EXHIBIT 10.2
[EXECUTION COPY]
AMENDMENT NO. 1 TO
ADMINISTRATION AGREEMENT
AMENDMENT NO. 1 TO ADMINISTRATION AGREEMENT, dated as of
November 18, 2003 (this "Amendment"), between FNANB CREDIT CARD MASTER NOTE
TRUST, a statutory trust organized under the laws of the State of Delaware, as
Issuer (in such capacity, the "Issuer"), and FLEET BANK (RI), NATIONAL
ASSOCIATION, a national banking association (the "Bank"), as Administrator.
PRELIMINARY STATEMENTS
WHEREAS, the Issuer and First North American National Bank, a
national banking association ("FNANB"), as Administrator, entered into an
Administration Agreement dated as of July 1, 2002 (the "Agreement");
WHEREAS, DC Funding International, Inc., a Delaware
corporation ("DC Funding"), as Transferor, and Wilmington Trust Company, a
Delaware banking corporation, as Owner Trustee (in such capacity, the "Owner
Trustee"), acknowledged and accepted the Agreement;
WHEREAS, FNANB, the Issuer and the Bank are parties to an
Instrument of Resignation and Appointment dated as of November 18, 2003 pursuant
to which FNANB has resigned as Administrator under the Agreement and the Bank
has been appointed as successor Administrator under the Agreement;
WHEREAS, DC Funding, as Transferor, FNANB, as Servicer, the
Bank, JPMorgan Chase Bank, a New York banking corporation, as Trustee, and the
Issuer are parties to an Assignment and Assumption Agreement dated as of
November 18, 2003 pursuant to which, among other things, DC Funding has assigned
to the Bank all of DC Funding's rights as Transferor under the Agreement and the
Bank has assumed the performance of every covenant and obligation of DC Funding
as Transferor under the Agreement;
WHEREAS, Section 11 of the Agreement provides that the Issuer
and the Bank, as Administrator and as Transferor, may amend the Agreement from
time to time, with the written consent of the Owner Trustee (as such and its
individual capacity) and the Holders of Notes evidencing not less than a
majority of the Outstanding Amount of the Notes, subject to certain limitations
set forth therein; and
WHEREAS, the Issuer and the Bank, as Administrator and as
Transferor, 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
party and for the benefit of the Noteholders:
Section 1. Definitions. All terms used in the Preliminary
Statements or elsewhere 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. Section 1 of the Agreement
is hereby amended by deleting paragraph (xv) of subsection (a) of such section
in its entirety and by substituting the following therefor:
(xv) the delivery of notice to the Indenture Trustee
and the Rating Agencies of each Event of Default and each default by
the Servicer or the Transferor under the Transfer and Servicing
Agreement (Section 3.18);
Section 3. Amendment of Section 10. Section 10 of the
Agreement is hereby amended by deleting such section in its entirety and by
substituting the following therefor (solely for convenience, changed text is
italicized):
Section 10. Notices. Any notice, report or other
communication given hereunder shall be in writing and addressed as
follows:
(a) if to the Issuer or the Owner Trustee, to
Wilmington Trust Company, Xxxxxx Square North, 0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust
Administration, telecopy number (000) 000-0000, telephone number (302)
636-6196, with a copy to the Administrator;
(b) if to the Administrator or the Transferor, to
Fleet Bank (RI), National Association, c/o Fleet Credit Card Services,
L.P., Mail Stop: PA EH 066 02L, 000 Xxxxx Xxxx Xxxx, Xxxxxxx,
Xxxxxxxxxxxx 00000, Attention: President, telecopy number (215)
000-0000, telephone number (000) 000-0000, with a copy to General
Counsel, Fleet Bank (RI), National Association, Mail Stop: PA EH 066
03S, 000 Xxxxx Xxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000, telecopy number
(000) 000-0000, telephone number (000) 000-0000; and
(c) if to the Indenture Trustee, to JPMorgan Chase
Bank, 4 New York Plaza, 6th Floor, New York, New York 10004, Attention:
ITS Structured Finance, telecopy number (000) 000-0000, telephone
number (000) 000-0000;
or to such other address as any party shall have provided to the other
parties in writing. Any notice required to be in writing hereunder
shall be deemed given if such notice is mailed by certified mail,
postage prepaid, or hand delivered to the address of such party as
provided above, except that notices to the Indenture Trustee, the
Transferor, the Administrator or the Issuer are effective only upon
receipt.
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Section 4. Amendment of Section 17. Section 17 of the
Agreement is hereby amended by deleting such section in its entirety and by
substituting the following therefor (solely for convenience, changed text is
italicized):
Section 17. Not Applicable to Fleet Bank (RI),
National Association in Other Capacities. Nothing in this Agreement
shall affect any obligation the Bank may have in any other capacity,
other than as Administrator.
Section 5. Amendment of Section 20. Section 20 of the
Agreement is hereby amended by deleting such section in its entirety and by
substituting the following therefor:
Section 20. Nonpetition Covenants. Notwithstanding
any prior termination of this Agreement, the Administrator shall not at
any time with respect to the Issuer or FNANB Credit Card Master Trust,
and the Issuer shall not at any time with respect to FNANB Credit Card
Master Trust, acquiesce, petition or otherwise invoke or cause the
Issuer or FNANB Credit Card Master Trust to invoke the process of any
court or government authority for the purpose of commencing or
sustaining a case against the Issuer or FNANB Credit Card Master Trust
under any Federal or state bankruptcy, insolvency or similar law or
appointing a receiver, conservator, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Issuer or
FNANB Credit Card Master Trust or any substantial part of their
respective properties, or ordering the winding up or liquidation of the
affairs of the Issuer or FNANB Credit Card Master Trust; provided,
however, that this Section 20 shall not operate to preclude any remedy
described in Article V of the Indenture.
Section 6. 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 7. 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 8. 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 9. 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.
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IN WITNESS WHEREOF, the Issuer and the Bank have caused this
Amendment to be duly executed by their respective officers as of the day and
year first above written.
FNANB CREDIT CARD MASTER NOTE TRUST,
as Issuer
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: /s/ Xxxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Assistant Vice President
FLEET BANK (RI), NATIONAL ASSOCIATION,
as Administrator and as Transferor
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Acknowledged and Accepted:
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Assistant Vice President
CONSENTED TO:
WILMINGTON TRUST COMPANY,
as Owner Trustee and in its
individual capacity
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Assistant Vice President
FNANB Bankcard Portfolio Sale
Amendment No. 1 to Administration Agreement
November 18, 2003
