Exhibit 4.1
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DILLARD ASSET FUNDING COMPANY
Transferor,
DILLARD NATIONAL BANK,
Servicer
and
JPMORGAN CHASE BANK,
Trustee
on behalf of the Certificateholders
of Dillard Credit Card Master Trust
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FIRST AMENDMENT
Dated as of April 1, 2001
to
AMENDED AND RESTATED
POOLING AND SERVICING AGREEMENT
Dated as of June 28, 2000
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Table of Contents
Page
SECTION 1. Amendments to Section 1.1.................................1
SECTION 2. Amendments to Section 2.1.................................4
SECTION 3. Amendments to Section 2.4.................................4
SECTION 4. Amendments to Section 2.5.................................4
SECTION 5. Amendments to Section 2.6.................................4
SECTION 6. Amendment to Section 4.1..................................4
SECTION 7. Amendment to Section 6.1..................................5
SECTION 8. Amendment to Section 6.3(b)...............................6
SECTION 9. Amendment to Section 9.2(a)...............................6
SECTION 10. Section 10.02(a)..........................................7
SECTION 11. Amendment to Section 12.1.................................7
SECTION 12. Amendment to Section 12.2(a)..............................8
SECTION 13. Amendments to Section 13.1................................8
SECTION 14. Amendments to Section 13.2...............................10
SECTION 15. Section 13.7.............................................10
SECTION 16. No Waiver................................................10
SECTION 17. Pooling and Servicing Agreement in Full Force and Effect
as Amended............................................10
SECTION 18. Counterparts.............................................10
SECTION 19. GOVERNING LAW............................................11
SECTION 20. Effective Dates..........................................11
SECTION 21. The Trustees.............................................11
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FIRST AMENDMENT, dated as of April 1, 2001 (the "First Amendment"),
to AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT, dated as of June 28,
2000, by and among DILLARD ASSET FUNDING COMPANY, as Transferor, DILLARD
NATIONAL BANK, as Servicer, and JPMORGAN CHASE BANK, as Trustee (as amended
and supplemented through the date hereof, the "Pooling and Servicing
Agreement").
WHEREAS, Section 13.1(b) of the Pooling and Servicing Agreement
provides that the Servicer, the Transferor and the Trustee, without the
consent of the Certificateholders, may amend the Pooling and Servicing
Agreement from time to time upon the satisfaction of certain conditions;
WHEREAS, the Servicer, the Transferor and the Trustee desire to
amend the Pooling and Servicing Agreement as set forth below; and
WHEREAS, all 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 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 Pooling and Servicing Agreement.
SECTION 1. Amendments to Section 1.1. (a) The defined term "Trust"
appearing in Section 1.1 of the Pooling and Servicing Agreement is hereby
amended by deleting the reference to "Section 9-306 of the UCC" and inserting
in lieu thereof the following: "Section 9-315 of the UCC".
(b) Section 1.1 of the Pooling and Servicing Agreement shall be
amended to delete the definition therein of "Certificateholder" or "Holder"
and replace it with the following definition of "Certificateholder" or
"Holder":
"Certificateholder" or "Holder" shall mean the Person in
whose name a Certificate is registered in the Certificate Register;
if applicable, the holder of any Bearer Certificate or Coupon, as the
case may be or such other person deemed to be a "Certificateholder"
or "Holder" in any Series Supplement; and, if used with respect to
the Transferor Interest, a Person in whose name the Transferor
Certificate is registered in the Certificate Register or a Person in
whose name ownership of the uncertificated interest in the Transferor
Interest is recorded in the books and records of the Trustee.
(c) Section 1.1 of the Pooling and Servicing Agreement shall be
amended to delete the definition therein of "Permitted Investments" and
replace it with the following definition of "Permitted Investments":
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"Permitted Investments" shall mean, unless otherwise
provided in the Supplement with respect to any Series:
(a) book-entry securities or negotiable instruments or
securities represented by instruments in bearer or
registered form which evidence (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 banks) 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 -------- ------- investment, the
certificates of deposit or short-term deposits of such
depositary institution or trust company shall have a
credit rating from Moody's and Standard & Poor's of
"P-1" and "A-1+", respectively; (iii) commercial paper,
other than commercial paper issued by the Transferor or
any of its Affiliates, having, at the time of the
Trust's investment or contractual commitment to invest
therein, a rating from Moody's and Standard & Poor's of
"P-1" and "A-l+", respectively and (iv) bankers'
acceptances issued by any depository institution or
trust company described in clause (a)(ii) above;
(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) repurchase agreements transacted with either
(i) an entity subject to the United States federal
bankruptcy code, provided that (A) the repurchase
agreement matures prior to the next Distribution Date
or is due on demand, (B) the Trustee or a third party
acting solely as agent for the Trustee has possession
of the collateral, (C) the Trustee on behalf of the
Trust has a security interest in the collateral, (D)
the market value of the collateral is maintained at the
requisite collateral percentage of the obligation in
accordance with standards of the Rating Agencies, (E)
the failure to maintain the requisite collateral level
will obligate the Trustee to liquidate the collateral
immediately, (F) the securities subject to the
repurchase agreement are either obligations of, or
fully guaranteed as to principal and interest by, the
United States of America or any instrumentality or
agency thereof, certificates of deposit or bankers
acceptances and (G) the securities subject to the
repurchase agreement are free and clear of any third
party lien or claim; or
(ii) a financial institution insured by the FDIC,
or any broker-dealer with "retail customers" that is
under the jurisdiction of the Securities Investors
Protection Corp. ("SIPC"), provided that (A) the market
value of the collateral is maintained at the requisite
collateral percentage of the obligation in accordance
with the standards of the Rating
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Agencies, (B) the Trustee or a third party (with a
short-term debt rating of P-1 by Moody's) acting
solely as agent for the Trustee has possession of the
collateral, (C) the Trustee on behalf of the Trust has
a security interest in the collateral, (D) the
collateral is free and clear of third party liens and,
in the case of an SIPC broker, was not acquired
pursuant to a repurchase or reverse repurchase
agreement and (E) the failure to maintain the
requisite collateral percentage will obligate the
Trustee to liquidate the collateral; provided,
however, that at the time of the Trust's investment or
contractual commitment to invest in any repurchase
agreement, the short-term deposits or commercial paper
rating of such entity or institution in subsections
(i) and (ii) shall have a credit rating of "P-1" from
Moody's and "A-1+" from Standard & Poor's; and
(d) any other investments, other than investments in the
Transferor or any of its Affiliates, that by its terms
converts to cash within a finite time period if the
Rating Agency Condition is satisfied with respect
thereto.
(d) Section 1.1 of the Pooling and Servicing Agreement shall be
amended to delete the definition therein of "Transferor Certificate" and
replace it with the following definition of "Transferor Certificate":
"Transferor Certificate" shall mean, if the Transferor
elects to evidence its interest in the Transferor Interest in
certificated form pursuant to Section 6.1, a certificate executed and
delivered by the Transferor and authenticated by the Trustee
substantially in the form of Exhibit A; provided, that at any time
there shall be only one Transferor Certificate; provided further,
that in any Supplement, "Transferor Certificate" shall mean either a
certificate executed and delivered by the Transferor and
authenticated by the Trustee substantially in the form of Exhibit A
or the uncertificated interest in the Transferor Interest.
(e) Section 1.1 of the Pooling and Servicing Agreement shall be
amended to add the following defined terms in appropriate alphabetical order:
"Holder of the Transferor Certificate" or "holder of the
Transferor Certificate" shall mean the Holder of the Transferor
Certificate or the Holder of any uncertificated interest in the
Transferor Interest.
"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 Credit
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;
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(c) receiving Collections and making payments on such
Certificates and interests in accordance with the terms
of this Pooling and Servicing Agreement and any Series
Supplement; and
(d) engaging in other activities that are necessary or
incidental to accomplish these limited purposes, which
activities can not be contrary to the status of the
Trust as a qualified special purpose entity under
existing accounting literature.
