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EXHIBIT 4.4
ADVANTA BUSINESS CARD MASTER TRUST
TRUST AGREEMENT
between
ADVANTA BUSINESS RECEIVABLES CORP.,
as Transferor
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
Dated as of August 1, 2000
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TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS ..................................................................... 1
SECTION 1.01. Capitalized Terms .......................................... 1
SECTION 1.02. Other Definitional Provisions .............................. 3
ARTICLE II
ORGANIZATION .................................................................... 4
SECTION 2.01. Name ....................................................... 4
SECTION 2.02. Office ..................................................... 4
SECTION 2.03. Purpose and Powers ......................................... 4
SECTION 2.04. Appointment of Owner Trustee ............................... 5
SECTION 2.05. Initial Capital Contribution of Trust Estate ............... 5
SECTION 2.06. Declaration of Trust ....................................... 5
SECTION 2.07. Title to Trust Property .................................... 5
SECTION 2.08. Situs of Trust ............................................. 5
SECTION 2.09. Representations and Warranties of Transferor ............... 5
SECTION 2.10. Liability of Beneficial Owners of Trust .................... 7
ARTICLE III
OWNERSHIP ....................................................................... 7
SECTION 3.01. Initial Ownership .......................................... 7
SECTION 3.02. Transferor Certificates .................................... 7
SECTION 3.03. Form of Transferor Beneficial Interest; Form of Certificates 7
SECTION 3.04. Authentication of Certificates ............................. 7
SECTION 3.05. Mutilated, Destroyed, Lost or Stolen Certificate ........... 7
SECTION 3.06. Issuance of Supplemental Beneficial Interests
or New Certificates; Exchange of Certificates
and Uncertificated Trust Beneficial Interests .............. 8
SECTION 3.07. ............................................................ 9
SECTION 3.08. Issuance of Foreclosure Certificates ....................... 10
ARTICLE IV
ACTIONS BY OWNER TRUSTEE ........................................................ 12
SECTION 4.01. Prior Notice to Owner and Transferor with
Respect to Certain Matters ................................. 12
SECTION 4.02. Restrictions on Power ...................................... 12
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PAGE
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ARTICLE V
AUTHORITY AND DUTIES OF OWNER TRUSTEE ........................................... 13
SECTION 5.01. General Authority .......................................... 13
SECTION 5.02. General Duties ............................................. 13
SECTION 5.03. Action Upon Instruction .................................... 13
SECTION 5.04. No Duties Except as Specified in this Agreement or in
Instructions ............................................... 14
SECTION 5.05. No Action Except under Specified Documents or Instructions . 14
SECTION 5.06. Restrictions ............................................... 14
ARTICLE VI
CONCERNING THE OWNER TRUSTEE .................................................... 16
SECTION 6.01. Acceptance of Trusts and Duties ............................ 16
SECTION 6.02. Furnishing of Documents .................................... 17
SECTION 6.03. Representations and Warranties ............................. 17
SECTION 6.04. Reliance; Advice of Counsel ................................ 18
SECTION 6.05. Not Acting in Individual Capacity .......................... 18
SECTION 6.06. Owner Trustee Not Liable for Notes or Receivables .......... 18
SECTION 6.07. Owner Trustee May Own Notes ................................ 19
ARTICLE VII
COMPENSATION OF OWNER TRUSTEE ................................................... 20
SECTION 7.01. Owner Trustee's Fees and Expenses .......................... 20
SECTION 7.02. Indemnification ............................................ 20
SECTION 7.03. Payments to the Owner Trustee .............................. 20
ARTICLE VIII
TERMINATION OF TRUST AGREEMENT .................................................. 21
SECTION 8.01. Termination of Trust Agreement ............................. 21
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES .......................... 22
SECTION 9.01. Eligibility Requirements for Owner Trustee ................. 22
SECTION 9.02. Resignation or Removal of Owner Trustee .................... 22
SECTION 9.03. Successor Owner Trustee .................................... 23
SECTION 9.04. Merger or Consolidation of Owner Trustee ................... 23
SECTION 9.05. Appointment of Co-Trustee or Separate Trustee .............. 23
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ARTICLE X
MISCELLANEOUS ................................................................... 25
SECTION 10.01. Supplements and Amendments ................................ 25
SECTION 10.02. No Legal Title to Trust Estate in Transferor .............. 26
SECTION 10.03. Limitations on Rights of Others ........................... 26
SECTION 10.04. Notices ................................................... 26
SECTION 10.05. Severability .............................................. 26
SECTION 10.06. Separate Counterparts ..................................... 27
SECTION 10.07. Successors and Assigns .................................... 27
SECTION 10.08. Nonpetition Covenants ..................................... 27
SECTION 10.09. No Recourse ............................................... 27
SECTION 10.10. Headings .................................................. 27
SECTION 10.11. GOVERNING LAW ............................................. 27
SECTION 10.12. Transferor Payment Obligation ............................. 28
SECTION 10.13. Acceptance of Terms of Agreement .......................... 28
SECTION 10.14. Integration of Documents .................................. 28
EXHIBIT A Form of Certificate ............................................. A-1
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ADVANTA BUSINESS CARD MASTER TRUST TRUST AGREEMENT, dated as of August 1,
2000, between ADVANTA BUSINESS RECEIVABLES CORP., a Nevada corporation, as
Transferor, and WILMINGTON TRUST COMPANY, a Delaware banking corporation, as
Owner Trustee.
ARTICLE I
DEFINITIONS
SECTION 1.01. Capitalized Terms. For all purposes of this Agreement, the
following terms shall have the meanings set forth below:
"ABC" shall mean Advanta Bank Corp., a Utah industrial loan corporation,
and its successors and permitted assigns.
"ABRC" shall mean Advanta Business Receivables Corp., a Nevada
corporation, and its successors and permitted assigns.
"Administration Agreement" shall mean the Administration Agreement, dated
as of August 1, 2000, between the Issuer and ABC, as Administrator.
"Administrator" shall mean ABC, or any successor Administrator under the
Administration Agreement.
"Agreement" shall mean this Trust Agreement of Advanta Business Card
Master Trust, as the same may be amended, modified or otherwise supplemented
from time to time.
"Certificate" shall mean, unless otherwise indicated, the Transferor
Certificate or a Supplemental Certificate.
"Corporate Trust Office" shall mean, with respect to the Owner Trustee,
the principal corporate trust office of the Owner Trustee located at ▇▇▇▇▇▇
Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: Corporate Trust Administration; or such other address as the Owner
Trustee may designate by notice to the Indenture Trustee and the Transferor, or
the principal corporate trust office of any successor Owner Trustee (the address
of which the successor Owner Trustee will notify the Owner and the Transferor).
"Expenses" shall have the meaning specified in Section 7.02.
"Foreclosure Certificate" shall have the meaning specified in subsection
3.08(a).
"Foreclosure Certificate Supplement" shall have the meaning specified in
subsection 3.08(a).
"Indemnified Parties" shall have the meaning specified in Section 7.02.
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"Indenture" shall mean the Master Indenture, dated as of August 1, 2000,
between the Trust and the Indenture Trustee, as the same may be amended,
supplemented or otherwise modified from time to time.
"Indenture Trustee" shall mean Bankers Trust Company, a New York banking
corporation, not in its individual capacity but solely as Indenture Trustee
under the Indenture, and any successor Indenture Trustee under the Indenture.
"Initial Closing Date " shall mean August 18, 2000.
"Issuer" shall mean the Trust.
"Owner Trustee" shall mean Wilmington Trust Company, a Delaware banking
corporation, not in its individual capacity but solely as Owner Trustee under
this Agreement, and any successor Owner Trustee hereunder.
"Supplemental Beneficial Interest" shall mean an additional undivided
beneficial ownership interest in the Trust created pursuant to subsection
3.06(a).
"Supplemental Certificate" shall have the meaning specified in subsection
3.06(c).
"Transfer and Servicing Agreement" shall mean the Transfer and Servicing
Agreement, dated as of August 1, 2000, among the Issuer, the Transferor and ABC,
as Servicer, as the same may be amended, supplemented or otherwise modified from
time to time.
"Transferor" shall mean ABRC, in its capacity as Transferor hereunder and
its successors and assigns in such capacity.
"Transferor Beneficial Interest" shall have the meaning specified in
Section 3.02.
"Transferor Certificate" shall mean a certificate evidencing the
Transferor Beneficial Interest.
"Transferor Certificate Supplement" shall have the meaning specified in
subsection 3.06(c).
"Transferor Interest Supplement" shall have the meaning specified in
subsection 3.06(a).
"Trust" shall mean the trust created by this Agreement.
"Trust Beneficial Interest" shall mean either a Transferor Beneficial
Interest or a Supplemental Beneficial Interest.
"Trust Estate" shall mean all right, title and interest of the Trust in
and to the property and rights assigned to the Trust pursuant to Section 2.05 of
this Agreement and Section 2.01 of the Transfer and Servicing Agreement, all
monies, investment property, instruments and other property on deposit from time
to time in the Collection Account, the Series Accounts and the Excess Funding
Account and all other property of the Trust from time to time, including any
rights of the Owner Trustee and the Trust pursuant to the Transaction Documents.
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"Trust Termination Date" shall have the meaning specified in subsection
8.01(a).
SECTION 1.02. Other Definitional Provisions. (a) Capitalized terms used
herein and not otherwise defined have the meanings assigned to them in the
Transfer and Servicing Agreement or, if not defined therein, in the Indenture.
(b) All terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto, accounting terms not defined in this
Agreement or in any such certificate or other document, and accounting terms
partly defined in this Agreement or in any such certificate or other document to
the extent not defined, shall have the respective meanings given to them under
GAAP. To the extent that the definitions of accounting terms in this Agreement
or in any such certificate or other document are inconsistent with the meanings
of such terms under GAAP, the definitions contained in this Agreement or in any
such certificate or other document shall control.
(d) The words "hereof," "herein," "hereunder," and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement; Section, subsection and Exhibit
references contained in this Agreement are references to Sections, subsections
and Exhibits in or to this Agreement unless otherwise specified; and the term
"including" shall mean "including without limitation."
(e) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
[END OF ARTICLE I]
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ARTICLE II
ORGANIZATION
SECTION 2.01. Name. The Trust created hereby shall be known as "Advanta
Business Card Master Trust," in which name the Owner Trustee on behalf of the
Trust shall have power and authority and is hereby authorized and empowered to
and may conduct the business of the Trust, make and execute contracts and other
instruments on behalf of the Trust and ▇▇▇ and be sued.
SECTION 2.02. Office. The office of the Trust shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address in the
State of Delaware as the Owner Trustee may designate by written notice to the
Indenture Trustee and the Transferor.
SECTION 2.03. Purpose and Powers. The purpose of the Trust is to engage in
the activities set forth in this Section 2.03. The Trust shall have power and
authority and is hereby authorized and empowered, without the need for further
action on the part of the Trust, and the Owner Trustee shall have power and
authority, and is hereby authorized and empowered, in the name and on behalf of
the Trust, to do or cause to be done all acts and things necessary, appropriate
or convenient to cause the Trust to engage in the activities set forth in this
Section 2.03 as follows:
(i) to execute, deliver and issue the Notes pursuant to the
Indenture, to issue the Trust Beneficial Interests and to execute, authenticate,
issue and deliver the Certificates, if any, pursuant to this Agreement;
(ii) with the proceeds of the sale of the Notes, to pay the
organizational, startup and transactional expenses of the Trust, to acquire the
Trust Assets and to pay the Transferor the amounts owed pursuant to Section 2.01
of the Transfer and Servicing Agreement;
(iii) to Grant the Collateral to the Indenture Trustee pursuant to
the Indenture and to hold, manage and distribute to the holders of Trust
Beneficial Interests pursuant to the terms of this Agreement and the Transaction
Documents any portion of the Collateral released from the lien of, and remitted
to the Trust pursuant to, the Indenture;
(iv) to enter into, execute, deliver and perform its obligations
under the Transaction Documents to which it is to be a party;
(v) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith; and
(vi) subject to compliance with the Transaction Documents, to engage
in such other activities as may be required in connection with conservation of
the Trust Estate and the making of payments to the Noteholders and distributions
to the holders of the Trust Beneficial Interests and Certificates.
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The Trust shall not engage in any activity other than in connection with
the foregoing or other than as required or authorized by the terms of this
Agreement or the Transaction Documents.
SECTION 2.04. Appointment of Owner Trustee. The Transferor hereby appoints
the Owner Trustee as trustee of the Trust effective as of the date hereof, to
have all the rights, powers and duties set forth herein.
SECTION 2.05. Initial Capital Contribution of Trust Estate. The Transferor
hereby assigns, transfers, conveys and sets over to the Owner Trustee, as of the
date hereof, the sum of $1. The Owner Trustee hereby acknowledges receipt in
trust from the Transferor, as of the date hereof, of the foregoing contribution,
which shall constitute the initial Trust Estate and shall be held by the Owner
Trustee. The Transferor shall pay the organizational expenses of the Trust as
they may arise or shall, upon the request of the Owner Trustee, promptly
reimburse the Owner Trustee for any such expenses paid by the Owner Trustee.
SECTION 2.06. Declaration of Trust. The Owner Trustee hereby declares that
it will hold the Trust Estate in trust upon and subject to the conditions set
forth herein for the use and benefit of the Transferor and each other holder of
a Trust Beneficial Interest or Certificate subject to the obligations of the
Trust under the Transaction Documents to which it is a party. It is the
intention of the parties hereto that the Trust constitute a common law trust
duly formed under the laws of the State of Delaware and that this Agreement
constitute the governing instrument of such trust. It is the intention of the
parties hereto that, for income tax purposes, the Trust shall be treated as a
security device and disregarded as an entity and its assets shall be treated as
owned in whole by the Transferor. Alternatively, if there shall be more than one
Transferor, it is the intention of the parties hereto that the Trust shall be
treated as a security device for the Transferors or as a partnership. The
parties hereto agree that they will take no action contrary to the foregoing
intention. Effective as of the date hereof, the Owner Trustee shall have all
rights, powers and authority set forth herein with respect to accomplishing the
purposes of the Trust.
SECTION 2.07. Title to Trust Property. Legal title to all the Trust Estate
shall be vested at all times in the Owner Trustee, on behalf of the Trust,
except where applicable law in any jurisdiction requires title to any part of
the Trust Estate to be vested in a co-trustee or separate trustee, in which case
title shall be deemed to be vested in the Owner Trustee, such co-trustee and/or
a separate trustee, as the case may be.
SECTION 2.08. Situs of Trust. The Trust will be located and administered
in the State of Delaware. All bank accounts maintained by the Owner Trustee on
behalf of the Trust shall be located in the State of Delaware or the State of
New York. The Trust shall not have any employees in any state other than
Delaware; provided, however, that nothing herein shall restrict or prohibit the
Owner Trustee from having employees within or without the State of Delaware.
Payments will be received by the Trust only in Delaware or New York, and
payments will be made by the Trust only from Delaware or New York. The only
office of the Trust will be at the Corporate Trust Office in Delaware.
SECTION 2.09. Representations and Warranties of Transferor. The Transferor
hereby represents and warrants to the Owner Trustee that:
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(a) The Transferor is a corporation duly organized and validly existing in
good standing under the laws of the State of Nevada and has full corporate power
and authority to own its properties and to conduct its business as such
properties are presently owned and such business is presently conducted, and to
execute, deliver and perform its obligations under this Agreement and any other
Transaction Documents to which it is a party and to perform its obligations as
contemplated hereby and thereby.
(b) The Transferor is duly qualified to do business and is in good
standing and has obtained all necessary licenses and approvals in each
jurisdiction in which failure to so qualify or to obtain such licenses and
approvals would have a material adverse effect on its ability to perform its
obligations under this Agreement or any other Transaction Documents to which the
Transferor is a party.
(c) The execution and delivery of this Agreement and the consummation of
the transactions provided for in this Agreement and in the other Transaction
Documents to which the Transferor is a party have been duly authorized by the
Transferor by all necessary corporate action on its part; the Transferor has the
power and authority to assign the property to be assigned to and deposited with
the Trust pursuant to Section 2.05 of this Agreement and Section 2.01 of the
Transfer and Servicing Agreement.
(d) The execution and delivery of this Agreement, the performance of the
transactions contemplated by this Agreement and the fulfillment of the terms
hereof will not conflict with, result in any breach of any of the material terms
and provisions of, or constitute (with or without notice or lapse of time or
both) a material default under, any indenture, contract, agreement, mortgage,
deed of trust or other instrument to which the Transferor is a party or by which
it or any of its properties are bound (other than violations of such indentures,
contracts, agreements, mortgages, deeds of trust or other instruments which,
individually or in the aggregate, would not have a material adverse effect on
the Transferor's ability to perform its obligations under this Agreement).
(e) The execution and delivery of this Agreement, the performance of the
transactions contemplated by this Agreement and the fulfillment of the terms
hereof will not conflict with or violate any Requirements of Law applicable to
the Transferor.
(f) There are no proceedings or investigations pending or, to the best
knowledge of the Transferor, threatened against the Transferor before any court,
regulatory body, administrative agency, or other tribunal or governmental
instrumentality having jurisdiction over the Transferor (i) asserting the
invalidity of any of the Transaction Documents to which the Transferor is a
party, (ii) seeking to prevent the consummation of any of the transactions
contemplated by any of the Transaction Documents to which the Transferor is a
party, (iii) seeking any determination or ruling that, in the reasonable
judgment of the Transferor, would materially and adversely affect the
performance by the Transferor of its obligations under the Transaction Documents
to which the Transferor is a party, or (iv) seeking any determination or ruling
that would materially and adversely affect the validity or enforceability of the
Transaction Documents to which the Transferor is a party.
SECTION 2.10. Liability of Beneficial Owners of Trust. Neither the
Transferor nor any other holder of a Trust Beneficial Interest or Certificate
shall be liable for any liability or obligation of the Trust or the Owner
Trustee.
[END OF ARTICLE II]
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ARTICLE III
OWNERSHIP
SECTION 3.01. Initial Ownership. The Transferor (i) shall be the initial
beneficial owner of the Trust and initially shall hold and own the Transferor
Beneficial Interest and (ii) shall be bound by the provisions of this Trust
Agreement. Any subsequent holder of a Trust Beneficial Interest or Certificate
shall be bound by the provisions of this Trust Agreement.
SECTION 3.02. Transferor Beneficial Interest. The Transferor Beneficial
Interest shall represent an undivided beneficial interest in the Trust Estate
subject to the lien of the Notes created pursuant to the Indenture, including
the right to receive Collections with respect to the Receivables and other
amounts at the times and in the amounts specified in the Indenture and any
Indenture Supplement to be paid to the Transferor on behalf of all of the
holders of the Transferor Beneficial Interest.
SECTION 3.03. Form of Transferor Beneficial Interest; Form of
Certificates. (a) Initially, the Transferor Beneficial Interest shall be issued,
and held, in uncertificated form. If requested by the Transferor, the Transferor
Beneficial Interest will be issued in certificated, registered form, in
substantially the form attached as Exhibit A hereto (a "Transferor
Certificate").
(b) The Certificates shall be executed by manual or facsimile signature of
the Owner Trustee. Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Trust, shall, when duly authenticated
pursuant to Section 3.04, be validly issued and fully paid undivided beneficial
interests in the assets of the Trust and entitled to the benefits of this
Agreement, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the authentication and delivery of the
Certificates or did not hold such offices at the date of authentication and
delivery of the Certificates.
SECTION 3.04. Authentication of Certificates. No Certificate shall be
entitled to any benefit under this Agreement, or be valid for any purpose,
unless there appears on such Certificate a certificate of authentication
substantially in the form provided for herein, executed by or on behalf of the
Owner Trustee by the manual signature of a duly authorized signatory, and such
certificate upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated, validly issued and
delivered hereunder. Each Certificate which is certificated shall be dated the
date of its authentication.
SECTION 3.05. Mutilated, Destroyed, Lost or Stolen Certificate. If (a) a
mutilated Certificate shall be surrendered to the Owner Trustee, or if the Owner
Trustee shall receive evidence
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to its satisfaction of the destruction, loss or theft of a Certificate and (b)
there shall be delivered to the Owner Trustee such security or indemnity as may
be required by it to save it harmless, then the Owner Trustee on behalf of the
Trust shall execute and the Owner Trustee shall authenticate and deliver, in
exchange for or in lieu of the mutilated, destroyed, lost or stolen Certificate,
a new Certificate of like tenor and denomination. In connection with the
issuance of any new Certificate under this Section 3.05, the Owner Trustee may
require the payment of a sum sufficient to cover any tax or other governmental
charge or expense that may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section 3.05 shall constitute conclusive
evidence of ownership in the Trust, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
SECTION 3.06. Issuance of Supplemental Beneficial Interests or
Supplemental Certificates; Exchange of Certificates and Uncertificated Trust
Beneficial Interests. (a) At any time, the Transferor may notify the Owner
Trustee in writing to ▇▇▇▇ in the books and records of the Trust that the
Transferor Beneficial Interest has been divided and participated and to ▇▇▇▇ in
such books and records the ownership interest in the Transferor Beneficial
Interest owned by the Transferor and each additional holder. The forms and terms
of the interest in the Transferor Beneficial Interest held by each such
additional holder (the "Supplemental Beneficial Interest") shall be defined in a
supplement (a "Transferor Interest Supplement") to this Agreement (which
Transferor Interest Supplement shall be subject to Section 10.01 to the extent
that it amends any of the terms of this Agreement) to be delivered to or upon
the order of the Transferor. The creation of any such Supplemental Beneficial
Interest with respect to a holder other than an Affiliate of the Transferor
shall be subject to satisfaction of the conditions set forth in Section 3.07
below.
(b) At any time, the holder of a Supplemental Beneficial Interest may
notify the Owner Trustee in writing to ▇▇▇▇ in the books and records of the
Trust that such Supplemental Beneficial Interest has been divided and
participated and to ▇▇▇▇ in such books and records the ownership interest in
such Supplemental Beneficial Interest owned by such holder and each additional
holder. The forms and terms of the Supplemental Beneficial Interest held by each
such additional holder shall be defined in a Transferor Interest Supplement to
this Agreement (which Transferor Interest Supplement shall be subject to Section
10.01 to the extent that it amends any of the terms of this Agreement). The
creation of any such Supplemental Beneficial Interest with respect to a holder
other than an Affiliate of the Transferor shall be subject to satisfaction of
the conditions set forth in Section 3.07 below.
(c) At any time, the Transferor may surrender its Transferor Certificate
to the Owner Trustee in exchange for a newly issued Transferor Certificate and
second certificates (each, a "Supplemental Certificate"), the form and terms of
which shall be defined in a supplement (a "Transferor Certificate Supplement")
to this Agreement (which Transferor Certificate Supplement shall be subject to
Section 10.01 to the extent that it amends any of the terms of this Agreement)
to be delivered to or upon the order of the Transferor. The issuance of any such
Supplemental Certificate to a Person other than the Transferor or any of its
Affiliates shall be subject to satisfaction of the conditions set forth in
Section 3.07 below.
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(d) At any time, the holder of a Supplemental Certificate may surrender
such Certificate to the Owner Trustee in exchange for one or more newly issued
Supplemental Certificates, the forms and terms of which shall be defined in a
Transferor Certificate Supplement (which Transferor Certificate Supplement shall
be subject to Section 10.01 to the extent that it amends any of the terms of
this Agreement). The issuance of any additional Supplemental Certificate to a
Person other than an Affiliate of the Transferor shall be subject to
satisfaction of the conditions set forth in Section 3.07 below.
(e) At any time, the holder of the Transferor Beneficial Interest or a
Supplemental Beneficial Interest may exchange (i) its uncertificated Transferor
Beneficial Interest or uncertificated Supplemental Beneficial Interest for a
Transferor Certificate or a Supplemental Certificate, as the case may be, or
(ii) its Transferor Certificate or Supplemental Certificate for an
uncertificated Transferor Beneficial Interest or for an uncertificated
Supplemental Beneficial Interest, as the case may be, by written request to the
Owner Trustee. The Owner Trustee, upon receipt of such request, shall promptly
effect such transfer, by issuance and authentication of a certificate evidencing
the Transferor Certificate or Supplemental Certificate in the case of clause (i)
or by appropriate entry in the records of the Trust in the case of clause (ii).
SECTION 3.07. Restrictions on Transfer. (a) Except for the conveyances
under subsection 4.02(a)(i) and subsection 2.09(g) of the Transfer and Servicing
Agreement or Section 2.12 of the Indenture, no Trust Beneficial Interest or
Certificate may, in whole or in part, be sold, transferred, assigned, exchanged,
participated, pledged, hypothecated, have a security interest granted in or
otherwise be conveyed to any Person, other than the Transferor or ABC or an
Affiliate of the Transferor or ABC, unless each of the following conditions has
been satisfied:
(i) on or before the fifth day immediately preceding such sale,
transfer, assignment, participation, pledge or other disposition, the transferor
of such Trust Beneficial Interest or Certificate shall have given the Owner
Trustee, the Servicer, the Indenture Trustee and each Rating Agency notice
(unless such notice requirement is otherwise waived) thereof;
(ii) the transferor of such Trust Beneficial Interest or Certificate
shall have delivered to the Owner Trustee and the Indenture Trustee any related
Transferor Interest Supplement or Transferor Certificate Supplement in a form
satisfactory to the Owner Trustee, the Indenture Trustee and such transferor,
executed by each party hereto;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such sale, transfer, assignment, participation, pledge or other
disposition;
(iv) such sale, transfer, assignment, participation, pledge or other
disposition will not result in any Adverse Effect and the transferor of such
Trust Beneficial Interest or Certificate shall have delivered to the Owner
Trustee and the Indenture Trustee an Officer's Certificate, dated the date of
such sale, transfer, assignment, participation, pledge or other disposition to
the effect that such transferor reasonably believes that such sale, transfer,
assignment, participation, pledge or other disposition will not, based on the
facts known to such officer at the time of such certification, have
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an Adverse Effect and that all other conditions to such sale, transfer,
assignment, participation, pledge or other disposition have been satisfied;
(v) the transferor of such Trust Beneficial Interest or Certificate
shall have delivered to the Owner Trustee and the Indenture Trustee (with a copy
to each Rating Agency) a Tax Opinion with respect to such sale, transfer,
assignment, participation, pledge or other disposition, dated the date thereof;
(vi) the aggregate amount of Principal Receivables theretofore
conveyed to the Trust as of the date of such sale, transfer, assignment,
participation, pledge or other disposition shall be greater than the Required
Minimum Principal Balance as of the date of such sale, transfer, assignment,
participation, pledge or other disposition after giving effect thereto; and
(vii) all Trust Beneficial Interests or Certificates shall be issued
in a transaction (or transactions) not required to be registered under the
Securities Act (or if offered and sold outside of the United States, would not
be required to be registered under the Securities Act if the Trust Beneficial
Interests or Certificates were to be offered and sold within the United States);
the Trust does not have more than 100 holders of Trust Beneficial Interests or
Certificates at any time during the taxable year for which the determination of
the status of the Trust is relevant (for purposes of determining the number of
owners of Trust Beneficial Interests or Certificates in the Trust and for
purposes of determining whether the beneficial owners of any partnership,
grantor trust or S corporation "flow-through entities") that own Trust
Beneficial Interests or Certificates are counted in determining whether the
Trust has more than 100 holders of Trust Beneficial Interests or Certificates at
any time, no flow-through entity that owns a Trust Beneficial Interest or
Certificate will be utilized with a principal purpose of permitting the Trust to
satisfy the 100 member limitation if substantially all of the value of the
beneficial owner's interest in the flow-through entity is attributable to the
flow-through entity's interest (direct or indirect) in the Trust).
