1
Exhibit 4.2
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 consideration, the receipt and sufficiency of which are hereby
acknowledged, it is hereby agreed that:
2
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 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.
2
3
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 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
3
4
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.
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 assignment, assumption and release provided herein, including, but not
limited to, the execution and filing of UCC financing statements.
4
5
(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.
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.
5
6
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:
--------------------------------
Name:
Title
FLEET BANK (RI), NATIONAL
ASSOCIATION,
Assignee and Seller and
Servicer by transfer and assumption
By:
--------------------------------
Name:
Title:
BANKERS TRUST COMPANY,
Trustee
By:
--------------------------------
Name:
Title:
Acknowledged and Agreed
FLEET CREDIT CARD, LLC
By:
--------------------------------
Name:
Title:
[Signature Page for Assignment Agreement]
7
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
8
SCHEDULE II
List of All Series of Certificates
Outstanding Under the Agreement
9
SCHEDULE III
List of Assignment of
Receivables in Additional Accounts
