EXHIBIT 4.4
[EXECUTION COPY]
AMENDMENT NO. 3 TO
TRANSFER AND SERVICING AGREEMENT
AMENDMENT NO. 3 TO TRANSFER AND SERVICING AGREEMENT, dated as
of November 18, 2003 (this "Amendment"), among FLEET BANK (RI), NATIONAL
ASSOCIATION, a national banking association (the "Bank"), as Transferor and as
Servicer, and 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").
PRELIMINARY STATEMENTS
WHEREAS, DC Funding International, Inc., a Delaware
corporation ("DC Funding"), as Transferor, First North American National Bank, a
national banking association ("FNANB"), as Servicer, and the Issuer entered into
a Transfer and Servicing Agreement dated as of July 1, 2002, as amended (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 (i) 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 and (ii) FNANB has assigned to the Bank all of
FNANB's rights as Servicer under the Agreement and the Bank has assumed the
performance of every covenant and obligation of FNANB as Servicer under the
Agreement;
WHEREAS, Section 9.1(c) of the Agreement provides that the
Servicer, the Transferor and the Issuer may amend the Agreement from time to
time, with the consent of the Holders of Notes aggregating not less than 66-2/3%
of the Invested Amount of all Series adversely affected, subject to certain
limitations set forth therein; and
WHEREAS, the Bank, as Transferor and as Servicer, and the
Issuer 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 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 1.1. Section 1.1 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 1.1 Definitions. Capitalized terms used
herein and not otherwise defined herein are defined in Annex A to the
Master Indenture dated as of July 1, 2002 (as amended, supplemented or
otherwise modified from time to time, the "Indenture"), between FNANB
Credit Card Master Note Trust and JPMorgan Chase Bank.
Section 3. Amendment of Section 1.2. Section 1.2 of the
Agreement is hereby amended by deleting subsection (c) of such section in its
entirety and by substituting the following therefor (solely for convenience,
changed text is italicized):
(c) The representations, warranties and covenants of
the Bank in this Agreement in its capacity as Transferor shall be
deemed to be the representations, warranties and covenants of the Bank
solely in such capacity for so long as it acts in such capacity under
this Agreement. The representations, warranties and covenants of the
Bank in this Agreement in its capacity as Servicer shall be deemed to
be the representations, warranties and covenants of the Bank solely in
such capacity for so long as it acts in such capacity under this
Agreement.
Section 4. Amendments of Section 2.1.
(a) Section 2.1 of the Agreement is hereby amended by deleting
the second sentence of the first paragraph of such section in its entirety and
by substituting the words "the prior sentence" for the words "the prior two
sentences" in the third sentence of such paragraph.
(b) Section 2.1 of the Agreement is hereby amended by
inserting a period after the words "constitute a sale" in the first sentence of
the last paragraph of such section and by deleting the remainder of such
sentence.
(c) Section 2.1 of the Agreement is hereby amended by adding
the following paragraph at the end of such section:
To the extent that the Transferor retains any
interest in (a) the Collateral Certificate or (b) effective on the
Certificate Trust Termination Date, the Receivables created on or after
the Certificate Trust Termination Date, the Transferor hereby grants to
the Indenture Trustee for the benefit of the Noteholders a security
interest in (y) all of the Transferor's right, title and interest in,
to and under the Collateral Certificate, and (b) effective on the
Certificate Trust Termination Date, all of the Transferor's right,
title and interest in and to the Receivables created on or after the
Certificate Trust Termination Date, all monies due or to become due and
all amounts received with respect to such Receivables (including
Finance Charge Receivables and Recoveries), all proceeds of such
Receivables (including Insurance Proceeds) and the Interchange Amount
with respect to each Collection Period commencing on or after the
Certificate Trust
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Termination Date (collectively, the "Indenture Collateral"), in each
case to secure the performance of all of the obligations of the
Transferor under this Agreement, the Indenture, any Indenture
Supplement, the Certificate of Trust, the Administration Agreement and
the Trust Agreement. With respect to the Indenture Collateral, the
Indenture Trustee shall have all of the rights it has under this
Agreement, the Indenture, any Indenture Supplement, the Certificate of
Trust, the Administration Agreement and the Trust Agreement. The
Indenture Trustee shall have all of the rights of a secured creditor
under the UCC as in effect in the State of New York and the UCC as in
effect in the State of Delaware.
Section 5. Amendment of Section 2.2. Section 2.2 of the
Agreement is hereby amended by deleting the words "or the Bank" in the last
sentence of subsection (b) of such section.
Section 6. Amendments of Section 2.3.
(a) Section 2.3 of the Agreement is hereby amended by deleting
the first sentence of such section in its entirety by substituting the following
therefor (solely for convenience, changed text is italicized):
The Transferor hereby represents and warrants to the Issuer as of the
Assumption Date and, with respect to any Series issued after the
Assumption Date, as of the date of the related Indenture Supplement and
the related Closing Date, unless otherwise stated in such Indenture
Supplement, that:
(b) Section 2.3 of the Agreement is hereby amended by deleting
paragraph (i) of such section in its entirety and by substituting the following
therefor (solely for convenience, changed text is italicized):
(i) Organization and Good Standing. The Transferor is
a national banking association duly organized, validly existing and in
good standing under the laws of the United States, and has full power,
authority and legal right to own its properties and conduct its
business as such properties are presently owned and such business is
presently conducted and to execute, deliver and perform its obligations
under this Agreement.
Section 7. Amendments of Section 2.4.
(a) Section 2.4 of the Agreement is hereby amended by deleting
the first sentence of such section in its entirety by substituting the following
therefor (solely for convenience, changed text is italicized):
The Transferor hereby represents and warrants to the Issuer as of the
Assumption Date and, with respect to any Series issued after the
Assumption Date, as of the date of the related Indenture Supplement and
the related Closing Date, unless otherwise stated in such Indenture
Supplement, that:
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(b) Section 2.4 of the Agreement is hereby amended by deleting
the words "the transfer of the Receivables to the Transferor pursuant to the
Receivables Purchase Agreement or" in paragraph (a)(iii)(H) of such section.
(c) Section 2.4 of the Agreement is hereby amended by deleting
the fourth sentence of subsection (d)(iii) of such section in its entirety
(which sentence reads: "The Transferor shall make such deposit out of funds
received by it from the Bank pursuant to Section 6.1 of the Receivables Purchase
Agreement.").
(d) Section 2.4 of the Agreement is hereby amended by deleting
the fourth sentence of subsection (e) of such section in its entirety (which
sentence reads: "The Transferor shall make such deposit out of funds received by
it from the Bank pursuant to Section 6.2 of the Receivables Purchase
Agreement.").
Section 8. Amendments of Section 2.5.
(a) Section 2.5 of the Agreement is hereby amended by deleting
the words "and will not cause or permit the Bank to take any such action" in
subsection (a) of such section.
(b) Section 2.5 of the Agreement is hereby amended by deleting
the words "or the Bank" in the thirteenth line of subsection (b) of such
section.
(c) Section 2.5 of the Agreement is hereby amended by deleting
subsection (c) of such section in its entirety and by substituting the following
therefor (solely for convenience, changed text is italicized):
(c) Account Agreements and Account Guidelines. The
Transferor shall comply with and perform its obligations under the
applicable Account Agreements relating to the Accounts and the Account
Guidelines except insofar as any failure so to comply or perform would
not materially and adversely affect the rights of the Issuer or the
Noteholders under the Master Indenture or any Indenture Supplement
(without regard to the amount of any Enhancement) or under the Notes.
Subject to compliance with all Requirements of Law the failure to
comply with which would have a material adverse effect on the
Noteholders under the Master Indenture or any Indenture Supplement
(without regard to the amount of any Enhancement), the Transferor may
change the terms and provisions of the Account Agreements or the
Account Guidelines in any respect (including, without limitation, the
required minimum monthly payment, the calculation of the amount, or the
timing, of charge-offs and the Finance Charges and other fees to be
assessed thereon) only if such change (i) would not, in the reasonable
belief of the Transferor, cause an Early Amortization Event to occur
and (ii) is made applicable to the comparable segment of the revolving
credit card accounts owned and serviced by the Transferor that have
characteristics the same as, or substantially similar to, the Accounts
that are the subject of such change, except as otherwise restricted by
an endorsement, sponsorship or other agreement between the Transferor
and an unrelated third party or by the terms of the Account Agreements.
