Exhibit 99.01
SECOND AMENDMENT TO
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THE POOLING AND SERVICING AGREEMENT
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SECOND AMENDMENT TO POOLING AND SERVICING AGREEMENT, dated as of January 3,
2000 (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, as Trustee (in such
capacity, the "Trustee").
WHEREAS, The First National Bank of Commerce ("FNBC"), as Transferor and
Servicer and the Trustee, as successor trustee to The First National Bank of
Chicago pursuant to an Instrument of Resignation, Appointment and Acceptance,
dated as of September 23, 1998, have heretofore executed and delivered a Pooling
and Servicing Agreement, dated as of August 1, 1997, as assumed pursuant to the
Assignment and Assumption Agreement (the "Assumption Agreement"), dated as of
November 16, 1998, among First USA Bank, National Association, as the Assuming
Entity, FNBC, as Transferor and Servicer, and the Trustee (as so amended,
supplemented and assumed through the date hereof, including by the Merger
Assumption Agreement (the "Merger Assumption Agreement"), dated as of September
17, 1999, among First USA Bank, National Association, FCC National Bank, as
successor and the Trustee, 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;
WHEREAS, Section 13.1(a) of the Master Pooling and Servicing Agreement
provides that the Servicer, the Transferor and the Trustee, without the consent
of the Holders, may amend the Master Pooling and Servicing Agreement from time
to time so long as (i) the Trustee shall have received from the Transferor, an
Officer's Certificate to the effect that such amendment will not adversely
affect in any material respect the interests of the Investor Holders and (ii)
the Transferor, the Servicer and the Trustee shall have received from each
Rating Agency then rating the Investor Certificates, a written notification that
the Rating Agency Condition has been satisfied with respect to any outstanding
Series which it is then rating;
WHEREAS, the Trustee has received (i) from each Rating Agency, a letter
confirming the current rating of each outstanding Series and (ii) an Officer's
Certificate to the effect that such amendment will not adversely affect in any
material respect the interests of the Investor Holders; 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. Amendments to Section 1.1. (a) Section 1.1(b) of the
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Master Pooling and Servicing Agreement is hereby amended by deleting in its
entirety the phrase "amount of Interchange (if any)" and substituting in its
place "Interchange Amount"
(b) Section 1.1 of the Master Pooling and Servicing Agreement is
hereby amended by adding the following definition thereto in the proper order
therefor:
""Interchange Amount" means, for any Distribution Date, an
amount equal to the Collections of Principal Receivables for the Monthly Period
related to such Distribution Date, multiplied by 1.42%."
SECTION 2. Amendment to Section 2.1. Section 2.1 of the Master
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Pooling and Servicing Agreement is hereby amended by adding the following as the
last sentence of clause (d) thereof:
"The parties hereto intend to treat the transfer of
Receivables as a sale for accounting purposes."
SECTION 3. Amendment to Section 3.5. Section 3.5 of the Master
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Pooling and Servicing Agreement is hereby amended by deleting such Section in
its entirety and substituting therefor the following:
"On or before April 30 of each calendar year, the Servicer
will deliver, as provided in Section 13.5, to the Trustee, any Credit
Enhancement Provider and each Rating Agency, an Officer's Certificate
substantially in the form of Exhibit C stating that (a) a review of the
activities of the Servicer during the twelve-month period ending on December 31
of the immediately prior calendar year, or for the initial period, from the
Closing Date until December 31, 1997, and of its performance under this
Agreement was made under the supervision of the officer signing such
certificate, (b) to the best of such officer's knowledge, based on such review,
the
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Servicer has fully performed all its obligations under this Agreement throughout
such review period, or, if there has been a default in the performance of any
such obligation, specifying each such default known to such officer and the
nature and status thereof and (c) the report required to be delivered to the
Servicer by the independent certified public accountants pursuant to subsection
3.6(b) of this Agreement has been delivered to the Servicer, and such report
contains no exceptions, except for such exceptions as the independent certified
public accountants believe to be immaterial and such other exceptions as may be
set forth in such report and listed in such Officer's Certificate. A copy of
such Certificate may be obtained by any Investor Holder by a request in writing
addressed to the Trustee at the Corporate Trust Office."
SECTION 4. Amendments to Section 3.6. (a) Section 3.6 of the Master
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Pooling and Servicing Agreement is hereby amended by deleting "March 31" thereof
and substituting in its place "April 30";
(b) Section 3.6 is further amended by deleting in each instance
it appears, the phrase "to the financial statements of the Servicer";
(c) Section 3.6, subsection (b) of the Master Pooling and
Servicing Agreement is hereby further amended by deleting "and each Rating
Agency";
(d) Section 3.6, subsection (b) of the Master Pooling and
Servicing Agreement is hereby further amended by deleting the following in its
entirety:
"A copy of such report may be obtained by any Investor Holder by
a request in writing to Trustee addressed to the Corporate Trust Office."
(e) Section 3.6 of the Master Pooling and Servicing Agreement is
hereby further amended by deleting in each instance it appears within the
Section 3.6:
"or a portion thereof falling after the Initial Closing Date"
SECTION 5. Amendment to Section 13.5. Section 13.05(a) of the Master
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Pooling and Servicing Agreement is hereby amended by deleting "First National
Bank of Commerce, 201 Saint Charles Avenue, 29th Floor, New Orleans, Louisiana
70170, Attention: Michael A. Flick, Secretary " and substituting in its place
the following:
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"to First USA Bank, National Association, 201 North Walnut,
Wilmington, Delaware 19801, Attention: Peter Rogers, (facsimile no. (302)594-
4224), and to First USA Bank, National Association, 1601 Elm Street, 46th Floor,
Dallas, Texas 75201, Attention: Gavra Flood, (facsimile no. (214)849-2472), with
a copy to BANK ONE CORPORATION, One Bank One Plaza, Suite IL1-0460, Chicago,
Illinois 60670, Attention: Treasurer, (facsimile no.(312)732-4055)"
SECTION 6. Ratification of Master Pooling and Servicing Agreement. As
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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 7. Severability. If any one or more of the covenants,
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agreements, provisions or terms or portions thereof of this Amendment shall be
for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms or portions thereof shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Amendment and shall
in no way affect the validity or enforceability of the other provisions or
portions of this Amendment.
SECTION 8. Counterparts. This Amendment may be executed in one or
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more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
SECTION 9. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
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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.
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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/ Sharon Renchof
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Name: Sharon A. Renchof
Title: Vice President
THE BANK OF NEW YORK,
as Trustee
By: /s/ Eva Aryeetey
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Name: Eva Aryeetey
Title: Assistant Treasurer
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