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EXHIBIT 4.4
OH&S DRAFT
8/10/99
SALE AND CONTRIBUTION AGREEMENT SUPPLEMENT
THIS SALE AND CONTRIBUTION AGREEMENT SUPPLEMENT (this "Sale Agreement
Supplement"), dated August __, 1999 (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 August __, 1999 (the "Master Sale
Agreement"), between 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 the 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 July 31, 1999. The Purchase Date is August __, 1999.
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:
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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
Defaulted 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.
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(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 1999-1 Supplement, dated as of August __,
1999. 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.
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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.
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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: _______________________
