FIRST AMENDMENT
TO
THE BA MASTER CREDIT CARD TRUST
POOLING AND SERVICING AGREEMENT
AND AMENDMENT TO THE SERIES SUPPLEMENTS
THIS FIRST AMENDMENT TO THE BA MASTER CREDIT CARD TRUST
POOLING AND SERVICING AGREEMENT AND AMENDMENT TO THE SERIES SUPPLEMENTS, dated
as of December 18, 1998 (the "First Amendment") is by and between BANK OF
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AMERICA NATIONAL ASSOCIATION, as Transferor and Servicer, and U.S. BANK NATIONAL
ASSOCIATION, as Trustee.
WHEREAS the Transferor and Servicer and the Trustee have
executed that certain Pooling and Servicing Agreement, dated as of July 19, 1996
(the "Pooling and Servicing Agreement"), and have executed those certain Series
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Supplements to the Pooling and Servicing Agreement (including the Series 1996-A
Supplement, dated as of July 19, 1996, the Series 1996-B Supplement, dated as of
October 11, 1996, the Series 1997-A Supplement, dated as of June 17, 1997, the
Series 1997-B Supplement, dated as of September 25, 1997, the Series 1997-C
Supplement, dated as of December 9, 1997, the Series 1998-A Supplement, dated as
of March 26, 1998, the Series 1998-B Supplement, dated as of May 7, 1998, and
the Series 1998-C Supplement, dated as of September 25, 1998, each as amended
from time to time, collectively referred to herein as the "Series Supplements");
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WHEREAS the Transferor and Servicer and the Trustee wish to
amend the Pooling and Servicing Agreement as provided herein;
NOW THEREFORE, in consideration of the promises and the
agreements contained herein, the parties hereto agree as follows:
Section 1. Amendment of Section 1.01.
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(a) The definition of "Permitted Investments" in Section 1.01
of the Pooling and Servicing Agreement shall be deleted in its entirety and
inserted in its place shall be the following:
"Permitted Investments" shall mean, unless otherwise provided
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in the Supplement with respect to any Series, (a) instruments, investment
property or other property consisting of (i) obligations of or fully guaranteed
by the United States of America; (ii) demand deposits, time deposits or
certificates of deposit of any depositary institution or trust company
incorporated under the laws of the United States of America or any state thereof
(or domestic branches of foreign depository institutions or trust companies) and
subject to supervision and examination by federal or state banking or depositary
institution authorities; provided, however, that at the time of the Trust's
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investment or contractual commitment to invest therein, the certificates of
deposit or short-term deposits of such depositary institution or trust company
shall have a credit rating from Fitch (if then rated by Fitch), Xxxxx'x and
Standard & Poor's of F1+, P-1 and A-1+, respectively; (iii) commercial paper,
bank notes or any other debt obligation having, at the time of the Trust's
investment or contractual commitment to invest therein, a rating from Fitch (if
then rated by Fitch), Xxxxx'x and Standard & Poor's of F1+, P-1 and A-1+,
respectively; (iv) bankers' acceptances issued by any depository institution or
trust company described in clause (a)(ii) above; and (v) repurchase agreements
transacted with either (A) an entity subject to the United States Bankruptcy
Code or (B) a financial institution insured by the FDIC or a broker-dealer with
retail customers that is under the jurisdiction of the Securities Investors
Protection Corp., in each case having a rating from Fitch (if then rated by
Fitch), Xxxxx'x and Standard & Poor's of F1+, P-1 and A-1+, respectively; (b)
demand deposits in the name of the Trust or the Trustee in any depositary
institution or trust company referred to in clause (a)(ii) above; (c) any other
investment if each Rating Agency confirms in writing that such investment will
not adversely affect its then current rating of the Investor Certificates,
provided that such investment will not cause the Trust to be treated as an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
(b) The definition of "Shared Excess Finance Charge Collec-
tions" in Section 2 of each of the Series Supplements shall be deleted in its
entirety and inserted in its place shall be the following:
"Shared Excess Finance Charge Collections" shall mean, with
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respect to any Transfer Date, either (a) the amount allocated to the Investor
Certificates which may be applied (i) first, to the Series Finance Charge
Shortfall with respect to other outstanding Series in Shared Excess Finance
Charge Collections Group One and (ii) then, to the Series Finance Charge
Shortfall with respect to other outstanding Series in any Shared Excess Finance
Charge Group other than Shared Excess Finance Charge Collections Group One, or
(b) the sum of (i) the amounts allocated to the Investor Certificates of other
Series in Shared Excess Finance Charge Collections Group One which the
applicable Supplements for such Series specify are to be treated as "Shared
Excess Finance Charge Collections" and which may be applied pursuant to Section
4.11 with respect to the Investor Certificates on such Transfer Date and (ii)
the Intergroup Excess Finance Charge Collections with respect to such Transfer
Date.
(c) Each of the definitions of "Intergroup Excess Finance
Charge Collections" and "Shared Excess Finance Charge Collections Groups"
shall be added, in their appropriate alphabetical order, to Section 2 of each
of the Series Supplements and they shall read as follows:
"Intergroup Excess Finance Charge Collections" shall mean,
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with respect to any Transfer Date, the amounts allocated to the investor
certificates of Series in Shared Excess Finance Charge Collections Groups, other
than Shared Excess Finance Charge Collections Group One, which the applicable
Supplements for such Series specify are to be treated as "Shared Excess Finance
Charge Collections," to the extent available to be applied pursuant to Section
4.11 with respect to the Investor Certificates on such Transfer Date.
"Shared Excess Finance Charge Collections Groups" shall mean
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Shared Excess Finance Charge Collections Group One and any other Group
identified in any related Supplement as a Shared Excess Finance Charge
Collections Group.
Section 2. Amendment of Section 2.01. Section 2.01 of the
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Pooling and Servicing Agreement is hereby amended by adding the following
sentence at the end of the second paragraph thereof:
Notwithstanding any other provision of this Agreement, whenever this
Agreement provides for Receivables to be transferred to the Trust, such
transfer shall be made to the Trustee for the benefit of the Trust, and
all references to transfers to the Trust shall be read as references to
transfers to the Trustee for the benefit of the Trust.
Section 3. Amendment of Section 2.06. (a) The first
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paragraph of Subsection 2.06(d) of the Pooling and Servicing Agreement is
hereby amended by deleting such paragraph in its entirety and inserting in its
place the following:
Each Transferor agrees that any such transfer of Receivables
from Additional Accounts or Participations under subsections 2.06(a),
(b) or (c) shall satisfy the following conditions (to the extent
provided below; provided, however, that the conditions set forth below
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(other than the conditions to deliver a written assignment as set forth
in clause (ii), to represent and warrant as to the matters set forth in
clauses (iii) and (iv), and to receive notice from the Rating Agencies
as set forth in clause (vii) below) shall not apply to the transfer of
Automatic Additional Accounts):
(b) Subsection 2.06(d)(vii) of the Pooling and Servicing
Agreement is hereby amended by deleting such subsection in its entirety and
inserting in its place the following:
(vii) (A) with respect to accounts designated pursuant to
subsections 2.06(a), 2.06(b) and 2.06(c) in excess of the Maximum
Addition Amount and with respect to Participations, each Participating
Transferor shall have received notice from Standard & Poor's and
Xxxxx'x that the inclusion of such accounts as Additional Accounts or
the inclusion of such Participations to be included as property of the
Trust, as the case may be, will not result in the reduction or
withdrawal of its then existing rating of any Series of Investor
Certificates then issued and outstanding; and (B) with respect to
accounts not in excess of the Maximum Addition Amount designated
pursuant to subsections 2.06(a), 2.06(b) and 2.06(c) during the last
quarterly period (such quarterly period beginning on and including the
fifteenth day of January, April, July, and October and ending on but
excluding the fifteenth day of April, July, October, and January,
respectively), if applicable, each Participating Transferor shall have
received, to the extent not previously received, not later than twenty
days after the relevant quarterly period, notice from Standard & Poor's
and Xxxxx'x that the inclusion of such accounts as Additional Accounts
pursuant to subsections 2.06(a), 2.06(b) and 2.06(c) will not result in
the reduction or withdrawal of its then existing rating of any Series
of Investor Certificates then issued and outstanding; and
Section 4. Amendment of Section 2.07.
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(a) Subsection 2.07(b)(iv) of the Pooling and Servicing
Agreement is hereby amended by deleting such subsection in its entirety and
inserting in its place the following:
(iv) [Reserved];
(b) Subsection 2.07(b)(vi) of the Pooling and Servicing
Agreement is hereby amended by deleting such subsection in its entirety and
inserting in its place the following:
(vi) on any Removal Notice Date, the amount of the Principal
Receivables of the Removed Accounts to be reassigned to such Transferor
on the related Removal Date shall not equal or exceed 5% of the
aggregate amount of the Principal Receivables on such Removal Date;
provided, that if any Series has been paid in full, the Principal
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Receivables in such Removed Accounts shall not equal or exceed the sum
of (A) 5% of the aggregate amount of the Principal Receivables, after
giving effect to the removal of accounts pursuant to clause (B) below,
on such Removal Date plus (B) the Initial Investor Interest of such
Series that has been paid in full; and
Section 5. Amendment of Section 3.06.
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(a) Subsection 3.06(a) of the Pooling and Servicing Agreement
is hereby amended by deleting such section in its entirety and inserting in its
place the following:
(a) On or before March 31 of each calendar year,
beginning with March 31, 1999, the Servicer, on behalf of the Trust,
shall cause a firm of nationally recognized independent certified
public accountants (who may also render other services to the Servicer
or any Transferor) to furnish, as provided in Section 13.05, a report,
based upon established criteria that meets the standards applicable to
accountants' reports intended for general distribution, to the Trustee,
any Credit Enhancement Provider and each Rating Agency, attesting to
the fairness of the assertion of the Servicer's management that its
internal controls over the functions performed as Servicer of the Trust
are effective, in all material respects, in providing reasonable
assurance that Trust assets are safeguarded against loss from
unauthorized use or disposition, on the date of such report, and a
report attesting to the fairness of the assertion of the Servicer's
management that such servicing was conducted in conformity with the
sections of this Agreement during the period covered by such report
(which shall be the period from January 1 of the preceding calendar
year to and including December 31 of such calendar year), except for
such exceptions or errors as such firm shall believe to be immaterial
and such other exceptions as shall be set forth in such report. Unless
otherwise provided with respect to any Series in the related
Supplement, 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) Subsection 3.06(b) of the Pooling and Servicing Agreement
is hereby amended by deleting such section in its entirety and inserting in its
place the following:
(b) On or before March 31 of each calendar year,
beginning with March 31, 1999, the Servicer shall cause a firm of
nationally recognized independent certified public accountants (who may
also render other services to the Servicer or any Transferor) to
furnish as provided in Section 13.05 a report, prepared in accordance
with the standards established by the American Institute of Certified
Public Accountants, to the Trustee and each Rating Agency, to the
effect that they have compared the mathematical calculations of certain
amounts set forth in the monthly certificates forwarded by the Servicer
pursuant to Section 3.04(b) during the period covered by such report
(which shall be the period from January 1 of the preceding calendar
year to and including December 31 of such calendar year) with the
Servicer's computer reports which were the source of such amounts and
that, on the basis of such comparison, such firm is of the opinion that
such amounts are in agreement, except for such exceptions as shall be
set forth in such report. A copy of such report may be obtained from
the Trustee by any Investor Certificateholder by a request in writing
to the Trustee addressed to the Corporate Trust Office.
Section 6. Amendment of Section 4.02 and each of the Series
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Supplements.(a) With respect to the Finance Charge and Principal Accounts,
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Subsection 4.02(e) of the Pooling and Servicing Agreement is hereby amended by
deleting the third sentence thereof in its entirety, and (b) with respect to any
Series Account, each of the Series Supplements is hereby amended by deleting, in
each case where such sentences appear, the sentence "No Permitted Investment
shall be disposed of prior to its maturity." and the sentence immediately
preceding such sentence. In each such case, the sentence(s) deleted as described
in the preceding sentence shall be replaced with the following:
The Trustee shall:
(i) hold each Permitted Investment that constitutes investment
property through a securities intermediary, which securi-
ties intermediary shall agree with the Trustee that (I)
such investment property shall at all times be credited to
a securities account of the Trustee, (II) such securities
intermediary shall treat the Trustee as entitled to
exercise the rights that comprise each financial asset
credited to such securities account, (III) all property
credited to such securities account shall be treated as a
financial asset, (IV) such securities intermediary shall
comply with entitlement orders originated by the Trustee
without the further consent of any other person or entity,
(V) such securities intermediary shall not agree with any
person other than the Trustee to comply with entitlement
orders originated by such other person, (VI) such
securities intermediary waives any lien on, security
interest in, or right of set-off with respect to any
property credited to such securities account, and
(VII) such agreement shall be governed by the laws of the
State of New York; and
(ii)maintain possession of each other Permitted
Investment not described in clause (i) above;
provided, that no Permitted Investment shall be disposed of
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prior to its maturity date. Terms used in clause (i) above
that are defined in the New York UCC and not otherwise defined
herein shall have the meaning set forth in the New York UCC.
Section 7. Amendment to Section 4.11. Subsection 4.11(k) of
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the Pooling and Servicing Agreement (as set
forth in Section 7 of each of the Series 1996-A Supplement, the Series 1997-A
Supplement, the Series 1997-C Supplement, the Series 1998-A Supplement, the
Series 1998-B Supplement and the Series 1998-C Supplement and Section 6 of each
of the Series 1996-B Supplement and the Series 1997-B Supplement) is hereby
amended by deleting such subsection in its entirety and inserting in its place
the following:
(k) the balance, if any, will constitute a portion of Shared
Excess Finance Charge Collections for such Transfer Date and will be available
for allocation (1) first, to other Series in Shared Excess Finance Charge
Collections Group One, (2) then, to the extent not required to be applied
pursuant to subsection 4.11(k)(1), to Series in any Shared Excess Finance Charge
Collections Group other than Shared Excess Finance Charge Collections Group One,
and (3) to the extent not required to be applied pursuant to subsections
4.11(k)(1) or (2), shall be distributed to the Holder of the Transferor
Certificate.
Section 8. Amendment to Section 4.13. Section 4.13 of the
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Pooling and Servicing Agreement (as set forth in Section 7 of each of the
Series 1996-A Supplement, the Series 1997-A Supplement, the Series 1997-C
Supplement, the Series 1998-A Supplement, the Series 1998-B Supplement and
the Series 1998-C Supplement and Section 6 of each of the Series 1996-B
Supplement and the Series 1997-B Supplement) is hereby amended by deleting
such Section in its entirety and inserting in its place the following:
SECTION 4.13 Shared Excess Finance Charge Collections.
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(a) Subject to subsections 4.13(c) and (d) below, the portion
of Shared Excess Finance Charge Collections on deposit in the Finance Charge
Account equal to the amount of Shared Excess Finance Charge Collections
allocable to the Investor Certificates on any Transfer Date shall be applied
as Shared Excess Finance Charge Collections pursuant to Section 4.11 and
pursuant to such Section 4.11 shall be deposited in the Distribution Account
or to the extent not needed to make distributions pursuant to Section 4.11,
shall be paid to the Holder of the Transferor Certificate.
(b) Subject to subsections 4.13(c) and (d) below, Shared
Excess Finance Charge Collections allocable to the Investor Certificates with
respect to any Transfer Date shall mean an amount equal to the Series Finance
Charge Shortfall, if any, with respect to the Investor Certificates for such
Transfer Date; provided, however, that if the aggregate amount of Shared Excess
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Finance Charge Collections identified in clauses (b)(i) and (ii) of the
definition of Shared Excess Finance Charge Collections for all Series in Shared
Excess Finance Charge Collections Group One for such Transfer Date is less than
the Cumulative Series Finance Charge Shortfall for such Transfer Date, then
Shared Excess Finance Charge Collections identified in clause (b)(i) of the
definition of Shared Excess Finance Charge Collections allocable to the Investor
Certificates on such Transfer Date shall equal the product of (i) Shared Excess
Finance Charge Collections identified in clause (b)(i) of the definition of
Shared Excess Finance Charge Collections for all Series in Shared Excess Finance
Charge Collections Group One for such Transfer Date and (ii) a fraction, the
numerator of which is the Series Finance Charge Shortfall with respect to the
Investor Certificates for such Transfer Date and the denominator of which is the
aggregate amount of Cumulative Series Finance Charge Shortfall for all Series in
Shared Excess Finance Charge Collections Group One for such Transfer Date;
provided, further, however, that if the aggregate amount available to be applied
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as Intergroup Excess Finance Charge Collections for all Series in all Shared
Excess Finance Charge Collections Groups for such Transfer Date is less than the
sum of the Cumulative Series Finance Charge Shortfalls (as such term is defined
in the related Supplements for all Series in a Shared Excess Finance Charge
Collections Group and calculated after giving effect to the application of any
other Shared Excess Finance Charge Collections available to such Series on such
Transfer Date) for such Transfer Date, then the Intergroup Excess Finance Charge
Collections for such Transfer Date allocable to the Investor Certificates on
such Transfer Date shall equal the product of (i) the aggregate amount available
to be applied as Intergroup Excess Finance Charge Collections for all Series in
all Shared Excess Finance Charge Collections Groups for such Transfer Date and
(ii) a fraction, the numerator of which is the Series Finance Charge Shortfall
with respect to the Investor Certificates for such Transfer Date and the
denominator of which is the aggregate amount of Cumulative Series Finance Charge
Shortfalls (as such term is defined in the related Supplements for all Series in
a Shared Excess Finance Charge Collections Group and calculated after giving
effect to the application of any other Shared Excess Finance Charge Collections
available to such Series on such Transfer Date) for all Series in all Shared
Excess Finance Charge Collections Groups for such Transfer Date.
(c) Notwithstanding anything else in the Agreement to the
contrary, the provisions of this Section 4.13 applicable to that portion of
Shared Excess Finance Charge Collections consisting of Intergroup Excess Finance
Charge Collections shall terminate at, and the application of Intergroup Excess
Finance Charge Collections among the Series within the Shared Excess Finance
Charge Collections Groups shall continue only until, such time, if any, at which
the Transferor shall deliver to the Trustee an Officer's Certificate to the
effect that, in the reasonable belief of the Transferor, the continued
application of Intergroup Excess Finance Charge Collections (as such term is
defined in the related Supplements for all Series in a Shared Excess Finance
Charge Collections Group) among the Series within the Shared Excess Finance
Charge Collections Groups would have adverse regulatory implications with
respect to the Transferor. Following the delivery by the Transferor of such an
Officer's Certificate to the Trustee, there will not be any further application
of Intergroup Excess Finance Charge Collections among the Series within the
Shared Excess Finance Charge Collections Groups.
(d) Notwithstanding anything else in this Agreement to the
contrary, the provisions of this Section 4.13 shall terminate at, and the
application of Shared Excess Finance Charge Collections among the Series within
Shared Excess Finance Charge Collections Group One shall continue only until,
such time, if any, at which the Transferor shall deliver to the Trustee an
Officer's Certificate to the effect that, in the reasonable belief of the
Transferor, the continued application of Shared Excess Finance Charge
Collections among the Series within Shared Excess Finance Charge Collections
Group One would have adverse regulatory implications with respect to the
Transferor. Following the delivery by the Transferor of such an Officer's
Certificate to the Trustee, there will not be any further application of Shared
Excess Finance Charge Collections among the Series within Shared Excess Finance
Charge Collections Group One.
Section 9. Amendment of Section 12.03. Subsection 12.03(a) of
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the Pooling and Servicing Agreement is hereby amended by deleting the second
sentence thereof in its entirety and inserting in its place the following:
The Servicer shall also deliver to the Trustee, as soon as is
practicable but in any event not later than three Business Days after
the Determination Date relating to the final payment described in the
preceding sentence, an Officers' Certificate setting forth the
information, to the extent available, specified in Article V of this
Agreement covering the period during the then current calendar year
through the date of such notice and setting forth the date of such
final distribution.
Section 10. Effectiveness. The amendments provided for by
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this First Amendment shall become effective upon receipt by the Trustee of the
following, each of which shall be satisfactory to the Trustee in its sole
discretion, except as otherwise provided:
(a) Notification in writing from each of Fitch IBCA, Inc.
(as successor to Fitch), Xxxxx'x and Standard & Poor's to the effect that the
terms of this First Amendment will not result in a reduction or withdrawal
of the rating of any outstanding Series or Class to which it is a Rating Agency.
(b) Confirmation from the Transferor and Servicer that it has
received a copy of the written notification referred to in subsection 7(a)
above and that such written notification is satisfactory to the Transferor and
Servicer in its sole discretion.
(c) An Officer's Certificate from the Transferor addressed
and delivered to the Trustee certifying that this First Amendment shall
not adversely affect in any material respect the interests of any Investor
Certificateholder.
(d) An Officer's Certificate from the Transferor addressed
and delivered to each of the Agents under the outstanding Loan Agreements
certifying that this First Amendment shall not adversely affect in any material
respect the interests of any Agent or any Collateral Interest Holder.
(e) Counterparts of this First Amendment, duly executed by
the parties hereto.
Section 11. Pooling and Servicing Agreement in Full Force and
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Effect as Amended. Except as specifically amended or waived hereby, all of the
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terms and conditions of the Pooling and Servicing Agreement shall remain in full
force and effect. All references to the Pooling and Servicing Agreement in any
other document or instrument shall be deemed to mean such Pooling and
Servicing Agreement as amended by this First Amendment. This First Amendment
shall not constitute a novation of the Pooling and Servicing Agreement,
but shall constitute an amendment thereof. The parties hereto agree to be
bound by the terms and obligations of the Pooling and Servicing Agreement, as
amended by this First Amendment, as though the terms and obligations of the
Pooling and Servicing Agreement were set forth herein.
Section 12. Counterparts. This First Amendment may be
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executed in any number of counterparts and by separate parties hereto on
separate counterparts, each of which when executed shall be deemed an original,
but all such counterparts taken together shall constitute one and the same
instrument.
Section 13. Governing Law. This First Amendment shall be
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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 14. Defined Terms and Section References. Capitalized
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terms used herein and not otherwise defined shall have the meanings assigned to
such terms in the Pooling and Servicing Agreement or the Series Supplements,
as applicable. All section or subsection references herein shall mean
sections or subsections of the Pooling and Servicing Agreement, except as
otherwise provided herein.
IN WITNESS WHEREOF, the Transferor, the Servicer and the
Trustee have caused this First Amendment to be duly executed by their respective
officers as of the day and year first above written.
BANK AMERICA NATIONAL ASSOCIATION,
Transferor and Servicer
By:/s/ XXXXXXXX X. XXXXXX
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Name: Xxxxxxxx X. Xxxxxx
Title: SVP & Chief Financial Officer
U.S. BANK NATIONAL ASSOCIATION,
Trustee
By:/s/ XXXX X. XXXXXXX
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Name: Xxxx X. Xxxxxxx
Title: Assistant Vice President
