servicing Agreement is hereby amended by replacing the first
paragraph of such section in its entirety with the following:
"Section 2.1 Conveyance of Receivables. The Transferor
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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, all
monies due or to become due with respect to such Receivables (including
all Finance Charge Receivables and recoveries on any charged-off
Receivables), all proceeds of such
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Receivables, Insurance Proceeds relating to such Receivables and
proceeds thereof. The property described in the preceding sentence,
together with all monies and other property credited to the Collection
Account, the Principal Account, the Finance Charge Account, the
Distribution Account and any other Series Account shall constitute the
assets of the Trust (collectively, the "Trust Assets"). The parties
hereto intend to treat the foregoing transfer, assignment, set-over and
conveyance as a sale, and not as a secured borrowing, for accounting
purposes."
(b) Section 2.1 of the Master Pooling and Servicing Agreement is hereby
amended by adding the following paragraph after the second paragraph thereof:
"To the extent that the Transferor retained any right,
title or interest in the Trust Assets transferred to the Trust pursuant
to this Master Pooling and Servicing Agreement or any Assignment
executed prior to the Amendment Closing Date (other than Receivables in
Removed Accounts), the Transferor does hereby transfer, assign,
set-over, and otherwise convey to the Trustee for the benefit of the
Certificateholders, without recourse, all of its right, title and
interest in and to such Trust Assets."
(c) Section 2.1 of the Master Pooling and Servicing Agreement is
hereby amended by adding the following paragraph at the end of such section:
"It is the intention of the parties hereto that all such
transfers be subject to, and be treated in accordance with, the
Delaware Act and each of the parties hereto agrees that this Agreement
has been entered into by the parties hereto in express reliance upon
the Delaware Act. For purposes of complying with the requirements of
the Delaware Act, each of the parties hereto hereby agrees that any
property, assets or rights purported to be transferred, in whole or in
part, by the Transferor pursuant to this Agreement shall be deemed to
no longer be the property, assets or rights of the Transferor. The
parties hereto acknowledge and agree that each such transfer is
occurring in connection with a "securitization transaction" within the
meaning of the Delaware Act."
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Section 3. Amendment to Section 2.7. Section 2.7 of the Master
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Pooling and Servicing Agreement is hereby replaced in its entirety with the
following:
"Section 2.7 Removal of Accounts.
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(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. 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) the removal of any Receivables of any Removed
Accounts on any Removal Date shall not, in the reasonable belief of the
Transferor, (a) cause a Pay Out Event to occur, (b) cause the
Transferor Amount to be less than the Minimum Transferor Amount on such
Removal Date, (c) cause the sum of the aggregate amount of Principal
Receivables and the Excess Funding Amount to be less than the Minimum
Aggregate Principal Receivables, or (d) result in the failure to make
any payment specified in the related Supplement with respect to any
Series;
(ii) 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 (or as otherwise agreed upon between the Transferor
and the Trustee) 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;
(iii) the Transferor shall represent and warrant that (x)
no selection procedures believed by the Transferor to be materially
adverse to the interests of the Certificateholders were utilized in
selecting the Removed
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Accounts to be removed from the Trust and (y) (I) a random selection
procedure was used by the Transferor in selecting the Removed Accounts
and only one such removal of randomly selected Accounts shall occur in
the then current Monthly Period, (II) the Removed Accounts arose
pursuant to an affinity, private-label, agent-bank, co-branding or
other arrangement with a third party that has been cancelled by such
third party or has expired without renewal and which by its terms
permits the third party to repurchase the Accounts subject to such
arrangement, upon such cancellation or non-renewal and the third party
has exercised such repurchase right or (III) the Removed Accounts were
selected using another method that will not preclude transfers of
Receivables to the Trust from being accounted for as sales under
generally accepted accounting principles or prevent the Trust from
continuing to qualify as a qualifying special purpose entity in
accordance with SFAS 140 and the Transferor shall have delivered to the
Trustee and each Credit Enhancement Provider an Officer's Certificate,
dated the Removal Date, to that effect;
(iv) 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; and
(v) the Transferor shall have delivered to the
Trustee an Officer's Certificate confirming the items set forth in
clauses (i) through (iv) 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 4. Amendment to Section 3.5. Section 3.5 of the Master
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Pooling and Servicing Agreement is hereby amended by replacing the words
"November 30" and "November 30, 1996" in the first sentence thereof with
"December 31" and "December 31, 2002", respectively.
Section 5. Amendment to Section 3.6. Subsection 3.6(a) of the
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Master Pooling and Servicing Agreement is hereby amended by replacing the words
"November 30" and "November 30, 1996" in the first sentence thereof with
"December 31" and "December 31, 2002", respectively.
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Section 6. Amendment to Section 3.6. Subsection 3.6(b) of the
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Master Pooling and Servicing Agreement is hereby amended by replacing the words
"November 30" and "November 30, 1996" in the first sentence thereof with
"December 31" and "December 31, 2002", respectively.
Section 7. Amendment to Section 4.1. Section 4.1 of the Master
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Pooling and Servicing Agreement is hereby replaced in its entirety by the
following:
"Section 4.1 Rights of Certificateholders. Each Series of
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Investor Certificates shall represent Undivided Interests in the Trust,
including the benefits of any Credit 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 and any other Series Accounts (if so
specified in the related Supplement) or to be paid to the Investor
Certficateholders of such Series; provided, however, that the aggregate
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interest represented by such Certificates at any time in the Principal
Receivables shall not exceed an amount equal to the Investor Interest
at such time. The Transferor Certificate or, as the case may be, the
uncertificated interest in the Transferor Amount shall represent the
remaining undivided interest in the Trust not allocated to the Investor
Certificates and the other interests issued by 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 Transferor Certificate; provided, however, that if the Transferor
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elects to have its interest in the Transferor Amount be uncertificated
as provided in Section 6.1, then such uncertificated interest shall
represent the Transferor Amount; provided, further, that the aggregate
interest represented by such Transferor Certificate in the Principal
Receivables or, as the case may be, the aggregate uncertificated
interest of the Transferor in the Principal Receivables, shall not
exceed the Transferor Amount at any time and such Transferor
Certificate or, as the case may be, such uncertificated interest shall
not represent any interest in the Investor Accounts, except as provided
in this Agreement, or the benefits of any Credit Enhancement issued
with respect to any Series"
Section 8. Amendment to Section 6.1. Section 6.1 of the Master
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Pooling and Servicing Agreement is hereby replaced in its entirety with the
following:
"Section 6.1 The Certificates. Subject to Sections
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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
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registered form (the "Registered Certificates"), and shall be
substantially in the form of the exhibits with respect thereto attached
to the related Supplement. The Transferor may elect at any time, by
written notice to the Trustee, to have its interest in the Transferor
Amount be (i) an uncertificated interest or (ii) evidenced by a
Transferor Certificate in certificated form. If the Transferor elects
to have its interest in the Transferor Interest be uncertificated, it
shall deliver to the Trustee for cancellation any Transferor
Certificate previously issued. If the Transferor elects to have its
interest in the Transferor Amount be evidenced by a Transferor
Certificate in certificated form, the Transferor Certificate shall be
issued pursuant hereto or to Section 6.9 or Section 6.10, substantially
in the form of Exhibit A, and shall upon issue be executed and
delivered by the Transferor to the Trustee for authentication and
redelivery as provided in Sections 2.1 and 6.2. The Investor
Certificates shall, upon issue pursuant hereto or to Section 6.9 or
Section 6.10, be executed and delivered by the Transferor to the
Trustee for authentication and redelivery as provided in Section 2.1
and Section 6.2. 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. The
Transferor Certificate, if applicable, 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. Unless otherwise provided in the related Supplement, 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 9. Amendment to Section 6.2. The third sentence of
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Section 6.2 of the Master Pooling and Servicing Agreement is hereby replaced in
its entirety with the following:
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"If the Transferor elects to have its interest in the
Transferor Amount be evidenced by a Transferor Certificate in
certificated form, the Trustee shall authenticate and deliver the
Transferor Certificate to the Transferor simultaneously with its
delivery to the Transferor of the initial Series of Investor
Certificates."