"SFAS 140" shall mean Statement of Financial Accounting
Standard No. 140, Accounting for Transfers and Servicing of Financial
Assets and Extinguishments of Liabilities.
SECTION 2. Amendments to Section 2.1. Section 2.1 of the Pooling and
Servicing Agreement is hereby amended by deleting the reference to Section
9-106 of the UCC appearing therein and inserting in lieu thereof the
following: "Section 9-102(a)(2) and (a)(42), respectively, of the UCC".
SECTION 3. Amendments to Section 2.4.
(a) Section 2.4(a)(ii) of the Pooling and Servicing Agreement shall
be amended by deleting the reference to "Section 9-306 of the UCC" and
inserting in lieu thereof the following: "Section 9-315 of the UCC".
(b) Section 2.4(d)(iv) of the Pooling and Servicing Agreement shall
be amended by deleting the reference to "Section 9-306(3) of the UCC" and
inserting in lieu thereof the following: "Section 9-315(d) of the UCC".
SECTION 4. Amendments to Section 2.5. Section 2.5(a) of the Pooling
and Servicing Agreement shall be amended to delete the words "or general
intangibles" that appear therein.
SECTION 5. Amendments to Section 2.6. Section 2.6(c)(v) of the
Pooling and Servicing Agreement shall be amended by deleting the reference to
"Section 9-306 of the UCC" and inserting in lieu thereof the following:
"Section 9-315 of the UCC".
SECTION 6. Amendment to Section 4.1. Section 4.1 of the Pooling and
Servicing Agreement shall be amended to read in its entirety as follows:
Section 4.1 Rights of Certificateholders. Each Series of
Investor Certificates shall represent Undivided Interests in the
Trust, including the benefits of any Credit Enhancement issued with
respect to such Series and the right to receive the Collections and
other amounts at the times and in the amounts specified in this
Article IV to be deposited in the Investor Accounts and any other
Series Account (if so specified in the related Supplement) or to be
paid to the Investor Certificateholders of such Series; provided,
however, that the aggregate interest represented by such Certificates
at any time in the Principal Receivables shall not exceed an amount
equal to the Investor Interest at such time. The Transferor
Certificate or, as the case may be, the uncertificated
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interest in the Transferor Interest shall represent the remaining
undivided interest in the Trust, including the right to receive the
Collections and other amounts at the times and in the amounts
specified in this Article IV to be paid to the Holder of the
Transferor Certificate; provided, however, that if the Transferor
elects to have its interest in the Transferor Interest be
uncertificated as provided in Section 6.1 hereof, then such
uncertificated interest shall represent the Transferor Interest;
provided further, that the aggregate interest represented by such
Transferor Certificate in the Principal Receivables or, as the case
may be, the aggregate uncertificated interest of the Transferor in the
Principal Receivables, shall not exceed the Transferor Interest at any
time and such Transferor Certificate or, as the case may be, such
uncertificated interest shall not represent any interest in the
Investor Accounts, except as provided in this Agreement, or the
benefits of any Credit Enhancement issued with respect to any Series.
