Exhibit 4.1
TRUST AGREEMENT
RELATING TO
FNANB CREDIT CARD MASTER TRUST
FNANB CREDIT CARD MASTER NOTE TRUST
THIS TRUST AGREEMENT, dated as of September 16, 2004, by and among Fleet
Bank (RI), National Association (together with its successors and assigns,
"Fleet Bank (RI)"), a national banking association, as transferor and servicer
(in each such capacity, the "Transferor" and the "Servicer"), FNANB Credit Card
Master Note Trust ("FNANB Note Trust"), a Delaware statutory trust, as issuer
(the "Issuer") and JPMorgan Chase Bank ("JPMorgan"), a New York banking
corporation, as trustee and indenture trustee (in each such capacity, together
with its successors and assigns, the "Trustee" and the "Indenture Trustee");
WITNESSETH:
WHEREAS, heretofore there was authorized and issued by the Issuer two
Series of Notes known generally as the Class A Floating Rate Asset Backed Notes,
Series 2002-A (the "Series 2002-A Notes") and the Class A Floating Rate Asset
Backed Notes, Series 2003-A (the "Series 2003-A Notes") under a Master Indenture
dated as of July 1, 2002 (as thereafter amended, the "Master Indenture"), as
supplemented by (i) the Series 2002-A Indenture Supplement, dated as of July 19,
2002 (as thereafter amended, the "Series 2002-A Supplement") and (ii) the Series
2003-A Indenture Supplement, dated as of May 29, 2003 (as thereafter amended,
the "Series 2003-A Supplement" and, together with the Series 2002-A Supplement,
the "Supplements" and, the Supplements together with the Master Indenture, the
"Indenture"), each executed in connection with the Series 2002-A Notes and the
Series 2003-A Notes, respectively, and each by and among the FNANB Note Trust,
as issuer and JPMorgan Chase Bank, as the Indenture Trustee;
WHEREAS, the primary asset of the Issuer is a certificate (the "Collateral
Certificate") representing a beneficial interest in the assets held in the FNANB
Credit Card Master Trust ("Master Trust"), issued pursuant to the Second Amended
and Restated Master Pooling and Servicing Agreement, dated as of November 18,
2003 (the "Amended and Restated Pooling and Servicing Agreement"), among the
Transferor, the Servicer and JPMorgan Chase Bank, as the Trustee, and the
Collateral Series Supplement to the Amended and Restated Pooling and Servicing
Agreement, dated as of July 19, 2002 (the "Collateral Supplement" and, together
with the Amended and Restated Pooling and Servicing Agreement, the "Pooling and
Servicing Agreement"). The assets of the Master Trust include, among other
things, certain amounts due (the "Receivables") on a pool of credit card
accounts of Fleet Bank (RI);
WHEREAS, the Collateral Certificate was transferred by the Transferor to
the Issuer pursuant to the Transfer and Servicing Agreement, dated as of July 1,
2002 (the "Transfer Agreement"), among the Transferor, the Servicer, and the
Issuer;
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WHEREAS, the Transferor and the Issuer, respectively, have determined to
provide for the payments of the remaining amounts due on the Collateral
Certificate and the Notes and all amounts owing to the Enhancement Provider by
the deposit of a letter of credit with the Trustee under the terms of an
irrevocable trust agreement;
WHEREAS, Fleet Bank (RI) and the Issuer have entered into a Reimbursement
and Credit Agreement under which Bank of America, National Association has
agreed to deliver a letter of credit to the Trustee;
WHEREAS, Fleet Bank (RI) and the Issuer have determined that the stated
amount of such letter of credit, based upon a report of a firm of nationally
recognized independent accountants, is sufficient to pay and discharge, all
remaining scheduled interest and principal payments on all outstanding Investor
Certificates and the Series 2002-A Notes and the Series 2003-A Notes on the
dates scheduled for such payments pursuant to the Indenture and all amounts
owing to the Enhancement Provider with respect to such Series; and
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the Transferor, the Servicer, the Issuer, the Trustee and the
Indenture Trustee agree as follows:
SECTION 1. DEFINITIONS. (a) As used herein, the following terms shall have
the following meanings:
"Agreement" means this Trust Agreement.
"Business Day" means (i) with respect to Section 5 of this Agreement, the
definition of "Business Day" as defined in the Letter of Credit and the Policy
and (ii) with respect to all other sections of this Agreement (other than as
described in clause (i)), the definition of "Business Day" as defined in the
Indenture or the Pooling and Servicing Agreement, as applicable.
