EXHIBIT 4.3 - FORM OF COLLATERAL SERIES SUPPLEMENT
_______________________________________________________________________________
____________________________________________
COLLATERAL SERIES SUPPLEMENT
Dated as of ___________, 2002
to
AMENDED AND RESTATED
MASTER POOLING AND SERVICING AGREEMENT
Dated as of December 31, 2001
____________________________________________
DC FUNDING INTERNATIONAL, INC.,
Transferor,
FIRST NORTH AMERICAN NATIONAL BANK,
Servicer,
and
JPMORGAN CHASE BANK,
Trustee
on behalf of the Collateral Certificateholder
____________________________________________
$[___]
FNANB CREDIT CARD MASTER TRUST
COLLATERAL SERIES
____________________________________________
_______________________________________________________________________________
TABLE OF CONTENTS
Page
SECTION 1. Designation ...................................................................... 1
SECTION 2. Definitions ...................................................................... 2
SECTION 3. Reassignment and Transfer Terms .................................................. 4
SECTION 4. Delivery and Payment for the Collateral Certificates ............................. 5
SECTION 5. Form of Delivery of Collateral Certificates ...................................... 5
SECTION 6. Article IV of Agreement .......................................................... 6
SECTION 7. Early Amortization Events and Events of Default .................................. 6
SECTION 8. Modification to and Ratification of Agreement .................................... 6
SECTION 9. Counterparts ..................................................................... 7
SECTION 10. Governing Law .................................................................... 7
SECTION 11. No Petition ...................................................................... 7
-i-
COLLATERAL SERIES SUPPLEMENT dated as of _____________, 2002 (this
"Series Supplement"), among DC FUNDING INTERNATIONAL, INC., a Delaware
corporation, as Transferor, FIRST NORTH AMERICAN NATIONAL BANK, a national
banking association, as Servicer, and JPMorgan Chase Bank, a New York banking
corporation, as Trustee under the Amended and Restated Master Pooling and
Servicing Agreement dated as of December 31, 2001, among the Transferor, the
Transferor under the Prior Agreement, the Servicer and the Trustee (the
"Agreement").
PRELIMINARY STATEMENTS
WHEREAS, DC Funding, as Transferor, FNANB as Transferor under the Prior
Agreement (as defined therein) and as Servicer, and the Trustee are parties to
the Agreement;
WHEREAS, Section 6.9 provides, among other things, that DC Funding and
the Trustee may at any time and from time to time enter into one or more
supplements to the Agreement for the purpose of authorizing the issuance of one
or more new Series of Investor Certificates; and
WHEREAS, DC Funding and FNANB are entering into this Series Supplement
with the Trustee to provide for the issuance of a new Series of Investor
Certificates;
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, DC Funding, FNANB and the Trustee hereby agree as follows:
SECTION 1. Designation. There is hereby created a Series of
Investor Certificates to be issued pursuant to the Agreement and this Series
Supplement to be known as the "Collateral Certificates." The Transferor and the
Servicier each hereby enter into this Series Supplement with the Trustee as
required by Section 6.9(c) of the Agreement to provide for the issuance,
authentication and delivery of the Collateral Certificates. The Collateral
Certificates will be transferred by the Transferor to FNANB Credit Card Master
Note Trust (the "Note Trust") pursuant to a Transfer and Servicing Agreement
dated as of ___________, 2002 (the "Transfer and Servicing Agreement") among the
Transferor, the Servicer and the Note Trust. The Note Trust will pledge the
Collateral Certificates as collateral for one or more series of notes (each, a
"Note Series") to be issued by the Note Trust pursuant to a Master Indenture
dated as of __________, 2002 between the Note Trust and ____________________, as
indenture trustee, and one or more supplements to the Master Indenture (each, an
"Indenture Supplement" and, together with the Master Indenture referred to
above, the "Indenture"). The portions of the Collateral Certificates primarily
securing each Note Series shall be treated as separate Series (each, a
"Collateral Series") under the Agreement and this Series Supplement. Certain
terms pertaining to each Collateral Series will be defined in the applicable
Indenture
-1-
Supplements (but are hereby incorporated by reference into this Series
Supplement), including whether such Collateral Series is a Principal Sharing
Series, whether such Collateral Series is one of the Series of Group One and the
Minimum Transferor Interest Percentage and Minimum Aggregate Principal
Receivables for such Collateral Series. Unless and until the Trust has been
