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Exhibit 4.1
EXECUTION COPY
AMENDMENT NUMBER 5
TO THE
AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT
THIS AMENDMENT NUMBER 5 TO THE AMENDED AND RESTATED POOLING
AND SERVICING AGREEMENT, dated as of December 29, 2000, (this "Amendment") is
between FLEET BANK (RI), NATIONAL ASSOCIATION ("Fleet"), a national banking
association, as Seller and Servicer, and BANKERS TRUST COMPANY, as Trustee (the
"Trustee") under the Amended and Restated Pooling and Servicing Agreement, dated
as of December 1, 1993 (as amended by Amendment Number 1 to the Amended and
Restated Pooling and Servicing Agreement, dated as of July 1, 1994, as further
amended by Amendment Number 2 to the Amended and Restated Pooling and Servicing
Agreement, dated as of October 6, 1995, as further amended by Amendment Number 3
to the Amended and Restated Pooling and Servicing Agreement, dated as of
February 20, 1998, and as further amended by Amendment Number 4 to the Amended
and Restated Pooling and Servicing Agreement, dated as of May 14, 1999,and as
assigned by Advanta National Bank to Fleet pursuant to an Assignment and
Assumption Agreement, dated as of February 20, 1998, among Advanta National
Bank, Fleet, Fleet Credit Card, LLC and the Trustee, the "Pooling and Servicing
Agreement"), between Fleet, as Seller and Servicer, and Bankers Trust Company,
as Trustee for the Fleet Credit Card Master Trust II.
RECITALS
WHEREAS, Fleet wishes to amend the Pooling and Servicing
Agreement as provided herein in accordance with Section 13.01(a) of the Pooling
and Servicing Agreement and the Trustee is willing to consent to such amendment
upon the terms provided for herein.
NOW THEREFORE, in consideration of the premises and the
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Amendments to Section 1.01.
(a) The definition of "Bank Certificate" in Section 1.01 of
the Pooling and Servicing Agreement shall be and hereby is amended to read in
its entirety as follows:
"Bank Certificate" shall mean, if the Sellers elect to
evidence their interest in the Sellers' Interest in certificated form
pursuant to Section 6.01, a certificate executed by Fleet and
authenticated by or on behalf of the Trustee, substantially in the form
of Exhibit A, as the same may be modified in accordance with subsection
2.08 (e); provided that in any Supplement, "Bank Certificate" shall
mean either a certificate executed and delivered
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by the Seller and authenticated by the Trustee substantially in the
form of Exhibit A or the Sellers' uncertificated interest in the
Sellers' Interest.
(b) The definition of "Certificateholder" or "Holder" in
Section 1.01 of the Pooling and Servicing Agreement shall be and hereby is
amended to read in its entirety as follows:
"Certificateholder" or "Holder" shall mean an Investor
Certificateholder or, if used with respect to the Sellers' Interest, a
Person in whose name a Seller Certificate is registered in the
Certificate Register or a Person in whose name ownership of an
uncertificated interest in the Sellers' Interest is recorded in the
books and records of the Trustee.
(c) There is hereby added to Section 1.01 of the Pooling and
Servicing Agreement the following definition which shall be inserted in proper
alphabetical order in Section 1.01. The new definition shall read in its
entirety as follows:
"Holders of the Seller Certificates" shall mean all Holders of
the Bank Certificate and/or the Supplemental Certificates, if any, and
Holders of any uncertificated interests in the Sellers Interest and
"Holder of a Seller Certificate" shall mean a Holder of the Bank
Certificate or a Supplemental Certificate or a Holder of any
uncertificated interest in the Sellers Interest.
(d) The definition of "Seller Certificates" in Section 1.01 of
the Pooling and Servicing Agreement shall be and hereby is amended to read in
its entirety as follows:
"Seller Certificates" shall mean, collectively, the Bank
Certificate (including, when the term is used in connection with
"Holder" or "Holders," any uncertificated interest of a Seller or
Sellers in the Sellers Interest) and any outstanding Supplemental
Certificates.
SECTION 2. Amendment to Section 2.07. Subsection 2.07(c) of the Pooling
and Servicing Agreement shall be and hereby is amended to read in its entirety
as follows:
(c) Sellers' Interest. Except for the conveyances hereunder,
in connection with any transaction permitted by Section 7.02 and as
provided in Sections 2.08(e) and 6.03, such Seller agrees not to
transfer, assign, exchange or otherwise convey or pledge, hypothecate
or otherwise grant a security interest in the Sellers' Interest,
whether in certificated form and represented by the Bank Certificate or
in uncertificated form, or any Supplemental Certificate and any such
attempted transfer, assignment, exchange, conveyance, pledge,
hypothecation or grant shall be void.
Notwithstanding the foregoing paragraph, the Sellers may
pledge, hypothecate or otherwise grant a security interest in the Bank
Certificate (or any portion thereof) or in
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any uncertificated interest of the Sellers in the Sellers' Interest (or
any portion thereof) to the Federal Reserve Bank of Philadelphia and
the Federal Home Loan Bank of Pittsburgh; provided, however, that such
pledge, hypothecation, or grant may not be used as an artifice or
device to avoid or limit the foregoing prohibition on transfer;
provided further that under no circumstances may the Sellers pledge,
hypothecate, or otherwise grant a security interest in any of their
rights in the Sellers' Interest other than the right to receive cash
payments in respect of such Sellers' Interest as provided in this
Agreement or any Supplement.
SECTION 3. Amendment to Section 2.08. Subsection 2.08(e) of
the Pooling and Servicing Agreement shall be and hereby is amended to read in
its entirety as follows:
(e) Additional Sellers. Fleet may designate Affiliates of
Fleet to be included as Sellers ("Additional Sellers") under this
Agreement by an amendment hereto pursuant to subsection 13.01(a). In
connection with such designation, if the interest of the Sellers in the
Sellers Interest is evidenced by the Bank Certificate, the Sellers
shall surrender the Bank Certificate to the Trustee, in exchange for a
newly issued Bank Certificate modified to reflect such Additional
Seller's interest. If the interest of the Sellers in the Sellers
Interest is in uncertificated, then, in connection with the designation
of an Additional Seller, Fleet shall instruct the Trustee in writing to
register the Additional Seller as the owner of the appropriate interest
in the Sellers' Interest on the books and records of the Trust. Prior
to any such designation and exchange or transfer of interests the
conditions set forth in subsection 6.03(c) or 6.03(d), as applicable,
shall have been satisfied with respect thereto.
SECTION 4. Amendment to Section 4.01. The last sentence of
Section 4.01 of the Pooling and Servicing Agreement shall be and hereby is
amended to read in its entirety as follows:
The Seller Certificates shall represent the ownership interest
in the remainder of the Trust Assets not allocated pursuant to
this Agreement or any Supplement to the Certificateholders'
Interest, including the right to receive Collections with
respect to the Receivables and other amounts at the times and
in the amounts specified in this Agreement or any Supplement
to be paid to the Holders of the Seller Certificates (the
"Sellers' Interest"); provided, however, that if the Sellers
elect to have the interest of the Sellers in the Sellers'
Interest be uncertificated, then such uncertificated interest,
together with any Supplemental Certificates shall represent
the "Sellers' Interest;" provided, further, that neither the
Seller Certificates nor any uncertificated interest in the
Sellers' Interest shall represent any interest in the
Collection Account, the Excess Funding Account, any Series
Account or any Series Enhancement, except as specifically
provided in this Agreement or any Supplement; and provided
further, that the foregoing shall not be construed to limit
the Trustee's obligations to make payments to the Holders of
the Seller Certificates (which shall include Holders of any
uncertificated interest
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in the Sellers Interest), the Sellers and the Servicer as and
when required under this Agreement and any Supplement.
SECTION 5. Amendment to Section 4.03. Subsection 4.03(b) of
the Pooling and Servicing Agreement shall be and hereby is amended to read in
its entirety as follows:
(b) Allocations for the Sellers' Interest. Throughout the
existence of the Trust, unless otherwise stated in any Supplement, the
Servicer shall allocate to the Holders of the Sellers' Interest,
including the Holders of any Seller Certificates and the Holders of any
uncertificated interest in the Sellers' Interest an amount equal to the
product of (A) the Seller Percentage and (B) the aggregate amount of
such Collections allocated to Principal Receivables and Finance Charge
Receivables, respectively, in respect of each Monthly Period.
Notwithstanding anything in this Agreement to the contrary, unless
otherwise stated in any Supplement, the Servicer need not deposit this
amount or any other amounts so allocated to the Sellers' Interest
pursuant to any Supplement into the Collection Account and shall pay,
or be deemed to pay, such amounts as collected to the Holders of the
Sellers' Interest.
