Exhibit 4.4
FORM OF THIRD AMENDMENT
TO
THE NATIONAL CITY CREDIT CARD MASTER TRUST
POOLING AND SERVICING AGREEMENT
THIS THIRD AMENDMENT TO THE NATIONAL CITY CREDIT CARD MASTER TRUST POOLING
AND SERVICING AGREEMENT, dated as of [ ], 200[ ] (this "Amendment") is by and
between NATIONAL CITY BANK, a national banking association, as Seller and
Servicer, and THE BANK OF NEW YORK (Delaware), a Delaware banking corporation,
as Trustee.
WHEREAS the Seller and Servicer and the Trustee have executed that certain
Pooling and Servicing Agreement, dated as of June 1, 1995, as amended and
restated as of July 1, 2000 (as amended and supplemented through the date hereof
and as the same may be further amended, supplemented or otherwise modified and
in effect from time to time, the "Pooling and Servicing Agreement");
WHEREAS the Seller 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 to amend the provisions of the
Pooling and Servicing Agreement as follows:
SECTION 1. Amendment of Section 1.01. Section 1.01 of the Pooling and
Servicing Agreement is hereby amended by adding the following definitions in the
appropriate alphabetical order:
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Regulation AB" shall mean Subpart 229.1100 -- Asset Backed Securities
(Regulation AB), 17 C.F.R. Sections 229.1100-229.1123, as such may be
amended from time to time, and subject to such clarification and
interpretation as have been provided by the Commission in the adopting
release (Asset-Backed Securities, Securities Act Release No. 33-8518, 70
Fed. Reg. 1,506, 1,531 (January 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to time.
"Sarbanes Certification" shall have the meaning specified in Section
14.04(iii).
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Securitization Transaction" shall mean any new issuance of Investor
Certificates, pursuant to Section 6.03, or new notes issued by the National
City Credit Card Master Note Trust, publicly offered or privately placed,
rated or unrated.
"Servicing Criteria" shall mean the "servicing criteria" set forth in
Item 1122(d) of Regulation AB, as such may be amended from time to time.
SECTION 2. Amendment of Section 3.05. Section 3.05 of the Pooling and
Servicing Agreement is hereby amended by deleting such Section in its entirety
and inserting in its place the following:
Section 3.05 Annual Servicer's Certificate. On or before March 15 of
each calendar year, commencing in 2007, the Servicer will deliver, as
provided in Section 13.05, to the Trustee, each Rating Agency and each
Series Enhancer entitled thereto pursuant to the relevant Supplement, the
statement of compliance required under Item 1123 of Regulation AB with
respect to the immediately preceding calendar year, which statement will be
in the form of an Officer's Certificate to the effect that (a) a review of
the activities of the Servicer during such preceding calendar year and of
its performance under this Agreement was made under the supervision of the
officer signing such certificate and (b) to the best of such officer's
knowledge, based on such review, the Servicer has fulfilled all its
obligations under this Agreement throughout such preceding calendar year
or, if there has been a failure to fulfill any such obligation in any
material respect, specifying each such failure known to such officer and
the nature and status thereof. A copy of such certificate may be obtained
by any Investor Certificateholder or Certificate Owner by a request to the
Trustee addressed to the Corporate Trust Office.
SECTION 3. Amendment of Section 3.06. Section 3.06 of the Pooling and
Servicing Agreement is hereby amended by deleting such Section in its entirety
and inserting in its place the following:
Section 3.06 Annual Independent Accountants' Servicing Report. On or before
March 15 of each calendar year, commencing in 2007, 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 the Seller) to furnish, as provided in Section 13.05, to the
Trustee, any Series Enhancer and each Rating Agency each attestation report
on assessments of compliance with the Servicing Criteria with respect to
the Servicer or any affiliate thereof during the immediately preceding
calendar year delivered by such accountants pursuant to Rule 13(a)-18 or
Rule 15(d)-18 of the Exchange Act and Item 1122 of Regulation AB. A copy of
such report (or reports, as applicable) may be obtained by any Investor
Certificateholder or Certificate Owner by a request to the Trustee
addressed to the Corporate Trust Office.
SECTION 4. Amendment of Section 6.03. Section 6.03(b) of the Pooling and
Servicing Agreement is hereby amended by the insertion of the following sentence
before the penultimate sentence of such Section:
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In addition, the Seller agrees to provide notice of new issuances of
Series of Investor Certificates as may be required by and in accordance
with Item 1121(a)(14) of Regulation AB.