"Distribution Account" means the Distribution Account established and held
by the Trustee for the benefit of the Noteholders and the Enhancement Provider
pursuant to Section 2 of this Agreement, and in which funds drawn from the
Letter of Credit will be held for distribution to the Noteholders and the
Enhancement Provider.
"Eligible Investments" means, with respect to Principal amounts in the
Distribution Account:
(i) direct obligations of, or obligations fully guaranteed as to
full and timely payment by, the United States and direct obligations of any
agency or instrumentality of the United States, the full and timely payment of
which obligations are backed by the full faith and credit of the United States;
and
(ii) certificates of deposit of any depository institution or trust
company organized under the laws of the United States or any state thereof or
the District of Columbia (or any domestic branch or agency of a foreign bank)
and subject to the supervision and examination by federal or state banking or
depository institution authorities; provided, however, that, at the time of
investment, the short term debt obligations of such depository institution or
trust company must be rated at least P-1 by Moody's and at least A-1+ by
Standard & Poor's (and a
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rating of at least F-1+ by Fitch if such certificates of deposit are rated by
Fitch).
"Enhancement Provider" means Ambac Assurance Corporation, a
Wisconsin-domiciled stock insurance company.
"Escrow Account" means the Escrow Account established and held by the
Trustee for the benefit of the Noteholders and the Enhancement Provider pursuant
to Section 2 of this Agreement, and in which the Letter of Credit will be held.
"FNANB Trust Agreement" means the Trust Agreement dated as of July 1,
2002, as amended thereafter, between Fleet Bank (RI), as transferor and the
Owner Trustee.
"Interest" means for each Distribution Date, the sum of (i) the amount of
interest which becomes due and payable on the Series 2002-A Notes on such date
calculated with respect to the Series 2002-A Notes as provided in Section 4.2(a)
of the Series 2002-A Supplement at the related Class A Note Rate plus (ii) the
amount of interest which becomes due and payable on the Series 2003-A Notes on
such date calculated with respect to the Series 2003-A Notes as provided in
Section 4.2(a) of the Series 2003-A Supplement at the related Class A Note Rate.
"Letter of Credit" means the letter of credit issued by Bank of America,
National Association dated as of September 16, 2004 to the Trustee and held in
the Escrow Account in accordance with Section 3 of this Agreement.
"Owner Trustee" means Wilmington Trust Company, a Delaware banking
corporation, acting not in its individual capacity, but solely as Owner Trustee
pursuant to the FNANB Trust Agreement.
"Payments" means for any Distribution Date, the sum of the amount of
Interest, Premiums and Principal due on such date.
"Premium" means for each Distribution Date, the sum of the Monthly Series
Enhancement Fee for such date for the Series 2002-A Notes calculated as provided
in the Series 2002-A Supplement and the related Premium Side Letter Agreement,
and the Monthly Series Enhancement Fee for such date for the Series 2003-A Notes
calculated as provided in the Series 2003-A Supplement and the related Premium
Side Letter Agreement.
"Principal" means, at any time, the unpaid principal amount of the Series
2002-A Notes and the Series 2003-A Notes and with respect to the Expected Final
Distribution Date for the Series 2002-A Notes, the unpaid principal amount of
the Series 2002-A Notes immediately prior to such Distribution Date and with
respect to the Expected Final Distribution Date for the Series 2003-A Notes, the
unpaid principal amount of the Series 2003-A Notes immediately prior to such
Distribution Date.
(b) All other capitalized terms not defined herein shall have the meanings
given to such terms in the Indenture or the Pooling and Servicing Agreement, as
applicable.
SECTION 2. ESTABLISHMENT OF ACCOUNTS. (a) The Escrow Account. The Trustee,
for the benefit of the Noteholders and the Enhancement Provider, shall establish
and maintain in the name of the Trustee, on behalf of the Noteholders and the
Enhancement Provider, with the
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Trustee, a segregated escrow account (the "Escrow Account") bearing a
designation clearly indicating that the funds, investments or securities
deposited therein are held for the benefit of the Noteholders and the
Enhancement Provider. The Escrow Account shall be under the sole dominion and
control of the Trustee for the benefit of the Noteholders and the Enhancement
Provider. Pursuant to the authority granted to the Servicer under the Amended
and Restated Pooling and Servicing Agreement and the Transfer Agreement, the
Servicer shall have the power, revocable by the Trustee, to instruct the Trustee
or the Indenture Trustee to make demands on the Letter of Credit held in the
Escrow Account for the purposes of carrying out the Servicer's, the Trustee's or
the Indenture Trustee's duties hereunder.
(b) The Distribution Account. The Indenture Trustee, for the benefit of
the Noteholders and the Enhancement Provider, shall establish and maintain or
cause to be established and maintained in the name of the Indenture Trustee, on
behalf of the Noteholders and the Enhancement Provider, with an Eligible
Institution, a segregated distribution account (the "Distribution Account")
bearing a designation clearly indicating that the funds deposited therein are
held for the benefit of the Noteholders and the Enhancement Provider. The
Distribution Account shall be under the sole dominion and control of the
Indenture Trustee for the benefit of the Noteholders and the Enhancement
Provider. If, at any time, the institution holding the Distribution Account
ceases to be an Eligible Institution, the Indenture Trustee (or the Servicer on
its behalf) shall within ten Business Days establish a new Distribution Account
meeting the conditions specified above with an Eligible Institution and shall
transfer any funds, investments or securities to such new Distribution Account,
and from the date such new Distribution Account is established, it shall be the
"Distribution Account." Pursuant to the authority granted to the Servicer under
the Transfer Agreement, the Servicer shall have the power, revocable by the
Indenture Trustee, to instruct the Indenture Trustee in writing to make
withdrawals and payments from the Distribution Account for the purposes of
carrying out the Servicer's or the Indenture Trustee's duties hereunder.
(c) Administration of the Distribution Account. Funds on deposit in the
Distribution Account prior to any Transfer Date representing amounts of
Principal shall be invested solely in Eligible Investments that will mature so
that such funds will be available by the close of business (New York City time)
on the Business Day prior to the Expected Final Distribution Date with respect
to the Series 2002-A Notes or the Series 2003-A Notes, as applicable. All
Eligible Investments shall be held to maturity. The Indenture Trustee shall
maintain possession of the negotiable instruments or securities, if any,
evidencing such Eligible Investments.
SECTION 3. DEPOSIT OF LETTER OF CREDIT. Fleet Bank (RI) hereby irrevocably
deposits the Letter of Credit with the Trustee, to be held in irrevocable escrow
by the Trustee for the benefit of the Noteholders and the Enhancement Provider
in the Escrow Account and applied solely as provided in this Agreement.
The Transferor represents to the Trustee based upon a report of a firm of
nationally recognized independent accountants that such Letter of Credit, when
applied pursuant to Section 5 below, will be sufficient to pay and discharge,
and which shall be applied by the Trustee to pay and discharge, all remaining
scheduled interest and principal payments on the outstanding Collateral
Certificate on the dates scheduled for such payments pursuant to the Pooling and
Servicing Agreement.
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The Issuer represents to the Indenture Trustee based upon a report of a
firm of nationally recognized independent accountants that such Letter of
Credit, when applied pursuant to Section 5 below, will be sufficient to pay and
discharge, all remaining scheduled interest and principal payments on all
outstanding Series 2002-A Notes and Series 2003-A Notes on the dates scheduled
for such payments pursuant to the Indenture and all amounts owing to the
Enhancement Provider with respect to such Series.
SECTION 4. USE OF LETTER OF CREDIT. The Trustee acknowledges receipt of
the Letter of Credit described in Section 3 above and agrees to hold such Letter
of Credit in the Escrow Account in irrevocable escrow, for the benefit of the
Noteholders and the Enhancement Provider, from the date of receipt thereof to
the date on which all Interest, Principal and Premiums have been paid in full.
SECTION 5. DRAWINGS AND DISTRIBUTIONS. (a) Interest and Premium Payments.
On the second Business Day prior to any Determination Date, the Servicer shall
calculate the amounts of Interest and Premiums due on the related Distribution
Date, and shall instruct the Indenture Trustee in writing to draw on the Letter
of Credit such Interest and Premium amounts due as of such Distribution Date and
to deposit the amounts received under the Letter of Credit to the Distribution
Account for distribution in accordance with (i) Section 5.1(b) of each of the
Supplements and (ii) each Premium Side Letter Agreement with respect to Series
2002-A and Series 2003-A, respectively. No earlier than the Determination Date
prior to such Distribution Date, but in any event, no later than 5:00 P.M. (New
York City time) on the fourth Business Day prior to the related Transfer Date,
the Indenture Trustee, in accordance with the Servicer's written instructions
and the terms of the Letter of Credit, shall demand payment from the Letter of
Credit for such Interest and Premium amounts due on such Distribution Date. On
the third Business Day prior to such Transfer Date the Indenture Trustee shall
deposit the amounts received under the Letter of Credit into the Distribution
Account. On each Distribution Date, the Indenture Trustee, in accordance with
the Servicer's written instructions, shall, in its capacity as Paying Agent,
withdraw such Interest and Premium amounts from the Distribution Account and
distribute such Interest and Premium amounts in accordance with (i) Section
5.1(b) of each of the Supplements and (ii) each Premium Side Letter Agreement
with respect to Series 2002-A and Series 2003-A, respectively.
(b) Principal Payments. On the second Business Day prior to the sixtieth
day preceding the Expected Final Distribution Date with respect to Series 2002-A
or Series 2003-A, as applicable, the Servicer shall calculate the amount of
Principal of the Series 2002-A Notes and the Series 2003-A notes, as applicable,
due on such Expected Final Distribution Date and shall instruct the Indenture
Trustee in writing to draw on the Letter of Credit such Principal amounts due as
of such Expected Final Distribution Date and to deposit the amounts received
under the Letter of Credit to the Distribution Account for distribution in
accordance with Section 5.1(c) of the related Supplement. No later than 5:00
P.M. (New York City time) on the sixtieth day, or if such day is not a Business
Day, then the following Business Day, prior to such Expected Final Distribution
Date, the Indenture Trustee, in accordance with the Servicer's written
instructions and the terms of the Letter of Credit, shall demand payment from
the Letter of Credit for such Principal amounts due on such Expected Final
Distribution Date. The Indenture Trustee shall deposit the amounts received
under the Letter of Credit into the Distribution Account. On such Expected Final
Distribution Date, the Indenture Trustee, in accordance with the Servicer's
written instructions, shall, in its capacity as Paying Agent, withdraw such
Principal amounts
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from the Distribution Account and distribute such Principal amounts in
accordance with Section 5.1(c) of the related Supplement.
(c) The Policy. The Indenture Trustee will continue to hold the Policy
with respect to Series 2002-A and Series 2003-A, respectively, for the benefit
of the related Noteholders and draw on such Policy with respect to Series 2002-A
and Series 2003-A, respectively, in accordance with the terms of the Policy. If
on the second Business Day prior to any Transfer Date, the Servicer shall
determine that the funds in the Distribution Account are deficient to satisfy
the Payments due to the Noteholders on the related Distribution Date (including
the related Expected Final Distribution Date, if applicable), the Servicer
shall, no later than 10 A.M. (New York City time) on such second Business Day
prior to such Transfer Date, notify the Indenture Trustee in writing by
facsimile or electronic transmission of such deficiency amount. Upon receipt of
such written notification, the Indenture Trustee shall make a claim on the
Policy with respect to Series 2002-A and Series 2003-A, respectively, for such
deficiency amount to the Enhancement Provider pursuant to Section 4.10 of the
related Supplement by delivering a notice to the Enhancement Provider by no
later than 12:00 P.M. (New York City time), on the same second Business Day
prior to the Transfer Date preceding such Distribution Date (including the
related Expected Final Distribution Date, if applicable). The Indenture Trustee
shall deposit all amounts paid by the Enhancement Provider under the Policy for
Series 2002-A and Series 2003-A, respectively, into the Distribution Account for
distribution to the Noteholders on such Distribution Date (including the
Expected Final Distribution Date, if applicable) in accordance with the last
sentence of clauses (a) and (b) above, as applicable.
(d) The satisfaction of Payments due on each Distribution Date shall also
satisfy any obligations of the Transferor for payments of any remaining amounts
due on the Collateral Certificate.
SECTION 6. REINVESTMENT. The Trustee shall have no power or duty to invest
any funds held under this Agreement or to sell, transfer or otherwise dispose of
or make substitutions of the Letter of Credit held hereunder.
SECTION 7. SURVIVAL OF CERTAIN RIGHTS; RELEASE OF RECEIVABLES. (a) In
addition to the rights of the Noteholders and the Enhancement Provider to
receive the applicable Aggregate Payments pursuant to Section 5 above, the
following rights, obligations, powers and duties and immunities shall survive
with respect to the Amended and Restated Pooling and Servicing Agreement and the
Master Indenture in accordance with Section 12.5(a) of the Amended and Restated
Pooling and Servicing Agreement and Section 4.3(a) of the Master Indenture,
respectively: (i) the Transferor's obligations with respect to the Collateral
Certificate under Sections 6.3 and 6.4 of the Amended and Restated Pooling and
Servicing Agreement, (ii) the rights (including the right to payment of its fees
and expenses), powers, trusts, duties and immunities of the Trustee, the Paying
Agent and the Transfer Agent and Registrar under the Amended and Restated
Pooling and Servicing Agreement, (iii) Section 12.5 of the Amended and Restated
Pooling and Servicing Agreement, (iv) the Issuer's obligations with respect to
the Notes under Sections 2.5 and 2.6 of the Master Indenture, (v) the rights
(including the right to payment of its fees and expenses), powers, trusts,
duties, and immunities of the Issuer, Indenture Trustee, the Paying Agent and
the Transfer Agent and Registrar under the Master Indenture, (vi) Section 4.3 of
the Master Indenture, (vii) the grant by the Issuer to the Indenture Trustee,
for the benefit of the Holders of the Notes and the Enhancement Provider, of all
of the Issuer's right, title and interest, whether now owned or hereafter
acquired, in, to and under the Collateral Certificate, and
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(viii) Section 4.3 of each of the Supplements. Furthermore, the provisions of
this Agreement shall survive the resignation or removal of the Trustee or the
Indenture Trustee pursuant to the Amended and Restated Pooling and Servicing
Agreement and the Master Indenture, respectively.
(b) Upon the deposit of the Letter of Credit into the Escrow Account in
substitution for the Receivables and upon the receipt by the Trustee from the
Enhancement Provider of an Agreement of Release in substantially the form
attached hereto as Exhibit A, the Trustee shall transfer and assign to the
Transferor all right, title and interest of the Master Trust in and to the
Receivables, whether then existing or thereafter created, and all monies due or
to become due and all amounts received with respect thereto and all proceeds
thereof and, except for amounts held under this Agreement in the Escrow Account
or the Distribution Account, all other Trust Property. The Trustee shall execute
and deliver such instruments of transfer and assignment and execute or authorize
financing statement terminations, in each case without recourse, representation
or warranty, as shall be reasonably requested by the Transferor to vest in the
Transferor all right, title and interest which the Master Trust had in the
applicable Receivables.
(c) Upon the deposit of the Letter of Credit into the Escrow Account and
upon the receipt by the Indenture Trustee from the Enhancement Provider of an
Agreement of Release in substantially the form attached hereto as Exhibit B, the
Indenture Trustee shall transfer and assign to the Transferor all right, title
and interest of the Indenture Trustee in and to all amounts held in the Spread
Account as defined in the Series 2002-A Supplement and the Spread Account as
defined in the Series 2003-A Supplement. The Indenture Trustee shall execute and
deliver such instruments of transfer and assignment and execute or authorize
financing statement terminations, in each case without recourse, representation
or warranty, as shall be reasonably requested by the Transferor to vest in the
Transferor all right, title and interest which the Indenture Trustee had in the
amounts held in the Spread Account as defined in the Series 2002-A Supplement
and the Spread Account as defined in the Series 2003-A Supplement.
SECTION 8. RESPONSIBILITIES OF THE TRUSTEE AND THE INDENTURE TRUSTEE. (a)
The Trustee and the Indenture Trustee shall have no responsibility in respect of
the recitals hereto or the validity or sufficiency of this Trust Agreement.
Neither the Trustee or the Indenture Trustee shall have any lien whatsoever upon
any of the moneys or investments in the Escrow Account for the payment of fees
and expenses for services rendered by the Trustee or the Indenture Trustee under
this Agreement.
(b) The Trustee, and its respective successors and assigns, may rely on
the provisions of Article XI and Section 8.4 of the Amended and Restated Pooling
and Servicing Agreement with respect to its rights, duties and compensation
under this Agreement.
(c) The Indenture Trustee, and its respective successors and assigns, may
rely on the provisions of Article VI of the Master Indenture with respect to its
rights, duties and compensation under this Agreement.
SECTION 9. REPORTING REQUIREMENTS. On each Distribution Date, the
Indenture Trustee, in its capacity as Paying Agent, shall forward to each Series
2002-A Noteholder of record and each Series 2003-A Noteholder of record, as of
the preceding Record Date, each Rating Agency and the Enhancement Provider a
statement prepared by the Servicer in substantially the form attached hereto as
Exhibit C setting forth the Payments due and paid with respect to such
Distribution Date in accordance with Section 5.
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SECTION 10. TERM. This Agreement shall commence upon its execution and
delivery and shall terminate when all Interest, Principal and Premiums have been
paid in full. Any remaining investment earnings on deposit in the Distribution
Account, after all Interest, Principal and Premiums have been paid in full,
shall be distributed to Bank of America, National Association, as issuer of the
Letter of Credit.
SECTION 11. AMENDMENTS. This Agreement may be amended only by an
instrument in writing signed by the parties hereto and only if: (a) there is
delivered to the Trustee and the Indenture Trustee (i) an Opinion of Counsel
that (x) such amendment will not cause or constitute an event in which gain or
loss would be recognized by any Noteholder and (y) this Agreement as amended
complies with the provision of Section 4.3 of the Indenture and Section 12.5 of
the Pooling and Servicing Agreement and (ii) the prior written consent of such
amendment by the Enhancement Provider, and (b) the Rating Agency Condition with
respect to the Notes shall have been satisfied.
SECTION 12. NONPETITION COVENANT. To the fullest extent permitted by
applicable law, notwithstanding any prior termination of this Agreement, the
Transferor, the Servicer, the Trustee (in its capacity as Trustee hereunder and
not in its individual capacity), the Indenture Trustee (in its capacity as
Indenture Trustee hereunder and not in its individual capacity), the Transfer
Agent and Registrar and each Paying Agent shall not, prior to the date which is
one year and one day after the termination of this Agreement with respect to the
FNANB Note Trust, acquiesce, petition or otherwise invoke or cause the FNANB
Note Trust to invoke the process of any Governmental Authority for the purpose
of commencing or sustaining a case against the FNANB Note Trust under any
Federal or state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the FNANB Note Trust or any substantial part of its property or ordering the
winding-up or liquidation of the affairs of the FNANB Note Trust.
SECTION 13. SEVERABILITY. If any one or more of the covenants or
agreements provided in this Agreement on the part of Fleet Bank (RI), FNANB Note
Trust, the Trustee, or the Indenture Trustee to be performed should be
determined by a court of competent jurisdiction to be contrary to law, such
covenant or agreement herein contained shall be deemed and construed to be
severable from the remaining covenants and agreements and shall in no way affect
the validity of the remaining provisions of this Agreement.
SECTION 14. NOTICES. (a) Notices, instructions and other communications
shall be sent to the Trustee as follows:
JPMorgan Chase Bank
4 New York Plaza, 6th Floor
New York, New York 10004
Attention: ITS Structured Finance
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) Notices, instructions and other communications shall be sent to the
Indenture Trustee as follows:
JPMorgan ▇▇▇▇▇ ▇▇▇▇
▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Structured Finance Department
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
(c) Notices, instructions and other communications shall be sent to the
Transferor and Servicer as follows:
Fleet Bank (RI), National Association
Mail Code: NC1-001-08-20
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Asset Securitization
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Fleet Bank (RI), National Association
Mail Code: NC1-002-29-01
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Associate General Counsel
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
(d) Notices, instructions and other communications shall be sent to the
Issuer as follows:
FNANB Credit Card Master Note Trust
c/o Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
SECTION 15. COUNTERPARTS. This Agreement may be executed in several
counterparts, all or any of which shall be regarded for all purposes as
duplicate originals and shall constitute and be one and the same instrument.
SECTION 16. OWNER TRUSTEE. It is expressly understood and agreed by the
parties that (a) this document is executed and delivered by Wilmington Trust
Company, not individually or personally, but solely as Owner Trustee, pursuant
to instruction and in the exercise of the powers and authority conferred and
vested in it, pursuant to the FNANB Trust Agreement, (b) each of the
representations, undertakings and agreements herein made on the part of the
Issuer is made and intended not as personal representations, undertakings and
agreements by Wilmington Trust Company but is made and intended for the purpose
for binding only the Issuer, (c) nothing herein contained shall be construed as
creating any liability on Wilmington Trust Company, individually or personally,
to perform any covenant either expressed or implied contained herein, all such
liability, if any, being expressly waived by the parties hereto and by an person
claming by, through or under the parties hereto, and (d) under no circumstances
shall Wilmington Trust
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Company be personally liable for the payment of any indebtedness or expenses of
the Issuer or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Issuer under this
Trust Agreement or any other related documents.
SECTION 17. GOVERNING LAW. This Agreement 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 parties hereto have caused this Trust Agreement to
be executed by their duly authorized officers as of the date first above
written.
FLEET BANK (RI), NATIONAL ASSOCIATION,
as Transferor and Servicer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
Title: President
FNANB CREDIT CARD MASTER
NOTE TRUST,
as Issuer
By: Wilmington Trust Company,
not in its individual capacity but
solely as Owner Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Financial Services Officer
JPMORGAN CHASE BANK,
not in its individual capacity, but
solely as Trustee pursuant to the
Pooling and Servicing Agreement
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Vice President
JPMORGAN CHASE BANK,
not in its individual capacity, but
solely as Indenture Trustee
pursuant to the Indenture
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Vice President
11
EXHIBIT A
FORM OF
AGREEMENT OF RELEASE
Fleet Bank (RI), National Association, a national banking association (the
"Transferor"), as Transferor under the Second Amended and Restated Master
Pooling and Servicing Agreement dated as of November 18, 2003 (the "Amended and
Restated Pooling and Servicing Agreement"), among the Transferor, Fleet Bank
(RI), National Association, as Servicer and JPMorgan Chase Bank, as trustee (the
"Trustee") and Ambac Assurance Corporation (the "Enhancement Provider"), as
Enhancement Provider under the Amended and Restated Pooling and Servicing
Agreement have entered into this Agreement of Release dated as of September 16,
2004 in connection with the creation of a Trust Agreement dated as of September
16, 2004 (the "Trust Agreement") among Fleet Bank (RI), National Association,
the FNANB Credit Card Master Note Trust and JPMorgan Chase Bank, as Trustee and
as Indenture Trustee.
WHEREAS, the Transferor has arranged for the deposit of a letter of credit
with the Trustee to be held in an escrow account created under the Trust
Agreement for the benefit of the Noteholders and the Enhancement Provider in
substitution for the Receivables under the Amended and Restated Pooling and
Servicing Agreement; and
WHEREAS, the Transferor has requested that the Enhancement Provider agree
and consent to such deposit and to the defeasance of the Amended and Restated
Pooling and Servicing Agreement and the release of the Receivables;
WHEREAS, the Enhancement Provider has so agreed and consented;
NOW, THEREFORE, in consideration of the reciprocal agreements of the
Transferor and the Enhancement Provider and for other consideration the
sufficiency of which is hereby recognized, the Transferor and the Enhancement
Provider hereby agree:
1. The Transferor hereby exercises its option and rights under Section
12.5 of the Amended and Restated Pooling and Servicing Agreement to be
discharged from all of its obligations under the Amended and Restated Pooling
and Servicing Agreement, including all supplements thereto with respect to all
outstanding Series except to the extent that such obligations survive, as
provided in Section 12.5(a) of the Amended and Restated Pooling and Servicing
Agreement and in Section subsection (a) of Section 7 of the Trust Agreement.
2. The Transferor and the Enhancement Provider agree that the letter of
credit, upon deposit with the Trustee, shall be in substitution for the
Receivables.
3. The Transferor and the Enhancement Provider, therefore, agree, that the
Trustee shall be and hereby is directed to release the Receivables and any
remaining Trust Property to the Transferor as provided in subsection (b) of
Section 7 of the Trust Agreement.
4. All terms used in this Agreement and not defined herein shall have the
meaning assigned to such terms in the Trust Agreement.
5. This Agreement and each written agreement relating hereto may be
executed in counterparts, each of which will be deemed an original.
6. This Agreement, and each written agreement relating hereto will, unless
otherwise expressly provided, be governed by and construed in accordance with
the laws of the State of New York, without reference to choice of law doctrine
(other than Section 5-1401 of the General Obligations Law).
IN WITNESS WHEREOF, the parties have executed this Agreement of Release as
of the date first above written.
FLEET BANK (RI), NATIONAL ASSOCIATION,
as Transferor
By:
------------------------------------
Name:
Title:
AMBAC ASSURANCE CORPORATION,
as Enhancement Provider
By:
------------------------------------
Name:
Title:
JPMorgan Chase Bank,
not in its individual capacity, but solely as Trustee
pursuant to the Amended and Restated Pooling and
Servicing Agreement
hereby acknowledges receipt of this Agreement
of Release and the directions set for herein.
By:
-----------------------------------
Name:
Title:
-2-
EXHIBIT B
FORM OF
AGREEMENT OF RELEASE
FNANB Credit Card Master Trust ("FNANB Note Trust"), a statutory trust
(the "Issuer"), as Issuer under the Master Indenture dated as of July 1, 2002,
(as amended, the "Master Indenture"), as supplemented by (i) the Series 2002-A
Indenture Supplement, dated as of July 19, 2002 (as thereafter amended, the
"Series 2002-A Supplement") and (ii) the Series 2003-A Indenture Supplement,
dated as of May 29, 2003 (as thereafter amended, the "Series 2003-A Supplement"
and, together with the Series 2002-A Supplement, the "Supplements" and, the
Supplements together with the Master Indenture, the "Indenture"), each executed
in connection with the Series 2002-A Notes and the Series 2003-A Notes,
respectively (the "Notes"), and each by and among the Issuer and JPMorgan Chase
Bank, as the Indenture Trustee of the FNANB Note Trust and Ambac Assurance
Corporation (the "Enhancement Provider"), as Enhancement Provider under the
Indenture have entered into this Agreement of Release dated as of September 16,
2004 in connection with the creation of a Trust Agreement dated as of September
16, 2004 (the "Trust Agreement") among Fleet Bank (RI), National Association
("Fleet Bank (RI)"), the Issuer and JPMorgan Chase Bank, as Trustee (the
"Trustee") and as Indenture Trustee.
WHEREAS, the Issuer has arranged for the deposit of a letter of credit
(the "Letter of Credit") with the Trustee to be held in an escrow account
created under the Trust Agreement for the benefit of the Noteholders and the
Enhancement Provider for the purposes of (i) paying and discharging all
remaining scheduled interest and principal payments on all outstanding Notes,
and all amounts owing to the Enhancement Provider on the dates scheduled for
such payments pursuant to the Indenture and (ii) discharging all of the Issuer's
obligations under the Indenture and releasing all amounts held in the Spread
Account as defined in the Series 2002-A Supplement and the Spread Account as
defined in the Series 2003-A Supplement (the "Defeasance"); and
WHEREAS, the Issuer has requested that the Enhancement Provider agree and
consent to such deposit of the Letter of Credit and to the Defeasance;
WHEREAS, the Enhancement Provider has so agreed and consented;
NOW, THEREFORE, in consideration of the reciprocal agreements of the
Issuer and the Enhancement Provider and for other consideration the sufficiency
of which is hereby recognized, the Issuer and the Enhancement Provider hereby
agree:
1. The Issuer hereby exercises its option and rights under Section 4.3 of
the Master Indenture to be discharged from all of its obligations under the
Master Indenture, including all
supplements thereto with respect to all outstanding Series except to the extent
that such obligations survive, as provided in Section 4.3(a) of the Master
Indenture and in subsection (a) of Section 7 of the Trust Agreement.
2. The Issuer and the Enhancement Provider agree that the Letter of
Credit, upon deposit with the Trustee, shall cause the Defeasance.
3. The Issuer and the Enhancement Provider, therefore, agree, that the
Indenture Trustee shall be and hereby is directed to release all amounts in the
Spread Account as defined in the Series 2002-A Supplement and the Spread Account
as defined in the Series 2003-A Supplement to the Transferor as provided in
subsection (b) of Section 7 of the Trust Agreement.
4. All terms used in this Agreement and not defined herein shall have the
meaning assigned to such terms in the Trust Agreement.
5. This Agreement and each written agreement relating hereto may be
executed in counterparts, each of which will be deemed an original.
6. This Agreement, and each written agreement relating hereto will, unless
otherwise expressly provided, be governed by and construed in accordance with
the laws of the State of New York, without reference to choice of law doctrine
(other than Section 5-1401 of the General Obligations Law).
7. Section 16 of the Trust Agreement is incorporated herein by reference.
IN WITNESS WHEREOF, the parties have executed this Agreement of Release as
of the date first above written.
FNANB CREDIT CARD MASTER TRUST,
as Issuer
By: Wilmington Trust Company,
not in its individual capacity but
solely as Owner Trustee
By:
------------------------------------
Name:
Title:
AMBAC ASSURANCE CORPORATION,
as Enhancement Provider
By:
------------------------------------
Name:
Title:
JPMorgan Chase Bank,
not in its individual capacity, but solely as Indenture Trustee
pursuant to the Indenture
hereby acknowledges receipt of this Agreement
of Release and the directions set for herein.
By:
-----------------------------------
Name:
Title:
EXHIBIT C
Servicer's Report
[Date]
JPMorgan Chase Bank,
as Indenture Trustee
▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Structured Finance Department
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Re: FNANB Credit Card Master Note Trust,
[Series 2002-A] [Series 2003-A]
Pursuant to the Trust Agreement dated as of September 16, 2004 (the
"Trust Agreement"), among Fleet Bank (RI), National Association, FNANB Credit
Card Master Note Trust and JPMorgan Chase Bank, as trustee and indenture
trustee, Fleet Bank (RI), National Association, as Servicer (the "Servicer") is
required to report certain information for each Distribution Date relating to
the Payments to [the Series 2002-A Noteholders] [the Series 2003-A Noteholders].
The information with respect to such Distribution Date is set forth below.
1. Distribution Date:
--------------------
2. Amount of Interest due and paid: $
--------------------
3. Amount of Principal due and paid: $
-------------------
Capitalized terms used in this report and not otherwise defined
herein shall have the meanings set forth in the Trust Agreement.
FLEET BANK (RI), NATIONAL ASSOCIATION,
as Servicer
By:
-----------------------------------
Name:
Title:
