1
EXHIBIT 4.3
EXECUTION COPY
AMENDMENT NUMBER 2
TO THE
AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT
THIS AMENDMENT NUMBER 2 TO THE AMENDED AND RESTATED POOLING
AND SERVICING AGREEMENT, dated as of October 6, 1995, (this "Amendment") is
among COLONIAL NATIONAL BANK USA, a national banking association ("CNB"), as a
Seller and the Servicer, ADVANTA NATIONAL BANK, a national banking association
("ANB"), as an Additional Seller, and BANKERS TRUST COMPANY, as Trustee (the
"Trustee") under the Amended and Restated Pooling and Servicing Agreement dated
as of December 1, 1993, between CNB, as a Seller and the Servicer, and the
Trustee, as amended and restated on May 23, 1994 (as amended, supplemented and
in effect on the date hereof, the "Pooling and Servicing Agreement").
RECITALS
WHEREAS, subsections 2.08(e) and 13.01(a) of the Pooling and
Servicing Agreement permit amendment of the Pooling and Servicing Agreement to
designate an Affiliate of CNB as an Additional Seller on the terms and
conditions therein specified; and
WHEREAS, CNB wishes to amend Sections 4.03 and 12.01 of the
Pooling and Servicing Agreement as provided herein in accordance with Section
13.01(a) of the Pooling and Servicing Agreement.
NOW THEREFORE, in consideration of the premises and the
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. Capitalized terms used herein and not
otherwise defined herein shall have the meanings specified in the Pooling and
Servicing Agreement.
SECTION 2. Addition of Additional Seller.
(a) Pursuant to subsection 2.08(e) of the Pooling and
Servicing Agreement, CNB hereby designates ANB, an Affiliate of CNB, as an
Additional Seller under the Pooling and Servicing Agreement. From and after the
Effective Date, references in the Pooling and Servicing Agreement and any
outstanding Supplement to a "Seller" shall be construed to include ANB in its
capacity as a Seller under the Pooling and Servicing Agreement and references to
the "Sellers" shall mean CNB and ANB in their capacities as
2
Sellers under the Pooling and Servicing Agreement, unless in each case the
context requires otherwise.
(b) ANB hereby accepts its designation by CNB as an Additional
Seller, and on the Effective Date expressly assumes all of the obligations,
duties, liabilities, immunities and rights of a Seller and a Holder of the Bank
Certificate under the Pooling and Servicing Agreement and each outstanding
Supplement and agrees to be bound as a Seller and a Holder of the Bank
Certificate by all of the terms, covenants and conditions of the Pooling and
Servicing Agreement and each outstanding Supplement. Notwithstanding the
foregoing, each of the parties hereto agrees that ANB shall have no liability
for, nor shall any Person have any claim against ANB with respect to, the
performance by CNB of its obligations (or CNB's failure to perform any of its
obligations) under the Pooling and Servicing Agreement or any Supplement and, in
addition, each of the parties hereto also agrees that CNB shall have no
liability for, nor shall any Person have any claim against CNB with respect to,
the performance by ANB of its obligations (or ANB's failure to perform any of
its obligations) under the Pooling and Servicing Agreement or any Supplement.
SECTION 3. Amendment of Section 4.03.
(a) The second paragraph of subsection 4.03(b) of the Pooling
and Servicing Agreement is hereby amended in its entirety to read as follows:
"The payments to be made to the Holders of the Seller
Certificates pursuant to this subsection 4.03(b) do not apply to
deposits to the Collection Account or other amounts that do not
represent Collections, including payment of the purchase price for
Receivables pursuant to Section 2.06 or 10.01, proceeds from the sale,
disposition or liquidation of Receivables pursuant to Section 9.02 or
12.02 or payment of the purchase price for the Certificateholders'
Interest of a specific Series pursuant to the related Supplement."
(b) Section 4.03 of the Pooling and Servicing Agreement is
hereby amended by inserting clause (c) immediately following clause (b). Clause
(c) shall read as follows:
"(c) Principal Allocations to the Excess Funding Account.
Throughout the existence of the Trust the amount of Collections of
Principal Receivables that is allocated to Investor Certificateholders,
and which is to be paid to the Holders of the Seller Certificates as
provided in this Agreement and in any Supplement shall be paid to such
Holders only if the Seller Amount on such day is greater than the
Required Seller Amount on such day (after giving affect to all
Principal Receivables transferred to the Trust on such day) and
otherwise shall be deposited in the Excess Funding Account and applied
in accordance with Section 4.02 of this Agreement."
2
3
SECTION 4. Amendment of Section 12.01. Clause (i) of Section
12.01 of the Pooling and Servicing Agreement is hereby amended in its entirety
to read as follows: "(i) December 31, 2044,".
SECTION 5. Representations and Warranties of the Sellers. Each
of the Sellers severally represents that, after giving effect to this Amendment:
(a) Each of CNB and ANB shall be a Seller for the purposes of
Section 7.04 and Section 9.02 of the Pooling and Servicing Agreement; and
(b) The Seller Amount shall not be less than 2% of the total
amount of Principal Receivables after the exchange of the Bank Certificate
pursuant to Section 6(c) of this Amendment.
SECTION 6. Effectiveness. The amendment provided for by this
Amendment shall become effective on the date (the "Effective Date") that each of
the following events occur:
(a) CNB and ANB shall have delivered to the Trustee an
Officer's Certificate from each of CNB and ANB stating that CNB and ANB
reasonably believe that the execution and delivery of this Amendment will not
have an Adverse Effect.
(b) CNB and ANB 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) CNB shall have surrendered the Bank Certificate to the
Trustee in exchange for a newly issued Bank Certificate modified to reflect
ANB's interest in the Seller's Interest with notice of such exchange given to
each Rating Agency.
(d) CNB and ANB shall have delivered to the Trustee and each
Rating Agency a Tax Opinion as to the transfer of an interest in the Bank
Certificate to ANB.
(e) The Servicer shall have delivered to the Trustee an
Opinion of Counsel as to the matters specified in Exhibit G-1 to the Pooling and
Servicing Agreement with respect to this Amendment.
(f) Each of the parties hereto shall have received
counterparts of this Amendment, duly executed by each of the parties hereto.
3
4
(g) Each requirement of any Series Enhancement agreement
applicable to amendment of the Pooling and Servicing Agreement shall have been
satisfied.
SECTION 7. 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 8. 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 9. 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.
COLONIAL NATIONAL BANK USA,
Seller and Servicer
By:/s/ MICHAEL COCO
---------------------------
Name: Michael Coco
Title: Vice President
ADVANTA NATIONAL BANK,
Additional Seller
By:/s/ MICHAEL COCO
----------------------------
Name: Michael Coco
Title: Vice President
BANKERS TRUST COMPANY,
Trustee
By: /s/ KEVIN J. HEALEY
------------------------------
Name: Kevin J. Healey
Title: Assistant Vice President
5