Section 10. Amendment to Section 6.9. Subsection 6.9(b) of the Master
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Pooling and Servicing Agreement is hereby replaced in its entirety with the
following:
"(b) The Holder of the Transferor Certificate may
tender the Transferor Certificate to the Trustee in exchange for (i)
one or more newly issued Series of Investor Certificates or in
connection with a Paired Series, interests in such Series and (ii) if
there is a currently existing Transferor Certificate, upon presentation
of such Transferor Certificate to the Trustee for cancellation, a
reissued 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 if there is a currently existing Transferor
Certificate in certificated form, the Holder of the Transferor
Certificate may tender the 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) upon presentation of such Transferor Certificate
to the Trustee for cancellation, a reissued Transferor Certificate (an
"Investor Exchange"). The Transferor Exchange and Investor Exchange are
referred to collectively herein as an "Exchange." The Holder of the
Transferor Certificate may perform an Exchange by notifying the
Trustee, in writing at least three 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
(and Class thereof, if applicable) to be issued on the Exchange Date
and, with respect to each such Series: (a) its initial Investor
Interest (or the method for calculating such Initial Investor
Interest), (b) its Certificate Rate (or the method for allocating
interest payments or other cash flows to such Series), if any, and (c)
the Credit 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 6.9(c) executed by the Transferor and the Servicer and
specifying the Principal Terms of such Series, (b) the applicable
Credit Enhancement, if any, (c) the agreement, if any, pursuant to
which the Credit Enhancement Provider agrees to provide the Credit
Enhancement, if any, (d) (i) an Opinion of Counsel to the effect that,
unless otherwise stated in the
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related Supplement, the newly issued Series of Investor Certificates
will be treated as debt for federal income tax purposes and (ii) a Tax
Opinion with respect to the issuance of such Series, (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 designate
Additional Accounts pursuant to subsection 2.6(a) and (ii) after giving
effect to such Exchange, the Transferor Amount would be at least equal
to the Minimum Transferor Amount, and (g) the existing Transferor
Certificate, if any, or applicable Investor Certificates, as the case
may be. Upon satisfaction of such conditions, the Trustee shall cancel
the existing Transferor Certificate or applicable Investor
Certificates, as the case may be, and issue, as provided above, such
Series of Investor Certificates and, if any such Transferor Certificate
shall have been cancelled, a new Transferor Certificate, dated the
Exchange Date. There is no limit to the number of Exchanges that may be
performed under the Agreement."
Section 11. Amendment to Section 9.2. Section 9.2(a) of the
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Master Pooling and Servicing Agreement is hereby replaced in its entirety by the
following:
"(a) If an Insolvency Event occurs with respect to the
Transferor or any holder of an interest in the Transferor Certificate
(including any Transferor Participation), the Transferor shall on the
day of such Insolvency Event or violation (the "Appointment Day")
immediately cease to transfer Principal Receivables, or interests in
Principal Receivables represented by any Participations, 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 or any Participations, Principal
Receivables or any Participations transferred to the Trust prior to the
occurrence of such Insolvency Event or violation and Collections in
respect of such Principal Receivables and Participations, and Finance
Charge Receivables, whenever created, accrued in respect of such
Principal Receivables shall continue to be a part of the Trust, and
shall continue to be allocated and paid in accordance with Article IV.
For so long as any Series issued prior to the Amendment Closing Date
remains outstanding, within 15 days of the Appointment Day, the Trustee
shall (i) publish a notice in an Authorized Newspaper that an
Insolvency Event or violation has occurred, that the Trust has
dissolved and that the Trustee intends to sell, dispose of or otherwise
liquidate the Receivables on commercially reasonable terms and in a
commercially reasonable manner and (ii) send written notice to (w) any
Holder of the Transferor Certificate and any holder of an interest in
the
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Transferor Certificate (including any Transferor Participation) with
respect to which the Insolvency Event has not occurred, (x) the
Investor Certificateholders, (y) each Credit Enhancement Provider, if
any, and (z) any other Person entitled thereto pursuant any Supplement
describing the provisions of this Section 9.2. Unless within 75 days
from the day notice pursuant to clause (i) above is first published,
the Trustee shall have received written instructions from Holders of
Investor Certificates evidencing more than 50% of the Investor Interest
of each Series issued and outstanding (or in the case of a Series
having more than one Class, each Class) and from each person described
in (ii) (y) and (ii) (z) to the effect that such Persons disapprove of
the liquidation of the Receivables, the Trustee shall promptly sell,
dispose of, or otherwise liquidate the Receivables and Participations
in a commercially reasonable manner and on commercially reasonable
terms, which shall include the solicitation of competitive bids. None
of the Transferor, or any holder of an interest in the Transferor
Certificate (including any Transferor Participation) or any Affiliate
or any agent of the foregoing shall be permitted to purchase such
Receivables in such case. In the event that, in accordance with the
result of the voting procedures set forth above, the Receivables and
Participations are not sold at the time of dissolution, the Trustee
shall retain the Receivables and Participations (and no Receivables or
Participations shall thereafter be added to the Trust) and apply
collections thereon in accordance with the provisions of Article IV.
