EXHIBIT 4.2
EXECUTION COPY
AMENDMENT NUMBER 1
TO THE
AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT
THIS AMENDMENT NUMBER 1 TO THE AMENDED AND RESTATED POOLING
AND SERVICING AGREEMENT, dated as of April 1, 2002 (this "Amendment") is among
FLEET BANK (RI), NATIONAL ASSOCIATION ("Fleet"), a national banking association,
as Servicer, FLEET CREDIT CARD FUNDING TRUST ("FCCF"), a Delaware business
trust, as Transferor, and BANKERS TRUST COMPANY, a New York banking corporation,
as Trustee (the "Trustee") under the Amended and Restated Pooling and Servicing
Agreement, dated as of December 1, 1993 and amended and restated as of January
1, 2002 (the "Pooling and Servicing Agreement"), among Fleet, as Servicer, FCCF,
as Transferor and Bankers Trust Company, as Trustee for the Fleet Credit Card
Master Trust II.
RECITALS
WHEREAS, Fleet and FCCF wish 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. Amendment to the Introductory Paragraph to the Pooling and
Servicing Agreement. The introductory paragraph to the Pooling and Servicing
Agreement is hereby amended and restated in its entirety to read as follows:
AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT
dated and effective as of December 1, 1993, as amended and
restated as of January 1, 2002, among FLEET BANK (RI),
NATIONAL ASSOCIATION, a national banking association, as
Servicer, FLEET CREDIT CARD FUNDING TRUST, a Delaware business
trust, as Transferor, and BANKERS TRUST COMPANY, a New York
banking corporation, as Trustee.
SECTION 2. Amendments to Definitions. Section 1.01 of the Pooling and
Servicing Agreement shall be and hereby is amended as follows:
(a) The second sentence of the definition of "Defaulted Receivables" is
amended to read in its entirety as follows:
A Principal Receivable shall become a Defaulted Receivable on the day
on which such Principal Receivable is recorded as charged off on the
Servicer's computer master file of consumer revolving credit card
accounts but, in any event, shall be deemed a Defaulted Receivable no
later than the last day of the Monthly Period in which the related
Account
becomes 180 days Contractually Delinquent unless the Obligor cures such
default by making a partial payment which satisfies the criteria for
curing delinquencies set forth in the applicable Credit Card
Guidelines.
(b) The definition of "FCCF" is hereby amended to read in its entirety
as follows:
"FCCF" shall mean Fleet Credit Card Funding Trust, a Delaware
business trust, and its successors and assigns.
(c) The definition of "Requirements of Law" is hereby amended to read
in its entirety as follows:
"Requirements of Law" with respect to any Person shall mean
the certificate of incorporation, certificate of formation, certificate
of trust or articles of association and by-laws, limited liability
company agreement, trust agreement or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or Governmental Authority, in each case
applicable to or binding upon such Person or to which such Person is
subject, whether Federal, state or local (including, without
limitation, usury laws, the Federal Truth in Lending Act and Regulation
Z and Regulation B of the Board of Governors of the Federal Reserve
System).
SECTION 3. Representations and Warranties of the Transferors Relating
to the Transferors. Subsections 2.03(a) and 2.03(b) of the Pooling and Servicing
Agreement shall be and hereby are amended to read in their entireties, as
follows:
(a) Organization and Good Standing. Such Transferor is a national
banking association, a corporation, a limited liability company or a
business trust, duly organized, created or formed and validly existing
in good standing under the laws of the jurisdiction of its organization,
incorporation, creation or formation and has full power, authority and
legal right to own its properties and conduct its consumer revolving
lending business or its receivables purchase and transfer business as
such properties are presently owned and such business is presently
conducted, to execute, deliver and perform its obligations under the
Receivables Purchase Agreement and each Assignment thereunder and under
this Agreement and each Supplement and to execute and deliver to the
Trustee the Certificates pursuant hereto.
(b) Due Qualification. Such Transferor is duly qualified to do business
and is in good standing as a foreign entity (or is exempt from such
requirements), and has obtained all necessary licenses and approvals
with respect to such Transferor, in each jurisdiction in which failure
to so qualify or to obtain such licenses and approvals would render any
Cardholder Agreement relating to an Account owned by such Transferor or
any Receivable transferred to the Trustee by such Transferor
unenforceable by such Transferor, the Servicer or the Trustee or would
have a material adverse effect on the interests of the
Certificateholders hereunder or under any Supplement; provided, however,
that no representation or warranty is made with respect to any
qualification, licenses or approvals which the Trustee has or may be
required at any time to obtain, if any, in connection with the
transactions contemplated hereby.
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SECTION 4. Covenants of the Transferors. Section 2.07 of the Pooling
and Servicing Agreement shall be and hereby is amended as follows:
(a) Subsection 2.07(j)(i) is hereby amended to read in its entirety as
follows:
(i) Maintain in full effect its existence, rights and franchises as a
limited liability company or business trust under the laws of the state
of its formation or creation and will obtain and preserve its
qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement and the Receivables Purchase Agreement
and each other instrument or agreement necessary or appropriate to
proper administration hereof and permit and effectuate the transactions
contemplated hereby.
(b) Subsection 2.07(j)(vii) is hereby amended to read in its entirety
as follows:
(vii) Conduct its affairs strictly in accordance with its
organizational documents and observe all necessary, appropriate and
customary formalities, including, but not limited to, holding all
regular and special meetings of its governing board appropriate to
authorize all actions of such Transferor, keeping separate and accurate
minutes of such meetings, passing all resolutions or consents necessary
to authorize actions taken or to be taken, and maintaining accurate and
separate books, records and accounts, including, but not limited to,
intercompany transaction accounts. Regular meetings of the governing
board shall be held at least annually.
(c) Subsection 2.07(j)(viii) is hereby amended to read in its entirety
as follows:
(viii) Ensure that its governing board shall at all times include at
least one Independent Director or Independent Trustee (for purposes
hereof, "Independent Director" or "Independent Trustee" shall mean any
member of the governing board of such Transferor that is not and has
not at any time been (x) an officer, agent, advisor, consultant,
attorney, accountant, employee or shareholder of any Affiliate of such
Transferor which is not a special purpose entity, (y) a director of any
Affiliate of such Transferor other than an independent director of any
Affiliate which is a special purpose entity or (z) a member of the
immediate family of any of the foregoing).
(d) Subsection 2.07(j)(xv) is hereby amended to read in its entirety as
follows:
(xv) Ensure that at all times it is adequately capitalized to engage in
the transactions contemplated in its organizational documents.
SECTION 5. Amendment to Exhibit A to the Pooling and Servicing
Agreement. Exhibit A to the Pooling and Servicing Agreement is hereby amended by
deleting the first sentence in the fourth paragraph and inserting the following
language:
This certifies that FLEET CREDIT CARD FUNDING TRUST
is the registered owner of a fractional interest in the assets of a
trust (the "Trust") not allocated to the Certificateholders' Interest
or the interest of any holder of a Supplemental Certificate pursuant to
the Amended and Restated Pooling and Servicing Agreement dated as of
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December 1, 1993, as amended and restated as of January 1, 2002 (as
amended and supplemented, the "Agreement"), between Fleet Credit Card
Funding Trust, a Delaware business trust ("FCCF"), as Transferor, Fleet
Bank (RI), National Association, a national banking association, as
Servicer, and Bankers Trust Company, a New York banking corporation, as
trustee (the "Trustee").
SECTION 6. Amendment to Exhibit B to the Pooling and Servicing
Agreement. Exhibit B to the Pooling and Servicing Agreement is hereby amended by
deleting "Fleet Credit Card Funding, LLC, a Delaware limited liability company"
in the introductory paragraph and inserting the following in its place:
Fleet Credit Card Funding Trust, a Delaware business trust
SECTION 7. Amendment to Exhibit C to the Pooling and Servicing
Agreement. Exhibit C to the Pooling and Servicing Agreement is hereby amended by
deleting "Fleet Credit Card Funding, LLC, a Delaware limited liability company"
in the introductory paragraph and inserting the following in its place:
Fleet Credit Card Funding Trust, a Delaware business trust
SECTION 8. Amendment to Exhibit D to the Pooling and Servicing
Agreement. Exhibit D to the Pooling and Servicing Agreement is hereby amended by
deleting "Fleet Credit Card Funding, LLC" in the introductory paragraph and
inserting "Fleet Credit Card Funding Trust" in its place.
SECTION 9. Amendment to Exhibit E to the Pooling and Servicing
Agreement. Exhibit E to the Pooling and Servicing Agreement is hereby amended as
follows:
(a) The following addressee of Exhibit E-2 is hereby deleted:
[Fleet Credit Card Funding, LLC
680 Blair Mill Road
Suite PA EH 066 01L
Horsham, Pennsylvania 19044
Attention: Linda Morris, General Counsel
to Fleet Credit Card Funding, LLC]
and the following is inserted in its place:
[Fleet Credit Card Funding Trust
300 North Wakefield Drive
Suite DE EH 60002P
Newark, Delaware 19702
Attention: President]
(b) The last sentence is hereby amended by deleting "Fleet Credit Card
Funding, LLC" and inserting "Fleet Credit Card Funding Trust" in its place.
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SECTION 10. 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) FCCF shall have delivered to the Trustee an Officer's
Certificate from FCCF stating that FCCF reasonably believes that the
execution and delivery of this Amendment will not have an Adverse
Effect.
(b) FCCF 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 11. 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.
SECTION 12. 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 13. 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.
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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,
Servicer
By: /s/ Jeffrey A. Lipson
-----------------------------------
Name: Jeffrey A. Lipson
Title: Vice President
FLEET CREDIT CARD FUNDING TRUST,
Transferor, formerly, Fleet Credit Card
Funding,LLC
By: /s/ Jeffrey A. Lipson
-----------------------------------
Name: Jeffrey A. Lipson
Title: Vice President
BANKERS TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
By: /s/ Peter Becker
-----------------------------------
Name: Peter Becker
Title: Assistant Vice President
[Signature Page to Amendment Number 1 to the
Amended and Restated Pooling and Servicing Agreement]