EXHIBIT 4.1 - FIRST SUPPLEMENTAL INDENTURE TO MASTER INDENTURE
[EXECUTION COPY]
FIRST SUPPLEMENTAL INDENTURE
TO
MASTER INDENTURE
FIRST SUPPLEMENTAL INDENTURE TO MASTER INDENTURE, dated as of May 28,
2003 (this "Supplemental Indenture"), between FNANB CREDIT CARD MASTER NOTE
TRUST, a business trust organized and existing under the laws of the State of
Delaware (the "Issuer"), and JPMORGAN CHASE BANK, a bank organized and existing
under the laws of the State of New York, not in its individual capacity, but
solely as Indenture Trustee (together with its successors in the trusts
thereunder as provided in the Master Indenture referred to below, the "Indenture
Trustee").
PRELIMINARY STATEMENTS
WHEREAS, the Issuer and the Indenture Trustee are parties to a Master
Indenture dated as of July 1, 2002 (as supplemented, the "Master Indenture")
relating to the issuance of asset backed notes by the FNANB Credit Card Master
Note Trust;
WHEREAS, Section 10.1(a) of the Master Indenture provides that the
Issuer and the Indenture Trustee, without the consent of the Holders of any
Notes but with prior written notice to each Rating Agency and when authorized by
an Issuer Order, may enter into one or more indentures supplemental to the
Master Indenture, among other purposes, to add to the covenants of the Issuer
for the benefit of the Holders of the Notes or, provided that such action does
not adversely affect the interests of the Holders of the Notes, to cure any
ambiguity in the Master Indenture or to correct or supplement any provision in
the Master Indenture that may be inconsistent with any other provision in the
Master Indenture; and
WHEREAS, the Issuer and the Indenture Trustee are entering into this
Supplemental Indenture to amend the Master Indenture as set forth herein;
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, the Issuer and the Indenture Trustee agree as follows:
Section 1. Definitions. All terms used in this Supplemental Indenture
that are defined in the Master Indenture have the meanings assigned to them
therein, except to the extent such terms are amended or modified in this
Supplemental Indenture.
Section 2. Amendments to Master Indenture.
(a) The first paragraph of the Master Indenture is hereby amended by
deleting the second sentence of such paragraph in its entirety and by
substituting the following therefor (solely for convenience, changed text is
italicized): "This Indenture may be supplemented at any time and from time to
time by an indenture supplement executed and delivered in connection with the
issuance of a new Series of Notes in accordance with Section 2.11 (an "Indenture
Supplement," and together with this Indenture and any other supplemental
indentures hereto, the "Indenture")."
(b) Section 2.5 of the Master Indenture is hereby amended by deleting
the seventh paragraph of such section in its entirety and by substituting the
following therefor (solely for convenience, changed text is italicized):
Any Note held by the Transferor at any time after the
date of its initial issuance may be transferred or exchanged only
upon the delivery to the Owner Trustee and the Indenture Trustee
of an Opinion of Counsel, dated as of the date of such transfer or
exchange, to the effect that, for federal income tax purposes,
such transfer or exchange (i) will not adversely affect the tax
characterization as debt of the Notes of any outstanding Series or
Class that were characterized as debt at the time of their
issuance, (ii) will not cause the Issuer to be deemed to be an
association (or publicly traded partnership) taxable as a
corporation and (iii) will not cause or constitute an event in
which gain or loss would be recognized by any Noteholder;
(c) Section 3.11 of the Master Indenture is hereby amended by deleting
clause (a)(5) of such section in its entirety and by substituting the following
therefor (solely for convenience, changed text is italicized):
(5) the Issuer shall have received an Opinion of
Counsel with respect to such consolidation or merger to the effect
that, for federal income tax purposes, such consolidation or
merger (A) will not adversely affect the tax characterization as
debt of the Notes of any outstanding Series or Class that were
characterized as debt at the time of their issuance, (B) will not
cause the Issuer to be deemed to be an association (or publicly
traded partnership) taxable as a corporation and (C) will not
cause or constitute an event in which gain or loss would be
recognized by any Noteholder;
(d) Section 3.11 of the Master Indenture is hereby amended by deleting
clause (b)(4) of such section in its entirety and by substituting the following
therefor (solely for convenience, changed text is italicized):
(4) the Issuer shall have received an Opinion of
Counsel with respect to such conveyance or transfer to the effect
that, for federal income tax purposes, such conveyance or transfer
(A) will not adversely affect the tax characterization as debt of
the Notes of any outstanding Series or Class that were
characterized as debt at the time of their issuance, (B) will not
cause the Issuer to be deemed to be an association (or publicly
traded partnership) taxable as a
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corporation and (C) will not cause or constitute an event in which
gain or loss would be recognized by any Noteholder;
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(e) Section 5.7 of the Master Indenture is hereby amended by deleting
such section in its entirety and by substituting the following therefor (solely
for convenience, changed text is italicized):
Section 5.7 Limitation on Suits. No Noteholder shall
have any right by virtue of any provisions of this Indenture to
institute any suit, action or proceeding in equity or at law upon
or under or with respect to this Indenture, unless (i) such
Noteholder previously shall have given written notice to the
Indenture Trustee of a continuing Event of Default, (ii) the
Holders of Notes evidencing Undivided Interests aggregating more
than 25% of the Invested Amount of any Series which may be
adversely affected but for the institution of such suit, action or
proceeding shall have made written request upon the Indenture
Trustee to institute such action, suit or proceeding in its own
name as Indenture Trustee hereunder, (iii) such Holders shall have
offered to the Indenture Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be
incurred therein or thereby, (iv) the Indenture Trustee, for 60
days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such
action, suit or proceeding and (v) the Indenture Trustee, during
such 60 day period, shall not have received a direction
inconsistent with such request from the Holders of Notes
evidencing Undivided Interests aggregating more than 50% of the
Invested Amount of each Series affected by such request; it being
understood and intended, and being expressly covenanted by each
Noteholder with every other Noteholder and the Indenture Trustee,
that no one or more Noteholders shall have the right in any manner
whatsoever by virtue or by availing itself or themselves of any
provisions of this Indenture to affect, disturb or prejudice the
rights of the Noteholders of any other of the Notes, or to obtain
or seek to obtain priority over or preference to any other such
Noteholder, or to enforce any right under this Indenture, except
in the manner herein provided and for the equal, ratable and
common benefit of all Noteholders. If the Indenture Trustee shall
receive conflicting or inconsistent requests and indemnity from
two or more groups of Noteholders of any or all affected Series,
each representing no more than 50% of the Invested Amount of such
Series, the Indenture Trustee in its sole discretion may determine
what action, if any, shall be taken. For the protection and
enforcement of the provisions of this Section 5.7, each and every
Noteholder and the Indenture Trustee shall be entitled to such
relief as can be given either at law or in equity. Each Note Owner
by its acquisition of a Book Entry Note shall be deemed to have
consented to the provisions of this Section 5.7.
(f) Section 10.1 of the Master Indenture is hereby amended by the words
"to this Indenture or to any Indenture Supplement" for the word "hereto" in the
sixth line of subsection (a) of such section.
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(g) Section 10.1 of the Master Indenture is hereby amended by deleting
the first sentence of subsection (b) of such section in its entirety and by
substituting the following therefor (solely for convenience, changed text is
italicized):
(b) The Issuer and the Indenture Trustee, when
authorized by an Issuer Order, may, also without the consent of
any Noteholders of any Series then Outstanding but upon
satisfaction of the Rating Agency Condition with respect to the
Notes of all Series rated by such Rating Agency (and subject to
the consent of any Enhancement Provider if such consent is
required in the related Indenture Supplement), enter into one or
more indentures supplemental to this Indenture or to any Indenture
Supplement for the purpose of adding any provisions to, or
changing in any manner or eliminating any of the provisions of,
this Indenture or such Indenture Supplement or of modifying in any
manner the rights of the Holders of the Notes under this Indenture
or such Indenture Supplement; provided, however, that the
Transferor shall have delivered to the Owner Trustee and the
Indenture Trustee (i) an Officer's Certificate, dated the date of
any such supplemental indenture, stating that all requirements for
such supplemental indenture contained in this Indenture have been
met and that the Transferor reasonably believes that such
supplemental indenture will not have an Adverse Effect and (ii) an
Opinion of Counsel with respect to such supplemental indenture to
the effect that, for federal income tax purposes, such
supplemental indenture (A) will not adversely affect the tax
characterization as debt of the Notes of any outstanding Series or
Class that were characterized as debt at the time of their
issuance, (B) will not cause the Issuer to be deemed to be an
association (or publicly traded partnership) taxable as a
corporation and (C) will not cause or constitute an event in which
gain or loss would be recognized by any Noteholder;
(h) Section 10.1 of the Master Indenture is hereby amended by
substituting the words "one or more indentures supplemental to this Indenture or
to any Indenture Supplement" for the words "an indenture or indentures
supplemental hereto" in the second sentence of subsection (b) of such section.
(i) Section 10.2 of the Master Indenture is hereby amended by
substituting the words "one or more indentures supplemental to this Indenture or
to any Indenture Supplement" for the words "an indenture or indentures
supplemental hereto" in the first paragraph of such section.
(j) Section 10.2 of the Master Indenture is hereby amended by adding the
words "or of any Indenture Supplement" after the words "this Indenture" in the
seventh line of the first paragraph of such section and by adding the words "or
under any Indenture Supplement" after the words "this Indenture" in the eighth
line of the first paragraph of such section.
Section 3. Incorporation of Master Indenture. The Master Indenture as
amended by this Supplemental Indenture 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 Master
Indenture, the terms and provisions of this Supplemental Indenture shall
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govern. After the date hereof, any reference to the Master Indenture shall mean
the Master Indenture as amended by this Supplemental Indenture.
Section 4. Ratification of Master Indenture. As amended by this
Supplemental Indenture, the Master Indenture is in all respects ratified and
confirmed, and the Master Indenture and this Supplemental Indenture shall be
read, taken and construed as one and the same instrument.
Section 5. Counterparts. This Master Indenture 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 6. Governing Law. THIS SUPPLEMENTAL INDENTURE 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 Indenture Trustee have caused
this Supplemental Indenture 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
JPMORGAN CHASE BANK,
not in its individual capacity but
solely as Indenture Trustee
By: /s/ Xxxxxx Xxx
Name: Xxxxxx Xxx
Title: Trust Officer
Acknowledged and Accepted:
FIRST NORTH AMERICAN NATIONAL BANK,
as Servicer
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President
DC FUNDING INTERNATIONAL, INC.,
as Transferor
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Vice President
CONSENTED TO:
AMBAC ASSURANCE CORPORATION
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President
