Exhibit 4.1
CARD ACQUISITION FUNDING LLC,
Transferor
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
Servicer
and
THE BANK OF NEW YORK,
Trustee
on behalf of the Certificateholders of Providian Master Trust
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FIRST AMENDMENT
Dated as of March 14, 2003
to
AMENDED AND RESTATED
POOLING AND SERVICING AGREEMENT
Dated as of February 5, 2002
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FIRST AMENDMENT to AMENDED AND RESTATED POOLING AND SERVICING
AGREEMENT, dated as of March 14, 2003 (the "First Amendment"), by and among
CARD ACQUISITION FUNDING LLC ("Card Acquisition Funding"), as Transferor, CHASE
MANHATTAN BANK USA, NATIONAL ASSOCIATION, as Servicer, and THE BANK OF NEW
YORK, as Trustee (as amended and supplemented through the date hereof, the
"Pooling and Servicing Agreement").
WHEREAS, Section 13.1(a) 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. Amendment to SECTION 1.01. (a) SECTION 1.01 of the Pooling
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and Servicing Agreement shall be amended to delete the definition therein of
"Trust" and replace it with the following definition of "Trust":
"Trust" shall mean the common law trust created by this
Agreement with the name "Chase USA Master Trust".
SECTION 2. Amendment to SECTION 2.09. SECTION 2.09 of the Pooling and
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Servicing Agreement shall be amended to read in its entirety as follows:
SECTION 2.09. Removal of Accounts.
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(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, (a) cause a Pay Out Event to occur; provided,
however, that for the purposes of this subsection 2.09 (b)(i),
the Receivables of each Removed Account shall be considered to
have been removed as of the Removal Date, (b) cause the
Transferor's Participation Amount to be less than the Required
Transferor Participation Amount on such Removal Date, (c) cause
the sum of the aggregate amount of Principal Receivables and
the Special Funding Amount to be less than the Required
Principal Balance, or (d) result in the failure to make any
payment specified in the related Supplement with respect to any
Series.
(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 B (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)
the designation and reassignment of such Receivables from
Removed Accounts will not (i) adversely affect the tax
characterization as debt of any Class of Investor Certificates
of any outstanding Series or Class in respect of which an
opinion was delivered at the time of issuance that such Class
would be treated as debt for U.S. federal income tax purposes,
(ii) cause the Trust following such designation and acceptance
to be deemed to be an association (or a "publicly traded
partnership" within the meaning of Section 7704(b) of the Code)
taxable as a corporation and (iii) cause or constitute a
taxable event in which gain or loss would be recognized by any
Investor Certificateholder or the Trust, (y) 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
(z)(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 or (II) the Removed Accounts are subject
to an arrangement with a third party pursuant to which such
third party has the right or the option to, purchase the
Removed Accounts and which right or option has arisen in
response to a third-party action or decision not to act and not
the unilateral action of the Transferor and such right or
option has been exercised by the third party;
(iv) As of the Removal Notice Date, either (a) the
Receivables are not more than 15% delinquent by estimated
principal amount and the weighted averaged delinquency of such
Receivables is not more than 60 days, or (b) the Receivables
are not more than 7% delinquent by estimated principal amount
and the weighted average delinquency of such Receivables does
not exceed 90 days.
(v) 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 written confirmation from
each Rating Agency that such removal will satisfy the Rating
Agency Condition; and
(vi) The Transferor shall have delivered to the Trustee an
Officer's Certificate confirming the items set forth in clauses
(i) through (v) 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 3. Amendment to SECTION 4.03(e). SECTION 4.03(e) of the
Pooling and Servicing Agreement shall be amended to read in its entirety as
follows:
(e) Unless otherwise provided in any Supplement, on the date on
which (i) a Receivable in an Account become a Defaulted Receivable,
(ii) an Account (a) with respect to which the card has been lost,
stolen or authorization prohibited, and (b) which has had an
outstanding balance of zero for at least six months, has been closed
by the Servicer, (iii) an Account (a) which has been designated by
the Servicer as "frozen", revoked or interest accrual prohibited,
and (b) which has had an outstanding balance of zero for at least
two months, has been closed by the Servicer, the Trust shall
automatically and without further action or consideration be deemed
to transfer, set over, and otherwise convey to the Transferor,
without recourse, representation or warranty, all the right, title
and interest of the Trust in and to such Defaulted Receivables and
Accounts with zero balances, including, with respect to Defaulted
Receivables, all right, title and interest in such Defaulted
Receivables, all monies due or to become due with respect to such
Defaulted Receivables, all proceeds of such Defaulted Receivables
and Insurance Proceeds relating to such Defaulted Receivables
allocable to the Trust with respect to such Defaulted Receivables.
Notwithstanding any such transfer of Defaulted Receivables and
Accounts, amounts recovered with respect to such Defaulted
Receivables shall still be allocated to the Trust to the extent
provided for in the definition of Recoveries.
SECTION 4. No Waiver. The execution and delivery of this First
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Amendment shall not constitute a waiver of a past default under the Pooling and
Servicing Agreement or impair any right consequent thereon.
SECTION 5. Pooling and Servicing Agreement in Full Force and Effect
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as Amended. Except as specifically amended or waived hereby, all of the terms
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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 6. Counterparts. This First Amendment may be executed
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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.
SECTION 7. GOVERNING LAW. THIS FIRST AMENDMENT SHALL BE CONSTRUED IN
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ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS, AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE IMMUNITY
AND STANDARD OF CARE OF THE TRUSTEE IN THE ADMINISTRATION OF THE TRUST
HEREUNDER SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 8. Effective Date. This First Amendment shall become
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effective as of the day and year first above written.
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.
CARD ACQUISITION FUNDING LLC
Transferor
By: /s/ Patricia Garvey
________________________________
Name: Patricia Garvey
Title: Vice President
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION
Servicer
By: /s/ Andrew T. Semmelman
________________________________
Name: Andrew T. Semmelman
Title: Senior Vice President
THE BANK OF NEW YORK
Trustee
By: /s/ Daniel Rothman
________________________________
Name: Daniel Rothman
Title: Assistant Vice President