SECTION 7. Amendment to Section 6.1. Section 6.1 of the Pooling and
Servicing Agreement shall be amended to read in its entirety as follows:
Section 6.1 The Certificates. Subject to Sections 6.10 and
6.13, the Investor Certificates of each Series and any Class thereof
may be issued in bearer form (the "Bearer Certificates") with
attached interest coupons and a special coupon (collectively, the
"Coupons") or in fully registered form (the "Registered
Certificates"), and shall be substantially in the form of the
exhibits with respect thereto attached to the related Supplement. The
Transferor may elect at any time, by written notice to the Trustee
and each Rating Agency, to have its interest in the Transferor
Interest be (i) an uncertificated interest or (ii) evidenced by a
Transferor Certificate. If the Transferor elects to have its interest
in the Transferor Interest be uncertificated, it shall deliver to the
Trustee for cancellation any Transferor Certificate previously
issued. If the Transferor elects to have its interest in the
Transferor Interest be evidenced by a Transferor Certificate, the
Transferor Certificate shall be issued pursuant hereto or to Section
6.9 or Section 6.10, substantially in the form of Exhibit A and shall
upon issue be executed and delivered by the Transferor to the Trustee
for authentication and redelivery as provided in Sections 2.1 and
6.2. The Investor Certificates shall, upon issue pursuant hereto or
to Section 6.9 or Section 6.10, be executed and delivered by the
Transferor to the Trustee for authentication and redelivery as
provided in Sections 2.1 and 6.2. Any Investor Certificate shall be
issuable in a minimum denomination of $1,000 Undivided Interest and
integral multiples thereof, unless otherwise specified in any
Supplement. The Transferor Certificate, if applicable, shall be
issued as a single certificate. Each Certificate shall be executed by
manual or facsimile signature on behalf of the Transferor by an
authorized signatory thereof. Certificates bearing the manual or
facsimile signature of the individual who was, at the time when such
signature was affixed, authorized to sign on behalf of the Transferor
or the Trustee shall not be rendered invalid, notwithstanding that
such individual has ceased to be so authorized prior to the
authentication and delivery of such Certificates or does not hold
such office at the date of such Certificates. No Certificate shall be
entitled to any benefit under this Agreement, or be valid for any
purpose, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein,
executed by or on behalf of the Trustee by the manual signature of a
duly authorized signatory, and such certificate upon any Certificate
shall be conclusive evidence, and the only evidence, that such
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Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication except
Bearer Certificates which shall be dated the applicable Issuance Date
as provided in the related Supplement.
SECTION 8. Amendment to Section 6.3(b). Section 6.3(b) of the
Pooling and Servicing Agreement shall be amended to read in its entirety as
follows:
(b) Except as provided in Section 6.9 or 7.2 or in any
Supplement, in no event shall the Transferor Certificate or any
interest therein, or, as the case may be, the uncertificated interest
in the Transferor Interest or any interest therein, be transferred
hereunder, in whole or in part, unless the Transferor shall have
consented in writing to such transfer and unless the Trustee shall
have received (1) written confirmation from each Rating Agency that
such transfer will satisfy the Rating Agency Condition and (2) a Tax
Opinion with respect to such transfer.
SECTION 9. Amendment to Section 9.2(a). Section 9.2(a) of the
Pooling and Servicing Agreement shall be amended to read in its entirety as
follows:
(a) If any event set forth in Section 9.1(a) or (b) shall
occur (any such event, 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
and the arrangement among the parties created hereby shall be deemed
to have been dissolved, subject to the liquidation and winding up
procedures described below. 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 9.2 and
requesting instructions from such Holders. Unless within 75 days from
the day notice pursuant to clause (i) above is first published, the
Trustee shall have received written instructions from Holders of
Investor Certificates evidencing more than 50% of the Investor
Interest of each Series issued and outstanding (or, if any such
Series has two or more Classes, each Class) to the effect that such
Certificateholders disapprove of the liquidation of the Receivables,
the Trustee shall use its best efforts 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. 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 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 9.1 and 9.2 shall not be deemed to be mutually
exclusive.
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SECTION 10. Section 10.02(a). Section 10.02(a) of the Pooling and
Servicing Agreement shall be amended to read in its entirety as follows:
Section 10.2 Trustee to Act; Appointment of Successor.
(a) On and after the receipt by the Servicer of a
Termination Notice pursuant to Section 10.1, 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 the Servicer 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 (i) notify each Credit Enhancement Provider of the
proposed sale of the Receivables and shall provide each such Credit
Enhancement Provider an opportunity to bid on the Receivables and
(ii) use its best efforts to sell, dispose of or otherwise liquidate
the Receivables by the solicitation of competitive bids and on terms
equivalent to the best purchase offer as determined by the Trustee.
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
12.3 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 upon
the later to occur of (A) the 60th day after the Termination Notice
and (B) the Servicer ceases to act as Servicer. Notwithstanding the
above, the Trustee shall, if it is legally unable so 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 revolving credit card receivables as the Successor
Servicer hereunder. The Servicer shall provide the Trustee access to
the documentation and any software relating to the Receivables and
the Collections and to any personnel having knowledge of such
documentation or software when the Trustee is obligated to serve as
Successor Servicer.
SECTION 11. Amendment to Section 12.1. Section 12.1(b) of the
Pooling and Servicing Agreement shall be amended to read in its entirety
as follows:
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(b) 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 Investor Interest 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 first, to all
Certificateholders of such Series pro rata in final payment of all
principal of and accrued interest on such Series of Certificates, and
second, as provided in the related Supplement, an amount of Principal
Receivables and the related Finance Charge Receivables (or interests
therein) up to 110% of the sum of the Investor Interest of such
Series plus the Enhancement Invested Amount or the Collateral
Interest (if not included in the Investor Interest) of such Series,
if any, at the close of business on such date (but not more than an
amount of Principal Receivables and the related Finance Charge
Receivables equal to the sum of (1) the product of (A) the Transferor
Percentage, (B) the aggregate amount of Principal Receivables in the
Trust and (C) a fraction the numerator of which is the applicable
Investor Percentage with respect to Finance Charge Receivables and
the denominator of which is the sum of all Investor Percentages with
respect to Finance Charge Receivables of all Series and (2) the
Investor Interest of such Series plus the Enhancement Invested Amount
or the Collateral Interest (if not included in the Investor Interest)
of such Series). The Trustee shall (i) notify each Credit Enhancement
Provider of the proposed sale of such Receivables and shall provide
each Credit 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
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 12.3.
SECTION 12. Amendment to Section 12.2(a). Section 12.2(a) of the
Pooling and Servicing Agreement shall be amended to read in its entirety as
follows:
(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 to 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 12.3, the amount
specified in such Supplement from funds readily available to the
Trust and not from the Transferor.
SECTION 13. Amendments to Section 13.1. Sections 13.1(a) and (b) of
the Pooling and Servicing Agreement shall be amended to read in their entirety
as follows:
Section 13.1 Amendments.
(a) This Agreement (including any Supplement) may be amended
from time to time by the Transferor, the Servicer and the Trustee,
without the consent of any of the
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Certificateholders (i) to cure any ambiguity, to revise any exhibits or
schedules (other than Schedule 1), to correct or supplement any
provisions herein or thereon or (ii) to add any other provisions with
respect to matters or questions raised under this Agreement which shall
not be inconsistent with the provisions of this Agreement; provided,
however, that such action shall not, (a) as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
of the Certificateholders unless such Certificateholders have consented
thereto or (b) as evidenced by an Officer's Certificate,
significantly change the Permitted Activities of the Trust.
(b) This Agreement (including any Supplement) and any
schedule or exhibit thereto may also be amended from time to time by
the Transferor, the Servicer and the Trustee, without the consent of
any of the Certificateholders, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Agreement, or of modifying in any manner the
rights of the Holders of Certificates; provided, however, that (i)
the Servicer shall have provided an Officer's Certificate to the
Trustee to the effect that such amendment will not materially and
adversely affect the interests of any Certificateholder and will not
significantly change the Permitted Activities of the Trust, (ii) the
Servicer shall have provided a Tax Opinion with respect to such
amendment and (iii) the Servicer shall have provided at least ten
(10) Business Days' prior written notice to each Rating Agency of
such amendment and shall have received written confirmation from each
Rating Agency that such action will satisfy the Rating Agency
Condition; provided, further, that such amendment shall not, without
the consent of each Certificateholder of each Series affected
thereby, (i) reduce in any manner the amount of, or delay the timing
of, distributions which are required to be made on any Certificate of
such Series, (ii) alter the requirements for changing the Minimum
Transferor Interest Percentage for such Series, (iii) change the
definition of or the manner of calculating the interest of any
Certificateholder of such Series, (iv) change the manner in which the
Transferor Interest is determined or (v) reduce the percentage
pursuant to Subsection 13.1(c) required to consent to any such
amendment.
