EXHIBIT 4.1
FOURTH AMENDMENT TO THE
POOLING AND SERVICING AGREEMENT
FOURTH AMENDMENT TO POOLING AND SERVICING AGREEMENT dated as of
January 26, 1996 (the "Amendment"), by and between FIRST USA BANK, as
Transferor and Servicer (in such capacities, the "Transferor" and the
"Servicer," respectively), and THE BANK OF NEW YORK (DELAWARE), as
Trustee (the "Trustee").
WHEREAS, the Transferor, the Servicer and the Trustee have
heretofore executed and delivered a Pooling and Servicing Agreement
dated as of September 1, 1992 (the "Master Pooling and Servicing
Agreement"), between the Transferor, the Servicer and the Trustee for
the issuance by the First USA Credit Card Master Trust (the "Trust") of
the Investor Certificates and the Exchangeable Transferor Certificate;
WHEREAS, Section 13.1(a) of the Master Pooling and Servicing
Agreement provides that the Servicer, the Transferor and the Trustee,
without the consent of the Investor Certificateholders may amend the
Master Pooling and Servicing Agreement from time to time so long as the
Trustee shall have received (i) from each Rating Agency then rating the
Investor Certificates, a written notification that such action will not
result in a reduction or withdrawal of the rating of any outstanding
Series which it is then rating and (ii) an Opinion of Counsel to the
effect that such amendment will not adversely affect in any material
respect the interests of the Investor Certificateholders;
WHEREAS, the Trustee has received from (i) each Rating Agency,
a letter confirming the current rating of each outstanding Series and
(ii) an Opinion of Counsel to the effect that such amendment will not
adversely affect in any material respect the interests of the Investor
Certificateholders; and
WHEREAS, all other conditions precedent to the execution of
this Amendment have been complied with;
NOW, THEREFORE, the Servicer, the Transferor and the Trustee
are executing and delivering this Amendment in order to amend the
provisions of the Master Pooling and Servicing Agreement in the manner
set forth below.
Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Master Pooling and Servicing Agreement.
SECTION 1.1 Defined Terms. Section 1.01 of the Master Pooling
and Servicing Agreement is hereby amended by deleting the defined term
"Additional Cut Off Date" and substituting therefor the following
defined term:
"Addition Cut Off Date" shall mean each date as of which
Additional Accounts shall be selected to be included as Accounts
pursuant to Section 2.6; provided, however, that in no event shall
an Addition Cut Off Date be greater than ten months prior to the
related Addition Date.
SECTION 2.1 Ratification of Master Pooling and Servicing
Agreement. As amended by this Amendment, the Master Pooling and
Servicing Agreement is in all respects ratified and confirmed, and the
Master Pooling and Servicing Agreement, as so amended by this Amendment,
shall be read, taken and construed as one and the same instrument.
SECTION 3.1 Severability. If any one or more of the covenants,
agreements, provisions or terms or portions thereof of this Amendment
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms or portions thereof shall be deemed
severable from the remaining covenants, agreements, provisions or terms
of this Amendment and shall in no way affect the validity or
enforceability of the other provisions or portions of this Amendment.
SECTION 4.1 Counterparts. This Amendment may be executed in one
or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
SECTION 5.1 GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO
ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
IN WITNESS WHEREOF, the Servicer, the Transferor and the
Trustee have caused this Amendment to be executed by their respective
officers, thereunto duly authorized, as of the day and year first above
written.
FIRST USA BANK,
as Transferor and Servicer
By: /s/ Xxxxxx X. XxXxxxxx
Name: Xxxxxx X. XxXxxxxx
Title: Senior Vice President
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
FIFTH AMENDMENT TO THE
POOLING AND SERVICING AGREEMENT
FIFTH AMENDMENT TO POOLING AND SERVICING AGREEMENT dated as of
June 28, 1996 (this "Amendment"), by and between FIRST USA BANK, as
Transferor and Servicer (in such capacities, the "Transferor" and the
"Servicer," respectively), and THE BANK OF NEW YORK (DELAWARE), as
Trustee (the "Trustee").
WHEREAS, the Transferor, the Servicer and the Trustee have
heretofore executed and delivered a Pooling and Servicing Agreement
dated as of September 1, 1992 (as amended and supplemented through the
date hereof, the "Master Pooling and Servicing Agreement"), between the
Transferor, the Servicer and the Trustee for the issuance by the First
USA Credit Card Master Trust (the "Trust") of the Investor Certificates
and the Exchangeable Trans-feror Certificate;
WHEREAS, Section 13.01(a) of the Master Pooling and Servicing
Agreement provides that the Servicer, the Transferor and the Trustee,
without the consent of the Investor Certificateholders may amend the
Master Pooling and Servicing Agreement from time to time so long as the
Trustee shall have received (i) from each Rating Agency then rating the
Investor Certificates, a written notification that such action will not
result in a reduction or withdrawal of the rating of any outstanding
Series which it is then rating and (ii) an Opinion of Counsel to the
effect that such amendment will not adversely affect in any material
respect the interests of the Investor Cer-tificateholders;
WHEREAS, the Trustee has received from (i) each Rating Agency,
a letter confirming the current rating of each outstanding Series and
(ii) an Opinion of Counsel to the effect that such amendment will not
adversely affect in any material respect the interests of the Investor
Certificateholders; and
WHEREAS, all other conditions precedent to the execution of
this Amendment have been complied with;
NOW, THEREFORE, the Servicer, the Transferor and the Trustee
are executing and delivering this Amendment in order to amend the
provisions of the Master Pooling and Servicing Agreement in the manner
set forth below.
Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Master Pooling and Servicing Agreement.
SECTION 1.1 Defined Terms.
(h) Section 1.01 of the Master Pooling and Servicing Agreement
is hereby amended by deleting the definition of the term "Collections"
and substituting therefor the following definition:
"Collections" shall mean all payments (including
Recoveries of Principal Receivables or Finance Charge Receivables
and Insurance Proceeds) received by the Servicer in respect of the
Receivables, in the form of cash, checks, wire transfers, ATM
transfers or other form of payment in accordance with the Credit
Card Agreement in effect from time to time on any Receivables. A
Collection processed on an Account in excess of the aggregate
amount of Receivables in such Account as of the Date of Processing
of such Collection shall be deemed to be a payment in respect of
Principal Receivables to the extent of such excess. Collections
with respect to any Monthly Period shall include the amount of
Interchange (if any) allocable to any Series of Certificates
pursuant to any Supplement with respect to such Monthly Period (to
the extent received by the Trust and deposited into the Finance
Charge Account or any Series Account as the case may be, on the
Transfer Date following such Monthly Period), to be applied as if
such Collections were Finance Charge Receivables for all purposes.
Collections with respect to any Monthly Period shall also include
the amount deposited by the Transferor into the Finance Charge
Account (or Series Account if provided in any Supplement) pursuant
to Section 2.08. Collections of Recoveries will be treated as
Collections of Principal Receivables; provided, however, that to
the extent the aggregate amount of Recoveries received with respect
to any Monthly Period exceeds the aggregate amount of Principal
Receivables (other than Ineligible Receivables) in Defaulted
Accounts on the day such Account became a Defaulted Account for
each day in such Monthly Period, the amount of such excess shall be
treated as Collections of Finance Charge Receivables.
(i) Section 1.01 of the Master Pooling and Servicing Agreement
is hereby further amended by deleting the definition of the term
"Default Amount" and substituting therefor the following definition:
"Default Amount" shall mean for any Monthly Period, an
amount (which shall not be less than zero) equal to (a) the
aggregate amount of Principal Receivables (other than Ineligible
Receivables) in Defaulted Accounts on the day such Account became a
Defaulted Account for each day in such Monthly Period minus (b) the
aggregate amount of Recoveries received in such Monthly Period.
(j) Section 1.01 of the Master Pooling and Servicing Agreement
is hereby further amended by adding the following definition of the term
"Recoveries" after the definition of the term "Record Date":
"Recoveries" shall mean all amounts received by the
Transferor or the Servicer with respect to Receivables in Defaulted
Accounts, including amounts received by the Transferor or the
Servicer from the purchaser or transferee with respect to the sale
or other disposition of Receivables in Defaulted Accounts and all
rights (but not obligations) under any agreement to sell or
transfer such Receivables (including any rights to payment from any
purchaser or transferee in connection with such sale or other
disposition). In the event of any such sale or disposition of such
Receivables, Recoveries shall not include amounts received by the
purchaser or transferee of such Receivables but shall be limited to
amounts received by the Transferor or the Servicer from the
purchaser or transferee and all rights of the Transferor and the
Servicer against the purchaser or transferee, including any right
to payment.