terminated as permitted by Section 3(b) of this Series Supplement: (a) each
Indenture Supplement executed and delivered by the Note Trust shall be deemed to
supplement this Series Supplement; (b) a new Collateral Series shall be deemed
to be issued upon the issuance of each Note Series and shall have the same
designation (e.g., Series 2002-A) and Classes and belong to the same Group as
the related Note Series; (c) the amounts payable as interest and principal on
such Collateral Series shall equal the aggregate of the amounts payable on the
related Note Series and shall be payable at the times and in the amounts
specified in the Indenture Supplement for such Note Series, (d) all amounts
available and applied as credit enhancement with respect to such Note Series
shall be deemed to be available and applied as credit enhancement with respect
to such Collateral Series; (e) all amounts payable to the Transferor pursuant to
the related Indenture Supplement shall be deemed to be payable to the Transferor
pursuant to this Series Supplement; and (f) the conditions defined in Section
6.9 of the Agreement for issuance of new Series must be satisfied in connection
with each issuance of a Note Series. The provisions of Section 6.9(b) of the
Agreement with respect to the delivery of an Opinion of Counsel to the effect
that a newly issued Series of Investor Certificates will be characterized as
either indebtedness or an interest in a partnership (that is not taxable as a
corporation) under existing law for federal income tax purposes shall not be
applicable to the Collateral Certificates.
SECTION 2. Definitions. If any term or provision contained herein
shall conflict with or be inconsistent with any term or provision contained in
the Agreement, the terms and provisions of this Series Supplement shall govern.
All Article, Section or subsection references herein shall mean Article, Section
or subsections of the Agreement, as amended or supplemented by this Series
Supplement, except as otherwise provided herein. All capitalized terms not
otherwise defined herein are used herein as defined in the Agreement. Unless
otherwise stated herein, as the context requires or if such term is defined in
the Agreement, each capitalized term defined herein shall relate only to the
Collateral Certificates and no other Series of Certificates issued by the Trust.
"Accumulation Period" is defined (if at all), for any Collateral Series
or related Class, in the related Indenture Supplement.
"Amortization Period" has the meaning specified in the Agreement;
provided, however, that for purposes of that definition and any Collateral
Series, any additional type of amortization period may be specified in the
related Indenture Supplement.
-2-
"Business Day" has the meaning specified in the Agreement; provided,
however, that, for purposes of that definition and any Collateral Series, any
additional city may be specified in the related Indenture Supplement.
"Certificate Rate" means, for any Class of any Collateral Series, the
rate per annum (or the formula on the basis of which such rate shall be
determined) specified for the corresponding Class of the related Note Series in
the related Indenture Supplement.
"Closing Date" means, for any Collateral Series, the "Closing Date" for
the related Note Series, as defined in the related Indenture Supplement.
"Collateral Certificates" is defined in Section 1 of this Series
Supplement.
"Collateral Series" is defined in Section 1 of this Series Supplement.
"Collection Period" is defined in the Agreement, except as may be
otherwise specified for any Collateral Series in the related Indenture
Supplement.
"Controlled Amortization Period" is defined (if at all), for any
Collateral Series or related Class, in the related Indenture Supplement.
"Determination Date" has the meaning specified in the Agreement, except
as may be otherwise specified for any Collateral Series in the related Indenture
Supplement.
"Distribution Date" has the meaning specified in the Agreement, except
as may be otherwise specified for any Collateral Series in the related Indenture
Supplement.
"Early Amortization Period" is defined (if at all), for any Collateral
Series or related Class, in the related Indenture Supplement.
"Enhancement" is defined in the Agreement, except as may be otherwise
specified for any Collateral Series in the related Indenture Supplement.
"Enhancement Invested Amount" is defined (if at all), for any
Collateral Series or related Class, in the related Indenture Supplement.
"Enhancement Provider" is defined (if at all), for any Collateral
Series or related Class, in the related Indenture Supplement.
"Finance Charge Shortfall" means, for any Collateral Series, the
Finance Charge Shortfall for the related Note Series, as defined in the related
Indenture Supplement.
-3-
"Fixed Allocation Percentage" means, for any Collateral Series, the
"Fixed Allocation Percentage" for the related Note Series as defined in the
related Indenture Supplement.
"Floating Allocation Percentage" means, for any Collateral Series, the
"Floating Allocation Percentage" for the related Note Series as defined in the
related Indenture Supplement.
"Indenture" is defined in Section 1 of this Series Supplement.
"Indenture Supplement" is defined in Section 1 of this Series
Supplement.
"Initial Invested Amount" means, for any Collateral Series, the
"Initial Invested Amount" for the related Note Series as defined in the related
Indenture Supplement.
"Invested Amount" means, for any Collateral Series, the "Invested
Amount" for the related Note Series as defined in the related Indenture
Supplement.
"Invested Percentage" means, for any Collateral Series, the "Invested
Percentage" for the related Note Series as defined in the related Indenture
Supplement.
"Investor Certificate" means a Collateral Certificate.
"Investor Charge Offs" means, for any Collateral Series, the "Investor
Charge Offs" for the related Note Series as defined in the related Indenture
Supplement.
"Investor Default Amount" means, for any Collateral Series, the
"Investor Default Amount" for the related Note Series as defined in the related
Indenture Supplement.
"Investor Monthly Servicing Fee" means, for any Collateral Series, the
"Investor Monthly Servicing Fee" for the related Note Series as defined in the
related Indenture Supplement.
"Issuer" is defined in the Indenture.
"Note Series" is defined in Section 1 of this Series Supplement.
"Note Trust" is defined in Section 1 of this Series Supplement.
"Principal Amortization Period" is defined (if at all), for any
Collateral Series or related Class, in the related Indenture Supplement.
-4-
"Principal Shortfall" means, for any Collateral Series, the "Principal
Shortfall" for the related Note Series, as defined in the related Indenture
Supplement.
"Record Date" is defined in the Agreement, except as may be otherwise
specified for any Collateral Series in the related Indenture Supplement.
"Servicing Fee Percentage" means, for any Collateral Series, the
"Servicing Fee Percentage" for the related Note Series, as defined in the
related Indenture Supplement.
"Shared Excess Finance Charge Collections" means, for any Collateral
Series, all amounts identified as such in the related Indenture Supplement.
"Shared Principal Collections" means, for any Collateral Series, all
amounts identified as such in the related Indenture Supplement.
"Stated Series Termination Date" means, for any Collateral Series, the
Final Series Maturity Date for the related Note Series defined in the related
Indenture Supplement.
"Transfer and Servicing Agreement" is defined in Section 1 of this
Series Supplement.
SECTION 3. Reassignment and Transfer Terms.
(a) If the Transferor purchases, redeems or prepays any Note
Series pursuant to an optional redemption provision under the related Indenture
Supplement, then the related Collateral Series shall be deemed to have been
retired. Upon the termination of any Note Series pursuant to the Indenture, the
related Collateral Series shall also terminate.
(b) Once each Series of Certificates issued under the Agreement
has been retired, other than the Collateral Series and any other Series the
requisite holders of which have consented to the following transactions, the
holder of the Transferor Interest shall have the option to transfer the
Transferor Interest to the Note Trust, upon which transfer the Trust shall
terminate, and all of the Trust Assets shall be distributed to the Note Trust,
as holder of all of the beneficial interests in the Trust; provided that such
termination shall not take effect until the Transferor has delivered to the
Indenture Trustee (ii) an amendment to the Receivables Purchase Agreement to
appropriately change references to the Trust, the Agreement and the Trustee and
(ii) favorable legal opinions as to (A) the enforceability of any documents
executed by the Transferor in connection with such termination, (B) the validity
and priority of the security interest in the Receivables and the proceeds
thereof granted by the Transferor to Issuer pursuant to the Transfer and
Servicing Agreement, on terms substantially similar to the most recent legal
opinion delivered by the Transferor's counsel as to
-5-
the validity and priority of the security interest granted by the Transferor
to the Trust in connection with the then most recently issued Note Series and
(C) that such transaction will not have any material adverse impact on the
Federal income tax characterization of any outstanding Note Series or Class
thereof that has been the subject of a previous opinion of tax counsel or result
in the Note Trust being taxable as an association or as a publicly traded
partnership taxable as a corporation for Federal or applicable state tax
purposes.
SECTION 4. Delivery and Payment for the Collateral Certificates.
