Exhibit 4.1(b)
TWELFTH AMENDMENT TO
THE POOLING AND SERVICING AGREEMENT
TWELFTH AMENDMENT TO POOLING AND SERVICING AGREEMENT, dated as of
April 25, 2001 (this "Amendment"), by and between FIRST USA BANK, NATIONAL
ASSOCIATION, 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. Defined Terms. Section 1.01 of the Master Pooling and
Servicing Agreement is hereby amended by adding the following definitions
thereto in the proper order therefor:
""Bank Portfolio" shall mean the VISA(R) and
MasterCard(R) accounts originated or owned by the Transferor."
""Permitted Activities" shall mean the primary activities
of the Trust, which shall be:
(a) holding Receivables transferred from the
Transferor and other assets of the Trust,
including any Enhancement with respect to any
Series and passive derivative financial
instruments that pertain to beneficial interests
issued or sold to parties other than the
Transferor, its Affiliates or its agents;
(b) issuing Certificates and other interests in the
Trust assets;
(c) receiving Collections and making payments on
such Certificates and interests in accordance
with the terms of this Agreement and any
Supplement; and
(d) engaging in other activities that are necessary
or incidental to accomplish these limited
purposes."
""SFAS 140" shall mean Statement of Financial Accounting
Standards No. 140, Accounting for Transfers and Servicing of
Financial Assets and Extinguishments of Liabilities (or any
replacement FASB Statement, or amendment or interpretation
thereof)."
SECTION 2. Amendment to Section 2.01. Section 2.01 of the
Master Pooling and Servicing Agreement is hereby amended by adding the
following sentence at the end of the first paragraph thereof:
"The parties hereto intend to treat the
foregoing transfer, assignment, set-over and conveyance as a sale,
and not as a secured borrowing, for accounting purposes."
SECTION 3. Amendment to Section 2.07. Section 2.07 of the
Master Pooling and Servicing Agreement is hereby replaced in its entirety
with the following:
"Section 2.07 Removal of Accounts.
(a) Subject to the conditions set forth below, the
Transferor may, but shall not be obligated to, designate Receivables from
Accounts for deletion and removal ("Removed Accounts") from the Trust. On
or before the fifth Business Day (the "Removal Notice Date") prior to the
date on which the designated Removed Accounts will be reassigned by the
Trustee to the Transferor (the "Removal Date"), the Transferor shall give
the Trustee and the Servicer written notice that the Receivables from such
Removed Accounts are to be reassigned to the Transferor.
(b) The Transferor shall be permitted to designate and
require reassignment to it of the Receivables from Removed Accounts only
upon satisfaction of the following conditions:
(i) The removal of any Receivables of any
Removed Accounts on any Removal Date shall not, in the reasonable
belief of the Transferor, cause a Pay Out Event to occur or the
Transferor Interest to be an amount less than zero;
(ii) on or prior to the Removal Date, the
Transferor shall have delivered to the Trustee for execution a
written assignment in substantially the form of Exhibit G (the
"Reassignment") and, within five Business Days thereafter, or as
otherwise agreed upon between the Transferor and the Trustee, the
Transferor shall have delivered to the Trustee a computer file or
microfiche list containing a true and complete list of all Removed
Accounts identified by account number and the aggregate amount of
the Receivables in such Removed Accounts as of the Removal Date,
which computer file or microfiche list shall as of the Removal
Date modify and amend and be made a part of this Agreement;
(iii) the Transferor shall represent and warrant
that (x) no selection procedures believed by the Transferor to be
materially adverse to the interests of the Certificateholders were
utilized in selecting the Removed Accounts to be removed from the
Trust and (y) (I) a random selection procedure was used by the
Transferor in selecting the Removed Accounts and only one such
removal of randomly selected Accounts shall occur in the then
current Monthly Period, (II) the Removed Accounts arose pursuant
to an affinity, private-label, agent-bank, co-branding or other
arrangement with a third party that has been cancelled by such
third party or has expired without renewal and which by its terms
permits the third party to repurchase the Accounts subject to such
arrangement, upon such cancellation or non- renewal and the third
party has exercised such repurchase right or (III) such removal of
Accounts will not preclude transfers of Receivables to the Trust
from being accounted for as sales under generally accepted
accounting principles or prevent the Trust from continuing to
qualify as a qualifying special purpose entity in accordance with
SFAS 140 and the Transferor shall have delivered to the Trustee
and each Enhancement Provider an Officer's Certificate, dated the
Removal Date, to that effect;
(iv) on or before the tenth Business Day prior
to the Removal Date, each Rating Agency shall have received notice
of such proposed removal of the Receivables of such Accounts and
the Transferor shall have received notice prior to the Removal
Date from such Rating Agency that such proposed removal will not
result in a downgrade or withdrawal of its then current rating of
any outstanding Series of the Investor Certificates; and
(v) the Transferor shall have delivered to the
Trustee an Officer's Certificate confirming the items set forth in
clauses (i) through (iv) above. The Trustee may conclusively rely
on such Officer's Certificate, shall have no duty to make
inquiries with regard to the matters set forth therein and shall
incur no liability in so relying.