SECTION 5. Amendment of Section 11.10. Section 11.10(a) of the Pooling and
Servicing Agreement is hereby amended by deleting the first sentence thereof in
its entirety and inserting in its place the following:
Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in
which any part of the Trust may at the time be located, the Trustee shall
have the power and may execute and deliver all instruments, subject to the
prior written consent of the Seller, to appoint one or more Persons to act
as a co-trustee or co-trustees, or separate trustee or separate trustees,
of all or any part of the Trust, and to vest in such Person or Persons, in
such capacity and for the benefit of the Certificateholders, such title to
the Trust, or any part thereof, and, subject to the other provisions of
this Section 11.10, such powers, duties, obligations, rights and trusts as
the Trustee may consider necessary or desirable; provided, however, that
the Trustee shall exercise due care in the appointment of any co-trustee.
SECTION 6. Addition of Article XIV. The Pooling and Servicing Agreement is
hereby amended by adding the following new Article XIV after Article XIII of the
Pooling and Servicing Agreement:
ARTICLE XIV
COMPLIANCE WITH REGULATION AB
Section 14.01. Intent of the Parties; Reasonableness. The Seller, the
Trustee and the Servicer acknowledge and agree that the purpose of this
Article XIV is to facilitate compliance by the Seller with the provisions
of Regulation AB and related rules and regulations of the Commission. The
Seller shall not exercise its right to request delivery of information or
other performance under these provisions other than in good faith, or for
purposes other than the Seller's compliance with the Securities Act, the
Exchange Act and the rules and regulations of the Commission thereunder (or
the provision in a private offering of disclosure comparable to that
required under the Securities Act). The Trustee agrees to cooperate in good
faith with any reasonable request by the Seller for information regarding
the Trustee which is required in order to enable the Seller to comply with
the provisions of Items 1103(a)(1), 1109(a), 1109(b), 1117, 1118, 1119 and
1122 of Regulation AB as it relates to the Trustee or to the Trustee's
obligations under this Agreement or any Supplement. The Servicer shall
cooperate fully with the Seller to deliver to the Seller (including any of
its assignees or designees), any and all statements, reports,
certifications, records and any other information necessary in the good
faith determination of the Seller to permit the Seller to comply with the
provisions of Regulation AB, together with such disclosures relating to the
Servicer and the Accounts, or the servicing of the Receivables, reasonably
believed by the Seller to be necessary in order to effect such compliance.
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Section 14.02. Additional Representations and Warranties of the
Trustee. The Trustee shall be deemed to represent to the Seller, as of the
date on which information is provided to the Seller under Section 14.03
that, except as disclosed in writing to the Seller prior to such date: (i)
neither the execution or the delivery by the Trustee of this Agreement or
any Supplement, the performance by the Trustee of its obligations under
this Agreement or any Supplement nor the consummation of any of the
transactions by the Trustee contemplated thereby, is in violation of any
indenture, mortgage, bank credit agreement, note or bond purchase
agreement, long-term lease, license or other agreement or instrument to
which the Trustee is a party or by which it is bound, which violation would
have a material adverse effect on the Trustee's ability to perform its
obligations under this Agreement or any Supplement, or of any judgment or
order applicable to the Trustee; and (ii) there are no proceedings pending
or threatened against the Trustee in any court or before any governmental
authority, agency or arbitration board or tribunal which, individually or
in the aggregate, would have a material adverse effect on the right, power
and authority of the Trustee to enter into this Agreement or any Supplement
or to perform its obligations under this Agreement or any Supplement.
Section 14.03. Information to Be Provided by the Trustee. The Trustee
shall (i) on or before the [[___] Business Day of each month], provide to
the Seller, in writing, such information regarding the Trustee as is
requested for the purpose of compliance with Item 1117 of Regulation AB,
and (ii) as promptly as practicable following notice to or discovery by the
Trustee of any changes to such information, provide to the Seller, in
writing, such updated information.
The Trustee shall (i) on or before the [___] Business Day of each
[_______], provide to the Seller such information regarding the Trustee as
is requested for the purpose of compliance with Items 1103(a)(1), 1109(a),
1109(b), 1118 and 1119 of Regulation AB, and (ii) as promptly as
practicable following notice to or discovery by the Trustee of any changes
to such information, provide to the Seller, in writing, such updated
information. Such information shall include, at a minimum:
(A) the Trustee's name and form of organization;
(B) a description of the extent to which the Trustee has had
prior experience serving as a trustee for asset-backed securities
transactions involving credit card receivables;
(C) a description of any affiliation or relationship between the
Trustee and any of the following parties to a Securitization
Transaction, as such parties are identified to the Trustee by the
Seller in writing in advance of such Securitization Transaction:
(1) the sponsor;
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(2) any depositor;
(3) the issuing entity;
(4) any servicer;
(5) any trustee;
(6) any originator;
(7) any significant obligor;
(8) any enhancement or support provider; and
(9) any other material transaction party.