Notwithstanding the foregoing, the Trustee shall cause any remaining
Receivables and Participations to be disposed of in a manner so that
the Trust is liquidated on or prior to the date that is three (3) years
after the Appointment Date. 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 9.1 and 9.2
shall not be deemed to be mutually exclusive."
Section 12. Amendment to Section 10.2. Section 10.2(a) of the
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Master Pooling and Servicing Agreement is hereby replaced in its entirety with
the following:
"(a) On and after the receipt by the Servicer of a
Termination Notice pursuant to Section 10.1, 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
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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 the Servicer
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 Credit
Enhancement Provider of the proposed sale of the Receivables and shall
provide each such Credit Enhancement Provider an opportunity to bid on
the Receivables. None of the Transferor or any holder of an interest in
the Transferor Certificate (including any Transferor Participation) or
any Affiliate or any agent of the foregoing shall be permitted to
purchase such Receivables in such case. 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 12.3
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, petition 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(R) or MasterCard(R) credit card receivables as the
Successor Servicer hereunder."
Section 13. Amendment to Section 12.1. Subsection 12.1(b) of
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the Master Pooling and Servicing Agreement is hereby replaced in its entirety
with the following:
"(b) All principal and 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 Investor
Interest 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 first, to
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all Certificateholders of such Series in accordance with the priority
for each
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Class within such Series as provided in the related Supplement, in
final payment of all principal of and accrued interest on such Series
of Certificates, and second, as provided in the related Supplement, an
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amount of Principal Receivables and the related Finance Charge
Receivables (or interests therein) up to 110% of the sum of the
Investor Interest of such Series plus the Enhancement Invested Amount
or the Collateral Interest (if not included in the Investor Interest)
of such Series, if any, at the close of business on such date (but not
more than an amount of Principal Receivables and the related Finance
Charge Receivables equal to the sum of (1) the product of (A) the
Transferor Amount divided by the aggregate amount of Principal
Receivables, (B) the aggregate amount of Principal Receivables in the
Trust and (C) a fraction the numerator of which is the applicable
Investor Percentages with respect to Finance Charge Receivables and the
denominator of which is the sum of all Investor Percentages with
respect to Finance Charge Receivables of all Series and (2) the
Investor Interest of such Series plus the Enhancement Invested Amount
or the Collateral Interest (if not included in the Investor Interest)
of such Series). The Trustee shall notify each Credit Enhancement
Provider of the proposed sale of such Receivables and shall provide
each Credit Enhancement Provider an opportunity to bid on such
Receivables. None of the Transferor or any holder of an interest in the
Transferor Certificate (including any Transferor Participation) or any
Affiliate or agent of the foregoing shall be permitted to purchase such
Receivables in such case. Any proceeds of such sale in excess of such
principal and interest paid and such other amounts paid pursuant to the
related Supplement shall be paid to the Holder of the 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 12.3."
Section 14. Amendment to Section 12.2. Section 12.2(a) of the
-------------------------
Master Pooling and Servicing Agreement is hereby replaced in its entirety with
the following:
"(a) If so provided in any Supplement, the
Transferor (so long as the Transferor is the Servicer or an Affiliate
of the Servicer) 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 12.3, 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
13
deposits nor such obligations of the Transferor are rated by Xxxxx'x,
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 BANK ONE CORPORATION) are not rated at the time of such purchase of
Receivables at least Prime-3 or Baa-3, respectively, by Xxxxx'x, 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.
Section 15. Amendment to Section 12.4. Section 12.4 of the
-------------------------
Master Pooling and Servicing Agreement is hereby replaced in its entirety with
the following:
"Section 12.4 Termination Rights of Holder or
-------------------------------
Transferor Certificate. Upon the termination of the Trust pursuant to
----------------------
Section 12.1, and after payment of all amounts due hereunder on or
prior to such termination and the surrender of the Transferor
Certificate, if there is currently existing a Transferor Certificate in
certificated form, 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 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 to such Receivables (including
all accrued interest theretofore posted as Finance Charge Receivables)
and all proceeds of such Receivables and Insurance Proceeds relating to
such Receivables and Interchange (if any) allocable to the Trust
pursuant to any Supplement, except for amounts held by the Trustee
pursuant to subsection 12.3(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
Transferor Certificate to vest in such Holder all right, title and
interest which the Trust had in the Receivables.