Upon satisfaction of the above conditions, the Trustee
shall execute and deliver the Reassignment to the Transferor, and the
Receivables from the Removed Accounts shall no longer constitute a part of
the Trust."
SECTION 4. Amendment to Section 9.02. Section 9.02(a) of
the Master Pooling and Servicing Agreement is hereby replaced in its
entirety by the following:
"(a) If the Transferor shall consent to the
appointment of a conservator or receiver or liquidator
for the winding-up or liquidation of its affairs, or a
decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the
appointment of a conservator or receiver or liquidator
for the winding-up or liquidation of its affairs shall
have been entered against the Transferor (an "Insolvency
Event"), the Transferor shall on the day of such
Insolvency Event (the "Appointment Day") immediately
cease to transfer Principal Receivables to the Trust and
shall promptly give notice to the Trustee of such
Insolvency Event. Notwithstanding any cessation of the
transfer to the Trust of additional Principal
Receivables, Finance Charge Receivables, whenever
created, accrued in respect of Principal Receivables
which have been transferred to the Trust shall continue
to be a part of the Trust, and Collections with respect
thereto shall continue to be allocated and paid in
accordance with Article IV. Within 15 days of the
Appointment Day, the Trustee shall (i) publish a notice
in an Authorized Newspaper that an Insolvency Event has
occurred and that the Trustee intends to sell, dispose of
or otherwise liquidate the Receivables in a commercially
reasonable manner and (ii) send written notice to the
Investor Certificateholders describing the provisions of
this Section 9.02 and requesting instructions from such
Holders, which notice shall request each Investor
Certificateholder to advise the Trustee in writing that
it elects one of the following options: (A) the Investor
Certificateholder wishes the Trustee to instruct the
Servicer not to sell, dispose of or otherwise liquidate
the Receivables, or (B) the Investor Certificateholder
wishes the Trustee to instruct the Servicer to sell,
dispose of or otherwise liquidate the Receivables and to
instruct the Servicer to reconstitute the Trust upon the
same terms and conditions set forth herein, or (C) the
Investor Certificateholder refuses to advise the Trustee
as to the specific action the Trustee shall instruct the
Servicer to take. If after 60 days from the day notice
pursuant to clause (i) above is first published (the
"Publication Date"), the Trustee shall not have received
written instructions of Holders of Investor Certificates
representing Undivided Interests aggregating in excess of
50% of the related Invested Amount of each Series (or in
the case of a series having more than one class of
investor certificates, each class of such series) to the
effect that the Trustee shall not instruct the Servicer
to sell, dispose of, or otherwise liquidate the
Receivables and to instruct the Servicer to reconstitute
the Trust upon the same terms and conditions as set forth
herein, the Trustee shall instruct the Servicer to
proceed to sell, dispose of, or otherwise liquidate the
Receivables in a commercially reasonable manner and on
commercially reasonable terms, which shall include the
solicitation of competitive bids and the Servicer shall
proceed to consummate the sale, liquidation or
disposition of the Receivables as provided above with the
highest bidder for the Receivables. If, however, with
respect to the portion of the Receivables allocable to
any outstanding Series, the holders of more than 50% of
the principal amount of each class of such Series
instruct the Trustee not to sell the portion of the
Receivables allocable to such Series, the Trust shall
continue with respect to such Series pursuant to the
