EXHIBIT 4.9
[EXECUTION COPY]
FOURTH SUPPLEMENTAL INDENTURE
TO
MASTER INDENTURE
FOURTH SUPPLEMENTAL INDENTURE TO MASTER INDENTURE, dated as of
November 18, 2003 (this "Supplemental Indenture"), between FNANB CREDIT CARD
MASTER NOTE TRUST, a statutory trust organized and existing under the laws of
the State of Delaware (the "Issuer"), and JPMORGAN CHASE BANK, a bank organized
and existing under the laws of the State of New York ("JPMorgan"), not in its
individual capacity, but solely as Indenture Trustee (together with its
successors in the trusts thereunder as provided in the Master Indenture referred
to below, the "Indenture Trustee").
PRELIMINARY STATEMENTS
WHEREAS, the Issuer and the Indenture Trustee are parties to a
Master Indenture dated as of July 1, 2002 (as supplemented, the "Master
Indenture") relating to the issuance of asset backed notes by the FNANB Credit
Card Master Note Trust;
WHEREAS, DC Funding International, Inc., a Delaware
corporation ("DC Funding"), as Transferor, First North American National Bank, a
national banking association ("FNANB"), as Servicer, Fleet Bank (RI), National
Association, a national banking association (the "Bank"), JPMorgan, 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 Master Indenture (and all
Supplemental Indentures) and the Bank has assumed the performance of every
covenant and obligation of DC Funding as Transferor under the Master Indenture
(and all Supplemental Indentures) and (ii) FNANB has assigned to the Bank all of
FNANB's rights as Servicer under the Master Indenture (and all Supplemental
Indentures) and the Bank has assumed the performance of every covenant and
obligation of FNANB as Servicer under the Master Indenture (and all Supplemental
Indentures);
WHEREAS, Section 10.2 of the Master Indenture provides that
the Issuer and the Indenture Trustee, with the consent of the Holders of Notes
representing more than 66-2/3% of the principal balance of the Outstanding Notes
of each adversely affected Series, upon satisfaction of the Rating Agency
Condition and when authorized by an Issuer Order, may enter into one or more
indentures supplemental to the Master Indenture, among other purposes, to add
any provisions to, or to change in any manner or eliminate any of the provisions
of, the Master Indenture or to modify in any manner the rights of the Holders of
the Notes under the Master Indenture; and
WHEREAS, the Issuer and the Indenture Trustee are entering
into this Supplemental Indenture to amend the Master Indenture as set forth
herein;
NOW, THEREFORE, in consideration of the mutual agreements
contained herein, the Issuer and the Indenture Trustee agree as follows:
Section 1. Definitions. All terms used in the Preliminary
Statements or elsewhere in this Supplemental Indenture that are defined in the
Master Indenture have the meanings assigned to them therein, except to the
extent such terms are amended or modified in this Supplemental Indenture.
Section 2. Amendment of Section 3.4. Section 3.4 of the Master
Indenture is hereby amended by substituting "statutory trust" for "business
trust" in the second line of such section.
Section 3. Amendment of Section 3.9. Section 3.9 of the Master
Indenture is hereby amended by deleting subsection (a) of such section in its
entirety and by substituting the following therefor:
(a) sell, transfer, exchange, or otherwise dispose of
any part of the Collateral unless directed to do so by the Indenture
Trustee, except as expressly permitted by this Indenture and any
Indenture Supplement, the Trust Agreement or the Transfer and Servicing
Agreement;
Section 4. Amendment of Section 3.19. Section 3.19 of the
Master Indenture is hereby amended by deleting such section in its entirety and
by substituting the following therefor:
Section 3.19 Notice of Events of Default. The Issuer
agrees to give a Trustee Officer of the Indenture Trustee and the
Rating Agencies prompt written notice of each Event of Default
hereunder and written notice of each default on the part of the
Servicer or the Transferor of its obligations under the Transfer and
Servicing Agreement.
Section 5. Amendment of Section 5.1. Section 5.1 of the Master
Indenture is hereby amended by deleting such section in its entirety and by
substituting the following therefor (solely for convenience, changed text is
italicized):
Section 5.1 Early Amortization Events.
Unless modified with respect to any Series of Notes
by the Indenture Supplement for such Series, if any one of the
following events shall occur:
(a) the 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
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liabilities or similar proceeding, or 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 (any such event described in this clause (a), an
"Insolvency Event");
(b) the Issuer shall become an "investment company"
within the meaning of the 1940 Act; or
(c) on or after the Certificate Trust Termination
Date, the Transferor shall become unable for any reason to transfer
Receivables to the Issuer in accordance with the provisions of the
Transfer and Servicing Agreement;
then, an Early Amortization Event with respect to all Series then
outstanding shall occur without any notice or other action on the part
of the Indenture Trustee or the Noteholders immediately upon the
occurrence of such event. Upon a Responsible Officer of the Indenture
Trustee receiving actual notice thereof, the Indenture Trustee shall
advise the Rating Agencies in writing of the occurrence of any Early
Amortization Event.
Section 6. Amendment of Section 8.3. The third paragraph of
Section 8.3(f) of the Master Indenture is hereby amended by deleting the third,
fourth and fifth sentences of such paragraph in their entirety and by
substituting the following therefor (solely for convenience, changed text is
italicized):
On each Business Day, the Servicer shall determine the Transferor
Amount, the Minimum Transferor Amount, the Aggregate Principal
Receivables and the Minimum Aggregate Principal Receivables. If, on any
Business Day, the Transferor Amount exceeds the Minimum Transferor
Amount and the Aggregate Principal Receivables exceeds the Minimum
Aggregate Principal Receivables, the Servicer may instruct the
Indenture Trustee in writing to withdraw an amount equal to the lesser
of such excess amounts (but not to exceed the Excess Funding Amount)
from the Excess Funding Account on such day and pay such amount to the
Holder of the Exchangeable Transferor Certificate. If, on any Business
Day, the Minimum Transferor Amount exceeds the Transferor Amount or the
Minimum Aggregate Principal Receivables exceeds the Aggregate Principal
Receivables, the Servicer shall deposit Collections of Principal
Receivables that would otherwise be distributed to the Transferor on
such day into the Excess Funding Account on such day in an amount equal
to the greater of such excess amounts.
Section 7. Amendment of Section 12.4. Section 12.4 of the
Master Indenture is hereby amended by deleting the last sentence of subsection
(b) of such section in its entirety and by substituting the following therefor
(solely for convenience, changed text is italicized):
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A copy of each notice to the Issuer shall be sent in writing and
mailed, first-class postage prepaid, to the Administrator at Fleet Bank
(RI), National Association, c/o Fleet Credit Card Services, L.P., Mail
Stop: PA EH 066 02L, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: President, telecopy number (▇▇▇) ▇▇▇-▇▇▇▇, telephone number
(▇▇▇) ▇▇▇-▇▇▇▇, with a copy to General Counsel, Fleet Bank (RI),
National Association, Mail Stop: PA EH 066 03S, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, telecopy number (▇▇▇) ▇▇▇-▇▇▇▇, telephone
number (▇▇▇) ▇▇▇-▇▇▇▇.
Section 8. Amendment of Exhibits. The Master Indenture is
hereby amended by adding as Exhibit A to the Master Indenture the exhibit
attached as Exhibit A to this Supplemental Indenture.
Section 9. Amendment of Annex A.
(a) Annex A to the Master Indenture is hereby amended by
deleting the definition of "Circuit City."
(b) Annex A to the Master Indenture is hereby amended by
adding the following definitions:
"Assignment and Assumption Agreement" means the
Assignment and Assumption Agreement dated as of November 18, 2003 among
DC Funding, FNANB, the Bank, the Trustee (as defined in the Pooling and
Servicing Agreement) and the Issuer, as amended, supplemented or
otherwise modified from time to time.
"Assumption Date" means November 18, 2003.
"FNANB" means First North American National Bank, a
national banking association, and any successor thereto.
"Restructure Date" means December 31, 2001.
(c) Annex A to the Master Indenture is hereby amended by
deleting clause (v) of the definition of "Eligible Investments" in its entirety
and by substituting the following therefor (solely for convenience, changed text
is italicized):
(v) money market funds having, at the time of
investment, a rating in the highest rating category assigned by Moody's
and Standard & Poor's (and a rating in the highest rating category
assigned by Fitch if Fitch is a Rating Agency for any then outstanding
Series and such money market funds are rated by Fitch), including,
without limitation, money market funds for which the Trustee (as
defined in the Pooling and Servicing Agreement) or the Indenture
Trustee or any Affiliate of the Trustee (as defined in the Pooling and
Servicing Agreement) or the Indenture Trustee is investment manager or
advisor;
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(d) Annex A to the Master Indenture is hereby amended by
deleting clauses (iii), (iv), (v) and (xii) of the definition of "Eligible
Receivable" in their entirety and by substituting the following therefor (solely
for convenience, changed text is italicized):
(iii) with respect to which all material consents,
licenses, approvals or authorizations of, or registrations with, any
Governmental Authority required to be obtained or given by FNANB (in
the case of a Receivable created before the Assumption Date) or the
Bank (in the case of a Receivable created on or after the Assumption
Date) in connection with the creation of such Receivable or the
execution, delivery and performance by FNANB (in the case of a
Receivable created before the Assumption Date) or the Bank (in the case
of a Receivable originated on or after the Assumption Date) of the
related Account Agreement have been duly obtained or given and are in
full force and effect as of such date of creation;
(iv) which, in the case of a Receivable created on or
after the Restructure Date but before the Assumption Date, has been the
subject of a valid sale by FNANB to DC Funding of all of FNANB's right,
title and interest in such Receivable pursuant to the Receivables
Purchase Agreement;
(v) (A) which, in the case of a Receivable created on
or after the Certificate Trust Termination Date, has been the subject
of either a valid transfer and assignment from the Transferor to the
Issuer of all of the Transferor's right, title and interest therein or
the grant of a first priority perfected security interest therein (and
in the proceeds thereof to the extent set forth in Section 9-315 of the
UCC as in effect in the Relevant UCC State), effective until the
termination of the Issuer, and (B) as to which, in the case of a
Receivable created on or after the Certificate Trust Termination Date,
at the time of the transfer of such Receivable to the Issuer, the
Transferor or the Issuer will have good and marketable title, free and
clear of all Liens (other than Liens permitted under Section 2.5(b) of
the Transfer and Servicing Agreement);
(xii) which was originated by FNANB (in the case of a
Receivable originated before the Assumption Date) or the Bank (in the
case of a Receivable originated on or after the Assumption Date) in the
ordinary course of business.
(e) Annex A to the Master Indenture is hereby amended by
deleting the definitions of "Account," "Account Agreements," "Account
Guidelines," "Administrator," "Bank," "Business Day," "Business Trust Statute,"
"Corporate Trust Office," "Creation Date," "Eligible Account," "Excess Automatic
Additional Accounts," "Insurance Policies," "Interchange," "Interchange Amount,"
"Lien," "Minimum Aggregate Principal Receivables," "Pooling and Servicing
Agreement," "Receivables Purchase Agreement," "Relevant UCC State," "Transfer
and Servicing Agreement," "Transferred Account," "Transferor," "Trust" and
"Trust Agreement" in their entirety and by substituting the following therefor
(solely for convenience, changed text is italicized):
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"Account" means each MasterCard(R) or VISA(R) credit
card account originated by FNANB or the Bank which (i) is identified in
the Bank's master computer files or other appropriate books and records
as an account subject to the Pooling and Servicing Agreement or the
Transfer and Servicing Agreement or (ii) is identified in a computer
file or microfiche list delivered to the Trustee (as defined in the
Pooling and Servicing Agreement) by the Transferor (or its
predecessors) pursuant to Section 2.1 or 2.6 of the Pooling and
Servicing Agreement or to the Indenture Trustee by the Transferor
pursuant to Section 2.1 or 2.6 of the Transfer and Servicing Agreement.
The term "Account" shall include (A) each Transferred Account, (B) each
Additional Account, but only from and after the Additional Account
Closing Date with respect thereto, (C) each Automatic Additional
Account, but only from and after the Creation Date with respect
thereto, and (D) each Removed Account, but only prior to the Removal
Date with respect thereto.
"Account Agreements" means the account agreements
substantially in the forms attached as Exhibit A, as such agreements
may be amended from time to time.
"Account Guidelines" means the written policies and
procedures of the Bank relating to the servicing of the Accounts,
including, without limitation, the policies and procedures for
determining the creditworthiness of customers and the extension of
credit to customers and relating to the maintenance of MasterCard and
VISA credit card accounts and the collection of receivables, as such
policies and procedures may be amended from time to time in accordance
with Section 2.5(c) of the Pooling and Servicing Agreement and Section
2.5(c) of the Transfer and Servicing Agreement.
"Administrator" means the Bank, in its capacity as
administrator under the Administration Agreement, and any successor in
that capacity.
"Bank" means Fleet Bank (RI), National Association, a
national banking association, and any successor thereto.
"Business Day" means any day other than a Saturday, a
Sunday or a day on which banking institutions in Philadelphia,
Pennsylvania or New York, New York (or, with respect to any Series, any
additional city specified in the related Supplement) are authorized or
obligated by law or executive order to be closed.
"Business Trust Statute" means Title 12, Chapter 38
of the Delaware Code, which chapter was amended effective as of
September 1, 2002 to substitute, in general, "statutory trust" for
"business trust" throughout such chapter.
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"Corporate Trust Office" means
(a) for the Indenture Trustee, the principal office
at which at any particular time its corporate trust business shall be
administered, which office at the Assumption Date is located at ▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; and
(b) for the Owner Trustee, the principal office at
which at any particular time its corporate trust business shall be
administered, which office at the Assumption Date is located at ▇▇▇▇▇▇
Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Corporate Trust Administration.
"Creation Date" means (i) with respect to any
Account, the Business Day on which such Account is first identified in
accordance with Section 2.1 or 2.6 of the Pooling and Servicing
Agreement or Section 2.1 or 2.6 of the Transfer and Servicing Agreement
as an account subject to the Pooling and Servicing Agreement or the
Transfer and Servicing Agreement and (ii) with respect to any
Receivable, the date on which such Receivable is created.
"Eligible Account" means, with respect to Accounts
existing on the Initial Closing Date, as of the Initial Cut-Off Date,
with respect to Additional Accounts, as of the related Additional
Account Cut-Off Date, and with respect to Automatic Additional Accounts
(including Automatic Additional Accounts included as Accounts prior to
the Certificate Trust Termination Date), as of the related Creation
Date, each Account (i) which is in existence and owned by FNANB (before
the Assumption Date) or the Bank (on or after the Assumption Date),
(ii) which is payable in United States dollars, (iii) the credit card
or cards related to which have not been reported lost or stolen or
designated fraudulent, (iv) which was created in accordance with, or
under standards no less stringent than, the Account Guidelines, (v)
which is not identified by FNANB (in the case of Accounts for which the
Creation Date is before the Assumption Date) or the Bank (in the case
of Accounts for which the Creation Date is on or after the Assumption
Date) in its computer files as having been canceled due to the
bankruptcy, insolvency or death of the related Obligor, (vi) the
receivables in which have not been charged off as uncollectible prior
to the Initial Cut-Off Date, the Additional Account Cut-Off Date or the
Creation Date, as applicable, in accordance with the Account
Guidelines, (vii) the receivables in which have not been assigned,
pledged or sold (other than pursuant to the Receivables Purchase
Agreement, the Pooling and Servicing Agreement or the Transfer and
Servicing Agreement), (viii) the Obligor of which has provided, as its
most recent billing address, an address in the United States or its
territories or possessions or a United States military address
(provided, however, that up to 1% of the Accounts (based on the
aggregate outstanding balance of the receivables in such Accounts as a
percentage of the aggregate outstanding balance of all Receivables) may
have an Obligor which has provided, as its most recent billing address,
an address outside the United States and its territories and
possessions which is not a United States
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military address) and (ix) with respect to which neither the Transferor
nor any Affiliate of the Transferor is the Obligor.
"Excess Automatic Additional Accounts" means, with
respect to any calendar quarter or any period of twelve consecutive
months, all Automatic Additional Accounts designated by FNANB or the
Transferor during such calendar quarter or such twelve month period
after the designation of the Automatic Additional Account that caused
the number of Automatic Additional Accounts designated during such
calendar quarter or such twelve month period to equal the applicable
Aggregate Automatic Addition Limit.
"Insurance Policies" means any credit insurance
policies offered through FNANB or the Bank with respect to the
Accounts.
"Interchange" means interchange fees payable to the
Bank, in its capacity as credit card issuer, through MasterCard
International Incorporated or VISA USA Incorporated, with respect to
the Accounts.
"Interchange Amount" means, with respect to any
Collection Period, the amount of Interchange paid to the Bank with
respect to such Collection Period.
"Lien" means any security interest, mortgage, deed of
trust, pledge, hypothecation, assignment, participation, deposit
arrangement, encumbrance, lien (statutory or other), preference,
priority right or interest or other security agreement or preferential
arrangement of any kind or nature whatsoever, including, without
limitation, any conditional sale or other title retention agreement,
any financing lease having substantially the same economic effect as
any of the foregoing, other than any lien or filing made pursuant to
the Indenture, any assignment or transfer made pursuant to Section 6.9
or 7.2 of the Pooling and Servicing Agreement, any assignment or
transfer made pursuant to the Assignment and Assumption Agreement, any
assignment or transfer made pursuant to Section 3.8 of the Indenture,
or any assignment or transfer made pursuant to Section 4.2 of the
Transfer and Servicing Agreement.
"Minimum Aggregate Principal Receivables" means, on
any date of determination, an amount equal to the aggregate of the
amounts set forth in each Indenture Supplement for each then
outstanding Series as the "Minimum Aggregate Principal Receivables" for
such Series on such date minus the Excess Funding Amount on such date.
"Pooling and Servicing Agreement" means the Second
Amended and Restated Master Pooling and Servicing Agreement dated as of
November 18, 2003 between the Bank and JPMorgan Chase Bank (successor
trustee to First Union National Bank), as the same may be amended,
supplemented or otherwise modified from time to time.
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"Receivables Purchase Agreement" means the
Receivables Purchase Agreement dated as of December 31, 2001, as
amended, between FNANB and DC Funding, and acknowledged and accepted by
the Trustee (as defined in the Pooling and Servicing Agreement), which
agreement was terminated as of the Assumption Date.
"Relevant UCC State" means (i) before the Certificate
Trust Termination Date, all jurisdictions where a UCC filing is
required to perfect and maintain the security interest of the Trustee
(as defined in the Pooling and Servicing Agreement) in the Receivables
and the proceeds thereof and (ii) on and after the Certificate Trust
Termination Date, all jurisdictions where a UCC filing is required to
perfect and maintain the security interest of the Issuer in the
Receivables and the proceeds thereof.
"Transfer and Servicing Agreement" means the Transfer
and Servicing Agreement dated as of July 1, 2002, as amended, between
the Issuer and the Bank, and acknowledged and accepted by the Indenture
Trustee, as the same by be amended, supplemented or modified from time
to time.
"Transferor" means the Bank, as transferor of the
Receivables created on or after the Assumption Date.
"Transferred Account" means a MasterCard or VISA
credit card account with respect to which a new credit card account
number has been issued by FNANB or the Bank in accordance with its
usual and customary servicing practices and in accordance with the
Account Guidelines, and which can be traced or identified by reference
to or by way of the computer files or microfiche lists delivered to the
Trustee (as defined in the Pooling and Servicing Agreement) pursuant to
Sections 2.1 and 2.6 of the Pooling and Servicing Agreement or to the
Indenture Trustee pursuant to Sections 2.1 and 2.6 of the Transfer and
Servicing Agreement as an account into which an Account has been
transferred (including such transfers occurring between the Initial
Cut-Off Date and the Initial Closing Date and between any Additional
Account Cut-Off Date and the related Additional Account Closing Date).
"Trust" means the FNANB Credit Card Master Note
Trust, a Delaware statutory trust.
"Trust Agreement" means the Trust Agreement dated as
of July 1, 2002, as amended, between the Bank and the Owner Trustee, as
the same may be amended, supplemented or otherwise modified from time
to time.
Section 10. Incorporation of Master Indenture. The Master
Indenture as amended by this Supplemental Indenture 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 Master Indenture, the terms and provisions of this Supplemental Indenture
shall
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govern. After the date hereof, any reference to the Master Indenture shall mean
the Master Indenture as amended by this Supplemental Indenture.
Section 11. Ratification of Master Indenture. As amended by
this Supplemental Indenture, the Master Indenture is in all respects ratified
and confirmed, and the Master Indenture and this Supplemental Indenture shall be
read, taken and construed as one and the same instrument.
Section 12. Counterparts. This Master Indenture 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 13. Governing Law. THIS SUPPLEMENTAL INDENTURE 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 Issuer and the Indenture Trustee have
caused this Supplemental Indenture to be duly executed by their respective
officers as of the day and year first above written.
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: Assistant Vice President
JPMORGAN CHASE BANK,
not in its individual capacity but
solely as Indenture Trustee
By: /s/ Wen ▇▇▇ ▇▇▇▇
--------------------------------
Name: Wen ▇▇▇ ▇▇▇▇
Title: Asst. Vice President
Acknowledged and Accepted:
FLEET BANK (RI), NATIONAL ASSOCIATION,
as Transferor and as Servicer
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
FNANB Bankcard Portfolio Sale
Fourth Supplemental Indenture to Master Indenture
November 18, 2003
Exhibit A
Account Agreements
[TO BE ATTACHED]
