EXHIBIT 4.1
[EXECUTION COPY]
AMENDMENT NO. 1 TO AMENDED AND RESTATED
MASTER POOLING AND SERVICING AGREEMENT
(FNANB CREDIT CARD MASTER TRUST)
AMENDMENT NO. 1 TO AMENDED AND RESTATED MASTER POOLING AND
SERVICING AGREEMENT, dated as of November 30, 2002 (this "Amendment"), among DC
FUNDING INTERNATIONAL, INC., a Delaware corporation, as Transferor (in such
capacity, the "Transferor"), FIRST NORTH AMERICAN NATIONAL BANK, a national
banking association, as Servicer (in such capacity, the "Servicer"), and
JPMORGAN CHASE BANK, a New York banking corporation and successor trustee to
First Union National Bank, as Trustee (in such capacity, the "Trustee").
PRELIMINARY STATEMENTS
WHEREAS, the Transferor, the Servicer and the Trustee are
parties to an Amended and Restated Master Pooling and Servicing Agreement dated
as of December 31, 2001 (the "Agreement");
WHEREAS, Section 13.1(b) of the Agreement provides that the
Servicer, the Transferor and the Trustee, without the consent of any of the
Certificateholders, may amend the Agreement from time to time, subject to
satisfaction of the conditions precedent set forth therein; and
WHEREAS, the parties hereto desire to amend the Agreement as
set forth herein;
NOW, THEREFORE, in consideration of the mutual agreements
contained herein, each party agrees as follows for the benefit of the other
parties and for the benefit of the Certificateholders:
Section 1. Definitions. All terms used in this Amendment that
are defined in the Agreement have the meanings assigned to them therein, except
to the extent such terms are amended or modified in this Amendment.
Section 2. Amendment of Section 1.1.
(a) Section 1.1 of the Agreement is hereby amended by adding
the following definition:
"Excess Recoveries" shall mean, with respect to any
Collection Period, all Recoveries received during such Collection
Period in excess of the Default Amount for such Collection Period
(calculated without deducting such Recoveries in calculating the
Default Amount for such Collection Period).
(b) Section 1.1 of the Agreement is hereby amended by deleting
the definitions of "Finance Charge Receivables", "Principal Receivables" and
"Recoveries" in their entirety and by substituting the following therefor
(solely for convenience, changed text is italicized):
"Finance Charge Receivables" shall mean (i)
Receivables created in respect of Finance Charges, cash advance fees,
annual fees, late charges, overlimit charges, returned check charges
and all other fees and charges on the Accounts (other than Insurance
Charges) and (ii) Discount Option Receivables. Collections of Finance
Charge Receivables with respect to any Collection Period shall be
deemed to include (i) all Excess Recoveries with respect to such
Collection Period, (ii) the Interchange Amount, if any, with respect to
such Collection Period and (iii) all interest and other investment
earnings (net of losses and investment expenses), if any, received
during such Collection Period on funds on deposit in the Excess Funding
Account.
"Principal Receivables" shall mean Receivables other
than Finance Charge Receivables, Receivables in Defaulted Accounts and
Discount Option Receivables. Collections of Principal Receivables with
respect to any Collection Period shall be deemed to include all
Recoveries received during such Collection Period (other than Excess
Recoveries with respect to such Collection Period).
"Recoveries" shall mean all amounts (including
Insurance Proceeds, if any) received by the Servicer with respect to
Receivables in Defaulted Accounts (net of any post-charge off
adjustments).
Section 3. Amendment of Exhibit K. Exhibit K to the Agreement
is hereby amended by deleting such exhibit in its entirety and by replacing it
with Exhibit K attached hereto.
Section 4. Incorporation of Agreement. The Agreement as
amended by this Amendment is hereby incorporated by reference and forms a part
of this instrument with the same force and effect as if set forth in full
herein. In the event that any term or provision contained herein shall conflict
or be inconsistent with any term or provision contained in the Agreement, the
terms and provisions of this Amendment shall govern. After the date hereof, any
reference to the Agreement shall mean the Agreement as amended by this
Amendment.
Section 5. Ratification of the Agreement. As amended by this
Amendment, the Agreement is in all respects ratified and confirmed, and the
Agreement and this Amendment shall be read, taken and construed as one and the
same instrument.
Section 6. Counterparts. This Amendment may be executed in two
or more counterparts (and by different parties on separate counterparts), each
of which shall be an original, but all of which together shall constitute one
and the same instrument.
Section 7. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS
LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Transferor, the Servicer and the
Trustee have caused this Amendment to be duly executed by their respective
officers as of the day and year first above written.
DC FUNDING INTERNATIONAL, INC.,
as Transferor
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Vice President
FIRST NORTH AMERICAN NATIONAL BANK,
as Servicer
By: /s/ Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: President
JPMORGAN CHASE BANK,
as Trustee
By: /s/ Xxxxxx Xxx
Name: Xxxxxx Xxx
Title: Trust Officer