(D) In connection with the above-listed parties, a description of
whether there is, and if so the general character of, any business
relationship, agreement, arrangement, transaction or understanding
that is entered into outside the ordinary course of business or is on
terms other than would be obtained in an arm's length transaction with
an unrelated third party, apart from the asset-backed securities
transaction, that currently exists or that existed during the past two
years and that is material to an investor's understanding of the
asset-backed securities.
Section 14.04. Report on Assessment of Compliance and Attestation. On
or before March [1] of each calendar year, commencing in 2007, the Trustee
shall:
(i) deliver to the Seller a report regarding the Trustee's
assessment of compliance with the Servicing Criteria during the
immediately preceding calendar year, as required under Rules 13a-18
and 15d-18 of the Exchange Act and Item 1122 of Regulation AB. Such
report shall be addressed to the Seller and signed by an authorized
officer of the Trustee, and shall address each of the Servicing
Criteria specified in Exhibit J hereto or such criteria as mutually
agreed upon by the Seller and the Trustee;
(ii) deliver to the Seller a report of a registered public
accounting firm reasonably acceptable to the Seller that attests to,
and reports on, the assessment of compliance made by the Trustee and
delivered pursuant to the preceding paragraph. Such attestation shall
be in accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X
under the Securities Act and the Exchange Act; and
(iii) deliver to the Seller and any other Person that will be
responsible for signing the certification (a "Sarbanes Certification")
required by Rules 13a-14(d) and 15d-14(d) under the Exchange Act
(pursuant to Section 302 of the Xxxxxxxx-Xxxxx Act of 2002) on behalf
of the Trust, National City Credit Card Master Note Trust or the
Seller with respect to a Securitization Transaction a certification
substantially in the form attached hereto as Exhibit I or such form as
mutually agreed upon by the Seller and the Trustee.
The Trustee acknowledges that the parties identified in clause (iii) above
may rely on the certification provided by the Trustee pursuant to such
clause in signing a Sarbanes Certification and filing such with the
Commission.
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SECTION 7. Addition of Exhibits I and J to Pooling and Servicing Agreement.
The Pooling and Servicing Agreement is hereby amended by adding new Exhibits I
and J, in their respective forms attached hereto, after Exhibit H to the Pooling
and Servicing Agreement.
SECTION 8. Effectiveness. The amendments provided for by this Amendment
shall become effective upon receipt by the Trustee of the following:
(a) Notification in writing from each Rating Agency to the effect that
the terms of this Amendment will not result in a reduction or withdrawal of
the rating of any outstanding Series or Class of Investor Certificates to
which it is a Rating Agency.
(b) An Officer's Certificate from the Seller delivered to the Trustee
to the effect that the Seller reasonably believes the terms of this
Amendment will not adversely affect in any material respect the interests
of any Investor Certificateholder.
(c) Counterparts of this Amendment, duly executed by the parties
hereto.
SECTION 9. 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 Amendment. This 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
Amendment, as though the terms and obligations of the Pooling and Servicing
Agreement were set forth herein.
SECTION 10. Counterparts. This Amendment may be 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 11. Governing Law; Submission to Jurisdiction; Agent for Service of
Process. This Amendment shall be governed by and construed in accordance with
the laws of the State of Delaware, without regard to principles of conflict of
laws. The parties hereto declare that it is their intention that this Amendment
shall be regarded as made under the laws of the State of Delaware and that the
laws of said State shall be applied in interpreting its provisions in all cases
where legal interpretation shall be required. Each of the parties hereto agrees
(a) that this Amendment involves at least $100,000.00, and (b) that this
Amendment has been entered into by the parties hereto in express reliance upon 6
DEL. C. Section 2708. Each of the parties hereto hereby irrevocably and
unconditionally agrees (a) to be subject to the jurisdiction of the courts of
the State of Delaware and of the federal courts sitting in the State of
Delaware, and (b)(1) to the extent such party is not otherwise subject to
service of process in the State of Delaware, to appoint and maintain an agent in
the State of Delaware as such party's agent for acceptance of
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legal process, and (2) that, to the fullest extent permitted by applicable law,
service of process may also be made on such party by prepaid certified mail with
a proof of mailing receipt validated by the United States Postal Service
constituting evidence of valid service, and that service made pursuant to (b)(1)
or (2) above shall, to the fullest extent permitted by applicable law, have the
same legal force and effect as if served upon such party personally within the
State of Delaware.
