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EXHIBIT 4.5
EXECUTION COPY
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Assignment
Agreement"), dated as of February 20, 1998 is among ADVANTA NATIONAL BANK, a
national banking association, previously known as Advanta National Bank USA and
prior to that known as Colonial National Bank USA ("Advanta"), FLEET BANK (RI),
National Association, a national banking association ("Fleet (RI)"), FLEET
CREDIT CARD, LLC, a Rhode Island limited liability company ("LLC"), and BANKERS
TRUST COMPANY, a New York banking corporation, as Trustee (the "Trustee") under
that Amended and Restated Pooling and Servicing Agreement dated as of December
1, 1993, as Amended and Restated on May 23, 1994 (as amended by Amendment Number
1 dated as of July 1, 1994, as further amended by Amendment Number 2 dated as of
October 6, 1995, as further amended by Amendment Number 3 dated as of February
20, 1998, and as supplemented by each of the outstanding Series Supplements and
each of the Assignments of Additional Accounts entered into on or prior to the
date hereof, the "Agreement") pursuant to which the ADVANTA Credit Card Master
Trust II (the "Trust") was created and the Certificates (the "Certificates")
described in Schedule II hereto have been delivered. Each Series of Certificates
was issued pursuant to a Supplement and all of such Supplements which remain in
effect as of the date hereof are listed on Schedule II to this Assignment
Agreement (collectively, the "Supplements"). All terms used herein and not
defined herein have the meaning assigned thereto in the Agreement.
WHEREAS, Advanta will contribute and transfer substantially
all of the assets and liabilities of its consumer credit card business to LLC,
and simultaneously therewith LLC will direct Advanta to transfer certain of such
assets and liabilities to Fleet National Bank or Fleet (RI), all in accordance
with the Contribution Agreement dated as of October 28, 1997 (the "Contribution
Agreement") between Advanta Corp. and Fleet Financial Group, Inc. and Rights
Agreements dated as of February 20, 1998 (the "Rights Agreements") between LLC
and Fleet (RI) or Fleet National Bank; and
WHEREAS, pursuant to the terms of Section 13.08 of the
Agreement as amended by Amendment Number 3 to the Agreement, dated as of
February 20, 1998 ("Amendment Number 3") Advanta may assign and delegate to
Fleet (RI) all of Advanta's rights and obligations as Seller and Servicer under
the Agreement, and Advanta and Fleet (RI) have agreed that Advanta will assign
and delegate to Fleet (RI) and Fleet (RI) will accept and assume all of
Advanta's rights and obligations as Seller and Servicer under the Agreement; and
WHEREAS, this Assignment Agreement is entered into as an
agreement supplemental to the Agreement within the meaning of Section 13.08 of
the Agreement.
NOW, THEREFORE, pursuant to the Agreement, the Rights
Agreements and the Contribution Agreement, and in consideration of these
premises, and for good and valuable
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consideration, the receipt and sufficiency of which are hereby acknowledged, it
is hereby agreed that:
ARTICLE I
ASSIGNMENT OF ADVANTA RIGHTS AND DELEGATION OF ADVANTA DUTIES AND OBLIGATIONS
Section 1.1 Assignment of Advanta's Rights. Advanta, as of the
date hereof, hereby assigns and transfers to Fleet (RI) all of Advanta's right,
title and interest as Seller and Servicer under the Agreement and under each of
the Supplements.
Section 1.2 Delegation of Advanta Duties and Obligations.
Advanta hereby delegates to Fleet (RI) all of Advanta's liabilities, duties and
obligations as Seller and Servicer under the Agreement and under each of the
Supplements.
Section 1.3 Acceptance and Assumption. Fleet (RI), by the
execution hereof, hereby accepts from Advanta and acknowledges transfer of all
of Advanta's right, title and interest as Seller and Servicer under the
Agreement and under each of the Supplements. Fleet (RI), by the execution
hereof, hereby accepts and assumes all of Advanta's liabilities, duties and
obligations as Seller and Servicer under the Agreement and under each of the
Supplements and Fleet (RI) hereby agrees and acknowledges, for the benefit of
the Trustee and all of the Certificateholders, that Fleet (RI) hereby assumes
all of the liabilities under and assumes and agrees to perform each and every
covenant and obligation of the Seller and of the Servicer contained in the
Agreement and in each Supplement.
Section 1.4 Acknowledgement, Consent and Release. The Trustee
hereby acknowledges and consents to the assignment and delegation of Advanta's
rights, title, interests, duties and obligations as Seller and Servicer and to
Fleet (RI)'s acceptance and assumption thereof and hereby acknowledges and
agrees that as of the date hereof, Fleet (RI) has been substituted for Advanta
as Seller and Servicer under the Agreement and under each of the Supplements and
that, as a result, Advanta is released as Seller and Servicer under the
Agreement and each of the Supplements and that, as of the date hereof, Advanta
is hereby released from all duties and obligations under the Agreement and the
Supplements except to the extent of obligations that arose prior to the date
hereof.
ARTICLE II
TRANSFER OF THE BANK CERTIFICATE
Section 2.1 Transfer of Bank Certificate. As provided in
Section 6.03 of the Agreement, as amended, the Bank Certificate may be
transferred to Fleet (RI) in a servicing transfer pursuant to Section 13.08 and
Advanta hereby assigns and transfers to Fleet (RI) all of Advanta's right, title
and interest in the Bank Certificate and simultaneously with the execution
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hereof, Advanta will surrender the Bank Certificate to the Trustee for transfer
to Fleet (RI) and will deliver to the Trustee a Tax Opinion as provided in
Section 6.03(d) of the Agreement.
ARTICLE III
ASSIGNMENT OF RECEIVABLES
Section 3.1 Assignment of Receivables.
(a) Fleet (RI) hereby acknowledges that Advanta has
transferred to Fleet (RI) Advanta's portfolio of consumer credit card accounts
including all of the Initial Accounts designated to the Trust pursuant to the
terms of Section 2.01 of the Agreement and each Additional Account designated to
the Trust pursuant to Section 2.08 of the Agreement and those Assignments of
Receivables in Additional Accounts listed in Schedule III to this Assignment
Agreement (the "Account Assignments"). Fleet (RI) acknowledges that, pursuant to
the Agreement and to the Account Assignments, Advanta has sold, transferred,
assigned and set over and otherwise conveyed to the Trustee, on behalf of the
Trust, for the benefit of the Certificateholders, all of Advanta's right, title
and interest in and to (i) the Receivables existing at the time of the
designation of such Accounts as an Account and the Receivables thereafter
created from time to time until the termination of the Trust and arising in
connection with the Accounts, (ii) all monies due or to become due and all
amounts received with respect to the Receivables (including all Finance Charge
Receivables relating thereto), (iii) all proceeds (including "proceeds" as
defined in the UCC) of and Collections of the Receivables, including Insurance
Proceeds and Recoveries relating to Receivables, and (iv) to the extent not
otherwise included in the Receivables, Interchange allocable to the Trust
pursuant to the Agreement.
(b) Fleet (RI) hereby confirms, affirms and ratifies the sale,
transfer, assignment, set over, conveyance and pledge contained in the Agreement
and in each of the Account Assignments and Fleet (RI) hereby sells, transfers,
assigns, sets over and otherwise conveys to the Trustee, on behalf of the Trust,
for the benefit of the Certificateholders, all of Fleet (RI)'s right, title and
interest in and to (i) the Receivables now existing or hereafter created in the
Initial Accounts and all Additional Accounts designated in the Account
Assignments, (ii) all monies due or to become due and all amounts received with
respect thereto (including all Finance Charge Receivables relating thereto),
(iii) all proceeds (including "proceeds" as defined in the UCC) of and
Collections of such Receivables, including Insurance Proceeds and Recoveries
relating to the Receivables, (iv) to the extent not otherwise included in such
Receivables, Interchange allocable to the Trust pursuant to the Agreement, and
(v) all amounts on deposit in the Collection Account (other than net investment
earnings thereon), the Excess Funding Account, any Series Account, and any Yield
Maintenance Account.
(c) Fleet (RI) hereby grants to the Trustee, on behalf of the
Trust, for the benefit of the Certificateholders, a first priority perfected
security interest in all of Fleet (RI)'s right, title and interest in and to (i)
the Receivables now existing and hereafter created and arising in the Initial
Accounts and all Additional Accounts, (ii) all monies due or to become due and
all amounts received with respect to the Receivables (including all Finance
Charge Receivables relating thereto), (iii) all proceeds (including "proceeds"
as defined in the UCC) of
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and Collections of the Receivables including Insurance Proceeds and Recoveries
relating thereto, (iv) to the extent not otherwise included in the Receivables,
Interchange allocable to the Trust pursuant to the Agreement and (v) all amounts
on deposit in the Collection Account (other than net investment earnings
thereon), the Excess Funding Account, any Series Account and any Yield
Maintenance Account and this Assignment Agreement shall constitute a security
agreement under applicable law.
Section 3.2 Acceptance of Assignment. The Trustee hereby
acknowledges its acceptance on behalf of the Trust, for the benefit of the
Certificateholders, of all right, title and interest in and to the property, now
existing and hereafter created, conveyed to the Trust pursuant to Section 3.1(b)
of this Assignment Agreement and declares that it shall maintain such right,
title and interest, upon the trust set forth in the Agreement for the benefit of
the Certificateholders. The Trustee also hereby acknowledges its acceptance on
behalf of the Trust, for the benefit of the Certificateholders, of a security
interest in all right, title and interest in and to the property, now existing
and hereafter created, granted to the Trustee pursuant to Section 3.1(c) of this
Assignment Agreement and declares that it shall maintain such right, title and
interest upon the trust set forth in the Agreement for the benefit of all the
Certificateholders.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 4.1 Representations and Warranties. Fleet (RI) hereby
assumes the performance of all of the obligations and covenants and assumes all
of the liabilities of Advanta as Seller and as Servicer under the Agreement and
each of the Supplements as if Fleet (RI) were the original Seller and Servicer
including, without limitation, the obligations of the Seller to transfer the
Receivables and proceeds thereof to the Trust.
Section 4.2 Reassignment of Receivables. Fleet (RI) agrees
that upon the execution and delivery of Amendment Number 3, under the terms of
the Agreement, it shall be and is deemed to be the Seller which transferred all
Receivables to the Trust and agrees to accept the reassignment of Receivables as
provided in Sections 2.05 and 2.06 notwithstanding the fact that a Receivable
may have been transferred to the Trust prior to the date of this Assignment
Agreement and after the date of this Assignment Agreement no such assignment
shall be made to Advanta and any amounts required to be deposited as a result of
such reassignment shall be the obligation of Fleet (RI).
Section 4.3 Covenants.
(a) Fleet (RI), as Seller and Servicer, agrees to comply with
all of the covenants of the Seller and of the Servicer as set forth in the
Agreement and in each of the Supplements and from and after the date of this
Assignment Agreement, Fleet (RI) covenants to execute and deliver to Advanta or
to the Trustee such additional documents and instruments and to take such
action, all without further consideration, as Advanta shall reasonably request
to effectuate the
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assignment, assumption and release provided herein, including, but not limited
to, the execution and filing of UCC financing statements.
(b) From and after the date of this Assignment Agreement,
Advanta covenants to execute and deliver to Fleet (RI) such additional documents
and instruments and to take such action, all without further consideration, as
Fleet (RI) shall reasonably request to effectuate the assignment, assumption and
release provided herein, including, but not limited to, the execution and filing
of UCC financing statements.
ARTICLE V
MISCELLANEOUS PROVISIONS
Section 5.1 Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
Section 5.2 Counterparts. This Assignment Agreement 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 shall
constitute one and the same instrument.
Section 5.3 Governing Law. THIS ASSIGNMENT AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING THE
UCC AS IN EFFECT IN 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 undersigned have caused this
Assignment Agreement to be duly executed and delivered by their respective duly
authorized officers on the day and year first above written.
ADVANTA NATIONAL BANK,
Seller and Servicer
By:/s/ XXXXXXX XXXX
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Name: Xxxxxxx Xxxx
Title Vice President
FLEET BANK (RI), NATIONAL
ASSOCIATION,
Assignee and Seller and
Servicer by transfer and assumption
By:/s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
BANKERS TRUST COMPANY,
Trustee
By:/s/ XXXXX XXXXXXX
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Name: Xxxxx Xxxxxxx
Title: Vice President
Acknowledged and Agreed
FLEET CREDIT CARD, LLC
By:/s/ XXXXXX X. XXXXXXXX
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Name: Xxxxxx X. Xxxxxxxx
Title: President
[Signature Page for Assignment Agreement]
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SCHEDULE I
List of All Outstanding Supplements to the Amended and Restated Pooling and
Servicing Agreement dated as of December 1, 1993,
as Amended and Restated on May 23, 1994
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SCHEDULE II
List of All Series of Certificates
Outstanding Under the Agreement
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SCHEDULE III
List of Assignment of
Receivables in Additional Accounts
