1
EXHIBIT 4.3
OH&S DRAFT
05/19/99
--------------------------------------------------------------------------------
MASTER SALE AND CONTRIBUTION AGREEMENT
among
ADVANTA BUSINESS SERVICES CORP.,
as the Originator and Servicer,
ADVANTA LEASING RECEIVABLES CORP. VIII
and
ADVANTA LEASING RECEIVABLES CORP. IX,
as the Obligors
Dated as of
______, 1999
--------------------------------------------------------------------------------
2
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
SECTION 1.01 Terms Defined in the Master Agreement..............................................................1
SECTION 1.02 Additional Definitions.............................................................................2
ARTICLE II
CONVEYANCE OF CONVEYED ASSETS
SECTION 2.01 Conveyance.........................................................................................2
SECTION 2.02 Custody of Contract Files..........................................................................3
SECTION 2.03 Servicing of Conveyed Assets.......................................................................4
SECTION 2.04 Conveyance of Conveyed Assets......................................................................4
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.0l Representations and Warranties of ABS..............................................................4
SECTION 3.02 Representations and Warranties of the Obligors.....................................................6
SECTION 3.03 Repurchase Contracts and Equipment by ABS..........................................................7
ARTICLE IV
COVENANTS OF ABS AND THE OBLIGORS
SECTION 4.01 ABS Covenants.......................................................................................8
SECTION 4.02 Covenants of Each Obligor.........................................................................11
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.01 Conditions to the Obligors' Obligations...........................................................12
SECTION 5.02 Conditions to ABS's Obligations...................................................................12
ARTICLE VI
TERMINATION
SECTION 6.01 Termination.......................................................................................13
SECTION 6.02 Effect of Termination.............................................................................13
3
TABLE OF CONTENTS
(CONTINUED)
PAGE
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.01 Amendment.........................................................................................13
SECTION 7.02 Governing Law.....................................................................................13
SECTION 7.03 Notices...........................................................................................13
SECTION 7.04 Severability of Provisions........................................................................14
SECTION 7.05 Assignment........................................................................................14
SECTION 7.06 Further Assurances................................................................................14
SECTION 7.07 No Waiver; Cumulative Remedies....................................................................14
SECTION 7.08 Counterparts......................................................................................14
SECTION 7.09 Binding Effect....................................................................................14
SECTION 7.10 Merger and Integration............................................................................14
SECTION 7.11 Headings..........................................................................................15
SECTION 7.12 Exhibit............................................................................................15
SECTION 7.13 No Bankruptcy Petition Against any Obligor........................................................15
-vii-
4
MASTER SALE AND CONTRIBUTION AGREEMENT
THIS MASTER SALE AND CONTRIBUTION AGREEMENT, dated as of
______, 1999 (this "Master Sale Agreement"), is entered into among ADVANTA
BUSINESS SERVICES CORP., a Delaware corporation ("ABS"), as Originator and as
Servicer under the Master Agreement, ADVANTA LEASING RECEIVABLES CORP. VIII, a
Nevada corporation located at 000 Xxxxxx Xxxx, Xxxxx 000-X, Xxxx, Xxxxxx 00000
("ALRC VIII") and ADVANTA LEASING RECEIVABLES CORP. IX, a Nevada corporation
located at 000 Xxxxxx Xxxx, Xxxxx 000-X, Xxxx, Xxxxxx 00000 ("ALRC IX"), (ALRC
VIII and ALRC IX each individually, an "Obligor" and, together, the "Obligors")
as the purchasers or recipient of Conveyed Assets hereunder.
W I T N E S S E T H:
WHEREAS, ABS, in the ordinary course of its business has,
originated or acquired a portfolio of Contracts; and
WHEREAS, ABS desires to sell, contribute, transfer and assign
all of its right, title and interest in and to the Conveyed Assets (as defined
below) to the Obligors upon the terms and conditions set forth herein;
WHEREAS, the Obligors, ABS, in its capacity as Servicer, and
Bankers Trust Company, as Trustee, have heretofore entered into a Master
Facility Agreement, dated as of ______, 1999 (the "Master Agreement") pursuant
to which the Obligors will finance, in whole or in part, their purchase and
holding of the Conveyed Assets;
WHEREAS, it is contemplated that, following the purchase of
the Conveyed Assets by the Obligors, ABS, as Servicer or any successor thereto
as Servicer under the Master Agreement, will administer and service the Conveyed
Assets;
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Terms Defined in the Master Agreement. For the
purposes of this Master Sale Agreement, capitalized terms used herein but not
otherwise defined shall have the respective meanings assigned to such terms in
the Master Agreement.
5
SECTION 1.02 Additional Definitions. Whenever used in this
Master Sale Agreement, the following words and phrases shall have the following
meanings:
"ABS" shall mean Advanta Business Services Corp., a Delaware
corporation, and its successors and assigns.
"Conveyance" shall have the meaning set forth in Section 2.01
hereof.
"Conveyed Assets" shall mean (i) each Contract sold or
contributed by ABS and acquired by the Obligor(s) pursuant to this Master Sale
Agreement together with all amounts due or to become due thereunder, (ii) all
Collections after the related Cut-Off Date, (iii) Related Security, associated
therewith, (iv) all balances, instruments, monies and other securities and
investments received or held from time to time by the Servicer and representing
Collections received after the related Cut-off Date, (v) the right, title and
interest of ABS in the Equipment, in each case associated with such Contracts,
and (vii) all proceeds of the foregoing, but excluding, any Insurance Premiums,
taxes, late charge fees and Initial Unpaid Amounts.
"Electronic Ledger" shall mean the Servicer's master
electronic record of all contracts serviced by it, including the Contracts.
"Insurance Premiums" shall mean any insurance premiums paid by
ABS with respect to the Contracts or the Equipment and which premiums are
returned to ABS as a refund of such amounts.
"Master Sale Agreement" shall mean this Master Sale and
Contribution Agreement and all amendments hereto.
"Purchase Date" shall mean each date on which a sale and/or
contribution of Conveyed Assets is to be effected, as set forth in the related
Sale Agreement Supplement.
"Sale Agreement Supplement" shall mean each Sale and
Contribution Agreement Supplement executed and delivered pursuant to this Master
Sale Agreement substantially in the form of Exhibit A.
"Substitute Contract" shall, with respect to any Series, have
the meaning specified in the related Series Supplement.
ARTICLE II
CONVEYANCE OF CONVEYED ASSETS
SECTION 2.01 Conveyance. (a) ABS hereby, on each Purchase
Date, as evidenced by the execution and delivery by ABS and the Obligors of a
Sale Agreement Supplement, sells, transfers, assigns, sets over, contributes,
quitclaims and otherwise conveys to the Obligors (collectively, the
"Conveyance") all of ABS's right, title and interest in, to and under the
related Conveyed Assets, whether in existence at the Purchase Date or thereafter
arising. The Conveyed Assets conveyed to each of the respective Obligors shall
be as set forth in the related Sale
2
6
Agreement Supplement. Each such transfer of Conveyed Assets by ABS shall be
without representation, warranty or recourse except as expressly provided in
Section 3.01.
(b) The purchase price for the Conveyed Assets conveyed
pursuant to this Master Sale Agreement and the amount of such Conveyed Assets
which will be contributed to the Obligors shall be determined by ABS and the
Obligors at the time of the execution and delivery of such related Sale
Agreement Supplement. The amount paid to ABS for the Conveyed Assets sold on a
Purchase Date shall be paid by the Obligors to or at the direction of ABS as
provided in the related Sale Agreement Supplement.
(c) In connection with each such Conveyance, prior to each
related Purchase Date, ABS agrees to record and file, at its own expense,
financing statements (and thereafter timely continuation statements with respect
to such financing statements) with respect to the related Conveyed Assets,
meeting the requirements of applicable state law in such manner and in such
jurisdictions as are necessary or reasonably desirable to perfect and to
maintain the perfection of, the conveyance of the related Conveyed Assets from
ABS to the Obligors and the pledge of such related Conveyed Assets from the
Obligors to the Trustee, and to deliver a copy of such financing statements or
other evidence of such filings to the Obligors on or prior to the related
Purchase Date; provided, however, that except as required by the Master
Agreement, no financing statements will be recorded or filed with respect to the
sale or transfer of the Equipment owned by ABS unless (i) ABS, as Servicer shall
determine to file UCC-3 statements or similar statements with respect to such
Equipment in order to exercise remedies with respect to Charged-Off Contracts to
which such Equipment relates or (ii) such Equipment has a value in excess of
$25,000; and provided, further, that the Contract Files will not be physically
delivered to the Obligors or to the Trustee, but instead will be held by the
Servicer (or its designated custodian) on behalf of the Trustee and the Contract
Files will be marked as required by the Master Agreement.
(d) In connection with each such Conveyance, ABS shall, at its
own expense, (i) cause its books and records to be marked to show that the
related Conveyed Assets have been transferred to the Obligors in accordance with
this Master Sale Agreement, and that the related Conveyed Assets have been
pledged to the Trustee in accordance with the Master Agreement on or prior to
the related Purchase Date and (ii) deliver to the Obligors the related List of
Contracts on the related Purchase Date. Each Obligor agrees (i) to xxxx its
books and records to show the acquisition of the Conveyed Assets and that such
Conveyed Assets have been pledged to the Trustee in accordance with the Master
Agreement and a specified Series Supplement and (ii) to deliver to the Trustee
the related List of Contracts on the related Purchase Date. In addition, the
Servicer, shall cause its Electronic Ledger to include the Conveyed Assets as
contracts serviced by the Servicer and shall xxxx its Electronic Ledger to show
that the related Conveyed Assets are owned by the Obligors in accordance with
this Master Sale Agreement and such Conveyed Assets have been pledged to the
Trustee in accordance with the Master Agreement and the Series Supplement on or
prior to the related Purchase Date.
SECTION 2.02 Custody of Contract Files. In connection with (a)
each Conveyance of Conveyed Assets to the Obligors, and (b) each pledge by such
Obligors to the Trustee for the benefit of the related Series Secured Parties,
pursuant to the Master Agreement, the Servicer will
3
7
retain the Contract Files (provided that such Contract Files may be held by a
designated custodian of the Servicer) and any related evidence of insurance
and payments on behalf of the Trustee.
SECTION 2.03 Servicing of Conveyed Assets. In connection with
the Conveyance of the Conveyed Assets to the Obligors pursuant to this Master
Sale Agreement and pursuant to the related Sale Agreement Supplement and the
pledge thereof to the Trustee, ABS hereby agrees, until a successor servicer
accepts such duties and responsibilities, to service the Conveyed Assets for the
benefit of the Obligors (and their respective successors and assigns) and the
Trustee in accordance with the terms and conditions of the Master Agreement.
SECTION 2.04 Conveyance of Conveyed Assets. Each Conveyance of
Conveyed Assets shall be evidenced by the execution and delivery by the Obligors
and ABS of this Master Sale Agreement and the execution and delivery of a Sale
Agreement Supplement in the form of Exhibit A hereto, and all of the Obligors'
rights hereunder and thereunder shall similarly be pledged to the Trustee for
the benefit of the related Series Secured Parties as of the related Purchase
Date. Each such conveyance shall be effective as of the related Purchase Date.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.0l Representations and Warranties of ABS. ABS hereby
makes the following representations and warranties for the benefit of the
Obligors, the Trustee and the related Series Secured Parties. Such
representations and warranties speak, as to the Conveyed Assets conveyed as of
the related Purchase Date, unless otherwise indicated, but shall survive each
Conveyance of the Conveyed Assets to the Obligors and their successors and
assigns.
(a) As of the Purchase Date each, contract is an "Eligible
Contract" as such term is defined in the related Series Supplement and as
defined in the Sale Agreement Supplement.
(b) As to ABS:
(i) Organization and Good Standing. ABS is a
corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware, with full corporate power and
authority to own its properties and to conduct its business as
presently conducted, and ABS had at all relevant times, and now has,
power, authority, and legal right to acquire, own, contribute and sell
the Conveyed Assets;
(ii) Due Qualification. ABS is duly qualified to do
business as a foreign corporation and is in good standing, and has
obtained all necessary licenses and approvals, in all jurisdictions in
which its ownership or lease of property or the servicing of the
contracts or the conduct of its business requires such qualification,
license or approval, except to the extent that the failure to be so
qualified, or to obtain such licenses and approvals, would not, in the
aggregate, materially and adversely affect the ability of ABS to
perform its obligations under the Master Agreement and all supplements
thereto, this
4
8
Master Sale Agreement, each Sale Agreement Supplement and each Series
Related Document to which ABS is a party;
(iii) Power and Authority. ABS has full corporate
power and authority to execute and deliver this Master Sale Agreement,
each Sale Agreement Supplement and each other Series Related Document
to which ABS is a party and to carry out their respective terms; ABS
has duly authorized the sale and contribution to the Obligor(s) of the
related Conveyed Assets by all necessary corporate action; and the
execution, delivery, and performance of all Series Related Documents
has been duly authorized by ABS by all necessary corporate action;
(iv) Valid Sale; Binding Obligations. Upon execution
and delivery of each Sale Agreement Supplement by ABS, such Sale
Agreement Supplement will constitute an absolute assignment to the
Obligors of all right, title and interest of ABS in the Conveyed Assets
transferred thereby, and the Conveyed Assets will thereafter be held by
the Obligors free and clear of Adverse Claims of ABS or any Person
claiming through or under ABS, except for Adverse Claims permitted
under, or to be created by, the Master Agreement and the Series
Supplement; this Master Sale Agreement and each Series Related Document
to which ABS is a party when duly executed and delivered, will each
constitute a legal, valid, and binding obligation of ABS, enforceable
against ABS in accordance with its terms, except that (A) such
enforcement may be subject to bankruptcy, insolvency, receivership,
conservatorship 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 a proceeding at law or in equity;
(v) No Violation. The consummation of the
transactions contemplated by and the fulfillment of the terms of the
Master Agreement, each Series Supplement, this Master Sale Agreement,
each Sale Agreement Supplement and each Series Related Document to
which ABS is a party will not conflict with, result in any breach of
any of the terms and provisions of, or constitute (with or without
notice or lapse of time) a default under, the certificate of
incorporation or bylaws of ABS, or any material term of any indenture,
agreement, mortgage, deed of trust, or other instrument to which ABS is
a party or by which it is bound, or result in the creation or
imposition of any Adverse Claim upon any of its properties pursuant to
the terms of any such indenture, agreement, mortgage, deed of trust, or
other instrument, other than this Master Sale Agreement, the Sale
Agreement Supplement, the Master Agreement and each Series Related
Document to which ABS is a party, or violate any law or any order,
writ, judgment award, injunction, decree, rule, or regulation
applicable to ABS or affecting it or its property, which would have a
material adverse effect on the Conveyed Assets, and no transaction
contemplated hereby requires compliance with any bulk sales act or
similar law;
(vi) No Proceedings. There are no proceedings or
investigations pending, or, to the knowledge of ABS, threatened, before
any court, regulatory body, administrative agency, or other tribunal or
governmental authority (A) asserting the invalidity of this
5
9
Master Sale Agreement or the Master Agreement, (B) seeking to prevent
the consummation of the transactions contemplated by this Master Sale
Agreement, any Sale Agreement Supplement or the Master Agreement, or
(C) seeking any determination or ruling, that might (in the reasonable
judgement of ABS) materially and adversely affect the performance by
ABS of its obligations under, or the validity or enforceability of,
this Master Sale Agreement, any Sale Agreement Supplement or the Master
Agreement;
(vii) Insolvency. ABS is not insolvent and will not
be rendered insolvent by the transactions contemplated by this Master
Sale Agreement or the Master Agreement;
(viii) Principal Place of Business. Except to the
extent that notice of any change in such location or locations has been
given as provided in Section 4.01(e) of this Master Sale Agreement,
ABS's principal place of business, and chief executive office is
located at 0000 Xxxxxx Xxx Xxxx, Xxxxxxxx, Xxx Xxxxxx 00000;
(ix) Valid Assignment. It is the intention of ABS
that each sale, contribution, transfer and assignment herein
contemplated constitute a valid assignment of the related Conveyed
Assets from ABS to the Obligors and that the beneficial interest in and
title to the Conveyed Assets not be part of the estate of ABS in the
event of any insolvency or receivership or conservatorship proceeding
with respect to ABS;
(x) 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 ABS of this Master Sale
Agreement or any Sale Agreement Supplement, except for such
authorizations, approvals, actions, notices and filings as have already
been obtained, taken or made in connection with Municipal Contracts;
(xi) Accuracy of Information. All information
heretofore furnished in writing by ABS to the Obligors or the Trustee
for purposes of or in connection with this Master Sale Agreement or any
transfer 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 ABS to such Persons will be true,
accurate and complete in every material respect, on the date such
information is stated or certified; and
(xii) Names. ABS has not, in the past two years, used
any corporate names, trade names or assumed names other than the name
in which it has executed this Master Sale Agreement.
SECTION 3.02 Representations and Warranties of the Obligors.
Each Obligor hereby makes the following representations and warranties with
respect to itself and not with respect to any other Obligor. The following
representations and warranties are made to ABS in its individual capacity and as
Seller and as Servicer and to the Trustee and to each Series Secured Party. ABS
will rely and the Obligors acknowledge and agree that ABS will rely on the
following representations and warranties in agreeing to enter into this Master
Sale Agreement and sell and
6
10
contribute Conveyed Assets hereunder. Such representations and warranties speak
as of each Purchase Date, and shall survive each sale, transfer and assignment
of the respective Conveyed Assets to the Obligors and their respective
successors and assigns.
(a) Organization and Good Standing. The Obligor is a legal
entity duly organized, validly existing and in good standing under the laws of
the State of its organization, with full corporate power and authority to own
its properties and to conduct its business as presently conducted;
(b) Due Qualification. The Obligor is duly qualified to do
business as a foreign corporation and is in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions in which its ownership or
lease of property or the conduct of its business requires such qualification,
license or approval, except to the extent that the failure to be so qualified,
or to obtain such license and approvals would not, in the aggregate, materially
and adversely affect the ability of the Obligor to comply with the terms of this
Master Sale Agreement, the Master Agreement and all Series Related Documents to
which the Obligor is a party;
(c) Power and Authority. The Obligor has the corporate power
and authority to execute and deliver this Master Sale Agreement, the Master
Agreement and all Series Related Documents to which it is a party and to carry
out their respective terms; and the execution, delivery, and performance of this
Master Sale Agreement, the Master Agreement and all Series Related Documents to
which the Obligor is a party have been duly authorized by the Obligor by all
necessary corporate action;
(d) Binding Obligations. This Master Sale Agreement, the
Master Agreement and each Series Related Document to which the Obligor is a
party, when executed and delivered, will constitute a legal, valid and binding
obligation of such Obligor enforceable against such Obligor in accordance with
its 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 a proceeding at law or in equity;
(e) No Violation. The consummation of the transactions
contemplated by and the fulfillment of the terms of this Master Sale Agreement,
the Master Agreement, the Series Supplement, each Sale Agreement Supplement to
which the Obligor is a party and all other Series Related Documents to which the
Obligor is a party will not conflict with, result in any breach of any of the
terms and provisions of, or constitute (with or without notice or lapse of time)
a default under, the organizational documents of the Obligor, or any material
term of any agreement to which the Obligor is a party.
SECTION 3.03 Repurchase Contracts and Equipment by ABS. Upon
discovery by the Trustee, the Servicer or an Obligor of a breach of any of the
representations and warranties made pursuant to Section 3.01 above or in any
Sale Agreement Supplement that materially and adversely affects the interests of
the Obligors or their successors or assigns, including the Trustee
7
11
or any Holder of Notes, in any of the Contracts, the Equipment or the Contract
File, the party discovering such breach shall give prompt written notice to the
others. Unless the breach shall have been cured by ABS or any successor thereto
or waived, ABS shall repurchase such Contract and the Equipment subject to such
Contract from appropriate Obligor or Obligors on the date such Contract is
removed from the Series Trust Estate and on such date pay the repurchase price
to the Trustee for the benefit of the Obligors and the Obligors shall direct the
Trustee to deposit such amount in the Collection Account created under the
appropriate Sereis Supplement. The repurchase price shall be equal to the
Prepayment Amount determined as provided under the terms of the Master
Agreement. The obligation of ABS as provided in this Section 3.03 to repurchase
any Contract and the Equipment subject to such Contract as to which a breach has
occurred and is continuing and to remit the Prepayment Amount shall constitute
the sole remedy against ABS for such breach available to the Obligors and the
Trustee. The representations and warranties set forth in Section 3.01 and the
Sale Agreement Supplements shall survive each sale, transfer and assignment of
the Conveyed Assets to the Obligors and their pledge to the Trustee.
ARTICLE IV
COVENANTS OF ABS AND THE OBLIGORS
SECTION 4.01 ABS Covenants. ABS hereby covenants and agrees
with the Obligors as follows:
(a) Merger of, Consolidation of, or Assumption of the
Obligations of, ABS. Any corporation (i) into which ABS may be merged or
consolidated, (ii) resulting from any merger, conversion, or consolidation to
which ABS shall be party, or (iii) succeeding to the business of ABS
substantially as a whole, which corporation in any of the foregoing cases
executes an agreement of assumption to perform every obligation of ABS under
this Master Sale Agreement and each Sale Agreement Supplement and under the
Master Agreement, each Series Supplement and all other Series Related Documents,
will be the successor to ABS under this Master Sale Agreement and each Sale
Agreement Supplement without the execution or filing of any document or the
taking of any further act on the part of any of the parties to this Master Sale
Agreement, anything in this Master Sale Agreement or any Sale Agreement
Supplement notwithstanding; provided, however, that immediately after giving
effect to such transaction, no representation or warranty made pursuant to
Section 3.01 shall have been breached.
(b) Limitation on Liability of ABS and Others. ABS and any
director or officer or employee or agent of ABS may rely in good faith on any
document of any kind, prima facie properly executed and submitted by any Person
respecting any matters arising under this Master Sale Agreement and each Sale
Agreement Supplement. ABS shall not be under any obligation to appear in,
prosecute, or defend any legal action that is not incidental to its obligations
as the seller of the Conveyed Assets under this Master Sale Agreement or any
Sale Agreement Supplement and that in its opinion may involve it in any expense
or liability.
(c) Preservation of Security Interest. ABS shall execute and
file such financing statements and cause to be executed and filed such
continuation statements, all in such manner and in such places as may be
required by law fully to preserve, maintain, and protect the interest of the
8
12
Obligors under this Master Sale Agreement and each Sale Agreement Supplement in
the Conveyed Assets and in the proceeds thereof; provided, that no filings shall
be required on any Equipment owned by ABS except (i) as required by ABS's Credit
and Collection Policy and (ii) as otherwise required by any Sale Agreement
Supplement. ABS shall not be required to file financing statements with respect
to the Equipment owned by ABS except as otherwise required hereby.
(d) Preservation of Name, etc. ABS will not change its name,
identity or corporate structure in any manner that would, could, or might make
any financing statement or continuation statement filed by ABS in accordance
with paragraph (c) above or the Master Agreement seriously misleading within the
meaning of Section 9-402 (7) of the UCC, unless it shall have given the Obligors
and the Trustee at least 30 days' prior written notice thereof.
(e) Preservation of Office. ABS will give the Obligors and the
Trustee at least 30 days' prior written notice of any relocation of its
principal executive office if, as a result of such relocation, the applicable
provisions of the UCC would require the filing of any amendment of any
previously filed financing, or continuation statement or of any new financing
statement filed hereunder or pursuant to the terms of any conveyance agreement
and will give the Obligors and the Trustee at least 30 days' prior written
notice of any change in location of the Contract Files.
(f) Making of Record. ABS, as transferor of the Contracts and
Equipment will, at its own cost and expense, (i) maintain a master record of the
Contracts and Equipment and (ii) xxxx its records to show that the Contracts and
Equipment have been conveyed to the Obligors and that they have been pledged and
assigned to the Trustee pursuant to the Master Agreement.
(g) Compliance with Law. ABS will comply, in all material
respects, with all acts, rules, regulations, orders, decrees and directions of
any governmental authority applicable to the Conveyed Assets or any part
thereof; provided, however, that ABS may contest any act, regulation, order,
decree or direction in any reasonable manner which shall not materially and
adversely affect the rights of the Obligors or the Trustee in the Conveyed
Assets.
(h) Conveyance of Conveyed Assets: Security Interests. Except
for the sales and conveyances under this Master Sale Agreement and under each
Sale Agreement Supplement and pursuant to the Master Agreement, ABS will not
sell, pledge, assign or transfer to any other Person, or grant, create, incur,
assume or suffer to exist any Adverse Claim on any Asset, or any interest
therein and ABS shall defend the right, title, and interest of the Obligors and
their successors and assigns in, to and under the Conveyed Assets, against all
claims of third parties claiming through or under ABS provided, however that
nothing in this Section 4.01(h), shall prevent or be deemed to prohibit ABS from
suffering to exist upon any of the Conveyed Assets any Adverse Claim for
federal, state, municipal or other local taxes if such taxes shall not at the
time be due and payable or if ABS shall concurrently be contesting the validity
thereof in good faith by appropriate proceedings which act to stay enforcement
thereof and shall have set aside on its books adequate reserves with respect
thereto.
(i) Notification of Breach. ABS will advise each Obligor and
the Trustee promptly, in reasonable detail, of the occurrence of any breach by
ABS or other party hereto
9
13
following discovery by ABS of such breach of any of its representations,
warranties and covenants contained herein.
(j) Further Assurances. ABS will make, execute or endorse,
acknowledge and file or deliver to the Obligors from time to time such
schedules, confirmatory assignments, conveyances, transfer endorsements, powers
of attorney, certificates, reports and other assurances or instruments and take
such further steps relating to the Conveyed Assets and other rights covered by
this Master Sale Agreement, as the Obligors or the Trustee may request and
reasonably require; provided, however that, no UCC filing, will be required with
respect to the Equipment except as otherwise required hereby or by the Master
Agreement.
(k) Maintenance of Records. ABS agrees to maintain this Master
Sale Agreement and each Sale Agreement Supplement continuously from the time of
its execution.
(l) Non-disclosure. ABS hereby covenants and agrees with the
Obligors not to disclose to any Person (except the Trustee, any rating agency
rating obligations issued by the Obligors and investors or potential investors
in such obligations) any of the information provided to the Servicer to be
included in the Electronic Ledger or any List of Contracts delivered on any
Purchase Dates pursuant to Section 5.01(c) hereof or Section 2(c) of the Sale
Agreement Supplement, except such disclosures as are required upon the
appointment of a successor Servicer under the Master Agreement or by law and
except that ABS 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. ABS hereby agrees to
take such measures as shall be reasonably requested by the Obligors or their
duly appointed agent or the Trustee to protect and maintain the security and
confidentiality of any of the information, and in connection therewith, shall
allow the Obligors or their duly appointed agent and the Trustee from time to
time during normal business hours and upon reasonable prior notice to inspect
the applicable security and confidentiality arrangements from time to time in
normal business hours. ABS shall give the Obligors and the Trustee five days'
prior written notice of any disclosure pursuant to this Section 4.01(l).
(m) ABS understands that the Obligors intend to pledge the
Conveyed Assets and the Obligors' rights (but not their obligations) under this
Master Sale Agreement to the Trustee pursuant to the Master Agreement and hereby
consents to the assignment of all or any portion of this Master Sale Agreement
and the Sale Agreement Supplements by each Obligor to the Trustee. ABS agrees
that any such assignee of each Obligor may exercise the rights of such Obligor
hereunder and shall be entitled to all of the benefits of such Obligor hereunder
and to the extent provided for in the Master Agreement.
10
14
SECTION 4.02 Covenants of Each Obligor. Each Obligor for
itself and not for any other Obligor, each hereby covenants and agrees with ABS
as follows:
(a) Non-disclosure; Inspection. Each Obligor hereby covenants
and agrees with ABS not to disclose to any Person (except the Servicer, the
Trustee, any rating agency rating obligations issued by the Obligors and
investors or potential investors in such obligations) any of the information
contained in the Electronic Ledger, or any List of Contracts delivered on any
Purchase Date to the Obligors pursuant to Section 5.01(c) hereof and Section
2(c) of the Sale Agreement Supplement, except such disclosures as are required
upon appointment of a successor Servicer under the Master Agreement or by law
and except that the Obligor 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 a 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. Each
Obligor agrees to take such measures as shall be reasonably requested by ABS to
protect and maintain the security and confidentiality of such information, and,
in connection therewith, shall allow ABS from time to time during normal
business hours and upon reasonable prior notice to inspect the applicable
security, and confidentiality arrangements. The Obligors shall give ABS five
days' prior written notice of any disclosure pursuant to this Section 4.02(a).
(b) Reconveyance. Prior to each date as of which Contracts and
the Equipment subject to such Contracts are to be repurchased by ABS pursuant to
Section 3.03, the Obligors shall cause the Trustee, in accordance with Section
6.11 of the Master Agreement, to assign, on behalf of the Obligors, without
recourse, representation, or warranty, to ABS all of the Obligor's right, title,
and interest in and to such removed Contract, such purchased Equipment, and all
security and documents relating, thereto, such assignment being an assignment
outright and not for security; and upon payment of the Prepayment Amount, ABS
will thereupon own such Contract, such Equipment and all such security and
documents, free of any further obligation to the Obligor with respect thereto.
If 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
holder entitled to enforce the Contract, the Obligors shall, at the Obligor's
expense, take such steps as the Obligors deem necessary to enforce the Contract,
including bringing suit in such Obligors' names.
(c) User's Quiet Enjoyment. Each Obligor hereby acknowledges
and agrees that its rights in the Equipment are expressly subject to the rights
of the related Users in such Equipment pursuant to the applicable Contract. Each
Obligor covenants and agrees that, so long as a User shall not be in default of
any of the provisions of the applicable Contract, no Obligor nor any assignee of
any of the Obligor will disturb the Obligor's quiet and peaceful possession of
the related Equipment and the User's unrestricted use thereof for its intended
purpose.
11
15
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.01 Conditions to the Obligors' Obligations. The
obligations of an Obligor to enter into this Master Sale Agreement and each a
Sale Agreement Supplement and purchase or otherwise acquire Conveyed Assets on
the related Purchase Date shall be subject to the satisfaction of the following
conditions:
(a) All representations and warranties of ABS contained in
this Master Sale Agreement with respect to the Conveyed Assets conveyed on the
Purchase Date shall be true and correct on the related Purchase Date with the
same effect as though such representations and warranties had been made on such
date;
(b) All information concerning such Conveyed Assets provided
to such Obligor shall be true and correct as of the related Cut-Off Date in all
material respects;
(c) ABS shall have delivered to such Obligor a List of
Contracts as of the related Cut-Off Date and shall have substantially performed
all other obligations required to be performed by the provisions of this Master
Sale Agreement;
(d) ABS shall have recorded and filed, at its expense, any
financing statement with respect to such Conveyed Assets pursuant to this Master
Sale Agreement meeting the requirements of applicable state law in such manner
in such jurisdictions as are necessary to perfect the transfer of such Conveyed
Assets from ABS to such Obligor, and shall deliver a copy of such financing
statements or other evidence of such filings to the Obligors and the Trustee;
and
(e) All corporate and legal proceedings and all instruments in
connection with the transactions contemplated by this Master Sale Agreement
shall be satisfactory in form and substance to the Obligors and the Obligors
shall have received from ABS copies of all documents (including, without
limitation, records of corporate proceedings) relevant to the transactions
herein contemplated as the Obligors may reasonably have requested.
SECTION 5.02 Conditions to ABS's Obligations. The obligations
of ABS to enter into this Master Sale Agreement any Sale Agreement Supplement
and to sell, transfer, contribute and assign any Conveyed Assets on the related
Purchase Date shall be subject to the satisfaction of the following conditions:
(a) ABS and the Obligors shall have agreed on the value of the
Conveyed Assets. The combination of the purchase price paid and the value of the
Conveyed Assets contributed by ABS to the capital of one or more Obligors shall
not be less than the fair market value of the Conveyed Assets.
(b) All representations and warranties of the Obligors
contained in this Master Sale Agreement and in the related Sale Agreement
Supplement shall be true and correct with the same effect as though such
representations and warranties had been made on such date; and
12
16
(c) All corporate and legal proceedings and all instruments in
connection with the transactions contemplated by this Master Sale Agreement
shall be satisfactory in form and substance to ABS, and ABS shall have received
from the Obligors copies of all documents (including, without limitation,
records of corporate proceedings) relevant to the transactions herein
contemplated as ABS may reasonably have requested.
ARTICLE VI
TERMINATION
SECTION 6.01 Termination. The respective obligations and
responsibilities of ABS and each Obligor created by this Master Sale Agreement
and any Sale Agreement Supplement shall terminate upon the earliest of (i) the
maturity or other liquidation of the last Contract and the disposition of any
amounts received upon disposition of any Charged-Off Contracts or sale of the
Equipment; (ii) the distribution to all Obligors of all amounts required to be
paid to them pursuant to this Master Sale Agreement; and (iii) the termination
of the Master Sale Agreement.
SECTION 6.02 Effect of Termination. No termination nor
rejection or failure to assume the executory obligations of this Master Sale
Agreement in the bankruptcy, insolvency conservatorship or receivership of ABS,
or any Obligor shall be deemed to impair or affect the obligations pertaining to
any executed sale or executed obligations, including, without limitation,
pretermination breaches of representations and warranties by ABS or any Obligor.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.01 Amendment. This Master Sale Agreement may be
amended from time to time by ABS and each of the Obligors, only with the prior
written consent of the Trustee.
SECTION 7.02 Governing Law. This Master Sale Agreement and any
amendment hereof pursuant to Section 7.01 shall be construed in accordance with
and governed by the substantive laws of the State of New York (without regard to
choice of law principles) applicable to agreements made and to be performed
therein and the obligations, rights, and remedies of the parties under this
Master Sale Agreement shall be determined in accordance with such laws.
SECTION 7.03 Notices. All demands, notices, and communications
under this Master Sale Agreement shall be in writing, and shall be deemed to
have been duly given, made and received (i) when delivered against receipt of
registered or certified mail or upon actual receipt of registered or certified
mail, postage prepaid, return receipt requested; (ii) when delivered by courier
with appropriate evidence of receipt; or (iii) upon transmission via facsimile
or telex with appropriate evidence of receipt (a) in the case of ABS, at the
following address: Advanta Business Services Corp., 0000 Xxxxxx Xxx Xxxx,
Xxxxxxxx, Xxx Xxxxxx, 00000, attention: Treasury Department, (b) in the case of
Advanta Leasing Receivables Corp. VIII, to such Obligor at the
13
17
following address: Advanta Leasing Receivables Corp. VIII, 000 Xxxxxx Xxxx,
Xxxxx 000-X, Xxxx, Xxxxxx 00000, and (c) in the case of Advanta Leasing
Receivables Corp. IX, to such Obligor at the following address: Advanta Leasing
Receivables Corp. IX, to such Obligor, at the following address: 000 Xxxxxx
Xxxx, Xxxxx 000-X, Xxxx, Xxxxxx 00000. Any party may alter the address to which
communications are to be sent by giving notice of such change of address in
conformity with the provisions of this Section 7.03 for giving notice and by
otherwise complying with any applicable terms of this Master Sale Agreement,
including, but not limited to, subsections 4.01(d) and (e).
SECTION 7.04 Severability of Provisions. If any one or more of
the covenants, agreements, provisions, or terms of this Master Sale 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 Master Sale Agreement and
shall in no way affect the validity or enforceability of the other provisions of
this Master Sale Agreement.
SECTION 7.05 Assignment. Notwithstanding, anything to the
contrary contained in this Master Sale Agreement, this Master Sale Agreement may
not be assigned by ABS, except (i) as provided in Section 4.01(a) and (ii) as
collateral security, granted to the Trustee, without the prior written consent
of each of the Obligors, and, except as provided in Section 4.03, this Master
Sale Agreement may not be assigned by any of the Obligors without the prior
written consent of ABS.
SECTION 7.06 Further Assurances. Each of ABS and each Obligor
agrees to do such further acts and to execute and deliver to the Trustee such
additional assigns, agreements, powers and instruments as are required by the
Trustee to carry into effect the purposes of this Master Sale Agreement or to
better assure and confirm unto the Trustee its rights, powers and remedies
hereunder.
SECTION 7.07 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of either Obligor or ABS, any
right, remedy, power or privilege hereunder, shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise hereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exhaustive of any
rights, remedies, powers and privilege provided by law.
SECTION 7.08 Counterparts. This Master Sale Agreement may be
executed in two or more counterparts and by different parties on separate
counterparts, each of which shall be an original, but all of which shall
constitute one and the same instrument.
SECTION 7.09 Binding Effect. This Master Sale Agreement, will
inure to the benefit of and be binding upon the parties hereto, the Trustee, the
Noteholders and their respective successors and permitted assigns.
SECTION 7.10 Merger and Integration. Except as specifically
stated otherwise herein, this Master Sale Agreement, the Sale Agreement
Supplements, the Master Agreement and all related Series Related Documents set
forth the entire understanding of the parties relating to the
14
18
subject matter hereof, and all prior understandings, written or oral, are
superseded by, this Master Sale Agreement, the Sale Agreement Supplements, the
Master Agreement and the Series Related Documents. This Master Sale Agreement
may not be modified, amended, waived or supplemented except as provided herein.
SECTION 7.11 Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
SECTION 7.12 Exhibit. The exhibit attached hereto and referred
to herein shall constitute a part of this Master Sale Agreement and is
incorporated into this Master Sale Agreement for all purposes.
SECTION 7.13 No Bankruptcy Petition Against any Obligor. Each
of ABS and each Obligor agrees that, prior to the date that is one year and one
day after the payment in full of the Notes, it will not institute against any
Obligor, or join any other Person in instituting against any Obligor, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other proceedings under the laws of the United States or any state of the
United States. This Section 7.13 shall survive the termination of this Master
Sale Agreement.
15
19
IN WITNESS WHEREOF, ABS and the Obligors have caused this
Master Sale and Contribution Agreement to be duly executed by their respective
officers as of the day and year first above written.
ADVANTA BUSINESS SERVICES CORP.,
in its individual capacity and as
Originator and Servicer
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
ADVANTA LEASING RECEIVABLES CORP. VIII,
as an Obligor
By:
------------------------------------
ADVANTA LEASING RECEIVABLES CORP. IX,
as an Obligor
By:
------------------------------------
20
EXHIBIT A
FORM OF SALE AND CONTRIBUTION AGREEMENT SUPPLEMENT
THIS SALE AND CONTRIBUTION AGREEMENT SUPPLEMENT (this "Sale Agreement
Supplement"), dated _________________ (the "Purchase Date") is entered into
among ADVANTA BUSINESS SERVICES CORP., ("ABS," in its capacity as "Originator"
and "Servicer"), a Delaware corporation located at 0000 Xxxxxx Xxx Xxxx,
Xxxxxxxx, Xxx Xxxxxx 00000, ADVANTA LEASING RECEIVABLES CORP. VIII ("ALRC
VIII"), a Nevada corporation located at 000 Xxxxxx Xxxx, Xxxxx 000-X, Xxxx,
Xxxxxx 00000 and ADVANTA LEASING RECEIVABLES CORP. IX ("ALRC IX"), a Nevada
corporation located at 000 Xxxxxx Xxxx, Xxxxx 000-X, Xxxx, Xxxxxx 00000 (each of
ALRC VIII and ALRC IX is an "Obligor" and a purchaser or recipient of a
contribution hereunder).
W I T N E S S E T H:
Reference is hereby made to that certain Master Sale and
Contribution Agreement dated as of ______, 1999 (the "Master Sale Agreement")
among ABS and the Obligors. Pursuant to the Master Sale Agreement ABS agrees to
sell, transfer, assign, set over, contribute, quitclaim and otherwise convey to
the Obligors and the Obligors agree to purchase, acquire or accept, from time to
time, Conveyed Assets (as defined below) and the Obligors agree to Pledge such
Conveyed Assets to the Trustee. The Master Sale Agreement provides that each
sale of Conveyed Assets be evidenced by the execution of delivery of a Sale and
Contribution Agreement Supplement (each a "Sale Agreement Supplement") such as
this Supplement.
The Conveyed Assets sold or contributed by ABS pursuant to
this Supplement consist of (i) the Contracts listed on List of Contracts
delivered with this Sale Agreement Supplement, all amounts due or to become due
thereunder (ii) all Collections after the related Cut-Off Date, (iii) Related
Security associated therewith, (iv) all balances, instruments, monies and other
securities and investments received or held from time to time by the Servicer
and representing Collections received after the related Cut-Off Date; (v) the
right, title and interest of ABS in the Equipment associated with such
Contracts, and (vi) all proceeds of the foregoing, but excluding any Insurance
Premiums, taxes, late charge fees and Initial Unpaid Amounts.
The Cut-Off Date with respect to the Contracts is the close of
business on ___________. The Purchase Date is ___________.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
21
Section 1. Definitions. For the purposes of this Agreement,
capitalized terms used herein but not otherwise defined shall have the
respective meanings assigned to such terms in the Master Agreement or the Master
Sale Agreement.
Section 2. Conveyance. (a) (i) ABS hereby sells, transfers,
assigns, sets over contributes, quitclaims and otherwise conveys to ALRC VIII
all of ABS's right, title and interest in, to, and under all Conveyed Assets
consisting of ABS's Residual Interest in the Equipment, whether now existing or
hereafter arising. Each such transfer of the Residual Interest shall be without
representation, warranty or recourse except as set forth in Section 3 hereof.
(ii) ABS hereby sells, transfers, assigns, sets over
contributes, quitclaims and otherwise conveys to ALRC IX all of ABS's right,
title and interest in, to, and under all Conveyed Assets other than the Residual
Interest, whether now existing or hereafter arising. Each such transfer of
Conveyed Assets by ABS shall be without representation, warranty or recourse
except as set forth in Section 3 hereof.
(iii) Except to the extent such Conveyed Assets are
transferred as a contribution to the capital of the Obligor, the Obligors, in
consideration of the transfer of the Conveyed Assets to the Obligors, shall pay
to ABS on this Purchase Date the purchase price as specified below in subsection
(d) of this Section 2.
(b) In connection with such transfer, ABS has heretofore
recorded and filed, at its own expense, financing statements (and will hereafter
file timely continuation statements with respect to such financing statements)
with respect to the Conveyed Assets, meeting the requirements of applicable
state law in such manner and in such jurisdictions as are necessary to perfect
and to maintain the perfection of, the conveyance of the Conveyed Assets from
ABS to the Obligors and the pledge of the Conveyed Assets from the Obligors to
the Trustee, and delivered a copy of such financing statements or other evidence
of such filings to the Obligors; provided, however, that except as required by
the Master Agreement no financing statements have been or will be recorded or
filed with respect to the sale or transfer of the Equipment owned by ABS unless
(i) ABS as Servicer shall determine to file UCC-3 or similar statements with
respect to such Equipment in order to exercise remedies with respect to
Charged-Off Contracts to which such Equipment relates or (ii) such Equipment has
a value in excess of $25,000; and provided, further, that the Contract Files
will not be physically delivered to the Obligors or to the Trustee but instead
will be held by the Servicer (or its designated custodian) on behalf of the
Trustee and the Contract Files will be marked as required by the Master
Agreement.
(c) In connection with such transfer, ABS shall, at its
expense, (i) cause its books and records to be marked to show that the Conveyed
Assets have been transferred to the Obligors in accordance with the Master Sale
Agreement and this Sale Agreement Supplement and the Conveyed Assets have been
pledged to the Trustee in accordance with the Master Agreement on or prior to
the Purchase Date and (ii) deliver to the Obligors the related List of
Contracts. Each Obligor agrees (i) to xxxx its books and records to show the
acquisition of the Conveyed Assets and that such Conveyed Assets have been
pledged to the Trustee in accordance with the Master Agreement and this Sale
Agreement Supplement and (ii) to deliver to the Trustee the related List of
Contracts on the Purchase Date.
A-2
22
(d) (i) With respect to the Conveyed Assets consisting of the
Residual Interest contributed to ALRC VIII under Section 2(a)(i) of this Sale
Agreement Supplement, ABS and ALRC VIII agree that ALRC VIII shall pay to ABS
the sum of $___________and the balance of the value of such Residual Interest
conveyed hereunder shall constitute a contribution to the capital of ALRC VIII
and shall be duly recorded in the books of ALRC VIII. The amount, if any, to be
paid by ALRC VIII to ABS as set forth in this subsection 2(d)(i) shall be paid
to ABS on the date hereof in immediately available funds.
(ii) With respect to the Conveyed Assets sold and contributed
to ALRC IX under Section 2(a)(ii) of this Sale Agreement Supplement, ABS and
ALRC IX agree that ALRC IX shall pay to ABS the sum of $___________ and the
balance of the value of the Conveyed Assets conveyed to ALRC IX hereunder shall
constitute a contribution to the capital of ALRC IX and shall be duly recorded
in the books of ALRC VIII. The amount, if any, to be paid by ALRC IX to ABS as
set forth in this subsection 2(d)(ii) shall be paid to ABS on the date hereof in
immediately available funds.
Section 3. Representations and Warranties. (a) ABS hereby (i)
confirms the accuracy, as of the Purchase Date, of the representations and
warranties of ABS set forth in Section 3.01 of the Master Sale Agreement with
respect to the Contracts conveyed on the Purchase Date and (ii) represents and
warrants that, as of the Purchase Date, each Contract is an "Eligible
Contract" as such term is defined in the Series ____ Supplement dated as of
____, ___. Such representations and warranties are made for the benefit of the
Obligors and the Trustee, and the Obligor are relying on such representations
and warranties in purchasing the Conveyed Assets. Such representations and
warranties speak as of the Purchase Date, unless otherwise indicated, but
shall survive the transfer of the respective Conveyed Assets to the Obligor
and its successors and assigns and the Pledge by the Obligor to the Trustee.
(b) Each Obligor hereby confirms the accuracy as of the
Purchase Date of the representations and warranties set forth in Section 3.02
of the Master Sale Agreement.
Section 4. Amendment. This Sale Agreement Supplement may be
amended from time to time by ABS and the Obligors only with the prior written
consent of the Trustee.
Section 5. Governing Law. This Sale Agreement Supplement and
any amendment hereof pursuant to Section 4 shall be construed in accordance with
and governed by the substantive laws of the State of New York (without regard to
choice of law principles) applicable to agreements made and to be performed
therein and the obligations, rights, and remedies of the parties under this Sale
Agreement Supplement shall be determined in accordance with such laws.
Section 6. Counterparts. This Sale Agreement Supplement may be
executed in two or more counterparts (and by different parties on separate
counterparts), each of which shall be an original, but all of which shall
constitute one and the same instrument.
A-3
23
Section 7. Binding Effect: Third-Party Beneficiaries. This
Sale Agreement Supplement will inure to the benefit of and be binding upon the
parties hereto, the Trustee and their respective successors and permitted
assigns.
Section 8. Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
A-4
24
IN WITNESS WHEREOF, ABS and the Obligors have caused this Sale
and Contribution Agreement Supplement to be duly executed by their respective
officers as of the day and year first above written.
ADVANTA BUSINESS SERVICES CORP.,
in its individual capacity and as
Seller and Servicer
By:
---------------------------------
Name:
------------------------------
Title:
-----------------------------
By:
---------------------------------
Name:
------------------------------
Title:
-----------------------------
ADVANTA LEASING RECEIVABLES VIII,
as an Obligor
By:
---------------------------------
Name:
------------------------------
Title:
-----------------------------
ADVANTA LEASING RECEIVABLES IX,
as an Obligor
By:
---------------------------------
Name:
------------------------------
Title:
-----------------------------
