EXECUTION COPY
AMENDMENT NO. 1
TO
THE METRIS MASTER TRUST
SECOND AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT
THIS AMENDMENT NO. 1 TO THE METRIS MASTER TRUST SECOND AMENDED AND RESTATED
POOLING AND SERVICING AGREEMENT, dated as of June 14, 2002 (this "Amendment No.
1") is by and among METRIS RECEIVABLES, INC., as transferor (the "Transferor"),
DIRECT MERCHANTS CREDIT CARD BANK, NATIONAL ASSOCIATION, as servicer (the
"Servicer"), and U.S. BANK NATIONAL ASSOCIATION, as trustee (the "Trustee").
WHEREAS the Transferor, the Servicer and the Trustee have executed that
certain Second Amended and Restated Pooling and Servicing Agreement, dated as of
January 22, 2002 (the "Pooling and Servicing Agreement");
WHEREAS the Transferor, the Servicer and the Trustee wish to amend the
Pooling and Servicing Agreement as provided herein;
NOW THEREFORE, in consideration of the premises and the agreements
contained herein, the parties hereto agree to amend the provisions of the
Pooling and Servicing Agreement as follows:
SECTION 1. Amendment of Section 1.1. (a) Section 1.1 of the Pooling and
Servicing Agreement shall be and hereby is amended by adding the following
definition, which shall read in its entirety as follows:
"Interchange" shall mean all interchange fees payable
to the Transferor pursuant to the Purchase Agreement.
(b) Section 1.1 of the Pooling and Servicing Agreement shall be and hereby
is amended by deleting the definition of "Finance Charge Collections" in its
entirety and by inserting in its place the following definition, which shall
read in its entirety as follows:
"Finance Charge Collections" shall mean (i) with
respect to any Business Day, the sum of (x) Collections received by the
Servicer with respect to Finance Charge Receivables on such Business
Day, plus (y) Recoveries, plus (z) investment earnings on amounts
credited to the Excess Funding Account and (ii) with respect to any
Monthly Period, Interchange received with respect to such Monthly
Period.
SECTION 2. Amendment of Section 2.1. Section 2.1 of the Pooling and
Servicing Agreement shall be and hereby is amended by deleting the first
paragraph thereof in its entirety and by inserting in its place the following:
Section 2.1 Conveyance of Receivables. The Transferor
does hereby transfer, assign, set-over, and otherwise convey to the
Trustee, without recourse, all of its right, title and interest in, to
and under (i) in the case of Receivables arising in the Accounts
designated on the Initial Closing Date (including Transferred Accounts
related to such Accounts), the Receivables existing at the close of
business on the Initial Closing Date and thereafter created from time
to time in such Accounts until the termination of the Trust, (ii) in
the case of Receivables arising in the Additional Accounts and the
Supplemental Accounts (including Transferred Accounts related to such
Additional Accounts and Supplemental Accounts), the Receivables
existing at the close of business on the applicable Addition Cut-Off
Date and thereafter created from time to time in such Accounts until
the termination of the Trust, (iii) all Interchange allocable to the
Trust as provided herein, (iv) all monies and investments due or to
become due with respect to all of the foregoing (including, without
limitation, the right to any Finance Charge Receivables, any
Collections, and any Recoveries), (v) all proceeds of all of the
foregoing, (vi) the Purchase Agreement and (vii) the Bank Receivables
Purchase Agreement to the extent that it relates to all of the
foregoing. Such property, together with all monies and investments on
deposit, from time to time, in the Collection Account, the Excess
Funding Account, the Series Accounts maintained for the benefit of the
Securityholders of any Series of Securities, any Enhancement and all
monies available under any Enhancement, to be provided for any Series
for payment to the Securityholders of such Series, shall constitute the
assets of the Trust (collectively, the "Trust Property"). 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 Securityholder of any obligation of the
Transferor, the Servicer, the applicable Credit Card Originator or any
other Person in connection with the Accounts or any agreement or
instrument relating thereto, including, without limitation, any
obligation to any Obligors, merchant banks, merchant clearance systems,
VISA USA, Inc., MasterCard International, Incorporated or insurers, or
in connection with the Purchase Agreement or the Bank Receivables
Purchase Agreement.
SECTION 3. Amendment of Section 2.5. Section 2.5 of the Pooling and
Servicing Agreement shall be and hereby is amended by adding the following at
the end of Section 2.5, immediately after subsection 2.5(g), which shall read in
its entirety as follows:
(h) Interchange. On or before each Determination Date, the
Transferor shall notify the Servicer of the amount of Interchange to be
included as Finance Charge Collections with respect to the preceding
Monthly Period, which shall be equal to the amount of Interchange paid
to the Transferor or its designee pursuant to the Purchase Agreement
with respect to such Monthly Period. On or before each Transfer Date,
the Transferor shall pay to the Servicer the amount of Interchange to
be so included as Finance Charge Collections allocable to the Investor
Securities with respect to the preceding Monthly Period.
SECTION 4. Amendment of Section 4.3. (a) Section 4.3 shall be and hereby is
amended by deleting the first paragraph of subsection 4.3(a) and by inserting in
its place the following:
(a) Collections. Obligors shall make payments on the
Receivables to the Servicer who shall deposit all such payments in the
Collection Account no later than the second Business Day following the
Date of Processing thereof. On or before each Transfer Date, the
Servicer shall deposit Finance Charge Collections consisting of
Interchange with respect to the preceding Monthly Period in the
Collection Account, in immediately available funds, to be treated as
Finance Charge Collections available to be applied in accordance with
this Article IV and the related Supplement on the last Business Day of
such preceding Monthly Period.
(b) Section 4.3 shall be and hereby is further amended by
deleting subsection 4.3(b) in its entirety and by inserting in its place the
following:
(b) Allocations for the Holder of the Exchangeable
Transferor Security. Throughout the existence of the Trust, unless
otherwise stated in any Supplement, on each Business Day or, in the
case of any Finance Charge Collections consisting of Interchange, on or
before each Transfer Date, the Servicer shall allocate to the Holder of
the Exchangeable Transferor Security an amount equal to the product of
(A) the Transferor Percentage as of the end of the preceding Business
Day and (B) the aggregate amount of Principal Collections and Finance
Charge Collections available in the Collection Account. The Servicer
shall pay such amount to the Holder of the Exchangeable Transferor
Security on each Business Day or, in the case of any Finance Charge
Collections consisting of Interchange, on or before each Transfer Date;
provided, however, that amounts payable to the Holder of the
Exchangeable Transferor Security pursuant to this clause (b) shall
instead be deposited in the Excess Funding Account to the extent
necessary to prevent the Transferor Interest from being less than the
Minimum Transferor Interest.
(c) Section 4.3 shall be and hereby is further amended by
deleting the first sentence of subsection 4.3(c) and by inserting in its place
the following:
On each Business Day or, in the case of any Finance Charge Collections
consisting of Interchange, on or before each Transfer Date, (i) the
amount of Finance Charge Collections available in the Collection
Account allocable to each Series, (ii) the amount of Principal
Collections available in the Collection Account allocable to each
Series and (iii) the Receivables in Defaulted Accounts allocable to
each Series shall be determined in accordance with the provisions of
the related Supplement.
SECTION 5. Amendment of Exhibit H. Exhibit H to the Pooling and Servicing
Agreement shall be and hereby is amended by deleting subsection 3(a) thereof in
its entirety and by inserting in its place the following:
(a) The Transferor does hereby transfer, assign, set
over and otherwise convey to the Trustee, without recourse except as
provided in the Pooling and Servicing Agreement, all of the
Transferor's right, title and interest in, to and under (i) the
Receivables existing in the Supplemental Accounts at the close of
business on the Addition Cut-Off Date and thereafter created from time
to time in the Supplemental Accounts until the termination of the
Trust, (ii) all Interchange allocable to such Receivables, (iii) all
monies and investments due or to become due with respect to all of the
foregoing (including, without limitation, the right to any Finance
Charge Receivables, any Collections and any Recoveries), and (iv) all
proceeds of all of the foregoing (collectively, the "Additional
Transferred Assets").
SECTION 6. Amendment of Exhibit J. Exhibit J to the Pooling and Servicing
Agreement shall be and hereby is amended by deleting Section 3 thereof in its
entirety and by inserting in its place the following:
3. Reconveyance of Receivables.
(a) The Trustee does hereby reconvey to the
Transferor, without recourse, all of the Trustee's right, title and
interest in, to and under, and the Trustee does hereby release its lien
on and security interest in, (i) the Receivables existing in the
Removed Accounts at the close of business on the Removal Cut-Off Date
and thereafter created from time to time in the Removed Accounts, (ii)
all Interchange allocable to such Receivables, (iii) all monies and
investments due or to become due with respect to all of the foregoing
(including, without limitation, the right to any Finance Charge
Receivables, any Collections and any Recoveries), and (iv) all proceeds
of all of the foregoing.
(b) In connection with the foregoing reconveyance,
the Trustee agrees to authorize, execute and deliver to the Transferor
one or more termination statements (and financing statements or
amendments) as may be reasonably requested by the Transferor.
SECTION 7. Effectiveness. The amendments provided for by this Amendment No.
1 shall become effective upon the occurrence of the following:
(a) Receipt by the Transferor of written confirmation from each Rating
Agency to the effect that the terms of this Amendment No. 1 will not
result in a reduction or withdrawal of the rating of any outstanding
Series or any Class of any Series to which it is a Rating Agency.
(b) An Officer's Certificate from the Transferor delivered to the Trustee
to the effect that the terms of this Amendment No. 1 will not
materially and adversely affect the interests of the Securityholders.
(c) An Opinion of Counsel addressed to the Trustee to the effect that the
terms of this Amendment No. 1 will not cause the Trust to be
characterized for Federal income tax purposes as an association
taxable as a corporation or otherwise have any material adverse impact
on the Federal income taxation of any outstanding Series of Investor
Securities or any Security Owner.
(d) Counterparts of this Amendment No. 1, duly executed by the parties
hereto.
SECTION 8. Pooling and Servicing Agreement in Full Force and Effect as
Amended. Except as specifically amended or waived hereby, all of the terms and
conditions of the Pooling and Servicing Agreement shall remain in full force and
effect. All references to the Pooling and Servicing Agreement in any other
document or instrument shall be deemed to mean such Pooling and Servicing
Agreement as amended by this Amendment No. 1. This Amendment No. 1 shall not
constitute a novation of the Pooling and Servicing Agreement, but shall
constitute an amendment thereof. The parties hereto agree to be bound by the
terms and obligations of the Pooling and Servicing Agreement, as amended by this
Amendment No. 1, as though the terms and obligations of the Pooling and
Servicing Agreement were set forth herein.
SECTION 9. Counterparts. This Amendment No. 1 may be executed in any number
of counterparts and by separate parties hereto on separate counterparts, each of
which when executed shall be deemed an original, but all such counterparts taken
together shall constitute one and the same instrument.
SECTION 10. Governing Law. THIS AMENDMENT NO. 1 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. The
undersigned hereby declare that it is their intention that this Amendment No. 1
shall be regarded as made under the laws of the State of Delaware and that the
laws of said State shall be applied in interpreting its provisions in all cases
where legal interpretation shall be required. Each of the parties hereto agrees
(a) that this Amendment No. 1 involves at least $100,000.00, and (b) that this
Amendment No. 1 has been entered into by the parties hereto in express reliance
upon 6 Del. C. ss. 2708. Each of the parties hereto hereby irrevocably and
unconditionally agrees (a) to be subject to the jurisdiction of the courts of
the State of Delaware and of the federal courts sitting in the State of
Delaware, and (b) (1) to the extent such party is not otherwise subject to
service of process in the State of Delaware, to appoint and maintain an agent in
the State of Delaware as such party's agent for acceptance of legal process, and
(2) that, to the fullest extent permitted by applicable law, service of process
may also be made on such party by prepaid certified mail with a proof of mailing
receipt validated by the United States Postal Service constituting evidence of
valid service, and that service made pursuant to (b) (1) or (2) above shall, to
the fullest extent permitted by applicable law, have the same legal force and
effect as if served upon such party personally within the State of Delaware. For
purposes of implementing the parties' agreement to appoint and maintain an agent
for service of process in the State of Delaware, each such party that has not as
of the date hereof already duly appointed such an agent does hereby appoint RL&F
Service Corp., One Xxxxxx Square, Tenth Floor, Wilmington, New Castle County,
Delaware 19801, as such agent.
SECTION 11. Defined Terms and Section References. Capitalized terms used
herein and not otherwise defined shall have the meanings assigned to such terms
in the Pooling and Servicing Agreement. All Section or subsection references
herein shall mean Sections or subsections of the Pooling and Servicing
Agreement, except as otherwise provided herein.
[Signature Page Follows]
IN WITNESS WHEREOF, the Transferor, the Servicer and the
Trustee have caused this Amendment No. 1 to be duly executed by their respective
officers as of the day and year first above written.
METRIS RECEIVABLES, INC.,
Transferor
By: /s/Xxxxx X. Than
Name:Xxxxx X. Than
Title:Sr. Vice President, Treasurer
DIRECT MERCHANTS CREDIT CARD BANK,
NATIONAL ASSOCIATION,
Servicer
By: /s/Xxxxx X. Than
Name: Xxxxx X. Than
Title: Sr. Vice President, Treasurer and
Cashier
U.S. BANK NATIONAL ASSOCIATION,
Trustee
By: /s/Xxxxxxx X. Xxxxx
Name:Xxxxxxx X. Xxxxx
Title:Assistant Vice President
