Exhibit 4.7
FORM OF FIRST AMENDMENT
TO
THE NATIONAL CITY CREDIT CARD MASTER NOTE TRUST
INDENTURE
THIS FIRST AMENDMENT TO THE NATIONAL CITY CREDIT CARD MASTER NOTE TRUST
INDENTURE, dated as of [ ], 200[ ](this "Amendment") is by and between the
NATIONAL CITY CREDIT CARD MASTER NOTE TRUST, a statutory trust created under the
laws of the State of Delaware, as Issuer, and THE BANK OF NEW YORK, a New York
banking corporation, as Indenture Trustee.
WHEREAS the Issuer and the Indenture Trustee have executed that certain
Indenture, dated as of August 23, 2005 (as amended and supplemented through the
date hereof and as the same may be further amended, supplemented or otherwise
modified and in effect from time to time, the "Indenture");
WHEREAS the Issuer and the Indenture Trustee wish to amend the Indenture as
provided herein;
NOW THEREFORE, in consideration of the promises and the agreements
contained herein, the parties hereto agree to amend the provisions of the
Indenture as follows:
SECTION 1. Amendment of Section 101. Section 101 of the Indenture is hereby
amended by adding the following definitions in the appropriate alphabetical
order:
"Regulation AB" means Subpart 229.1100 -- Asset Backed Securities
(Regulation AB), 17 C.F.R. Sections 229.1100-229.1123, as such may be
amended from time to time, and subject to such clarification and
interpretation as have been provided by the Commission in the adopting
release (Asset-Backed Securities, Securities Act Release No. 33-8518, 70
Fed. Reg. 1,506, 1,531 (January 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to time.
"Sarbanes Certification" is defined in Section 1504(iii).
"Securitization Transaction" means any issuance of new Notes of any
series, class or tranche, pursuant to Section 310, whether publicly offered
or privately placed, rated or unrated.
"Servicing Criteria" means the "servicing criteria" set forth in Item
1122(d) of Regulation AB, as such may be amended from time to time.
SECTION 2. Amendment of Section 310. Section 310(b) of the Indenture is
hereby amended by adding the following sentence at the end of such Section:
In addition, the Issuer agrees to provide notice of new issuances of
series, classes or tranches of Notes as may be required by and in
accordance with Item 1121(a)(14) of Regulation AB.
SECTION 3. Amendment to the Indenture Supplement. The Indenture is hereby
amended by adding the following new Article XV after Article XIV of the
Indenture:
ARTICLE XV
COMPLIANCE WITH REGULATION AB
Section 1501. Intent of the Parties; Reasonableness. National City and
the Indenture Trustee acknowledge and agree that the purpose of this
Article XV is to facilitate compliance by National City with the provisions
of Regulation AB and related rules and regulations of the Commission.
National City shall not exercise its right to request delivery of
information or other performance under these provisions other than in good
faith, or for purposes other than National City's compliance with the
Securities Act, the Securities Exchange Act and the rules and regulations
of the Commission thereunder (or the provision in a private offering of
disclosure comparable to that required under the Securities Act). The
Indenture Trustee agrees to cooperate in good faith with any reasonable
request by National City for information regarding the Indenture Trustee
which is required in order to enable National City to comply with the
provisions of Items 1109(a), 1109(b), 1117, 1118, 1119 and 1122 of
Regulation AB as it relates to the Indenture Trustee or to the Indenture
Trustee's obligations under this Indenture or any Indenture Supplement.
Section 1502. Additional Representations and Warranties of the
Indenture Trustee. The Indenture Trustee shall be deemed to represent to
National City, as of the date on which information is provided to National
City under Section 1503 that, except as disclosed in writing to National
City prior to such date: (i) neither the execution or the delivery by the
Indenture Trustee of this Indenture or any Indenture Supplement, the
performance by the Indenture Trustee of its obligations under this
Indenture or any Indenture Supplement nor the consummation of any of the
transactions by the Indenture Trustee contemplated thereby, is in violation
of any indenture, mortgage, bank credit agreement, note or bond purchase
agreement, long-term lease, license or other agreement or instrument to
which the Indenture Trustee is a party or by which it is bound, which
violation would have a material adverse effect on the Indenture Trustee's
ability to perform its obligations under this Indenture or any Indenture
Supplement, or of any judgment or order applicable to the Indenture
Trustee; and (ii) there are no proceedings pending or threatened against
the Indenture Trustee in any court or before any governmental authority,
agency or arbitration board or tribunal which, individually or in the
aggregate, would have a material adverse effect on the right, power and
authority of the Indenture Trustee to enter into this Indenture or any
Indenture Supplement or to perform its obligations under this Indenture or
any Indenture Supplement.
Section 1503. Information to Be Provided by the Indenture Trustee. The
Indenture Trustee shall (i) on or before the [[___] Business Day of each
month], provide
to National City, in writing, such information regarding the Indenture
Trustee as is requested for the purpose of compliance with Item 1117 of
Regulation AB, and (ii) as promptly as practicable following notice to or
discovery by the Indenture Trustee of any changes to such information,
provide to National City, in writing, such updated information.
(a) The Indenture Trustee shall (i) on or before the[___] Business Day
of each [_______], provide to National City such information regarding the
Indenture Trustee as is requested for the purpose of compliance with Items
1103(a)(1), 1109(a), 1109(b), 1118 and 1119 of Regulation AB, and (ii) as
promptly as practicable following notice to or discovery by the Indenture
Trustee of any changes to such information, provide to National City, in
writing, such updated information. Such information shall include, at a
minimum:
(A) the Indenture Trustee's name and form of organization;
(B) a description of the extent to which the Indenture Trustee
has had prior experience serving as a trustee for asset-backed
securities transactions involving credit card receivables;
(C) a description of any affiliation or relationship between the
Indenture Trustee and any of the following parties to a Securitization
Transaction, as such parties are identified to the Indenture Trustee
by National City in writing in advance of such Securitization
Transaction:
(1) the sponsor;
(2) any depositor;
(3) the issuing entity;
(4) any servicer;
(5) any trustee;
(6) any originator;
(7) any significant obligor;
(8) any enhancement or support provider; and
(9) any other material transaction party.
In connection with the above-listed parties, a description of whether
there is, and if so the general character of, any business
relationship, agreement, arrangement, transaction or understanding
that is entered into outside the ordinary course of business or is on
terms other than would be obtained in an arm's length transaction with
an unrelated third party, apart from the asset-backed securities
transaction, that currently exists or that existed during the past two
years and that is material to an investor's understanding of the
asset-backed securities.
Section 1504. Report on Assessment of Compliance and Attestation. On
or before March 15 of each calendar year, commencing in 2007, the Indenture
Trustee shall:
(i) deliver to National City a report regarding the Indenture
Trustee's assessment of compliance with the Servicing Criteria during
the immediately preceding calendar year, as required under Rules
13a-18 and 15d-18 of the Securities Exchange Act and Item 1122 of
Regulation AB. Such report shall be addressed to National City and
signed by an authorized officer of the Indenture Trustee, and shall
address each of the Servicing Criteria specified in Exhibit F hereto
or such criteria as mutually agreed upon by National City and the
Indenture Trustee;
(ii) deliver to National City a report of a registered public
accounting firm reasonably acceptable to National City that attests
to, and reports on, the assessment of compliance made by the Indenture
Trustee and delivered pursuant to the preceding paragraph. Such
attestation shall be in accordance with Rules 1-02(a)(3) and 2-02(g)
of Regulation S-X under the Securities Act and the Securities Exchange
Act; and
(iii) deliver to National City and any other Person that will be
responsible for signing the certification (a "Sarbanes Certification")
required by Rules 13a-14(d) and 15d-14(d) under the Securities
Exchange Act (pursuant to Section 302 of the Xxxxxxxx-Xxxxx Act of
2002) on behalf of the Issuer, the Master Trust or National City with
respect to a Securitization Transaction a certification substantially
in the form attached hereto as Exhibit E or such form as mutually
agreed upon by National City and the Indenture Trustee.
The Indenture Trustee acknowledges that the parties identified in clause
(iii) above may rely on the certification provided by the Indenture Trustee
pursuant to such clause in signing a Sarbanes Certification and filing such
with the Commission.
SECTION 4. Addition of Exhibits E and F to Indenture. The Indenture is
hereby amended by adding new Exhibits E and F in their respective forms attached
hereto after Exhibit D-3 to the Indenture.
SECTION 5. Effectiveness. The amendments provided for by this Amendment
shall become effective upon the delivery of the following:
(a) A Master Trust Tax Opinion.
(b) An Issuer Tax Opinion.
(c) An officer's certificate from the Issuer to the Indenture Trustee
and the Owner Trustee to the effect that the Issuer reasonably believes
that this Amendment will not have an Adverse Effect and is not reasonably
expected to have an Adverse Effect at any time in the future.
(d) Written confirmation from the Note Rating Agencies that this
Amendment will not have a Ratings Effect.
(e) Counterparts of this Amendment, duly executed by the parties
hereto.
SECTION 6. Indenture and Indenture Supplements in Full Force and Effect as
Amended. Except as specifically amended or waived hereby, all of the terms and
conditions of the Indenture and the Indenture Supplements shall remain in full
force and effect. All references to the Indenture and the Indenture Supplements
in any other document or instrument shall be deemed to mean such Indenture and
Indenture Supplements as amended by this Amendment. This Amendment shall not
constitute a novation of the Indenture or the Indenture Supplements, but shall
constitute an amendment thereof. The parties hereto agree to be bound by the
terms and obligations of the Indenture and the Indenture Supplements, as amended
by this Amendment, as though the terms and obligations of the Indenture and the
Indenture Supplements were set forth herein.
SECTION 7. Counterparts. This Amendment may be executed in any number of
counterparts and by separate parties hereto on separate counterparts, each of
which when executed shall be deemed an original, but all such counterparts taken
together shall constitute one and the same instrument.
SECTION 8. Governing Law. THIS AMENDMENT WILL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS (OTHER THAN THE UNIFORM COMMERCIAL CODE) AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
SECTION 9. Defined Terms and Section References. Capitalized terms used
herein and not otherwise defined shall have the meanings assigned to such terms
in the Indenture. All Section or subsection references herein shall mean
Sections or subsections of the Indenture, except as otherwise provided herein.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective officers as of the day and
year first above written.
NATIONAL CITY CREDIT CARD MASTER
NOTE TRUST, BY WILMINGTON TRUST COMPANY,
NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS
OWNER TRUSTEE
By:____________________________
Name:
Title:
THE BANK OF NEW YORK,
AS INDENTURE TRUSTEE AND NOT IN ITS
INDIVIDUAL CAPACITY
By:____________________________
Name:
Title:
Acknowledged By:
NATIONAL CITY BANK,
AS BENEFICIARY AND AS SERVICER
By:________________________
Name:
Title:
EXHIBIT E
FORM OF ANNUAL CERTIFICATION
Re: The indenture dated as of August 23, 2005 (as amended, supplemented or
otherwise modified from time to time, the "Agreement"), between
National City Credit Card Master Note Trust and The Bank of New York
I, ______________________, the _______________________ of [NAME OF COMPANY]
(the "Company"), certify to National City Bank, a national banking association
("National City"), and its officers, with the knowledge and intent that they
will rely upon this certification, that:
(1) I have reviewed the report on assessment of the Company's
compliance provided in accordance with Rules 13a-18 and 15d-18 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and Item
1122 of Regulation AB (the "Servicing Assessment"), and the registered
public accounting firm's attestation report provided in accordance with
Rules 13a-18 and 15d-18 under the Exchange Act and Section 1122(b) of
Regulation AB (the "Attestation Report") that were delivered by the Company
to National City pursuant to the Agreement (collectively, the "Company
Information");
(2) To the best of my knowledge, the Company Information, taken as a
whole, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in the light
of the circumstances under which such statements were made, not misleading
with respect to the period of time covered by the Company Information;
(3) To the best of my knowledge, all of the Company Information
required to be provided by the Company under the Agreement has been
provided to National City; and
(4) To the best of my knowledge, except as disclosed in the Compliance
Statement, the Servicing Assessment or the Attestation Report, the Company
has fulfilled its obligations under the Agreement.
Date: ____________________________
By: ______________________________
Name:
Title:
EXHIBIT F
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by the Indenture Trustee shall
address, at a minimum, the criteria identified as below as "Applicable Servicing
Criteria":
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SERVICING CRITERIA APPLICABLE SERVICING
CRITERIA
----------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
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GENERAL SERVICING CONSIDERATIONS
----------------------------------------------------------------------------------------------------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any
performance or other triggers and events of default in
accordance with the transaction agreements.
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1122(d)(1)(ii) If any material servicing activities are outsourced to
third parties, policies and procedures are instituted to
monitor the third party's performance and compliance with
such servicing activities.
----------------------------------------------------------------------------------------------------------------
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain
a back-up servicer for the credit card accounts or accounts
are maintained.
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1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in
effect on the party participating in the servicing function
throughout the reporting period in the amount of coverage
required by and otherwise in accordance with the terms of
the transaction agreements.
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CASH COLLECTION AND ADMINISTRATION
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1122(d)(2)(i) Payments on credit card accounts are deposited into the
appropriate custodial bank accounts and related bank
clearing accounts no more than two business days following
receipt, or such other number of days specified in the
transaction agreements.
----------------------------------------------------------------------------------------------------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to
an investor are made only by authorized personnel.
----------------------------------------------------------------------------------------------------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash
flows or distributions, and any interest or other fees
charged for such advances, are made, reviewed and approved
as specified in the transaction agreements.
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The related accounts for the transaction, such as cash
reserve accounts or accounts established as a form of
overcollateralization, are separately maintained (e.g.,
with respect to commingling of cash) as set forth in the
transaction
1122(d)(2)(iv) agreements.
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1122(d)(2)(v) Each custodial account is maintained at a federally insured
depository institution as set forth in the transaction
agreements. For purposes of this criterion, "federally
insured depository institution" with respect to a foreign
financial institution means a foreign financial institution
that meets the requirements of Rule 13k-1(b)(1) of the
Securities Exchange Act.
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1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized
access.
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1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all
asset-backed securities related bank accounts, including
custodial accounts and related bank clearing accounts.
These reconciliations are (A) mathematically accurate; (B)
prepared within 30 calendar days after the bank statement
cutoff date, or such other number of days specified in the
transaction agreements; (C) reviewed and approved by
someone other than the person who prepared the
reconciliation; and (D) contain explanations for
reconciling items. These reconciling items are resolved
within 90 calendar days of their original identification,
or such other number of days specified in the transaction
agreements.
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----------------------------------------------------------------------------------------------------------------
SERVICING CRITERIA APPLICABLE SERVICING
CRITERIA
----------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
----------------------------------------------------------------------------------------------------------------
INVESTOR REMITTANCES AND REPORTING
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1122(d)(3)(i) Reports to investors, including those to be filed with the
Commission, are maintained in accordance with the
transaction agreements and applicable Commission
requirements. Specifically, such reports (A) are prepared
in accordance with timeframes and other terms set forth in
the transaction agreements; (B) provide information
calculated in accordance with the terms specified in the
transaction agreements; (C) are filed with the Commission
as required by its rules and regulations; and (D) agree
with investors' or the trustee's records as to the total
unpaid principal balance and number of credit card accounts
serviced by the Servicer.
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1122(d)(3)(ii) Amounts due to investors are allocated and remitted in
accordance with timeframes, distribution priority and other
terms set forth in the transaction agreements.
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Disbursements made to an investor are posted within two
business days to the Servicer's investor records, or such
other number of
1122(d)(3)(iii) days specified in the transaction agreements.
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Amounts remitted to investors per the investor reports
agree with cancelled checks, or other form of payment, or
custodial bank
1122(d)(3)(iv) statements.
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POOL ASSET ADMINISTRATION
----------------------------------------------------------------------------------------------------------------
1122(d)(4)(i) Collateral or security on credit card accounts is
maintained as required by the transaction agreements or
related asset pool documents.
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Account and related documents are safeguarded as required by the
1122(d)(4)(ii) transaction agreements
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1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool
are made, reviewed and approved in accordance with any
conditions or requirements in the transaction agreements.
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1122(d)(4)(iv) Payments on credit card accounts, including any payoffs,
made in accordance with the related credit card accounts
documents are posted to the Servicer's obligor records
maintained no more than two business days after receipt, or
such other number of days specified in the transaction
agreements, and allocated to principal, interest or other
items (e.g., escrow) in accordance with the related asset
pool documents.
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1122(d)(4)(v) The Servicer's records regarding the accounts and the
accounts agree with the Servicer's records with respect to
an obligor's unpaid principal balance.
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1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's
account (e.g., loan modifications or re-agings) are made,
reviewed and approved by authorized personnel in accordance
with the transaction agreements and related pool asset
documents.
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1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance
plans, modifications and deeds in lieu of foreclosure,
foreclosures and repossessions, as applicable) are
initiated, conducted and concluded in accordance with the
timeframes or other requirements established by the
transaction agreements.
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1122(d)(4)(viii) Records documenting collection efforts are maintained
during the period a Account is delinquent in accordance
with the transaction agreements. Such records are
maintained on at least a monthly basis, or such other
period specified in the transaction agreements, and
describe the entity's activities in monitoring delinquent
Accounts including, for example, phone calls, letters and
payment rescheduling plans in cases where delinquency is
deemed temporary (e.g., illness or unemployment).
----------------------------------------------------------------------------------------------------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of return for
Accounts with variable rates are computed based on the
related Account documents.
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SERVICING CRITERIA APPLICABLE SERVICING
CRITERIA
----------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
----------------------------------------------------------------------------------------------------------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as
escrow accounts): (A) such funds are analyzed, in
accordance with the obligor's Account documents, on at
least an annual basis, or such other period specified in
the transaction agreements; (B) interest on such funds is
paid, or credited, to obligors in accordance with
applicable Account documents and state laws; and (C) such
funds are returned to the obligor within 30 calendar days
of full repayment of the related Accounts, or such other
number of days specified in the transaction agreements.
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1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or
insurance payments) are made on or before the related
penalty or expiration dates, as indicated on the
appropriate bills or notices for such payments, provided
that such support has been received by the servicer at
least 30 calendar days prior to these dates, or such other
number of days specified in the transaction agreements.
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1122(d)(4)(xii) Any late payment penalties in connection with any payment
to be made on behalf of an obligor are paid from the
servicer's funds and not charged to the obligor, unless the
late payment was due to the obligor's error or omission.
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Disbursements made on behalf of an obligor are posted
within two business days to the obligor's records
maintained by the servicer, or such other number of days
specified in the transaction
1122(d)(4)(xiii) agreements.
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1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are
recognized and recorded in accordance with the transaction
agreements.
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Any external enhancement or other support, identified in
Item 1114(a)(1) through (3) or Item 1115 of Regulation AB,
is maintained
1122(d)(4)(xv) as set forth in the transaction agreements.
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[NAME OF INDENTURE TRUSTEE]
Date: _________________________
By: ___________________________
Name:
Title:
