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Exhibit 4.1
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MASTER BUSINESS RECEIVABLES
ASSET-BACKED FINANCING FACILITY AGREEMENT
by and among
ADVANTA BUSINESS SERVICES CORP.,
as the Servicer,
ADVANTA LEASING RECEIVABLES CORP. III,
as the Obligors' Agent,
and
THE CHASE MANHATTAN BANK,
as Trustee
Dated as of May 1, 1997
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 1.03. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 1.04. Alternate Payment and Notice Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 1.05. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 1.06. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 1.07. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 1.08. Benefits of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 1.09. Allocation of Series to Groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 1.10 Status of Obligors' Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE II REPRESENTATIONS, WARRANTIES AND OVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 2.01. Representations, Warranties and Covenants of Obligors . . . . . . . . . . . . . . . . . . . . . . . 22
Section 2.02. Representations, Warranties and Covenants of Servicer . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE III PLEDGING THE TRUST ESTATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 3.01. Series Trust Estates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 3.02. Preservation of Series Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 3.03. Waiver of Stay or Extension Laws; Marshalling of Assets . . . . . . . . . . . . . . . . . . . . . . 28
Section 3.04. Noninterference, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 3.05. Obligor Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 3.06. Limited Recourse to Obligors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 3.07. Authorization of Actions to be Taken by the Trustee . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 3.08. Termination of Security Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 3.09. Filing; Maintenance of Contract Files . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 3.10. Costs and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE IV NOTE FORMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 4.01. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 4.02. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 4.03. Securities Legend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
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ARTICLE V THE NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 5.01. Amount Limited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 5.02. Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 5.03. Temporary Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 5.04. Registration, Registration of Transfer and Exchange, Transfer Restrictions . . . . . . . . . . . . 34
Section 5.05. Mutilated, Destroyed, Lost and Stolen Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 5.06. Final Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 5.07. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 5.08. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 5.09. Book-Entry Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 5.10. Notices to Clearing Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 5.11. Definitive Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE VI ADMINISTRATION AND SERVICING OF THE TRUST ESTATE . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 6.01. Retention of Servicer; Responsibilities of Servicer . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 6.02. Standard of Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 6.03. Credit and Collection Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 6.04. Maintenance of Interest in the Trust Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 6.05. Servicing Compensation; Payment of Certain Expenses by Servicer . . . . . . . . . . . . . . . . . . 42
Section 6.06. Servicer's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 6.07. Annual Statement as to Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 6.08. Financial Statements and Independent Accountant's Servicing Certificate Review . . . . . . . . . . 43
Section 6.09. Access to Certain Documentation and Information Regarding the Pledged Property . . . . . . . . . . 44
Section 6.10. Other Necessary Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 6.11. Release of Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 6.12. Removal Related to Upgrades or Trade-Ins, Delinquent Contracts and Ineligibility . . . . . . . . . 46
Section 6.13. Notification to Noteholders of Defaults and Events of Default . . . . . . . . . . . . . . . . . . . 47
Section 6.14. Security Deposits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 6.15. Removal of Nonconforming Pledged Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE VII ACCOUNTS AND ALLOCATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 7.01. Establishment of the Master Facility Account; Establishment of the Advance Payment Account . . . . 48
Section 7.02. Collections and Allocations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
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Section 7.03. Investment of Funds in the Master Facility Account and the Advance Payment Account . . . . . . . . 49
ARTICLE VIII THE SERVICER AND THE OBLIGORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 8.01. Liability of Servicer; Indemnities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 8.02. Merger, Consolidation, or Assumption of the Obligations of Servicer . . . . . . . . . . . . . . . . 51
Section 8.03. Limitation on Liability of Servicer and Others . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 8.04. Servicer Not to Resign . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 8.05. Reserved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 8.06. Indemnities of the Obligors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 8.07. Limitation on Liability of the Obligors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE IX SERVICER TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 9.01. Events of Servicer Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 9.02. Trustee to Act; Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 9.03. Notification to Noteholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 9.04. Waiver of Past Events of Servicer Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 9.05. Effects of Termination of Servicer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE X EVENTS OF DEFAULT AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 10.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 10.02. Collection of Indebtedness and Suits for Enforcement by Trustee; Authority of Controlling Party . 57
Section 10.03. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 10.04. Unconditional Right of Holders to Receive Principal and Interest . . . . . . . . . . . . . . . . . 60
Section 10.05. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 10.06. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 10.07. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 10.08. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 10.09. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 10.10. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 10.11. Action on Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
ARTICLE XI THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 11.01. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 11.02. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 11.03. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
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Section 11.04. Not Responsible for Recitals or Issuance of Notes . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 11.05. May Hold Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 11.06. Compensation and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 11.07. Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 11.08. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 11.09. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 11.10. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 11.11. Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . . . . . 69
Section 11.12. Preferential Collection of Claims Against Obligors . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 11.13. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 11.14. Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 11.15. Appointment of Co-Trustee or Separate Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 72
ARTICLE XII HOLDERS' LISTS AND REPORTS BY TRUSTEE AND OBLIGORS' AGENT . . . . . . . . . . . . . . . . . . . . . 73
Section 12.01. Obligors' Agent to Furnish Trustee Names and Addresses of Holders . . . . . . . . . . . . . . . . 73
Section 12.02. Preservation of Information; Communications to Holders . . . . . . . . . . . . . . . . . . . . . . 74
Section 12.03. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 12.04. Reports by Obligors' Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
ARTICLE XIII MASTER AGREEMENT SUPPLEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 13.01. Supplements Affecting All Series, or the Master Agreement Generally . . . . . . . . . . . . . . . 76
Section 13.02. Supplements Authorizing a Series of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 13.03. Execution of Master Agreement Supplements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 13.04. Effect of Master Agreement Supplements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 13.05. Reference in Notes to Master Agreement Supplements . . . . . . . . . . . . . . . . . . . . . . . . 79
ARTICLE XIV COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 14.01. Payment of Principal and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 14.02. Maintenance of Non-U.S. Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 14.03. Consolidation, Merger, Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 14.04. Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 14.05. Performance of Obligations; Servicing of each Series Trust Estate . . . . . . . . . . . . . . . . 83
Section 14.06. Money for Note Payments to Be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Section 14.07. Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
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Section 14.08. Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Section 14.09. Amendment of Organizational Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Section 14.10. Rule 144A Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Section 14.11. Further Instruments and Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Section 14.12. Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Section 14.13. Income Tax Characterization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
ARTICLE XV MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Section 15.01. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Section 15.02. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Section 15.03. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Section 15.04. Severability of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Section 15.05. Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Section 15.06. Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Section 15.07. Calculations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Section 15.08. Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Section 15.09. Nonpetition Covenant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Exhibit A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of Pledge Notice
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This MASTER BUSINESS RECEIVABLES ASSET-BACKED FINANCING
FACILITY AGREEMENT, dated as of May 1, 1997, with respect to the Advanta
Leasing Receivables Master Facility, by and among Advanta Business Services
Corp., a Delaware corporation, as Servicer, Advanta Leasing Receivables Corp.
III, a Nevada corporation, as the Obligors' Agent, and The Chase Manhattan
Bank, a New York banking corporation, as Trustee.
WITNESSETH:
In consideration of the mutual agreements herein contained,
and of other good and valuable consideration the receipt and adequacy of which
are hereby acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Whenever used in this
Agreement, the following words and phrases shall have the following meanings:
(i) the terms defined in this Article have the
meanings assigned to them in this Article and include the plural as
well as the singular;
(ii) all other terms used herein which are defined
in the Trust Master Agreement Act (as hereinafter defined), either
directly or by reference therein, have the meanings assigned to them
therein;
(iii) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance with generally
accepted accounting principles, and, except as otherwise herein
expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted at the date of such computation; and
(iv) the words "therein," "hereof" and "hereunder"
and other words of similar import refer to this Master Agreement as a
whole and not to any particular Article, Section or other subdivision,
"or" is not exclusive and "including" means including without
limitation.
Act. When used with respect to any Holder, has the meaning
specified in Section 1.02.
Actuarial Method. The method of allocating a Scheduled
Payment with respect to any Contract between principal and interest, pursuant
to which the portion of
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such payment that is allocated to interest is the product of (a) the Payment
Interval Adjusted Applicable Discount Rate with respect to such Contract
multiplied by (b) the applicable Contract Principal Balance (before giving
effect to such principal payment).
Advance Payment. Means, with respect to any Contract, any
Scheduled Payment or a portion thereof made by or on behalf of a User which
does not become due until a subsequent Collection Period. Advance Payments
shall be applied as "Collections" with respect to the Collection Period(s) to
which such Advance Payment relates.
Advance Payment Account. Has the meaning ascribed in Section
7.01(c).
Adverse Claim. Means a lien, security interest, charge or
encumbrance, or other right or claim in, of or on any Person's assets or
properties in favor of any other Person.
Affiliate. With respect to any Person, any other Person
directly or indirectly controlling, controlled by or under direct or indirect
common control with such specified Person. For the purposes of this
definition, "control," when used with respect to any specified Person, means
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
Agreement or Master Agreement. This Master Business
Receivables Asset-Backed Financing Facility Agreement, as the same may be
amended, restated or otherwise modified from time to time.
Applicable Discount Rate. With respect to any Contract shall
have the meaning set forth in the related Series Supplement.
Authenticating Agent. Means any Person authorized by the
Trustee to act on behalf of the Trustee to authenticate Notes.
Authorized Officer. Means, with respect to any Obligor or the
Obligors' Agent, any President, Vice President or Director of Securitization of
such Obligor or of the Obligors' Agent.
Bearer Notes. Shall have the meaning specified in Section
4.01.
Book-Entry Notes. Shall mean Notes registered in the name of
a Clearing Agency or its nominee as described in Section 5.09.
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Booked Residual. Means, with respect to any Contract on any
date of determination, the residual value of the Equipment subject to such
Contract, as reflected in Advanta Business Services Corp.'s servicing system.
Broker. The Person (including any broker, vendor or other
Person, but excluding the Contributor) that originally leases an item of
Equipment to a User pursuant to a Contract between the Contributor and the User
of such Equipment, or any Person from whom the Contributor purchased a Contract
in respect of which the Contributor is not a party.
Broker Agreement. Any agreement between the Contributor and a
Broker pursuant to which the Contributor has acquired Contracts.
Business Day. Any day other than a Saturday, a Sunday or a
day on which banking institutions in New York, New York, Philadelphia,
Pennsylvania, Voorhees, New Jersey or Reno, Nevada are authorized or obligated
by law, executive order or governmental decree to be closed.
Calculation Date. The last day of a Collection Period.
Amounts calculated from Calculation Date balances shall be calculated from such
balances as of the close of business on the Calculation Date.
CEDEL. Shall mean Centrale de Livraison de Valeurs Mobilieres
S.A.
Charged-Off Contract. Means a Contract (i) all or any portion
of which has been or should have been, in accordance with the Credit and
Collection Policy, written off the related Obligor's books as uncollectible, or
(ii) as to which any payment, or part thereof, remains unpaid for 121 days or
more from the original due date for such payment.
Class. With respect to any Series, all the Notes of such
Series having the same specified payment terms and priorities in payment.
Clearing Agency. Shall mean The Depository Trust Company, or
any other organization registered as a "clearing agency" pursuant to Section
17A of the Securities Exchange Act of 1934, as amended.
Clearing Agency Participant. Shall mean a broker, dealer,
bank, other financial institution or other Person for whom from time to time a
Clearing Agency effects book entry transfers and pledges of securities
deposited with the Clearing Agency.
Code. Means the Internal Revenue Code of 1986, as amended
from time to time, and Treasury Regulations promulgated thereunder.
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Collection Period. With respect to any Settlement Date, the
immediately preceding calendar month; provided, that if, with respect to any
Contract, the Cut-Off Date applicable thereto is a day other than the first day
of a calendar month, then the initial Collection Period with respect to such
Contract shall be the period commencing on such Cut-Off Date and ending at the
end of the calendar month in which such Cut-Off Date occurs.
Collections. With respect to a Series Trust Estate and any
Collection Period, all cash collections and other cash proceeds of the
Contracts and the Related Security, including without limitation, Scheduled
Payments, Prepayments, Offset Amounts, Residual Receipts, Prepayment Amounts,
Recoveries, Investment Earnings, and Insurance Proceeds received by the
Servicer, the Trustee, the Contributor or the Obligors, in each case, during
such Collection Period (or, if the related Cut-Off Date is later than the first
day of such Collection Period, from such Cut-Off Date through the end of such
Collection Period); provided, that "Collections" shall not include (i) Advance
Payments until (and only to the extent that) such amounts are required to be
deposited in the applicable Series Account for distribution to the related
Noteholders in accordance with Section 7.02(a), and (ii) Servicing Charges; and
provided, further, that any amounts paid under any Series Support in reduction
of the principal amount of any Note, any interest thereon or any other amount
in connection therewith shall not constitute Collections.
Commission. Means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at anytime after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
Companion Series. Shall mean (i) each Series which has been
paired with one or more other Series (which Series may be prefunded or
partially prefunded), such that the reduction of the Outstanding Amount of such
Series results in the increase of the Outstanding Amount of such other Series,
as described in the related Series Supplements, and (ii) such other Series.
Computer Tape. Collectively, the computer tapes generated by
the Contributor which provide information relating to the Contracts and which
were, or will be, used by the Contributor in selecting the Contracts
contributed to the Obligors pursuant to a Contribution Agreement Supplement.
Contract. Each of the agreements conveyed by the Contributor
to an Obligor pursuant to the Contribution Agreement and subsequently pledged
by such Obligor to the Trustee pursuant hereto, including, as applicable,
schedules, supplements and amendments thereto, pursuant to which the applicable
originator thereof leases specified Equipment to, or makes loans to, a User and
which are identified on the List of Contracts delivered on the related Pledge
Date.
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Contract Balance Remaining. Means, with respect to any
Contract, as of any date, the aggregate (un-discounted) amount of all unpaid
Scheduled Payments due under such Contract.
Contract File. With respect to each Contract, the following
documents:
(i) The executed original counterparts of the Contract
that constitutes "chattel paper" for purposes of Sections 9-105(1)(b)
and 9-305 of the UCC;
(ii) A copy of any related Broker Agreement;
(iii) Copies of all documents (which may be in
micro-fiche form or on the Servicer's computerized information
system), if any, that the Contributor or the Servicer keeps on file
for benefit of the Contributor in accordance with the Contributor's or
Servicer's customary procedures indicating that the Equipment is owned
by the Contributor and copies of any and all other material documents
that the Contributor or the Servicer keeps on file for the benefit of
the Contributor in accordance with the Contributor's or Servicer's
customary procedures relating to any individual Contract, Broker, User
or Equipment (including, without limitation, any documents providing
or relating to any credit support of or for the User of such
Contract); and
(iv) Copies (together with all amendments, assignments,
and continuations thereof and including evidence of filing with the
appropriate office) of all UCC financing statements filed with respect
to the Contracts, identifying the User as debtor and the Contributor
as secured party, if any.
Contract Principal. With respect to any Contract for any
Collection Period, an amount equal to the excess of (i) the Scheduled Payment
due on such Contract during such Collection Period over (ii) the product of (x)
the Contract Principal Balance as of the opening of business on the first day
of such Collection Period and (y) one-twelfth of the Applicable Discount Rate
or Payment Interval Adjusted Discount Rate, as applicable.
Contract Principal Balance. As of any date in the case of a
Contract, the present value of the Scheduled Payments to become due on and
after the date of calculation (excluding all Scheduled Payments due on or prior
to, but not received as of such date of calculation), discounted monthly at
1/12 of the Applicable Discount Rate.
Contribution Agreement. That certain Master Contribution
Agreement dated as of May 1, 1997 by and between the Contributor and the
Obligors' Agent.
Contribution Agreement Supplement. Means each Contribution
Agreement Supplement executed and delivered pursuant to the Contribution
Agreement.
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Contributor. Advanta Business Services Corp., a Delaware
corporation, in its capacity as the Contributor under the Contribution
Agreement.
Corporate Trust Office. The principal office of the Trustee
at which at any particular time its corporate trust business shall be
administered, which office at the date of this Agreement is specified in
Section 15.03 hereof.
Coupons. Any interest or other coupons attached to a Note.
Credit and Collection Policy. The credit and collection
policies and practices of the Contributor, as the same may be modified from
time to time in accordance with the terms of this Agreement.
Crossover Amounts. Any amounts designated as "Crossover
Amounts" in a Series Supplement.
Cut-Off Date. With respect to any Contract, the "Cut-Off
Date" as set forth in the related Pledge Notice.
Default. Means any occurrence that is, or with notice or the
lapse of time or both would become, an Event of Default.
Definitive Notes. Has the meaning specified in Section 5.09
hereof.
Delinquent Contract. A Contract as to which any payment, or
part thereof, remains unpaid for more than 60 days from the original due date
for such payment.
Depositaries. Shall mean the Person(s), if any, specified in
the applicable Supplement, in its capacity as depositary for the respective
accounts of any Clearing Agency or any Foreign Clearing Agencies.
Depository Agreement. Shall mean, if applicable with respect
to any Series or Tranche, the agreement among the Obligors' Agent, the Trustee
and a Clearing Agency, or as otherwise provided in the related Series
Supplement.
Determination Date. With respect to a Collection Period, the
date which is the tenth day of the calendar month immediately succeeding the
month in which such Collection Period ends, or if such day is not a Business
Day, the immediately preceding Business Day; provided, however, that in no
event shall such Determination Date be later than three Business Days prior to
the Settlement Date relating to such Collection Period.
Dollars or $. The lawful money of the United States.
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Eligible Investments. Any of the following:
(a) marketable obligations of the United States of
America which are backed by the full faith and credit of the United
States of America;
(b) marketable obligations directly and fully guaranteed
by the full faith and credit of the United States of America;
(c) bankers' acceptances and certificates of deposit and
other interest-bearing obligations denominated in Dollars and issued
by any bank with capital, surplus and undivided profits aggregating at
least $100,000,000, the short-term securities of which are rated "A-1"
by S&P and "P-1" by Moody's;
(d) repurchase obligations for underlying securities of
the types described in clauses (a), (b) and (c) above entered into
with any bank of the type described in clause (c) above;
(e) commercial paper rated at least "A-1" by S&P and
"P-1" by Moody's;
(f) freely redeemable shares in money market funds
(including funds for which the Trustee, any Noteholder or any
affiliates of either of the foregoing may act as sponsor or advisor or
for which any of the foregoing Persons may receive fee income) which
invest solely in obligations, bankers' acceptances, certificates of
deposit, repurchase agreements and commercial paper of the types
described in clauses (a) through (e), bankers' acceptances,
certificates of deposit, repurchase agreements or commercial paper set
forth in such clauses, which money market funds are rated at least
"AAm" or "AAm-g" by S&P and "Aa1" by Moody's; and
(g) demand deposits, time deposits or certificates of
deposit (having original maturities of no more than 365 days) of
depository institutions or trust companies incorporated under the laws
of the United States of America or any state thereof (or domestic
branches of any foreign bank) and subject to supervision and
examination by federal or state banking or depository institution
authorities; provided that at the time such investment, or the
commitment to make such investment, is entered into, the short-term
debt rating of such depository institution or trust company shall be
at least "A-1" by S&P and "P-1" by Moody's.
Notwithstanding anything set forth in clauses (a)-(g) above,
any Eligible Investment must mature no later than the Business Day prior to the
next Settlement Date.
Eligible Contract. With respect to any Series, as defined in
the related Series Supplement.
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Equipment. The equipment leased to a User pursuant to any
Contract.
Euroclear Operator. Shall mean ▇▇▇▇▇▇ Guaranty Trust Company
of New York, Brussels office, as operator of the Euroclear System.
Event of Default. Has the meaning specified in Section 10.01.
Event of Servicer Termination. An Event described in Section
9.01 hereof.
Exchange Act. Means the Securities Exchange Act of 1934, as
amended.
Final Date. With respect to any Series, the date on which all
amounts due to the related Series Secured Parties have been indefeasibly paid
in full.
Foreign Clearing Agency. Shall mean CEDEL and the Euroclear
Operator.
Governmental Authority. The United States of America, any
State or other political subdivision of either of the foregoing and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
Group. Shall mean, with respect to any Series, the group of
Series, if any, in which the related Series Supplement specifies such Series is
to be included.
Holder or Noteholder. Shall mean, with respect to a
Book-Entry Note, the Person who is the owner of such Book-Entry Note, as
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly or as an indirect
participant, in accordance with the rules of such Clearing Agency).
Increased Servicer Fee. Shall have the meaning ascribed to
such term in Section 9.02 hereof.
Increased Servicer Fee Differential. Shall have the meaning
ascribed to such term in Section 9.02 hereof.
Indebtedness. Means, with respect to any Person at any time,
(a) indebtedness or liability of such Person for borrowed money whether or not
evidenced by bonds, debentures, notes or other instruments, or for the deferred
purchase price of property or services (excluding trade obligations and accrued
expenses incurred in the ordinary course of business); (b) obligations of such
Person as lessee under leases which should have been or should be, in
accordance with generally accepted accounting principles, recorded as capital
leases; (c) current liabilities of such Person in respect of unfunded vested
benefits under plans covered by Title IV of ERISA; (d) obligations
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issued for or liabilities incurred on the account of such Person; (e)
obligations or liabilities of such Person arising under acceptance facilities,
including obligations of such Person under any guarantees, endorsements (other
than for collection or deposit in the ordinary course of business) and other
contingent obligations to purchase, to provide funds for payment, to supply
funds to invest in any Person or otherwise to assure a creditor against loss;
(f) obligations of such Person secured by any lien on property or assets of
such Person, whether or not the obligations have been assumed by such Person;
or (b) obligations of such Person under any interest rate or currency exchange
agreement.
Indemnified Amounts. Has the meaning set forth in Section
8.01(b) hereof.
Indemnified Party. Has the meaning set forth in Section
8.01(b) hereof.
Independent Accountant. A firm of nationally recognized
independent certified public accountants with respect to Advanta Leasing
Holding Corp., Advanta Corp. and/or the Servicer (if other than Advanta
Business Services Corp.), as applicable, within the meaning of the Securities
Act.
Initial Unpaid Amounts. Shall mean with respect to a
Contract, the excess of the aggregate amount of all Scheduled Payments due
prior to the related Cut-Off Date over the aggregate of all Scheduled Payments
made prior to the related Cut-Off Date with respect to such Contract or Loan.
Insolvency Event. Means, with respect to a specified Person,
either of the following events:
(i) the filing of a decree or order for relief by a
court having jurisdiction in the premises in respect of such Person or
any substantial part of such Person's assets in an involuntary case
under any applicable Federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official of such Person or for any substantial part of such Person's
assets, or ordering the winding-up or liquidation of such Person's
affairs, and such decree or order shall remain unstayed and in effect
for a period of 60 consecutive days; or
(ii) the commencement by such Person of a voluntary
case under any applicable Federal or state bankruptcy, insolvency or
other similar law now or hereafter in effect, or the consent by such
Person to the entry of an order for relief in an involuntary case
under any such law, or the consent by such Person to the appointment
or taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of such Person for any
substantial part of such Person's assets, or the making by such Person
of any general assignment for the benefit of creditors, or the failure
by such Person
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generally to pay its debts as such debts become due, or the taking of
action by such Person in furtherance of any of the foregoing.
Insurance Policy. With respect to an item of Equipment and
the related Contract, any insurance policy or similar agreement required to be
maintained by the User pursuant to such Contract that covers physical damage to
the Equipment (including policies procured by the Contributor or the Servicer
on behalf of the User) or covering any liabilities arising from the Equipment
or the use thereof by the User.
Insurance Proceeds. With respect to an item of Equipment and
the related Contract, any amount received during a Collection Period pursuant
to an Insurance Policy issued with respect to such Equipment and the related
Contract.
Investment Earnings. Any income earned from the investment of
funds from time to time on deposit in the Master Facility Account, the Advance
Payment Account or any Series Account in accordance with Section 7.03 and the
Series Supplements, net of any investment expenses and losses on any such
investments.
Lien. Any security interest, mortgage, deed of trust, lien
(statutory or otherwise), charge, pledge, equity, hypothecation, assignment,
deposit arrangement, encumbrance, preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever,
including, without limitation, any conditional sale or other title retention
agreement, any financing lease having substantially the same economic effect as
any of the foregoing and the filing of any financing statement under the UCC
(other than any such financing statement filed for informational purposes only)
or comparable law of any jurisdiction to evidence any of the foregoing.
List of Contracts. With respect to any specified group of
Contracts, a printed or electronic list of such Contracts, certified by an
Authorized Officer or the Obligors' Agent. Each List of Contracts shall
include for each Contract listed thereon (a) a number identifying such
Contract, (b) the Contract Principal Balance, (c) the User, (d) the State in
which the User's billing address is located, (e) the scheduled maturity date of
the Contract, (f) the Scheduled Payment amount for such Contract, (g) the
stated amount of the Booked Residual, if any, on such Contract, and (h) the
Applicable Discount Rate or the Payment Interval Adjusted Applicable Discount
Rate, if applicable.
Majority Control Parties. Shall mean those Series Controlling
Parties for the outstanding Series, the Outstanding Amounts of which represent,
in the aggregate, 66-2/3% or more of the aggregate Outstanding Amounts for all
outstanding Series.
Master Facility Account. Shall have the meaning ascribed in
Section 7.01(a).
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Maturity Date. When used with respect to any Note, means the
date on which the principal of such Note or an installment of principal becomes
due and payable as therein or herein provided, whether on the final scheduled
Settlement Date or by declaration of acceleration, prepayment or otherwise.
Moody's. ▇▇▇▇▇'▇ Investors Service, Inc.
Municipal Contract. Means a Contract of Equipment under which
the User is a state or local government or government agency.
Non-Monthly Payment Contracts. Means any Contract that does
not require the User to make monthly payments.
Note Register and Note Registrar. Have the respective
meanings specified in Section 5.04.
Noteholders' Agent. Means any Person designated by one or
more Noteholders to be their "agent".
Notes. Any Note authenticated and delivered under this Master
Agreement.
Obligors. Means each Person designated as an "Obligor" in a
Series Supplement with respect to the related Series of Notes, or any successor
thereto.
Obligor's Agent. Advanta Leasing Receivables Corp. III.
Obligors' Order or Obligors' Request. Means a written request
or order signed by an Authorized Officer of the Obligors' Agent and delivered
to the Trustee.
Officer's Certificate. Means a certificate signed by an
Authorized Officer of an Obligor or the Obligors' Agent.
Offset Amount. The meaning ascribed to such term in Section
6.14 hereof.
Opinion of Counsel. A written opinion of counsel, who may be
counsel employed by the Servicer or other counsel, in each case acceptable to
the named recipient thereof.
Organizational Documents. With respect to any Obligor, such
Obligor's articles of incorporation, by-laws, partnership agreement, trust
agreement, limited liability company agreement, or other charter-type governing
instrument.
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Original Issue Date. Means, for any Series, Class or Tranche
of Notes, the date of original issue of such Series, Class or Tranche of Notes,
as specified in the related Supplement.
Original Servicer Fee Rate. With respect to any Series, the
rate at which the Servicing Fee is calculated, as specified on the related
Series Supplement.
Outstanding. When used with respect to Notes, means, as of
the date of determination, all Notes theretofore authenticated and delivered
under this Master Agreement except,
(i) Notes theretofore cancelled by the Note Registrar
or delivered to the Note Registrar for cancellation; and
(ii) Notes for whose payment or prepayment money in the
necessary amount has been theretofore deposited with the Trustee or
any Paying Agent for the Holders of such Notes; and
(iii) Lost, destroyed or stolen notes in lieu of which
other Notes have been authenticated and delivered pursuant to Section
5.05 hereof, other than any such Notes in respect of which there shall
have been presented to the Trustee proof satisfactory to it that such
Notes are held by a bona fide purchaser in whose hands such Notes are
valid obligations of the Obligors;
provided, however, that any Notes which have been paid with proceeds of the
related Series Support shall continue to remain Outstanding for purposes of
this Master Agreement until the related Series Support Provider has been paid
as subrogee hereunder or reimbursed as evidenced by a written notice from the
related Series Support Provider delivered to the Trustee, and the related
Series Support Provider shall be deemed to be the Holder thereof to the extent
of any payments thereon made by the related Series Support Provider; provided,
further, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or under any
related document, Notes owned by the Obligors or any other obligor upon the
Notes, the Contributor or any Affiliate of any of the foregoing shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Notes that
the Trustee knows to be so owned shall be so disregarded. Notes so owned that
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Notes and that the pledgee is not an Obligor, any other
obligor upon the Notes, the Contributor or any Affiliate of any Obligor or of
any of the foregoing Persons.
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Outstanding Amount. Means, with respect to any Series the
aggregate principal amount of all Notes of such Series which are Outstanding at
the date of determination after giving effect to all distributions of principal
on such date of determination.
Overdue Payment. Any Scheduled Payment due on a Contract and
not received during the Collection Period in which such Scheduled Payment was
due.
Paying Agent. Means the Paying Agent appointed pursuant to
Section 11.14 hereof.
Payment Interval. With respect to any Contract,
notwithstanding the number of actual periodic payments in any calendar year
(without regard to the actual duration of such Contract or whether such
payments are actually made with respect to such Contract), 12.
Payment Interval Adjusted Applicable Discount Rate. With
respect to any Contract, shall mean the Applicable Discount Rate of such
Contract multiplied by a fraction, the numerator of which is one and the
denominator of which is the Payment Interval of such Contract.
Person. Any legal person, including any individual,
corporation, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, Governmental Authority or any other entity.
Pledge. Means each Pledge by the related Series Obligors of
all or any portion of the related Series Trust Estate to the Trustee for the
benefit of the related Noteholders in accordance with Section 3.01 hereof.
Pledge Date. Means each Business Day on which a Pledge
occurs.
Pledge Notice. A written notice pursuant to which the
Obligors with respect to a Series Pledge property to the Trustee as part of the
related Series Trust Estate. Each Pledge Notice shall be in substantially the
form of Exhibit A hereto.
Pledged Property. With respect to any Series Trust Estate,
the property described as Pledged Property in the related Series Supplement.
Predecessor Note. If any particular Note means every previous
Note evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 5.05 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Note.
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Prepayment. With respect to a Collection Period and a
Contract (except a Charged-Off Contract), the payment by the related User of
all remaining Scheduled Payments due on such Contract, including, without
limitation, by way of application of any Security Deposit for such Contract, so
long as such amount is designated by the User as a prepayment and the Servicer
has consented to such prepayment. Advance Payments and Residual Receipts are
not "Prepayments."
Prepayment Amount. Means, with respect to any Contract: (a)
the Contract Principal Balance of such Contract (without any deduction for any
security deposit paid by the related User, unless such security deposit has
been applied to the Contract Principal Balance pursuant to the Credit and
Collection Policy and deposited into the Master Facility Account as a
Collection) as of the date of reconveyance of such Contract to the related
Obligor by the Trustee, plus (b) the product of (i) the Contract Principal
Balance as of the date of reconveyance, and (ii) one-twelfth of the Applicable
Discount Rate plus (c) the Booked Residual for such Contract.
Principal Terms. Shall mean, with respect to any Series, (i)
the name or designation; (ii) the initial Outstanding Amount, the maximum
Outstanding Amount (or method for calculating such amounts); (iii) the interest
rate (or method for the determination thereof); (iv) the Settlement Date or
dates and the date or dates from which interest shall accrue; (v) the method
for allocating Collections to Noteholders of such Series; (vi) the designation
of any Series Accounts and the terms governing the operation of any such Series
Accounts; (vii) the method of calculating the Servicing Fee with respect
thereto; (viii) the terms of any form of Series Support with respect thereto;
(ix) the Series Termination Date; (x) the number of Classes of Notes of such
Series and, if such Series consists of more than one Class, the rights and
priorities of each such Class; (xi) whether the Notes of such Series may be
issued as Bearer Certificates and any limitations imposed thereon; (xii) the
priority of such Series with respect to any other Series; (xiii) the Group, if
any, to which such Series belongs; (xiv) whether such Series is a Companion
Series to one or more other Series; and (xv) any other terms of such Series.
Proceeding. Means any suit in equity, action at law or other
judicial or administrative proceeding.
Property. Shall mean any right or interest in or to property
of any kind whatsoever, whether real, personal or mixed and whether tangible or
intangible.
Rating Agencies. S&P and Moody's.
Record Date. Means, with respect to any Series, as specified
in the related Series Supplement.
Records. Means, with respect to any Contract, all Contracts
and other documents, books, records and other information (including, without
limitation, Contract
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Files, computer programs, tapes, disks, punch cards, data processing software
and related property and rights) relating to such Contract, any Related
Security therefor and the related User.
Recoveries. Means all amounts received in respect of a
Charged-Off Contract, including, without limitation, amounts received in
connection with the sale or other disposition of the related Equipment,
Insurance Proceeds with respect to the related Equipment, or any other payments
made by or on behalf of the related User, including any amounts paid by the
Contributor relating to a Security Deposit, net of costs of collection, in
connection with such Charged-Off Contract.
Refinance Proceeds. Shall mean with respect to any Collection
Period, (i) any proceeds of the issuance of a new series of notes or the
issuance of certificates in connection with a securitization of leases and
loans, remitted by the Series Obligors to the Trustee on the Settlement Date
following such Collection Period for deposit into the related Series Account
and application in accordance with the related Series Supplement, and (ii) any
amounts remitted to the Trustee by the Series Obligors in accordance with the
related Series Supplement for deposit into the related Series Account and
application in accordance with the related Series Supplement.
Registered Holder. Means the Person in whose name a Note is
registered on the Note Register on the applicable Record Date.
Registered Notes. Has the meaning set forth in Section 4.01
hereof.
Related Security. With respect to any Contract, all of
Obligors's rights, title and interest in, to and under:
(i) the related Contribution Agreement Supplement
(including, without limitation, all rights, remedies, powers and
privileges thereunder), pursuant to which, among other things, the
Contract, the Contract Files and the related Equipment have been
contributed to such Obligors by the Contributor, and the Broker
Agreements, if any, relating to such Contracts;
(ii) such Obligors's interest in the related Equipment,
together with all security interests and/or liens and all property
subject thereto from time to time securing or purporting to secure
payment of such Contract, whether pursuant to such Contract or
otherwise, together with all UCC Financing Statements covering any
such property filed by or otherwise filed in favor of the Contributor
and/or such Obligors (and, in the case of those UCC financing
statements filed in favor of the Obligors, assigned to the Trustee);
(iii) all guarantees, letters of credit, indemnities,
warranties, insurance policies (including, without limitation, the
Insurance Policies), and proceeds and premium refunds thereof and
other agreements or arrangements of
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whatever character from time to time supporting or securing payment of
such Contract whether pursuant to the Contract or otherwise
(including, without limitation, the Security Deposits);
(iv) all of such Obligors's interest in the Equipment,
Residual Receipts and Recoveries related to such Contract, Contract
Files and other instruments, documents, agreements, Computer Tapes,
books, and records relating to such Contract; and
(v) all proceeds of the foregoing.
Release Events. Has the meaning ascribed in Section 6.11
hereof.
Requirements of Law. Any law, treaty, rule or regulation, or
final determination of an arbitrator or Governmental Authority, and, when used
with respect to any Person, the certificate of incorporation and by-laws or
other organizational or governing documents of such Person.
Residual Receipts. All Booked Residuals received by the
Servicer, proceeds of the sale of Equipment received by the Servicer in the
event the related User does not purchase the Equipment at the end of the
related Contract, any amounts collected by the Servicer as judgments against a
User or others related to the failure of such User to pay any required amounts
under the related Contract or to return the Equipment, including any amounts
paid by the Contributor relating to a Security Deposit, plus any amounts not
otherwise described above which are received by the Servicer and applied
against the Booked Residual of such Contract in accordance with the Servicer's
servicing standards in each case as reduced by any reasonably incurred
out-of-pocket expenses incurred by the Servicer in enforcing such Contract or
in liquidating such Equipment.
Responsible Officer. When used with respect to the Trustee,
any officer assigned to the corporate trust division (or any successor
thereto), including any Vice President, Second Vice President, Assistant Vice
President, Senior Trust Officer, Trust Officer, Authorized Signer, Assistant
Trust Officer, any Assistant Secretary, any trust officer or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and having direct responsibility for the
administration of this Agreement, and also, with respect to a particular
matter, any other officer to whom such matter is referred because of such
officer's knowledge of and familiarity with the particular subject.
Rule 144A Information. Has the meaning specified in Section
14.10 hereof.
S&P. Standard & Poor's Ratings Group.
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Scheduled Payments. With respect to a Settlement Date and a
Contract, the stated periodic rental payments (exclusive of any amounts in
respect of insurance or taxes) set forth in such Contract due from the User in
the related Collection Period.
Securities Act. The Securities Act of 1933, as amended, and
the applicable published rules and regulations thereunder.
Security Deposit. Any amount paid to the Contributor by a
User as a security deposit or as a payment in advance of any amounts to become
due on a Contract, which has not previously been refunded to such User or
applied toward such User's obligations under such Contract.
Series. With respect to any Notes means those Notes issued
pursuant to the same Supplement.
Series Accounts. Any deposit, trust, escrow, collateral,
reserve or similar account established and maintained by the Trustee for the
benefit of the Noteholders or any Series or Class as specified in any Series
Supplement.
Series Closing Date. With respect to any Series, the date
designated in the related Series Supplement as the closing date for such
Series.
Series Controlling Party. With respect to any Series on any
date the Person or Persons designated as such in the related Series Supplement.
Series Related Documents. With respect to a Series, has the
meaning specified therefor in the related Supplement.
Series Secured Obligations. Has the meaning specified
therefor in the related Series Supplement.
Series Secured Parties. Has the meaning specified therefor in
the related Series Supplement.
Series Supplement. With respect to any Series, a Series
Supplement to this Agreement, executed and delivered in connection with the
original issuance of the Notes of such Series, and all amendments thereof and
supplements thereto.
Series Support. The rights and benefits provided to the
Trustee or the Noteholders of any Series or Class pursuant to any letter of
credit, surety bond, cash collateral account, spread account, guaranteed rate
agreement, maturity liquidity facility, interest rate swap agreement, tax
protection agreement or other similar arrangement. The subordination of any
Series or Class to another Series or Class shall be deemed to be a Series
Support. Notwithstanding that such Series Support may be held by or in favor
of the Trustee for the benefit of any Series or Class, only those Series or
Classes
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to which such Series Support relates shall have any rights with respect thereto
and all payments thereunder received by the Trustee shall be distributed
exclusively as prescribed in the Series Supplement relating to such Series or
Class.
Series Support Provider. The Person providing any Series
Support, other than the Noteholders of any Series or Class which is
subordinated to another Class or Series.
Series Termination Date. Has the meaning ascribed in the
Series Supplement.
Series Trust Estate. With respect to a Series, has the
meaning specified therefor in the related Series Supplement.
Series Trustee Secured Obligations. With respect to a Series,
has the meaning specified therefor in the related Supplement.
Servicer. The Person performing the duties of the Servicer
hereunder, initially Advanta Business Services Corp.
Servicer Advance. With respect to any Series, any amount
which the Servicer is required to advance with respect to Overdue Payments, in
accordance with the related Series Supplement.
Servicer Fee. With respect to each Series, the fee payable to
the Servicer on each Settlement Date in consideration of the Servicer's
performance of its duties pursuant to Article VI with respect to the Series
Trust Estate related to such Series, payable as provided in the related Series
Supplement.
Servicer Termination Notice. The notice described in Section
9.01(a) hereof.
Servicer's Certificate. With respect to each Series Trust
Estate, a written informational statement, substantially in the form prescribed
by the related Series Supplement, to be provided by the Servicer in accordance
with the related Series Supplement and signed by a Servicing Officer and
furnished to the Trustee by the Servicer.
Servicing Charges. The sum of (i) any late payment charges
paid by a User on a delinquent Contract after application of any such charges
to amounts then due under such Contract and (ii) any other incidental charges
or fees received from a User, including (i) insurance premium payments and (ii)
prepayment charges paid by a User in connection with a Prepayment.
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Servicing Officer. Those officers of the Servicer involved
in, or responsible for, the administration and servicing of the Contracts, as
identified on the list of Servicing Officers furnished by the Servicer to the
Trustee and the Noteholders from time to time.
Settlement Date. With respect to a Series, has the meaning
specified therefor in the related Series Supplement.
State. Any state of the United States of America and, in
addition, its territories and possession and the District of Columbia.
Support Default. Means, with respect to a Series, those
events specified in the related Series Supplement.
Tranche. All the Notes of a Series (or of a Class within a
Series) having the same date of authentication.
Trust Indenture Act. Means the Trust Indenture Act of 1939,
as amended from time to time.
Trustee. Means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Master Agreement, and thereafter
"Trustee" shall mean or include the Person who is then the Trustee hereunder.
UCC. The Uniform Commercial Code as in effect in the
applicable jurisdiction.
Unregistered Note. Any Note which is not a Bearer Note and
which is part of a Series or Class of Notes which has been designated in the
related Series Supplement as being a Series or Class of Unregistered Notes.
User. Any obligor, under any Contract, whose obligations
thereunder constitute the principal source of payments under any Contract,
including any guarantor (excluding the Servicer) of such obligations.
Section 1.02. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Master Agreement to be given or taken by the Holders of the related Notes
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by agents duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee and, where it is hereby expressly required, to the Obligors' Agent.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such
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instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Master Agreement and (subject to Section 11.01) conclusive in favor of the
Trustee and the Obligors, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved in any manner that the Trustee
deems sufficient.
(c) The ownership of Notes shall be proved by the Note
Register.
(d) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any Note shall bind every
future Holder of the same Note and the Holder of every Note issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Obligors' Agent or the Obligors in reliance thereon, whether or not notation of
such action is made upon such Note.
Section 1.03. Notice to Holders; Waiver. Where this Master
Agreement or any Series Supplement provides for notice to the Holders of the
related Notes of any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first class
postage prepaid, to each Holder affected by such event, at such Holder's
address as it appears in the Note Register, or if in writing and by facsimile,
to the facsimile number provided by a Holder to the Person giving such notice,
not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Holder shall affect the sufficiency of
such notice with respect to other Holders, and any notice that is mailed in the
manner herein provided shall conclusively be presumed to have been duly given.
Where this Master Agreement or any Series Supplement provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
Where any Series Supplement provides for notice to the Rating
Agencies, failure to give such notice shall not affect any rights or
obligations created hereunder, and shall not under any circumstance constitute
a Default or Event of Default.
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Section 1.04. Alternate Payment and Notice Provisions.
Notwithstanding any provision of this Master Agreement, any Series Supplement
or any of the Notes to the contrary, the Obligors' Agent may enter into any
agreement with any Holder of a Note providing for a method of payment, or
notice by the Trustee or any Paying Agent to such Holder, that is different
from the methods provided for in this Master Agreement or the related Series
Supplement for such payments or notices. The Obligors' Agent will furnish to
the Trustee a copy of each such agreement and the Trustee will cause payments
to be made and notices to be given in accordance with such agreements provided
the Trustee is not adversely affected thereby.
Section 1.05. Conflict with Trust Indenture Act. If this
Master Agreement is qualified under the Trust Indenture Act and any provision
hereof limits, qualifies or conflicts with another provision hereof that is
deemed to be included in and to govern this Master Agreement by any of the
provisions of the Trust Indenture Act, such provision deemed to be included
herein shall control.
Section 1.06. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 1.07. Successors and Assigns. All covenants and
agreements in this Master Agreement or any Series Supplement by the Obligors or
by the Obligors' Agent, on behalf of the Obligors or in its or their individual
capacity shall bind its or their successors and assigns, whether so expressed
or not.
All agreements by the Trustee in this Master Agreement or any
Series Supplement shall bind its successors and assigns.
Section 1.08. Benefits of Agreement. To the extent
specified in the related Series Supplement, the related Series Support Provider
and its successors and assigns shall be a third-party beneficiary to the
provisions of this Master Agreement and such Series Supplement, insofar as such
provisions apply to the related Notes, and shall be entitled to rely upon and
directly to enforce such provisions of this Master Agreement and such Series
Supplement so long as no Support Default shall have occurred and be continuing
with respect to such Series Support Provider. Except as aforesaid, nothing in
this Master Agreement or any Series Supplement or in the Notes, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders of the related Notes, and any other party
secured hereunder, and any other Person with an ownership interest in any part
of the related Series Trust Estate, any benefit or any legal or equitable
right, remedy or claim under this Master Agreement. The related Series Support
Provider may disclaim any of its rights and powers under this Master Agreement
(in which case the Trustee may exercise such right or power hereunder), but not
its duties and obligations under the related Series Support, upon delivery of a
written notice to the Trustee and to the Obligors' Agent.
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Section 1.09. Allocation of Series to Groups. To the
extent so provided in the Supplement for any Series or in an amendment to this
Agreement executed pursuant to subsection 13.01(a), specified Series, may be
allocated in whole or in part to one or more Groups as may be provided in such
Series Supplement or amendment for the purpose of receiving Crossover Amounts
with respect to the Series Trust Estate(s) of such other Series in such Group.
Any such Series Supplement or amendment may provide that (i)
such allocation to one or more particular Series or Groups may terminate upon
the occurrence of certain events specified therein and (ii) that upon the
occurrence of any such event, the related Crossover Amounts may be reallocated
to other Series or Groups or to all Series, all as shall be provided in such
Series Supplement or amendment.
Section 1.10 Status of Obligors' Agent. By its execution
and delivery of a Series Supplement, an Obligor shall be deemed to have
designated and appointed Advanta Leasing Receivables Corp. III to act as its
agent hereunder, under the Master Contribution Agreement and each Contribution
Agreement Supplement and under each other related Series Related Document. The
Obligors' Agent is responsible for executing and fulfilling all other duties
expressly assigned to it in this Master Agreement, the Master Contribution
Agreement and each Contribution Agreement Supplement and the Series Related
Documents. The Obligors may, at any time in their discretion, remove the
Obligors' Agent and appoint a new Obligors' Agent, which shall have duties
described in this Section 1.10.
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 2.01. Representations, Warranties and Covenants of
Obligors. By its execution and delivery of a Series Supplement, each Obligor
will be deemed to have made each of the following representations, warranties
and covenants to the Trustee and the Noteholders of the related Series on which
representations, warranties and covenants the Trustee relies in accepting the
related Series Trust Estate in trust and on which the Noteholders of the
related Series have relied in agreeing to purchase the related Notes. Such
representations, warranties and covenants are deemed to be made and affirmed on
the Series Closing Date for the related Series, and shall survive the date of
the making or remaking of such representations and warranties. Each of the
Obligor's covenants with respect to a Series shall continue until the Final
Date of such Series.
(a) Each Obligor represents and warrants, as to itself,
that:
(i) Corporate Existence and Power. Such Obligor is a
legal entity duly organized, validly existing and in good standing
under the laws of the State of its formation, and has all corporate
power and all governmental licenses,
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authorizations, consents and approvals required to carry on its
business in each jurisdiction in which its business is conducted.
(ii) No Conflict. The execution, delivery and performance
by such Obligor of this Master Agreement and the other Series Related
Documents to which it is a party, are within its corporate powers,
have been duly authorized by all necessary corporate action, do not
contravene or violate (i) its certificate of incorporation, operating
agreement, partnership agreement or by-laws, (ii) any law, rule or
regulation applicable to it, (iii) any restrictions under any
agreement, contract or instrument to which it is a party or by which
it or any of its property is bound, or (iv) any order, writ, judgment,
award, injunction or decree binding on or affecting it or its
property, and do not result in the creation or imposition of any
Adverse Claim on assets of such Obligor or its Subsidiaries (except
the interest conveyed to the Trustee); and no transaction contemplated
hereby requires compliance with any bulk sales act or similar law.
Each of the Series Related Documents to which such Obligor is a party
has been duly executed and delivered by such Obligor.
(iii) Governmental Authorization. Other than the filing of
the financing statements required hereunder, no authorization or
approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body is required for the due
execution, delivery and performance by such Obligor of this Master
Agreement and the other Series Related Documents to which such Obligor
is a party, except for such authorizations, approvals, actions,
notices and filings as have already been obtained, taken or made in
connection with Municipal Contracts.
(iv) Binding Effect. Each of this Master Agreement and
the other Series Related Documents to which such Obligor is a party
constitutes the legal, valid and binding obligation of such Obligor,
enforceable against each Obligor, jointly and severally, in accordance
with its terms, except as such enforcement may be limited by
applicable bankruptcy, insolvency, reorganization or other similar
laws relating to or limiting creditors' rights generally or general
equitable principles.
(v) Accuracy of Information. All information furnished
in writing by such Obligor to the Trustee on or prior to the related
Series Closing Date for purposes of or in connection with the Series
Related Documents or any Pledge is true, accurate and complete in
every material respect on the date such information is stated or
certified, and all such information hereafter furnished by such
Obligor to the Trustee will be, true, accurate and complete in every
material respect, on the date such information is stated or certified.
(vi) Use of Proceeds. No proceeds of any sale of the
Notes will be used (i) for a purpose which violates, or would be
inconsistent with, Regulation
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G, T, U or X promulgated by the Board of Governors of the Federal
Reserve System from time to time or (ii) to acquire any security in
any transaction which is subject to Section 13 or Section 14 of the
Securities Exchange Act of 1934, as amended.
(vii) Good Title; Perfection. Immediately prior to each
Pledge hereunder, such Obligor shall be the legal and beneficial owner
of the Contracts subject to such Pledge and Advanta Business Services
Corp. is either the owner or has taken or is taking all requisite
steps to obtain on its behalf a first priority perfected security
interest in, all Equipment related thereto and the Related Security
with respect thereto (other than Equipment valued at less than $25,000
in which such Obligor has not reserved a perfected security interest),
free and clear of any Adverse Claim except as created by this
Agreement and the other Series Related Documents, and such Obligor has
the legal right to Pledge the Contracts and the associated Collections
and Related Security to the Trustee.
(viii) Places of Business. Except in accordance
with Section 3.05(b), such Obligor will not move its chief executive
office to another location and/or maintain any Records at any other
locations.
(ix) No Proceedings. There are no proceedings or
investigations pending or, to the best knowledge of such Obligor,
threatened before any Governmental Authority (i) asserting the
invalidity of the Series Related Documents, (ii) seeking to prevent
the consummation of any of the transactions contemplated by the Series
Related Documents, (iii) seeking any determination or ruling that, in
the reasonable judgment of such Obligor, would materially and
adversely affect the performance by such Obligor of its obligations
under the Series Related Documents and (iv) seeking any determination
or ruling that would materially and adversely affect the validity or
enforceability of the Series Related Documents.
Section 2.02. Representations, Warranties and Covenants of
Servicer. The Servicer hereby makes the following representations, warranties
and covenants to the Trustee and the Noteholders of the related Series on which
representations, warranties and covenants the Trustee relies in accepting the
related Series Trust Estate in trust and in authenticating the related Notes
and on which the Noteholders of such Series have relied in purchasing their
Notes. Such representations, warranties and covenants shall be deemed to be
made and affirmed on each Series Closing Date and shall survive the date of the
making or remaking of such representations and warranties. Each of the
Servicer's covenants shall continue until the Final Date of the last
outstanding Series.
(a) The Servicer represents and warrants, as to itself
and its responsibilities, that:
(i) Organization and Good Standing. The Servicer
is a corporation duly organized, validly existing in good standing
under the laws of the State of
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Delaware (or, if other than Advanta Business Services Corp., in the
applicable state of its incorporation), has the power to own its
assets and to transact the business in which it is presently engaged,
and had at all relevant times and now has the power, authority and
legal right to service the related Series Trust Estate.
(ii) Power and Authority. The Servicer has the
power, authority and legal right to execute, deliver and perform this
Master Agreement and the other Series Related Documents to which it is
a party and the execution, delivery and performance of this Master
Agreement and the other Series Related Documents to which it is a
party have been duly authorized by the Servicer by all necessary
corporate action.
(iii) Binding Obligation. This Master Agreement
and the other Series Related Documents to which the Servicer is a
party (assuming due authorization, execution and delivery by each of
the other parties hereto and thereto), constitute legal, valid and
binding obligations of the Servicer, enforceable against the Servicer
in accordance with their respective terms, except that (A) such
enforcement may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws (whether statutory, regulatory or
decisional) now or hereafter in effect relating to creditors' rights
generally and (B) the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to certain
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought, whether in a proceeding at law or
in equity.
(iv) No Violation. The consummation by the
Servicer of the transactions contemplated by this Master Agreement and
the other Series Related Documents to which it is a party and the
fulfillment of the terms hereof and thereof will not conflict with,
result in any breach of any of the terms and provisions of, or
constitute (with or without notice, lapse of time or both) a default
under, the charter documents or by-laws of the Servicer, or any
material indenture, agreement, mortgage, deed of trust or other
instrument to which the Servicer is a party or by which it is bound,
or result in the creation or imposition of any Lien upon any of its
material properties pursuant to the terms of any such indenture,
agreement, mortgage, deed of trust or other instrument, other than as
contemplated by the Contribution Agreement (if Advanta Business
Services Corp. is the Servicer making such representation and
warranty) and this Master Agreement, or violate any law or, to the
best of the Servicer's knowledge, any order, rule or regulation
applicable to the Servicer of any court or other Governmental
Authority having jurisdiction over the Servicer or any of its
properties.
(v) No Proceedings. There are no proceedings or
investigations to which the Servicer, or any of the Servicer's
Affiliates, is a party pending or, to the best of the Servicer's
knowledge, threatened before any court or other
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Governmental Authority (A) asserting the invalidity of this Master
Agreement or any of the other Series Related Documents, (B) seeking to
prevent the consummation of any of the transactions contemplated by
this Master Agreement or any of the other Series Related Documents (C)
seeking any determination or ruling that might materially and
adversely affect the performance by the Servicer of its obligations
under, or the validity or enforceability of, this Master Agreement or
any of the other Series Related Documents to which it is a party.
(vi) Approvals. All approvals, authorizations,
consents, orders or other actions of any Governmental Authority or any
other Person required to be obtained or taken by, or on the part of,
the Servicer in connection with the execution and delivery of this
Master Agreement or any of the other Series Related Documents to which
it is a party have been or will be taken or obtained on or prior to
the date so required to be taken or obtained.
(vii) Information. Each certificate, information,
exhibit, financial statement, document, book or record or report
furnished by the Servicer to the Trustee, the Obligors, the Rating
Agencies or any Noteholder in connection with this Master Agreement,
any series Supplement, any Series Related Document or the transactions
contemplated hereby is accurate in all material respects as of its
date, when considered as a whole with other such documents, and no
such document contains any material misstatement of fact or omits to
state a material fact or any fact necessary to make the statements
contained therein, in light of the circumstances under which they were
made, not materially misleading as of its date.
(viii) Place of Business. The chief executive
office of the Servicer is at ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ Road,
Voorhees, New Jersey.
(b) The Servicer, for itself and on behalf of each
related Series Obligor, covenants as to the Pledged Property comprising each
Series Trust Estate:
(i) Lien in Force. The Servicer shall not
release or assign any Lien in favor of the Trustee on any item of
Equipment related to any Contract in whole or in part, except as
expressly permitted hereunder.
(ii) Fulfill Obligation. The Servicer will duly
fulfill and comply, in all material respects, with all obligations on
the part of the "lessor" to be performed and fulfilled under or in
connection with each Contract and all of the Servicer's other
obligations to be fulfilled under or in connection with each Series
Trust Estate. The Servicer will not amend, rescind, cancel or modify
any Contract or any term or provision thereof, except as contemplated
herein, and the Servicer will not do anything that would materially
impair the rights of the Noteholders with respect to any Series Trust
Estate, except as contemplated herein.
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(iii) Books and Records. The Servicer (1) will (A)
maintain its books and records separate from the books and records of
any Obligor, (B) maintain bank accounts separate from those of any
Obligor and (C) conduct its business in an office separate from that
of any Obligor and (2) will not (X) take any action that would cause
the dissolution or liquidation of any Obligor, (Y) guarantee (directly
or indirectly), endorse or otherwise become contingently liable
(directly or indirectly) for the obligations of any Obligor (except as
expressly permitted hereunder) or (Z) institute against any Obligor,
or join any other person in instituting against any Obligor, any case,
proceeding or other action under any existing or future bankruptcy,
insolvency or similar laws.
ARTICLE III
PLEDGING THE TRUST ESTATE
Section 3.01. Series Trust Estates. In order to secure the
due and punctual payment of the principal of and interest on the Notes of the
related Series and all other Series Secured Obligations of the related Series
when and as the same shall become due and payable, whether as scheduled, by
declaration of acceleration, prepayment or otherwise, according to the terms of
this Master Agreement, the related Series Supplement and the related Notes, the
Obligors, pursuant to the related Series Supplement, shall pledge on the
related Series Trust Estate to the Trustee, all for the benefit of the Trustee
for the benefit of the Holders of the related Series and the other Series
Secured Parties.
Section 3.02. Preservation of Series Collateral. Subject
to the rights, powers and authorities granted to the Trustee and the related
Series Controlling Party herein, the Obligors shall take such action as is
necessary and proper with respect to the Series Trust Estate in order to
preserve and maintain such Series Trust Estate. The Obligors will do, execute,
acknowledge and deliver, or cause to be done, executed, acknowledged and
delivered, such instruments of transfer or take such other steps or actions as
may be necessary, or required by the Series Controlling Party, to perfect the
security interests granted hereunder in the Series Trust Estate, to ensure that
such security interests rank prior to all other Liens and to preserve the
priority of such security interests and the validity and enforceability
thereof. Upon any delivery of any portion of any Series Trust Estate, to the
Trustee the Obligors shall be obligated to execute such documents and perform
such actions as are necessary to create in the Trustee for the benefit of the
related Series Secured Parties a valid first Lien on, and valid and perfected
first priority security interest in, such Series Trust Estate so delivered,
free and clear of any other Lien, together with satisfactory assurances
thereof, and to pay any reasonable costs incurred by any of the Series Secured
Parties or otherwise in connection with such delivery.
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Section 3.03. Waiver of Stay or Extension Laws; Marshalling
of Assets. Each Obligor covenants, to the fullest extent permitted by
applicable law, that it will not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any appraisement,
valuation, stay, extension or redemption law wherever enacted, now or at any
time hereafter in force, in order to prevent or hinder the enforcement of this
Master Agreement, any Series Supplement or any part hereof or thereof, to the
fullest extent permitted by applicable law, for itself and all who may claim
under it, hereby waives the benefit of all such laws, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted. Each Obligor, for itself and all who may
claim under it, waives, to the fullest extent permitted by applicable law, all
right to have any Series Trust Estate marshalled upon any foreclosure or other
disposition thereof.
Section 3.04. Noninterference, Etc. No Obligor shall (i)
waive or alter any of its rights under any portion of any Series Trust Estate
(or any agreement or instrument relating thereto) without the prior written
consent of the Series Controlling Party; or (ii) take any action, or fail to
take any action, if such action or failure to take action will interfere with
the enforcement of any rights under the Series Related Documents.
Section 3.05. Obligor Changes. (a) Change in Name,
Structure, Etc. No Obligor shall change its name, identity or corporate
structure unless it shall have given the Trustee at least 30 days' prior
written notice thereof, shall have effected any necessary or appropriate
assignments or amendments thereto and filings of financing statements or
amendments thereto.
(b) Relocation of the Obligors. No Obligor shall change
its principal executive office unless it gives the Trustee at least 30 days'
prior written notice of any relocation of its principal executive office. If
any Obligor so relocates its principal executive office or principal place of
business, such Obligor shall give prior notice thereof to the Trustee and shall
effect whatever appropriate recordations and filings are necessary.
Section 3.06. Limited Recourse to Obligors. (a)
Notwithstanding anything to the contrary contained herein, the Trustee and each
Holder by such Holder's acceptance of a Note hereunder agree that the
obligations of the related Series Obligors hereunder, including, without
limitation, the obligations of the related Series Obligors in respect of the
Notes shall be payable solely from the related Series Trust Estate (including
any Crossover Amounts included in such Series Trust Estate), and that neither
the Trustee nor any Holder shall look to any other Property or assets of such
Obligors, or to the Property or assets of any other Obligor, including,
specifically but without limitation, the Series Trust Estate with respect to
any other Series. No recourse shall be had for the payment of any amount owing
in respect of any Obligors's obligations hereunder or for any payment
obligation or claim arising out of or based on this
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Agreement against any Affiliate, agent, stockholder, employee, officer,
director or incorporator of such Obligor.
(b) The Obligors' obligation to pay certain fees or
expenses under, or claims arising out of, this Master Agreement shall be
limited to moneys available to such Obligors from the related Series Trust
Estate in accordance with the payment priority set forth in the related Series
Supplement, and to the extent such funds are insufficient to pay such fees or
expenses, it shall not constitute a claim against the Obligors.
Section 3.07. Authorization of Actions to be Taken by the
Trustee. (a) The Trustee may take all actions it deems necessary or
appropriate in order to enforce or exercise its rights under each Series
Supplement in accordance with and subject to the provisions thereof. Subject
to the provisions thereof, the Trustee shall have power to institute and to
maintain suits and proceedings to prevent any impairment of the related Series
Trust Estate by any acts which may be unlawful or in violation of the related
Series Supplement or this Master Agreement, and suits and proceedings to
preserve or protect its interests and the interests of the Holders of the
related Notes in the related Series Trust Estate (including power to institute
and maintain suits or proceedings to restrain the enforcement of or compliance
with any legislative or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid if the enforcement of, or compliance
with, such enactment, rule or order would impair the security hereunder or be
prejudicial to the interests of such Holders or of the Trustee).
(b) The Trustee is authorized to receive any funds for
the benefit of the Holders distributed under the related Series Supplement and
to make further distributions of such funds to the Holders of the related Notes
according to the provisions of such Series Supplement.
Section 3.08. Termination of Security Interests. Upon the
payment in full of all Series Secured Obligations, the Trustee shall, at the
request of the related Series Obligors and with the written consent of the
Series Support Provider, if any, deliver such certificates, notices, and
instruments stating that all Series Secured Obligations have been paid in full,
and releasing the Trustee's Lien on the related Series Trust Estate with
respect to such Series Secured Obligations.
Section 3.09. Filing; Maintenance of Contract Files. (a)
On or prior to the initial Pledge Date with respect to a Series, the related
Series Obligors shall, and shall cause the Contributor to, file blanket UCC-1
financing statements with respect to the related Series Trust Estate (which, in
the case of any UCC-1 Financing Statement filed by such Series Obligors against
the Contributor, shall be assigned by such Series Obligors to the Trustee).
Notwithstanding the foregoing, it is expressly agreed that no such UCC-1
Financing Statement shall be filed with respect to any particular piece of
Equipment, except to the extent then required by the Contributor's Credit and
Collection Policy, or as may otherwise be required in the related Contribution
Agreement Supplement. On or prior to each Pledge Date the related Series
Obligors shall, and shall
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cause the Contributor to, make their respective internal records (including, in
the case of the Contractor, its electronic ledger) to reflect (x) the sale and
conveyance of the related Pledged Property from the Contributor to the related
Series Obligors and (y) the Pledge of the related Pledged Property to the
Trustee.
Section 3.10. Costs and Expenses. The related Series
Obligors agree to pay all reasonable costs and disbursements (and in the event
the related Series Obligors are unable to pay such costs and disbursements, the
Servicer shall pay such amounts) in connection with the perfection and the
maintenance of perfection and priority, as against all third parties, of the
Trustee's rights, title and interests in and to each Series Trust Estate (other
than the Equipment, except as otherwise expressly agreed to herein).
ARTICLE IV
NOTE FORMS
Section 4.01. Forms Generally. The Notes of each Series
shall be in substantially the form set forth in the related Series Supplement,
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Master Agreement or the related Series
Supplement, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Notes, as evidenced by their
execution of the Notes.
The Notes of any Series or Class may be issued in bearer form
("Bearer Notes") with attached interest coupons and any other applicable coupon
(collectively, the "Coupons") or in fully registered form (but which may be
uncertificated) ("Registered Notes") and shall, to the extent represented by
physical certificates, be substantially in the form of the exhibits with
respect thereto attached to the applicable Series Supplement.
The Trustee's certificate of authentication shall be in
substantially the form set forth in this Article.
The Notes shall be printed, lithographed or engraved on steel
engraved borders or may be produced in any other manner (provided that if any
Notes are to be listed on any securities exchange, then in any such manner as
may be permitted by the rules of any such securities exchange, all as
determined by the officers executing such Notes, as evidenced by their
execution of such Notes).
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Section 4.02. Form of Trustee's Certificate of
Authentication. This is one of the Notes designated herein referred to in the
within-mentioned Master Agreement and the within-mentioned Series Supplement
thereto.
The Chase Manhattan Bank,
as Trustee
By_________________________
Authorized Signatory
Section 4.03. Securities Legend. Each Unregistered Note
issued hereunder will contain the following legend limiting sales to "Qualified
Institutional Buyers" within the meaning of Rule 144A under the Securities Act:
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
HAS NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE
COMMISSION OR REGULATORY AUTHORITY OF ANY STATE. THIS NOTE HAS BEEN
OFFERED AND SOLD PRIVATELY. THE HOLDER HEREOF ACKNOWLEDGES THAT THESE
SECURITIES ARE "RESTRICTED SECURITIES" THAT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT AND AGREES FOR THE BENEFIT OF THE OBLIGORS AND
ITS AFFILIATES THAT THESE SECURITIES MAY NOT BE OFFERED, SOLD, PLEDGED
OR OTHERWISE TRANSFERRED EXCEPT (A) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A OR (B) PURSUANT TO AN EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE), IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION.
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ARTICLE V
THE NOTES
Section 5.01. Amount Limited; Issuable in Series. The
aggregate principal amount of Notes which may be authenticated and delivered
and Outstanding at any time under this Master Agreement is not limited;
provided that any Series Supplement may so limit the aggregate principal amount
of Notes of the related Series. The Notes shall be issued in one or more
Series, and may be issued in Classes and/or Tranches within a Series (and
Tranches within a Class).
No Series of Notes shall be issued under this Master Agreement
unless such Notes have been authorized pursuant to a Series Supplement, and all
conditions precedent to the issuance thereof, as specified in the related
Series Supplement, shall have been satisfied.
All Notes of each Series issued under this Master Agreement
shall be in all respects equally and ratably entitled to the benefits hereof
and secured by the related Series Trust Estate without preference, priority or
distinction on account of the actual time or times of authentication and
delivery, all in accordance with the terms and provisions of this Master
Agreement and the related Series Supplement.
Section 5.02. Execution, Authentication, Delivery and
Dating. The Notes shall be executed on behalf of the related Series Obligors
or the Obligors' Agent by any of its Authorized Officers. The signature of any
of these officers on the Notes may be manual or facsimile.
Notes bearing the manual or facsimile signatures of
individuals who were at the time of execution of such Notes the proper officers
of the Obligors' Agent shall bind the related Series Obligors, notwithstanding
that such individuals or any of them have ceased to hold such offices prior to
the authentication and delivery of such Notes.
At any time and from time to time after the execution and
delivery of this Master Agreement and the related Series Supplement, and upon
satisfaction of all the conditions set forth in the related Series Supplement,
the Obligors' Agent may deliver Notes of the related Series (including Notes of
any Class or Tranche within such Series) executed by the Obligors' Agent to the
Trustee or Authenticating Agent for authentication, together with an Obligors'
Order for the authentication and delivery of such Notes and an Officer's
Certificate that all conditions precedent for such issuance have been
satisfied, and the Trustee in accordance with the Obligors' Order shall
authenticate and make available for delivery such Notes.
Each Note shall be dated the date of its authentication.
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No Note shall be entitled to any benefit under this Master
Agreement or any Series Supplement or be valid or obligatory for any purpose
unless there appears on such Note a certificate of authentication substantially
in the form provided for herein executed by the Trustee or the Authenticating
Agent by manual signature, and such certificate upon any Note shall be
conclusive evidence, and the only evidence, that such Note has been duly
authenticated and delivered hereunder and is entitled to the benefits of this
Master Agreement and the related Series Supplement. Notwithstanding the
foregoing, if any Note shall have been authenticated and delivered hereunder
but never issued and sold by the Obligors' Agent, and the Obligors' Agent shall
deliver such Note to the Trustee or the Authenticating Agent for cancellation
as provided in Section 5.08 together with a written statement (which need not
comply with Section 1.02 and need not be accompanied by an Opinion of Counsel)
stating that such Note has never been issued and sold by the Obligors' Agent,
for all purposes of this Master Agreement such Note shall be deemed never to
have been authenticated and delivered hereunder and shall never be entitled to
the benefits of this Master Agreement.
Section 5.03. Temporary Notes. Pending the preparation of
definitive Notes of any Series (or of any Class or Tranche within a Series),
the Obligors' Agent may execute, and upon receipt of an Obligors' Order the
Trustee or the Authenticating Agent shall authenticate and deliver, temporary
Notes which are printed, lithographed, typewritten, reproduced or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Notes in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Notes may determine, as evidenced by their execution of such
Notes.
If temporary Notes of any Series (or of any Class or Tranche
within a Series) are issued, the Obligors' Agent will cause definitive Notes of
that Series (or Class or Tranche) to be prepared without unreasonable delay.
After the preparation of definitive Notes of such Series (or Class or Tranche),
such temporary Notes shall be exchangeable for definitive Notes of such Series
(or Class or Tranche) upon surrender of the temporary Notes at the office or
agency of the Obligors to be maintained as provided in Section 14.02. Upon
surrender for cancellation of any one or more temporary Notes the Obligors'
Agent shall execute, and the Trustee or the Authenticating Agent shall
authenticate and make available for delivery, in exchange therefor a like
principal amount of definitive Notes of the same Series (or Class or Tranche)
and tenor of authorized denominations. Until so exchanged, the temporary Notes
of any Series (or Class or Tranche) shall in all respects be entitled to the
same benefits under this Master Agreement and the related Series Supplement as
definitive Notes of such Series (or Class or Tranche).
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Section 5.04. Registration, Registration of Transfer and
Exchange, Transfer Restrictions. The Obligors' Agent shall cause to be kept a
register (the "Note Register") in which, subject to such reasonable regulations
as it may prescribe, the Obligors' Agent shall provide for the registration of
Notes and of transfers of the Notes. The Trustee is hereby initially appointed
"Note Registrar" for the purpose of registering Notes and transfers of the
Notes as herein provided. Upon any resignation of any Note Registrar, the
Obligors' Agent shall promptly appoint a successor or, if it elects not to make
such an appointment, assume the duties of the Note Registrar.
If a Person other than the Trustee is appointed by the
Obligors' Agent as Note Registrar, the Obligors' Agent will give the Trustee
prompt written notice of the appointment of such Note Registrar and of the
location, and any change in the location, of the Note Registrar, and the
Trustee shall have the right to inspect the Note Register at all reasonable
times and to obtain copies thereof, and the Trustee shall have the right to
rely upon a certificate executed on behalf of the Note Registrar by an
Executive Officer thereof as to the names and addresses of the Holders of the
Notes and the principal amounts and number of such Notes.
Upon surrender for registration of transfer of any Note at the
office or agency of the Obligors to be maintained as provided in Section 14.02,
the Obligors' Agent shall execute, and the Trustee or the Authenticating Agent
shall authenticate and make available for delivery, in the name of the
designated transferee or transferees, one or more new Notes of any authorized
denominations and of a like tenor and aggregate principal amount.
At the option of a Registered Noteholder, Registered Notes (of
the same Series and Class) may be exchanged for other Registered Notes of
authorized denominations upon surrender of the Registered Notes to be exchanged
at any such office or agency; Registered Notes, including Registered Notes
received in exchange for Bearer Notes, may not be exchanged for Bearer Notes.
At the option of the Holder of a Bearer Note, subject to applicable laws and
regulations, Bearer Notes may be exchanged for other Bearer Notes or Registered
Notes (of the same Series and Class) of authorized denominations upon surrender
of the Bearer Notes to be exchanged at an office or agency of the Transfer
Agent and Registrar located outside the United States. Each Bearer Note
surrendered pursuant to this Section shall have attached thereto all unmatured
Coupons; provided that any Bearer Note so surrendered after the close of
business on the Record Date preceding the relevant payment date after the
expected final payment date need not have attached the Coupon relating to such
payment date (in each case, as specified in the applicable Supplement).
Whenever any Notes are so surrendered for exchange, the Obligors' Agent shall
execute, and the Trustee or the Authenticating Agent shall authenticate and
make available for delivery, the Notes which the Holder making the exchange is
entitled to receive.
All Notes issued upon any registration of transfer or exchange
of Notes shall be the valid obligations of the related Series Obligors,
evidencing the same debt,
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and entitled to the same benefits under this Master Agreement and the related
Series Supplement, as the Notes surrendered upon such registration of transfer
or exchange.
Every Note presented or surrendered for registration of
transfer or for exchange shall (if so required by the Obligors' Agent or the
Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Obligors' Agent, the Trustee and the Note
Registrar duly executed by the Holder thereof or his attorney duly authorized
in writing with such signature guaranteed by a commercial bank or trust company
located, or having a correspondent located, in the City of New York or the city
in which the Corporate Trust Office is located, or by a member firm of a
national securities exchange, and such other documents as the Trustee may
require.
No service charge shall be made for any registration of
transfer or exchange of Notes, but the Obligors' Agent or the Trustee may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Notes, other than exchanges pursuant to Section 5.03 or 5.05 not
involving any transfer.
No Holder of an Unregistered Note shall transfer its Note,
unless (i) such transfer is made in accordance with Rule 144A of the Securities
Act or (ii) pursuant to an exemption from registration provided by Rule 144
under the Securities Act (if available) and the registration and qualification
requirements under applicable state securities laws.
Section 5.05. Mutilated, Destroyed, Lost and Stolen Notes.
If any mutilated Note (together, in the case of Bearer Notes, with all
unmatured Coupons (if any) appertaining thereto) is surrendered to the Trustee,
the Obligors' Agent shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Note of the same Series and Tranche, of like
tenor and principal amount and bearing a number not contemporaneously
outstanding. If there shall be delivered to the Obligors' Agent and the
Trustee and the related Series Support Provider, if any (unless an Support
Default shall have occurred and be continuing) (i) evidence to their
satisfaction of the destruction, loss or theft of any Note and (ii) such
security or indemnity as may be required by them to hold each of them and any
agent of any of them harmless, then, in the absence of notice to the Obligors'
Agent, the Trustee or the related Series Support Provider that such Note has
been acquired by a bona fide purchaser, the Obligors' Agent shall execute and
upon its request the Trustee shall authenticate and make available for delivery
(in the case of Bearer Notes, outside the United States), in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Note, a new Note (of the
same Series and Class) , in lieu of any such destroyed, lost or stolen Note, a
new Note of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
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In case any such mutilated, destroyed, lost or stolen Note has
become or is about to become due and payable, the Obligors' Agent in its
discretion may, instead of issuing a new Note, cause the related Series
Obligors to pay such Note.
Upon the issuance of any new Note under this Section, the
Obligors' Agent or the Trustee may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Note of any Series issued pursuant to this Section
in lieu of any destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the related Series Obligors, whether or
not the destroyed, lost or stolen Note shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Master Agreement and
the related Series Supplement equally and proportionately with any and all
other Notes of the same Series duly issued hereunder and under the related
Series Supplement.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 5.06. Final Distribution.
(a) The Servicer shall give the Trustee at least 30 days
prior notice of the Settlement Date on which the Noteholders of any Series or
Class may surrender their Notes for payment of the final distribution on and
cancellation of such Notes. Not later than the fifth day of the month in which
the final distribution in respect of such Series or Class is payable to
Noteholders, the Trustee shall provide notice to the Noteholders of such Series
or Class specifying (i) the date upon which final payment of such Series or
Class will be made upon presentation and surrender of Notes of such Series or
Class at the office or offices therein designated, (ii) the amount of any such
final payment and (iii) that the Record Date otherwise applicable to such
payment date is not applicable, payments being made only upon presentation and
surrender of such Notes at the office or offices therein specified (which, in
the case of Bearer Notes, shall be outside the United States). The Trustee
shall give such notice to the Transfer Agent and Registrar and the Paying Agent
at the time such notice is given to Noteholders.
(b) Notwithstanding a final distribution to the Noteholders of any
Series or Class, except as otherwise provided in this paragraph, all funds then
on deposit in the Master Facility Account and any Series Account allocated to
such Noteholders shall continue to be held in trust for the benefit of such
Noteholders and the Paying Agent or the Trustee shall pay such funds to such
Noteholders upon surrender of their Notes. In the event that all such
Noteholders shall not surrender their Notes for cancellation within six months
after the date specified in the notice from the Trustee described in paragraph
(a), the Trustee shall give a second notice to the remaining such Noteholders
to surrender
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their Notes for cancellation and receive the final distribution with respect
thereto (which surrender and payment, in the case of Bearer Notes, shall be
outside the United States). If within one year after the second notice all
such Notes shall not have been surrendered for cancellation, the Trustee may
take appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining such Noteholders concerning surrender of their Notes, and
the cost thereof shall be paid out of the funds in the Series Account held for
the benefit of Noteholders. The Trustee and the Paying Agent shall upon
written request pay to the related Obligors any moneys held by them for the
payment of principal or interest that remains unclaimed for two years. After
payment to the related Obligors, Noteholders entitled to the money must look to
the for payment as general creditors unless an applicable abandoned property
law designates another Person.
(c) Any notice required or permitted to be given to a Holder of
Registered Notes shall be given by first-class mail, postage prepaid, at the
address of such Holder as shown in the Note Register. No Notice shall be
required to be mailed to a Holder of Bearer Notes or Coupons but shall be given
as provided below. Any notice so mailed within the time prescribed in this
Master Agreement shall be conclusively presumed to have been duly given,
whether or not the Investor Noteholder receives such notice. In addition, (a)
if and so long as any Series or Class is listed on the Luxembourg Stock
Exchange and such Exchange shall so require, any notice to Investor Noteholders
shall be published in a newspaper of general circulation in Luxembourg within
the time period prescribed in this Agreement and (b) in the case of any Series
or Class with respect to which any Bearer Notes are outstanding, any notice
required or permitted to be given to Investor Noteholders of such Series or
Class shall be published in an Authorized Newspaper within the time period
prescribed in this Agreement.
Section 5.07. Persons Deemed Owners. Prior to due
presentment of a Note for registration of transfer, the related Series
Obligors, the Obligors' Agent, the related Series Support Provider, the Trustee
and any agent of any of them may treat (a) prior to due presentation of a
Registered Note for registration of transfer, treat the Person in whose name
any Registered Note is registered as the owner of such Registered Note for the
purpose of receiving distributions pursuant to the terms of the applicable
Supplement and for all other purposes whatsoever, and (b) treat the bearer of a
Bearer Note or Coupon as the owner of such Bearer Note or Coupon for the
purpose of receiving distributions pursuant to the terms of the applicable
Supplement and for all other purposes whatsoever; and none of the Obligors, the
Obligors' Agent, the related Series Support Provider, the Trustee nor any agent
of any of them, shall be affected by notice to the contrary.
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Section 5.08. Cancellation. All Notes surrendered for
payment, prepayment in whole, registration of transfer or exchange shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by the Trustee. The Obligors' Agent may at any
time deliver to the Trustee for cancellation any Notes previously authenticated
and delivered hereunder which the Obligors' Agent may have acquired in any
manner whatsoever, and may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Notes previously authenticated
hereunder which the Obligors' Agent has not issued and sold, and all Notes so
delivered shall be promptly cancelled by the Trustee. No Notes shall be
authenticated in lieu of or in exchange for any Notes cancelled as provided in
this Section, except as expressly permitted by this Master Agreement. All
cancelled Notes held by the Trustee shall be held or destroyed by the Trustee
in accordance with its standard retention or disposal policy as in effect at
the time.
Section 5.09. Book-Entry Notes. Unless otherwise specified
in the related Supplement for any Series or Class, the Notes of each Series,
upon original issuance, shall be issued in the form of one or more typewritten
Notes representing the Book-Entry Notes, to be delivered to the Clearing Agency
specified in the applicable Series Supplement, by, or on behalf of, the related
Series Obligors. The Notes shall initially be registered on the Note Register
in the name of the Clearing Agency or its nominee, and no Noteholder will
receive a definitive certificate representing such Noteholder's interest in the
Notes, except as provided in Section 5.11. Unless and until definitive, fully
registered Notes ("Definitive Notes") have been issued to the applicable
Noteholders pursuant to Section 5.11 or as otherwise specified in any such
Series Supplement:
(a) the provisions of this Section shall be in full force
and effect;
(b) the related Series Obligors, the Servicer and the
Trustee may deal with the Clearing Agency and the Clearing Agency Participants
for all purposes (including the making of distributions) as the authorized
representatives of the respective Noteholders;
(c) to the extent that the provisions of this Section
conflict with any other provisions of this Agreement, the provisions of this
Section shall control; and
(d) the rights of the respective Noteholders shall be
exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such Noteholders and the Clearing
Agency or the Clearing Agency Participants. Pursuant to the Depository
Agreement, unless and until Definitive Notes are issued pursuant to Section
5.11, the Clearing Agency will make book-entry transfers among the Clearing
Agency Participants and receive and transmit distributions of principal and
interest on the related Notes to such Clearing Agency Participants.
For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of, Noteholders
evidencing a specified
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percentage of the aggregate Outstanding Amount of Notes, such direction or
consent may be given by Noteholders (acting through the Clearing Agency and the
Clearing Agency Participants) owning Investor Notes evidencing the requisite
percentage of Outstanding Notes.
Section 5.10. Notices to Clearing Agency. Whenever any
notice or other communication is required to be given to Noteholders of any
Series or Class with respect to which Book-Entry Notes have been issued, unless
and until Definitive Notes shall have been issued to the related Noteholders,
the Trustee shall give all such notices and communications to the applicable
Clearing Agency.
Section 5.11. Definitive Notes. If Book-Entry Notes have
been issued with respect to any Series or Class and (a) the Obligors' Agent
advises the Trustee that the Clearing Agency is no longer willing or able to
discharge properly its responsibilities under the Depository Agreement with
respect to such Series or Class and the Trustee or the Obligors' Agent is
unable to locate a qualified successor or (b) the Obligors' Agent, at its
option, advises the Trustee that they elect to terminate the book-entry system
with respect to such Series or Class through the Clearing Agency, then upon
surrender to the Trustee of any such Notes by the Clearing Agency, accompanied
by registration instructions from the Clearing Agency for registration of
Definitive Notes, the Obligors' Agent shall execute and the Trustee shall
authenticate and the Transfer Agent and Registrar shall deliver such Definitive
Notes. Neither the Obligors' Agent nor the Trustee shall be liable for any
delay in delivery of such instructions and may conclusively rely on, and shall
be protected in relying on, such instructions. The Trustee shall recognize the
Holders of such Definitive Notes as Noteholders hereunder.
The holding of Bearer Notes shall be proved by the production
of such Bearer Notes or by a certificate, satisfactory to the Obligors' Agent,
executed by any bank, trust company or recognized securities dealer, wherever
situated, satisfactory to the Obligors' Agent. Each such certificate shall be
dated and shall state that on the date thereof a Bearer Note bearing a
specified serial number was deposited with or exhibited to such bank, trust
company or recognized securities dealer by the Person named in such
certificate. Any such certificate may be issued in respect of one or more
Bearer Notes specified therein. The holding by the Person named in any such
certificate of any Bearer Note specified therein shall be presumed to continue
for a period of one year from the date of such certificate unless at the time
of any determination of such holding (i) another certificate bearing a later
date issued in respect of the same Bearer Note shall be produced, (ii) the
Bearer Note specified in such certificate shall be produced by some other
Person or (iii) the Bearer Note specified in such certificate shall have ceased
to be outstanding. The appointment of any proxy shall be proved by having the
signature of the Person executing the proxy guaranteed by any bank, trust
company or recognized securities dealer satisfactory to the Trustee.
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ARTICLE VI
ADMINISTRATION AND SERVICING
OF THE TRUST ESTATE
Section 6.01. Retention of Servicer; Responsibilities of
Servicer. (a) The Obligors hereby appoint the Servicer, and the Servicer
hereby accepts such appointment, for the purpose of administering and servicing
the Trust Estate; provided, however, that the Servicer shall administer and
service the Trust Estate materially and only in conformance with the terms of
this Agreement and shall take no action to affect adversely the interests of
the Trustee or the Noteholders in the Trust Estate. In consideration of such
retention, the Obligors hereby agree to pay to the Servicer the Servicer Fee,
such Servicer Fee to be paid as provided in Section 7.02 and in each Series
Supplement and neither the Trustee nor any Noteholder shall have any
responsibility for the payment of such fee.
(b) The Servicer, for the benefit of the Trustee and the
Noteholders, shall be responsible for managing, servicing and administering the
Trust Estate, enforcing and making collections on the Contracts, any Insurance
Policies and any Related Security and enforcing any security interest in each
item of Equipment, each in accordance with the standards and procedures set
forth in this Master Agreement. The Servicer's responsibilities shall include
collecting and posting of all payments, responding to inquiries of Users,
investigating delinquencies, applying the Security Deposits, accounting for
collections and furnishing monthly and annual statements to the Trustee, with
respect to each Series Trust Estate and distributions to be made hereunder,
making Servicer Advances to the extent required by a Series Supplement,
providing appropriate Federal income tax information to the Trustee for use in
providing information to the Noteholders, collecting and remitting sales and
property taxes on behalf of taxing authorities and maintaining the perfected
and senior ownership and/or security interest of the Trustee and the
Noteholders in each Series Trust Estate.
Subject to the terms of Section 6.02 of this Agreement, the
Servicer shall have full power and authority, acting at its sole discretion, to
do any and all things in connection with such managing, servicing,
administration, enforcement and collection of the Contracts and the other
property comprising each Series Trust Estate that it may deem necessary or
desirable, including the prudent delegation of such responsibilities. Without
limiting the generality of the foregoing, the Servicer shall, and is hereby
authorized and empowered by the Obligors and the Trustee, subject to Section
6.02 hereof, to execute and deliver (on behalf of itself, the Noteholders, the
Trustee or any of them) any and all instruments of satisfaction or
cancellation, or of release or discharge and all other comparable instruments,
with respect to the Contracts and the other property comprising each Series
Trust Estate in accordance with (and to the extent permitted pursuant to)
Section 6.11. The Servicer may also, for itself and on behalf of the Obligors,
in the Servicer's sole discretion, waive any prepayment charge, late payment
charge or penalty, or any other Servicing Charges that may become due from
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any User in the ordinary course of servicing any Contract. The Trustee shall
execute and deliver any powers of attorney and other documents reasonably
necessary or appropriate to enable the Servicer to carry out its servicing and
administrative duties hereunder as may be prepared by the Servicer, at the
Servicer's expense, and delivered to the Trustee for execution and delivery.
The Trustee is not responsible for any legal insufficiencies in any such powers
of attorney or other documents.
(c) The Servicer shall conduct the management, servicing,
administration, collection or enforcement actions of or in connection with each
Series Trust Estate in the following manner:
(i) The Servicer may ▇▇▇ to enforce or collect
upon Contracts as agent for the Obligors and the Trustee. If the
Servicer elects to commence a legal proceeding to enforce a Contract,
the act of commencement shall be deemed to be an automatic assignment
of the Contract to the Servicer for purposes of collection only. If,
however, in any enforcement suit or legal proceeding, it is held that
the Servicer may not enforce a Contract on the ground that it is not a
real party in interest or a holder entitled to enforce the Contract,
then the related Obligor(s) and/or the Trustee shall, at the
Servicer's written request and upon receipt from the Servicer of
satisfactory indemnity, take such steps as the Servicer deems
necessary to enforce the Contract, including bringing suit in its name
or the names of the related Obligor(s) and/or the Trustee and/or the
related Noteholders;
(ii) The Servicer shall exercise any rights of
recourse against third parties that exist with respect to any Contract
in accordance with the Servicer's usual practice. In exercising
recourse rights, the Servicer is authorized on the Trustee's behalf to
reassign the Contract to the person against whom recourse exists to
the extent necessary, and at the price set forth in the document
creating the recourse. The Servicer will not reduce or diminish such
recourse rights, except to the extent that it exercises such rights;
(iii) The Servicer may grant to the User under any
Contract any rebate, refund or adjustment that the Servicer in good
faith believes is required because of the Prepayment in full of such
Contract; provided, however, that the Servicer will not permit any
rescission or cancellation of any Contract or take any action with
respect to any Contract which would materially impair the rights of
the Trustee in the Contract or the proceeds thereof;
(iv) In the event that the Servicer acquires title
to any item of Equipment in the enforcement of any Contract, the
Servicer shall use its best efforts to sell or otherwise dispose
promptly of such item of Equipment, consistent with the standard of
care set forth in Section 6.02 hereof; and
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(v) The Servicer may not allow an offset of the
amount of any Security Deposit against any Scheduled Payment or Booked
Residual under such Contract, except as expressly permitted in Section
6.14 hereof.
Section 6.02. Standard of Care. In managing, administering
and servicing each Series Trust Estate and enforcing and making collections on
the Contracts and any Related Security and Insurance Policies related to the
Contracts pursuant to this Master Agreement, the Servicer will exercise that
degree of skill and care consistent with that which the Servicer customarily
exercises with respect to similar contracts owned by it; provided, however,
that to the extent that the Trustee shall be acting as Servicer, the Trustee
shall not have any liability for breaching any standard of care in its
performance as Servicer hereunder to the extent the Trustee was not grossly
negligent or wilfully malfeasant. The Servicer shall comply with all
applicable Federal and State laws and regulations; shall maintain all State and
Federal licenses and franchises necessary for it to perform its servicing
responsibilities hereunder and thereunder and shall not materially impair the
rights of the Trustee or the Noteholders in any Contracts or payments
thereunder.
The Servicer shall comply with all applicable Requirements of
Law, the noncompliance with which would, individually or in the aggregate,
materially and adversely affect the ability of the Servicer to perform its
obligations under this Master Agreement, the related Series Supplements or the
related Series Related Document.
Section 6.03. Credit and Collection Policy. The Servicer
shall not amend or modify the provisions of the Credit and Collection Policy if
such amendment or modification would, in the reasonable good faith business
judgment of the Servicer, materially and adversely affect the interests of any
Noteholder, the Trustee, or any Series Support Provider, without first
obtaining the prior written consent of the Series Controlling Party of each
affected Series.
Section 6.04. Maintenance of Interest in the Trust Estate.
The Servicer shall, in accordance with customary servicing procedures and at
its own expense, use its best efforts to maintain perfection and priority of
the Trustee's interest in each Series Trust Estate (other than with respect to
the Equipment (unless otherwise required herein) and other than with respect to
the Pledged Property removed from the Trust Estate pursuant to Section 6.11,
6.12 or 6.15 hereof). In connection with enforcing a Charged-Off Contract, the
Servicer shall prepare, the related Obligor shall (and, to the extent:
necessary, shall cause the Contributor to) execute and deliver to the Servicer,
and the Servicer shall file any necessary UCC financing statements and/or
amendments naming the Trustee as secured party with respect to the related
Equipment.
Section 6.05. Servicing Compensation; Payment of Certain
Expenses by Servicer. (a) As compensation for its activities, the Servicer
shall be entitled to receive the Servicer Fee in accordance with Section 7.02
hereof and the Series Supplements. The monthly Servicer Fee shall be payable
to the Servicer, in arrears for each Collection
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Period, on the Settlement Date in respect of such Collection Period. The
Servicer Fees shall be payable to the Servicer solely to the extent amounts are
available for distribution pursuant to Section 7.02 hereof and the Series
Supplements; provided, that in accordance with such provisions, any such
Servicer Fees not paid when due as a result of there not being sufficient
available funds therefor shall be payable on any future Settlement Dates to the
extent amounts are then available for the payment thereof.
(b) The Servicer shall be required to pay all expenses
incurred by the Servicer in connection with its activities hereunder,
including, without limitation, fees and disbursements of the Independent
Accountants, taxes imposed on the Servicer (but excluding any sales taxes or
other taxes imposed on any User, any Broker, the Obligors, the Contributor, the
Trustee, any Noteholder, or any other Person), expenses incurred in connection
with distributions and reports to Noteholders and all other fees and expenses
not expressly stated hereunder to be for the account of the Obligors.
Section 6.06. Servicer's Certificate. Not later than the
time specified in the related Series Supplement, the Servicer shall deliver to
the Obligors' Agent and the Trustee a Servicer's Certificate containing the
information required by the related Series Supplement, with respect to the
related Series Trust Estate, Collection Period and Settlement Date.
Section 6.07. Annual Statement as to Compliance. The
Servicer will deliver to the Obligors' Agent and the Trustee, not later than 90
days after the end of each fiscal year, an Officer's Certificate signed by a
Servicing Officer, dated as of the last day of such fiscal year, stating that
(a) a review of the activities of the Servicer during the preceding 12-month
period and of the Servicer's performance under this Master Agreement has been
made under such Servicing Officer's supervision and (b) nothing has come to
such Servicing Officer's attention to indicate that an Event of Servicer
Termination (or an event which with the giving of notice (other than pursuant
to Section 9.01(iv)) or passage of time, or both, would constitute an Event of
Servicer Termination) hereunder has occurred and is continuing on such last day
of such fiscal year or, if an Event of Servicer Termination or such other event
has so occurred and is continuing, specifying each such Event of Servicer
Termination or such other event known to such Servicing Officer and the nature
and status thereof, and the steps, if any, necessary to remedy such Event of
Servicer Termination or such other event.
Section 6.08. Financial Statements and Independent
Accountant's Servicing Certificate Review. (a) The Servicer shall, not later
than 90 days after the end of each fiscal year, deliver to the Trustee, a copy
of the Servicer's (or, in the case of Advanta Business Services Corp., of
Advanta Leasing Holding Corp.'s) annual audited financial statements for such
fiscal year, audited by a firm of nationally recognized independent certified
public accountants (within the meaning of the Securities Act) (which, in the
case of Advanta Business Services Corp., shall be the Independent Accountant).
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(b) The Servicer shall, within 45 days after the end of
each of the first three calendar quarter of the Servicer's fiscal year, deliver
to the Obligors' Agent and the Trustee, quarterly, unaudited financial
statements of the Servicer (or, in the case of Advanta Business Services Corp.,
of Advanta Leasing Holding Corp.) for such calendar quarter.
(c) The Servicer shall inform the Obligors' Agent and the
Trustee in writing of the Servicer's fiscal year and any change in such fiscal
year.
(d) On or before March 31 of each calendar year,
beginning with March 31, 1998, the Servicer shall cause a firm of nationally
recognized independent public accountants (who may also render other services
to the Servicer) to furnish a report (addressed to the Trustee) to the Trustee
and the Servicer to the effect that they have, for the one-year period ending
on the preceding March 31, applied certain procedures agreed upon with the
Servicer and the Trustee to compare the mathematical calculations of certain
amounts set forth in the Servicer's Certificates delivered pursuant to Section
6.06 hereof during the period covered by such report with the Servicer's
computer reports which were the source of such amounts and that on the basis of
such agreed-upon procedures and comparison, such accountants are of the opinion
that such amounts are in agreement, except for such exceptions as they believe
to be immaterial and such other exceptions as shall be set forth in such
statement.
Section 6.09. Access to Certain Documentation and
Information Regarding the Pledged Property. (a) The Servicer and the Obligors
shall each provide the Trustee, and/or any of the Trustee's duly authorized
representatives, attorneys or accountants access to any and all documentation
regarding each Series Trust Estate (including the List of Contracts) that the
Servicer or the Obligors, as the case may be, may possess, such access being
afforded without charge but only upon reasonable request and during normal
business hours, so as not to interfere unreasonably with the Servicer's or any
Obligor's, as the case may be, normal operations or customer or employee
relations, at such offices of the Servicer or such Obligor, as the case may be,
designated by the Servicer or an Obligor, respectively.
(b) The Servicer shall at all times during the term
hereof either (x) keep available in physical form for inspection by the
Trustee, or any of the Trustee's duly authorized representatives, attorneys or
accountants a list of all Contracts then held as a part of each Series Trust
Estate, together with a reconciliation of such list to the List of Contracts
and each of the Servicer's Certificates, indicating the cumulative removals and
additions of Contracts from such Trust Contracts or (y) maintain electronic
facilities which allow such a list of leases and reconciliation to be
generated.
(c) The Servicer will maintain accounts and records as to
each respective Contract serviced by the Servicer that are accurate and
sufficiently detailed so as to permit (i) the reader thereof to know as of the
most recent Calculation Date the status of such Contract, including payments
and recoveries made and payments owing
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(and the nature of each), and (ii) reconciliation between payments or
recoveries on (or with respect to) each Contract and the amounts from time to
time deposited in the Master Facility Account in respect of such Contract.
(d) The Servicer will maintain its computerized accounts
and records so that (i) from and after the time of Pledge hereunder of each
Contract to the Trustee, the Servicer's accounts and records (including any
back-up computer archives) that refer to any Contract indicate clearly that the
Contract is part of a separate and distinct Series Trust Estate and (ii) the
information relating to such Contracts can be recreated in the event of the
destruction of the originals. Indication of a Contract being part of a Series
Trust Estate will be deleted from or modified on the Servicer's accounts and
records when, and only when, a Release Event has occurred with respect to such
Contract.
(e) Nothing in this Section 6.09 shall derogate from the
obligation of the Servicer to observe any applicable law prohibiting disclosure
of information regarding the Brokers or Users, and the failure, as a result of
such obligation of the Servicer, to provide access as provided in this Section
6.09 shall not constitute a breach of this Section 6.09.
(f) No person entitled to receive copies of such reports
or tapes shall disclose the information therein to any Person, except such
disclosures as are required upon appointment of a successor Servicer or by law
and except that the Servicer consents to the disclosure of any material
nonpublic information with respect to it (i) to any other such party, (ii) to
any prospective or actual assignee or participant of any of them, (iii) by the
Trustee to any Rating Agency, commercial paper dealer or Support Provider, or
any entity organized for the purpose of purchasing, or making loans secured by,
financial assets for which any Noteholders' Agent provides managerial services
or acts as the administrative agent and (iv) to any officers, directors,
employees, outside accountants and attorneys of any of the foregoing.
Section 6.10. Other Necessary Data. The Servicer shall, on
request of the Trustee, furnish the Trustee such data necessary for the Trustee
to discharge its obligations with respect to each Series Trust Estate and the
related Notes as can be generated by the Servicer's existing data processing
systems; provided, that to the extent that the Servicer's existing data
processing systems cannot generate such data, the Servicer will cooperate with
the Trustee in finding a method of furnishing such data. The Servicer will
cooperate in generating additional data reasonably requested by the Trustee.
Section 6.11. Release of Contracts. (a) Upon (i) payment
in full of any Contract by the User or by any Person on behalf of such User,
(ii) any removal of a Contract by the Contributor pursuant to Section 6.15
hereof, (iii) the Servicer's reasonable determination that all Residual
Receipts with respect to any Charged-Off Contract have been received, (iv) any
removal of a Contract by the Servicer pursuant to Section 6 12(b) hereof, or
(v) any removal of a Contract by the Obligors pursuant to
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Section 6.12(a) (the events described in clauses (i) through (v) being "Release
Events"), the Servicer will so notify the Trustee of the occurrence thereof on
the next succeeding Determination Date by certification to the Trustee from a
Servicing Officer, which certification shall include a statement to the effect
that all amounts received in connection with such Release Event have been
remitted to the Master Facility Account and may request delivery of the
Contract to the Servicer or other Person designated by the Servicer.
Upon the Trustee's receipt of such certification and request
(subject to its confirmation of the receipt of the required funds in the Master
Facility Account), such Contract and the related Pledged Property appurtenant
thereto shall be deemed to be released from the related Series Trust Estate.
Upon release of such Contract, the Servicer is authorized to execute an
instrument in satisfaction of such Contract and to do such other acts and
execute such other documents as it deems necessary to discharge the User
thereunder and release the related Equipment (v) to the related User in the
event of a Release Event described in clause (i) of the immediately preceding
paragraph, (w) to the Contributor in the event of a Release Event described in
clause (ii) of the immediately preceding paragraph, (x) to the Person, if any,
purchasing the related Equipment in the event of a Release Event described in
clause (iii) of the immediately preceding paragraph, or, if no person is
purchasing such Equipment, to the related Obligor, (y) to itself in the event
of a Release Event described in clause (iv) of the immediately preceding
paragraph, and (z) to the related Obligor in the event of a Release Event
described in clause (v) of the immediately preceding paragraph.
(b) With respect to all Contracts so released from the
Trust Estate, the Trustee shall assign, without recourse, representation or
warranty, to the appropriate Person as directed by the Servicer, all of the
Trustee's right, title and interest in and to such Contract and Pledged
Property appurtenant thereto, such assignment being an assignment outright and
not for security. Such Person will thereupon own such Contract and related
Pledged Property appurtenant thereto free of any further obligation to the
Trustee or the Noteholders with respect thereto. The Trustee shall also
execute and deliver all such other instruments or documents as shall be
reasonably requested by any such Person to be required or appropriate to effect
a valid transfer of title to a Contract and the Pledged Property appurtenant
thereto. Any instrument or documents required to be executed by the Trustee
pursuant to this Section 6.11(b) shall be prepared by the Servicer (or such
Person) at the Servicer's (or such Person's) expense; provided, that if the
Servicer is not Advanta Business Services Corp. or any of its Affiliates, then
any such expenses to be paid by the Servicer pursuant to this Section 6.11(b)
shall be paid by the Obligors.
Section 6.12. Removal Related to Upgrades or Trade-Ins,
Delinquent Contracts and Ineligibility. (a) In the event that a User requests
an upgrade or trade-in of Equipment then the related Obligor may remove the
Equipment and the related Contract from the related Series Trust Estate during
any Collection Period by remitting
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to the Trustee the applicable Prepayment Amount in the Master Facility Account
on or prior to the Determination Date relating to such Collection Period.
(b) The Servicer may during any Collection Period remove
any Delinquent Contract and the Related Security from the related Series Trust
Estate with respect to which Contract the User is in default or such default
is, in the Servicer's judgment, imminent, by deposit by the Servicer of the
applicable Prepayment Amount in the Master Facility Account on or prior to the
Determination Date relating to such Collection Period.
Section 6.13. Notification to Noteholders of Defaults and
Events of Default. The Servicer shall promptly notify the Trustee of any
Default or any Event of Default upon the receipt of actual knowledge thereof by
a Servicing Officer, and the Trustee shall promptly thereupon give written
notice thereof to each of the Control Parties and each of the Series Support
Providers.
Section 6.14. Security Deposits. The Servicer acknowledges
that the Security Deposits are held by the Contributor on behalf of the Users
and the Trustee. In the event that (i) any User requests that a Security
Deposit be applied as an offset against such User's payment obligations or
Booked Residual under a Contract or (ii) any Contract becomes a Charged-Off
Contract, the Servicer shall deliver to the Contributor written demand that the
Contributor remit to the Servicer, on the next Business Day, out of the
applicable User's Security Deposit an amount (the "Offset Amount") equal to the
lesser of (a) the amount of such Security Deposit and (b) the amount of all
unpaid and remaining Scheduled Payments and Booked Residuals as payment in
respect of, first, any unpaid Scheduled Payments under the related Contract,
and second, any unpaid Booked Residual under the related Contract. The Servicer
shall deposit any Offset Amount so delivered to it into the Master Facility
Account within two Business Days after its receipt thereof.
The Servicer shall notify the Contributor in writing, of any
demand it receives from a User for refund of such User's Security Deposit at
the end of the term of the related Contract.
In no event shall the Trustee, the Obligors, or any Noteholder
be liable to any User with respect to the Security Deposits. The Servicer
shall indemnify and hold harmless the Trustee and the Noteholders for any loss,
cost and expense (including legal fees and expenses incurred by such parties in
connection with the prosecution of claims made in connection therewith)
suffered as a result of the Servicer's misappropriation or misapplication of
any Security Deposit. This right of indemnification shall survive the
termination of this Agreement.
Section 6.15. Removal of Nonconforming Pledged Property.
Upon discovery by an Obligor, the Trustee or the Servicer of a breach of any of
the representations or warranties of the Contributor set forth in the related
Contribution
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Agreement Supplement with respect to any Contract, the related Equipment or the
related Contract File, as the case may be, the party discovering such breach
shall give prompt written notice to the other parties. Except as specifically
provided herein, the Trustee has no obligation to review or monitor the Pledged
Property for compliance with such representations and warranties. As of the
last day of the calendar month in which such breach was discovered or, if
later, the last day of the calendar month in which the Servicer received the
notice thereof (or, at the Servicer's and such Obligor's election, any earlier
date), the Servicer, unless such breach shall have been waived or cured in all
material respects prior to such time, shall cause the Contributor to remove
such Contract and the related Pledged Property from the related Series Trust
Estate. In consideration for the removal of such Pledged Property, the
Contributor shall, no later than the Determination Date prior to the Settlement
Date next following such date, pay the Prepayment Amount to the Servicer for
deposit into the Master Facility Account. Without limiting the foregoing in
any way, in the event of a breach of any representation or warranty of the
Contributor contained in any Contribution Agreement Supplement that materially
and adversely affects any Contract or the related Contract File, unless the
breach shall have been cured on or before the last day of the calendar month in
which such breach was discovered or, if later, the last day of the calendar
month in which the Servicer received the notice thereof, the Servicer shall
enforce the obligation of the Contributor under the Contribution Agreement to
repurchase such Contract.
ARTICLE VII
ACCOUNTS AND ALLOCATIONS
Section 7.01. Establishment of the Master Facility Account;
Establishment of the Advance Payment Account. (a) On or prior to the Closing
Date, the Servicer, for the benefit of the Trustee, shall establish and
maintain or cause to be established and maintained in the name of the Trustee,
a segregated trust account in the Trustee's corporate trust department,
identified as the "Master Facility Account for Advanta Business Receivables
Master Facility, in trust for the registered Holders of Notes" (the "Master
Facility Account"). The Trustee shall make or permit withdrawals from the
Master Facility Account only as provided in this Master Agreement. The Trustee
shall possess all right, title and interest in and to all funds from time to
time on deposit in the Master Facility Account and in all proceeds thereof
(other than any Investment Earnings on amounts from time to time on deposit
therein).
(b) The Servicer, each Obligor, and the Contributor shall
deposit to the Master Facility Account any Collections received by any of them
as soon as practicable (and, in any event, within two Business Days) after
their respective receipt thereof.
(c) The Trustee, for the benefit of the Noteholders,
shall establish and maintain an account (the "Advance Payment Account") as a
non-interest bearing, segregated trust account in the Trustee's corporate trust
department, identified as the
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"Advance Payment Account for the Advanta Business Receivables Master Facility,
in trust for the registered Holders of the Notes." The Trustee shall make or
permit withdrawals from the Advance Payment Account only as provided in this
Master Agreement. The Trustee shall possess all right, title and interest in
and to all funds from time to time on deposit in the Advance Payment Account
and in all proceeds thereof (other than any Investment Earnings on amounts from
time to time on deposit therein).
(d) All Advance Payments received by the Servicer, the
Trustee, any Obligor, or the Contributor shall be deposited to the Advance
Payment Account in the same manner as Collections are deposited to the Master
Facility Account.
(e) Notwithstanding the foregoing, the Trustee and/or the
Servicer may deduct from amounts otherwise specified for deposit to the Master
Facility Account or the Advance Payment Account, as applicable, any amounts
previously deposited by the Trustee or the Servicer into the Master Facility
Account or the Advance Payment Account, as the case may be, but which are (i)
subsequently uncollectible as a result of dishonor of the instrument of payment
for or on behalf of the User or (ii) later determined to have resulted from
mistaken deposits.
(f) The Master Facility Account and the Advance Payment
Account shall each be under the sole dominion and control of the Trustee for
the benefit of the related Series Secured Parties; provided, however, that the
Trustee may rely on the information and instructions provided by the Servicer
in determining the amount of any withdrawals or payments to be made from either
such account for the purposes of carrying out the Trustee's or the Servicer's
duties hereunder or under any Series Supplement. Neither the Trustee nor the
Servicer shall have any right of setoff or banker's lien against, and no right
to otherwise deduct from, any funds held in the Master Facility Account or the
Advance Payment Account for any amount owed to it by the Servicer, the Trustee,
or any Noteholder.
Section 7.02. Collections and Allocations. (a) On each
Settlement Date, the Trustee shall transfer to the related Series Accounts from
the Master Facility Account the amounts described in the Servicer's
Certificates relating to such Settlement Date, for further application as set
forth in such Servicer's Certificates.
Section 7.03. Investment of Funds in the Master Facility
Account and the Advance Payment Account. The Trustee, at the Obligor's Agent's
written instruction, shall or, if the Obligor's Agent fails to so give such
instruction, may, at the Trustee's sole discretion, invest the amounts from
time to time on deposit in the Master Facility Account and the Advance Payment
Account in Eligible Investments. Any funds in the Advance Payment Account
which are not so invested must be insured by the Federal Deposit Insurance
Corporation to the limits established by such corporation.
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ARTICLE VIII
THE SERVICER AND THE OBLIGORS
Section 8.01. Liability of Servicer; Indemnities. (a) The
Servicer shall be liable in accordance herewith only to the extent of the
obligations specifically undertaken by the Servicer herein and in the Series
Supplements.
(b) Without in any way limiting the foregoing, the
Servicer shall indemnify and hold harmless the Trustee, the Obligors, the
Noteholders, any Series Support Provider and any permitted assignee of any of
the foregoing (each an "Indemnified Party" and collectively, the "Indemnified
Parties") from and against any claims, expenses, losses or liabilities
(including, without limitation, attorneys' fees and court costs) suffered or
incurred by any Indemnified Party (collectively, "Indemnified Amounts") arising
out of or resulting in connection with (i) any breach by the Servicer of its
representations and warranties or of its obligations under this Master
Agreement or under any Series Supplement or (ii) from the use, repossession or
operation of the Equipment by the Servicer or any of its Affiliates; provided,
however, that the foregoing indemnity described in the immediately preceding
clause (ii) shall not include any Indemnified Amounts to the extent resulting
from willful misconduct or gross negligence of such Indemnified Party in the
performance of any of his, her or its obligations and duties. Indemnification
pursuant to this Section shall not be payable from any Series Trust Estate.
(c) The Servicer shall pay any amounts owing pursuant to
Section 8.01(b) hereof directly to the applicable Indemnified Parties entitled
to the receipt thereof, and such amounts shall not be deposited in the Master
Facility Account, the Advance Payment Account or the Series Accounts. Any
request by any Indemnified Party for indemnity pursuant to this Section 8.01
shall be made in writing delivered to the Servicer and the Trustee describing
in reasonable detail the amount thereof and the circumstances giving rise
thereto. The Servicer shall pay any such Indemnified Amounts within 30 days
after its receipt of any such request therefor, it being understood and agreed,
however, that payment of such amount shall not constitute a waiver of the
Servicer's right to contest the basis for such indemnity so long as the
Servicer provides written notice to the applicable Indemnified Party at the
time of the Servicer's payment of the respective Indemnified Amounts, which
written notice shall state the basis, in reasonable detail, for the Servicer's
dispute of the requested Indemnified Amount.
(d) Indemnification under this Section 8.01 shall
include, without limitation, reasonable fees and expenses of counsel and
expenses of litigation reasonably incurred. If the Servicer has made any
indemnity payments to any of the Indemnified Parties pursuant to this Section
8.01 and such party thereafter collects any of such amounts from others, such
party will promptly repay such amounts collected to the Servicer, without
interest.
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(e) Notwithstanding anything contained herein to the
contrary, if and to the extent that the Servicer is the Trustee or any
successor Servicer appointed by the Trustee then such Servicer shall only be
responsible pursuant to this Section 8.01 for any such amounts suffered or
incurred by any such indemnified party hereunder as a result of the Trustee's
or such other successor Servicer's gross negligence or willful misconduct.
(f) The agreements contained in this Section 8.01 shall
survive the Final Date of the last outstanding Series and the termination of
this Master Agreement and any applicable Series Supplement.
Section 8.02. Merger, Consolidation, or Assumption of the
Obligations of Servicer. Any corporation (i) into which the Servicer may be
merged or consolidated, (ii) resulting from any merger or consolidation to
which the Servicer shall be a party or (iii) succeeding to the business of the
Servicer, shall be the successor to the Servicer hereunder without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding, and such
corporation in any of the foregoing cases shall execute an agreement of
assumption, in a form reasonably satisfactory to the Trustee, agreeing to
perform every obligation of the Servicer hereunder and under each Series
Supplement. Any corporation succeeding to the business of the Servicer by
merger, consolidation or otherwise shall be a corporation organized and
existing under the laws of the United States or any State and have a tangible
net worth of at least $20,000,000. The Servicer shall provide prompt written
notice of the effectiveness of any such event to the Obligors' Agent and the
Trustee.
Section 8.03. Limitation on Liability of Servicer and
Others. No directors, officers, employees or agents of the Servicer shall be
under any liability to the Trustee, the Obligors or any of the Noteholders,
except as provided in this Master Agreement, for any action taken or for
refraining from the taking of any action pursuant to this Master Agreement or
for errors in judgment. The Servicer and any director or officer or employee
or agent of the Servicer may rely in good faith on any document of any kind
prima facie properly executed and submitted by any Person respecting any
matters arising hereunder. Except as provided herein, the Servicer shall not
be under any obligation to appear in, prosecute or defend any legal action that
is not incidental to its duties to service each Series Trust Estate in
accordance with this Master Agreement and each Series Supplement and that in
its opinion may involve it in any expense or liability; provided, however, that
the Servicer may take any such action that is reasonable and that may be
necessary or desirable in respect of this Master Agreement and each Series
Supplement and the rights and duties of the parties hereto and thereto and the
interests of the Trustee hereunder and thereunder. In the event the Servicer
takes such action, the reasonably incurred legal expenses and costs of such
action and any liabilities resulting therefrom shall be expenses, costs and
liabilities of the related Series Trust Estate, and the Servicer shall be
entitled to be reimbursed therefor in accordance with the terms hereof.
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Section 8.04. Servicer Not to Resign. Subject to the
provisions of Section 8.02 hereof, the Servicer shall not resign from the
obligations and duties hereby imposed on it as Servicer except upon
determination that the performance of its duties hereunder is no longer
permissible under applicable law. No such resignation shall become effective
until a successor Servicer shall have assumed the responsibilities and
obligations of the Servicer in accordance with Section 9.02 hereof.
Section 8.05. Reserved.
Section 8.06. Indemnities of the Obligors. Without limiting
any other rights which any of the Indemnified Parties may have hereunder, under
any Series Supplement or under applicable law, each Obligor hereby agrees to
indemnify each Indemnified Party from and against any and all Indemnified
Amounts arising out of (i) reliance on any representation or warranty or
statement of such Obligor made or deemed made by such Obligor under or in
connection with this Master Agreement or in any of the other Series Related
Documents to which such Person is a party or in any certificate or report
delivered in connection with any of the foregoing which shall have been
incorrect in any material respect when made;
(ii) the failure by such Obligor to comply with
this Agreement or any of the other Series Related Documents to which
any such Person is a party, or the failure by such Obligor or the
Contributor, to comply with any applicable law, rule or regulation
with respect to any Contract, or the nonconformity of any Contract
with any such applicable law, rule or regulation;
(iii) the failure to vest in the Trustee the
property pledged by such Obligor with respect to the related Series
Trust Estate, free and clear of any Lien;
(iv) the failure of such Obligor to pay when due
any taxes, including without limitation, sales, excise or personal
property taxes payable in connection with any of the Contracts or any
of the Equipment, to the extent required by Section 14.10 hereof.
(a) Any request by any Indemnified Party for indemnity
pursuant to this Section 8.06 shall be made in writing delivered to the
Obligors' Agent and the Trustee describing in reasonable detail the amount
thereof and the circumstances giving rise thereto. The Obligors' Agent on
behalf of the related Obligor(s) shall pay any such Indemnified Amounts within
30 days after its receipt of any such request therefor; it being understood and
agreed, however, that payment of such amount shall not constitute a waiver of
the Obligors' Agent right to contest the basis for such indemnity so long as
the Obligors' Agent provides written notice to the applicable Indemnified Party
at the time of the Obligors' Agent payment of the respective Indemnified
Amounts, which written notice shall state the basis, in reasonable detail, for
the Obligors' Agent's dispute of the requested Indemnified Amount.
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(b) The agreement contained in this Section 9.06 shall
survive the Final Date of the last outstanding Series and the termination of
this Master Agreement and any applicable Series Supplement.
Section 8.07. Limitation on Liability of the Obligors. The
directors, officers, employees or agents of any Obligor shall not be under any
liability to the Trustee, the Noteholders, the Contributor, the Servicer, any
Series Support Party or any other Person hereunder or pursuant to any document
delivered hereunder, it being expressly understood that all such liability is
expressly waived and released as a condition of, and as consideration for, the
Obligor's execution and delivery of this Agreement and the issuance of the
Notes. The Obligors may rely in good faith on any document of any kind prima
facie properly executed and submitted by any other Person respecting any
matters arising hereunder.
ARTICLE IX
SERVICER TERMINATION
Section 9.01. Events of Servicer Termination. (a) If any
of the following events (each an "Event of Servicer Termination") shall occur
and be continuing:
(i) any failure by the Servicer to make any payment, transfer
or deposit, or, if applicable, to give instructions or notice to the
Trustee to make such payment, transfer or deposit, relating to the
payment of the interest or principal balance of any Note, in either
case, on or before the fifth calendar day following the date such
payment, transfer or deposit or such instruction or notice is required
to be made or given, as the case may be, under the terms of this
Master Agreement or any applicable Series Supplement; or
(ii) the Servicer shall fail to perform or observe any other
term, covenant or agreement hereunder or in any Series Related
Document (other than as described in clause (i) above), with the
result that the interests of the Trustee, the Noteholders or any
Series Support Provider have been materially and adversely affected,
and such failure shall remain unremedied for 30 calendar days after
the receipt by the Servicer of written notice of such failure from the
Trustee;
(iii) any representation, warranty, certification or
statement made by the Servicer in this Master Agreement, in any Series
Related Document or in any other document delivered pursuant hereto or
thereto shall prove to have been incorrect in any material respect
when made (or deemed made), with the result that the interests of the
Trustee, the Noteholders or any Series Support Provider have been
materially and adversely affected, and such situation is not remedied
within 30 calendar days after receipt by the Servicer of written
notice of such situation from the Trustee;
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(iv) an Insolvency Event shall occur with respect to the
Servicer;
then, and in each and every case, so long as an Event of Servicer Termination
shall be continuing, the Trustee may, and, at the direction of the Majority
Control Parties, shall, by notice (the "Servicer Termination Notice") then
given in writing to the Servicer, terminate all, but not less than all, of the
rights and obligations of the Servicer under this Master Agreement and each
Series Related Document.
(b) On and after the time the Servicer receives a
Servicer Termination Notice pursuant to this Section 9.01, all authority and
power of the Servicer under this Master Agreement and each Series Related
Document, whether with respect to the Notes or each Series Trust Estate or
otherwise, shall pass to and be vested in the successor Servicer appointed
pursuant to Section 9.02 hereof and, without limitation, such successor
Servicer is hereby authorized and empowered to execute and deliver, on behalf
of the Servicer, as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary
or appropriate to effect the purposes of such Servicer Termination Notice,
whether to complete the transfer of each Series Trust Estate and related
documents or otherwise.
The Servicer agrees to cooperate with the Trustee and the
successor Servicer in effecting the termination of the responsibilities and
rights of the Servicer hereunder, including, without limitation, the transfer
to the successor Servicer for administration by it of all cash amounts that
shall at the time be held by the Servicer for deposit, or have been deposited
by the Servicer, in the Advance Payment Account or the Master Facility Account
or thereafter received with respect to the related Series Trust Estate. To
assist the successor Servicer in enforcing all rights with respect to any
Related Security or under Broker Agreements and Insurance Policies to the
extent that they relate to the Contracts, the Servicer, at its own expense,
shall transfer its electronic records relating to such Contracts to the
successor Servicer in such electronic form as the successor Servicer may
reasonably request and shall transfer the related Contract Files and all other
records, correspondence and documents relating to the Contracts that it may
possess to the successor Servicer in the manner and at such times as the
successor Servicer shall reasonably request. In addition to any other amounts
that are then payable to the Servicer under this Master Agreement or any Series
Related Document, the Servicer shall be entitled to receive reimbursement for
any unreimbursed Servicer Advances made during the period prior to the delivery
of a Servicer Termination Notice pursuant to this Section 9.01.
Section 9.02. Trustee to Act; Appointment of Successor. On
and after the time the Servicer receives a Servicer Termination Notice pursuant
to Section 9.01, the Trustee shall without further action be the successor in
all respects to the terminated Servicer in its capacity as Servicer under this
Master Agreement and each Series Related Document and the transactions set
forth or provided for herein and shall be subject to all the responsibilities,
duties and liabilities relating thereto placed on the Servicer by the terms and
provisions hereof; provided, however, that (a) the Trustee shall not assume
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any obligations of the Contributor pursuant to the Contribution Agreement, (b)
the Trustee shall be permitted in its sole discretion, but shall have no
obligation, to make any Servicer Advances and (c) the Trustee shall not be
liable for any acts or omissions of the terminated Servicer or for any breach
by either the terminated Servicer or the Contributor of any of their respective
representations and warranties contained herein, in the Contribution Agreement,
in any other Series Related Document or in any related document or agreement.
As compensation for acting as Servicer hereunder, the Trustee shall be entitled
to the payment of the Servicer Fee and other compensation (whether payable out
of the Master Facility Account or otherwise) as the terminated Servicer would
have been entitled to hereunder if no such Servicer Termination Notice had been
given.
Notwithstanding the foregoing, the Trustee may or, upon the
direction of the Majority Control Parties, shall appoint any servicing entity
acceptable to or designated by the Majority Control Parties to act as the
successor to the Servicer hereunder and to assume (prospectively) all
responsibilities, duties or liabilities of the Servicer hereunder, provided
that any such servicing entity has a net worth of, or is a member of a
consolidated group of entities which has a net worth of, not less than
$20,000,000 and whose regular business includes the servicing of receivables of
a similar nature to the Contracts. In connection with such appointment and
assumption, the Trustee may make such arrangements for the payment of a
Servicer Fee to such successor Servicer in such an amount as the Trustee and
such successor Servicer shall agree; provided, however, that except as set
forth in the immediately succeeding paragraph no such agreed upon Servicer Fee
shall be in excess of the Servicer Fee then being received by the Servicer; and
provided, further, that in no event shall the Trustee be liable to any
successor Servicer for the Servicer Fee or any additional amounts payable to
such successor Servicer, either pursuant to this Master Agreement, any Series
Related Document or otherwise. The Trustee and such successor Servicer shall
take such action, consistent with this Master Agreement, as shall be necessary
to effectuate any such succession.
Notwithstanding the foregoing, if the Trustee is not legally
permitted to act as Servicer under any applicable law and the Trustee is unable
to engage a successor Servicer willing to act as Servicer for a fee equal to or
less than the Servicer Fee then being received by the Servicer then the Trustee
may solicit bids from not less than three entities currently engaged in
businesses similar to that of Advanta Business Services Corp. (at the time of
the origination of the Contracts) or providing servicing services similar to
that of the Servicer to businesses currently engaged in businesses similar to
that of Advanta Business Services Corp. (at the time of the origination of the
Contracts) which, in either case, are qualified to act as successor Servicer
pursuant to this Section 9.02 and appoint the qualified entity submitting the
proposal to act as successor Servicer for the lowest fee, even if such fee
exceeds the Servicer Fee as calculated by reference to the Original Servicer
Fee Rate (such higher fee being an "Increased Servicer Fee" and the difference
between such Increased Servicer Fee and the Servicer Fee as would have been due
in respect of any period if such fee were to be calculated by reference to the
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Original Servicer Fee being the "Increased Servicer Fee Differential"). Any
Increased Servicer Fee Differential shall be payable in the manner and with the
priority set forth in each of the Series Supplements solely out of funds
available for such purpose; provided, that any such Increased Servicer Fee
Differential not paid when due as a result of there not being sufficient
available funds therefor on any Settlement Date shall be payable on any future
Settlement Date to the extent amounts are then available for the payment
thereof.
Section 9.03. Notification to Noteholders. The Servicer
shall promptly notify the Trustee and the Obligors' Agent of any Event of
Servicer Termination upon the receipt of actual knowledge thereof by a
Servicing Officer, and the Trustee shall promptly thereupon give written notice
thereof to each of the Control Parties and each of the Series Support
Providers. Upon any termination of, or appointment of a successor to, the
Servicer pursuant to this Article IX, the Trustee shall give prompt written
notice thereof to each the Noteholders, each of the Series Support Providers
and the Contributor.
Section 9.04. Waiver of Past Events of Servicer
Termination. The Majority Control Parties, on behalf of all Noteholders may
waive any default by the Servicer in the performance of its obligations
hereunder and its consequences. Any such waiver must be in writing and be
signed by the Majority Control Parties or the Trustee acting on behalf (and at
the direction) of the Majority Control Parties. Upon any such waiver of a past
default, such default shall cease to exist, and any Event of Servicer
Termination arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent
similar or dissimilar default or impair any right consequent thereon except to
the extent expressly waived in accordance with this Section 9.04.
Section 9.05. Effects of Termination of Servicer. (a) Upon
the appointment of the successor Servicer, the terminated Servicer shall hold
in trust for the Trustee and immediately remit any Scheduled Payments, Residual
Receipts, Overdue Payments, Security Deposit, Insurance Proceeds, Total Payoff
amounts, Advance Payments, Prepayment Amounts, and proceeds of any Related
Security that it may receive pursuant to any Contract, any Broker Agreement,
Insurance Policy or otherwise to the successor Servicer for the benefit of the
Trustee; provided, that amounts representing Security Deposits shall be
remitted as required by paragraph (b) below.
(b) After the delivery of a Servicer Termination Notice,
the terminated Servicer shall have no further obligations with respect to the
management, administration or servicing of any Series Trust Estate or the
enforcement, custody or collection of the Contracts, and the successor Servicer
shall have all of such obligations, except that the terminated Servicer will
transmit or cause to be transmitted directly to the successor Servicer for the
benefit of the Trustee (i) promptly upon receipt and in the same form in which
received, any amounts held or received by the former Servicer (properly
endorsed where required for the successor Servicer to collect them) as payments
upon
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or otherwise in connection with Contracts or any Series Trust Estate and (ii)
when and as required by Section 6.14 hereof, amounts representing Security
Deposits. The terminated Servicer's indemnification obligations pursuant to
Section 8.01 hereof will survive its termination as the Servicer hereunder but
will not extend to any acts or omissions of any successor Servicer.
(c) Notwithstanding Section 9.05(b) hereof, it is hereby
agreed by the parties hereto that in the event that Advanta Business Services
Corp. or any of its Affiliates no longer continues to perform as Servicer
hereunder, the Obligors, upon the request of the Trustee, shall instruct the
Contributor pursuant to the Contribution Agreement to exercise any rights under
any Contract or guaranty thereof, Insurance Policy for the benefit of the
Trustee and the related Series Secured Parties.
(d) An Event of Servicer Termination shall not affect the
rights and duties of the parties hereunder other than those relating to the
management, administration, servicing, custody or collection of the Contracts
or the payment of certain expenses by the successor Servicer, in each case, as
expressly set forth herein.
ARTICLE X
EVENTS OF DEFAULT AND REMEDIES
Section 10.01. Events of Default. The "Event of Default,"
with respect to a Series, shall be set forth in the related Series Supplement.
Section 10.02. Collection of Indebtedness and Suits for
Enforcement by Trustee; Authority of Controlling Party. (a) Subject to the
provisions of the related Supplement, if the Notes of any Series are
accelerated following the occurrence of an Event of Default with respect to
such Series, there shall be due and payable (but only from the funds available
from the related Series Trust Estate), the whole amount then due and payable on
such Notes for principal and interest, with interest upon the overdue
principal, and, to the extent payment at such rate of interest shall be legally
enforceable, upon overdue installments of interest, at the interest rate
applicable to the Notes of such Series and in addition thereto such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee and its agents and counsel.
(b) If an Event of Default occurs and is continuing with
respect to a Series, the Trustee shall at the discretion of the related
Controlling Party, proceed to protect and enforce its rights and the rights of
the Noteholders of such Series by such appropriate Proceedings as the Trustee
shall deem most effective to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Master Agreement
or the related Series Supplement or in aid of the exercise of any power granted
herein or therein, or to enforce any other proper remedy or legal or
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equitable right vested in the Trustee by this Master Agreement, the related
Series Supplement, or by law.
(c) In case there shall be pending, relative to any
Obligor or any other obligor upon the Notes or any Person having or claiming an
ownership interest in the related Series Trust Estate, Proceedings under Title
11 of the United States Code or any other applicable Federal or state
bankruptcy, insolvency or other similar law, or in case a receiver, assignee or
trustee in bankruptcy or reorganization, liquidator, sequestrator or similar
official shall have been appointed for or taken possession of any related
Series Obligor or its property or such other obligor or Person, or in case of
any other comparable judicial Proceedings relative to such Obligor or other
obligor upon the Notes of such Series, or to the creditors or property of such
Obligor or such other obligor, the Trustee, irrespective of whether the
principal of any Notes of such Series shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand pursuant to the provisions of this Section,
shall be entitled and empowered, by intervention in such Proceedings or
otherwise:
(i) to file and prove a claim or claims for the
whole amount of principal and interest owing and unpaid in respect of
such Notes and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
against the related Series Trust Estate (including any claim for
reasonable compensation to the Trustee and each predecessor Trustee,
and their respective agents, attorneys and counsel, and for
reimbursement of all expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee, except as
a result of negligence or bad faith) and of the Noteholders of such
Series allowed in such Proceedings;
(ii) unless prohibited by applicable law and
regulations, to vote on behalf of the Holders of Notes of such Series
in any election of a trustee, a standby trustee or person performing
similar functions in any such Proceedings;
(iii) to collect and receive any moneys or other
property payable or deliverable on such claims and received with
respect to the related Series Trust Estate and to distribute all
amounts received with respect to the claims of the Noteholders of such
Series and of the Trustee on their behalf; and
(iv) to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the
claims of the Trustee or the Holders of Notes of such Series, in each
case against the related Series Trust Estate, allowed in any judicial
proceedings relative to the Obligors, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such Noteholders to make
payments to the
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Trustee, and, in the event that the Trustee shall consent to the making of
payments directly to such Noteholders, to pay to the Trustee such amounts as
shall be sufficient to cover reasonable compensation to the Trustee, each
predecessor Trustee and their respective agents, attorneys and counsel, and all
other expenses and liabilities incurred, and all advances made, by the Trustee
and each predecessor Trustee except as a result of negligence or bad faith.
(d) Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or vote for or accept or adopt on behalf
of any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Noteholder in any
such proceeding except, as aforesaid, to vote for the election of a trustee in
bankruptcy or similar Person.
(e) All rights of action and of asserting claims under
this Master Agreement, the related Series Supplement, or under any of the
Notes, may be enforced by the Trustee without the possession of any of the
Notes or the production thereof in any trial or other Proceedings relative
thereto, and any such action or Proceedings instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment, subject to the payment of the expenses, disbursements and
compensation of the Trustee, each predecessor Trustee and their respective
agents and attorneys, shall be for the ratable benefit of the Holders of the
related Notes.
(f) In any Proceedings brought by the Trustee (including
any Proceedings involving the interpretation of any provision of this Master
Agreement or the related Series Supplement), the Trustee shall be held to
represent all the Holders of the related Notes, and it shall not be necessary
to make any Noteholder a party to any such Proceedings.
Section 10.03. Limitation on Suits. No Holder of any Note
shall have any right to institute any Proceeding, judicial or otherwise, with
respect to this Master Agreement or the related Supplement, or for the
appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to the Notes
of the related Series;
(2) the Holders of not less than 50% of the Outstanding
Amount of the Notes of the related Series shall have made written
request to the Trustee to institute such Proceeding in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
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(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such Proceeding;
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the Holders
of a majority of the Outstanding Amount of the Notes of the related
Series; and
(6) if any Series Support secures such Series, a Support
Default shall have occurred and be continuing.
It is understood and intended that no one or more of the
Holders shall have any right in any manner whatever hereunder or under the
Notes to (i) affect, disturb or prejudice the rights of the Holders of any
other Notes, (ii) obtain or seek to obtain priority or preference over any
other such Holder or (iii) enforce any right under this Master Agreement,
except in the manner herein provided and for the equal, ratable and common
benefit of all such Holders.
Section 10.04. Unconditional Right of Holders to Receive
Principal and Interest. Subject to the provisions of Section 3.06 hereof, the
Holder of any Note shall have the right, which is absolute and unconditional,
to receive payment of the principal of and interest on such Note on or after
the respective due dates thereof expressed in such Note, in this Master
Agreement or the related Series Supplement and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder; provided, however, that (x) if such Series is
secured by any Series Support, then, so long as no Support Default shall have
occurred and be continuing, no such suit shall be instituted and (y) in no
event shall such right entitle any Holder to a payment from a source of funds
other than the related Series Trust Estate.
Section 10.05. Restoration of Rights and Remedies. If any of
the Trustee, the related Series Support Provider or any Holder has instituted
any Proceeding to enforce any right or remedy under this Master Agreement (or
the related Supplement) and such Proceeding has been discontinued or abandoned
for any reason, or has been determined adversely to the Trustee, the related
Series Support Provider or to such Holder, then and in every such case, subject
to any determination in such Proceeding, the Obligors, the Trustee, the related
Series Support Provider and the related Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee, the related Series Support Provider and the related
Holders shall continue as though no such Proceeding had been instituted.
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Section 10.06. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen securities in the last paragraph of section 5.05, no
right or remedy herein conferred upon or reserved to any of the Trustee, the
related Controlling Party or to the related Holders is intended to be exclusive
of any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 10.07. Delay or Omission Not Waiver. No delay or
omission of any of the Trustee, the related Controlling Party or any Holder of
any related Note to exercise any right or remedy accruing upon any related
Default or related Event of Default shall impair any such right or remedy or
constitute a waiver of any such related Default or related Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the related Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the related
Holders, as the case may be.
Section 10.08. Control by Holders. If the Trustee is the
Controlling Party with respect to a Series, the Holders of a majority of the
Outstanding Amount of the Notes with respect to such Series shall have the
right to direct the time, method and place of conducting any Proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee, with respect to the Notes; provided, that
(1) such direction shall not be in conflict with any rule
of law, with this Master Agreement or with the related Series
Supplement, and
(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction.
Section 10.09. Waiver of Past Defaults. The Series
Controlling Party with respect to a Series may, on behalf of the Holders of all
the Notes of the related Series waive any past Default relating to such Series
or Event of Default relating to such Series hereunder and its consequences,
except a Default relating to such Series:
(1) in the payment of the principal of or interest, if
any, on any Note of the related Series, or
(2) in respect of a covenant or provision hereof which
cannot be modified or amended without the consent of the Holder of
each Outstanding Note of the related Series affected.
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The Trustee may, but shall not be obligated to, fix a record
date for the purpose of determining the Persons entitled to waive any past
Default or Event of Default of the related Series. If a record date is fixed,
the Holders of the related Series on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to waive any such Default or
Event of Default, whether or not such Holders remain Holders after such record
date; and unless such majority in principal amount shall have been obtained
prior to the date which is 90 days after such record date, any such waiver
previously given shall automatically and without further action by any Holder
be cancelled and of no further effect.
Upon any such waiver, such Default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Master Agreement and each applicable Series Supplements;
but no such waiver shall extend to any subsequent or other Default or Event of
Default or impair any right consequent thereon.
Section 10.10. Undertaking for Costs. All parties to this
Master Agreement and the related Series Supplement agree, and each Holder of
any Note by such Holder's acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement
of any right or remedy under this Master Agreement or the related Series
Supplement, or in any suit against the Trustee for any action taken, suffered
or omitted by it as Trustee, the filing by any party litigant in such suit of
an undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Obligors, to any suit instituted by the Trustee or any Series Support Provider,
to any suit instituted by any Holder, or group of Holders, holding in the
aggregate more than 10% of the Outstanding Amount of the Notes of the related
Series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of or interest on any Note on or after the respective
due dates expressed in such Note and the related Series Supplement.
Section 10.11. Action on Notes. The Trustee's right to seek
and recover judgment on the Notes or under this Master Agreement or any Series
Supplement shall not be affected by the seeking, obtaining or application for
any other relief under or with respect to this Master Agreement or such Series
Supplement. Neither the lien hereof, the related Series Supplement nor any
rights or remedies of the Trustee or the Noteholders shall be impaired by the
recovery of any judgment by the Trustee against the Obligors or by the levy of
any execution under such judgment upon any portion of the related Series Trust
Estate or upon any of the assets of the Obligors.
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ARTICLE XI
THE TRUSTEE
Section 11.01. Certain Duties and Responsibilities. (a)
Except during the continuance of an Event of Default with respect to a Series:
(1) the Trustee undertakes to perform with respect to
such Series such duties and only such duties as are specifically set
forth in this Master Agreement and/or the related Series Supplement,
and no implied covenants or obligations shall be read into this Master
Agreement or the related Series Supplement against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Master Agreement and/or the related Series Supplement; but in
the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Master Agreement
and/or the related Series Supplement.
(b) If an Event of Default with respect to a Series has
occurred and is continuing, the Trustee shall exercise such of the rights and
powers with respect to such Series vested in it by this Master Agreement and/or
the related Series Supplement, and use the same degree of care and skill in
their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(c) No provision of this Master Agreement or any Series
Supplement shall be construed to relieve the Trustee from liability for its own
negligent action, its own negligent failure to act, or its own wilful
misconduct; provided, that
(1) this subsection shall not be construed to limit the
effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall
be proved that the Trustee was negligent in ascertaining the pertinent
facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the related Series Support Provider or, if the
related Series Support Provider is not a Controlling Party or if there
is no Series Support Provider for such Series, the Holders of a
majority of the Outstanding Amount of the Notes of the related
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Series, relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Master
Agreement, the related Series Supplement or the related Series Support
with respect to the Notes of the related Series; and
(4) no provision of this Master Agreement or the related
Series Supplement shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of
any of its duties hereunder or thereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(d) Whether or not herein or therein expressly so
provided, every provision of this Master Agreement and the related Series
Supplement relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of paragraphs (a),
(b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any
money received by it.
(f) Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law or the terms
of this Master Agreement or the related Series Supplement.
(g) The Trustee shall, upon one Business Day's prior
notice received by the Trustee, permit any representative of the related Series
Controlling Party or any representative of the related Series Support Provider,
if any, during the Trustee's normal business hours, to examine all books of
account, records, reports and other papers of the Trustee relating to the Notes
of the related Series, to make copies and extracts therefrom and to discuss the
Trustee's affairs and actions, as such affairs and actions relate to the
Trustee's duties with respect to such Notes, with the Trustee's officers and
employees responsible for carrying out the Trustee's duties with respect to
such Notes.
(h) In no event shall the Trustee be required to perform,
or be responsible for the manner of performance of, any of the obligations of
any Servicer, with respect to any Series except during such time, if any, as
the Trustee, in its capacity as Successor Servicer for such Series shall be the
successor to, and be vested with the rights, powers, duties and privileges of
the Servicer in accordance with the provisions of Section 9.02 hereof.
(i) The Trustee shall maintain or cause to be maintained,
in the Borough of Manhattan in the City of New York, an office or agency where
Notes may be surrendered for registration of transfer or exchange (except that
Bearer Notes may not be surrendered for exchange at any such office or agency
in the United States) and where
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notices and demands to or upon the Obligors in respect of the Notes, this
Master Agreement and the related Series Supplement may be served.
Section 11.02. Notice of Defaults. If a Default or Event of
Default occurs and is continuing with respect to a Series and if it is known to
a Responsible Officer of the Trustee, the Trustee shall mail to each Noteholder
of the related Series notice of such Default or Event of Default promptly after
it occurs and shall notify the Obligors, the Obligors' Agent, the Contributor,
the Servicer and the related Series Support Provider, if any, of any such
Default or Event of Default promptly after it occurs. Except in the case of a
Default in payment of principal of or interest on any Note, the Trustee may
withhold the notice (but not to the related Series Support Provider, if any, or
the Obligors if and so long as a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interest of the
Noteholders of the related Series.
Section 11.03. Certain Rights of Trustee. Subject to the
provisions of Section 11.01:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Obligors mentioned
herein shall be sufficiently evidenced by an Obligors' Order;
(c) whenever in the administration of this Master
Agreement and/or any Series Supplement the Trustee shall deem it desirable that
a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, request and rely upon
an Officer's Certificate;
(d) the Trustee may consult with counsel and the advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Master Agreement and/or any
Series Supplement at the request or direction of any of the related Series
Support Provider, if any, or the Holders of the related Series pursuant to this
Master Agreement, unless such Series Support Provider or such Holders shall
have offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
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(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the related Obligors,
personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by
it hereunder.
Section 11.04. Not Responsible for Recitals or Issuance of
Notes. The recitals contained herein, in any Series Supplement and in the
Notes, except the Trustee's certificates of authentication, shall be taken as
the statements of the Obligors, and the Trustee or any Authenticating Agent
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Master Agreement, any
Series Supplement or of the Notes, or any Series Trust Estate. The Trustee or
any Authenticating Agent shall not be accountable for the use or application by
the Obligors of Notes or the proceeds thereof.
Section 11.05. May Hold Notes. The Trustee, any
Authenticating Agent, any Paying Agent, any Note Registrar or any other agent
of the Obligors, in its individual or any other capacity, may become the owner
or pledgee of Notes and, subject to Sections 11.07 and 11.12, may otherwise
deal with the Obligors with the same rights it would have if it were not
Trustee, Authenticating Agent, Paying Agent, Note Registrar or such other
agent.
Section 11.06. Compensation and Indemnity. (a) As payable in
each Series Supplement, the Trustee will be paid, and the Trustee shall be
entitled to, certain annual fees with respect to its administration of the
related Notes and the related Series Trust Estate, which shall not be limited
by any law on compensation of a Trustee of an express trust, and certain
reasonable out-of-pocket expenses incurred or made by it, including costs of
collection, in addition to the compensation for its services as more further
set forth in the related Series Supplement. The Obligors' Agent also agrees to
cause to be provided to the Trustee indemnity against any and all loss,
liability or expense (including attorneys' fees) incurred by it in connection
with the administration of this trust and the performance of its duties
hereunder.
(b) When the Trustee incurs expenses after the occurrence
of an Insolvency Event with respect to any Obligor, the expenses are intended
to constitute expenses of administration under Title 11 of the United States
Code or any other applicable Federal or state bankruptcy, insolvency or similar
law. Notwithstanding
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anything else set forth in this Master Agreement, any Series Supplement or any
Series Related Documents, the Trustee agrees that the obligations of the
Obligors to the Trustee hereunder and under the related Series Related
Documents shall be recourse to the related Series Trust Estate only. In
addition, the Trustee agrees that its recourse to the Obligors and the related
Series Trust Estate shall be limited to the right to receive the distributions
as provided for in the payment priority provisions of the related Series
Supplement.
Section 11.07. Disqualification; Conflicting Interests. If
this Master Agreement is qualified under the Trust Indenture Act and if the
Trustee has or shall acquire a conflicting interest within the meaning of the
Trust Indenture Act, the Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Master Agreement.
Section 11.08. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder, which (a) shall be a
commercial bank or trust company organized and doing business under the laws of
the United States of America or any State thereof, (b) shall have a combined
capital and surplus of at least $50,000,000, (c) a long-term deposit rating of
at least A3 from Moody's or otherwise be acceptable to Moody's and a long-term
deposit rating of at least A- from S&P or otherwise be acceptable to S&P and
(d) shall be authorized to exercise corporate trust powers and be subject to
supervision or examination by Federal or State authority. If such commercial
bank or trust company publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such commercial bank or trust company shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.
Section 11.09. Resignation and Removal; Appointment of
Successor. (a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 11.08.
(b) The Trustee may resign at any time with respect to
the Notes by giving written notice thereof to the Obligors' Agent. If the
instrument of acceptance by a successor Trustee required by Section 11.10 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Notes.
(c) The Trustee may be removed at any time with respect
to the Notes by Act of the Majority Control Parties, delivered to the Trustee
and to the Obligors' Agent.
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(d) If at any time:
(1) The Trustee shall fail to comply with Section
11.07 after written request therefor by the
Obligors or by any Holder who has been a bona
fide Holder of a Note for at least six
months, or
(2) the Trustee shall cease to be eligible under
Section 11.08 and shall fail to resign after
written request therefor by the Obligors or
by any such Holder, or
(3) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent
or a receiver of the Trustee or of its
property shall be appointed or any public
officer shall take charge or control of the
Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or
liquidation,
then, in any such case, the Obligors' Agent (with the consent of each Series
Support Provider as to which a Support Default has not occurred and is
continuing) may remove the Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Notes, the Obligors' Agent (with the consent of
each Series Support Provider as to which a Support Default has not occurred and
is continuing) shall promptly appoint a successor Trustee and shall comply with
the applicable requirements of Section 11.10.
(f) The Obligors' Agent shall give notice of each
resignation and each removal of the Trustee with respect to the Notes and each
appointment of a successor Trustee with respect to the Notes by mailing written
notice of such event by first-class mail, postage prepaid, to all holders of
Notes as their names and addresses appear in the Note Register. Each notice
shall include the name of the successor Trustee with respect to the Notes and
the address of its Corporate Trust Office.
Section 11.10. Acceptance of Appointment by Successor. (a)
In case of the appointment hereunder of a successor Trustee with respect to the
Notes, every such successor Trustee so appointed shall execute, acknowledge and
deliver to the Obligors' Agent, each Series Support Provider, if any and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Obligors' Agent, the related Series Support
Provider, if any, or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all
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the rights, powers and trusts of the Trustee and shall duly assign, transfer
and deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder.
(b) Upon request of any such successor Trustee, the
Obligors' Agent and each Obligor shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts referred to in paragraph (a) of this Section.
Section 11.11. Merger, Conversion, Consolidation or
Succession to Business. Any corporation or other entity into which the Trustee
may be merged or converted or with which it may be consolidated, or any
corporation or other entity resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation or
other entity succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation or other entity shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or
any further act on the part of any of the parties hereto. The Trustee shall
provide the Obligors' Agent and each Series Support Provider prompt notice of
any such transaction after the completion thereof. In case any Notes shall
have been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Notes so authenticated with the
same effect as if such successor Trustee had itself authenticated such Notes.
Section 11.12. Preferential Collection of Claims Against
Obligors. If this Master Agreement is ever qualified under the Trust Indenture
Act, then the provisions of Section 311 of the Trust Indenture Act shall
govern.
Section 11.13. Appointment of Authenticating Agent. As of
the date of the Master Agreement and at any time when any of the Notes remain
Outstanding the Trustee may appoint an Authenticating Agent or agents with
respect to one or more Series, Classes or Tranches of Notes which shall be
authorized to act on behalf of the Trustee to authenticate Notes of such
Series, Class or Tranche issued upon exchange, registration of transfer or
partial prepayment thereof, or pursuant to Section 5.05, and Notes so
authenticated shall be entitled to the benefits of this Master Agreement and
shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Master Agreement or any
Series Supplement to the authentication and delivery of Notes by the Trustee
upon exchange, registration of transfer or partial prepayment thereof or the
Trustee's certificate of authentication in connection therewith, such reference
shall be deemed to include authentication and delivery on behalf of the Trustee
by an Authenticating Agent and a certificate of authentication executed on
behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent
shall be acceptable to the Obligors' Agent, shall be authorized under law and
shall meet the eligibility criteria established for the Trustee, as set forth
in Section 11.08 hereof. If such Authenticating Agent publishes reports of
condition at
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least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating
Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Obligors' Agent. The Trustee
may at any time terminate the agency of an Authenticating Agent by giving
written notice thereof to such Authenticating Agent and to the Obligors' Agent.
Upon receiving such a notice of resignation or upon such a termination, or in
case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Obligors' Agent
and shall mail written notice of such appointment by first-class mail, postage
prepaid, to all Holders of the related Notes, as their names and addresses
appear in the Note Register. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section. No
resignation or termination of an Authenticating Agent shall become effective
until a successor Authenticating Agent shall be appointed and qualified
hereunder or the Trustee assumes the duties of Authenticating Agent hereunder.
The Obligors' Agent agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under this Section.
In the event an Authenticating Agent is appointed under this
Master Agreement, the Trustee shall incur no liability for such appointment or
for any misconduct or negligence of such Authenticating Agent, including
without limitation, its authentication of the Notes upon original issuance or
pursuant to Sections 5.03, 5.04 or 5.05. In the event the Trustee does incur
liability for any such misconduct or negligence of the Authenticating Agent,
the Obligors' Agent agrees to indemnify the Trustee for, and hold it harmless
against, any such liability, including the costs and expenses of defending
itself against any liability in connection with such misconduct or negligence
of the Authenticating Agent.
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If an appointment with respect to one or more Series, Classes
or Tranches is made pursuant to this Section, the Notes of such Series, Classes
or Tranches may have endorsed thereon, in addition to the Trustee's certificate
of authentication, an alternate certificate of authentication in the following
form:
This is one of the Notes referred to in the within-mentioned
Master Agreement and the within-mentioned Supplement thereto.
The Chase Manhattan Bank,
As Trustee
By:________________________________
As Authenticating Agent
By:________________________________
Authorized Officer
Section 11.14. Paying Agent. (a) The payment
responsibilities for the Notes shall be performed by a Paying Agent, appointed
by the Obligors' Agent which shall be authorized to exercise corporate trust
powers and shall meet the eligibility criteria established for the Trustee, as
set forth in Section 11.08 hereof. The Trustee is hereby initially appointed
Paying Agent for the purpose of making payments on the Notes as herein
provided.
(b) Each Paying Agent shall be acceptable to the
Obligors' Agent, shall be authorized under law and shall meet the eligibility
criteria established for the Trustee, as set forth in Section 11.08 hereof. If
such Paying Agent publishes reports of condition at least annually, pursuant to
law or to the requirements of said supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such Paying
Agent shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time a Paying
Agent shall cease to be eligible in accordance with the provisions of this
Section, such Paying Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which a Paying Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Paying Agent shall
be a party, or any corporation succeeding to the corporate agency or corporate
trust business of a Paying Agent, shall continue to be a Paying Agent, provided
such corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Paying Agent.
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A Paying Agent may resign at any time by giving written notice
thereof to the Trustee and to the Obligors' Agent. The Trustee may at any time
terminate the agency of a Paying Agent by giving written notice thereof to such
Paying Agent and to the Obligors' Agent. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such Paying
Agent shall cease to be eligible in accordance with the provisions of this
Section, the Trustee may appoint a successor Paying Agent which shall be
acceptable to the Obligors' Agent and shall mail written notice of such
appointment by first-class mail, postage prepaid, to all Holders of the related
Notes, as their names and addresses appear in the Note Register. Any successor
Paying Agent upon acceptance of its appointment hereunder shall become vested
with all the rights, powers and duties of its predecessor hereunder, with like
effect as if originally named as a Paying Agent. No successor Paying Agent
shall be appointed unless eligible under the provisions of this Section. No
resignation or termination of a Paying Agent shall become effective until a
successor Paying Agent shall be appointed and qualified hereunder or the
Trustee assumes the duties of Paying Agent hereunder.
The Obligors' Agent agrees to pay to each Paying Agent from
time to time reasonable compensation for its services under this Section.
In the event a Paying Agent is appointed under this Master
Agreement, the Trustee shall incur no liability for such appointment or for any
misconduct or negligence of such Paying Agent. In the event the Trustee does
incur liability for any such misconduct or negligence of the Paying Agent, the
Obligors' Agent agrees to indemnify the Trustee for, and hold it harmless
against, any such liability, including the costs and expenses of defending
itself against any liability in connection with such misconduct or negligence
of the Paying Agent.
Section 11.15. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Master Agreement, at any time,
for the purpose of meeting any legal requirement of any jurisdiction in which
any part of the Trust may at the time be located, the Trustee, shall have the
power and may execute and deliver all instruments to appoint one or more
Persons to act as a co-trustee or co-trustees, or separate trustee or separate
trustees, of all or any part of the related Series Trust Estate, and to vest in
such Person or Persons, in such capacity and for the benefit of the related
Noteholders, such title to the related Series Trust Estate, or any part hereof,
and subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Trustee may consider necessary or
desirable. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor Trustee under Section 11.08 and no
notice to Noteholders of the appointment of any co-trustee or separate trustee
shall be required under Section 11.09 hereof.
(b) Every separate trustee and co-trustee shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
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(i) all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the 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 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 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
Trustee;
(ii) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder, and
(iii) the Trustee may at any time accept the resignation of
or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the
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. Each
instrument appointing any separate trustee or co-trustee shall refer to this
Agreement and the conditions of this Article. 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 Trustee or separately, as may be provided therein, subject to
all the provisions of this Master Agreement and the related Series
Supplement(s), specifically including every provision of this Master Agreement
and the related Series Supplement(s) relating to the conduct of, affecting the
liability of, or affording protection to, the Trustee. Every such instrument
shall be filed with the Trustee.
(d) 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
Trustee, to the extent permitted by law, without the appointment of a new
successor trustee.
ARTICLE XII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND OBLIGORS' AGENT
Section 12.01. Obligors' Agent to Furnish Trustee Names and
Addresses of Holders. The Obligors' Agent will furnish or cause to be
furnished to the Trustee with respect to each Series of Notes (a) not more than
five days after the earlier of (i) each Record Date with respect to such Series
and (ii) three months after the last Record Date with respect to such Series, a
list, in such form as the Trustee may reasonably
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require, of the names and addresses of the Holders of Notes of such Series as
of such Record Date, (b) at such other times as the Trustee may request in
writing, within 30 days after receipt by the Obligors of any such request, a
list of similar form and content as of a date not more than 10 days prior to
the time such list is furnished; provided, however, that so long as the Trustee
is the Note Registrar, no such list shall be required to be furnished. The
Trustee or, if the Trustee is not the Note Registrar, the Obligors' Agent shall
furnish or cause to be furnished to the related Series Support Provider, if
any, in writing on an annual basis and at such other times as such Series
Support Provider may request a copy of such list with respect to the related
Series.
Section 12.02. Preservation of Information; Communications to
Holders. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 12.01 and the
names and addresses of Holders received by the Trustee in its capacity as Note
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 12.01 upon receipt of a new list so furnished.
(b) If three or more Holders of Notes of any particular
Series (herein referred to as "applicants") apply in writing to the Trustee,
and furnish to the Trustee reasonable proof that each such applicant has owned
a Note for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders of Notes of such Series with respect to their
rights under this Master Agreement, the related Series Supplement or under such
Notes and is accompanied by a copy of the form of proxy or other communication
which such applicants propose to transmit, then the Trustee shall, within five
business days after the receipt of such application, at its election, either
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with Section
12.02(a), or
(ii) inform such applicants as to the approximate number of
Holders whose names and addresses appear in the information preserved
at the time by the Trustee in accordance with Section 12.02(a), and as
to the approximate cost of mailing to such Holders the form of proxy
or other communication, if any, specified in such application.
(iii) Every Holder of Notes, by receiving and holding the
same, agrees with the Obligors and the Trustee that neither the Obligors nor
the Trustee nor any agent of either of them shall be held accountable by reason
of the disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 12.01 or 12.02(b), regardless of the source
from which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 12.01 or 12.02(b).
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Section 12.03. Reports by Trustee. If this Master Agreement
is ever qualified under the Trust Indenture Act, then the Trustee shall comply
with the provisions of Section 313 of the Trust Indenture Act.
Section 12.04. Reports by Obligors' Agent. If this Master
Agreement is qualified under the Trust Indenture Act, the Obligors' Agent on
behalf of the Obligors shall:
(1) file or cause to be filed with the Trustee, within 15
days after the Obligors are required to file the same with the
Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Obligors may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Obligors are not required
to file information, documents or reports pursuant to either of said
Sections, then it shall file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Securities Exchange Act of 1934 in respect of a security listed
and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(2) file or cause to be filed with the Trustee and the
Commission, in accordance with rules and regulations prescribed from
time to time by the Commission, such additional information, documents
and reports with respect to compliance by the Obligors with the
conditions and covenants of this Master Agreement as may be required
from time to time by such rules and regulations;
(3) transmit or cause to be transmitted by mail to all
Holders, as their names and addresses appear in the Note Register and
each Series Support Provider within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and
reports required to be filed by the Obligors pursuant to paragraphs
(1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission; and
(4) furnish any other periodic reports as required by the
Trust Indenture Act.
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ARTICLE XIII
MASTER AGREEMENT SUPPLEMENTS
Section 13.01. Supplements Affecting All Series, or the
Master Agreement Generally. (a) Without the consent of any Holders, the
Obligors, the Trustee when authorized by an Obligors Order, the Servicer and
each Series Support Provider, at any time and from time to time, may enter into
one or more Master Agreement Supplements, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to authorize the issuance of one or more series of
Notes;
(2) to evidence the succession, in compliance with the
applicable provisions hereof, of another corporation to any Obligors
or to the Obligors' Agent and the assumption by any such successor of
the covenants of the Obligors or the Obligors' Agent herein, in any
Series Supplement and in the Notes; or
(3) to add to the covenants of the Obligors or the
Obligors' Agent for the benefit the Holders of the Notes or to
surrender any right or power herein conferred upon the Obligors or the
Obligors' Agent; or
(4) to add to or change any of the provisions of this
Master Agreement to such extent as shall be necessary to permit or
facilitate the issuance of Notes in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or
to permit or facilitate the issuance of Notes in uncertificated form,
or to facilitate the issuance of Notes in global form through the
facilities of a Depository; or
(5) to modify the restrictions on and procedures for
resale and other transfers of the Notes to reflect any change in
applicable law or regulation (or the interpretation thereof) or in
practices relating to the resale or transfer of restricted securities
generally; or
(6) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the Notes
and to add to or change any of the provisions of this Master Agreement
as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 11.15; or
(7) to modify, eliminate or add to the provisions of this
Master Agreement to such extent as shall be necessary to qualify,
requalify or continue the qualification of this Master Agreement
(including any supplemental indenture) under the Trust Indenture Act,
or under any similar Federal statute hereafter enacted, and to add to
this Master Agreement such other provisions as may be
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expressly permitted by the Trust Master Agreement Act, excluding,
however, the provisions referred to in Section 316(a)(2) of the Trust
Indenture Act as in effect at the date as of which this instrument was
executed or any corresponding provision in any similar Federal statute
hereinafter enacted; or
(8) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Master Agreement, as long as such action
shall not adversely affect the interests of the Holders of Notes of
any Series affected thereby in any material respect.
(b) The Obligors' Agent on behalf of the Obligors, the
Servicer and the Trustee, when authorized by an Obligors Order, may, also
without the consent of any of the Holders of the Notes and with prior written
notice to each Series Support Provider, enter into an Master Agreement
Supplement or Supplements for the purpose of adding any provisions to, or
changing in any manner or eliminating any of the provisions of, this Master
Agreement or of modifying in any manner the rights of the Holders of the Notes
under this Master Agreement; provided, however, that such action shall not, as
evidenced by an Opinion of Counsel, adversely affect in any material respect
the interests of any Noteholder.
(c) The Obligors' Agent on behalf of the Obligors, the
Servicer and the Trustee, when authorized by an Obligors Order, also may, with
prior notice to each Series Support Provider, and with the consent of the
Holders of not less than a majority of the Outstanding Amount of the Notes of
each affected Series, by Act of said Holders delivered to the Obligors' Agent
and the Trustee, enter into a Master Agreement Supplement or Supplements hereto
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Master Agreement or of modifying in
any manner the rights of the Holders of Notes under this Master Agreement;
provided, that, subject to the express rights of the related Series Support
Provider under the related Series Related Documents, no such Master Agreement
Supplement shall, without the consent of the Holder of each Outstanding Note of
each affected Series affected thereby,
(1) change the date of payment of any installment of
principal of or interest on any Note, or reduce the principal amount
thereof or the rate of, or method of computation of the rate of,
interest thereon or any prepayment or redemption price with respect
thereto, change the provision of this Master Agreement relating to the
application or collections on, or the proceeds of the sale of, the
related Series Trust Estate to payment of principal of or interest on
the Notes, or change any place of payment where, or the coin or
currency in which, any Note or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any such
payment on or after the respective due dates thereof, or
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(2) reduce the percentage of the Outstanding Amount of
the Notes, the consent of whose Holders is required for any such
Master Agreement Supplement, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Master Agreement or certain defaults hereunder and their consequences)
provided for in this Master Agreement, or
(3) permit the creation of any lien prior to the lien
created by the related Supplement with respect to any part of the
related Series Trust Estate, or terminate the lien created by the
related Supplement on any Pledged Property subject hereto or deprive
any related Holder of the security afforded by the lien of the related
Series Supplement, except to the extent expressly permitted by this
Master Agreement, the related Series Supplement or any other related
Series Related Document, or
(4) modify any of the provisions of this Section except
to increase any such percentage or to provide that certain other
provisions of this Master Agreement, the related Supplement or the
related Series Related Documents cannot be modified or waived without
the consent of the Holder of each Outstanding Note affected thereby,
or
(5) modify or alter the provisions of the second proviso
to the definition of the term "Outstanding."
The Trustee may, but shall not be obligated to, fix a record
date for the purpose of determining the Persons entitled to consent to any
Master Agreement Supplement described in this Section 13.01. If a record date
is fixed, the applicable Holders on such record date or their duly designated
proxies, and only such Persons, shall be entitled to consent to such Master
Agreement Supplement, whether or not such Holders remain Holders after such
record date; provided, that, unless such consent shall have become effective by
virtue of the requisite percentage having been obtained prior to the date which
is 90 days after such record date, any such consent previously given shall
automatically and without further action by any Holder be cancelled and of no
further effect.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed Master Agreement
Supplement, but it shall be sufficient if such Act shall approve the substance
thereof.
The Obligors' Agent shall in its discretion (which may be
based on an Opinion of Counsel) determine whether or not any Notes would be
affected by any Master Agreement Supplement and any such determination shall be
conclusive upon the Holders of all Notes, whether theretofore or thereafter
authenticated and delivered hereunder. The Trustee shall not be liable for any
such determination made in good faith.
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Promptly after the execution by the parties hereto of any
Supplemental Master Agreement pursuant to this Section, the Trustee shall mail
to the Holders of the Notes of the affected Series a notice setting forth in
general terms the substance of such Supplemental Master Agreement. Any failure
of the Trustee to mail such notice, or any defect therein, shall not, however,
in any way impair or affect the validity of any such Supplemental Master
Agreement.
Section 13.02. Supplements Authorizing a Series of Notes.
(a) Each Series of Notes issued hereunder shall be issued pursuant to a Series
Supplement, which shall set forth the terms and provisions of such Series.
(b) Amendments to Supplements shall be governed by the
provisions of Section 13.01, which for such purpose shall be deemed to refer
only to the related Supplement. The Trustee may conclusively rely on an
Opinion of Counsel as to which Series Supplements relate to which Series, or to
this Master Agreement (and thus all Series) as a whole.
Section 13.03. Execution of Master Agreement Supplements.
In executing, or accepting the additional trusts created by,
any Master Agreement Supplement permitted by this Article or the modifications
thereby of the trusts created by this Master Agreement, the Trustee may
receive, and (subject to Section 11.01) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such Master Agreement
Supplement is authorized or permitted by this Master Agreement. The Trustee
may, but shall not be obligated to, enter into any such Supplemental Master
Agreement which affects the Trustee's own rights, duties or immunities under
this Master Agreement or otherwise.
Section 13.04. Effect of Master Agreement Supplements. Upon
the execution of any Master Agreement Supplement under this Article, this
Master Agreement shall be modified in accordance therewith, and such Master
Agreement Supplement shall form a part of this Master Agreement for all
purposes, and every Holder of Notes theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
Section 13.05. Reference in Notes to Master Agreement
Supplements. Notes authenticated and delivered after the execution of any
Master Agreement Supplement pursuant to this Article may, and shall if required
by the Obligors, bear a notation as to any matter provided for in such Master
Agreement Supplement. If the Obligor's Agent shall so determine, new Notes so
modified as to conform, in the opinion of the Obligor's Agent, to any such
Master Agreement Supplement may be prepared and executed by the Obligor's Agent
and authenticated and delivered by the Trustee in exchange for Outstanding
Notes.
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ARTICLE XIV
COVENANTS
The Obligors hereby covenants and agrees that so long as this
Master Agreement is in effect and any Notes remain Outstanding:
Section 14.01. Payment of Principal and Interest. The
related Series Obligors will duly and punctually pay or cause to be paid, on a
nonrecourse basis and solely from the funds available from the related Series
Trust Estate, the principal of and interest on the Notes of the related Series
in accordance with the terms of such Notes, this Master Agreement and the
related Series Supplement. Amounts on deposit in the related Series Account
(other than amounts representing payments under any related Series Support) in
respect of principal and interest on a Settlement Date shall constitute full
satisfaction of the related Series Obligors' obligation with respect to the
payment of such principal and interest on the related Notes. Amounts properly
withheld under the Code by any Person from a payment to any Noteholder of
interest or principal shall be considered as having been paid by the related
Obligors to such Noteholder for all purposes of this Master Agreement.
Section 14.02. Maintenance of Non-U.S. Office or Agency. The
Obligors will maintain or cause to be maintained (a) if and so long as any
Series or Class is listed on the Luxembourg Stock Exchange, Luxembourg, and (b)
in London, in the case of Bearer Notes and Holders thereof, if any for so long
as any Bearer Notes are outstanding, an office or agency where Notes may be
surrendered for registration of transfer or exchange (except that Bearer Notes
may not be surrendered for exchange at any such office or agency in the United
States) and where notices and demands to or upon the Obligors in respect of the
Notes, this Master Agreement and the related Series Supplement may be served.
The Obligors will give or cause to be given prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Obligors shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee, and the Obligors hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
Section 14.03. Consolidation, Merger, Sale of Assets. (a) No
Obligor shall consolidate or merge with or into any other Person, unless
(i) the Person (if other than such Obligor)
formed by or surviving such consolidation or merger shall be a Person
organized and existing under the laws of the United States of America
or any State and shall expressly assume, by a Master Agreement
Supplement, executed and delivered to the Trustee, the Obligors' Agent
and the Servicer the due and punctual payment of the principal of and
interest on all Notes previously issued and having such Obligor as a
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"Series Obligor" with respect thereto and the performance or
observance of every agreement and covenant of this Master Agreement
and the related Series Supplement and each other related Series
Related Document on the part of such Obligor to be performed or
observed, all as provided herein;
(ii) immediately after giving effect to such
transaction, no Default with respect to any Series or Event of Default
with respect to any Series previously issued and having such Obligor
as a "Series Obligor" with respect thereto shall have occurred and be
continuing;
(iii) each Series Support Provider relating to such
Series previously issued and having such Obligor as a "Series Obligor"
with respect thereto, if any, shall have consented in writing to such
transaction; and
(iv) any action as is necessary to maintain the
lien and security interest created in favor of the Trustee by the
related Series Supplement shall have been taken.
(b) No Obligor shall convey or transfer all or
substantially all of its properties or assets or any Series Trust Estate to any
Person (except as expressly permitted by this Master Agreement, the related
Series Supplement or the related Series Related Documents), unless
(i) the Person that acquires by conveyance or
transfer such Series Trust Estate shall (A) be a United States citizen
or a Person organized and existing under the laws of the United States
of America or any State, (B) expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee the due and
punctual payment of the principal of and interest on all Notes
previously issued and having such Obligor as a "Series Obligor" with
respect thereto and the performance or observance of every agreement
and covenant of this Master Agreement, the related Series Supplement
or the related Series Related Documents on the part of such Obligor to
be performed or observed, all as provided herein or therein, (C)
expressly agree by means of such supplemental indenture that all
right, title and interest so conveyed or transferred shall be subject
and subordinate to the rights of Holders of the related Notes, (D)
unless otherwise provided in such supplemental indenture, expressly
agree to indemnify, defend and hold harmless such Obligor against and
from any loss, liability or expense arising under or related to this
Master Agreement, the related Series Supplement and the Notes
previously issued and having such Obligor as a "Series Obligor" with
respect thereto and (E) expressly agree by means of such supplemental
indenture that such Person (or if a group of Persons, then one
specified Person) shall make all filings with the Commission (and any
other appropriate Person) required by the Exchange Act in connection
with the related Notes;
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(ii) immediately after giving effect to such
transaction, no Default with respect to the affected Series or Event
of Default with respect to any Series previously issued and having
such Obligor as a "Series Obligor" with respect thereto shall have
occurred and be continuing;
(iii) each Series Support Provider relating to such
Series previously issued and having such Obligor as a "Series Obligor"
with respect thereto, if any, shall have consented in writing to such
transaction;
(iv) any action as is necessary to maintain the
lien and security interest created in favor of the related Trustee(s)
by the related Series Supplement(s) shall have been taken; and
Section 14.04. Negative Covenants. Until the Termination
Date, no Obligor shall:
(i) except as expressly permitted by this Master
Agreement, each related Series Supplement and each related Series
Related Document, sell, transfer, exchange or otherwise dispose of any
of the properties or assets constituting any Series Trust Estate,
unless directed to do so by the related Controlling Party;
(ii) claim any credit on, or make any deduction
from the principal or interest in respect of, the Notes (other than
amounts properly withheld from such payments under the Code) or assert
any claim against any present or former Noteholder by reason of the
payment of the taxes levied or assessed upon any part of any Series
Trust Estate; or
(iii) (A) except as permitted by this Master
Agreement, any related Series Supplement or any related Series Related
Documents, permit the validity or effectiveness of the related Series
Supplement to be impaired, or permit the lien in favor of the Trustee
created by the related Supplement to be amended, hypothecated,
subordinated, terminated or discharged, or permit any Person to be
released from any covenants or obligations with respect to any Notes
under this Master Agreement or any Series Supplement except as may be
expressly permitted hereby, (B) permit any lien, charge, excise,
claim, security interest, mortgage or other encumbrance (other than
the lien in favor of the Trustee created by the related Series
Supplement) to be created on or extend to or otherwise arise upon or
burden any Series Trust Estate or any part thereof or any interest
therein or the proceeds thereof (other than tax liens, mechanics'
liens, storage liens and other liens that arise by operation of law,
in each case on any Pledged Property and arising solely as a result of
an action or omission of the related underlying obligors), (C) permit
the lien in favor of the Trustee created by the related Series
Supplement not to constitute a valid first priority (other than with
respect to any such tax, mechanics', storage or other lien) security
interest
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in the related Series Trust Estate (provided that no notation or
filing of the transfer of the Liens on the title documents of any
Pledged Property is required as of the date of this Master Agreement),
or (D) amend, modify or fail to comply with the provisions of the
related Series Related Documents without the prior written consent of
the related Controlling Party.
Section 14.05. Performance of Obligations; Servicing of each
Series Trust Estate. (a) No Obligor will take any action and will use its best
efforts not to permit any action to be taken by others that would release any
Person from any of such Person's material covenants or obligations under any
instrument or agreement included in any Series Trust Estate or that would
result in the amendment, hypothecation, subordination, termination or discharge
of, or impair the validity or effectiveness of, any such instrument or
agreement, except as expressly provided in this Master Agreement, the related
Series Supplement or related Series Related Document or such other instrument
or agreement.
(b) Any Obligor may contract with other Persons
(including the Obligors' Agent) to assist it in performing its duties under
this Master Agreement, and any performance of such duties by a Person
identified to the Trustee and each related Series Support Provider in an
Officer's Certificate of such Obligor shall be deemed to be action taken by
such Obligor.
(c) Each Obligor will punctually perform and observe or
cause to be performed and observed all of its obligations and agreements
contained in this Master Agreement, each related Series Supplement and each
related Series Related Document and in the instruments and agreements included
in each Series Trust Estate, including but not limited to filing or causing to
be filed all UCC financing statements and continuation statements required to
be filed by the terms of this Master Agreement, each related Series Supplement
and each related Series Related Document in accordance with and within the time
periods provided for herein and therein.
(d) If any Obligor or the Obligors' Agent shall have
knowledge of the occurrence of a "Servicer Termination Event" under any Series
Related Document, the Obligors shall promptly notify the Trustee and the
related Series Support Provider, if any, and shall specify in such notice the
action, if any, such Obligor and the Obligors' Agent is taking with respect of
such default. If such Servicer Termination Event shall arise from the failure
of the Servicer to perform any of its duties or obligations hereunder with
respect to the related Series Trust Estate, the Obligors and the Obligors'
Agent shall take all reasonable steps available to it to remedy such failure.
(e) Upon any termination of any Servicer's rights and
powers pursuant to any Series Related Document, the Obligors' Agent shall
promptly notify the Trustee. As soon as a successor Servicer is appointed, the
Obligors' Agent shall notify the Trustee of such appointment, specifying in
such notice the name and address of such successor Servicer.
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Section 14.06. Money for Note Payments to Be Held in Trust.
All payments of amounts due and payable with respect to any Notes that are to
be made from amounts withdrawn from the related Series Account shall be made on
behalf of the related Series Obligors by the Trustee or by another Paying
Agent, and no amounts so withdrawn from any Series Account for payments of
Notes shall be paid over to any Obligor, except as provided in the related
Series Supplement.
The related Series Obligors will cause each Paying Agent other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will, with respect to each related Series
of Notes:
(1) hold all sums held by it for the payment of the
principal of or interest on the related Notes in trust for the benefit
of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the related
Series Obligors (or any other obligor upon the related Notes) in the
making of any payment of principal or interest on such Notes;
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent;
(4) immediately resign as a Paying Agent and forthwith
pay to the Trustee all sums held by it in trust for the payment of the
related Notes if at any time it ceases to meet the standards required
to be met by a Paying Agent at the time of its appointment; and
(5) comply with all requirements of the Code with respect
to the withholding from any payments made by it on any Notes of any
applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith.
The related Series Obligors may at any time, for the purpose
of obtaining the satisfaction and discharge of any Series Supplement or for any
other purpose, pay, or by Obligors' Order direct any Paying Agent to pay, to
the Trustee all sums held in trust by such Paying Agent, such sums to be held
by the Trustee upon the same trusts as those upon which such sums were held by
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, in
trust for the payment of the principal of or interest on any Note and remaining
unclaimed for two
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years after such principal or interest has become due and payable shall be paid
to the Obligors' Agent, as specified in an Obligors' Order; and the Holder of
such Note shall thereafter, as an unsecured general creditor, look only to the
Obligors' Agent for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Obligors' Agent cause to be
published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Obligors' Agent.
Section 14.07. Corporate Existence. Except as provided in
Section 14.03, each Obligor will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and material
rights (charter and statutory) and material franchises of such Obligor;
provided, however, that the Obligors with the prior written consent of any
Series Support Provider shall not be required to preserve any such right or
franchise if such Obligor shall determine that the preservation thereof is no
longer desirable in the conduct of the business of such Obligor, and that the
loss thereof is not disadvantageous in any material respect to the Holders of
the related Notes.
Section 14.08. Payment of Taxes and Other Claims. Each
Obligor will pay or discharge or cause to be paid or discharged, before the
same shall become delinquent, (1) all taxes, assessments and governmental
charges levied or imposed upon such Obligor on any portion of any Series Trust
Estate, or upon the income, profits or property of such Obligor, and (2) all
lawful claims for labor, materials and supplies which, if unpaid, might by law
become a Lien upon the Property of such Obligor; provided, however, that such
Obligor shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings and such Obligor shall have set aside on its books adequate
reserves with respect thereto.
Section 14.09. Amendment of Organizational Documents. No
Obligor will amend its Organizational Documents without the prior written
consent of the related Series Control Parties, and shall not amend its
Organizational Documents in any manner that materially and adversely affects
the Holders of the related Notes or any related Series Support Provider.
(b) No Obligor shall take any action which would adversely
impact the corporate separateness of such Obligor with Advanta Business
Services Corp., or which would adversely impact its status as a "bankruptcy
remote" entity. Each Obligor shall strictly abide by the restrictive
provisions of its Organizational Documents in further of the foregoing.
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Section 14.10. Rule 144A Information. With respect to the
Holder of any Unregistered Note, the Obligors shall promptly furnish or cause
to be furnished to such Holder or to a prospective purchaser of such an
Unregistered Note designated by such Holder, as the case may be, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act ("Rule 144A Information") in order to permit compliance by such
Holder with Rule 144A in connection with the resale of such Unregistered Note
by such Holder; provided, however, that the Obligors shall not be required to
furnish Rule 144A Information in connection with any request made on or after
the date which is three years from the later of (i) the date such Note (or any
predecessor Note) was acquired from the Obligors or (ii) the date such Note (or
any predecessor Note) was last acquired from an "affiliate" of the Obligors
within the meaning of Rule 144 under the Securities Act; and provided, further,
that the Obligors shall not be required to furnish such information at any time
to a prospective purchaser located outside the United States who is not a
"United States Person" within the meaning of Regulation S under the Securities
Act if such Note may then be sold to such prospective purchaser in accordance
with Rule 904 under the Securities Act (or any successor provision thereto).
Section 14.11. Further Instruments and Acts. Upon request of
the Trustee or any Series Support Provider, each Obligor and the Obligors'
Agent will execute and deliver such further instruments and do such further
acts as may be reasonably necessary or proper to carry out more effectively the
purpose of this Master Agreement, any related Series Supplement and any related
Series Related Document.
Section 14.12. Compliance with Laws. Each Obligor shall
comply with all applicable Requirements of Law, the noncompliance with which
would, individually or in the aggregate, materially and adversely affect the
ability of such Obligor to perform its obligations under the related Notes,
this Master Agreement, the related Series Supplements or the related Series
Related Document.
Section 14.13. Income Tax Characterization. For purposes of
Federal income, state and local income and franchise and any other income
taxes, each Obligor will treat the related Notes as debt of such Obligor.
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.01. Counterparts. For the purpose of facilitating
the execution of this Master Agreement and for other purposes, this Master
Agreement may be executed simultaneously in any number of counterparts, each of
which counterparts shall be deemed to be an original, and all of which
counterparts shall constitute but one and the same instrument.
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Section 15.02. Governing Law. This Master Agreement, each
Series Supplement and each Note shall be governed by, and construed in
accordance with, the laws of the State of New York and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws, without regard to the conflict of laws provisions of any State.
Section 15.03. Notices. All demands, notices and
communications (other than periodic communications of a routine nature made in
connection with the dissemination of information regarding the Pledged Property
and the Servicer required to be delivered hereunder, which shall be delivered
or mailed by first class mail) hereunder shall be in writing, personally
delivered or mailed by overnight courier, and shall be deemed to have been duly
given upon receipt (a) in the case of Contributor and the Servicer, at the
following address: Advanta Business Services Corp., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer, (b) in the case of the
Trustee, at the following address: The Chase Manhattan Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇- ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust
Department, (c) in the case of the Obligors' Agent, at the following address:
Advanta Leasing Receivables Corp. III, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Treasurer, and (d) in the case of any Series Support Party, at the
address specified for such notice in the applicable Series Supplement, or, in
each of the foregoing cases (a)-(d), at such other address as shall be
designated by such party in a written notice to the other parties. Any notice
required or permitted to be mailed to a Noteholder shall be given by first
class mail, postage prepaid, at the address of such Holder as shown in the Note
Register or the related Series Supplement, respectively. Any notice to a
Noteholder which is so mailed within the time prescribed in this Agreement
shall be conclusively presumed to have been duly given on the fifth Business
Day following mailing, whether or not the Noteholder receives such notice.
Section 15.04. Severability of Provisions. If any one or
more of the covenants, agreements, provisions, or terms of this Master
Agreement shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no
way affect the validity or enforceability of the other provisions of this
Master Agreement or of the Notes or the rights of the Holders thereof.
Section 15.05. Binding Effect. This Master Agreement shall
inure to the benefit of, and shall be binding upon, (i) the Servicer, (ii) the
Obligors' Agent and each Obligor, (iii) the Trustee, (iv) the Noteholders, (v)
the Series Support Providers, if any, (vi) to the extent expressly provided
hereunder, the Affiliates of the Trustee, the Noteholders and the Series
Support Providers, if any, and (vii) the respective successors and permitted
assigns of each of the foregoing, subject, in each of the foregoing cases, to
the limitations contained in this Agreement.
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Section 15.06. Exhibits. The exhibits to this Master
Agreement are hereby incorporated herein and made a part hereof and are an
integral part of this Master Agreement.
Section 15.07. Calculations. All interest rate calculations
under this Agreement will be carried out to at least seven decimal places. All
payments on the Contracts shall be calculated on the Actuarial Method.
Section 15.08. Further Assurances. The Obligors, the
Obligors' Agent and the Servicer agree to do and perform, from time to time,
any and all acts and to execute any and all further instruments and documents
required or reasonably requested by the Trustee to effect more fully the
purposes of this Master Agreement, including, without limitation, the execution
of any financing statements or continuation statements relating to the Trust
Estate for filing under the provisions of the UCC of any applicable
jurisdiction.
Section 15.09. Nonpetition Covenant. Notwithstanding any
prior termination of this Master Agreement, none of the parties hereto, any
Noteholder, any Series Support Provider, the Contributor, the Obligors' Agent
nor any Obligor shall, prior to the date which is one year and one day after
the payment in full of the Notes of all Series, acquiesce, petition or
otherwise invoke or cause any Obligor to invoke the process of any Governmental
Authority for the purpose of commencing or sustaining a case against any
Obligor under any Federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator
or other similar official of or for any Obligor or any substantial part of its
property or ordering the winding-up or liquidation of the affairs of any
Obligor.
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IN WITNESS WHEREOF, the Servicer, the Obligors' Agent and the
Trustee have caused this Agreement to be duly executed by their respective
officers, all as of the day and year first above written.
ADVANTA BUSINESS SERVICES
CORP., as Servicer
By:________________________________
Title:
ADVANTA LEASING RECEIVABLES
CORP. III, as Obligors'
Agent
By:________________________________
Title:
THE CHASE MANHATTAN BANK,
as Trustee
By:________________________________
Title:
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