terms of the Agreement and the Supplement. None of the
Transferor, any Affiliate of the Transferor or any agent
of the Transferor shall be permitted to purchase such
Receivables in such case. The portion of the Receivables
allocable to any Series shall be equal to the sum of (1)
the product of (A) the Transferor Percentage, (B) the
aggregate outstanding Principal Receivables and (C) a
fraction the numerator of which is the related Investor
Percentage of Collections of Finance Charge Receivables
and the denominator of which is the sum of all Investor
Percentages with respect to Collections of Finance Charge
Receivables for all Series outstanding and (2) the
Invested Amount of such Series. The Trustee may obtain a
prior determination from any such conservator, receiver
or liquidator that the terms and manner of any proposed
sale, disposition or liquidation are commercially
reasonable. The provisions of Sections 9.01 and 9.02
shall not be deemed to be mutually exclusive."
SECTION 5. Amendment to Section 10.02. Section
10.02(a) of the Master Pooling and Servicing Agreement is hereby
replaced in its entirety with the following:
"(a) On and after the receipt by the Servicer of
a Termination Notice pursuant to Section 10.01, the
Servicer shall continue to perform all servicing
functions under this Agreement until the date specified
in the Termination Notice or otherwise specified by the
Trustee in writing or, if no such date is specified in
such Termination Notice, or otherwise specified by the
Trustee, until a date mutually agreed upon by the
Servicer and Trustee. The Trustee shall notify each
Rating Agency of such removal of the Servicer. The
Trustee shall, as promptly as possible after the giving
of a Termination Notice appoint a successor servicer (the
"Successor Servicer"), and such Successor Servicer shall
accept its appointment by a written assumption in a form
acceptable to the Trustee. The Trustee may obtain bids
from any potential successor Servicer. If the Trustee is
unable to obtain any bids from any potential successor
Servicer and the Servicer delivers an Officer's
Certificate to the effect that they cannot in good faith
cure the Servicer Default which gave rise to a transfer
of servicing, and if the Trustee is legally unable to act
as Successor Servicer, then the Trustee shall notify each
Enhancement Provider of the proposed sale of the
Receivables and shall provide each such Enhancement
Provider an opportunity to bid on the Receivables. None
of the Transferor, any Affiliate of the Transferor or any
agent of the Transferor shall be permitted to purchase
such Receivables in such case. The proceeds of such sale
shall be deposited in the Distribution Account or any
Series Account, as provided in the related Supplement,
for distribution to the Investor Certificateholders of
each outstanding Series pursuant to Section 12.03 of the
Agreement. In the event that a Successor Servicer has not
been appointed and has not accepted its appointment at
the time when the Servicer ceases to act as Servicer, the
Trustee without further action shall automatically be
appointed the Successor Servicer (but shall have
continued authority, to appoint another Person as
Successor Servicer). Notwithstanding the above, the
Trustee shall, if it is legally unable to act, petition a
court of competent jurisdiction to appoint any
established financial institution having, in the case of
an entity that is subject to risk-based capital adequacy
requirements, risk- based capital of at least $50,000,000
or, in the case of an entity that is not subject to
risk-based capital requirements, having a net worth of
not less than $50,000,000 and whose regular business
includes the servicing of VISA(R) or MasterCard(R) credit
card receivables as the Successor Servicer hereunder.:
SECTION 6. Amendment to Section 12.01.
Subsections 12.01(b) and (c) of the Master Pooling and Servicing
Agreement are hereby replaced in their entirety with the
following:
"(b) In the event that (i) the Trust has not
terminated by the last Distribution Date occurring in the
second month preceding the Trust Termination Date, and
(ii) the Invested Amount of any Series (after giving
effect to all transfers, withdrawals, deposits and
drawings to occur on such date and the payment of
principal on any Series of Certificates to be made on the
related Distribution Date during such month pursuant to
Article IV) would be greater than zero, the Servicer
shall sell within 30 days after such Transfer Date all
the Receivables. The Servicer shall notify each
Enhancement Provider of the proposed sale of the
Receivables and shall provide each Enhancement Provider
an opportunity to bid on the Receivables. None of the
Transferor, any Affiliate of the Transferor or any agent
of the Transferor shall be permitted to purchase such
Receivables in such case. The proceeds of any such sale
shall be treated as Collections on the Receivables and
shall be allocated and deposited in accordance with
Article IV; provided, however, that the Trustee shall
determine conclusively in its sole discretion the amount
of such proceeds which are allocable to Finance Charge
Receivables and the amount of such proceeds which are
allocable to Principal Receivables. During such
thirty-day period, the Servicer shall continue to collect
payments on the Receivables and allocate and deposit such
payments in accordance with the provisions of Article IV.
(c) All principal or interest with respect to
any Series of Investor Certificates shall be due and
payable no later than the Series Termination Date with
respect to such Series. Unless otherwise provided in a
Supplement, in the event that the Invested Amount of any
Series of Certificates is greater than zero on its Series
Termination Date, after giving effect to all transfers,
withdrawals, deposits and drawings to occur on such date
and the payment of principal to be made on such Series on
such date, the Trustee will sell or cause to be sold, and
pay the proceeds to all Certificateholders of such Series
pro rata in final payment of all principal of and accrued
interest on such Series of Certificates, an amount of
Principal Receivables and the related Finance Charge
Receivables (or interests therein) up to 110% of the
Invested Amount of such Series at the close of business
on such date (but not more than an amount of Receivables
equal to the sum of (1) the product of (A) the Transferor
Percentage, (B) the aggregate outstanding Principal
Receivables and (C) a fraction the numerator of which is
the related Investor Percentage of Collections of Finance
Charge Receivables and the denominator of which is the
sum of all Investor Percentages with respect to
Collections of Finance Charge Receivables of all Series
outstanding and (2) the Invested Amount of such Series).
The Trustee shall notify each Enhancement Provider of the
proposed sale of such Receivables and shall provide each
Enhancement Provider an opportunity to bid on such
Receivables. None of the Transferor, any Affiliate of the
Transferor or any agent of the Transferor shall be
permitted to purchase such Receivables in such case. Any
proceeds of such sale in excess of such principal and
interest paid shall be paid to the Holder of the
Exchangeable Transferor Certificate. Upon such Series
Termination Date with respect to the applicable Series of
Certificates, final payment of all amounts allocable to
any Investor Certificates of such Series shall be made in
the manner provided in Section 12.03."
SECTION 7. Amendment to Section 12.02. Sections
12.02(a) of the Master Pooling and Servicing Agreement is hereby
replaced in its entirety with the following:
"(a) If so provided in any Supplement, the
Transferor (so long as the Transferor is the Servicer or
an Affiliate of the Servicer) may, but shall not be
obligated to, cause a final distribution to be made in
respect of the related Series of Certificates on a
Distribution Date specified in such Supplement by
depositing into the Distribution Account or the
applicable Series Account, not later than the Transfer
Date preceding such Distribution Date, for application in
accordance with Section 12.03, the amount specified in
such Supplement; provided, however that if the short-term
deposits or long-term unsecured debt obligations of the
Transferor (or, if neither such deposits nor such
obligations of the Transferor are rated by Xxxxx'x, then
the short-term deposits or long-term unsecured debt
obligations of the holding company of the Transferor so
long as such holding company is BANK ONE CORPORATION) are
not rated at the time of such purchase of Receivables at
least P-3 or Baa-3, respectively, by Xxxxx'x, no such
event shall occur unless the Transferor shall deliver an
Opinion of Counsel reasonably acceptable to the Trustee
that such deposit into the Distribution Account or any
Series Account as provided in the related Supplement
would not constitute a fraudulent conveyance of the
Transferor.
SECTION 8. Amendment to Section 13.01.
Subsection 13.01(a) and (b) of the Master Pooling and Servicing
Agreement are hereby replaced in their entirety with the
following:
"(a) This Agreement or any Supplement may be amended in
writing from time to time by the Servicer, the Transferor
and the Trustee, without the consent of any of
Certificateholders; provided, that such action shall not,
(i) as evidenced by an Opinion of Counsel for the
Transferor addressed and delivered to the Trustee,
adversely affect in any material respect the interests of
any Investor Certificateholder or (ii) as evidenced by an
Officer's Certificate, significantly change the Permitted
Activities of the Trust; provided further, that each
Rating Agency shall have notified the Transferor, the
Servicer and the Trustee in writing that such action will
not result in a reduction or withdrawal of the rating of
any outstanding Series or Class to which it is a Rating
Agency and provided, further, that the Trustee may, but
shall not be obligated to, enter into any such amendment
which materially affects the Trustee's rights, duties or
immunities under this Agreement or otherwise.
(b) This Agreement or any Supplement may also be
amended in writing from time to time by the Servicer, the
Transferor and the Trustee (x) with the consent of the
Holders of Investor Certificates evidencing Undivided
Interests aggregating not less than 66-2/3% of the
Invested Amount of each outstanding Series adversely
affected by such amendment for the purpose of adding any
provisions to or changing in any manner or eliminating
any of the provisions of this Agreement or any Supplement
or modifying in any manner the rights of Investor
Certificateholders of any Series then issued and
outstanding or (y) with the consent of the Holders of
Investor Certificates evidencing Undivided Interests
aggregating more than 50% of the Invested Amount of each
outstanding Series for the purpose of significantly
changing the Permitted Activities of the Trust if such
amendment shall not, as evidenced by an Officer's
Certificate, adversely affect in any material respect the
interests of any Investor Certificateholder; provided,
however, that no such amendment shall (i) reduce in any
manner the amount of, or delay the timing of,
distributions which are required to be made on any
Investor Certificates of such Series without the consent
of each Investor Certificateholders of such Series, (ii)
change the definition of or the manner of calculating the
Invested Amount, the Investor Percentage or the Investor
Default Amount of such Series without the consent of each
Investor Certificateholder of such Series or (iii) reduce
the aforesaid percentage required to consent to any such
amendment, without the consent of each Investor
Certificateholder of all Series adversely affected. The
Trustee may, but shall not be obligated to, enter into
any such amendment which affects the Trustee's rights,
duties or immunities under this Agreement or otherwise."
SECTION 9. Section 13.17. The Master Pooling and
Servicing Agreement is hereby amended by adding a new section which reads
as follows:
"Section 13.17. Characterization of the Trust. For
purposes of SFAS 140, the parties hereto intend that the Trust
shall be treated as a "qualifying special purpose entity" as such
term is used in SFAS 140 and any successor rule thereto and its
permitted activities shall be limited in accordance with paragraph
35 thereof.
If the transfer of the Receivables to the Trust is
characterized as a loan to the Transferor secured by Receivables,
the Transferor, in such circumstances, agrees that it does not
have the right to prepay such loan prior to the maturity date
thereof under any circumstances and does hereby irrevocably waive
and relinquish such right."
SECTION 10. 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 11. 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 12. 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 13. 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, NATIONAL ASSOCIATION
as Transferor and Servicer
By: /s/ Xxxxxx X. Renchof
-------------------------------------------
Name: Xxxxxx X. Renchof
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By: /s/ Xxxxxxx Xxxxx
------------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Senior Vice President
