Current Report — Form 8-K Filing Table of Contents
Document/ExhibitDescriptionPagesSize
1: 8-K Current Report HTML 19K
2: EX-4.1 Fourth Amendment to the Second Amended and HTML 19K
Restated Pooling and Servicing Agreement
3: EX-4.2 Fifth Amendment to the Transfer and Servicing HTML 20K
Agreement
4: EX-4.3 Supplemental Indenture No. 2 to Master Indenture HTML 47K
EX-4.3 — Supplemental Indenture No. 2 to Master Indenture
This SUPPLEMENTAL INDENTURE NO. 2 TO MASTER INDENTURE, dated as of June 13, 2007 (this
“Supplemental Indenture”) is made between the World Financial Network Credit Card Master
Note Trust, as Issuer (the “Issuer”) and BNY Midwest Trust Company, as Indenture Trustee
(the “Indenture Trustee”), to the Master Indenture, dated as of August 1, 2001, between the
Issuer and the Indenture Trustee (as amended by the Omnibus Amendment, dated as of March 31, 2003,
and as further amended by the Supplemental Indenture No. 1 to Master Indenture, dated as of August13, 2003, as amended, the “Master Indenture”). Capitalized terms used and not otherwise
defined in this Supplemental Indenture are used as defined in the Master Indenture.
WHEREAS, the Issuer and the Indenture Trustee desire to amend the Master Indenture in certain
respects as set forth below;
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration
(the receipt and sufficiency of which are hereby acknowledged), the parties hereto agree as
follows:
SECTION 1. Amendment to the Master Indenture. The Master Indenture shall be amended as
set forth below:
(a) Annex A of the Master Indenture is hereby amended by amending the definition of
“Approved Portfolio” by adding the following language immediately at the end thereof:
“Once a portfolio is designated as an Approved Portfolio, it shall remain an
Approved Portfolio notwithstanding a change in the name of the Merchant or
rebranding of the retail establishment at which, or a catalogue sales
business through which, goods or services may be purchased under an
Account.”
(b) Article VI of the Master Indenture is hereby amended by adding the following new
section at the end thereof:
“SECTION 6.15. Information to Be Provided by the Indenture Trustee.
(a) It is agreed and acknowledged that the purpose of this Section 6.15 is
to facilitate compliance by the Transferor and the Issuer with the provisions of
Regulation AB under the Securities Act and the Exchange Act (“Regulation
AB”) and related rules and regulations of the Commission. Neither the
Transferor nor the Issuer shall exercise its right to request delivery of
information or other performance under this Section 6.15 other than in good
faith, or for purposes other than the Issuer’s or the Transferor’s compliance with
the Securities Act, the
Supplemental Indenture No. 2
to Master Indenture
Exchange Act and the rules and regulations of the Commission
thereunder (or to
provide disclosure related to a private offering comparable to that required under
the Securities Act). The Indenture Trustee agrees to cooperate in good faith with
any reasonable request by the Transferor or the Issuer for information regarding the
Indenture Trustee, including but not limited to, information which is required in
order to enable the Transferor and the Issuer to comply with Items 1109(a), 1109(b),
1117, 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.
(b) The Indenture Trustee shall be deemed to represent to the Transferor and the
Issuer, as of the date on which information is provided to Transferor pursuant to
this Section 6.15, except as disclosed in writing to the Transferor prior to
such date that: (i) none of 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, cause the Indenture Trustee to be in violation of (x) 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 (y) 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 Noteholders of any Series or 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.
(c) For so long as the Issuer is required to report under the Exchange Act, the
Indenture Trustee shall: (i) on or before the fifth Business Day of each month,
provide to the Issuer, in writing, such information regarding the Indenture Trustee
as is requested in writing by the Issuer for the purpose of compliance with Item
1117 of Regulation AB; provided, however, that the Indenture Trustee
shall not be required to provide such information in the event that there has been
no change to the information previously provided by the Indenture Trustee to the
Issuer, and (ii) as promptly as practicable following notice to or discovery by a
Responsible Officer of the Indenture Trustee of any changes to such information,
provide to the Transferor, in writing, such updated information.
(d) As soon as available but no later than March 15 of each calendar year for so
long as the Issuer is required to report under the Exchange Act, commencing in 2008,
the Indenture Trustee shall (if requested in writing by the Transferor in order to
comply with Item 1122 of Regulation AB) deliver to the Transferor
Supplemental Indenture No. 2
to Master Indenture
2
reports regarding
the assessment by the Indenture Trustee (if so requested by the
Transferor) of compliance to servicing criteria specified in paragraph (d) of Item
1122 of Regulation AB during the immediately preceding calendar year, as required
under paragraph (b) of Rule 13a-18 and Rule 15d-18 of the Exchange Act and Item 1122
of Regulation AB. Such reports shall be signed by an authorized officer of the
Indenture Trustee and shall address each of the servicing criteria specified in
Exhibit A or such criteria as mutually agreed upon by the Transferor and the
Indenture Trustee.
(e) As soon as available but no later than March 15 of each calendar year for so
long as the Issuer is required to report under the Exchange Act, commencing in 2008,
the Indenture Trustee shall (if requested in writing by the Transferor in order to
comply with Item 1122 of Regulation AB) deliver to the Transferor a report of a
registered public accounting firm 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 meet the requirements of Item 1122(b) of
Regulation AB and paragraph (c) of Rule 15d-18 of the Exchange Act.
(f) As soon as available but no later than March 15 of each calendar year for so
long as the Issuer is required to report under the Exchange Act, commencing in 2008,
the Indenture Trustee shall (if requested in writing by the Transferor in order to
comply with Item 1122 of Regulation AB) deliver to the Transferor and any other
Person that will be responsible for signing the certification required by Rules
13a-14(d) and 15d-14(d) under the Exchange Act (pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002) (a “Sarbanes Certification”) on behalf of the
Issuer or the Transferor a certification substantially in the form attached hereto
as Exhibit B or such form as mutually agreed upon by the Transferor and the
Indenture Trustee. The Indenture Trustee acknowledges that the parties identified
in this Section 6.15(f) may rely on the certification provided by the
Indenture Trustee hereunder in signing a Sarbanes Certification and filing such with
the Commission.”
SECTION 2. Conditions to Effectiveness. This Supplemental Indenture
shall become effective, as of the date hereof (the “Effective
Date”), upon (i) receipt by each of the parties hereto of
counterparts duly executed and delivered by each of the
parties hereto, (ii) satisfaction of each of the conditions
precedent described in Section 10.1(b) of the Master Indenture
and (iii) delivery to each Rating Agency and the Indenture
Trustee of a list of Approved Portfolios identifying all
credit card programs, and thereafter shall be binding on the
parties hereto and their respective successors and assigns.
SECTION 3. Effect of Amendment; Ratification. (a) On and after the
Effective Date, this Supplemental Indenture shall be a part of
the Master Indenture and each reference in the Master
Indenture to “this Agreement” or “hereof”, “hereunder” or
words of like import, and each reference in any other
Transaction Document to the Master Indenture shall mean and be
a reference to the Master Indenture as amended hereby.
Supplemental Indenture No. 2
to Master Indenture
3
(b) Except as expressly amended hereby, the Master Indenture shall remain in full force and
effect and is hereby ratified and confirmed by the parties hereto.
SECTION 4. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAWS
PROVISIONS. EACH OF THE PARTIES TO THIS SUPPLEMENTAL INDENTURE
HEREBY AGREES TO THE JURISDICTION OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND ANY
APPELLATE COURT HAVING JURISDICTION TO REVIEW THE JUDGMENTS
THEREOF. EACH OF THE PARTIES HEREBY WAIVES ANY OBJECTION BASED
ON FORUM NON CONVENIENS AND ANY OBJECTION TO VENUE OF ANY
ACTION INSTITUTED HEREUNDER IN ANY OF THE AFOREMENTIONED
COURTS AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE
RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT.
SECTION 5. Section Headings. Headings used herein are for convenience of
reference only and shall not affect the meaning of this
Supplemental Indenture.
SECTION 6. Counterparts. This Supplemental Indenture may be executed in
any number of counterparts, and by the parties hereto on
separate counterparts, each of which shall be an original and
all of which taken together shall constitute one and the same
agreement.