Section 16. Amendment to Section 13.1. Subsections 13.1(a) and
-------------------------
(b) of the Master Pooling and Servicing Agreement are hereby replaced in their
entirety with the following:
"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, including for the purpose of enabling the
Trust or a portion thereof to elect to qualify as a financial asset
securitization investment trust (or comparable tax entity for the
securitization of financial assets) in accordance with the Internal
Revenue Code, without the consent of any of
14
Certificateholders; provided, however, that (i) such action shall
-------- -------
not, as evidenced by an Officer's Certificate, (A) in the
reasonable belief of the Transferor, adversely affect in any
material respect the interests of any Investor Certificateholders
or (B) significantly change the Permitted Activities of the
Trust; (ii) the Transferor shall have delivered a Tax Opinion to
the Trustee and (iii) each Rating Agency shall have notified the
Transferor, the Servicer and the Trustee in writing (which
writing need only be addressed to any one of the Transferor, the
Servicer or the Trustee) 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.
(b) This Agreement or any Supplement may also be amended in
writing from time to time by the Servicer, the Transferor and the
Trustee (x) with the consent of the Holders of Investor
Certificates evidencing Undivided Interests aggregating not less
than 66-2/3% of the Investor Interest 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 or (y) with the consent of the
Holders of Investor Certificates evidencing Undivided Interests
aggregating more than 50% of the Investor Interest of each
outstanding Series for the purpose of significantly changing the
Permitted Activities of the Trust if such amendment shall not, as
evidenced by an Officer's Certificate, adversely affect in any
material respect the interests of any Investor Certificateholder;
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 Investor Interest, 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."
Section 17. Amendment to Section 13.2. Subsection 13.2(d) of
-------------------------
the Master Pooling and Servicing Agreement is hereby replaced in its entirety by
the following:
"(d) The Servicer will deliver to the Trustee on or before
December 31 of each year, beginning with December 31, 2002, an
Opinion of Counsel
15
in the form of Exhibit F."
Section 18. Amendment to Section 13.17. The Master Pooling and
--------------------------
Servicing Agreement is hereby amended by adding a new section which reads as
follows:
"Section 13.17. Characterization of the Trust. For purposes of
-----------------------------
SFAS 140, the parties hereto intend that the Trust shall be treated as
a "qualifying special purpose entity" as such term is used in SFAS 140
and any successor rule thereto and its permitted activities shall be
limited in accordance with paragraph 35 thereof.
If the transfer of the Receivables to the Trust is
characterized as a loan to the Transferor secured by Receivables, the
Transferor, in such circumstances, agrees that it does not have the
right to prepay such loan prior to the maturity date thereof under any
circumstances and does hereby irrevocably waive and relinquish such
right."
Section 19. Amendment and Ratification of Series Supplements.
------------------------------------------------
(a) As of April 1, 2002, all Supplements which are in effect
on the Amendment Closing Date are hereby amended as follows:
(i) The following definitions of Section 2 of
each of the Supplements shall be amended by deleting the current
definitions in Section 2 and substituting in place the following:
""Base Rate" shall mean, with respect to any Monthly
---------
Period, the sum of (a) the annualized percentage equivalent of
a fraction, the numerator of which equal to the sum of the
Class A Monthly Interest, the Class B Monthly Interest and the
Collateral Monthly Interest, each for the related Interest
Period, and the denominator of which is the Investor Interest
as of the close of business on the last day of the Monthly
Period, plus (b) 2%."
""Net Servicing Fee Rate" shall mean (a) so long as
----------------------
the Transferor or an Affiliate thereof is the Servicer, 0.50%
per annum, (b) so long as The Bank of New York (Delaware) or
an Affiliate thereof is the Servicer, 1% per annum, and (c) if
the Transferor, and Affiliate thereof, The Bank of New York
(Delaware) or an Affiliate thereof is no longer the Servicer,
2% per annum."
16
""Series Servicing Fee Percentage" shall mean (a) so
-------------------------------
long as the Transferor or an Affiliate thereof is the
Servicer, 1.50% per annum, and (b) if the Transferor or an
Affiliate thereof is no longer the Servicer, 2% per annum."
(b) Except as specifically amended hereby, all of the terms
and conditions of each Supplement shall remain in full force and effect. All
references to a Supplement, from and after the Amendment Closing Date, shall
mean a Supplement as so amended and modified by the foregoing.
Section 20. 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 21. 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 22. 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 23. 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.
17
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/ Xxxxxxx X. Xxxxxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: First Vice President
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By: /s/ Xxxxxxx X. Xxxxx
-----------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
