EXHIBIT 4.6
[EXECUTION COPY]
AMENDMENT NO. 1 TO
TRUST AGREEMENT
AMENDMENT NO. 1 TO TRUST AGREEMENT, dated as of November 18,
2003 (this "Amendment"), between DC FUNDING INTERNATIONAL, INC., a Delaware
corporation, as Transferor (in such capacity, the "Transferor"), and WILMINGTON
TRUST COMPANY, a Delaware banking corporation, as Owner Trustee (in such
capacity, the "Owner Trustee").
PRELIMINARY STATEMENTS
WHEREAS, the Transferor and the Owner Trustee are parties to a
Trust Agreement dated as of July 1, 2002 (the "Agreement");
WHEREAS, Section 10.1 of the Agreement provides that the
Transferor and the Owner Trustee may amend the Agreement from time to time,
without the consent of any of the Noteholders, to cure any ambiguity, to correct
or supplement any provisions in the Agreement or to add any other provisions
with respect to matters or questions raised under the Agreement which shall not
be inconsistent with the provisions of the Agreement; 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
party 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 3.2. Section 3.2 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 3.2 Exchangeable Transferor Certificate.
Transferor shall execute, and Owner Trustee shall authenticate and
deliver to Transferor, a certificate substantially in the form of
Exhibit 3.2 (the "Exchangeable Transferor Certificate"). The
Exchangeable Transferor Certificate shall represent an undivided
beneficial interest in the Trust Estate subject to the lien of the
Notes created pursuant to the Indenture, including the right to receive
Collections with respect to the Receivables and other amounts at the
times and in the amounts specified in the Indenture and any Indenture
Supplement to be paid to the Holder of the Exchangeable Transferor
Certificate.
Section 3. Amendment of Exhibits. The Agreement is hereby
amended by adding as Exhibit 3.2 to the Agreement the exhibit attached as
Exhibit 3.2 to this Amendment.
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 DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS 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 and the Owner 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
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as OwnerTrustee
By: /s/ Xxxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Assistant Vice President
FNANB Bankcard Portfolio Sale
Amendment No. 1 to Trust Agreement
November 18, 2003
Exhibit 3.2
Form of Exchangeable Transferor Certificate
[TO BE ATTACHED]