The Trustee shall deliver the Collateral Certificates when authenticated in
accordance with Section 6.2 of the Agreement. For convenience, the Collateral
Certificate shall be registered in the name of Indenture Trustee,
notwithstanding that the Collateral Certificate shall have been initially issued
to the Transferor, transferred by the Transferor to Issuer pursuant to the
Transfer and Servicing Agreement and pledged by Issuer to Indenture Trustee
pursuant to the Master Indenture.
SECTION 5. Form of Delivery of Collateral Certificates.
(a) The Collateral Certificates shall be delivered as
Registered Certificates, substantially in the form of Exhibit A hereto.
(b) Each Collateral Certificate shall constitute a "security"
within the meaning of (i) Article 8 of the Uniform Commercial Code (including
Section 8-102(a)(15) thereof) as in effect from time to time in the State of
Delaware and (ii) the Uniform Commercial Code of any other applicable
jurisdiction that presently or hereafter substantially includes the 1994
revisions to Article 8 thereof as adopted by the American Law Institute and the
National Conference of Commissioners on Uniform State Laws and approved by the
American Bar Association on February 14, 1995.
(c) For purposes of voting with respect to any consent or other
matter under the Agreement or this Series Supplement, each class of notes
included in any Note Series shall be deemed to be a Class of Certificates in the
related Collateral Series, and the provisions for voting by beneficial owners of
such notes specified in the Indenture shall apply mutatis mutandis to voting
under the Agreement and this Series Supplement.
(d) The Collateral Certificates may not be sold, participated,
transferred, assigned or otherwise pledged or conveyed in whole or in part
except as provided in the Transfer and Servicing Agreement and the Indenture.
SECTION 6. Article IV of Agreement. Any provisions of Article IV
of the Agreement which provide for the distribution of Collections to the
Transferor on the basis of the Transferor Percentage shall continue to apply
irrespective of the issuance of the Collateral Certificates. Section 4.1 of the
-6-
Agreement shall read in its entirety as provided in the Agreement. The remainder
of Article IV of the Agreement shall read in its entirety as follows and shall
be applicable only to the Collateral Certificates:
ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND
ALLOCATION AND APPLICATION OF COLLECTIONS
Section 4.2 Allocations. The Servicer shall, prior to the close of
business on the day any Collections are deposited in the Collection Account,
allocate from the Collection Account to the Collateral Series related to each
Note Series the amounts specified in the related Indenture Supplement, which
amounts shall be deposited or otherwise applied as provided in such Indenture
Supplement.
SECTION 7. Early Amortization Events and Events of Default. In
addition to the Early Amortization Events specified in Section 9.1 of the
Agreement, the Early Amortization Events applicable to each Collateral Series
shall be the Early Amortization Events specified in the related Indenture
Supplement, as well as the Early Amortization Events specified in the Indenture.
In addition, each Note Series will have the benefit of applicable "Events of
Default," as defined in the Indenture. Upon the occurrence of an applicable
Event of Default, the Indenture Trustee shall have the right to foreclose upon a
portion of the Receivables, as defined (and subject to the limitations stated)
in the Indenture notwithstanding the continuing existence of the Trust, and the
Trustee shall cooperate with the Indenture Trustee in the exercise of such
right.
SECTION 8. Modification to and Ratification of Agreement. For
purposes of this Supplement and each Collateral Series:
(a) Notwithstanding anything to the contrary in Section 3.2 of the
Agreement, the Servicing Fee payable with respect to each Note Series and the
related Collateral Series shall be solely as set forth in the related Indenture
Supplement; and
(b) Sections 3.7 and 12.2(c) shall not be applicable to any Collateral
Series.
In addition, to the extent that the terms of this Series Supplement
(directly or as supplemented by any Indenture Supplement) are deemed to be
inconsistent with the terms of the Agreement, this Series Supplement shall be
deemed to modify or amend the terms of the Agreement solely as applied to each
Collateral Series affected by any such inconsistency, as permitted by Section
6.9(c) of the Agreement. Otherwise, as supplemented by this Series Supplement
(and the various Indenture Supplements executed form time to time), the
Agreement is in all respects ratified and confirmed and the Agreement as so
amended and supplemented by this Series Supplement shall be read, taken and
construed as one
-7-
and the same instrument; provided, however, that pursuant to Section 9.2(a) of
the Agreement, the Trustee shall sell the portion of the Receivables allocable
to each Collateral Series unless instructed not to sell, dispose of or otherwise
liquidate the Receivables by holders of interests aggregating more than 50% of
each Class of each Series (including a majority in interest in each collateral
indebtedness interest or collateralized trust obligation), each holder of an
interest in the Transferor Interest other than the Transferor and any other
Person specified in a Supplement.
SECTION 9. Counterparts. This Series Supplement may be executed
in any number of counterparts, each of which so executed shall be deemed to be
an original, but all of such counterparts shall together constitute but one and
the same instrument.
SECTION 10. Governing Law. THIS SERIES SUPPLEMENT 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.
-8-
IN WITNESS WHEREOF, the parties have caused this Series Supplement to
be duly executed by their respective officers as of the day and year first above
written.
DC FUNDING INTERNATIONAL, INC.,
as Transferor
By: _____________________________________
Name:
Title:
FIRST NORTH AMERICAN NATIONAL BANK
as Servicer
By: _____________________________________
Name:
Title:
JPMORGAN CHASE BANK,
as Trustee
By: _____________________________________
Name:
Title
-9-
EXHIBIT A
to
COLLATERAL SERIES SUPPLEMENT
FORM OF COLLATERAL CERTIFICATE
No.
FNANB CREDIT CARD MASTER TRUST
COLLATERAL CERTIFICATE
Evidencing an undivided interest in the FNANB Credit Card Master Trust, the
corpus of which consists of a portfolio of receivables created under credit card
accounts originated by FIRST NORTH AMERICAN NATIONAL BANK ("FNANB") and other
assets and interests constituting the trust under the Pooling and Servicing
Agreement described below.
(Not an interest in or obligation of FNANB or DC Funding International, Inc.)
This certifies that ____________________ (the "Certificateholder") is
the registered owner of an undivided interest in the FNANB Credit Card Master
Trust (the "Trust"), the corpus of which consists of a portfolio of receivables
(the "Receivables") now existing or hereafter created under certain credit card
accounts originated by FNANB and transferred to the Trust, all monies due or to
become due with respect thereto and the other assets and interests constituting
the Trust pursuant to the Amended and Restated Master Pooling and Servicing
Agreement, dated as of December 31, 2001, as amended and supplemented, including
by the Collateral Series Supplement, dated as of __________, 2002 (collectively,
the "Pooling and Servicing Agreement"), among DC FUNDING INTERNATIONAL, INC., as
Transferor, FNANB, as Servicer, and JPMORGAN CHASE BANK, as Trustee.
THIS COLLATERAL CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN
INTEREST IN, FNANB OR DC FUNDING INTERNATIONAL, INC., A DELAWARE CORPORATION,
AND NONE OF THIS COLLATERAL CERTIFICATE, THE RECEIVABLES AND THE ACCOUNTS IS
INSURED OR GUARANTEED BY THE FDIC OR ANY OTHER GOVERNMENTAL AGENCY. THIS
COLLATERAL CERTIFICATE IS LIMITED IN RIGHT OF PAYMENT TO CERTAIN COLLECTIONS
WITH RESPECT TO THE RECEIVABLES, ALL AS MORE SPECIFICALLY SET FORTH IN THE
POOLING AND SERVICING AGREEMENT.
To the extent not defined herein, capitalized terms used herein have
the meanings assigned in the Pooling and Servicing Agreement. This Collateral
Certificate is issued under and is subject to the terms, provisions and
conditions of
the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement,
as amended from time to time, the Certificateholder by virtue of its acceptance
hereof assents and by which the Certificateholder is bound.
This Certificate represents a series of Certificates entitled
"Collateral Certificates" (the "Collateral Certificates"), which represents an
undivided interest in the Trust.
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee, by manual or facsimile signature of a duly authorized
signatory, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
-2-
IN WITNESS WHEREOF, the Transferor has caused this Collateral
Certificate to be duly executed under its official seal.
DC FUNDING INTERNATIONAL, INC.
By: _________________________________
Name:
Title:
-3-
Trustee's Certificate of Authentication
This is one of the Collateral Certificates referred to in the
within-mentioned Pooling and Servicing Agreement.
JPMORGAN CHASE BANK,
as Trustee
By: __________________________________
Authorized Officer