SECTION 12. Defined Terms and Section References. Capitalized terms used
herein and not otherwise defined shall have the meanings assigned to such terms
in the Pooling and Servicing Agreement. All Section or subsection references
herein shall mean Sections or subsections of the Pooling and Servicing
Agreement, except as otherwise provided herein.
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IN WITNESS WHEREOF, the Seller, 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.
NATIONAL CITY BANK,
AS SELLER AND SERVICER
By: ___________________________
Name:
Title:
THE BANK OF NEW YORK (DELAWARE),
AS TRUSTEE
By: ___________________________
Name:
Title:
EXHIBIT I
FORM OF ANNUAL CERTIFICATION
Re: The pooling and servicing agreement dated as of June 1, 1995, as
Amended and Restated as of July 1, 2000 (as amended, supplemented or
otherwise modified from time to time, the "Agreement"), between
National City Bank, a national banking association, as seller (the
"Seller") and servicer, and The Bank of New York (Delaware), a
Delaware banking corporation, as trustee.
I, ______________________, the _______________________ of [NAME OF COMPANY]
(the "Company"), certify to the Seller and its officers, with the knowledge and
intent that they will rely upon this certification, that:
(1) I have reviewed the report on assessment of the Company's
compliance provided in accordance with Rules 13a-18 and 15d-18 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and Item
1122 of Regulation AB (the "Servicing Assessment"), and the registered
public accounting firm's attestation report provided in accordance with
Rules 13a-18 and 15d-18 under the Exchange Act and Section 1122(b) of
Regulation AB (the "Attestation Report") that were delivered by the Company
to the Seller pursuant to the Agreement (collectively, the "Company
Information");
(2) To the best of my knowledge, the Company Information, taken as a
whole, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in the light
of the circumstances under which such statements were made, not misleading
with respect to the period of time covered by the Company Information;
(3) To the best of my knowledge, all of the Company Information
required to be provided by the Company under the Agreement has been
provided to the Seller; and
(4) To the best of my knowledge, except as disclosed in the Compliance
Statement, the Servicing Assessment or the Attestation Report, the Company
has fulfilled its obligations under the Agreement.
Date: ___________________________
By: ______________________________
Name:
Title:
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EXHIBIT J
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by the Trustee shall
address, at a minimum, the criteria identified as below as "Applicable Servicing
Criteria":
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SERVICING CRITERIA APPLICABLE SERVICING
CRITERIA
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REFERENCE CRITERIA
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GENERAL SERVICING CONSIDERATIONS
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1122(d)(1)(i) Policies and procedures are instituted to monitor any
performance or other triggers and events of default in
accordance with the transaction agreements.
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1122(d)(1)(ii) If any material servicing activities are outsourced to
third parties, policies and procedures are instituted to
monitor the third party's performance and compliance with
such servicing activities.
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1122(d)(1)(iii) Any requirements in the transaction agreements to maintain
a back-up servicer for the credit card accounts or accounts
are maintained.
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1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in
effect on the party participating in the servicing function
throughout the reporting period in the amount of coverage
required by and otherwise in accordance with the terms of
the transaction agreements.
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CASH COLLECTION AND ADMINISTRATION
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1122(d)(2)(i) Payments on credit card accounts are deposited into the
appropriate custodial bank accounts and related bank
clearing accounts no more than two business days following
receipt, or such other number of days specified in the
transaction agreements.
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1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to
an investor are made only by authorized personnel.
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1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash
flows or distributions, and any interest or other fees
charged for such advances, are made, reviewed and approved
as specified in the transaction agreements.
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The related accounts for the transaction, such as cash
reserve accounts or accounts established as a form of
overcollateralization, are separately maintained (e.g.,
with respect to commingling of cash) as set forth in the
transaction
1122(d)(2)(iv) agreements.
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1122(d)(2)(v) Each custodial account is maintained at a federally insured
depository institution as set forth in the transaction
agreements. For purposes of this criterion, "federally
insured depository institution" with respect to a foreign
financial institution means a foreign financial institution
that meets the requirements of Rule 13k-1(b)(1) of the
Securities Exchange Act.
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1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized
access.
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1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all
asset-backed securities related bank accounts, including custodial
accounts and related bank clearing accounts. These reconciliations
are (A) mathematically accurate; (B) prepared within 30 calendar
days after the bank statement cutoff date, or such other number of
days specified in the transaction agreements; (C) reviewed and
approved by someone other than the person who prepared the
reconciliation; and (D) contain explanations for reconciling
items. These reconciling items are resolved within 90 calendar
days of their original identification, or such other number of days
specified in the transaction agreements.