SECTION 7. Trustee Disclaimer. The Indenture Trustee shall not be
responsible for the validity or sufficiency of this amendment,
nor for the recitals contained herein.
[Signature Page Follows]
Supplemental Indenture No. 2
to Master Indenture
4
IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture to be executed by
their respective officers thereunto duly authorized, as of the date first above written.
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”:
Servicing Criteria
Applicable Servicing
Reference
Criteria
Criteria
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.
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 pool assets are maintained.
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.
Cash Collection and Administration
1122(d)(2)(i)
Payments on pool assets 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.
ü
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.
1122(d)(2)(iv)
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 agreements.
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.
1122(d)(2)(vi)
Unissued checks are safeguarded so as to prevent unauthorized access.
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.
B-1
Servicing Criteria
Applicable Servicing
Reference
Criteria
Criteria
Investor Remittances and Reporting
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 pool assets serviced by the
Servicer.
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.
1122(d)(3)(iii)
Disbursements made to an investor are posted within two business
days to the Servicer’s investor records, or such other number of days
specified in the transaction agreements.
ü
1122(d)(3)(iv)
Amounts remitted to investors per the investor reports agree with
cancelled checks, or other form of payment, or custodial bank
statements.
Pool Asset Administration
1122(d)(4)(i)
Collateral or security on pool assets is maintained as required by
the transaction agreements or related asset pool documents.
1122(d)(4)(ii)
Pool assets and related documents are safeguarded as required by the
transaction agreements.
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.
1122(d)(4)(iv)
Payments on pool assets, including any payoffs, made in accordance
with the related pool asset 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.
1122(d)(4)(v)
The Servicer’s records regarding the pool assets agree with the
Servicer’s records with respect to an obligor’s unpaid principal
balance.
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.
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.
1122(d)(4)(viii)
Records documenting collection efforts are maintained during the
period a pool asset 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 pool assets 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 pool assets
with variable rates are computed based on the related pool asset
documents.
B-2
Servicing Criteria
Applicable Servicing
Reference
Criteria
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
pool asset 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 pool asset
documents and state laws; and (C) such funds are returned to the obligor
within 30 calendar days of full repayment of the related pool assets, or
such other number of days specified in the transaction agreements.
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.
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.
1122(d)(4)(xiii)
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 agreements.
1122(d)(4)(xiv)
Delinquencies, charge-offs and uncollectible accounts are
recognized and recorded in accordance with the transaction agreements.
1122(d)(4)(xv)
Any external enhancement or other support, identified in Item
1114(a)(1) through (3) or Item 1115 of Regulation AB, is maintained as
set forth in the transaction agreements.
B-3
EXHIBIT B
FORM OF CERTIFICATION OF
THE INDENTURE TRUSTEE
Re: WORLD FINANCIAL NETWORK CREDIT CARD MASTER NOTE TRUST
Dated:
BNY Midwest Trust Company, not in its individual capacity but solely as indenture trustee (the
“Indenture Trustee”), certifies to WFN Credit Company, LLC (the “Transferor”), its
officers and World Financial Network Credit Card Master Note Trust (the “Issuer”), with
the knowledge and intent that they will rely upon this certification, that:
(1) It has reviewed the report on assessment of the Indenture Trustee’s compliance
provided in accordance with Rules 13a-18 and 15d-18 under the Securities Exchange Act of
1934, as amended (the “Securities Exchange Act”) and Item 1122 of Regulation AB (the
“Indenture Trustee Information”), 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 Indenture Trustee to the Transferor pursuant to the Master Indenture dated
as of August 1, 2001 (as amended, supplemented or otherwise modified from time to time, the
“Master Indenture”), by and between the Issuer and the Indenture Trustee;
(2) To the best of its knowledge, the Indenture Trustee 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
Indenture Trustee Information; and
(3) To the best of its knowledge, all information to be provided by the Indenture
Trustee pursuant to Section 6.15 of the Master Indenture has been provided to the
Transferor.
Supplemental Indenture No. 2
to Master Indenture
S-1
BNY MIDWEST TRUST COMPANY, as Indenture Trustee
By:
Name:
Title:
Supplemental Indenture No. 2
to Master Indenture
S-2
Dates Referenced Herein and Documents Incorporated by Reference
