1
EXHIBIT 4.2
SUPPLEMENTAL AGREEMENT
THIS SUPPLEMENTAL AGREEMENT (this "Supplemental 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"), FLEET CREDIT CARD, LLC, a
Rhode Island limited liability company ("LLC"), and THE CHASE MANHATAN BANK, a
New York banking corporation, previously known as Chemical Bank, as Trustee (the
"Trustee") under that Amended and Restated Master Pooling and Servicing
Agreement dated as of April 1, 1992, (as subsequently amended and supplemented,
the "Agreement") pursuant to which the ADVANTA Credit Card Master Trust (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, 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 or Fleet National Bank; and
WHEREAS, pursuant to Section 2.11 of the Agreement, Advanta as Seller
may convey its interest in all of the Accounts if, among other things, the
acquirer expressly assumes, in an agreement supplemental to the Agreement,
executed and delivered to the Trustee, the performance of the covenants and
obligations of the Seller thereunder with respect to the Accounts; and
WHEREAS, pursuant to Section 8.05 of the Agreement, Advanta may
resign as Servicer in connection with a Conveyance pursuant to Section 2.11 of
the Agreement if a Successor Servicer shall have assumed the responsibilities
and obligations of the Servicer in accordance with Section 10.02 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 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 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, 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, 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 hereby agrees and acknowledges, for the benefit of the Trustee and all of
the Certificateholders, that Fleet 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 all of
Advanta's right, title, interest, duties and obligations as Seller and Servicer
and to Fleet's acceptance and assumption thereof and hereby acknowledges and
agrees that as of the date hereof, Fleet 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.
ARTICLE II
TRANSFER OF THE EXCHANGEABLE SELLER'S CERTIFICATE
Section 2.1 Transfer of Exchangeable Seller's Certificate. As
provided in Section 2.09(e) of the Agreement, the Exchangeable Seller's
Certificate shall be transferred to Fleet in connection with a Conveyance
pursuant to Section 2.11 of the Agreement and Advanta hereby assigns and
transfers to Fleet all of Advanta's right, title and interest in the
Exchangeable Seller's Certificate and simultaneously with the execution hereof,
Advanta will surrender the Exchangeable Seller's Certificate to the Trustee for
transfer to Fleet and will deliver to the Trustee an Opinion of Counsel provided
for in Section 2.09(e) of the Agreement.
2
3
ARTICLE III
ASSIGNMENT OF RECEIVABLES
Section 3.1 Assignment of Receivables.
(a) Fleet hereby acknowledges that Advanta has transferred to Fleet
Advanta's portfolio of consumer credit card accounts including all of the
Accounts identified as of the Initial Cut-Off Date and designated to the Trust
pursuant to the terms of Section 2.01 of the Agreement and each Additional
Account identified as of each Addition Cut-Off Date and designated to the Trust
pursuant to the terms of Section 2.05 of the Agreement and those Assignments of
Receivables in Additional Accounts listed in Schedule III to this Supplemental
Agreement (the "Account Assignments"). Fleet 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 Supplements.
(b) Fleet 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 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'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, (iv) to the extent not otherwise included in such Receivables,
Interchange allocable to the Trust pursuant to the Supplements, and (v) all
amounts on deposit in the Collection Account (other than net investment earnings
thereon) and any Series Account.
(c) Fleet hereby grants to the Trustee, on behalf of Trust, for the
benefit of the Certificateholders, a first priority perfected security interest
in all of Fleet's right, title and interest in and to (i) the Receivables now
existing and hereafter created 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 thereto,
(iv) to the extent not otherwise included in the Receivables, Interchange
allocable to the Trust pursuant to the Supplements and (v) all amounts on
deposit in the Collection Account (other than net investment earnings thereon)
and
3
4
any Series Account and this Supplemental 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 in accordance with the terms of the Agreement.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 4.1 Representations and Warranties. Fleet 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 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 agrees that upon
the execution and delivery of the Third Amendment to the Agreement, dated as of
February 20, 1998 (the "Third Amendment"), under the terms of Sections 2.07 and
2.08 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 2.07 and 2.08 notwithstanding the fact
that a Receivable may have been transferred to the Trust prior to the date of
this Supplemental Agreement and after the date of this 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.
Section 4.3 Covenants.
(a) Fleet, 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 Supplemental
Agreement, Fleet 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 Supplemental Agreement, Advanta
covenants to execute and deliver to Fleet such additional documents and
instruments and to take such action, all without further consideration, as Fleet
shall reasonably request to effectuate the assignment, assumption and release
provided herein, including, but not limited to, the execution and filing of UCC
financial 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 Supplemental 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 SUPPLEMENTAL AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, INCLUDING THE
UCC AS IN EFFECT IN THE STATE OF DELAWARE, 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; PROVIDED, HOWEVER,
THAT THE IMMUNITIES AND STANDARD OF CARE OF THE TRUSTEE IN THE ADMINISTRATION OF
ITS TRUSTS HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
5
6
IN WITNESS WHEREOF, the undersigned have caused this Supplemental
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:
THE CHASE MANHATAN BANK,
Trustee
By:
---------------------------------
Name:
Title:
Acknowledged and Agreed
FLEET CREDIT CARD, LLC
By:
--------------------------------
Name:
Title:
[Signature Page for Supplemental Agreement]
7
SCHEDULE I
List of All Outstanding Supplements to the Amended and
Restated Master Pooling and Servicing Agreement
dated as of April 1, 1992
8
SCHEDULE II
List of All Series of Certificates
Outstanding Under the Agreement
9
SCHEDULE III
List of Assignment of
Receivables in Additional Accounts
