Exhibit 4.10
FORM OF FIRST AMENDMENT
TO
THE NATIONAL CITY CREDIT CARD MASTER NOTE TRUST
AMENDED AND RESTATED TRUST AGREEMENT
THIS FIRST AMENDMENT TO THE NATIONAL CITY CREDIT CARD MASTER NOTE TRUST
AMENDED AND RESTATED TRUST AGREEMENT, dated as of [ ] , 200[ ] (this
"Amendment") is by and between NATIONAL CITY BANK, a national banking
association, as Beneficiary and as Transferor, and WILMINGTON TRUST COMPANY, a
Delaware banking corporation, as Owner Trustee, and acknowledged and accepted by
the NATIONAL CITY CREDIT CARD MASTER NOTE TRUST.
WHEREAS the Beneficiary and Transferor and the Owner Trustee have executed
that certain Amended and Restated Trust Agreement, 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 "Trust Agreement");
WHEREAS the National City Credit Card Master Note Trust, as Issuer, and The
Bank of New York, as 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 Beneficiary and Transferor and the Owner Trustee wish to amend
the Trust Agreement 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 Trust
Agreement as follows:
SECTION 1. Amendment of Section 1.01. Section 1.01 is hereby amended by
adding the following definitions in the appropriate alphabetical order:
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"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.
"Securitization Transaction" means any transaction involving a new
issuance of notes pursuant to the Indenture, whether publicly offered or
privately placed, rated or unrated.
SECTION 2. Amendment of Section 6.07. Section 6.07(c) of the Trust
Agreement is hereby amended by deleting such subsection in its entirety and
inserting in its place the following:
(c) Neither the execution nor the delivery by it of this Agreement,
the performance by it of its obligations under this Agreement, nor the
consummation by it of the transactions contemplated hereby nor compliance
by the Trustee Bank with any of the terms or provisions hereof will
contravene any federal or Delaware law, governmental rule or regulation
governing the banking or trust powers of the Owner Trustee or any judgment
or order binding on the Trustee Bank, or constitute any default under its
charter documents or by-laws or any indenture, mortgage, lease, license,
contract, agreement or instrument to which the Trustee Bank is a party or
by which the Trustee Bank or any of the Trustee Bank's properties may be
bound.
SECTION 3. Addition of Article XIII. The Trust Agreement is hereby amended
by adding the following new Article XIII after Article XII of the Trust
Agreement:
ARTICLE XIII
COMPLIANCE WITH REGULATION AB
Section 13.01. Intent of the Parties; Reasonableness. The Transferor
and the Trustee Bank acknowledge and agree that the purpose of this Article
XIII is to facilitate compliance by the Transferor with the provisions of
Regulation AB and related rules and regulations of the Commission. The
Transferor 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 the Transferor's compliance with the Securities
Act, the 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 Trustee Bank agrees to
cooperate in good faith with any reasonable request by the Transferor for
information regarding the Trustee Bank which is required in order to enable
the Transferor to comply with the provisions of Items 1109(a), 1109(b),
1117 and 1119 of Regulation AB as it relates to the Trustee Bank or to the
Trustee Bank's obligations under this Agreement.
Section 13.02. Information to Be Provided by the Trustee Bank. The
Trustee Bank shall, as promptly as practicable, notify the Transferor, in
writing, of: (i) the commencement of, a material development in or, if
applicable, the termination of, any and all legal proceedings against the
Trustee Bank or any and all proceedings which any property of the Trustee
Bank is the subject, that is material to the noteholders; and (ii) any such
proceedings known to be contemplated by governmental authorities. The
Trustee Bank shall also notify the Transferor, in writing, as promptly as
practicable following notice to or discovery by the Trustee Bank of any
material changes to proceedings described in the preceding sentence. In
addition, the Trustee Bank will furnish to the Transferor, in writing, the
necessary disclosure regarding the Trustee Bank describing such proceedings
required to be disclosed under Item 1117 of Regulation AB, for inclusion in
reports filed by or on behalf of the Transferor pursuant to the Exchange
Act.
Notwithstanding the provisions of Section 13.01, the Trustee Bank
shall (i) on an annual basis, provide to the Transferor such information
regarding the Trustee Bank as is requested for the purpose of compliance
with Items 1109(a), 1109(b), 1118 and 1119 of Regulation AB, and (ii) as
promptly as practicable following notice to or discovery by the Trustee
Bank of any material changes to such information, provide to the
Transferor, in writing, such updated information. Such information shall
include, at a minimum:
(A) the Trustee Bank's name and form of organization;
(B) a description of the extent to which the Trustee Bank has had
prior experience serving as a trustee for asset-backed securities
transactions involving credit card receivables;
(C) a description of any affiliation between the Trustee Bank and
any of the following parties to a Securitization Transaction, as such
parties are identified to the Trustee Bank by the Transferor 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 4. 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 Trust to the Indenture Trustee
and the Owner Trustee to the effect that the Trust 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) Prior
written notice of this Amendment to each Note Rating Agency.
(e) Counterparts of this Amendment, duly executed by the parties
hereto.
SECTION 5. Direction to the Owner Trustee. By its execution of this
Amendment, the Beneficiary hereby authorizes and directs the Owner Trustee,
pursuant to Sections 2.03, 5.01 and 9.01 of the Trust Agreement, to execute this
Amendment.
SECTION 6. Trust Agreement in Full Force and Effect as Amended. Except as
specifically amended or waived hereby, all of the terms and conditions of the
Trust Agreement shall remain in full force and effect. All references to the
Trust Agreement in any other document or instrument shall be deemed to mean such
Trust Agreement as amended by this Amendment. This Amendment shall not
constitute a novation of the Trust Agreement, but shall constitute an amendment
thereof. The parties hereto agree to be bound by the terms and obligations of
the Trust Agreement, as amended by this Amendment, as though the terms and
obligations of the Trust Agreement 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; Submission to Jurisdiction; Agent for Service of
Process. This Amendment shall be governed by and construed in accordance with
the laws of the State of Delaware, without regard to principles of conflict of
laws. The parties hereto declare that it is their intention that this Amendment
shall be regarded as made under the laws of the State of Delaware and that the
laws of said State shall be applied in interpreting its provisions in all cases
where legal interpretation shall be required. Each of the parties hereto agrees
(a) that this Amendment involves at least $100,000.00, and (b) that this
Amendment has been entered into by the parties hereto in express reliance upon 6
DEL. C. Section 2708. Each of the parties hereto
hereby irrevocably and unconditionally agrees (a) to be subject to the
jurisdiction of the courts of the State of Delaware and of the federal courts
sitting in the State of Delaware, and (b)(1) to the extent such party is not
otherwise subject to service of process in the State of Delaware, to appoint and
maintain an agent in the State of Delaware as such party's agent for acceptance
of legal process, and (2) that, to the fullest extent permitted by applicable
law, service of process may also be made on such party by prepaid certified mail
with a proof of mailing receipt validated by the United States Postal Service
constituting evidence of valid service, and that service made pursuant to (b)(1)
or (2) above shall, to the fullest extent permitted by applicable law, have the
same legal force and effect as if served upon such party personally within the
State of Delaware.
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 Trust Agreement and if not in the Trust Agreement, then they shall have
the meanings assigned to such terms in the Indenture. All Section or subsection
references herein shall mean Sections or subsections of the Trust Agreement,
except as otherwise provided herein.
IN WITNESS WHEREOF, the Beneficiary and Transferor and the Owner Trustee
have caused this Amendment to be duly executed by their respective officers as
of the day and year first above written.
NATIONAL CITY BANK,
AS BENEFICIARY AND AS TRANSFEROR
By:_____________________________
Name:
Title:
WILMINGTON TRUST COMPANY,
AS OWNER TRUSTEE
By:_____________________________
Name:
Title:
Acknowledged and Accepted:
NATIONAL CITY CREDIT CARD MASTER NOTE TRUST
By: Wilmington Trust Company, not in its individual capacity
but solely as Owner Trustee
By:
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Name:
Title:
