1
Exhibit 4.1
EXECUTION COPY
AMENDMENT NUMBER 6
TO THE
AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT
THIS AMENDMENT NUMBER 6 TO THE AMENDED AND RESTATED POOLING
AND SERVICING AGREEMENT, dated as of March 30, 2001, (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 previously amended by amendments numbered 1 through 5
and as assigned by Advanta National Bank to Fleet pursuant to an Assignment and
Assumption Agreement, dated as of February 20, 1998, 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 Removal of Accounts and Participation
Interest Provisions. Article II of the Pooling and Servicing Agreement shall be
and hereby is amended by the following:
1. The introductory clause of Section 2.09 shall read in its
entirety, as follows:
On any day of any Monthly Period each Seller shall
have the right, subject to the restrictions set forth in
Section 2.12, to require the reassignment to it or its
designee of all the Trust's right, title and interest in, to
and under the Receivables then existing and thereafter
created, all moneys due or to become due and all amounts
received with respect thereto and all proceeds thereof in or
with respect to the Accounts owned and designated by such
Seller (the "Removed Accounts") or Participation Interests
designated by the Seller, upon satisfaction of the following
conditions:
2. Section 2.12 shall be added to the end of Article II. Section
2.12 shall read in its entirety, as follows:
2
Section 2.12. Restrictions on Removal of Accounts and
Participation Interests. In addition to the terms and conditions
contained in Section 2.09 of this Agreement, the Seller's right to
require the reassignment to it or its designee of all the Trust's
right, title and interest in, to and under the Receivables in Removed
Accounts and Participation Interests, shall be subject to the following
restrictions:
(a) Except for Removed Accounts described in subsection
(b), there shall be no more than one Removal Date in
any Monthly Period; for each Removal Date, the
Accounts to be designated as Removed Accounts shall
be selected at random by the Seller and the Removed
Accounts shall not, as of the Removal Cut-Off Date,
contain Principal Receivables which, in the
aggregate, exceed an amount equal to the excess, if
any, between the Seller Amount and the Required
Seller Amount.
(b) The Seller may designate Removed Accounts as provided
in and subject to the terms and conditions contained
in Section 2.09 of this Agreement without being
subject to the restrictions set forth in (a) of this
Section 2.12 if:
(i) the Removed Accounts are Accounts containing
Defaulted Receivables;
(ii) the Removed Accounts are Accounts which,
according to the Servicer's records, have
had a zero balance for a period of at least
90 consecutive days;
(iii) the Removed Accounts are Accounts which as
of the Removal Cut-Off Date fail to satisfy
one or more of the characteristics listed in
provisions (a) through (g) of the definition
of Eligible Accounts; or
(iv) the Removed Accounts are Accounts originated
or acquired under a specific affinity
agreement if the affinity agreement has
terminated or will terminate within 30 days
of the removal and such termination is at
the election of or due to default or breach
by a party or parties to the agreement other
than the Seller, any Affiliate of the Seller
or any agent of the Seller or such
termination is the result of a failure by a
party other than the Seller, an affiliate of
the Seller or an agent of the Seller to
extend the agreement.
SECTION 2. Provisions Relating to Intent for Accounting
Purposes. Section 2.01 of the Pooling and Servicing Agreement shall be and
hereby is amended by adding the following paragraph at the end of Section 2.01:
The parties hereto intend that each transfer of Receivables
and other property pursuant to this Agreement or any Assignment
constitutes a sale, and not a secured borrowing, for accounting
purposes. If, and to the extent that, notwithstanding such intent,
2
3
the transfer pursuant to this Section 2.01 is not deemed to be a sale,
the Sellers shall be deemed hereunder to have granted and do hereby
grant to the Trustee, on behalf of the Trust and for the benefit of the
Certificateholders, a security interest in all of its right, title and
interest, whether now owned or hereafter acquired, in, to and under all
of the Trust Assets. This Agreement shall constitute a security
agreement under the UCC.
SECTION 3. Amendment of Exhibit B. Section 3(d) of Exhibit B
to the Pooling and Servicing Agreement shall be and hereby is amended to read in
its entirety as follows:
(d) The parties hereto intend that each transfer of
Receivables and other property pursuant to this Assignment constitutes
a sale, and not a secured borrowing, for accounting purposes. If and to
the extent that, notwithstanding such intent, the foregoing conveyance
is not deemed to be a sale, [the/each] Participating Seller hereby
grants to the Trustee a first priority perfected security interest in
all of such Participating Seller's right, title and interest in and to
(i) the Receivables now existing and hereafter created and arising in
connection with the Additional Accounts owned by such Participating
Seller and designated hereby, (ii) all monies due to or to become due
and all amounts received with respect thereto (including all Finance
Charge Receivables), (iii) all proceeds (including "proceeds" as
defined in the UCC) of and collections of such Receivables, including
Insurance Proceeds and Recoveries relating thereto and (iv) to the
extent not otherwise included in the Receivables, Interchange allocable
to the Trust pursuant to the Agreement. This Assignment shall
constitute a security agreement under applicable law.
SECTION 4. 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 5. 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.
3
4
SECTION 6. 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 7. 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.
4
5
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
-----------------------------------
Name: Jeffrey A. Lipson
Title: Vice President
BANKERS TRUST COMPANY,
Trustee
By: /s/ Peter Becker
-----------------------------------
Name: Peter Becker
Title: Assistant Vice President
[Signature Page to Amendment No. 6 to the
Amended and Restated Pooling and Servicing Agreement]