SECTION 6. Amendment to Section 6.01. Section 6.01 of the
Pooling and Servicing Agreement shall be and hereby is amended to read in its
entirety as follows:
Section 6.01. The Certificates and Uncertificated Interests.
The Investor Certificates of any Series or Class may be issued in
bearer form ("Bearer Certificates") with attached interest coupons and
any other applicable coupon (collectively, the "Coupons") or in fully
registered form ("Registered Certificates") and shall be substantially
in the form of the exhibits with respect thereto attached to the
applicable Supplement. The Sellers may elect at any time, by written
notice to the Trustee, to have their interest in the Sellers' Interest
(i) be in the form of an uncertificated interest or (ii) be evidenced
by the Bank Certificate. If the Sellers elect to have their interest in
the Sellers' Interest be an uncertificated interest, the Sellers shall
deliver to the Trustee for cancellation the Bank Certificate previously
issued to the Sellers. If the Sellers elect to have their interest in
the Sellers' Interest be in certificated form, the Bank Certificate
will be issued in registered form, substantially in the form of Exhibit
A, and shall upon issue be executed and delivered by Fleet to the
Trustee for authentication and redelivery as provided in Section 6.02.
The Trustee shall keep, with the books and records of the
Trust, a register in book-entry form, of each Person owning any
uncertificated interest in the Sellers' Interest.
Except as otherwise provided in Section 6.03 or in any
Supplement, Bearer Certificates shall be issued in minimum
denominations of $100,000 and Registered Certificates shall be issued
in minimum denominations of $1,000 and in integral multiples of $1,000
in excess thereof. If specified in any Supplement, the Investor
Certificates of any Series or Class shall be issued upon initial
issuance as a single
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certificate evidencing the aggregate original principal amount of such
Series or Class as described in Section 6.13. If the Sellers' interest
in the Sellers' Interest is in certificated form, it shall be in the
form of the Bank Certificate and the Bank Certificate shall be a single
certificate and shall initially represent the entire Sellers' Interest.
Each Certificate shall be executed by manual or facsimile
signature on behalf of Fleet by its respective President or any Vice
President. Certificates bearing the manual or facsimile signature of an
individual who was, at the time when such signature was affixed,
authorized to sign on behalf of Fleet shall not be rendered invalid,
notwithstanding that such individual ceased to be so authorized prior
to the authentication and delivery of such Certificates or does not
hold such office at the date of such Certificates. No Certificates
shall be entitled to any benefit under this Agreement, or be valid for
any purpose, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed
by or on behalf of the Trustee by the manual signature of a duly
authorized signatory, and such certificate upon any Certificate shall
be conclusive evidence, and the only evidence, that such Certificate
has been duly authenticated and delivered hereunder. Bearer
Certificates shall be dated the related Closing Date. All Registered
Certificates and Seller Certificates shall be dated the date of their
authentication.
SECTION 7. Amendment of Section 6.03. Subsections 6.03 (c) and
6.03 (d) of the Pooling and Servicing Agreement shall be and hereby are amended
to read in their entireties as follows:
(c) If the Sellers elect to have their interest in the
Sellers' Interest evidenced by the Bank Certificate as provided in
Section 6.01 hereof, then the Sellers may surrender the Bank
Certificate to the Trustee in exchange for a newly issued Bank
Certificate and one or more additional certificates (each a
"Supplemental Certificate"), the terms of which shall be defined in a
supplement to this Agreement (which supplement shall be subject to
subsection 13.01(a) only to the extent that it amends any of the terms
of this Agreement), to be delivered to or upon the order of the Sellers
(or the Holder of a Supplemental Certificate, in the case of the
transfer or exchange thereof, as provided below), upon satisfaction of
the conditions set forth in clauses (i), (ii) and (iii) of the second
following paragraph.
If the Sellers elect to have their interest in the Sellers'
Interest be in uncertificated form, then the Sellers may assign a
portion of the Sellers Interest to another Person and direct that, with
respect to the interest transferred, a Supplemental Certificate be
issued in accordance with the requirements and subject to the
satisfaction of the conditions set forth in clauses (i), (ii) and (iii)
of the next following paragraph and the Sellers shall instruct the
Trustee in writing to register such assignment and the issuance of the
Supplemental Certificates on the books and records of the Trust.
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If any Seller elects to exchange all or a portion of its
interest in the Sellers' Interest for a Supplemental Certificate in
accordance with this subsection 6.03(c), the following conditions must
be satisfied:
(i) The Sellers shall have given written notice to
each Rating Agency of such exchange;
(ii) the Seller Amount (excluding the interest
represented by any Supplemental Certificate) shall not be less
than 2% of the total amount of Principal Receivables as of the
date of, and after giving effect to, such exchange; and
(iii) if any Series of Investor Certificates are
outstanding that were characterized as debt at the time of
their issuance, the Sellers shall have delivered to the
Trustee and each Rating Agency a Tax Opinion, dated the date
of such exchange (or transfer or exchange as provided below),
with respect thereto.
Any Supplemental Certificate may be transferred or exchanged
only upon satisfaction of the conditions set forth in clauses (ii) and
(iii) above in the preceding paragraph.
(d) The Bank Certificate (or any interest therein) or the
uncertificated interest of the Sellers in the Sellers' Interest (or any
interest therein) may be transferred to a Person which is a member of
the "affiliated group" of which FleetBoston Financial Corporation is
the "common parent" (as such terms are defined in Section 1504(a) of
the Code); provided that (i) if any Series of Investor Certificates are
outstanding that were characterized as debt at the time of their
issuance, the Sellers shall have delivered to the Trustee and each
Rating Agency a Tax Opinion, dated the date of such transfer, with
respect thereto, and (ii) any such transferee shall be deemed to be a
"Seller" for purposes of Sections 7.04 and 9.02.
SECTION 8. Amendment of Section 12.03. Section 12.03 of the
Pooling and Servicing Agreement shall be and hereby is amended to read in its
entirety as follows:
Section 12.03. Sellers' Termination Rights. Upon the
termination of the Trust pursuant to Section 12.01 and, if any part of
the Sellers' Interest is then evidenced by a certificate or
certificates, the surrender of such certificate or certificates, the
Trustee shall sell, assign and convey to the Holders of the Sellers'
Interest or their designee, without recourse, representation or
warranty, all right, title and interest of the Trust in the
Receivables, whether then existing or thereafter created, all moneys
due or to become due and all amounts received with respect thereto and
all proceeds thereof, except for amounts held by the Trustee pursuant
to Section 12.02(b). The Trustee shall execute and deliver such
instruments of transfer and assignment, in each case without recourse,
as shall be reasonably requested by the Holders of the Sellers'
Interest to vest in the Holders
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of the Sellers' Interest or their designee all right, title and
interest which the Trust had in the Receivables and such other related
assets.
SECTION 9. Effectiveness. The amendments provided for by this
Amendment shall become effective on the date (the "Effective Date") that each of
the following events occur:
(a) Fleet shall have delivered to the Trustee an Officer's
Certificate from Fleet stating that Fleet reasonably believes that the
execution and delivery of this Amendment will not have an Adverse
Effect.
(b) Fleet shall have received from each Rating Agency written
confirmation that the execution and delivery of this Amendment will not
result in the reduction or withdrawal of its current rating of any
outstanding Series or Class of Investor Certificates.
(c) Each of the parties hereto shall have received
counterparts of this Amendment, duly executed by each of the parties
hereto.
SECTION 10. Pooling and Servicing Agreement in Full Force and
Effect as Amended. Except as specifically amended hereby, all of the terms and
conditions of the Pooling and Servicing Agreement shall remain in full force and
effect. All references to the Pooling and Servicing Agreement in any other
document or instrument shall be deemed to mean such Pooling and Servicing
Agreement as amended by this Amendment. This Amendment shall not constitute a
novation of the Pooling and Servicing Agreement, but shall constitute an
amendment thereof. The parties hereto agree to be bound by the terms and
obligations of the Pooling and Servicing Agreement, as amended by this
Amendment, as though the terms and obligations of the Pooling and Servicing
Agreement were set forth herein.
SECTION 11. 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 12. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK 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, the parties hereto have caused this
Amendment to the Pooling and Servicing Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.
FLEET BANK (RI), NATIONAL ASSOCIATION,
Seller and Servicer
By: /s/ Jeffrey A. Lipson
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Name: Jeffrey A. Lipson
Title: Vice President
BANKERS TRUST COMPANY,
Trustee
By: /s/ Peter Becker
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Name: Peter Becker
Title: Assistant Vice President
[Signature Page to Amendment No. 5 to the
Amended and Restated Pooling and Servicing Agreement]
