EXHIBIT 4.1
[EXECUTION COPY]
AMENDMENT NO. 3 TO AMENDED AND RESTATED
MASTER POOLING AND SERVICING AGREEMENT
(FNANB CREDIT CARD MASTER TRUST)
AMENDMENT NO. 3 TO AMENDED AND RESTATED MASTER POOLING AND
SERVICING AGREEMENT, dated as of November 18, 2003 (this "Amendment"), among DC
FUNDING INTERNATIONAL, INC., a Delaware corporation, as Transferor (in such
capacity, the "Transferor"), FIRST NORTH AMERICAN NATIONAL BANK, a national
banking association, as Servicer (in such capacity, the "Servicer"), and
JPMORGAN CHASE BANK, a New York banking corporation and successor trustee to
First Union National Bank, as Trustee (in such capacity, the "Trustee").
PRELIMINARY STATEMENTS
WHEREAS, the Transferor, the Servicer and the Trustee are
parties to an Amended and Restated Master Pooling and Servicing Agreement dated
as of December 31, 2001, as amended (the "Agreement");
WHEREAS, Section 13.1(c) of the Agreement provides that the
Servicer, the Transferor and the Trustee may amend the Agreement from time to
time, with the consent of the Holders of Investor Certificates evidencing
Undivided Interests 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 parties hereto 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 Certificateholders:
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 adding the following definitions:
"Amendment No. 3" shall mean Amendment No. 3 to this
Agreement dated as of November 18, 2003 among the Transferor, the
Servicer and the Trustee.
"Circuit City Plus(R) Accounts" shall mean the
Accounts identified by account number on the computer file or
microfiche list attached as Schedule 1 to Amendment No. 3.
Section 3. Amendment of Section 2.7. Section 2.7 of the
Agreement is hereby amended by adding the following parenthetical at the end of
the first sentence of subsection (a) of such section: "(except that the
Transferor may designate the Circuit City Plus(R) Accounts for deletion and
removal from the Accounts on a non-random basis)."
Section 4. Amendment of Section 6.3. Section 6.3 of the
Agreement is hereby amended by substituting "Section 6.9" for "Sections 6.9 and
7.2" in the first line of subsection (b) of such section."
Section 5. Amendment of Section 7.2. Section 7.2 of the
Agreement is hereby amended by deleting paragraph (a)(ii) of such section in its
entirety and by substituting the following therefor (solely for convenience,
changed text is italicized):
(ii) the Transferor has delivered to the Trustee (i)
an Officer's Certificate signed by a Vice President or more senior
officer of the Transferor stating that such consolidation, merger,
conveyance or transfer, and, if the Transferor is not the surviving
entity, such supplemental agreement, comply with this Section 7.2 and
that all conditions precedent herein provided for relating to such
transaction have been complied with and (ii) if the Transferor is not
the surviving entity, an Opinion of Counsel stating 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 6. Amendment of Section 8.5. Section 8.5 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 8.5 The Servicer Not to Resign. The Servicer
shall not resign from the obligations and duties hereby imposed on it
as such except (i) upon determination that the performance of its
duties hereunder is or will become impermissible under applicable law,
regulation or order and there is no reasonable action which the
Servicer could take to make the performance of its duties hereunder
permissible under applicable law or (ii) upon satisfaction of the
following conditions: (A) an Eligible Servicer shall have assumed, by
an agreement supplemental hereto, executed and delivered to the
Trustee, in form acceptable to the Transferor and the Trustee, the
performance of every covenant and obligation of the Servicer hereunder;
(B) the Rating Agency Condition shall have been satisfied with respect
to such resignation and appointment; (C) the
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resigning Servicer shall have delivered to the Trustee an Officer's
Certificate stating that such resignation and such supplemental
agreement comply with this Section 8.5 and that all conditions
precedent herein provided for relating to such resignation and
assumption have been complied with; and (D) the resigning Servicer
shall have delivered or caused to be delivered to the Trustee (with a
copy to each Rating Agency) an Opinion of Counsel that such
supplemental agreement constitutes a legal, binding and valid
obligation of the assuming Servicer, enforceable against the assuming
Servicer 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). Any determination
permitting the resignation of the Servicer under clause (i) of this
Section 8.5 shall be evidenced by an Opinion of Counsel to such effect
delivered to the Trustee, and no such resignation shall be effective
until the Trustee or a successor to the Servicer has assumed the
Servicer's responsibilities and obligations under this Agreement. If
the Trustee is unable within 120 days of a resignation of the Servicer
under clause (i) of this Section 8.5 to appoint a Successor Servicer
pursuant to Section 10.2(a), the Trustee or its duly appointed agent
(which may not be the outgoing Servicer) shall serve as Successor
Servicer hereunder but the Trustee shall have continued authority to
appoint another Person as Successor Servicer.
Section 7. 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 8. 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 9. 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 10. 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
Trustee have caused this Amendment to be duly executed by their respective
officers as of the day and year first above written.
DC FUNDING INTERNATIONAL, INC.,
as Transferor
By: /s/ Xxxxxx X. Xxxx
________________________________
Name: Xxxxxx X. Xxxx
Title: President
FIRST NORTH AMERICAN NATIONAL BANK,
as Servicer
By: /s/ Xxxxxx X. Xxxxxxx
________________________________
Name: Xxxxxx X. Xxxxxxx
Title: President
JPMORGAN CHASE BANK,
as Trustee
By: /s/ Wen Xxx Xxxx
________________________________
Name: Wen Xxx Xxxx
Title: Asst. Vice President
FNANB Bankcard Portfolio Sale
Amendment No. 3 to Amended and Restated Master Pooling and Servicing Agreement
November 18, 2003
Schedule 0
Xxxxxxx Xxxx Xxxx(X) Accounts
[TO BE ATTACHED]