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(d) Section 2.5 of the Agreement is hereby amended by deleting
subsections (f), (g) and (h) of such section in their entirety and by
substituting the following therefor (solely for convenience, changed text is
italicized):
(f) [RESERVED]
(g) [RESERVED]
(h) [RESERVED]
Section 9. Amendments of Section 2.6.
(a) Section 2.6 of the Agreement is hereby amended by adding
the parenthetical "(after giving effect to any amounts deposited in the Excess
Funding Account)" after the words "Minimum Aggregate Principal Receivables" in
the fifth line of subsection (a) of such section.
(b) Section 2.6 of the Agreement is hereby amended by deleting
the words "the transfer of the Receivables to the Transferor pursuant to the
Receivables Purchase Agreement or" in paragraph (c)(v)(F) of such section.
(c) Section 2.6 of the Agreement is hereby amended by deleting
the first paragraph of subsection (d) of such section in its entirety and by
substituting the following therefor (solely for convenience, changed text is
italicized):
The Transferor may, but shall not be obligated to, designate from time
to time additional MasterCard(R) or VISA(R) credit card accounts (the
"Automatic Additional Accounts") to be included as Accounts by causing
such Accounts (i) to be identified in the Bank's master computer files
as accounts subject to either the Pooling and Servicing Agreement
(before the Certificate Trust Termination Date) or this Agreement (on
and after the Certificate Trust Termination Date) or (ii)(A) in the
case of Automatic Additional Accounts designated before the Certificate
Trust Termination Date, to be identified in a computer file or
microfiche list delivered to the Trustee (as defined in the Pooling and
Servicing Agreement) by the Transferor pursuant to Section 2.1(b) of
the Pooling and Servicing Agreement, and (ii)(B) in the case of
Automatic Additional Accounts designated on or after the Certificate
Trust Termination Date, to be identified in a computer file or
microfiche list delivered to the Indenture Trustee by the Transferor
pursuant to Section 2.1(c). For purposes of this Section 2.6(d),
Automatic Additional Accounts shall be deemed to include only Eligible
Accounts designated on or after the Certificate Trust Termination Date
(x) of a type included as Accounts on the Assumption Date or any
Additional Account Closing Date (but only if such Additional Account
Closing Date related to Additional Accounts added pursuant to Section
2.6(b)) or consented to in writing by each Rating Agency (it being
understood that non-consumer MasterCard or VISA credit card accounts
and MasterCard or VISA credit card accounts secured by assets or
deposits held by the Transferor are not of a type included as Accounts
on the Assumption Date for purposes of this Section 2.6(d)) and (y) not
prohibited from being included as Accounts pursuant to the terms of any
Indenture Supplement. The Transferor
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shall provide to each Rating Agency prior written notice of any
designation of Automatic Additional Accounts pursuant to this Section
2.6(d).
Section 10. Amendment of Section 3.3. Section 3.3 of the
Agreement is hereby amended by deleting the first sentence of such section in
its entirety and by substituting the following therefor:
The Bank, as Servicer, hereby represents, warrants and covenants to the
Issuer, as of the Assumption Date and, with respect to any Series
issued after the Assumption Date, as of the related Closing Date,
unless otherwise stated in the related Indenture Supplement (and any
Successor Servicer by its appointment hereunder shall represent,
warrant and covenant to the Issuer, as of the date of such appointment
and, with respect to any Series issued after such date, as of the
related Closing Date, unless otherwise stated in the related Indenture
Supplement (with appropriate modifications to Section 3.3(a) to reflect
such Successor Servicer's organizational structure)), that:
Section 11. Amendment of Section 5.2. Section 5.2 of the
Agreement is hereby amended by deleting paragraph (b) of such section in its
entirety and by substituting the following therefor (solely for convenience,
changed text is italicized):
(b) the Servicer has delivered to the Indenture
Trustee (i) an Officer's Certificate stating that such consolidation,
merger, conveyance or transfer, and, if the Servicer is not the
surviving entity, such supplemental agreement, comply with this Section
5.2 and that all conditions precedent herein provided for relating to
such transaction have been complied with and (ii) if the Servicer is
not the surviving entity, an Opinion of Counsel that such supplemental
agreement constitutes a legal, valid and binding obligation of the
surviving entity, enforceable against the surviving entity in
accordance with its terms, subject to applicable bankruptcy,
insolvency, receivership, conservatorship, reorganization, moratorium
or other similar laws now or hereafter in effect affecting the
enforcement of creditors' rights in general and except as such
enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity);
Section 12. Amendment of Section 6.1. Section 6.1 of the
Agreement is hereby amended by deleting such section in its entirety and by
substituting the following therefor:
Section 6.1 Rights upon the Occurrence of Certain
Insolvency Events. If, in each case on or after the Certificate Trust
Termination Date, Transferor shall consent or fail to object to the
appointment of a conservator, receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceeding of or relating to the Transferor or of or relating to all or
substantially all of its property, or a decree or order of a court,
agency or supervisory authority having jurisdiction in the premises for
the appointment of a conservator, receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities
or similar proceeding, or
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for the winding-up or liquidation of its affairs, shall have been
entered against the Transferor; or the Transferor shall admit in
writing its inability to pay its debts generally as they become due,
file a petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit of its
creditors or voluntarily suspend payment of its obligations, Transferor
shall on the day any such event occurs immediately cease to transfer
Principal Receivables to the Issuer and shall promptly give notice to
the Indenture Trustee, the Owner Trustee and the Rating Agencies
thereof.
Section 13. Amendment of Section 9.1. Section 9.1 of the
Agreement is hereby amended by deleting the words "to replace DC Funding as
Transferor or" in subsection (h) of such section.
Section 14. Amendment of Section 9.4. Section 9.4 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 9.4 Notices. All demands, notices and
communications hereunder shall be in writing and shall be deemed to
have been duly given if sent by facsimile transmission to, sent by
courier to or mailed by registered mail, return receipt requested, to
(a) in the case of the Transferor or the Servicer, 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 (000) 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, (b) in the case of the Issuer, care of the Owner
Trustee, (c) in the case of the Owner Trustee, Xxxxxx Square North,
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention:
Corporate Trust Administration, telecopy number (000) 000-0000,
telephone number (000) 000-0000, (d) in the case of the Indenture
Trustee, 0 Xxx Xxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: ITS Structured Finance, telecopy number (000) 000-0000,
telephone number (000) 000-0000, and (e) as to such other parties to
which notices hereunder are required to be given pursuant to the terms
of any Indenture Supplement, the addresses specified in any Indenture
Supplement or, as to each party, such other address as shall be
designated by such party in a written notice to each other party. Any
notice required or permitted to be mailed to a Noteholder shall be
given by first class mail, postage prepaid, at the address of such
Noteholder as shown in the Note Register. Any notice so mailed within
the time prescribed in this Agreement shall be conclusively presumed to
have been duly given, whether or not the Noteholder receives such
notice.
Section 15. Amendment of Section 9.14. Section 9.14 of the
Agreement is hereby amended by deleting the designation "(a)" in the first line
of such section and by deleting subsection (b) of such section in its entirety.
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Section 16. 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 17. 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 18. 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 19. 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 Transferor, the Servicer and the
Issuer have caused this Amendment to be duly executed by their respective
officers as of the day and year first above written.
FLEET BANK (RI), NATIONAL ASSOCIATION,
as Transferor and as Servicer
By: /s/ Xxxxxxx X. Xxxxxx
________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
FNANB CREDIT CARD MASTER NOTE TRUST,
as Issuer
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee on behalf of
the Issuer
By: /s/ Xxxxxxxx X. Xxxxx
________________________________
Name: Xxxxxxxx X. Xxxxx
Title: Assistant Vice President
Acknowledged and Accepted:
JPMORGAN CHASE BANK,
not in its individual capacity but
solely as Indenture Trustee
By: /s/ WEN XXX XXXX
________________________________
Name: WEN XXX XXXX
Title: Asst. Vice President
FNANB Bankcard Portfolio Sale
Amendment No. 3 to Transfer and Servicing Agreement
November 18, 2003