(k) Section 1.01 of the Master Pooling and Servicing Agreement
is hereby further amended by deleting the definition of the term "Trust"
and substituting therefor the following definition:
"Trust" shall mean the trust created by this Agreement,
the corpus of which shall consist of the Receivables now existing
or hereafter created and all monies due or to become due with
respect thereto, all proceeds (as defined in Section 9-306 of the
UCC as in effect in the State of Delaware) including, without
limitation, Recoveries of the Receivables and Insurance Proceeds
relating thereto, the right to receive certain amounts paid or
payable as Interchange (if provided for in any Supplement), such
funds as from time to time are deposited in the Collection Account,
the Finance Charge Account, the Principal Account, the Distribution
Account and any Series Account and the rights to any Enhancement
with respect to any Series.
SECTION 2.1 Transfer of Ineligible Receivables. Section 2.04 of
the Master Pooling and Servicing Agreement is hereby amended by deleting
the word "ouch" in the fourth sentence of subsection (d)(iii) thereof
and replacing it with the word "such".
SECTION 3.1 Transfer of Defaulted Accounts. Section 4.03 of the
Master Pooling and Servicing Agreement is hereby amended by deleting
subsection (d) thereof and replacing it with the following:
(d) Transfer of Defaulted Accounts. Unless otherwise
provided in any Supplement, in consideration of receiving
Recoveries as provided in Section 4.03(g) hereof, on the date on
which an Account becomes a Defaulted Account, the Trust shall
automatically and without further action or consideration be deemed
to transfer, set over, and otherwise convey to the Transferor,
without recourse, representation or warranty, all the right, title
and interest of the Trust in and to the Receivables in such
Defaulted Account, all monies due or to become due with respect
thereto, all proceeds thereof allocable to the Trust with respect
to such Receivables, excluding Recoveries relating thereto, which
shall remain an asset of the Trust.
SECTION 4.1 Recoveries. Section 4.03 of the Master Pooling and
Servicing Agreement is hereby amended by adding a new subsection (g)
thereto which shall read in its entirety as follows:
(g) Recoveries. On or prior to the earliest Determination
Date in each Monthly Period, the Trans-feror shall notify the
Servicer of the amount of Recoveries to be included as Collections
with respect to the preceding Monthly Period. On the earliest
Transfer Date in each Monthly Period, the Transferor shall pay to
the Servicer and the Servicer shall deposit into the Collection
Account, the amount of Recoveries to be so included as Collections
with respect to the preceding Monthly Period; provided, however,
that such deposit need be made only to the extent that such funds
are required to be retained in the Principal Account or the Finance
Charge Account for the benefit of any Series pursuant to the
provisions of Article IV of this Agreement or any Series
Supplement.
SECTION 5.1 Ratification of Master Pooling and Servicing
Agreement. As amended by this Amendment, the Master Pooling and
Servicing Agreement is in all respects ratified and confirmed, and the
Master Pooling and Servicing Agreement, as so amended by this Amendment,
shall be read, taken and construed as one and the same instrument.
SECTION 6.1 Severability. If any one or more of the covenants,
agreements, provisions or terms or portions thereof of this Amendment
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms or portions thereof shall be deemed
severable from the remaining covenants, agreements, provisions or terms
of this Amendment and shall in no way affect the validity or
enforceability of the other provisions or portions of this Amendment.
SECTION 7.1 Counterparts. This Amendment may be executed in one
or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
SECTION 8.1 GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO
ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
SECTION 9.1 Effective Date. The provisions of this Amendment
shall take effect as of the opening of business on July 1, 1996.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Servicer, the Transfer-or and the
Trustee have caused this Amendment to be executed by their respective
officers, thereunto duly authorized, as of the day and year first above
written.
FIRST USA BANK,
as Transferor and Servicer
By: /s/ W. Xxxx Xxxxxxxx
Name: W. Xxxx Xxxxxxxx
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Assistant Vice President
