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Exhibit 4.2
_______________________________________________________________________________
ADVANTA BUSINESS SERVICES CORP.,
Individually, and as the Servicer,
_______________________________________
as the Obligor's Agent and as a Series Obligor
together with
_______________________________________
as a Series Obligor,
and
_______________________________________
as Trustee,
_______________________________________________________________________________
SERIES ________ SUPPLEMENT
Dated as of ________________
to the
MASTER BUSINESS RECEIVABLES ASSET-BACKED FINANCING FACILITY AGREEMENT
Dated as of ________________
_______________________________________________________________________________
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TABLE OF CONTENTS
Page
ARTICLE I CREATION OF THE SERIES NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
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SECTION 1.01. Designation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Pledge of Series Trust Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.03. Pledges of Additional Pledged Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.04. Assignment to a Group; Crossover Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE II DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE III DISTRIBUTIONS AND STATEMENTS TO
SERIES NOTEHOLDER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3.01. Series Facility Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3.02. Notice of Amounts Due . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3.03. Distributions from Series Facility Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 3.04. Reporting Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 3.05. Compliance With Withholding Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.06. Servicer Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.07. Special Covenants and Acknowledgements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 4.01. Increasing the Series Note Balance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE V SERIES EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 5.01. Series Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE VI PREPAYMENT AND REDEMPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 6.01. Mandatory Prepayment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 6.02. Optional "Clean-Up" Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 6.03. Tender of Series Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE VII MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 7.01. Agent Authorized to Act for the Purchasers; Notices . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 7.02. Ratification of Master Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 7.03. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 7.04. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 7.05. Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
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SECTION 7.06. Non-petition Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 7.07. Certain Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Exhibit A Form of Series ________ Note
Exhibit B Form of Agent's Monthly Statement of Amounts Due
Exhibit C Wire Instructions for Agent
Exhibit D Form of Servicer's Certificate
Exhibit E Forms of Contracts
Exhibit F Certain Information
Exhibit G Closing Checklist
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This Series Supplement, dated as of _____________ is by and
among Advanta Business Services Corp., a Delaware corporation, individually,
"ABS" and as initial servicer (in such capacity, the "Servicer"),
___________________________, a _________ corporation and _______
___________________, a ______________ banking corporation as trustee (in such
capacity, the "Trustee") for the Noteholders.
RECITALS
This Series ____________ Supplement is being executed and
delivered by the parties hereto pursuant to Section 13.02 of the Master
Business Receivables Asset-Backed Financing Facility Agreement dated as of
_________________ (the "Master Agreement") among such parties. In the event
that any term or provision contained herein shall conflict with or be
inconsistent with any term or provision contained in the Master Agreement, the
terms and provisions of this Series _____________ Supplement shall govern with
respect to Series ___________.
ARTICLE I
CREATION OF THE SERIES _________ NOTES
SECTION 1.01. Designation. There is hereby created a
Series of Notes to be issued pursuant to the Master Agreement and this Series
____________ Supplement to be known as "Advanta Business Receivables Master
Asset-Backed Financing Facility, Series __________ Notes."
SECTION 1.02. Pledge of Series _____________ Trust Estate.
The Series Obligors hereby pledge to the Trustee for the benefit of the Series
__________ Noteholders, and the Trustee hereby accepts the pledge of, all of
the Series Obligors' now owned and existing and hereafter acquired or arising
right, title and interest in and to (1) each and every Contract now or
hereafter listed as a Series ____________ Contract on each Pledge Notice
delivered to the Trustee, (2) all Collections and Related Security associated
therewith, (3) all balances, instruments, monies and other securities and
investments from time to time in the Series __________ Facility Account, to the
extent the same represent Collections or proceeds of Series _________ Contracts
or earnings with respect thereto, (4) each Series ____________ Contribution
Agreement Supplement and all of their rights (directly or through the Obligors'
Agent) to enforce the provisions of, and to benefit from the representations,
warranties and covenants made in each Series _________ Contribution Agreement
Supplement and in the Master Contribution Agreement, but only insofar as such
rights relate to the Series ______________ Trust Estate, (5) all of the Series
Obligors' rights, but none of their obligations under any Hedging Agreement,
(6) all security interests in the Equipment not owned by the Series Obligors,
and all Equipment owned by the Series Obligors, in each case associated with
the Series __________ Contracts, (7) any Crossover Amounts allocated to the
Series _____________ Trust Estate from another Series and (8) all proceeds of
each of the foregoing, but excluding any obligations of the Series Obligors, if
any, under each Series ___________ Contribution Agreement Supplement and the
Hedging Agreement and excluding any Insurance Premiums, taxes, late charge
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fees, Initial Unpaid Amounts and Security Deposits, all in accordance with, and
for the purposes set forth in, this Series ___________ Supplement (such
property, the "Series__________ Trust Estate").
SECTION 1.03. Pledges of Additional Pledged Property. (a)
During the Revolving Period, the Series Obligors may, upon not less than three
(3) Business Days' prior written notice (a "Pledge Notice"), pledge additional
property to the Trustee to be held in trust as part of the Series ________
Trust Estate. Each Pledge Notice shall specify:
(i) the proposed Pledge Date (which, except in the
case of the initial Pledge and any Pledge pursuant to Section 1.03(b),
shall be a Settlement Date),
(ii) the related List of Contracts, which shall also
include for each Series ________ Contract, the related Discounted
Booked Residual, and
(iii) the requested Additional Principal Amount (which
shall not be less than $___________ except as provided in Section
1.03(b) and Section 1.03(c)).
On the applicable Pledge Date, upon satisfaction of the applicable conditions
precedent set forth in Article IV of the Note Purchase Agreement, the Series
________ Noteholders shall deposit to the Series __________ Facility Account or
to such other account as the Obligors' Agent may specify in writing, in
immediately available funds, no later than 12:00 noon (New York City time), an
amount equal to the related Additional Principal Amount.
(b) In addition to the foregoing, the Series Obligors,
upon satisfaction of the applicable conditions set forth in Article IV of the
____________ Agreement, may Pledge Pledged Property to the Trustee to be held
in trust as part of the Series ________ Trust Estate without receiving any
Additional Principal Amount, by delivering a Pledge Notice to the Trustee not
less than five (5) Business Days prior to the proposed Pledge Date (which shall
be a Business Day, but need not be a Settlement Date);
(c) On each Settlement Date during the Revolving Period,
the Series Obligors, upon satisfaction of the applicable conditions set forth
in Article IV of the Note Purchase Agreement, shall Pledge additional Pledged
Property to the Trustee, to be held as part of the Series ________ Trust
Estate, provided that the Obligors' Agent shall have delivered by facsimile to
the Trustee on the Business Day preceding such Settlement Date a Pledge Notice
with respect to the Additional Contracts included in such additional Pledged
Property, together with a properly completed Contribution Agreement Supplement,
duly executed by Advanta Business Services Corp., the Obligors' Agent and the
Series Obligors. No Additional Principal Amount shall be due with respect to
any Pledged Property transferred pursuant to this Section 1.03(c), it being
understood that in connection with any such Pledge, the Series Obligors shall
be entitled to receive on
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such Settlement Date the distribution of Collections required by clause eighth
and part (a) of clause ninth of Section 3.03(a).
ABS will use its reasonable best efforts to originate, and
each Series Obligor will use its reasonable best efforts to acquire from ABS,
in each case during the Revolving Period, a sufficient volume of Eligible
Contracts such that a Required Amortization Event of the type described in
paragraph (a) of the definition thereof does not occur. If a Required
Amortization Event occurs, then no further Pledges of Pledged Property pursuant
to this Section 1.03(c) shall occur, and all amounts that would otherwise have
been disbursed in consideration of such Pledges shall be retained in the Series
____________ Facility Account and shall be distributed as set out in Section
3.03(a). The Series Obligors shall Pledge Pledged Property pursuant to
Sections 1.03(a), (b) and (c) only to the extent that one or more Hedging
Agreements are in full force and effect with respect thereto.
SECTION 1.04. Assignment to a Group; Crossover Amounts.
There is hereby established a Group for purposes of the Master Agreement, which
shall be known as "Group A"; the Series ________ Note is hereby assigned to
Group A. The amounts described in clause thirteenth of Section 3.03(a) are
hereby designated as the "Crossover Amounts" for the Series ________ Note for
purposes of the Master Agreement.
ARTICLE II
DEFINITIONS
SECTION 2.01. Definitions. (a) Whenever used in this
Series ____________ Supplement and when used in the Master Agreement with
respect to the Series ____________________, the following words and phrases
shall have the following meanings, and the definitions of such terms are
applicable to the singular as well as the plural forms of such terms and to the
masculine as well as to the feminine and neuter genders of such terms. Unless
otherwise defined in this Series ________ Supplement, terms defined in the
Master Agreement are used herein as therein defined. For purposes of the
Master Agreement, certain definitions are set forth in Section 7.07 hereof.
"Additional Principal Amount" means, (i) with respect to any
Pledge under Section 1.03(a), the aggregate Contract Principal Balance of the
related Series ________ Contracts which are the subject of such Pledge divided
by one plus the Reserve Percentage, and (ii) with respect to any Pledge under
Section 1.03(b) or (c), $0.
"Aggregate Notional Balance" means, with respect to any
Settlement Date, the aggregate notional principal balances set forth in all
Hedging Agreements with respect to such Settlement Date.
"Applicable Discount Rate" means with respect to any Series
________ Contract, the sum of (i) the Swap Rate applicable thereto, (ii) the
Servicing Fee, (iii) ________% and (iv) _____%.
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"Average Floating Rate" means, with respect to any Settlement
Date, the weighted average (weighted by the related notional balances) of the
rates pursuant to which floating rate payments due from the related Swap-holder
are calculated under each Hedging Agreement that is a Swap Contract.
"Average Swap Rate" means, with respect to any Settlement
Date, the weighted average (weighted by the related notional balances) of the
rates pursuant to which fixed rate payments due from the Series Obligors are
calculated under each Hedging Agreement that is a Swap Contract.
"Business Day" shall mean any day that is a Business Day under
the Master Agreement which is also a day on which banks are not authorized or
required to close in ________________ and on which The Depository Trust Company
of New York is open for business; provided, however, that when used in
connection with the LIBO Rate, "Business Day" shall mean a day on which
dealings in dollar deposits are also carried on in the London interbank market.
"Cap Agreement" means a Hedging Agreement under which the
Swap-holder will only make payments when and if a floating rate referenced
therein exceeds a specified level, and which provides for no payment by the
purchaser of such Cap Agreement other than an upfront payment which has, in the
case of any Cap Agreement dated prior to the date hereof, already been made.
"Change of Control" means (i) Advanta Leasing Holding Corp.
shall cease to own, free and clear of all Adverse Claims, 100% of the
outstanding shares of voting stock of ABS on a fully-diluted basis (other than
directors' qualifying shares, if any); (ii) ABS shall cease to own, either
directly or indirectly, free and clear of all Adverse Claims, (x) 100% of the
outstanding shares of voting stock of _________________________ or (y) 100% of
the outstanding membership interests of _______________________ on a
fully-diluted basis (other than directors' qualifying shares, if any); or (iii)
Advanta Corp. shall cease to own, directly or indirectly, free and clear of all
Adverse Claims, 100% of the outstanding shares of voting stock of Advanta
Leasing Holding Corp.
"Charged-Off Ratio" means, as of the last day of any
Collection Period, a percentage equal to (a) 12 times the excess of (x) the sum
of the aggregate Contract Principal Balance of all Charged-Off Contracts which
became Charged-Off Contracts during such Collection Period, over (y) the sum of
all disposition proceeds and Recoveries received during such Collection Period,
divided by (b) the Contract Principal Balance of all Series ________ Contracts
at the beginning of the related Collection Period.
"Closing Checklist" means the list of closing documents
required to be delivered on the Series ________ Closing Date.
"Compensating Interest Requirement" means with respect to any
Settlement Date, the product of (x)(i) the Aggregate Notional Balance
applicable to such Settlement Date, minus (ii) the Series ________ Note Balance
outstanding immediately prior to such
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Settlement Date and (y) the Average Swap Rate minus the Average Floating Rate,
each as applicable to the related Collection Period and calculated for such
Collection Period on the basis of a year of 360 days for the actual number of
days elapsed; provided, that if such amount is a negative number, then the
Compensating Interest Requirement shall be zero for the related Settlement
Date, provided, further that if Servicer ever deposits to the Series _________
Facility Account an aggregate cumulative amount in respect of Compensating
Interest Requirements of $_____________ then the Compensating Interest
Requirement shall thereafter be zero.
"Delinquency Ratio" means, at any time, a percentage equal to
(i) the aggregate Contract Balance Remaining of all Series ______ _ Contracts
that were Delinquent Contracts at such time, divided by (ii) the aggregate
Contract Balance Remaining of all Series ________ Contracts at such time.
"Discounted Booked Residual" means, with respect to any Series
________ Contract as of any date, the present value as of such date of the
Booked Residual with respect thereto, discounted at the Applicable Discount
Rate.
"Early Collection Fee" means, with respect to any Settlement
Date, the amount specified by the Agent as the "Early Collection Fee" in the
notice delivered pursuant to Section 3.02 hereof.
"Eligible Booked Residuals" means, on any date of
determination, with respect to all Series ________ Contracts, the product of
(i) the present value of the Booked Residuals discounted by the Applicable
Discount Rate and (ii) __%.
"Eligible Contracts" means, at the time of Pledge, a Series
________ Contract with respect to which:
(a) (i) is with a User whose billing address is in the
United States or its territories and possessions and requires all
payments under such Contract to be made in United States dollars and
(ii) is with a User who, if a natural person, is a resident of the
United States or its territories and possessions with legal capacity
to contract or, if a corporation or other business organization, is
organized under the laws of the United States, its territories or any
political subdivision thereof and has its chief executive office in
the United States or its territories,
(b) has not had any of its terms, conditions or
provisions modified or waived other than in compliance with the Credit
and Collection Policy and has not been restructured at any time when
such Contract was a Delinquent Contract,
(c) which constitutes "chattel paper" within the meaning
of Section 9-105(b) of the UCC of all applicable jurisdictions (other
than a Contract which is a loan in form and does not purport to
evidence a security interest in goods within the meaning of Section
9-105(h) of the UCC of all applicable jurisdictions) and there is
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only one original of such Contract that constitutes "chattel paper"
for purposes of the _________________ and ____________________,
(d) does not contravene any applicable federal, state and
local laws, and regulations thereunder (including, without limitation,
any law, rule and regulation relating to truth in lending, fair credit
billing, fair credit reporting, equal credit opportunity, fair debt
collection practices and privacy) and with respect to which no part of
such Contract thereto is in violation of any applicable law, rule or
regulation,
(e) satisfies in all material respects all applicable
requirements of the Credit and Collection Policy,
(f) if a Municipal Contract, does not have an Contract
Principal Balance that, when aggregated with the Contract Principal
Balances of all other Municipal Contracts included as Series ________
Contracts, that exceeds __% of the aggregate Contract Principal
Balance of all Series ________ Contracts,
(g) as of the related Pledge Date, is not a Delinquent
Contract; provided, that with respect to the Contracts Pledged on (and
only on) the initial Pledge Date, up to $________________ in aggregate
Contract Balance Remaining as of the related Cut-Off Date may be
represented by Delinquent Contracts,
(h) as of the related Pledge Date (other than a Contract
which is a loan in form), (i) contains "hell or high water" provisions
requiring the related User to assume all risk of loss or malfunction
of the related Equipment, and (ii) makes the related User absolutely
and unconditionally liable for all payments required to be made
thereunder, without any right of set-off, counterclaim, or other
defense (other than the discharge in bankruptcy of such related User)
and without any right to prepay the Contract or any contingencies tied
to the Series Obligors,
(i) when aggregated with the sum of the Contract
Principal Balance of the Series ________ Contracts of a single User
shall not be greater than the product of (i) ____% and (ii) the Series
________ Note Balance outstanding,
(j) creates a valid and enforceable security interest in
favor of the Contributor in the related Equipment, if any,
(k) is free and clear of any Adverse Claims, other than
the claims arising pursuant to this the Series ________ Supplement and
Master Agreement and the Transaction Documents; provided, however,
that nothing in this Section (k) shall prevent or be deemed to
prohibit the Contributor from suffering to exist upon such Contract
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 the
Contributor shall concurrently be contesting the validity thereof in
good faith by appropriate
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proceedings that have stayed enforcement thereof and shall have set
aside on its books adequate reserves with respect thereto,
(l) is in full force and effect in accordance with its
terms and contains enforceable provisions such that the right and
remedies of the holder thereof shall be adequate for realization
against the Equipment, if any, thereunder and of the benefits of any
security granted thereunder;
(m) does not provide for the substitution, exchange, or
addition of any other items of Equipment pursuant to such Contract
which would result in any reduction or extension of payments due
thereunder;
(n) by its terms is due and payable on or within ___
months of the applicable Pledge Date and, in either event, has not had
its payment terms extended other than in compliance with the Credit
and Collection Policy;
(o) arises under a Contract in substantially the form of
one of the form contracts set forth in Exhibit E hereto or otherwise
approved by the Agent in writing, which is in full force and effect
and constitutes the legal, valid and binding obligation of the related
User enforceable against such User in accordance with its terms
subject to no offset, counterclaim or other defense (other than the
discharge in bankruptcy of such User);
(p) (i) does not preclude the pledge, transfer or
assignment thereof, (ii) does not require the consent of the User to
the pledge, assignment or transfer thereof, and (iii) does not contain
a confidentiality provision that purports to restrict the ability of
the Trustee to exercise its rights under the Series _____ Related
Documents with respect thereto, including, without limitation, its
right to review the Contract; and
(q) was (i) originated or purchased by the Contributor in
the ordinary course of its business and (ii) approved and purchased or
funded in the ordinary course of the Contributor's business;
(r) is with a User that is not the User of any Charged-Off
Contract;
(s) except with respect to the Series ________ Contracts which
are the subject of the initial Pledge, is not and has never been a
Charged-Off Contract;
(t) either (i) is an account receivable representing all or
part of the sales price of merchandise, insurance and/or services
within the meaning of Section 3(c)(5) of the Investment Company Act of
1940, as amended, or (ii) represents a financial asset that converts
to cash within a finite period of time within the meaning of Rule 3a-7
promulgated under the Investment Company Act of 1940, as amended;
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(u) has not been designated by the Agent in a written notice
delivered to the Obligors' Agent as a Contract or member of a class of
Contracts that is not acceptable as an Eligible Contract, including,
without limitation, because such Contract arises under a Contract that
is not acceptable to the Agent, and
(v) in the case of a Non-Monthly Payment Contract, does not
have a Contract Principal Balance that, when aggregated with the
Contract Principal Balances of all other Series _______ Contracts
which are Non-Monthly Payment Contracts, exceeds __% of the aggregate
Contract Principal Balance of all Series ________ Contracts.
"Funding Agreement" means this Series ________ Supplement and
any agreement or instrument executed by any Funding Source with or for the
benefit of Falcon.
"Hedging Agreement" means any swap agreement (i) providing for
the Series Obligors to pay fixed interest rate payments in exchange for
receiving payments based on a weighted average floating rate calculated off of
the daily "H-15" commercial paper rate for related calendar month, (ii) issued
by a Swap-holder, (iii) purchased by the Obligors' Agent with respect to all or
a portion of the Series ________ Contracts, as the same may be modified from
time to time in accordance with the terms hereof and shall include any
supplemental or replacement Hedging Agreement and (iv) approved by the Agent.
Under each Hedging Agreement, payments due by one party will be net of payments
due to the other, and the party owing such net amount shall then remit the
difference to the other party by ACH or such other means specified herein.
Each Hedging Agreement shall provide that if the Swap-holder for such agreement
is downgraded below AA- by S&P or Aa3 by Xxxxx'x, the Swap- holder shall be
responsible for finding a replacement Swap-holder that fulfills the Rating
Criteria within 30 days of such downgrade. Each Hedging Agreement executed
after the date hereof shall contain a "non-petition clause" with respect to the
Series Obligors.
"Interest Period" means, with respect to any Settlement Date,
the prior Collection Period.
"LIBO Rate" has the meaning set forth in the_________________.
"Liquidity Termination Date" means _____________________,
provided, that such Liquidity Termination Date may be extended by an additional
six calendar months on the last Business Day of ______________ and
_______________of each year, commencing with ________, if the Obligor's Agent
gives the Trustee and the Agent written notice not later than forty-five (45)
days prior to the end of such _____________ or _____________ as the case may
be, and the Agent provides the Series Obligors with its written consent to such
extension not later than thirty (30) days after receipt of the Series Obligors'
Notice.
"Master Agreement" shall mean, for purposes of this Series
________ Supplement, the Master Business Receivables Asset-Backed Financing
Facility
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Agreement, dated as of __________________, among the Series Obligors, the
Servicer and the Trustee (without regard to Supplements for other Series), as
the same may be amended, restated, supplemented or otherwise modified from time
to time.
"Monthly Interest" means, with respect to any Settlement Date,
the amount specified by the Agent in the notice delivered pursuant to Section
3.02 hereof, as calculated by the Agent pursuant to Section _________ of the
__________________________.
"Monthly Principal Collections" shall mean, with respect to
any Collection Period, the sum, without duplication, of (i) all Contract
Principal received (or, in the case of the principal portion of any Advance
Payment, applied) with respect to the Series _____________ Contracts and
relating to such Collection Period, (ii) an amount equal to the Contract
Principal Balance of each Series ________ Contract as to which a Prepayment was
received with respect to the Series ______________ Contracts during such
Collection Period or (iii) the amount described in clause (a) of the definition
of "Prepayment Amount" with respect to all Prepayment Amounts received with
respect to the Series ______________ Contracts during such Collection Period.
"Noteholder's Carryover Interest" means, with respect to or,
Settlement Date, the amount of Monthly Interest due on the prior Settlement
Date but not paid on such prior Settlement Date, plus interest thereon from
such prior Settlement Date, calculated using the interest rate applicable to
the Series ________ Note for such Settlement Date, all as determined by the
___________.
"Pledge" means the transfer and assignment by the Series
Obligors hereunder to the Trustee for the benefit of the Series ______ _
Noteholders in accordance with Section 1.02 or 1.03 here of in and to specified
Pledged Property related thereto.
"Pledge Date" means each Business Day on which a Pledge occurs
pursuant to the terms of this Series ________ Supplement.
"Pledge Notice" has the meaning specified in Section 1.03
hereof.
"Pledged Property" means, with respect to the Series ________
Trust Estate, each Series ________ Contract, together with all associated
property and rights with respect thereto described in clauses (2) through (7)
of the definition of Series ________ Trust Estate.
"Principal Increase Date" has the meaning specified in Section
4.01(b).
"Record Date" means, with respect to any Settlement Date, the
close of business on the Business Day preceding such Settlement Date.
"Redemption Price" has the meaning specified in Section 6.02
hereof.
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"Refinance Proceeds" shall mean with respect to any Collection
Period, any proceeds of the issuance of a new series of notes or the issuance
of certificates in connection with a securitization of receivables, or
otherwise remitted to the Trustee by the Series Obligors, and in each case,
designated by the Series Obligors as Refinance Proceeds with respect to the
Series ________ Note, in each case remitted to the Trustee on the Settlement
Date following such Collection Period for deposit into the Series
_________Facility Account and application in accordance with Section 3.03(a)
hereof.
"Required Amortization Event" means the earliest to occur of
the following:
(a) failure of the Series Obligors, due to a lack of
supply of Eligible Contracts, to pledge Series ________ Contracts to
the Trustee on a Settlement Date during the Revolving Period with an
aggregate Contract Principal Balance at least equal to the sum of (i)
the aggregate Monthly Principal Collections with respect to the
applicable Collection Period plus (ii) the excess, if any, of the
Required Reserve on such Settlement Date over the actual amount of the
Reserve;
(b) any Event of Default or any Event of Servicer
Termination;
(c) a Change of Control;
(d) the Tangible Net Worth of Advanta Leasing Holding
Corp. is below $____________ for a period in excess of 30 consecutive calendar
days; and
(e) any obligation of ABS to repay Indebtedness in excess
of $____________ then outstanding shall be in default, and shall have been
accelerated by the lender thereunder.
"Required Reserve" means, on any date of determination, the
greater of (a) ____% of the Series Limit, and (b) an amount equal to
_______________:
"Reserve" means, on any date of determination, the excess, if
any, of (i) the aggregate Contract Principal Balance of all Series ________
Contracts on the date of determination plus the Eligible Booked Residuals, over
(ii) the Series ________ Note Balance outstanding on such date of
determination.
"Reserve Percentage" means ___%.
"Reserve Requirement" means the maximum aggregate reserve
requirement (including all basic, supplemental, marginal and other reserves)
which is imposed against the Reference Bank in respect of Eurocurrency
liabilities, as defined in Regulation D of the Board of Governors of the
Federal Reserve System as in effect from time to time.
"Residual Realization" means with respect to each Series
________ Contract that has reached the end of its term or has otherwise been
terminated during any previous
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Collection Period (other than a Charged-Off Contract) and with respect to which
the Equipment has been sold during the related Collection Period, an amount
equal to (a) Residual Receipts received by the Servicer with respect to such
Series ________ Contract divided by (b) the Discounted Booked Residual of such
Contract.
"Revolving Period" means the period from the initial Pledge
Date to but excluding the Revolving Period Termination Date.
"Revolving Period Termination Date" means the earlier to occur
of___________________________________.
"Series Limit" means $________________.
"Series Termination Date" means, with respect to the Series
________ Note, the Settlement Date occurring on the __th month following the
month in which the Revolving Period Termination Date occurs.
"Series Trust Estate" shall have the meaning set forth in
Section 1.02 hereof.
"Series Closing Date" shall mean _______________________.
"Series ________________ Contract" means each Contract listed
on a List of Contracts attached to a Pledge Notice which is delivered in
connection with a Pledge of Pledged Property with respect to the Series
________ Trust Estate, and which Contract (a) has not been released from the
Series ________ Trust Estate as provided herein or in the Master Agreement and
(b) is not a Charged-Off Contract.
"Series __________________ Facility Account" means the
______________________ Account.
"Series ________ Monthly Remittance Amount" means, with
respect to any Settlement Date, the aggregate amount of Collections received by
the Servicer during the prior Collection Period with respect to the Series
________ Trust Estate (other than Collections representing Advance Payments
until such Advance Payments are applied as Collections), together with all
Servicing Advances paid by the Servicer with respect to such Settlement Date
pursuant to Section 3.06 hereof.
"Series ____________ Note" shall mean any one of the Series
________ Notes executed by the Series Obligors, jointly and severally, in favor
of the Agent and authenticated by or on behalf of the Trustee, substantially in
the form of Exhibit A hereto, and any replacement therefore.
"Series ________ Note Balance" shall mean, for any date of
determination, an amount equal to (a) $________________ plus (b) the aggregate
principal amount of any Additional Principal Amounts paid by the Series
__________ Noteholders pursuant to Section
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4.01(b) hereof on or prior to such date of determination minus (d) the
aggregate amount of payments of principal paid to the Series __________
Noteholders pursuant to Section 3.03(b)(i) hereof prior to such date of
determination.
"Series _____________ Noteholder" shall mean the _________.
"Series ________ Event of Default" has the meaning specified
in Section 5.01 hereof.
"Series ________ Related Documents" means, collectively, this
Series ___________ Supplement, the Fee Letter, the Hedging Agreement(s), the
Master Agreement, the Contribution Agreement, the Series ________ Notes and all
other instruments, documents, financing statements and agreements executed and
delivered by the Series Obligors in connection herewith or therewith and each
Contribution Agreement Supplement executed pursuant thereto with respect to the
Series ________ Trust Estate.
"Servicer's Certificate" means a report with respect to Series
________, in substantially the form of Exhibit D hereto (appropriately
completed), furnished by the Servicer to the Trustee and the Agent pursuant to
Section 6.06 of the Master Agreement.
"Servicing Fee" means as of any Settlement Date, an amount
equal to one-twelfth of ______% of the average Contract Principal Balance of
the Series ________ in the prior Collection Period, payable on each Settlement
Date to the Servicer as compensation for the performance of its duties under
the Master Agreement.
"Settlement Date" means, the 20th of each month hereafter (or
if the 20th of any such month is not a Business Day, then on the next
succeeding Business Day) commencing with ____________.
"Swap Contract" means a Hedging Agreement which is not a Cap
Agreement.
"Swap Rate" means, with respect to any Settlement Date, the
rate pursuant to which Payments to be made by the Series Obligors are
calculated under the applicable Hedging Agreement.
"Swap-holder" means any financial institution having the legal
authority and corporate power to issue Hedging Agreements and which possesses a
rating of at least AA- by S&P and Aa3 by Xxxxx'x.
"Tangible Net Worth" means, with respect to Advanta Leasing
Holding Corp., the excess, if any, of (a) its consolidated total assets (less
the book value of its consolidated intangible assets) over (b) its consolidated
total liabilities, in each case, determined in accordance with generally
accepted accounting principles.
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ARTICLE III
DISTRIBUTIONS AND STATEMENTS TO
SERIES ____________ NOTEHOLDER; SERIES SPECIFIC COVENANTS
SECTION 3.01. Series Facility Account. (a) The Trustee, for
the benefit of the Series ________ Noteholder, shall establish and maintain an
account (the "Series Facility Account") as a segregated trust
account in the Trustee's corporate trust department, identified as the
"Facility Account for Advanta Master Asset-Backed Facility Agreement, in trust
for the registered Holder of the Series ____________ Note." The Trustee shall
make or permit withdrawals from the Series ______________ Facility Account only
as provided in this Series ________ Supplement.
(b) On each Settlement Date, the Trustee shall transfer
the Series __________ Monthly Remittance Amount with respect to such Settlement
Date from the Master Facility Account to the Series ________ Facility Account.
(c) On each Settlement Date, the Trustee shall deposit to
the Series ___________ Facility Account each payment, if any, received by the
Trustee from the Swap-holder pursuant to the terms of the Hedging Agreements.
(d) On each Settlement Date, ABS (whether or not ABS is
then the Servicer) shall deposit to the Series ___________ Facility Account the
Compensating Interest Requirement then due;
(e) The Trustee shall deposit to the Series ________
Facility Account all Refinance Proceeds remitted to it by the Series Obligors
in New York automated clearing house funds, within one Business Day after its
receipt thereof;
(f) The Trustee shall deposit to the Series ________
Facility Account any Crossover Amounts required to be deposited therein from
other Series assigned to Group A, as provided in the Series Supplement(s)
relating to such other Series; and
(g) Notwithstanding the foregoing, the Trustee and/or the
Servicer may deduct from amounts otherwise specified for deposit to the Series
___________ Facility Account any amounts previously deposited by the Trustee
into the Series __________ Facility Account 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.
SECTION 3.02. Notice of Amounts Due. On each Determination
Date the _____________ shall send to the Servicer a notice in the form of
Exhibit B hereto, in which the ______________ certifies the amounts described
in clauses fifth, sixth, seventh and twelfth of Section 3.03(a) hereof for the
related Settlement Date.
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SECTION 3.03. Distributions from Series Facility Account.
(a) On each Settlement Date, the Trustee (based solely on the information set
forth in the related Servicer's Certificate) shall allocate and distribute
funds on deposit in the Series _____________ Facility Account in the following
order of priority, without duplication:
first, to pay to any Persons that mistakenly deposited funds into the
Series __________ Facility Account, such mistakenly deposited funds;
second, to each Swap-holder, an amount equal to the payment then due
to it pursuant to any Hedging Agreement, if any;
third, if ABS or any Affiliate thereof is not then the Servicer, to
the Servicer, in payment of any Servicing Fee then due;
fourth, to the Servicer, an amount necessary to reimburse the Servicer
for any unreimbursed Servicer Advances;
fifth, to the Series ________ Noteholder, for the benefit of the
applicable Purchasers, the Monthly Interest due on such Settlement
Date, plus the Noteholder's Carryover Interest, if any;
sixth, to the Series ________ Noteholder, for the benefit of the
applicable Purchaser(s), the Early Collection Fee then due;
seventh, to the Series ________ Noteholder, for the benefit of the
applicable Purchaser(s), any other fees due under the Fee Letter;
eighth, to the Series ________ Noteholder, for the benefit of the
applicable Purchaser(s), in payment of principal, the Contract
Principal Balance of any Series ________ Contract which became a
Charged-Off Contract during the prior Collection Period; provided,
however, that if such Settlement Date occurs during the Revolving
Period, no distribution shall be required to be made pursuant to this
clause eighth, to the extent that the Series Obligors pledge Pledged
Property on such Settlement Date in the amount of such Contract
Principal Balance of such Charged-Off Contract;
ninth, (a) if such Settlement Date occurs during the Revolving Period,
and after giving effect to any Pledges of Pledged Property made on
such Settlement Date, the Reserve equals or exceeds the Required
Reserve, to the Series Obligors, in consideration of the Pledge and
delivery of Pledged Property on such Settlement Date, in an amount
equal to the sum (without duplication) of the aggregate Monthly
Principal Collections with respect to the prior Collection Period and
if after giving effect to any Pledges of Pledged Property made on such
Settlement Date, the Reserve is less than the Required Reserve, the
Series Obligors shall contribute additional Eligible Contracts as
provided in Section 1.03(c) herein or, to the extent additional assets
are unavailable, use such Collections to reduce the
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Series ________ Note Balance until the Reserve equals or exceeds the
Required Reserve, and (b) if such Settlement Date occurs after the
Revolving Period, to the Agent on behalf of the Series _______
Noteholders, in payment of the Series __________ Note Balance, in an
amount equal to the Monthly Principal Collections with respect to the
prior Collection Period;
tenth, to the Series ________ Noteholder, for the benefit of the
applicable Purchaser(s), in prepayment of the Series ________ Note
Balance, in the amount equal to the excess (if any) of the Required
Reserve over the then actual amount of the Reserve (after taking into
account all payments applied under the preceding clauses eighth and
ninth);
eleventh, if ABS or any Affiliate thereof is then the Servicer, to the
Servicer, in payment of any Servicing Fee then due;
twelfth, to the Series ________ Noteholder, for the benefit of the
applicable Purchaser(s), in payment of any other amounts owing to the
Series _______ Noteholder or the Agent under the Series ________
Related Documents; and
thirteenth, the balance, if any, to the Obligors' Agent for the
benefit of the applicable Series Obligor(s), or as otherwise directed
by it in writing;
provided, that notwithstanding such priorities, any Refinance Proceeds shall be
applied as directed in writing by the Obligor's Agent.
(b) All payments to the Series _____________ Noteholder
hereunder shall be made on the Settlement Date to the Agent for the benefit of
the applicable Purchaser(s) by wire transfer of immediately available funds to
an account designated in writing in the form of Exhibit C hereto delivered to
the Trustee on or prior to the related Determination Date without presentation
or surrender of the Series _____________ Note or the making of any notation
thereon. Any designation by the Agent of an account for receipt of wire
transfers pursuant to the preceding sentence shall be a standing instruction,
effective with respect to the applicable distribution date and all subsequent
distribution dates thereafter until revoked. In the absence of such timely wire
transfer instructions, payment will be made by cashiers check sent by overnight
courier to the Agent at the address designated pursuant to Section 7.01. All
reasonable costs and expenses incurred by the Trustee in connection with the
distribution of the payments to the Series ___________ Noteholder as set forth
in this Section 3.03(b) shall be paid by the Servicer.
(c) The Servicer will perform the duties of the
calculation agent under each Hedging Agreement and the Servicer and the Trustee
hereby acknowledge such appointment.
(d) By virtue of its acceptance of the Series ___________
Note, the Agent on behalf of the applicable Purchaser(s) shall be deemed to
have agreed that it will have
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no direct right of action against any Swap-holder for any failure to make any
payment due under the related Hedging Agreement; provided, that the Trustee
shall, and is hereby granted by the Obligors' Agent, the right to proceed
against any Swap-holder for any failure to make any payment due under the
related Hedging Agreement.
(e) If not theretofore paid in full, all amounts
outstanding with respect to the Series ________ Note shall be due and payable
on the Series Termination Date.
SECTION 3.04. Reporting Requirements. (a) The Servicer
shall send to the Agent, a copy of each Servicer's Certificate with respect to
each Collection Period, such Servicer's Certificate to be in the form of that
attached hereto as Exhibit D, at the same time as the Servicer sends such
Servicer's Certificate to the Trustee.
(b) By January 31 of each calendar year, commencing
January 31, 1998, the Servicer shall prepare and distribute to the Trustee and
to the Agent a statement containing such information as is required to be
provided by an issuer of indebtedness under the Code and such other customary
information as is necessary or may reasonably be requested by the Agent to
enable the Purchasers to prepare their tax returns.
(c) The Servicer and the Trustee shall furnish to the
Agent during the term of this Series ________ Supplement, such periodic,
special or other reports or information not specifically provided for herein,
as shall be necessary, reasonable or appropriate as shall be requested by the
Agent, all such reports or information to be provided by and in accordance with
reasonable instructions and directions as the Agent may reasonably require and
as the Servicer and the Trustee may reasonably be able to produce. In
furtherance of, and not in limitation of the foregoing, there shall be
delivered to the Agent by the Trustee, promptly following the Trustee's receipt
thereof, copies of (i) each Servicer's annual compliance statement delivered to
the Trustee pursuant to Section 6.07 of the Master Agreement, and (ii) each
financial statement and report delivered to the Trustee pursuant to Section
6.08 of the Master Agreement. The Trustee's obligation under this Section
3.04(c) shall only pertain to information provided by the Servicer to the
Trustee or otherwise in the Trustee's possession.
(d) The Trustee shall promptly, after any Responsible
Officer's receipt of copies thereof, or any Responsible Officer acquiring
actual knowledge thereof, send to the Agent (at the Servicer's expense):
(i) Written notice of any breach by the Contributor,
the Series Obligors or the Servicer of any of their respective
representations, warranties or covenants made in any of the Series
________ Related Documents to which it is a party;
(ii) A copy of each Servicer compliance statement
delivered to the Trustee pursuant to Section 6.07 of the Master
Agreement;
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(iii) A copy of each financial statement, Independent
Accountant's review, notice and report delivered to the Trustee
pursuant to Sections 6.08 and 12.04 of the Master Agreement;
(iv) Written notice of the occurrence of any Series
Event of Default, Required Amortization Event or Event of Servicer
Termination;
(v) Written notice of any failure of the Trustee to
conform to the eligibility requirements for the Trustee pursuant to
Section 11.08 of the Master Agreement;
(vi) Written notice of the appointment of any
co-trustee or separate trustee by the Trustee pursuant to Section
11.15 of the Master Agreement; and
(vii) Copies of all other financial statements, reports,
information and/or notices as may be reasonably requested by the Agent
and, in each case, which has been received by or is otherwise in the
possession of the Trustee or to which the Trustee would have access or
would be entitled to receive or request in accordance with the terms
of the Master Agreement;
provided, however, that in each case the Trustee shall only be required to send
such notices and other items to the Agent to the extent that the Trustee has
itself received or has knowledge of the related information. Except as may be
specifically provided herein, the Trustee shall have no obligation to seek to
obtain any such information.
SECTION 3.05. Compliance With Withholding Requirements.
Notwithstanding any other provisions of this Series ________ Supplement or the
Master Agreement to the contrary, the Trustee, for and on behalf of, and at the
direction of the Servicer, shall comply with all federal withholding
requirements respecting payments (or advances thereof) to the Agent on behalf
of the Purchasers as may be applicable to instruments constituting indebtedness
for federal income tax purposes. Any amounts so withheld shall be treated as
having been paid to the Agent on behalf of the applicable Purchasers for all
purposes of this Master Agreement. In no event shall the consent of the Agent
or any Purchasers be required for any such withholding.
SECTION 3.06. Servicer Advances. No later than one
Business Day preceding each Settlement Date, the Servicer shall make a Servicer
Advance for each Contract which is a Delinquent with respect to each Overdue
Payment as of the related Calculation Date in an amount equal to the Scheduled
Payments, or portion thereof, which were due but not received during the
related Collection Period (and not previously covered by an unreimbursed
Servicer Advance); provided, however, that the Servicer shall not be obligated
to make any Servicer Advance pursuant to this Section 3.06 which the Servicer
determines in its sole discretion and in accordance with its customary
servicing practices is unlikely to be eventually repaid from Scheduled Payments
or from Residual Receipts made by or on behalf of the related User. On each
Determination Date, the Servicer shall deliver to the Trustee and the Agent the
Servicer's Certificate
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listing the aggregate amount of Scheduled Payments not received for the
immediately prior Collection Period as of the related Calculation Date which it
has determined, in its sole discretion and in accordance with its customary
servicing practices, is likely to be recoverable from the related Users and in
respect of which the Servicer shall so make Servicer Advances. The Servicer
shall remit any Servicer Advances to the Series ___________ Facility Account
for application in accordance with the terms of Section 3.03.
SECTION 3.07. Special Covenants and Acknowledgements. (a)
With respect to the Series ________ Note, each Series Obligor and the Obligors'
Agent does hereby represent and warrant, as of the initial Pledge Date and each
Subsequent Pledge Date:
(i) Insolvency. None of the Series Obligors or
the Obligors' Agent is insolvent and none of them will be rendered
insolvent by the transactions contemplated by this Agreement, the
Master Facility Agreement and each Series _______ Related Document to
which it is a party.
(ii) Principal Place of Business. Exhibit F
hereto set forth the principal place of business and chief executive
office and, the location of the Contract Files for each Series Obligor
and the Obligors' Agent.
(iii) Valid Pledge. It is the intention of each
Series Obligor and the Obligors' Agent that each Pledge herein
contemplated constitutes the grant of a perfected, first priority
security interest in all Pledged Property (other than any Equipment
having a value of $25,000 or less) to the Trustee.
(iv) 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 each Series Obligor
and the Obligors' Agent of this Agreement, the Master Facility
Agreement and each Series ________ Related Document to which it 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.
(v) Accuracy of Information. All information
heretofore furnished in writing by either Series Obligor, or the
Obligors' Agent to the Trustee or to the Agent for purposes of or in
connection with this Agreement, the Master Facility Agreement and each
Series _______ Related Document to which it is a party or any Pledge
is true, accurate and complete in every material respect on the date
such information is stated or certified.
(vi) Names. In the past two years, none of the
Series Obligors or the Obligors' Agent has used any corporate names,
trade names or assumed names other than the name in which it has
executed this Agreement.
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(vii) No Adverse Selection. The Eligible Contracts
have been, and will be, selected by the Obligors' Agent in a manner
that is not adverse to the interests of the Trustee or the Series
________ Noteholder.
(b) With respect to the Series ________ Note, the Series
Obligors, the Obligors' Agent and the Servicer do hereby acknowledge
and agree that:
(i) the Agent and its duly authorized
representatives, attorneys or accountants shall have the same access
to the documentation relating to the Series ________ Trust Estate as
the Trustee is provided pursuant to Section 6.09 of the Master
Agreement;
(ii) the Servicer shall indemnify the Agent to the
same extent and on the same terms as the Trustee, pursuant to Section
8.01 of the Master Agreement;
(iii) the prior written consent of the Agent shall
be required for either Series Obligor to take any action described in
Section 14.03(a) or 14.03(b) of the Master Agreement;
(iv) the Servicer shall give the Agent notice of
any return of final payment given to the Trustee pursuant to Section
5.06 of the Master Agreement, at the same time such notice is given to
the Trustee;
(v) each Series Obligor hereby confirms and
acknowledges that, by its execution hereof, (a) it shall be deemed to
be a party to the Master Agreement and to the Contribution Agreement
for the purpose of making all representations, warranties and
covenants, and being bound by all obligations, applicable to an
Obligor thereunder, to the extent (and only to the extent) such
representations, warranties, covenants and obligations relate to the
Series _______ Note and/or the Series ________ Trust Estate and (b) it
confirms the right and ability of the Obligors' Agent to executive any
and all Series ________ Documents on behalf of such Series Obligor,
and that the Obligors' Agent's signatory thereon shall have the same
force and effect as of each of the Series Obligors were a direct
signature thereto;
(vi) the parties hereto acknowledge that the Agent
is the "Series Controlling Party" with respect to the Series _________
Note for purposes of the Master Agreement;
(vii) there are no "Support Default" events with
respect to the Series________ Note;
(viii) the "Series Trustee Secured Obligations" and
the "Series Secured Obligations" with respect to the Series _________
Note shall mean,
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collectively (x) any amounts due to the Agent hereunder, either in its
individual capacity or on behalf of the Purchasers, (y) any fees and
expenses due to the Trustee with respect to the Series _______ Note
and (z) any payments due to any Swap-holder with respect to the Series
_______ Note;
(ix) the "Series Secured Parties" with respect to
the Series __________ Note are the Trustee, the Agent and each
Swap-holder with respect to the Series ________ Note;
(x) the "Original Servicer Fee Rate" with respect
to the Series ________ Note is the Servicing Fee;
(xi) the "Original Issue Date" with respect to the
Series ________ Note is__________________;
(xii) the Servicer shall not accept any Prepayment
unless the amount received in connection therewith is at least equal
to the related Prepayment Amount as of such date, or, if less, unless
the Servicer makes a non-recoverable deposit to the Master Facility
Account in the amount of any shortfall; and
(xiii) the Servicer acknowledges that it has
previously made all required Servicer Advances with respect to the Series
_____________ Contracts which are the subject of the initial Pledge.
(c) With respect to the Series ________ Note, the parties
hereto acknowledge that the reduction of Advanta Corp. long-term, senior
unsecured debt below BB- by S&P or below Ba3 by Xxxxx'x shall constitute an
additional Event of Servicer Termination.
ARTICLE IV
SERIES PRINCIPAL AMOUNT FOR SERIES __________
SECTION 4.01. Increasing the Series ________ Note Balance.
(a) The Trustee shall deliver the Series ________ Note when authenticated as
directed in writing by the Series Obligors, and in accordance with Section 5.01
of the Master Agreement.
(b) (i) The Series ________ Noteholder agrees, by its
acceptance of the Series ________ Note, that the Obligors' Agent may on any
Business Day (a "Principal Increase Date") prior to the Revolving Period
Termination Date, request upon not less than three (3) Business Days' prior
notice to the Agent, the Servicer and the Trustee and upon satisfaction of the
conditions set forth in the _______________ Agreement that the Purchasers
increase their respective investment in the Series ________ Note in specified
amounts (each such amount, an "Additional Principal Amount"), but not in excess
of the Series Limit.
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(ii) Except as otherwise provided in subsection (c) below, no
such investment shall occur unless the conditions set forth in Article IV of
the Note Purchase Agreement are satisfied (or are waived in writing by the
Agent).
(c) If the Purchasers make such additional investments, the
Agent shall remit the related Additional Principal Amount to the Trustee on
behalf of the Series Obligors, and, in consideration of the applicable
Purchaser's or Purchasers' payment of the amount of the Additional Principal
Amount, the Servicer shall notify the Trustee of the amount of such Additional
Principal Amounts and shall appropriately note such Additional Principal
Amounts (and the increased Series ________ Note Balance) on the next succeeding
monthly Servicer's Certificate.
The Agent shall and is hereby authorized to record on the grid
attached to the Series ________ Note (or at the Agent's option, in its internal
books and records) the date and amount of any Additional Principal Amount paid
by it on behalf of the Purchasers, and each repayment thereof; provided, that
failure to make any such recordation on such grid or any error in such grid
shall not adversely affect the Agent's rights with respect to the full Series
____________ Note Balance and its right to receive interest payments in respect
of the Series _________ Note Balance.
On each Principal Increase Date, upon the satisfaction of the
conditions described above, the Agent shall remit the amount of the related
Additional Principal Amount to the Trustee on behalf of the Series Obligors no
later than 2:00 p.m. (New York City time) in immediately available funds.
ARTICLE V
SERIES EVENTS OF DEFAULT
SECTION 5.01. Series Events of Default. If any one of the
following shall occur:
(a) The Series Obligors or the Servicer shall fail to
make when due any payment or deposit required hereunder or under any other
Series ________ Related Document, or ABS shall fail to make when due a payment
of Compensating Interest, in any case on or before the date occurring three
Business Days after the date such payment or deposit shall become due.
(b) (i) Either Series Obligor shall fail to perform or
observe any covenant of it set forth in any Series ____________ Related
Document, which failure has a material adverse effect on the Series ________
Noteholder hereunder and such failure shall remain unremedied for thirty (30)
Business Days after receipt by the Obligors' Agent of written notice thereof by
the Trustee or the Agent,
(ii) The Contributor fails to repurchase, within the
time period specified therein, from the Series Obligors any Series ________
Contract with respect to
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which a breach of any representation or warranty listed in Section 3 of any
Contribution Agreement Supplement relating to the Series ________ Note has
occurred,
(iii) ABS shall fail to perform or observe any
covenant (other than the covenant described in clause (b)(ii) above)
of it set forth in any Series _________Related Document, which failure
has a material adverse effect on the Series ________ Noteholder
hereunder and such failure shall remain unremedied for thirty (30)
Business Days after receipt by the Obligors' Agent of written notice
thereof by the Trustee or the Agent,
(c) (i) Any representation or warranty made by the Series
Obligors or in any Series ___________ Related Document or in any other document
delivered pursuant thereto, (x) shall prove to have been incorrect when made or
deemed made and continues to be incorrect for a period of thirty (30) Business
Days after the earlier to occur of (1) the discovery thereof by a Series
Obligor or (2) the receipt by the Obligors' Agent of written notice thereof
from the Trustee or the Agent and (y) as a result of such error, the interests
of the Trustee and/or the Series Secured Parties are materially and adversely
affected, or
(ii) any representation or warranty made by ABS in
any Series _____________ Related Document or in any other document
delivered pursuant thereto, (x) shall prove to have been incorrect
when made or deemed made and continues to be incorrect for a period of
thirty (30) Business Days after the earlier to occur of (1) the
discovery thereof by a ABS or (2) the receipt by ABS of written notice
thereof from the Obligors' Agent, the Trustee or the Agent and (y) as
a result of such error, the interests of the Trustee and/or the Series
_______ Noteholder are materially and adversely affected.
(d) An Insolvency Event shall occur with respect to any
Series Obligor.
(e) As of the end of any Collection Period the rolling
average for the three prior Collection Periods (including the Collection Period
just ended) with respect to the Delinquency Ratio shall exceed __%.
(f) As of the end of any Collection Period the
Delinquency Ratio for such Collection Period shall exceed ____% for such
Collection Period.
(g) As of the end of any Collection Period, the rolling
average for the three prior Collection Periods (including the Collection Period
just ended) with respect to the Charged-Off Ratio shall exceed _____%.
(h) For any Collection Period, the average Residual
Realization is less than ___%.
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(i) If ABS makes payments under Section 3.01(d) hereof
with respect to Compensating Interest Requirements in an aggregate, cumulative
amount in excess of $__________________.
then, in the case of any event described in subparagraph (d) above, such Series
Event of Default shall occur without any notice or any other action. In the
case of any event described in the other remaining lettered paragraphs above,
subject to applicable law and subject to the applicable cure periods stated
within, a Series Event of Default shall occur after written notice has been
provided to the Series Obligors by the Trustee or the Agent, upon the
occurrence of such event; provided, that in the case of any event described in
subparagraphs (e), (f) or (g) such Series Event of Default shall not occur if
the Series Obligors are able to remedy the default by transferring additional
Pledged Property as provided in Section 1.03(b) hereof; provided, further, that
the Agent must consent to any such remedy.
If a Series Event of Default occurs, the Series ________ Note
shall automatically become due and payable. At any time following such
declaration of acceleration, the Agent shall have the right to liquidate the
Series ________ Trust Estate and retain the proceeds thereof remaining after
the payment of any unpaid fees and expenses of the Trustee with respect to the
Series ________ Note (but only to the extent of the Series ________ Note
Balance and any interest thereon (including any Compensating Interest which is
due from ABS but which remains unpaid) which has accrued and remains unpaid,
plus any unpaid fees due under the Fee Letter, and any other amounts owing to
the Series ________ Noteholders or the Agent under the Series ________ Related
Documents). Any remaining proceeds from the liquidation, after payment of the
such amounts shall be paid to the Series Obligors.
ARTICLE VI
PREPAYMENT AND REDEMPTION
SECTION 6.01. Mandatory Prepayment. Notwithstanding any
limitation on recourse contained in this Series ________ Supplement or the
Master Agreement, if:
(a) on any day, any Series ________ Contract is
discovered not to have been an Eligible Contract on its applicable Pledge Date,
or
(b) on any day, the Contract Principal Balance of a
Series ________ Contract is partially reduced as a result of any discount or
adjustment by the Obligors' Agent, either of the Series Obligors, or the
Servicer,
then the Series Obligors shall, on or prior to the Business Day preceding the
next following Settlement Date, deliver to the Servicer for deposit in the
Series ________ Facility Account (i) in the case of an event described in (a)
above, the related Prepayment Amount and (ii) in the case of an event described
in (b) above, an amount equal to the
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amount of such reduction, provided, that if such discount or reduction is in
effect at a time when a Contract is a Delinquent Contract, then the full
Prepayment Amount shall be so delivered. Upon payment in full by the Obligors'
Agent to the Servicer of such amounts in respect of a Series ________ Contract
described in the foregoing clause (a) or (b), the security interest of the
Trustee in the related Series ________ Contract and the Related Security shall
be deemed released, and the Trustee shall, upon request, promptly deliver to
the Series Obligors any documents in the Trustee's possession evidencing the
Series ________ Contract and its interest in such Equipment related thereto and
such Related Security. The Trustee shall take all necessary actions to ensure
that such security interest is released, including, at the Series Obligors'
expense, execute such UCC-3 assignments, termination statements and other
documents as may reasonably be requested by the Obligors' Agent.
SECTION 6.02. Optional "Clean-Up" Redemption. On any
Settlement Date occurring on or after the date upon which the Series ________
Note Balance shall have been reduced to an amount which is less than or equal
to 10% of the Series Limit, the Series Obligors shall have the option to redeem
the outstanding Series __________ Note at a redemption price (the "Redemption
Price") equal to the outstanding Series _________ Note Balance of the Series
___________ Notes, plus all accrued and unpaid interest thereon and all fees
and other amounts owing to the Agent on behalf of the Purchasers in connection
therewith. The Obligors' Agent shall give the Servicer, the Trustee and the
Agent at least 30 days' irrevocable prior written notice of the date on which
the Series Obligors intend to exercise such option to purchase. Not later than
12:00 P.M., New York City time, on such Settlement Date the Series Obligors
shall remit such amount to the Agent (by wire transfer to an account to be
designated by the Agent, which designation may be a standing wire direction) in
immediately available funds. Such purchase option is subject to payment in
full of the Redemption Price. The Agent shall promptly thereafter distribute
the applicable amounts to each of the applicable Purchasers in accordance with
their respective interests therein.
SECTION 6.03. Tender of Series ________ Note. The
Obligor's Agent may request the Agent to tender to the Trustee all or a portion
of the Series ________ Note that it then holds, provided that such tender shall
only take place if:
(a) (i) the Agent and the Trustee have received
written and irrevocable notice on or before the last day of the Collection
Period most recently ended prior to, and in any event at least 30 days but no
more than 40 days prior to any date set for such tender and the Agent has
consented to such tender (which consent shall not be unreasonably withheld) and
(ii) the Trustee shall have received written and irrevocable notice of the
election described in subsection (b)(i) and (b)(ii) below, and in the event
such election is that described in (b)(ii) such payment will be deposited with
the Trustee with instructions to pay the Agent;
(b) Upon the date set for tender, the Agent shall receive
either (i) if it so elects, in lieu of payment, a new Series of Notes or (ii)
payment in an amount equal to the then Series ________ Note Balance being
tendered, plus interest accrued but unpaid
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on such Series ________ Note to, but not including, the date of tender,
together with all other amounts then due and payable or, relating to the Series
__________ Note Balance being tendered;
(c) the purchaser of any Series ________ Notes so
tendered shall not be any Series Obligor or any Affiliate of any Series
Obligor.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Agent Authorized to Act for the Purchasers;
Notices. The parties hereto acknowledge that the Agent is authorized, pursuant
to the terms of the Note Purchase Agreement, to act for the Purchasers,
including, without limitation, for purposes of receiving distributions as
described in this Series ________ Supplement on behalf of such Purchasers.
Notwithstanding anything to the contrary in the Master Agreement or this Series
________ Supplement, the Trustee and the Servicer shall deliver all notices and
distributions to be made to the Agent as the registered owner of a Series
_____________ Note and such delivery shall be deemed to comply with all
requirements of the Master Agreement.
SECTION 7.02. Ratification of Master Agreement. As
supplemented by this Series ________ Supplement, the Master Agreement is in all
respects ratified and confirmed and the Master Agreement, as so supplemented by
this Series ________ Supplement shall be read, taken and construed as one and
the same instrument.
SECTION 7.03. Counterparts. This Series ________
Supplement may be executed in one or more counterparts, each of which so
executed shall be deemed to be an original, but all of which shall together
constitute but one and the same instrument.
SECTION 7.04. GOVERNING LAW. THIS SERIES ________
SUPPLEMENT 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 TAKING INTO
ACCOUNT THE CONFLICT OF LAWS PRINCIPLES OF ANY JURISDICTION.
SECTION 7.05. Amendments and Waivers. (a) Notwithstanding
anything contained in the Master Agreement to the contrary, no term or
condition of this Series ________ Supplement shall be amended, modified, waived
or terminated without the prior written consent of the Obligors' Agent, the
Servicer, the Trustee and the Agent.
(b) No waiver with respect to any term or condition of
the Master Agreement or this Series ________ Supplement shall extend to any
subsequent or other event, circumstance or default or impair any right
consequent thereon except to the extent expressly so waived.
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SECTION 7.06. Non-petition Clause. By its acceptance of
the Series ________________ Note on behalf of the Purchasers, the Agent on
behalf of itself and the Purchasers, together with the Agent shall be deemed to
have agreed that prior to the date which is one year and one day after the
termination of the Master Agreement, such Person shall not acquiesce, petition
or otherwise invoke or cause the Series Obligors to invoke the process of any
Governmental Authority for the purpose of commencing or sustaining a case
against the Series Obligors 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 the Series Obligors
or any substantial part of its property or ordering the winding-up or
liquidation of the affairs of the Series Obligors.
SECTION 7.07. Certain Information. Certain information
concerning the Series Obligors and the Servicer is set forth in Exhibit F
hereto.
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IN WITNESS WHEREOF, the Series Obligors, the Obligors' Agent,
ABS, in its individual capacity and as the Servicer and the Trustee have caused
this Series ________ Supplement to be fully executed by their respective
officers as of the day and year first above written.
ADVANTA BUSINESS SERVICES CORP.,
in its individual capacity and as Servicer
By_____________________________________
Name:
Title:
_____________________________________
as a Series Obligor and
the Obligors' Agent
By_____________________________________
Name:
Title:
_______________________________________
as a Series Obligor
By_____________________________________
Name:
Title:
_______________________________________
as Trustee
By_____________________________________
Name:
Title:
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EXHIBIT F
PLACES OF BUSINESS OF THE SERIES OBLIGORS AND THE SERVICER;
LOCATIONS OF RECORDS; FEDERAL EMPLOYER IDENTIFICATION NUMBERS
A. Series Obligors
B. Servicer
1
