EXHIBIT 4.27
1998 AMENDMENT TO THE
POOLING AND SERVICING AGREEMENT
This AMENDMENT TO THE POOLING AND SERVICING AGREEMENT (the "Agreement") is
dated as of June 1, 1998, and is by and between FCC National Bank (the "Bank"),
as seller and servicer, and Norwest Bank Minnesota, National Association, as
trustee (the "Trustee") for the First Chicago Master Trust II (the "Trust")
under the Pooling and Servicing Agreement dated as of June 1, 1990, by and
between the Bank and the Trustee (such agreement, as amended and supplemented to
the date hereof, the "Pooling Agreement"). Unless the context otherwise
requires, capitalized terms used herein and not defined shall have the meaning
given them in the Pooling Agreement.
WHEREAS, Section 13.01(a) of the Pooling Agreement permits the amendment of
the Pooling Agreement on the terms and conditions therein specified;
WHEREAS, the Bank and the Trustee desire to amend the Pooling Agreement as
provided herein;
NOW THEREFORE, for good consideration the parties hereto agree as follows:
ARTICLE I
Amendments to the Pooling Agreement
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Section 1.1. The following definitions of Section 1.01 of the Pooling
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Agreement shall be amended by deleting the current definition in Section 1.01
and substituting in its place the following:
"Collections" shall mean all payments by or on behalf of Obligors
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(excluding Recoveries generally, but including Eligible Net Recoveries) received
by the Servicer in respect of the Receivables, in the form of cash, checks, wire
transfers, ATM transfers or any other form of payment in accordance with the
Credit Card Agreement in effect from time to time.
"Recoveries" shall mean all amounts received, including Insurance
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Proceeds and the proceeds of any bulk sale, by the Servicer with respect to
Receivables which have previously become Defaulted Receivables; provided,
however, that "Recoveries" shall not include any amounts received by the
Servicer with respect to the Receivables in any Account if, and after, such
Account has been "reaffirmed" by the Obligor thereon consistent with
Requirements of Law applicable to a reaffirmation of indebtedness by a bankrupt
Person.
Section 1.2. The following definitions are added to Section 1.01 of the
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Pooling Agreement to be inserted in such agreement in their alphabetical order:
"Net Recoveries" shall mean all Recoveries net of any out-of-pocket
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costs and expenses of collection (including attorneys' fees and expenses
deducted therefrom) and certain post-chargeoff adjustments.
"Eligible Net Recoveries" shall mean those Net Recoveries with respect
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to Receivables which became Defaulted Receivables on and after July 1, 1992 but
only if such Receivables were Trust Assets at the time of charge-off.
"Net Recoveries Amount" shall mean, for any Distribution Date, the
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amount of Eligible Net Recoveries received by the Servicer with respect to the
second calendar month preceding the month in which the Distribution Date occurs.
Section 1.3. Section 2.01 of the Pooling Agreement shall be amended by
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deleting the following phrase from end of the first sentence thereof towit, "but
excluding all Recoveries relating thereto".
Section 1.4. Section 2.02(d) of the Pooling Agreement shall be amended by
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deleting the parenthetical in the first sentence thereof towit, "(excluding
Recoveries relating thereto)" and substituting in its place the following
parenthetical "(including the Recoveries relating thereto)".
Section 1.5. Section 2.04(a)(v) of the Pooling Agreement shall be
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amended by deleting the phrase "excluding Recoveries relating thereto" in the
first sentence thereof and substituting in its place the following phrase
"including Recoveries relating thereto".
Section 1.6. A new Section 2.11 shall be added to the Pooling Agreement
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which shall read as follows:
Section 2.11 Repayment of Recoveries That Are Not Eligible Net
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Recoveries. The Trust shall pay to the Seller all Recoveries
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received by the Trust which are not Eligible Net Recoveries.
Section 1.7. Section 3.01(b) of the Pooling Agreement shall be amended by
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adding the following to end of the second sentence thereof:
"(vi) to take any and all actions which it may deem necessary, appropriate
or desirable with respect to the servicing of Defaulted Receivables and the
management and supervision of Recoveries, including but not limited, to the
entering into of one or more transactions for the sale or transfer of
Defaulted Receivables at such prices and upon such terms as the Servicer,
in its sole discretion, shall deem to be appropriate; and (vii) to enter
into such contracts, agreements or other documents which it may deem
necessary, appropriate or desirable to effectuate any of the foregoing
authorizations or empowerments."
Section 1.8. Section 4.01(e) of the Pooling Agreement shall be amended by
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adding the following sentence at the end of such section:
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"Notwithstanding anything to the contrary contained herein, for
purposes of this Agreement and any Supplement, the Net Recoveries
Amount shall be treated as Finance Charge Receivables."
Section 1.9. Section 4.01 the Pooling Agreement shall be amended by adding
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the following as subsection (i) thereto:
"(i) Net Recoveries Amount. On or prior to each Determination Date, the
Servicer shall determine the Net Recoveries Amount to be included in Collections
of Finance Charge Receivables with respect to the related Distribution Date.
Subject to Subsection 4.01(g) hereof, not later than 12:00 noon, Chicago
Illinois time, on each Transfer Date, the Seller or Servicer, as the case may
be, shall deposit into the Collection Account in immediately available funds the
Net Recoveries Amount to be included as Finance Charge Receivables for the
related Distribution Date."
Section 1.10. Exhibit A to the Pooling Agreement shall be amended by
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deleting clause (iii) of the second full paragraph of the exhibit and
substituting it with the following clause:
"(iii) funds collected or to be collected from Obligors in respect of the
Receivables (other than Recoveries generally, but including Eligible Net
Recoveries),"
Section 1.11. Exhibit A to the Pooling Agreement shall be amended by
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adding the following sentence to the fourth full paragraph of Exhibit A:
"Finance Charge Receivables also include the Eligible Net Recoveries
allocable to the Accounts."
Section 1.12. Exhibit B to the Pooling Agreement shall be amended by
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deleting the first sentence of Section 3(a) of Exhibit B and substituting the
following sentence:
"The Seller does hereby transfer, assign, set over and otherwise
convey to the Trust for the benefit of Certificateholders, without
recourse (except as expressly provided in the Pooling and Servicing
Agreement) all of its right, title and interest in, to and under the
Receivables now existing and hereafter created [of any Eligible
Accounts in Billing Cycles[s]______________that meet the definition of
Automatic Additional Accounts], all monies due or to become due and
all amounts received with respect thereto after the applicable
Addition Date and all proceeds thereof including the Recoveries
relating thereto."
Section 1.13. Exhibit B to the Pooling Agreement shall be amended by
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deleting the first sentence of Section 5(e) and substituting the following
sentence:
"This Assignment constitutes a valid transfer and assignment to the
Trust of all
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right, title and interest of the Seller in the Receivables and the
proceeds thereof, including the Recoveries related thereto or, if this
Assignment does not constitute a valid transfer and assignment of such
property, it constitutes a grant of a "security interest" (as defined
in the UCC as in effect in the States of New York, Delaware and
Illinois) in such property to the Trust, which in the case of the
existing Receivables and the proceeds thereof, is enforceable upon
execution and delivery of this Assignment, and which will be
enforceable with respect to such Receivables hereafter created and the
proceeds thereof upon such creation.
Section 1.14. Exhibit C to the Pooling Agreement shall be amended by
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deleting Section 3(a) in its entirety and substituting the following:
"(a) The Trustee does hereby transfer, assign, set-over and otherwise
convey to the Seller, without recourse on and after the Removal Date,
all right, title and interest of the Trust in, to and under the
Receivables now existing and hereafter created in the Removed Accounts
designated hereby, all monies due or to become due and all amounts
received with respect thereto and all proceeds thereof including all
Recoveries relating thereto."
Section 1.15. Exhibit D to the Pooling Agreement is amended to be deleted
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in its entirety and substituted with the revised Exhibit D attached hereto as
Attachment A.
ARTICLE II
Miscellaneous
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Section 2.1. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
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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 2.2. Severability. If any one or more of the covenants,
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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 2.3. Counterparts. This Amendment may be executed in one or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 2.4. Effective Date. This Agreement shall be effective for
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allocations and
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payments to be made for the July 1998 Distribution Date and the determinations
required by this Agreement shall be made by the Servicer for the Determination
Date related to the July 1998 Distribution Date.
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IN WITNESS WHEREOF, the undersigned have caused this Amendment to be signed
as of the day and year first above written.
FCC NATIONAL BANK
as Seller and Servicer
/s/ Xxxxx X. Xxxxx, Xx.
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Xxxxx X. Xxxxx, Xx.
Chief Financial Officer
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
/s/ Xxxxxxx X. X. Xxxxxxx
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Name: Xxxxxxx X. X. Xxxxxxx
Title: Corporate Trust Officer
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Attachment A
Exhibit D
FORM OF MONTHLY SERVICER'S CERTIFICATE
(To be delivered pursuant to Subsection 3.04(b)
of the Agreement on the Determination Date
preceding a Distribution Date)
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FIRST CHICAGO MASTER TRUST II
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The undersigned, a duly authorized representative of FCC National Bank
("FCCNB"), as Servicer pursuant to the Pooling and Servicing Agreement dated as
of June 1, 1990 (the "Pooling and Servicing Agreement"), by and between FCCNB,
as Seller and Servicer, and Norwest Bank Minnesota, National Association, as
Trustee, does hereby certify as follows:
1. Capitalized terms used in this Certificate have their respective
meanings set forth in the Pooling and Servicing Agreement.
2. FCCNB is as of the date hereof the Seller and the Servicer under
the Pooling and Servicing Agreement.
3. The undersigned is a Servicing Officer.
4. The aggregate amount of Collections processed for the Due Period
for this Distribution Date was equal to .............................
................$_____________
5. (a) The aggregate amount of such Collections allocated to
Principal Receivables for the Due Period for this Distribution Date
was equal to ......................................................
.........................................$______________
(b) The aggregate amount of such Collections allocated to Finance
Charge Receivables for the Due Period for this Distribution Date was
equal to .............................................................
..................................$______________
6. (a) The aggregate Interchange Amount (which will be included as
Finance Charge Receivables for all Series) for this Distribution Date
was equal to .........................................................
.......................................$______________
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(b) The aggregate Net Recoveries Amount (which will be included as
Finance Charge Receivables for all Series) for this Distribution Date
was equal to .........................................................
........................................$_____________
7. The Invested Percentage of Collections allocated to Principal
Receivables for the Due Period was equal to for:
Series____.......................................__________%
Series____.......................................__________%
8. The Invested Percentage of Collections allocated to Finance Charge
Receivables for the Due Period was equal to for:
Series____.......................................__________%
Series____.......................................__________%
9. The Invested Percentage with respect to the Investor Default
Amount for the Due Period was equal to for:
Series____.......................................__________%
Series____.......................................__________%
10. The aggregate amount of drawings or payments, if any, under the
Enhancement, if any, required to be made on the next succeeding
Distribution Date is equal to for:
Series____.......................................__________%
Series____.......................................__________%
11. The amount of interest due on the Cash Collateral Account loan,
if applicable, required to be paid on the next Distribution Date is
equal to for:
Series____.......................................__________%
Series____.......................................__________%
12. The amount of Monthly Servicing Fee required to be paid on the
next succeeding Distribution Date is equal to for:
Series____.......................................__________%
Series____.......................................__________%
13. The aggregate amount payable to the Interest Funding Account, if
applicable, on the succeeding Transfer Date is equal to for:
Series____.......................................__________%
Series____.......................................__________%
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14. The aggregate amount payable to Investor Certificateholders on
the succeeding Distribution Date in respect of interest is equal to
for:
Series____.......................................__________%
Series____.......................................__________%
15. The aggregate amount payable to the Principal Funding Account, if
applicable, on the succeeding Transfer Date is equal to for:
Series____.......................................__________%
Series____.......................................__________%
16. The aggregate amount payable to Investor Certificateholders on
the succeeding Distribution Date in respect of principal is equal to
for:
Series____.......................................__________%
Series____.......................................__________%
17. The excess, if any, of the First Chicago Amount over the
Aggregate Principal Receivables required to be maintained pursuant to
the Agreement for:
Series____.......................................__________%
Series____.......................................__________%
18. The First Chicago Amount for the Due Period divided by Aggregate
Principal Receivables for the Due Period..............................
.......................__________%
19. The Minimum First Chicago Interest Percentage for:
Series____.......................................__________%
Series____.......................................__________%
20. Attached hereto is a true and correct copy of the statement
required to be delivered by the Servicer on the date of this
Certificate to the Trustee in respect of each Series outstanding
pursuant to Section 5.02(a) of the Agreement, if applicable.
21. As of the date hereof, to the best knowledge of the undersigned,
no default in the performance of the obligation of the Servicer under
the Pooling and Servicing Agreement has occurred or is continuing
except as follows: [set forth in detail the (i) nature of such
default, (ii) the action taken by the Seller and Servicer, if any, to
remedy such default and (iii) the current status of each such default;
if applicable, insert "None"].
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22. As of the date hereof [no Liquidation Event has been deemed to
have occurred for the Due Period for this Payment Date] [a Liquidation
Event has occurred with respect to Series____].
23. As of the date hereof, to the best knowledge of the undersigned,
no Lien had been placed on any of the Receivables other than the Lien
granted by the Pooling and Servicing Agreement (or, if there is a
Lien, such Lien consists of __________).
24. During the preceding Due Period, the number of newly-originated
Accounts was_________________.
IN WITNESS WHEREOF, the undersigned had duly executed and delivered this
certificate this ____ day of ____________________, 19__.
FCC NATIONAL BANK
as Servicer
By_____________________
Servicing Officer
By_____________________
Servicing Officer
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