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EXHIBIT 4.2
AMENDMENT NUMBER 1 TO THE AMENDED AND RESTATED
POOLING AND SERVICING AGREEMENT
This AMENDMENT TO THE AMENDED AND RESTATED POOLING AND
SERVICING AGREEMENT (this "Amendment") is dated as of July 1, 1994, and is by
and between Colonial National Bank USA ("Colonial") as seller and servicer, and
Bankers Trust Company as Trustee for the ADVANTA Credit Card Master Trust II
(the "Trust") under the Amended and Restated Pooling and Servicing Agreement
dated as of December 1, 1993 as amended and restated on May 23, 1994, by and
between Colonial and the Trustee (such agreement, "the Pooling Agreement").
Unless the context otherwise requires, capitalized terms used herein and not
defined shall have the meaning given them in the Pooling and Servicing
Agreement.
WHEREAS, Section 13.01(b) of the Pooling Agreement permits
amendment of the Pooling Agreement on the terms and conditions therein
specified;
WHEREAS, Colonial and the Trustee desire to amend the
agreement as provided herein;
WHEREAS, the Holders of Investor Certificates evidencing in
excess of 66 2/3% of the aggregate Investor Amount of the Investor Certificates
have consented to the amendment contemplated herein as evidenced by the executed
consent attached hereto;
NOW THEREFORE, for good consideration the parties hereto agree
to as follows:
ARTICLE I
Amendment to Pooling Agreement
Section 7.04 shall be amended by deleting the current Section 7.04 and
substituting in its place the following:
Section 7.04 Liabilities. The Seller shall indemnify and hold
harmless the Trust and the Trustee, its officers, directors, employees and
agents from and against any loss, liability, expense, damage or injury suffered
or sustained by reason of any acts, omissions or alleged acts or omissions or
otherwise arising out of or based upon the arrangement created by this Agreement
or any Supplement as though this Agreement or such Supplement created a general
partnership under the Delaware Uniform Partnership Law in which the Sellers are
general partners; provided, however, that the Sellers shall not indemnify the
Trustee if such acts, omissions or alleged acts or omissions constitute or are
caused by fraud, negligence, or willful misconduct by the Trustee; provided
further, without limiting the claims of third parties pursuant
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to the last sentence hereof, that the Sellers shall not indemnify the Trust, the
Investor Certificateholders or the Certificate Owners for any liabilities, costs
or expenses of the Trust with respect to any action taken by the Trustee at the
request of the Investor Certificateholders; provided further, that the Sellers
shall not indemnify the Trust, the Investor Certificateholders or the
Certificate Owners as to any losses, claims or damages incurred by any of them
in their capacities as investors, including, without limitation, losses incurred
as a result of Defaulted Receivables; and provided further, that the Sellers
shall not indemnify the Investor Certificateholders or the Certificate Owners
for any liabilities, costs or expenses of the Investor Certificateholders or the
Certificate Owners arising under any tax law relating to any Federal state,
local or foreign income or franchise taxes or any other tax imposed on or
measured by income (or any interest or penalties with respect thereto or arising
from a failure to comply therewith) required to be paid by or for the account of
the Investor Certificateholders or the Certificate Owners in connection herewith
to any taxing authority. Any such indemnification shall not be payable from the
Trust Assets. The provisions of this indemnity shall run directly to and be
enforceable by an injured party subject to the limitations hereof.
ARTICLE II
Miscellaneous
SECTION 2.1. GOVERNING LAW. THIS AMENDMENT SHALL BE 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.
Section 2.2. Severability. If any one or more of the
covenants, agreements, provisions or terms or portions thereof of this Amendment
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms or portions thereof shall be deemed severable
from the remaining covenants, agreements, provisions or terms of this Amendment
and shall in no way affect the validity or enforceability of the other
provisions or portions of this Amendment.
Section 2.3. Counterparts. This Amendment may be executed in
one or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the undersigned have caused this Amendment
to be signed as of the day and year first above written.
COLONIAL NATIONAL BANK USA
as Seller and Servicer
/s/ XXXXXXX XXXX
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Name: Xxxxxxx Xxxx
Title: Assistant Vice President
BANKERS TRUST COMPANY
Trustee
/s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Assistant Secretary
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