(b) Notwithstanding the foregoing, the holder of a Trust Beneficial
Interest or Certificate may pledge, hypothecate or otherwise grant a security
interest in all or any portion of such Trust Beneficial Interest or Certificate
to a Federal Reserve Bank or a Federal Home Loan Bank without having to satisfy
the conditions set forth in clauses (i) through (vii) above, provided, that (x)
such pledge, hypothecation or grant may not be used as an artifice or device to
avoid or limit the foregoing prohibition on transfer and (y) under no
circumstances may such holder pledge, hypothecate or otherwise grant a security
interest in any of its rights in a Trust Beneficial Interest or Certificate
other than the right to receive cash payments in respect of such Trust
Beneficial Interest or Certificate.
SECTION 3.08. Issuance of Foreclosure Certificates. (a) If an Event of
Default occurs with respect to an accelerated Series of Notes entitled to a
Foreclosure Remedy, and if such Foreclosure Remedy is exercised by the Indenture
Trustee pursuant to the Indenture and related Indenture Supplement, then the
Owner Trustee shall issue a certificate evidencing a beneficial interest in the
Trust (a "Foreclosure Certificate"), the terms of which shall be the same as the
terms of such Series of Notes for which the Foreclosure Remedy is exercised and
which shall be set forth in a supplement
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(a "Foreclosure Certificate Supplement") to this Agreement to be delivered to or
upon the order of the Indenture Trustee upon surrender by the Indenture Trustee
of related Series of Notes.
(b) The Foreclosure Certificate shall be issued with an "Invested Amount"
equal to the "Invested Amount" of the accelerated Series of Notes and the
holders of such Foreclosure Certificate shall be entitled to the related Series'
Investor Percentage of Finance Charge Collections (net of such Series' allocable
servicing fee) and Principal Collections.
(c) The Foreclosure Certificate may not be sold, transferred, assigned,
participated, pledged or otherwise disposed of to any Person, other than an
Affiliate of the Transferor, unless each of the following conditions has been
satisfied:
(ii) the Person that acquires an interest in the Foreclosure
Certificate is organized and existing under the laws of the United States or any
state thereof or the District of Columbia;
(ii) the Person that acquires an interest in the Foreclosure
Certificate is not (A) an "employee benefit plan" (as defined in Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended, (B) a "plan"
(as defined in Section 4975(e)(1) of the Internal Revenue Code of 1986, as
amended the (the Code")) that is subject to Section 4975 of the Code, or (C) a
Person acting on behalf of or using the assets of a plan described in (A) or (B)
above; and
(iii) such sale, transfer, assignment, participation, pledge or
disposition shall not cause the Trust to be deemed to be an association (or
publicly traded partnership) taxable as a corporation, as evidenced by an
Opinion of Counsel.
[END OF ARTICLE III]
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ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.01. Prior Notice to Owner and Transferor with Respect to Certain
Matters. With respect to the following matters, unless otherwise instructed by
the Transferor, the Trust shall not take action unless at least thirty (30) days
before the taking of such action the Owner Trustee shall have notified the
Transferor:
(a) the initiation of any claim or lawsuit by the Trust (other than an
action to collect on the Trust Estate) and the settlement of any action, claim
or lawsuit brought by or against the Trust (other than an action to collect on
the Trust Estate);
(b) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of the Transferor;
(d) the amendment, change or modification of the Administration Agreement,
except to cure any ambiguity or to amend or supplement any provision in a manner
that would not materially adversely affect the interests of the Transferor; or
(e) the appointment pursuant to the Indenture of a replacement or
successor Transfer Agent and Registrar or Indenture Trustee, or the consent to
the assignment by the Transfer Agent and Registrar, Administrator or Indenture
Trustee of its obligations under the Indenture.
SECTION 4.02. Restrictions on Power. (a) The Owner Trustee shall not be
required to take or refrain from taking any action if such action or inaction
would be contrary to any obligation of the Trust or the Owner Trustee under any
of the Transaction Documents or would be contrary to Section 2.03.
(b) The Owner Trustee shall have no power to create, assume or incur
indebtedness or other liabilities in the name of the Trust other than as
contemplated in this Agreement, the Transfer and Servicing Agreement and the
Indenture.
[END OF ARTICLE IV]
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ARTICLE V
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 5.01. General Authority. Each of the Trust and the Owner Trustee
in the name of and on behalf of the Trust shall have power and authority, and is
authorized and empowered to execute and deliver the Transaction Documents to
which the Trust is to be a party and each certificate or other document attached
as an exhibit to or contemplated by the Transaction Documents to which the Trust
is to be a party, or any amendment thereto or other agreement, in each case, in
such form as the Transferor shall approve as evidenced conclusively by the Owner
Trustee's execution thereof and the Transferor's execution of the related
documents. In addition to the foregoing, the Owner Trustee in the name of and on
behalf of the Trust shall also have power and authority and is hereby authorized
and empowered, but shall not be obligated, in the name of and on behalf of the
Trust to take all actions required of the Trust pursuant to the Transaction
Documents. The Owner Trustee is hereby further authorized and empowered from
time to time to take such action as the Transferor or the Administrator directs
in writing with respect to the Transaction Documents.
SECTION 5.02. General Duties. It shall be the duty of the Owner Trustee to
discharge (or cause to be discharged) all of its responsibilities pursuant to
the terms of this Agreement and the other Transaction Documents to which the
Trust is a party and to administer the Trust in the interest of the Transferor,
subject to the Transaction Documents and in accordance with the provisions of
this Agreement. Notwithstanding the foregoing, the Owner Trustee shall be deemed
to have discharged its duties and responsibilities hereunder and under the other
Transaction Documents to the extent the Administrator has agreed in the
Administration Agreement or another Transaction Document to perform any act or
to discharge any duty of the Owner Trustee or the Trust under any Transaction
Document, and the Owner Trustee shall not be personally liable for the default
or failure of the Administrator to carry out its obligations under the
Administration Agreement.
SECTION 5.03. Action Upon Instruction.
(a) The Owner Trustee shall not be required to take any action hereunder
or under any other Transaction Document if the Owner Trustee shall have
reasonably determined, or shall have been advised by counsel, that such action
is likely to result in personal liability on the part of the Owner Trustee or is
contrary to the terms of any Transaction Document or is otherwise contrary to
law.
(b) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of any Transaction
Document, the Owner Trustee shall promptly give notice (in such form as shall be
appropriate under the circumstances) to the Transferor requesting instruction as
to the course of action to be adopted, and to the extent the Owner Trustee acts
or refrains from acting in good faith in accordance with such written
instruction of the Transferor received, the Owner Trustee shall not be
personally liable on account of such action or inaction to any Person. If the
Owner Trustee shall not have received appropriate instruction within ten (10)
days of such notice (or within such shorter period of time as reasonably may be
specified in such notice or may be necessary under the circumstances) it may,
but shall be under no duty to,
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take or refrain from taking such action, not in violation of the Transaction
Documents, as it shall deem to be in the best interest of the Transferor, and
shall have no personal liability to any Person for such action or inaction.
(c) In the event that the Owner Trustee is unsure as to the application of
any provision of any Transaction Document or any such provision is ambiguous as
to its application, or is, or appears to be, in conflict with any other
applicable provision, or in the event that this Agreement permits any
determination by the Owner Trustee or is silent or is incomplete as to the
course of action that the Owner Trustee is required to take with respect to a
particular set of facts, the Owner Trustee may give notice (in such form as
shall be appropriate under the circumstances) to the Transferor requesting
instruction and, to the extent that the Owner Trustee acts or refrains from
acting in good faith in accordance with any such instruction received, the Owner
Trustee shall not be personally liable, on account of such action or inaction,
to any Person. If the Owner Trustee shall not have received appropriate
instruction within ten (10) days of such notice (or within such shorter period
of time as reasonably may be specified in such notice or may be necessary under
the circumstances) it may, but shall be under no duty to, take or refrain from
taking such action, not in violation of the Transaction Documents, as it shall
deem to be in the best interests of the Transferor, and shall have no personal
liability to any Person for such action or inaction.
SECTION 5.04. No Duties Except as Specified in this Agreement or in
Instructions. The Owner Trustee shall not have any duty or obligation to manage,
make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Trust or the Trust Estate, or to otherwise take or
refrain from taking any action under, or in connection with, this Agreement or
any document contemplated hereby to which the Trust is a party, except as
expressly provided by the terms of this Agreement or in any document or written
instruction received by the Owner Trustee pursuant to Section 5.03; and no
implied duties or obligations shall be read into any Transaction Document
against the Owner Trustee. The Owner Trustee shall have no responsibility for
any filing or recording, including filing any financing or continuation
statement in any public office at any time or to otherwise perfect or maintain
the perfection of any security interest or lien granted to it or the Trust
hereunder or to prepare or file any Commission filing for the Trust or to record
any Transaction Document. The Owner Trustee in its individual capacity
nevertheless agrees that it will, at its own cost and expense, promptly take all
action as may be necessary to discharge any liens on any part of the Trust
Estate that result from actions by, or claims against, the Owner Trustee in its
individual capacity that are not related to the ownership or the administration
of the Trust Estate or the transactions contemplated by the Transaction
Documents.
SECTION 5.05. No Action Except under Specified Documents or Instructions.
The Owner Trustee shall not manage, control, use, sell, dispose of or otherwise
deal with any part of the Trust Estate except (i) in accordance with the powers
granted to and the authority conferred upon the Owner Trustee pursuant to this
Agreement, (ii) in accordance with the Transaction Documents and (iii) in
accordance with any document or instruction delivered to the Owner Trustee
pursuant to Section 5.03.
SECTION 5.06. Restrictions. The Owner Trustee shall not take any action
(a) that, to the actual knowledge of the Owner Trustee, would violate the
purposes of the Trust set forth in Section
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2.03 or (b) that, to the actual knowledge of the Owner Trustee, would result in
the Trust's becoming taxable as a corporation or publicly traded partnership for
federal income tax purposes. The Transferor shall not direct the Owner Trustee
to take action that would violate the provisions of this Section 5.06.
[END OF ARTICLE V]
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ARTICLE VI
CONCERNING THE OWNER TRUSTEE
SECTION 6.01. Acceptance of Trusts and Duties. The Owner Trustee accepts
the trusts hereby created and agrees to perform its duties hereunder with
respect to such trusts, but only upon the terms of this Agreement. The Owner
Trustee also agrees to disburse all moneys actually received by it constituting
part of the Trust Estate upon the terms of the Transaction Documents. The Owner
Trustee shall not be personally answerable or accountable under any Transaction
Document under any circumstances, except (i) for its own willful misconduct or
negligence or (ii) in the case of the inaccuracy of any representation or
warranty contained in Section 6.03 expressly made by the Owner Trustee in its
individual capacity. In particular, but not by way of limitation (and subject to
the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be personally liable for any error of
judgment made in good faith by the Owner Trustee;
(b) the Owner Trustee shall not be personally liable with respect to any
action taken or omitted to be taken by it in accordance with the instructions of
the Administrator or the Transferor;
(c) no provision of this Agreement or any other Transaction Document shall
require the Owner Trustee to expend or risk funds or otherwise incur any
personal financial liability in the exercise or performance of any of its
duties, rights or powers hereunder or under any other Transaction Document, if
the Owner Trustee shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be personally liable
for indebtedness evidenced by or arising under any of the Transaction Documents,
including the principal of and interest on the Notes;
(e) the Owner Trustee shall not be responsible for or in respect of the
validity or sufficiency of this Agreement, the due execution hereof by the
Transferor or the form, character, genuineness, sufficiency, value or validity
of any of the Trust Estate, the Transaction Documents, the Notes or the
Certificates (other than the genuineness of the signature and authentication (as
applicable) of the Owner Trustee on the Certificates) and the Owner Trustee
shall in no event assume or incur any personal liability, duty, or obligation to
any Noteholder or to the Transferor or any other Person, other than as expressly
provided for herein or expressly agreed to in the other Transaction Documents;
(f) the Owner Trustee shall not be liable for the default or misconduct of
the Transferor, the Servicer, the Administrator or the Indenture Trustee or any
other Person under any of the Transaction Documents or otherwise, and the Owner
Trustee shall have no obligation or personal liability to perform the
obligations of the Trust under the Transaction Documents, including those that
are required to be performed by the Administrator under the Administration
Agreement, the Indenture Trustee under the Indenture or the Servicer under the
Transfer and Servicing Agreement;
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(g) the Owner Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement, or to institute, conduct or
defend any litigation under this Agreement or otherwise or in relation to this
Agreement or any other Transaction Document, at the request, order or direction
of the Transferor, unless the Transferor has offered to the Owner Trustee
security or indemnity satisfactory to the Owner Trustee against the costs,
expenses and liabilities that may be incurred by the Owner Trustee therein or
thereby. The right of the Owner Trustee to perform any discretionary act
enumerated in this Agreement or any other Transaction Document shall not be
construed as a duty, and the Owner Trustee shall not be answerable or liable to
any Person for any such act other than liability to the Trust and the beneficial
owners of the Trust for its own negligence or willful misconduct in the
performance of any such act or the omission to perform any such act; and
(h) Notwithstanding anything contained herein to the contrary, the Owner
Trustee shall not be required to take any action in any jurisdiction other than
in the State of Delaware if the taking of such action will: (i) require the
registration with, licensing by or the taking of any other similar action in
respect of, any state or other governmental authority or agency of any
jurisdiction other than the State of Delaware by or with respect to the Owner
Trustee; (ii) result in any fee, tax or other governmental charge under the laws
of any jurisdiction or any political subdivisions thereof in existence on the
date hereof other than the State of Delaware becoming payable by the Owner
Trustee; or (iii) subject the Owner Trustee to personal jurisdiction in any
jurisdiction other than the State of Delaware for causes of action arising from
acts unrelated to the consummation of the transactions by the Owner Trustee
contemplated hereby. The Owner Trustee shall be entitled to obtain advice of
counsel (which advice shall be an expense of the Transferor) to determine
whether any action required to be taken pursuant to this Agreement results in
the consequences described in clauses (i), (ii) and (iii) of the preceding
sentence. In the event that said counsel advises the Owner Trustee that such
action will result in such consequences, the Transferor shall appoint an
additional trustee pursuant to Section 9.05 hereof to proceed with such action.
SECTION 6.02. Furnishing of Documents. The Owner Trustee shall furnish to
the Transferor and the Indenture Trustee, promptly upon written request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Owner Trustee under the Transaction Documents.
SECTION 6.03. Representations and Warranties. The Owner Trustee hereby
represents and warrants to the Transferor that:
(a) It is a Delaware banking corporation duly organized and validly
existing in good standing under the laws of the State of Delaware. It has all
requisite corporate power and authority to execute, deliver and perform its
obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize the execution
and delivery by it of this Agreement, and this Agreement will be executed and
delivered by one of its officers who is duly authorized to execute and deliver
this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement, nor
the consummation by it of the transactions contemplated hereby nor compliance by
it with any of the terms or provisions
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hereof will contravene any federal or Delaware law, governmental rule or
regulation governing the banking or trust powers of the Owner Trustee or any
judgment or order binding on it, or constitute any default under its charter
documents or by-laws or any indenture, mortgage, contract, agreement or
instrument to which it is a party or by which any of its properties may be
bound.
SECTION 6.04. Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no personal liability to anyone in
acting upon any signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, bond, or other document or paper reasonably
believed by it to be genuine and reasonably believed by it to be signed by the
proper party or parties. The Owner Trustee may accept a certified copy of a
resolution of the board of directors or other governing body of any Person as
conclusive evidence that such resolution has been duly adopted by such body and
that the same is in full force and effect. As to any fact or matter the method
of the determination of which is not specifically prescribed herein, the Owner
Trustee may for all purposes hereof rely on a certificate, signed by the
president or any vice president or by the treasurer or other authorized officer
of an appropriate Person, as to such fact or matter, and such certificate shall
constitute full protection to the Owner Trustee for any action taken or omitted
to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in the
performance of its duties and obligations under this Agreement or the other
Transaction Documents, the Owner Trustee (i) may act directly or through its
agents or attorneys pursuant to agreements entered into with any of them, and
the Owner Trustee shall not be personally liable for the conduct or misconduct
of such agents or attorneys if such agents or attorneys shall have been selected
by the Owner Trustee with reasonable care, and (ii) may consult with counsel,
accountants and other skilled Persons to be selected with reasonable care and
employed by it. The Owner Trustee shall not be personally liable for anything
done, suffered or omitted in good faith by it in accordance with the written
opinion or written advice of any such counsel, accountants or other such
Persons.
SECTION 6.05. Not Acting in Individual Capacity. Except as expressly
provided in this Article VI, in accepting the trusts hereby created, Wilmington
Trust Company acts solely as Owner Trustee hereunder and not in its individual
capacity, and all Persons having any claim against the Owner Trustee by reason
of the transactions contemplated by any Transaction Document shall look only to
the Trust Estate for payment or satisfaction thereof.
SECTION 6.06. Owner Trustee Not Liable for Notes or Receivables. The
statements contained herein and in the Certificates, Notes and other Transaction
Documents (other than the genuineness of the signature and authentication (as
applicable) of the Owner Trustee on the Certificates and its representations and
warranties in Section 6.03) shall be taken as the statements of the Transferor,
and the Owner Trustee assumes no responsibility for the correctness thereof. The
Owner Trustee makes no representations as to the validity or sufficiency of this
Agreement, any other Transaction Document, the Notes, the Certificates (other
than the genuineness of the signature and authentication (as applicable) of the
Owner Trustee on the Certificates) or any related documents. The Owner Trustee
shall at no time have any personal responsibility or liability for or with
respect to the legality, validity and enforceability of the Receivables or the
perfection and
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priority of any security interest in the Receivables or the maintenance of any
such perfection and priority, or for or with respect to the sufficiency of the
Trust Estate or its ability to generate the payments to be distributed to the
Noteholders under the Indenture, including, without limitation, the existence,
condition and ownership of the Receivables; the existence and contents of the
Receivables on any computer or other record thereof; the validity of the
assignment of the Receivables to the Trust or of any intervening assignment; the
completeness of the Receivables; the performance or enforcement of the
Receivables; the compliance by the Transferor with any warranty or
representation made under any Transaction Document or in any related document or
the accuracy of any such warranty or representation or any action of the
Administrator, the Servicer or the Indenture Trustee taken in the name of the
Owner Trustee.
SECTION 6.07. Owner Trustee May Own Notes. The Owner Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may deal with the Transferor, the Administrator, the Servicer and the Indenture
Trustee in banking transactions with the same rights as it would have if it were
not Owner Trustee.
[END OF ARTICLE VI]
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ARTICLE VII
COMPENSATION OF OWNER TRUSTEE
SECTION 7.01. Owner Trustee's Fees and Expenses. The Owner Trustee shall
receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof between the Transferor and
Wilmington Trust Company, and the Owner Trustee shall be entitled to be
reimbursed by the Transferor for its other reasonable expenses hereunder,
including the reasonable compensation, expenses and disbursements of such
agents, representatives, experts and counsel as the Owner Trustee may employ in
connection with the exercise and performance of its rights and its duties
hereunder and under the Transaction Documents ; provided, however, that the
Owner Trustee's right to enforce such obligation shall be subject to the
provisions of Section 10.08.
SECTION 7.02. Indemnification. To the fullest extent permitted by law, the
Transferor shall indemnify, defend and hold harmless the Owner Trustee and its
successors, assigns, directors, officers, agents, employees and servants
(collectively, the "Indemnified Parties") from and against, any and all
liabilities, obligations, losses, damages, taxes, claims, actions and suits, and
any and all reasonable costs, expenses and disbursements (including reasonable
legal fees and expenses) of any kind and nature whatsoever (collectively,
"Expenses") which may at any time be imposed on, incurred by, or asserted
against the Owner Trustee or any Indemnified Party in any way relating to or
arising out of the Transaction Documents, the Trust Estate, the acceptance and
administration of the Trust Estate or any action or inaction of the Owner
Trustee; provided that the Transferor shall not be liable for or required to
indemnify any Indemnified Party from and against Expenses arising or resulting
from any of the matters described in the third sentence of Section 6.01 or
Expenses for which indemnification is actually received under other Transaction
Documents; provided further that the Transferor shall not be liable for or
required to indemnify an Indemnified Party from and against expenses arising or
resulting from (i) the Indemnified Party's own willful misconduct, bad faith or
negligence, or (ii) the inaccuracy of any representation or warranty contained
in Section 6.03 . An Indemnified Party's right to enforce such obligation shall
be subject to the provisions of Section 10.08. The indemnities contained in this
Section 7.02 shall survive the resignation or termination of the Owner Trustee
or the termination of this Agreement. In the event of any claim, action or
proceeding for which indemnity will be sought pursuant to this Section 7.02, the
Owner Trustee's choice of legal counsel shall be subject to the approval of the
Transferor, which approval shall not be unreasonably withheld.
SECTION 7.03. Payments to the Owner Trustee. Any amounts paid to an
Indemnified Party pursuant to this Article VII shall not be construed to be a
part of the Trust Estate.
[END OF ARTICLE VII]
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ARTICLE VIII
TERMINATION OF TRUST AGREEMENT
SECTION 8.01. Termination of Trust Agreement.
(a) The Trust shall dissolve upon the earlier of (i) at the option of the
Transferor (written notice of which shall be provided to the Owner Trustee), any
day on or after the date on which the rights of all Series to receive payments
from the Trust have terminated (the "Trust Termination Date") and (ii)
dissolution of the Trust in accordance with applicable law. After satisfaction
of liabilities of the Trust as provided by applicable law, any money or other
property held as part of the Trust Estate following such distribution shall be
distributed to the Transferor. The bankruptcy, liquidation, dissolution,
termination, death or incapacity of the Transferor shall not (x) operate to
terminate this Agreement or annul, dissolve or terminate the Trust, or (y)
entitle the Transferor's legal representatives or administrators to claim an
accounting or to take any action or proceeding in any court for a partition or
winding up of all or any part of the Trust or Trust Estate or (z) otherwise
affect the rights, obligations and liabilities of the parties hereto.
(b) Except as provided in subsection 8.01(a), the Transferor shall not be
entitled to revoke, dissolve or terminate the Trust.
(c) Sections 7.02 and 10.08 shall survive the termination of the Trust and
of this Agreement.
[END OF ARTICLE VIII]
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ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 9.01. Eligibility Requirements for Owner Trustee. The Owner
Trustee shall at all times be a Person authorized to exercise trust powers;
having a combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by federal or state authorities; and having (or
having a parent which has) a rating of at least Baa3 by ▇▇▇▇▇'▇, at least BBB-
by Standard & Poor's and, if rated by Fitch, at least BBB- by Fitch, or
otherwise satisfactory to each Rating Agency (it being understood that
Wilmington Trust Company is satisfactory to the Rating Agencies). If such Person
shall publish reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purpose of this Section 9.01, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time the
Owner Trustee shall cease to be eligible in accordance with the provisions of
this Section 9.01, the Owner Trustee shall resign immediately in the manner and
with the effect specified in Section 9.02.
SECTION 9.02. Resignation or Removal of Owner Trustee. The Owner Trustee
may at any time resign and be discharged from the trusts hereby created by
giving written notice thereof to the Transferor; provided, however, that such
resignation and discharge shall only be effective upon the appointment of a
successor Owner Trustee. Upon receiving such notice of resignation, the
Transferor shall promptly appoint a successor Owner Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
resigning Owner Trustee and one copy to the successor Owner Trustee. If no
successor Owner Trustee shall have been so appointed and have accepted
appointment within thirty (30) days after the giving of such notice of
resignation, the resigning Owner Trustee may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in accordance
with the provisions of Section 9.01 and shall fail to resign after written
request therefor by the Transferor, or if at any time the Owner Trustee shall be
legally unable to act, or shall be adjudged bankrupt or insolvent, or a receiver
of the Owner Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Owner Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Transferor may, but shall not be required to, remove the Owner Trustee. If the
Transferor shall remove the Owner Trustee under the authority of the immediately
preceding sentence, the Transferor shall promptly (i) appoint a successor Owner
Trustee by written instrument, in duplicate, one copy of which instrument shall
be delivered to the outgoing Owner Trustee so removed and one copy to the
successor Owner Trustee and (ii) pay all amounts owed to the outgoing Owner
Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section 9.02
shall not become effective until acceptance of appointment by the successor
Owner Trustee pursuant to Section 9.03 and, in the case
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of removal, payment of all fees and expenses owed to the outgoing Owner Trustee.
The Transferor shall provide notice of such resignation or removal of the Owner
Trustee to each Rating Agency.
SECTION 9.03. Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 9.02 shall execute, acknowledge and deliver to the
Transferor and to its predecessor Owner Trustee an instrument accepting such
appointment under this Agreement, and thereupon the resignation or removal of
the predecessor Owner Trustee shall become effective and such successor Owner
Trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties, and obligations of its predecessor under
this Agreement, with like effect as if originally named as Owner Trustee. The
predecessor Owner Trustee shall upon payment of its fees and expenses deliver to
the successor Owner Trustee all documents and statements and monies held by it
under this Agreement; and the Transferor and the predecessor Owner Trustee shall
execute and deliver such instruments and do such other things as may reasonably
be required for fully and certainly vesting and confirming in the successor
Owner Trustee all such rights, powers, duties, and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section 9.03 unless at the time of such acceptance such successor Owner Trustee
shall be eligible pursuant to Section 9.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section 9.03, the Transferor shall mail notice of such acceptance of
appointment including the name of such successor Owner Trustee to the Indenture
Trustee, the Noteholders and each Rating Agency. If the Transferor shall fail to
mail such notice within ten (10) days after acceptance of appointment by the
successor Owner Trustee, the successor Owner Trustee shall cause such notice to
be mailed at the expense of the Transferor.
SECTION 9.04. Merger or Consolidation of Owner Trustee. Notwithstanding
anything herein to the contrary, any Person into which the Owner Trustee may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which the Owner
Trustee shall be a party, or any Person succeeding to all or substantially all
of the corporate trust business of the Owner Trustee, shall be the successor of
the Owner Trustee hereunder (provided that such Person shall meet the
eligibility requirements set forth in Section 9.01), without the execution or
filing of any instrument or any further act on the part of any of the parties
hereto; provided further that the Owner Trustee shall mail notice of such merger
or consolidation to each Rating Agency.
SECTION 9.05. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Estate may at the time be located, the Transferor and the Owner
Trustee acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by each of the Transferor
and the Owner Trustee to act as co-trustee, jointly with the Owner Trustee, or
separate trustee or separate trustees, of all or any part of the Trust Estate,
and to vest in such Person, in such capacity, such title to the Trust, or any
part thereof, and, subject to the other provisions of this Section 9.05, such
powers, duties, obligations,
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rights and trusts as the Transferor and the Owner Trustee may consider necessary
or desirable. If the Transferor shall not have joined in such appointment within
fifteen (15) days after the receipt by it of a request so to do, the Owner
Trustee alone shall have the power to make such appointment. No co-trustee or
separate trustee under this Agreement shall be required to meet the terms of
eligibility as a successor trustee pursuant to Section 9.01 and no notice of the
appointment of any co-trustee or separate trustee shall be required pursuant to
Section 9.03.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties, and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or performed by the
Owner Trustee and such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee is not authorized to act
separately without the Owner Trustee joining in such act), except to the extent
that under any law of any jurisdiction in which any particular act or acts are
to be performed, the Owner Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties, and
obligations (including the holding of title to the Trust or any portion thereof
in any such jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the Owner
Trustee;
(ii) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement; and
(iii) the Transferor and the Owner Trustee acting jointly may at any
time accept the resignation of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article IX. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Owner Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Owner Trustee. Each such instrument shall be filed with the Owner Trustee and a
copy thereof given to the Transferor.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee, its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
[END OF ARTICLE IX]
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ARTICLE X
MISCELLANEOUS
SECTION 10.01. Supplements and Amendments. This Agreement may be amended
from time to time, by a written amendment duly executed and delivered by the
Transferor and the Owner Trustee, with the written consent of the Indenture
Trustee, but without the consent of any of the Noteholders, and upon
satisfaction of the Rating Agency Condition, to cure any ambiguity, to correct
or supplement any provisions in this Agreement or for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or modifying in any manner the rights of the Noteholders;
provided, however, that such amendment will not (i) as evidenced by an Officer's
Certificate of the Transferor addressed and delivered to the Owner Trustee and
the Indenture Trustee, materially and adversely affect the interest of any
Noteholder or cause the Trust to fail to be treated as a "qualified special
purpose entity" as defined in FASB Statement No. 125 and (ii) as evidenced by an
Opinion of Counsel addressed and delivered to the Owner Trustee and the
Indenture Trustee, cause the Trust to be classified as an association (or a
publicly traded partnership) taxable as a corporation for federal income tax
purposes; provided, further, that Section 2.03 of this Agreement may be amended
only with the consent of the Holders of Notes representing more than 50% of the
Outstanding Amount of all Series. Additionally, notwithstanding the preceding
sentence, this Agreement will be amended by the Transferor and the Owner Trustee
without the consent of the Indenture Trustee or any of the Noteholders to add,
modify or eliminate such provisions as may be necessary or advisable in order to
enable all or a portion of the Trust (i) to qualify as, and to permit an
election to be made to cause the Trust to be treated as, a "financial asset
securitization investment trust" as described in the provisions of Section 860L
of the Code, and (ii) to avoid the imposition of state or local income or
franchise taxes imposed on the Trust's property or its income; provided,
however, that (i) the Transferor delivers to the Indenture Trustee and the Owner
Trustee an Officer's Certificate to the effect that the proposed amendments meet
the requirements set forth in this subsection, (ii) the Rating Agency Condition
shall have been satisfied with respect to such amendment and (iii) such
amendment does not affect the rights, benefits, protections, privileges,
immunities, duties or obligations of the Owner Trustee hereunder. The amendments
which the Transferor may make without the consent of Noteholders pursuant to the
preceding sentence may include, without limitation, the addition of a sale of
Receivables.
This Agreement may also be amended from time to time by a written
amendment duly executed and delivered by the Transferor and the Owner Trustee,
with the consent of the Indenture Trustee and the Holders of Notes representing
more than 50% of the Outstanding Amount of all Series, and upon satisfaction of
the Rating Agency Condition, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Noteholders; provided, however,
that without the consent of all Noteholders, no such amendment shall (a)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of payments that are required to be made for the benefit of the
Noteholders or (b) reduce the aforesaid percentage of the Outstanding Amount of
the Notes, the Holders of which are required to consent to any such amendment;
provided further, that such amendment will not, as evidenced by an Opinion of
Counsel addressed and delivered to the Owner
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Trustee and the Indenture Trustee, cause the Trust to be classified as an
association (or a publicly traded partnership) taxable as a corporation for
federal income tax purposes.
Promptly after the execution of any such amendment or consent, the
Transferor shall furnish written notification of the substance of such amendment
or consent to the Indenture Trustee and each Rating Agency.
It shall not be necessary for the consent of the Noteholders pursuant to
this Section 10.01 to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the substance
thereof.
The Owner Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Officer's Certificate of the Transferor to the
effect that the conditions to such amendment have been satisfied.
The Owner Trustee may, but shall not be obligated to, enter into any such
amendment which affects the Owner Trustee's own rights, duties, benefits,
protections, privileges or immunities under this Agreement or otherwise.
SECTION 10.02. No Legal Title to Trust Estate in Transferor. The
Transferor shall not have legal title to any part of the Trust Estate. No
transfer, by operation of law or otherwise, of any right, title, and interest of
the Transferor to and in its undivided beneficial interest in the Trust Estate
shall operate to terminate this Agreement or annul, dissolve or terminate the
Trust or entitle any transferee to an accounting or to the transfer to it of
legal title to any part of the Trust Estate.
SECTION 10.03. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Owner Trustee, the Transferor, the
holder of any Trust Beneficial Interest or Certificate and the holder of any
Foreclosure Certificate and, to the extent expressly provided herein, the
Indenture Trustee and the Noteholders, and nothing in this Agreement, whether
express or implied, shall be construed to give to any other Person any legal or
equitable right, remedy or claim in the Trust Estate or under or in respect of
this Agreement or any covenants, conditions or provisions contained herein.
SECTION 10.04. Notices. Unless otherwise expressly specified or permitted
by the terms hereof, all notices and other communications hereunder shall be in
writing and shall be deemed given upon receipt by the intended recipient or
three (3) Business Days after mailing if mailed by certified mail, postage
prepaid (except that notice to the Owner Trustee, the Transferor or Indenture
Trustee shall be deemed given only upon actual receipt by the Owner Trustee, the
Transferor or Indenture Trustee), if to the Owner Trustee, addressed to the
Corporate Trust Office; if to the Indenture Trustee, addressed to Four ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, if to the Transferor, addressed to
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasury Department;
or, as to each party, at such other address as shall be designated by such party
in a written notice to each other party.
SECTION 10.05. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such
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prohibition or unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 10.06. Separate Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 10.07. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Transferor and its permitted assignees, the Owner Trustee and its successors,
all as herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by the Transferor shall bind the successors and assigns of
the Transferor.
SECTION 10.08. Nonpetition Covenants. Notwithstanding any prior
termination of the Trust or this Agreement, Wilmington Trust Company, either
individually or in its capacity as Owner Trustee, shall not at any time with
respect to the Trust or the Transferor, acquiesce, petition or otherwise invoke
or cause the Trust or the Transferor to invoke the process of any court or
governmental authority for the purpose of commencing or sustaining a case
against the Trust or the Transferor under any federal or state bankruptcy,
insolvency or similar law or appointing a receiver, conservator, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Trust or the Transferor or any substantial part of its property, or ordering the
winding up or liquidation of the affairs of the Trust or the Transferor;
provided, however, that this Section 10.08 shall not operate to preclude any
remedy described in Article V of the Indenture.
Notwithstanding any prior termination of the Trust or this Agreement, the
Transferor shall not at any time with respect to the Trust, acquiesce, petition
or otherwise invoke or cause the Trust to invoke the process of any court or
governmental authority for the purpose of commencing or sustaining a case
against the Trust under any federal or state bankruptcy, insolvency or similar
law or appointing a receiver, conservator, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Trust or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Trust; provided, however, that this Section 10.08 shall not
operate to preclude any remedy described in Article V of the Indenture.
SECTION 10.09. No Recourse. The Transferor and each subsequent holder of a
Trust Beneficial Interest or Certificate acknowledges that its beneficial
interest in the Trust does not represent an interest in or obligation of the
Transferor, the Servicer, the Owner Trustee, the Indenture Trustee or any
Affiliate thereof (other than the Trust), and no recourse may be had against
such parties or their assets, or against the assets pledged under the Indenture,
except as expressly provided in the Transaction Documents.
SECTION 10.10. Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
SECTION 10.11. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
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REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS AND THE OBLIGATIONS, RIGHTS, AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
SECTION 10.12. Transferor Payment Obligation. The Transferor shall be
responsible for payment of the Administrator's fees under the Administration
Agreement (to the extent not paid pursuant to the applicable Indenture
Supplement) and shall reimburse the Administrator for all expenses and
liabilities of the Administrator incurred thereunder.
SECTION 10.13. Acceptance of Terms of Agreement. THE RECEIPT AND
ACCEPTANCE OF A TRANSFEROR BENEFICIAL INTEREST OR A TRANSFEROR CERTIFICATE BY
THE TRANSFEROR, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL
CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE TRANSFEROR OF ALL THE TERMS AND
PROVISIONS OF THIS AGREEMENT, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST
THAT THE TERMS AND PROVISIONS OF THIS AGREEMENT SHALL BE BINDING, OPERATIVE AND
EFFECTIVE AS BETWEEN THE TRUST AND THE TRANSFEROR.
SECTION 10.14. Integration of Documents. This Agreement constitutes the
entire agreement of the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements relating to the subject matter hereof.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers hereunto duly authorized, as of the
day and year first above written.
WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Owner Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Financial Services Officer
ADVANTA BUSINESS RECEIVABLES CORP.,
as Transferor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
___________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President-Finance
[Signature Page to Trust Agreement]
34
EXHIBIT A
Form of Transferor Certificate
THIS TRANSFEROR CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED. NEITHER THIS TRANSFEROR CERTIFICATE NOR ANY PORTION
HEREOF MAY BE OFFERED OR SOLD EXCEPT IN COMPLIANCE WITH THE REGISTRATION
PROVISIONS OF SUCH ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH
REGISTRATION PROVISIONS.
THIS TRANSFEROR CERTIFICATE IS NOT PERMITTED TO BE TRANSFERRED, ASSIGNED,
EXCHANGED OR OTHERWISE PLEDGED OR CONVEYED EXCEPT IN COMPLIANCE WITH THE TERMS
OF THE TRUST AGREEMENT REFERRED TO HEREIN.
No. R-__ One Unit
ADVANTA BUSINESS CARD MASTER TRUST
TRANSFEROR CERTIFICATE
THIS CERTIFICATE REPRESENTS AN INTEREST IN CERTAIN
ASSETS OF THE ADVANTA BUSINESS CARD MASTER TRUST
Evidencing an undivided beneficial interest in a trust, the corpus of
which consists primarily of receivables generated from time to time in the
ordinary course of business in a portfolio of revolving credit card accounts
transferred by Advanta Business Receivables Corp. (the "Transferor").
(This Certificate does not represent an interest in or obligation of the
Transferor, the Servicer, the Owner Trustee, the Indenture Trustee or any
affiliate thereof)
This certifies that ADVANTA BUSINESS RECEIVABLES CORP. is the registered
owner of an undivided beneficial interest in the assets of a trust (the "Trust")
subject to the lien of the Notes created pursuant to the Master Indenture, dated
as of August 1, 2000 (as amended and supplemented, the "Indenture"), between the
Trust and Bankers Trust Company as Indenture Trustee, established pursuant to
the Trust Agreement, dated as of August 1, 2000 (as amended and supplemented,
the "Trust Agreement"), between Advanta Business Receivables Corp., a Nevada
corporation, as Transferor, and Wilmington Trust Company, as owner trustee (the
"Owner Trustee"). The corpus of the Trust consists of (a) an undivided
beneficial interest in a portfolio of certain receivables (the "Receivables")
existing in the revolving credit card accounts identified under the Transfer and
Servicing Agreement, dated as of August 1, 2000, as amended from time to time
(the "Transfer and Servicing Agreement"), among the Transferor, Advanta Bank
Corp., as Servicer (the "Servicer") and the Trust, as Issuer, from time to time
(the "Accounts"), (b) certain funds collected or to be collected from
accountholders in respect of the Receivables, (c) all funds which are from time
to time on deposit in the Collection Account, the Excess Funding Account and in
the Series Accounts, (d) the benefits of any Series Enhancements issued and to
be issued by Series Enhancers with respect to one or more Series of Notes and
(e) all other assets and interests constituting the Trust, including
35
Interchange and Recoveries allocated to the Trust pursuant to the Transfer and
Servicing Agreement. Although a summary of certain provisions of the Transfer
and Servicing Agreement, the Trust Agreement and the Indenture (collectively,
the "Agreements") is set forth below, this Certificate does not purport to
summarize the Agreements and reference is made to the Agreements for information
with respect to the interests, rights, benefits, obligations, proceeds and
duties evidenced hereby and the rights, duties and obligations of the Owner
Trustee. A copy of the Agreements may be requested from the Owner Trustee by
writing to the Owner Trustee at the Corporate Trust Office. To the extent not
defined herein, the capitalized terms used herein have the meanings ascribed to
them in the Agreements.
This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreements, to which Agreements, as amended and
supplemented from time to time, the Transferor by virtue of the acceptance
hereof assents and is bound.
The Receivables consist of Principal Receivables which arise
generally from the purchase of merchandise and services and amounts advanced to
cardholders as cash advances and Finance Charge and Administrative Receivables
which arise generally from Periodic Rate Finance Charges, Late Fees and other
fees and charges with respect to the Accounts.
This Certificate (this "Certificate") is the Transferor Certificate,
which represents the Transferor's undivided beneficial interest in certain
assets of the Trust, subject to the lien of the Notes, including the right to
receive a portion of the Collections and other amounts at the times and in the
amounts specified in the Indenture. In addition to the Transferor Certificate,
(a) Notes will be issued to investors pursuant to the Indenture and (b)
Supplemental Certificates may be issued pursuant to the Trust Agreement. This
Certificate may be exchanged for an uncertificated beneficial interest in the
Trust.
Unless otherwise specified in an Indenture Supplement with respect
to a particular Series, the Transferor has entered into the Transfer and
Servicing Agreement, and this Certificate is issued, with the intention that,
for federal, state and local income and franchise tax purposes, (a) the Notes of
each Series which are characterized as indebtedness at the time of their
issuance will qualify as indebtedness of the Transferor secured by the
Receivables and (b) the Trust shall not be treated as an association (or a
publicly traded partnership) taxable as a corporation. The Transferor by the
acceptance of this Certificate, agrees to treat the Notes for federal, state and
local income tax purposes as indebtedness of the Transferor.
Subject to certain conditions and exceptions specified in the
Agreements, the obligations created by the Agreements and the Trust created
thereby shall terminate upon the earlier of (a) at the option of the Transferor,
any day on or after the date on which the rights of all Series of Notes to
receive payments from the Trust have terminated and (b) dissolution of the Trust
in accordance with applicable law.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Owner Trustee, by manual signature, this Certificate shall
not be entitled to any benefit under the Agreement or be valid for any purpose.
A-2
36
IN WITNESS WHEREOF, the Trust has caused this Certificate to be duly
executed.
ADVANTA BUSINESS CARD MASTER TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Owner Trustee
By:___________________________________________
Name:
Title:
Dated:[_________ __], 200__
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Transferor Certificate described in the within-mentioned
Trust Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Owner Trustee
By: _________________________________
Authorized Signatory
A-3
37
ANNEX 1 TO EXHIBIT A
Registered Owner and address:
Advanta Business Receivables Corp.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Tax Identification Number: ▇▇-▇▇▇▇▇▇▇
A-4