(c) This Agreement and any Supplement may also be amended
from time to time by the Transferor, the Servicer and the Trustee (x)
with the consent of Certificateholders evidencing Undivided Interests
aggregating more than 66 2/3% of the Investor Interest of each and
every Series adversely affected, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights
of the Certificateholders of any Series then issued and outstanding
if such amendment would not, as evidenced by an Officer's
Certificate, significantly change the Permitted Activities of the
Trust or (y) with the consent of Certificateholders evidencing
undivided interests aggregating more than 66 2/3% of the Investor
Interest, for the purpose of significantly changing the Permitted
Activities of the Trust; provided, however, that no such amendment
under this subsection shall (i) reduce in any manner the amount of,
or delay the timing of, distributions which are required to be made
on any Certificate of such Series without the consent of all of the
related Certificateholders; (ii) change the definition of or the
manner of calculating the Investor Interest, the Investor Percentage
or the Investor Default Amount of such Series without the consent of
the related Certificateholders or (iii) reduce the aforesaid
percentage required to consent to any such amendment, in each case
without the consent
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of each Certificateholder of all Series affected. The Transferor shall
give written notice to the Rating Agencies of any such amendment.
SECTION 14. Amendments to Section 13.2. Section 13.2 (b) and (c) of
the Pooling and Servicing Agreement shall be amended to read in their entirety
as follows:
"(b) Within 30 days after the Transferor makes any change in
its name, identity or corporate structure which would make any
financing statement or continuation statement filed in accordance
with paragraph (a) above seriously misleading within the meaning of
Section 9-506 of the UCC, the Transferor shall give the Trustee
notice of any such change and shall file such financing statements or
amendments as may be necessary to continue the perfection of the
Trust's security interest in the Receivables and the proceeds
thereof.
"(c) The Transferor will give the Trustee prompt written
notice of any change in the jurisdiction in which it is located (as
such location is determined pursuant to Section 9-307 of the UCC) and
whether, as a result of such change, the applicable provisions of the
UCC would require the filing of any amendment of any previously filed
financing or continuation statement or of any new financing
statements and shall file such financing statements as may be
necessary to continue the perfection of the Trust's security interest
in the Receivables and the proceeds thereof within the time specified
in Section 9-316(a) of the UCC."
SECTION 15. Section 13.7. A new Section 13.7 shall be added and
shall read as follows:
Section 13.7. 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.
SECTION 16. No Waiver. The execution and delivery of this First
Amendment shall not constitute a waiver of a past default under the
Pooling and Servicing Agreement or impair any right consequent thereon.
SECTION 17. Pooling and Servicing Agreement in Full Force and Effect
as Amended. Except as specifically amended or waived hereby, all of the 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 18. Counterparts. This First Amendment may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and all of which counterparts shall constitute
one and the same instrument.
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SECTION 19. GOVERNING LAW. THIS FIRST AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
SECTION 20. Effective Dates. This First Amendment, with the exception
of Sections 1(b), 1(d), 6, 7 and 8, shall be effective as of the day and year
first above written. Sections 1(b), 1(d), 6, 7 and 8 to this First Amendment
shall be effective as of February 2, 2002. Notwithstanding the foregoing, any
amendment effected by this First Amendment that relates to a reference to the
UCC shall be deemed to be effective as of July 1, 2001.
SECTION 21. The Trustees. Neither the Trustee nor the Owner Trustee
shall be responsible in any manner whatsoever for or in respect of the
validity or sufficiency of this First Amendment or for or in respect of the
recitals contained herein, all of which are made solely by the Servicer and
the Transferor.
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IN WITNESS WHEREOF, the Servicer, the Transferor and the Trustee
have caused this First Amendment to be duly executed by their respective
officers, thereunto duly authorized, as of the day and year first above
written.
DILLARD ASSET FUNDING COMPANY
Transferor
By: CHASE MANHATTAN BANK USA, N.A.,
not in its individual capacity but solely as
owner trustee
By:________________________________
Name:
Title:
DILLARD NATIONAL BANK,
Servicer
By:________________________________
Name:
Title:
JPMORGAN CHASE BANK,
Trustee
By:________________________________
Name:
Title: