SIXTH AMENDMENT TO
THE POOLING AND SERVICING AGREEMENT
SIXTH AMENDMENT TO POOLING AND SERVICING AGREEMENT dated as of
August 27, 1997 (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 Transferor 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 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 Definitions. Section 1.01 of the Master Pooling and
Servicing Agreement is hereby amended by deleting the definition of
"Business Day" and substituting therefor the following definition:
"Business Day" shall mean any day other than a Saturday, a Sunday
or a day on which banking institutions in New York, New York, Newark,
Delaware or Wilmington, Delaware (or, with respect to any Series, any
additional city specified in the related Supplement) are authorized or
obligated by law or executive order to be closed.
SECTION 2.1 Collections. Section 4.03(a) of the Master Pooling
and Servicing Agreement is hereby amended by deleting the third paragraph
thereof and substituting therefor the following paragraph:
Notwithstanding anything in this Agreement to the contrary, for
so long as, and only so long as, the Transferor shall remain the
Servicer hereunder, and (a)(i) the Servicer provides to the
Trustee a letter of credit or other form of Enhancement covering
the risk of collection of the Servicer, and (ii) the Transferor
shall not have received a notice from any Rating Agency that such
a letter of credit or other form of Enhancement would result in
the lowering of such Rating Agency's then-existing rating of the
Investor Certificates, or (b) the Servicer shall have and
maintain a certificate of deposit or short-term deposit rating of
P-1 by Moody's and of A-1 by Standard & Poor's and deposit
insurance provided by BIF or SAIF, the Servicer need not deposit
Collections into the Collection Account, the Principal Account,
the Finance Charge Account or any Series Account, as provided in
any Supplement, or make payments to the Holder of the
Exchangeable Transferor Certificate, as provided in Article IV,
but may make such deposits, payments and withdrawals on each
Transfer Date in an amount equal to the net amount of such
deposits, payments and withdrawals which would have been made but
for the provisions of this paragraph.
SECTION 3.1 Addition of Accounts. Section 2.06(b) of the Master
Pooling and Servicing Agreement is hereby amended by deleting the text
thereof and replacing it with the following:
In addition to its obligation under subsection 2.06(a), the
Transferor may, but shall not be obligated to, designate from
time to time Additional Accounts of the Transferor to be included
as Accounts.
SECTION 4.1 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 5.1 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 6.1 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 7.1 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/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Vice President
SEVENTH AMENDMENT TO
THE POOLING AND SERVICING AGREEMENT
SEVENTH AMENDMENT TO POOLING AND SERVICING AGREEMENT dated as of
April 15, 1998 (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 Transferor 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 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 Amendments.
(a) Definition of Business Day. Section 1.01 of the Master
Pooling and Servicing Agreement is hereby amended by deleting the
definition of "Business Day" and replacing it with the following:
""Business Day" shall mean any day other than a Saturday, a
Sunday or a day on which banking institutions are authorized or
obligated by law or executive order to be closed in (a) New York, New
York, (b) Newark, Delaware, (c) with respect to any Series for which
payments to any Certificateholders are to be made outside of the
United States, the city or cities in which the Paying Agents for such
Series located outside of the United States have their principal place
of business, and (d) with respect to any Series, any additional city
specified in the related Supplement."
(b) Annual Servicer's Certificate. Section 3.05 of the
Master Pooling and Servicing Agreement is hereby amended by deleting the
text thereof and replacing it with the following:
"Section 3.05 Annual Servicer's Certificate. Within four
months after the end of each fiscal year of the Servicer, the Servicer
will deliver, as provided in Section 13.05, to the Trustee, any
Enhancement Provider and the Rating Agency, an Officer's Certificate
substantially in the form of Exhibit D stating that (a) a review of
the activities of the Servicer during the prior twelve-month period
(or, with respect to the report to be delivered on or before April 30,
1998, the six-month period from July 1, 1997 through December 31,
1997) and of its performance under this Agreement was made under the
supervision of the officer signing such certificate, (b) to the best
of such officer's knowledge, based on such review, the Servicer has
fully performed all its obligations under this Agreement throughout
such period, or, if there has been a default in the performance of any
such obligation, specifying each such default known to such officer
and the nature and status thereof and (c) the report required to be
delivered to the Servicer by the independent certified public
accountants pursuant to subsection 3.06(b) of this Agreement has been
delivered to the Servicer, and such report contains no exceptions,
except for such exceptions as the independent certified public
accountants believe to be immaterial and such other exceptions as may
be set forth in such report. Such Officer's Certificate shall specify
all exceptions listed in the independent certified public accountants'
report referred to in clause (c) above. A copy of such certificate
may be obtained by any Investor Certificateholder by a request in
writing to the Trustee addressed to the Corporate Trust Office."
(c) Annual Independent Accountants' Servicing Report.
Section 3.06 of the Master Pooling and Servicing Agreement is hereby
amended by deleting the text thereof and replacing it with the following:
"Section 3.06 Annual Independent Accountants' Servicing
Report.
(a) Within four months after the end of each fiscal year of
the Servicer, the Servicer shall cause a firm of nationally recognized
independent public accountants (who may also render other services to
the Servicer or the Transferor) to furnish a report to the Trustee,
any Enhancement Provider and the Rating Agency, to the effect that
such firm has examined the assertion of the Servicer that it has
maintained effective internal control over the servicing of Accounts
under this Agreement and has complied with the provisions of this
Agreement with respect to the servicing of Accounts, and that such
firm has completed such examination in accordance with standards
established by the American Institute of Certified Public Accountants
and that, on the basis of such examination, such firm is of the
opinion (assuming the accuracy of any reports generated by the
Servicer's third party agents) that such assertion is fairly stated in
all material respects. A copy of such report may be obtained by any
Investor Certificateholder by a request in writing to the Trustee
addressed to the Corporate Trust Office.
(b) Within four months after the end of each fiscal year of
the Servicer, the Servicer shall cause a firm of nationally recognized
independent certified public accountants (who may also render other
services to the Servicer or the Transferor) to furnish a report to the
Servicer to the effect that they have compared the mathematical
calculations of each amount set forth in the monthly certificates
forwarded by the Servicer pursuant to subsection 3.04(b) during the
period covered by such report (which shall be each fiscal year of the
Servicer or, with respect to the report to be delivered on or before
April 30, 1998, the six-month period from July 1, 1997 through
December 31, 1997) with the Servicer's computer reports which were the
source of such amounts and that on the basis of such comparison, such
amounts are in agreement, except for such exceptions as they believe
to be immaterial and such other exceptions as shall be set forth in
such report."
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. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Vice President
EIGHTH AMENDMENT TO
THE POOLING AND SERVICING AGREEMENT
EIGHTH AMENDMENT TO POOLING AND SERVICING AGREEMENT dated as of
June 30, 1998 (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 Transferor 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 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. Amendments. Subsection 6.03(b) of the Master
Pooling and Servicing Agreement is hereby amended by deleting the text
thereof and replacing it with the following:
(b) Except as provided in Section 6.09 or 7.02 or in
any Supplement, in no event shall the Exchangeable
Transferor Certificate or any interest therein be
transferred, sold, exchanged, pledged, participated or
otherwise assigned hereunder, in whole or in part,
unless the Transferor shall have consented in writing
to such transfer and unless the Trustee shall have
received (x) an Opinion of Counsel that such transfer
(i) does not adversely affect the conclusions reached
in any of the federal income tax opinions dated the
applicable Closing Date issued in connection with the
original issuance of any Series of Investor
Certificates and (ii) will not cause the Trust to be
deemed to be an association or "publicly traded
partnership" (within the meaning of Section 7704(b) of
the Internal Revenue Code) taxable as a corporation and
(y) with respect to any such transfer, sale, exchange,
pledge, participation or assignment to an entity which
is not an Affiliate of the Transferor, confirmation in
writing from each Rating Agency that such transfer will
not result in a lowering or withdrawal of its then-
existing rating of any Series of Investor Certificates.
The Transferor shall give each Rating Agency notice of
any such transfer, sale, exchange, pledge,
participation or assignment to an Affiliate of the
Transferor.
SECTION 2. 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. 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. 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. 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/ Xxxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Vice President
NINTH AMENDMENT TO
THE POOLING AND SERVICING AGREEMENT
NINTH AMENDMENT TO POOLING AND SERVICING AGREEMENT, dated as of
July 21, 1998 (this "Amendment"), by and between FIRST USA BANK, N.A., 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 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 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"), by and 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 13.01(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 Certificateholders;
WHEREAS, the Trustee has received (i) from 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. Name Change. Wherever used in the Master Pooling and
Servicing Agreement, including in the exhibits and schedules thereto, (a)
all references to the Transferor or the Servicer as "First USA Bank, a
Delaware chartered banking corporation" are hereby amended to read "First
USA Bank, N.A., a national banking association" and (b) all references to
the name of the Transferor or the Servicer as "First USA Bank" are hereby
amended to read "First USA Bank, N.A." .
SECTION 2. Amendments to Section 2.03. (a) Section 2.03(a) of
the Master Pooling and Servicing Agreement is hereby amended by deleting
the words "Delaware chartered banking corporation duly organized and
validly existing in good standing under the Laws of the State of Delaware"
therefrom and substituting therefor the words "national banking association
duly organized and validly existing in good standing under the laws of the
United States".
(b) Section 2.03(b) of the Master Pooling and Servicing
Agreement is hereby amended by deleting the words "and Delaware" therefrom.
SECTION 3. Amendments to Section 3.03. (a) Section 3.03(a) of
the Master Pooling and Servicing Agreement is hereby amended by deleting
the words "Delaware chartered banking corporation duly organized and
validly existing in good standing under the laws of the State of Delaware"
therefrom and substituting therefor the words "national banking association
duly organized and validly existing in good standing under the laws of the
United States".
(b) Section 3.03(b) of the Master Pooling and Servicing
Agreement is hereby amended by deleting the words "and Delaware" therefrom.
SECTION 4. Amendment to Section 11.15. Section 11.15(i) is
hereby amended by deleting the words "national banking association" and
substituting therefor the words "Delaware chartered banking corporation".
SECTION 5. 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. 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. 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. 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, N.A.
as Transferor and Servicer
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Vice President
TENTH AMENDMENT TO
THE POOLING AND SERVICING AGREEMENT
TENTH AMENDMENT TO POOLING AND SERVICING AGREEMENT, dated as of
August 14, 1998 (this "Amendment"), by and between FIRST USA BANK, N.A., 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 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 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"), by and 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 13.01(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 Certificateholders;
WHEREAS, the Trustee has received (i) from 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. Amendments to Section 1.01. (a) The definition of
"Eligible Account" set forth in Section 1.01 of the Master Pooling and
Servicing Agreement is hereby amended by deleting subsection (c) thereof
and substituting in its place the following subsection (c):
"(c) the Obligor on which has provided, as its most recent
billing address, an address which is located in the United States or
its territories or possessions or a Military Address;"
(b) Section 1.01 of the Master Pooling and Servicing Agreement
is hereby further amended by adding the following definition thereto in the
proper order therefor:
""Military Address" shall mean any mailing address on any
United States armed forces military base of operations, including APO
and FPO Addresses."
SECTION 2. Amendment to Section 2.06(a). Section 2.06(a) of the
Master Pooling and Servicing Agreement is hereby amended by deleting such
subsection in its entirety and substituting therefor the following:
"(a) If, (i) during any period of thirty consecutive days,
the Transferor Interest averaged over that period is less than 4% (or
such higher percentage as may be specified in any Supplement, such
percentage the "Minimum Transferor Interest") of the Average Principal
Receivables, the Transferor shall designate additional eligible
MasterCard or VISA accounts from the Bank Portfolio ("Additional
Accounts") to be included as Accounts in a sufficient amount such that
the average of the Transferor Interest as a percentage of the Average
Principal Receivables for such 30-day period, computed by assuming
that the amount of the Average Principal Receivables of such
Additional Accounts shall be deemed to be outstanding in the Trust
during each day of such 30-day period, is at least equal to the
Minimum Transferor Interest, or (ii) on any Record Date the aggregate
amount of Principal Receivables is less than the Minimum Aggregate
Principal Receivables, the Transferor shall designate Additional
Accounts to be included as Accounts in a sufficient amount such that
the aggregate amount of Principal Receivables will be equal to or
greater than the Minimum Aggregate Principal Receivables. Receivables
from such Additional Accounts shall be transferred to the Trust on or
before the tenth Business Day following such thirty-day period or
Record Date, as the case may be."
SECTION 3. Amendment to Section 4.03(b). Section 4.03(b) of the
Master Pooling and Servicing Agreement is hereby amended by deleting such
subsection in its entirety and substituting therefor the following:
"(b) Allocations for the Exchangeable Transferor
Certificate. Throughout the existence of the Trust, unless otherwise
stated in any Supplement, the Servicer shall allocate to the Holder of
the Exchangeable Transferor Certificate an amount equal to the product
of (A) the Transferor Percentage and (B) the aggregate amount of such
Collections allocated to Principal Receivables and Finance Charge
Receivables, respectively, in respect of each Monthly Period;
provided, however, that amounts payable to the Holder of the
Exchangeable Transferor Certificate pursuant to this clause (b) shall
instead be deposited in the Collection Account to the extent that the
Transferor Interest is less than the Minimum Transferor Interest.
Notwithstanding anything in this Agreement to the contrary, unless
otherwise stated in any Supplement, the Servicer need not deposit this
amount or any other amounts so allocated to the Exchangeable
Transferor Certificate pursuant to any Supplement into the Collection
Account and shall pay, or be deemed to pay, such amounts as collected
to the Holder of the Exchangeable Transferor Certificate."
SECTION 4. Amendment to Section 4.03(f). Section 4.03(f) of the
Master Pooling and Servicing Agreement is hereby amended by deleting such
subsection in its entirety and substituting therefor the following:
"(f) Unallocated Principal Collections. If, pursuant to
any provisions of Article IV, Collections allocated to Principal
Receivables with respect to any Series would cause such Series (a
"Retired Series") to be paid in full or if, pursuant to such
provisions, Collections of Principal Receivables are allocated to the
Holder of the Exchangeable Transferor Certificate and the Transferor
Interest is equal to or less than the Minimum Transferor Interest or
the payment of such amount to the Transferor would cause the
Transferor Interest to be equal to or less than the Minimum Transferor
Interest (any such Collections being referred to as "Allocated
Collections") or any Adjustment Payment is made, any Collections of
Principal Receivables allocated to a Retired Series in excess of the
amount required to pay such Series in full, or to the Transferor
Interest if the Transferor Interest is or would be caused to be less
than the Minimum Transferor Interest or any Adjustment Payment
("Unallocated Principal Collections") shall be retained in the
Collection Account. If on any Business Day following a Business Day
on which Unallocated Principal Collections were retained in the
Collection Account the Transferor Interest is greater than the Minimum
Transferor Interest, such Unallocated Principal Collections may be
released to the Holder of the Exchangeable Transferor Certificate. On
each Transfer Date with respect to each Series in the Monthly Period
succeeding the Monthly Period in which Unallocated Principal
Collections were retained in the Collection Account, such Unallocated
Principal Collections shall be reallocated to outstanding Series (any
such allocation, an "Excess Amount Principal Allocation," and any such
Series, an "Outstanding Series"). Any Excess Amount Principal
Allocation shall be performed assuming that (a) the character of
Unallocated Principal Collections as Principal Receivables shall not
be altered, (b) the Investor Percentages with respect to any
Outstanding Series shall be recalculated assuming that the Retired
Series has been retired and that only the Outstanding Series are
outstanding, (c) Allocated Collections have been paid to the Retiring
Series, (d) if the payment of Allocated Collections as described above
causes a Pay Out Event to occur, Unallocated Principal Collections
shall be allocated as if such Pay Out Event has occurred and (e) the
Unallocated Principal Collections available on any Transfer Date with
respect to any Series shall be applied as if they were available on
the last Business Day of the preceding Monthly Period. On each
Transfer Date immediately preceding each Distribution Date related to
the Amortization Period for any Series, Unallocated Principal
Collections will be deposited in the Principal Account for such Series
to the extent of the lesser of (x) the Principal Shortfall on the last
Business Day of the preceding Monthly Period for such Series and (y)
the aggregate amount of Unallocated Principal Collections retained in
the Collection Account on such day. If more that one Series is in its
Amortization Period, Unallocated Principal Collections retained in the
Collection Account shall be allocated to each outstanding Series pro
rata based on the Principal Shortfall, if any, for each such Series on
the last Business Day of the preceding Monthly Period, and then, at
the option of the Transferor, any remainder may be applied as
principal with respect to any Series of variable funding certificates.
The Servicer shall pay any remaining Shared Principal Collections on
such Transfer Date to the Transferor; provided, that if the Transferor
Interest as determined on such Business Day does not exceed the
Minimum Transferor Interest, then such remaining Unallocated Principal
Collections shall be deposited in the Collection Account in an amount
equal to the lesser of (i) the remaining Unallocated Principal
Collections and (ii) the excess of the Minimum Transferor Interest
over the Transferor Interest on such Business Day."
SECTION 5. 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. 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. 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. 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, N.A.
as Transferor and Servicer
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By: /s/ Xxxxxx X. Laser
----------------------------------------
Name: Xxxxxx X. Laser
Title: Assistant Vice President
