EXHIBIT 4.3
[EXECUTION COPY]
AMENDMENT NO. 2 TO
TRANSFER AND SERVICING AGREEMENT
AMENDMENT NO. 2 TO TRANSFER 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 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, the Transferor, the Servicer and the Issuer are
parties to a Transfer and Servicing Agreement dated as of July 1, 2002, as
amended (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 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 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 4.2. Section 4.2 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
Indenture Trustee (A) 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 4.2 and that all conditions precedent herein provided for
relating to such transaction have been complied with and (B) 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 3. Amendment of Section 5.5. Section 5.5 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 5.5 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 Owner
Trustee, in form acceptable to the Transferor and the Owner 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 resigning
Servicer shall have delivered to the Indenture Trustee an Officer's
Certificate stating that such resignation and such supplemental
agreement comply with this Section 5.5 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 Indenture 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 5.5 shall be evidenced by an Opinion of Counsel to such effect
delivered to the Indenture Trustee, and no such resignation shall be
effective until the Indenture Trustee or a successor to the Servicer
has assumed the Servicer's responsibilities and obligations under this
Agreement. If the Indenture Trustee is unable within 120 days of a
resignation of the Servicer under clause (i) of this Section 5.5 to
appoint a Successor Servicer pursuant to Section 7.2(a), the Indenture
Trustee or its duly appointed agent (which may not be the outgoing
Servicer) shall serve as Successor Servicer hereunder but the Indenture
Trustee shall have continued authority to appoint another Person as
Successor Servicer.
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Section 4. 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 5. 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 6. 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 7. 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.
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
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. 2 to Transfer and Servicing Agreement
November 18, 2003
