EXHIBIT 4.7
[EXECUTION COPY]
AMENDMENT NO. 2 TO
TRUST AGREEMENT
AMENDMENT NO. 2 TO TRUST AGREEMENT, dated as of November 18,
2003 (this "Amendment"), between FLEET BANK (RI), NATIONAL ASSOCIATION, a
national banking association ("Fleet"), as Transferor, and WILMINGTON TRUST
COMPANY, a Delaware banking corporation, as Owner Trustee (in such capacity, the
"Owner Trustee").
PRELIMINARY STATEMENTS
WHEREAS, DC Funding International, Inc., a Delaware
corporation ("DC Funding"), as Transferor, and the Owner Trustee entered into a
Trust Agreement dated as of July 1, 2002, as amended (the "Agreement");
WHEREAS, DC Funding, as Transferor, First North American
National Bank, a national banking association, as Servicer, Fleet, JPMorgan
Chase Bank, a New York banking corporation and successor trustee to First Union
National Bank, as Trustee, and the FNANB Credit Card Master Note Trust, a
statutory trust organized under the laws of the State of Delaware, as Issuer,
are parties to an Assignment and Assumption Agreement dated as of November 18,
2003 pursuant to which DC Funding has assigned to Fleet all of DC Funding's
rights as Transferor under the Agreement and Fleet has assumed the performance
of every covenant and obligation of DC Funding as Transferor under 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, with
the consent of the Indenture Trustee and the Holders of Notes evidencing not
less than 66-2/3% of the Invested Amount of the Notes, subject to certain
limitations set forth therein, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Agreement or
of modifying in any manner the rights of the Noteholders; and
WHEREAS, Fleet, as the new Transferor under the Agreement, and
the Owner Trustee 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. Substitution of Fleet, as Transferor, for DC
Funding, as Transferor. On and after the Assumption Date, all references in the
Agreement to DC Funding, as
Transferor, shall be deemed to be references to Fleet, as Transferor, and all
references in the Agreement to the Transferor shall be deemed to be references
to Fleet in such capacity and not to DC Funding.
Section 3. Amendment of Section 2.6. Section 2.6 of the
Agreement is hereby amended by substituting "statutory trust" for "business
trust" in the fifth line of such section.
Section 4. Amendment of Section 2.9. Section 2.9 of the
Agreement is hereby amended by deleting subsection (a) of such section in its
entirety and by substituting the following therefor (solely for convenience,
changed text is italicized):
(a) Organization and Good Standing. Transferor is a
banking association duly organized, validly existing and in good
standing under the laws of the United States, and has full power,
authority and legal right to own its properties and conduct its
business as such properties are presently owned and such business is
presently conducted, to execute, deliver and perform its obligations
under this Agreement.
Section 5. Amendment of Section 10.4. Section 10.4 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):
10.4 Notices. Unless otherwise expressly specified or
permitted by the terms hereof, all notices and other communications
shall be in writing and shall be deemed given upon receipt by the
intended recipient or three (3) Business Days after mailing if mailed
by certified mail, postage prepaid (except that notice to Owner
Trustee, Transferor or Indenture Trustee shall be deemed given only
upon actual receipt by Owner Trustee, Transferor or Indenture Trustee),
if to Owner Trustee, addressed to the Corporate Trust Office; if to
Indenture Trustee, addressed to JPMorgan Chase Bank, 4 New York Plaza,
6th Floor, New York, New York 10004, Attention: ITS Structured Finance,
telecopy number (▇▇▇) ▇▇▇-▇▇▇▇, telephone number (▇▇▇) ▇▇▇-▇▇▇▇; if to
Transferor, addressed to 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 (▇▇▇) ▇▇▇-▇▇▇▇; or, as to each
party, at such other address as shall be designated by such party in a
written notice to each other party.
Section 6. 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.
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Section 7. 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 8. 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 9. 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, Fleet, as the new Transferor under the
Agreement, 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.
FLEET BANK (RI), NATIONAL ASSOCIATION
as Transferor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
FNANB Bankcard Portfolio Sale
Amendment No. 2 to Trust Agreement
November 18, 2003