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SERVICING CRITERIA APPLICABLE SERVICING
CRITERIA
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REFERENCE CRITERIA
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INVESTOR REMITTANCES AND REPORTING
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1122(d)(3)(i) Reports to investors, including those to be filed with the
Commission, are maintained in accordance with the transaction
agreements and applicable Commission requirements. Specifically,
such reports (A) are prepared in accordance with timeframes and
other terms set forth in the transaction agreements; (B) provide
information calculated in accordance with the terms specified in
the transaction agreements; (C) are filed with the Commission as
required by its rules and regulations; and (D) agree with
investors' or the trustee's records as to the total unpaid
principal balance and number of credit card accounts serviced by
the Servicer.
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1122(d)(3)(ii) Amounts due to investors are allocated and remitted in
accordance with timeframes, distribution priority and other
terms set forth in the transaction agreements.
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Disbursements made to an investor are posted within two
business days to the Servicer's investor records, or such
other number of
1122(d)(3)(iii) days specified in the transaction agreements.
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Amounts remitted to investors per the investor reports
agree with cancelled checks, or other form of payment, or
custodial bank
1122(d)(3)(iv) statements.
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POOL ASSET ADMINISTRATION
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1122(d)(4)(i) Collateral or security on credit card accounts is
maintained as required by the transaction agreements or
related asset pool documents.
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Account and related documents are safeguarded as required by the
1122(d)(4)(ii) transaction agreements
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1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool
are made, reviewed and approved in accordance with any
conditions or requirements in the transaction agreements.
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1122(d)(4)(iv) Payments on credit card accounts, including any payoffs, made in
accordance with the related credit card accounts documents are
posted to the Servicer's obligor records maintained no more than
two business days after receipt, or such other number of days
specified in the transaction agreements, and allocated to
principal, interest or other items (e.g., escrow) in accordance
with the related asset pool documents.
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1122(d)(4)(v) The Servicer's records regarding the accounts and the
accounts agree with the Servicer's records with respect to
an obligor's unpaid principal balance.
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1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's
account (e.g., loan modifications or re-agings) are made,
reviewed and approved by authorized personnel in accordance
with the transaction agreements and related pool asset
documents.
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1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance
plans, modifications and deeds in lieu of foreclosure,
foreclosures and repossessions, as applicable) are
initiated, conducted and concluded in accordance with the
timeframes or other requirements established by the
transaction agreements.
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1122(d)(4)(viii) Records documenting collection efforts are maintained during the
period a Account is delinquent in accordance with the transaction
agreements. Such records are maintained on at least a monthly
basis, or such other period specified in the transaction
agreements, and describe the entity's activities in monitoring
delinquent Accounts including, for example, phone calls, letters
and payment rescheduling plans in cases where delinquency is deemed
temporary (e.g., illness or unemployment).
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1122(d)(4)(ix) Adjustments to interest rates or rates of return for
Accounts with variable rates are computed based on the
related Account documents.
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1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow
accounts): (A) such funds are analyzed, in accordance with the
obligor's Account documents, on at least an annual basis, or such
other period specified in the transaction agreements; (B) interest
on such funds is paid, or credited, to obligors in accordance with
applicable Account documents and state laws; and (C) such funds are
returned to the obligor within 30 calendar days of full repayment
of the related Accounts, or such other number of days specified in
the transaction agreements.
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SERVICING CRITERIA APPLICABLE SERVICING
CRITERIA
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REFERENCE CRITERIA
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1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or
insurance payments) are made on or before the related
penalty or expiration dates, as indicated on the
appropriate bills or notices for such payments, provided
that such support has been received by the servicer at
least 30 calendar days prior to these dates, or such other
number of days specified in the transaction agreements.
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1122(d)(4)(xii) Any late payment penalties in connection with any payment
to be made on behalf of an obligor are paid from the
servicer's funds and not charged to the obligor, unless the
late payment was due to the obligor's error or omission.
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Disbursements made on behalf of an obligor are posted
within two business days to the obligor's records
maintained by the servicer, or such other number of days
specified in the transaction
1122(d)(4)(xiii) agreements.
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1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are
recognized and recorded in accordance with the transaction
agreements.
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Any external enhancement or other support, identified in
Item 1114(a)(1) through (3) or Item 1115 of Regulation AB,
is maintained
1122(d)(4)(xv) as set forth in the transaction agreements.
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[NAME OF TRUSTEE]
Date: ____________________________
By: ______________________________
Name:
Title:
