AMENDMENT dated as of April 1, 2001, to the Supplements
(as hereinafter described) 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 have previously
entered into (i) the Series 1993-3 Supplement dated as of September 1, 1993, as
amended by the First Amended and Restated Series 1993-3 Supplement dated as of
June 1, 1995 and the Second Amended and Restated Series 1993-3 Supplement dated
as of December 1, 1995, and as further amended by Amendment No. 1 dated as of
December 1, 1997 to the Second Amended and Restated Series 1993-3 Supplement and
Amendment No. 2 dated as of October 1, 1998 to the Second Amended and Restated
Series 1993-3 Supplement (as so amended, the "Series 1993-3 Supplement"), (ii)
the Series 1996-1 Supplement dated as of June 1, 1996 (the "Series 1996-1
Supplement"), (iii) the Series 1997-1 Supplement dated as of March 1, 1997 (the
"Series 1997-1 Supplement"), (iv) the Series 1997-2 Supplement dated as of March
1, 1997 (the "Series 1997-2 Supplement"), (v) the Series 1997-3 Supplement dated
as of June 1, 1997 (the "Series 1997-3 Supplement"), (vi) the Series 1997-4
Supplement dated as of November 1, 1997 (the "Series 1997-4 Supplement"), (vii)
the Series 1998-1 Supplement dated as of May 1, 1998, as amended by Amendment
No. 1 dated as of June 15, 2000 to the Series 1998-1 Supplement (the "Series
1998-1 Supplement"), (viii) the Series 1999-1 Supplement dated as of June 1,
1999 (the "Series 1999-1 Supplement"), (ix) the Series 1999-2 Supplement dated
as of October 1, 1999 (the "Series 1999-2 Supplement"), (x) the Series 2000-1
Supplement dated as of February 1, 2000 (the "Series 2000-1 Supplement"), (xi)
the Series 2000-2 Supplement dated as of August 1, 2000 (the "Series 2000-2
Supplement"), and (xii) the Series 2000-3 Supplement dated as of November 1,
2000 (the "Series 2000-3 Supplement") (collectively, the "Supplements");
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, 2001, Amendment No.
8 dated as of April 1, 2001,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
Supplements, 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 respective Supplements or the Agreement, as the case may be.
ARTICLE II
AMENDMENTS TO SUPPLEMENTS
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 respective Supplements or the Agreement, as the case may be.
ARTICLE II
AMENDMENTS TO SUPPLEMENTS
SECTION 2.01. Amendment to Section 4.03(b)(ii) of the Series 1996-1
Supplement. The second proviso in Section 4.03(b)(ii) of the Series 1996-1
Supplement 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 2.02. Amendment to Section 4.03(c)(ii) of each of the Series
1997-1, Series 1997-2, Series 1997-3, Series 1997-4, Series 1999-1, Series
1999-2, Series 2000-1, Series 2000-2, and Series 2000-3 Supplements. The second
proviso in Section 4.03(c)(ii) of each of the Series 1997-1, Series 1997-2,
Series 1997-3, Series 1997-4, Series 1999-1, Series 1999-2, Series 2000-1,
Series 2000-2, and Series 2000-3 Supplements 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 2.03. Amendments to Section 4.04 of the Series 1993-3
Supplement. (a) The proviso in Section 4.04(a)(ii) of the Series 1993-3
Supplement 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 proviso in Section 4.04(b)(ii) of the Series 1993-3 Supplement
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 2.04. Amendment to Section 4.08(b) of the Series 1993-3
Supplement. The proviso in Section 4.08(b) of the Series 1993-3 Supplement is
deleted, and inserted in its place is the following:
; provided, however, that the Trustee shall sell, liquidate or dispose
of a Cash Collateral Account Investment before its maturity, if so
directed by the Servicer, if a default by, or a downgrade of, the
obligor of such Cash Collateral Account Investment has occurred.
SECTION 2.05. Amendment to Section 4.09(b) of each of the
Series 1996-1, Series 1997-1, Series 1997-2, Series 1997-3, Series 1997-4,
Series 1999-1, Series 1999-2, Series 2000-1, Series 2000-2, and Series 2000-3
Supplements. The proviso in Section 4.09(b) of each of the Series 1996-1,
Series 1997-1, Series 1997-2, Series 1997-3, Series 1997-4, Series 1999-1,
Series 1999-2, Series 2000-1, Series 2000-2, and Series 2000-3 Supplements 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 2.06. Amendment to Section 4.10(b) of each of the
Series 1997-1, Series 1997-2, Series 1997-3, Series 1997-4, and Series 1998-1
Supplements. The proviso in Section 4.10(b) of each of the Series 1997-1,
Series 1997-2, Series 1997-3, Series 1997-4, and Series 1998-1 Supplements is
deleted, and inserted in its place is the following:
; provided, however, that the Trustee shall sell, liquidate or dispose
of a Cash Collateral Account Investment before its maturity, if so
directed by the Servicer, if a default by, or a downgrade of, the
obligor of such Cash Collateral Account Investment has occurred.
SECTION 2.07. Amendment to Section 4.10(b) of each of the
Series 1999-2, Series 2000-1, Series 2000-2, and Series 2000-3 Supplements. The
proviso in Section 4.10(b) of each of the Series 1999-2, Series 2000-1,
Series 2000-2, and Series 2000-3 Supplements 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 2.08. Amendment to Section 4.10 of the Series 1999-1
Supplement. Section 4.10 of the Series 1999-1 Supplement is amended by adding
the following paragraph at the end of Section 4.10:
(d) Notwithstanding anything to the contrary in this Section 4.10, the
Seller will not assign to the Trust any Interest Rate Protection Agreement
pursuant to this Supplement if such assignment would impair the Trust's
status as a qualified special purpose entity for accounting purposes.
SECTION 2.09. Amendment to Section 4.11 of each of the Series 1996-1,
Series 1997-1, Series 1997-2, Series 1997-3, Series 1997-4, Series 1999-2,
Series 2000-1, Series 2000-2, and Series 2000-3 Supplements. Section 4.11 of
each of the Series 1996-1, Series 1997-1, Series 1997-2, Series 1997-3, Series
1997-4, Series 1999-2, Series 2000-1, Series 2000-2, and Series 2000-3
Supplements is amended by adding the following paragraph at the end of Section
4.11:
(d) Notwithstanding anything to the contrary in this Section 4.11, the
Seller will not assign to the Trust any Interest Rate Protection Agreement
pursuant to this Supplement if such assignment would impair the Trust's
status as a qualified special purpose entity for accounting purposes.
SECTION 2.10. Amendment to Section 4.12 of the Series 1993-3
Supplement. Section 4.12 of the Series 1993-3 Supplement is amended by
adding the following paragraph at the end of Section 4.12:
(f) Notwithstanding anything to the contrary in this Section 4.12, the
Seller will not assign to the Trust any Interest Rate Protection Agreement
pursuant to this Supplement if such assignment would impair the Trust's
status as a qualified special purpose entity for accounting purposes.
SECTION 2.11. Amendment to Section 4.13(b) of the Series 1993-3
Supplement. The proviso in Section 4.13(b) of the Series 1993-3 Supplement is
deleted, and inserted in its place is the following:
; provided, however, that the Trustee shall sell, liquidate or dispose
of an Interest Rate Protection Funding Account Investment before its
maturity, if so directed by the Servicer, if a default by, or a
downgrade of, the obligor of such Interest Rate Protection Funding
Account Investment has occurred.
SECTION 2.12. Amendments to Section 4.13(c) of the Series 1998-1
Supplement. (a) The introductory clause of Section 4.13(c) of the Series 1998-1
Supplement is amended to read in its entirety as follows:
(c) The Seller may at any time during the Revolving Period, at its
sole discretion and without the consent of any Series 1998-1
Certificateholder or any other Person (except to the extent required by
Section 4.13(c)(iv)(B)(1)), decrease the outstanding principal amount of
Series 1998-1 Certificates, subject to the following conditions:
(b) Section 4.13(c)(iv) of the Series 1998-1 Supplement is amended to
read in its entirety as follows:
(iv) the Seller shall have delivered to the Trustee an Officer's
Certificate, dated the Decrease Date, to the effect that (A) the Seller
has, on the date of or within 30 days prior to such decrease, issued a new
Series of Certificates, increased the invested amount of a prefunded Series
or paired Series or otherwise resecuritized or transferred without recourse
in a transaction under the Trust an interest in Receivables in an amount
equal to or greater than such decrease and (B) either (1) each Investor
Certificateholder whose Invested Amount is to be reduced by such decrease
has consented to such decrease or (2) such decrease will otherwise not
impair the sales treatment for any Series under generally accepted
accounting principles as then in effect.
SECTION 2.13. Amendments to Section 6.14 of the Series 1993-3 Supplement.
(a) Section 6.14(a)(i) of the Series 1993-3 Supplement is amended to read in its
entirety as follows:
(i) on or before the fifth Business Day (the "Surrender Notice Date")
immediately preceding the date on which such Cancellation is to occur, such
Seller shall have delivered to the Trustee, the Liquidity Agent and the
Collateral Interest Holder an Officer's Certificate, to the effect that
such Seller reasonable believes that such Cancellation will not, based on
the facts known to such officer at the time of such certification, cause a
Pay Out Event to occur with respect to any Series.
(b) Section 6.14(a) of the Series 1993-3 Supplement is further amended
by adding the following at the end of such Section 6.14(a):
Notwithstanding anything to the contrary in this Section 6.14(a), it shall
be a condition to any Cancellation under this Section 6.14(a) that the
Seller shall have delivered to the Trustee an Officer's Certificate, dated
the date of the Cancellation, to the effect that (A) the Seller has, on the
date of or within 30 days prior to such Cancellation, issued a new Series
of Certificates, increased the invested amount of a prefunded Series or
paired Series or otherwise resecuritized or transferred without recourse in
a transaction under the Trust an interest in Receivables in an amount equal
to or greater than the aggregate Principal Component of the Remarketed
Certificates to be surrendered in such Cancellation and (B) either (1) each
Investor Certificateholder whose Invested Amount is to be reduced by such
Cancellation has consented to such Cancellation or (2) such Cancellation
will not impair the sales treatment for any Series under generally accepted
accounting principles as then in effect.
(c) Section 6.14(b)(i) of the Series 1993-3 Supplement is amended to
read in its entirety as follows:
(i) on or before the fifth Business Day (the "Collateral Surrender
Notice Date") immediately preceding the date on which such Collateral
Cancellation is to occur, such Seller shall have delivered to the Trustee,
the Liquidity Agent and the Collateral Interest Holder an Officer's
Certificate, to the effect that such Seller reasonable believes that such
Collateral Cancellation will not, based on the facts known to such officer
at the time of such certification, cause a Pay Out Event to occur with
respect to any Series.
(d) Section 6.14(b) of the Series 1993-3 Supplement is further amended
by adding the following at the end of such Section 6.14(b):
Notwithstanding anything to the contrary in this Section 6.14(b), it shall
be a condition to any Collateral Cancellation under this Section 6.14(b)
that the Seller shall have delivered to the Trustee an Officer's
Certificate, dated the date of the Collateral Cancellation, to the effect
that (A) the Seller has, on the date of or within 30 days prior to such
Collateral Cancellation, issued a new Series of Certificates, increased the
invested amount of a prefunded Series or paired Series or otherwise
resecuritized or transferred without recourse in a transaction under the
Trust an interest in Receivables in an amount equal to or greater than the
Excess Collateral Invested Amount to be cancelled in such Collateral
Cancellation and (B) either (1) each Investor Certificateholder whose
Invested Amount is to be reduced by such Collateral Cancellation has
consented to such Collateral Cancellation or (2) such Collateral
Cancellation will not impair the sales treatment for any Series under
generally accepted accounting principles as then in effect.
SECTION 2.14. Amendment to Section 7.02(a) of each of the
Series 1996-1, Series 1997-2, Series 1997-3, Series 1997-4, Series 1998-1,
Series 1999-1, Series 1999-2, Series 2000-1, Series 2000-2, and Series 2000-3
Supplements. The last sentence of Section 7.02(a) of each of the Series 1996-1,
Series 1997-2, Series 1997-3, Series 1997-4, Series 1998-1, Series 1999-1,
Series 1999-2, Series 2000-1, Series 2000-2, and Series 2000-3 Supplements is
amended to read in its entirety as follows:
The Collateral Interest Holder shall be entitled to participate in, and to
receive from the Trustee a copy of each other bid submitted in connection
with, such bidding process; however the Seller, its Affiliates and agents
shall not be entitled to participate as a bidder in such bidding process.
SECTION 2.15. Amendment to Section 7.02(a) of the Series 1997-1
Supplement. The last sentence of Section 7.02(a) of the Series 1997-1 Supplement
is amended to read in its entirety as follows:
The Seller, its Affiliates and agents shall not be entitled to participate
as a bidder in such bidding process.
SECTION 2.16. Amendment to Section 8.03(a) of the Series 1993-3
Supplement. The last sentence of Section 8.03(a) of the Series 1993-3 Supplement
is amended to read in its entirety as follows:
The Liquidity Banks and the Collateral Interest Holder shall be entitled to
participate in, and to receive from the Trustee a copy of each other bid
submitted in connection with, such bidding process; however the Seller, its
Affiliates and agents shall not be entitled to participate as a bidder in
such bidding process.
SECTION 2.17. Amendment to Section 9.06 of each of the Series 1996-1,
Series 1997-1, Series 1997-2, Series 1997-3, Series 1997-4, Series 1998-1,
Series 1999-1, Series 1999-2, and Series 2000-1 Supplements. Section 9.06 of
each of the Series 1996-1, Series 1997-1, Series 1997-2, Series 1997-3, Series
1997-4, Series 1998-1, Series 1999-1, Series 1999-2, and Series 2000-1
Supplements is amended by adding the following proviso at the end of Section
9.06:
; provided, however, that this Supplement will not be so amended to provide
that the Trust shall enter into a swap agreement if such amendment would
impair the Trust's status as a qualified special purpose entity for
accounting purposes.
SECTION 2.18. Amendment to Section 11.06 of the Series 1993-3
Supplement. Section 11.06 of the Series 1993-3 Supplement is amended by adding
the following proviso at the end of Section 11.06:
; provided, however, that this Supplement will not be so amended to provide
that the Trust shall enter into a swap agreement if such amendment would
impair the Trust's status as a qualified special purpose entity for
accounting purposes.
ARTICLE III
MISCELLANEOUS
SECTION 3.01. Ratification of Supplements. As amended by this
Amendment, the Supplements are in all respects ratified and confirmed and each
Supplement, as amended by this Amendment, shall be read, taken and construed as
one and the same instrument.
SECTION 3.02. Amendment. The Supplements 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.
SECTION 3.05. Amendment Number. This Amendment shall constitute
Amendment No. 3 to the Second Amended and Restated Series 1993-3 Supplement,
Amendment No. 2 to the Series 1998-1 Supplement, and Amendment No. 1 to each of
the Series 1996-1 Supplement, Series 1997-1 Supplement, Series 1997-2
Supplement, Series 1997-3 Supplement, Series 1997-4 Supplement, Series 1999-1
Supplement Series 1999-2 Supplement, Series 2000-1 Supplement, Series 2000-2
Supplement, and Series 2000-3 Supplement.
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
-----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
BANKERS TRUST COMPANY,
Trustee,
By: /s/ Xxxxx Xxxxxx
-----------------------------
Name: Xxxxx Xxxxxx
Title: Assistant Vice President
