EXHIBIT 4.1
EXECUTION COPY
ADVANTA BUSINESS CARD MASTER TRUST
ISSUER
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS
INDENTURE TRUSTEE
SERIES 2003-D INDENTURE SUPPLEMENT
DATED AS OF DECEMBER 1, 2003
TABLE OF CONTENTS
PAGE
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ARTICLE I Creation of the Series 2003-D Notes................................................... 1
Section 1.01 Designation............................................................... 1
ARTICLE II Definitions.......................................................................... 1
Section 2.01 Definitions............................................................... 1
ARTICLE III Servicing Fee and Interchange....................................................... 15
Section 3.01 Servicing Compensation; Interchange....................................... 15
ARTICLE IV Rights of Series 2003-D Noteholders and Allocation and Application of
Collections............................................................... 16
Section 4.01 Collections and Allocations............................................... 16
Section 4.02 Determination of Monthly Interest......................................... 17
Section 4.03 Determination of Monthly Principal........................................ 20
Section 4.04 Application of Available Finance Charge Collections and Available
Principal Collections..................................................... 20
Section 4.05 Investor Charge-Offs...................................................... 23
Section 4.06 Reallocated Principal Collections......................................... 23
Section 4.07 Excess Finance Charge Collections......................................... 23
Section 4.08 Shared Principal Collections.............................................. 24
Section 4.09 Principal Funding Account................................................. 24
Section 4.10 Reserve Account........................................................... 25
Section 4.11 Cash Collateral Account................................................... 27
Section 4.12 Determination of LIBOR.................................................... 29
Section 4.13 Investment Instructions................................................... 30
ARTICLE V Delivery of Series 2003-D Notes; Distributions; Reports to Series 2003-D
Noteholders............................................................... 30
Section 5.01 Delivery and Payment for the Series 2003-D Notes; Form and
Denomination.............................................................. 30
Section 5.02 Distributions............................................................. 31
Section 5.03 Reports and Statements to Series 2003-D Noteholders....................... 32
ARTICLE VI Series 2003 - D Pay Out Events....................................................... 33
Section 6.01 Series 2003-D Pay Out Events.............................................. 33
ARTICLE VII Redemption of Series 2003-D Notes; Final Distributions; Series
Termination............................................................... 34
Section 7.01 Optional Redemption of Series 2003-D Notes; Final Distributions........... 34
Section 7.02 Series Termination........................................................ 35
ARTICLE VIII Miscellaneous Provisions........................................................... 36
Section 8.01 Ratification of Indenture................................................. 36
Section 8.02 Form of Delivery of the Series 2003-D Notes............................... 36
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Section 8.03 Additional Requirements for Registration of and Limitations on
Transfer and Exchange of Class D Notes.................................... 36
Section 8.04 Amendment................................................................. 38
Section 8.05 Counterparts.............................................................. 38
Section 8.06 GOVERNING LAW............................................................. 38
Section 8.07 Limitation of Liability................................................... 38
Section 8.08 Representations and Warranties of the Issuer.............................. 38
Section 8.09 Tax Disclosure and Investor List Requirements............................. 39
EXHIBITS
EXHIBIT A-1 FORM OF CLASS A NOTE
EXHIBIT A-2 FORM OF CLASS B NOTE
EXHIBIT A-3 FORM OF CLASS C NOTE
EXHIBIT A-4 FORM OF CLASS D NOTE
EXHIBIT B FORM OF MONTHLY PAYMENT INSTRUCTIONS AND
NOTIFICATION TO THE INDENTURE TRUSTEE
EXHIBIT C FORM OF MONTHLY STATEMENT
EXHIBIT D FORM OF MONTHLY SERVICER'S CERTIFICATE
EXHIBIT E FORM OF INVESTMENT LETTER
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SERIES 2003-D INDENTURE SUPPLEMENT, dated as of December 1, 2003 (the
"INDENTURE SUPPLEMENT"), between WILMINGTON TRUST COMPANY, as Owner Trustee of
ADVANTA BUSINESS CARD MASTER TRUST, a common law trust organized and existing
under the laws of the State of Delaware (herein, the "ISSUER" or the "TRUST"),
and DEUTSCHE BANK TRUST COMPANY AMERICAS (formerly known as Bankers Trust
Company), a banking corporation organized and existing under the laws of the
State of New York, not in its individual capacity, but solely as indenture
trustee (herein, together with its successors in the trusts thereunder as
provided in the Master Indenture referred to below, the "INDENTURE TRUSTEE")
under the Master Indenture, dated as of August 1, 2000 (the "INDENTURE") between
the Issuer and the Indenture Trustee (the Indenture, together with this
Indenture Supplement, the "AGREEMENT").
Pursuant to Section 2.12 of the Indenture, the Transferor may direct
the Issuer, to issue one or more Series of Notes. The Principal Terms of this
Series are set forth in this Indenture Supplement to the Indenture.
ARTICLE I
Creation of the Series 2003-D Notes
Section 1.01 Designation.
(a) There is hereby created and designated a Series of Notes to be
issued pursuant to the Indenture and this Indenture Supplement to be known as
"ADVANTA BUSINESS CARD MASTER TRUST, SERIES 2003-D ASSET BACKED NOTES" or the
"SERIES 2003-D NOTES." The Series 2003-D Notes shall be issued in four Classes,
the first of which shall be known as the "CLASS A SERIES 2003-D ASSET BACKED
NOTES," the second of which shall be known as the "CLASS B SERIES 2003-D ASSET
BACKED NOTES," the third of which shall be known as the "CLASS C SERIES 2003-D
ASSET BACKED NOTES," and the fourth of which shall be known as the "CLASS D
SERIES 2003-D ASSET BACKED NOTES."
(b) Series 2003-D shall be included in Group One and shall be a
Principal Sharing Series with respect to Group One only. Series 2003-D shall be
an Excess Allocation Series with respect to Group One only. Series 2003-D shall
not be subordinated to any other Series.
ARTICLE II
Definitions
Section 2.01 Definitions.
(a) Whenever used in this Indenture Supplement, 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 the masculine as well as the feminine and neuter genders of such terms. All
capitalized terms not otherwise defined herein are defined in the Indenture, the
Transfer and Servicing Agreement or the Trust Agreement. Each capitalized term
defined herein shall relate only to the Series 2003-D Notes and no other Series
of Notes issued by the Issuer, unless the context otherwise requires. In the
event that any term or provision contained herein shall conflict with or be
inconsistent with any term or provision
contained in the Indenture, the Transfer and Servicing Agreement or the Trust
Agreement, the terms and provisions of this Indenture Supplement shall be
controlling.
"Accumulation Period Factor" shall mean, (i) for the purpose of
calculating the Accumulation Period Length, with respect to any Monthly Period,
a fraction, the numerator of which is equal to the sum of the initial invested
amounts of all outstanding Series, and the denominator of which is equal to the
sum of (a) the Initial Invested Amount, (b) the initial invested amounts of all
outstanding Series (other than Series 2003-D) which are not expected to be in
their revolving periods, and (c) the initial invested amounts of all other
outstanding Series which are not allocating Shared Principal Collections to
other Series and are in their revolving periods and (ii) for the purpose of
calculating the Controlled Accumulation Amount, the Required Accumulation Factor
Number divided by the Accumulation Period Length; provided, however, that this
definition may be changed at anytime if the Rating Agency Condition is
satisfied.
"Accumulation Period Length" shall have the meaning assigned such term
in subsection 4.04(e).
"Accumulation Shortfall" shall mean (a) on the first Payment Date
during the Controlled Accumulation Period, zero and (b) on each subsequent
Payment Date during the Controlled Accumulation Period, the excess, if any, of
the Controlled Deposit Amount for the previous Payment Date over the amount
deposited into the Principal Funding Account pursuant to subsection 4.04(c)(i)
for the previous Payment Date.
"Additional Interest" shall mean, with respect to any Payment Date,
Class A Additional Interest, Class B Additional Interest, Class C Additional
Interest and Class D Additional Interest for such Payment Date.
"Adjusted Invested Amount" shall mean, as of any date of determination,
an amount equal to the Invested Amount as of such date, minus the amount on
deposit in the Principal Funding Account on such date.
"Available Cash Collateral Account Amount" shall mean, with respect to
any Payment Date, an amount equal to the lesser of (a) the amount on deposit in
the Cash Collateral Account, including, notwithstanding the last paragraph of
Section 4.11(b), Investment Earnings, on such date (before giving effect to any
deposit to, or withdrawal from, the Cash Collateral Account made or to be made
with respect to such date) and (b) the Required Cash Collateral Account Amount
for such Payment Date.
"Available Finance Charge Collections" shall mean, with respect to any
Monthly Period, an amount equal to the sum of (a) the Investor Finance Charge
Collections for such Monthly Period, plus (b) Principal Funding Investment
Proceeds, if any, with respect to the related Payment Date, plus (c) amounts, if
any, to be withdrawn from the Reserve Account which will be deposited into the
Collection Account on the related Payment Date to be treated as Available
Finance Charge Collections pursuant to subsection 4.10(b) and subsection
4.10(d), plus (d) any Excess Finance Charge Collections with respect to other
Series in Group One that are allocated to Series 2003-D pursuant to Section
4.07.
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"Available Principal Collections" shall mean, with respect to any
Monthly Period, an amount equal to the sum of (a) the Investor Principal
Collections for such Monthly Period, minus (b) the amount of Reallocated
Principal Collections with respect to such Monthly Period which pursuant to
Section 4.06 are required to be applied on the related Payment Date, plus (c)
any Shared Principal Collections with respect to other Principal Sharing Series
in Group One (including any amounts on deposit in the Excess Funding Account or
any amounts held by the holders of the Trust Beneficial Interests or
Certificates pending allocation and distribution on any Payment Date) pursuant
to Section 8.05 of the Indenture and Section 4.08 hereof that are allocated to
Series 2003-D, plus (d) the aggregate amount to be treated as Available
Principal Collections pursuant to subsections 4.04(a)(v) and (vi) for the
related Payment Date.
"Available Reserve Account Amount" shall mean, with respect to any
Payment Date, the lesser of (a) the amount on deposit in the Reserve Account on
such date (after taking into account any interest and earnings retained in the
Reserve Account pursuant to subsection 4.10(b) on such date, but before giving
effect to any deposit to, or withdrawal from the Reserve Account made or to be
made on such date), and (b) the Required Reserve Account Amount.
"Base Rate" shall mean, with respect to any Monthly Period, the per
annum rate (calculated on the basis of a 360-day year consisting of twelve (12)
30-day months) equal to the product of (i) the percentage equivalent of a
fraction, the numerator of which is equal to the sum of the Monthly Interest and
the Monthly Servicing Fee, each with respect to the related Payment Date, and
the denominator of which is the Invested Amount as of the close of business on
the last day of the immediately preceding Monthly Period, multiplied by (ii)
twelve (12).
"Cash Collateral Account" shall have the meaning specified in
subsection 4.11(a).
"Cash Collateral Account Deficiency" shall mean the excess, if any, of
the Required Cash Collateral Account Amount over the Available Cash Collateral
Account Amount.
"Cash Collateral Account Percentage" shall mean, (i) 2.25%, if the
Quarterly Excess Spread Percentage on such Payment Date is greater than or equal
to 4.50%, (ii) 3.25%, if the Quarterly Excess Spread Percentage on such Payment
Date is less than 4.50% and greater than or equal to 4.00%, (iii) 4.25%, if the
Quarterly Excess Spread Percentage on such Payment Date is less than 4.00% and
greater than or equal to 3.50%; (iv) 4.75%, if the Quarterly Excess Spread
Percentage on such Payment Date is less than 3.50% and greater than or equal to
3.00%, (v) 5.25%, if the Quarterly Excess Spread Percentage on such Payment Date
is less than 3.00% and greater than or equal to 2.00%, (vi) 6.25%, if the
Quarterly Excess Spread Percentage is less than 2.00% and greater than 0.00%,
and (vii) 10.75%, if the Quarterly Excess Spread Percentage is 0% or less;
provided, however, if the Cash Collateral Account Percentage for any Payment
Date is higher than the Cash Collateral Account Percentage for the immediately
preceding Payment Date, the Cash Collateral Account Percentage shall not be
subsequently decreased to a lower percentage until the first Payment Date (a)
that falls on or after the third Payment Date following the Payment Date on
which the Cash Collateral Account Percentage had been increased and (b) on which
the Quarterly Excess Spread Percentage has increased to a level above that for
the then-current Cash Collateral Account Percentage, in which case the Cash
Collateral Account Percentage shall be decreased to the appropriate percentage
specified in clauses (i) through (vii) of the definition thereof; and provided
further, that if a Pay Out Event with respect to Series
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2003-D has occurred (other than a Pay Out Event described in Section 6.01(e)),
the Cash Collateral Account Percentage shall be 10.75% and shall no longer be
subject to reduction; and, provided, further, that the Cash Collateral Account
Percentage may be a lower amount designated by the Transferor, provided, that
the Transferor shall provide the Servicer and the Indenture Trustee with
evidence that the Rating Agency Condition with respect to such designation shall
have been satisfied.
"Class A Additional Interest" shall have the meaning specified in
subsection 4.02(a).
"Class A Interest Shortfall" shall have the meaning specified in
subsection 4.02(a).
"Class A Monthly Interest" shall have the meaning specified in
subsection 4.02(a).
"Class A Note Initial Principal Balance" shall mean $320,000,000.
"Class A Note Interest Rate" shall mean a per annum rate of 0.27% in
excess of LIBOR as determined on the related LIBOR Determination Date.
"Class A Note Principal Balance" shall mean, on any date of
determination, an amount equal to (a) the Class A Note Initial Principal
Balance, minus (b) the aggregate amount of principal payments made to the Class
A Noteholders on or prior to such date.
"Class A Noteholder" shall mean the Person in whose name a Class A Note
is registered in the Note Register.
"Class A Notes" shall mean any one of the Notes executed by the Issuer
and authenticated by or on behalf of the Indenture Trustee, substantially in the
form of EXHIBIT A-1.
"Class A Required Amount" shall mean, with respect to any Payment Date,
an amount equal to the excess of the amount described in subsection 4.04(a)(i)
over the Available Finance Charge Collections applied to pay such amount
pursuant to subsection 4.04(a).
"Class B Additional Interest" shall have the meaning specified in
subsection 4.02(b).
"Class B Interest Shortfall" shall have the meaning specified in
subsection 4.02(b).
"Class B Monthly Interest" shall have the meaning specified in
subsection 4.02(b).
"Class B Note Initial Principal Balance" shall mean $37,000,000.
"Class B Note Interest Rate" shall mean a per annum rate of 1.15% in
excess of LIBOR as determined on the related LIBOR Determination Date.
"Class B Note Principal Balance" shall mean, on any date of
determination, an amount equal to (a) the Class B Note Initial Principal
Balance, minus (b) the aggregate amount of principal payments made to the Class
B Noteholders on or prior to such date.
"Class B Noteholder" shall mean the Person in whose name a Class B Note
is registered in the Note Register.
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"Class B Notes" shall mean any one of the Notes executed by the Issuer
and authenticated by or on behalf of the Indenture Trustee, substantially in the
form of EXHIBIT A-2.
"Class B Required Amount" shall mean, with respect to any Payment Date,
an amount equal to the excess of the amount described in subsection 4.04(a)(ii)
over the Available Finance Charge Collections applied to pay such amount
pursuant to subsection 4.04(a).
"Class C Additional Interest" shall have the meaning specified in
subsection 4.02(c).
"Class C Interest Shortfall" shall have the meaning specified in
subsection 4.02(c).
"Class C Monthly Interest" shall have the meaning specified in
subsection 4.02(c).
"Class C Note Initial Principal Balance" shall mean $29,000,000.
"Class C Note Interest Rate" shall mean a per annum rate equal to 2.90%
in excess of LIBOR as determined on the related LIBOR Determination Date.
"Class C Note Principal Balance" shall mean, on any date of
determination, an amount equal to (a) the Class C Note Initial Principal
Balance, minus (b) the aggregate amount of principal payments made to the Class
C Noteholders on or prior to such date.
"Class C Noteholder" shall mean the Person in whose name a Class C Note
is registered in the Note Register.
"Class C Notes" shall mean any one of the Notes executed by the Issuer
and authenticated by or on behalf of the Indenture Trustee, substantially in the
form of EXHIBIT A-3.
"Class C Required Amount" shall mean, with respect to any Payment Date,
an amount equal to the excess of the amount described in subsection 4.04(a)(iv)
over the Available Finance Charge Collections and amounts withdrawn from the
Cash Collateral Account pursuant to Section 4.11(c) and, in each case, applied
to pay such amount pursuant to subsection 4.04(a).
"Class D Additional Interest" shall have the meaning specified in
subsection 4.02(d).
"Class D Note Assignee" shall have the meaning specified in subsection
8.03(a).
"Class D Note Assignment" shall have the meaning specified in
subsection 8.03(a).
"Class D Interest Shortfall" shall have the meaning specified in
subsection 4.02(d).
"Class D Margin Percentage" shall mean 7.50%, unless another percentage
is selected by the Transferor in accordance with Section 4.02(f) of this
Indenture Supplement.
"Class D Monthly Interest" shall have the meaning specified in
subsection 4.02(d).
"Class D Note Initial Principal Balance" shall mean $14,000,000.
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"Class D Note Interest Rate" shall mean a per annum rate equal to the
sum of (a) the Class D Margin Percentage and (b) LIBOR as determined on the
related LIBOR Determination Date.
"Class D Note Principal Balance" shall mean, on any date of
determination, an amount equal to (a) the Class D Note Initial Principal
Balance, minus (b) the aggregate amount of principal payments made to the Class
D Noteholders on or prior to such date.
"Class D Noteholder" shall mean the Person in whose name a Class D Note
is registered in the Note Register.
"Class D Notes" shall mean any one of the Notes executed by the Issuer
and authenticated by or on behalf of the Indenture Trustee, substantially in the
form of EXHIBIT A-4.
"Closing Date" shall mean December 4, 2003.
"Controlled Accumulation Amount" shall mean, for any Payment Date
occurring during the Controlled Accumulation Period, $50,000,000; provided,
however, that if the Accumulation Period Length is determined to be less than 8
months pursuant to subsection 4.04(e), the Controlled Accumulation Amount for
each Payment Date with respect to the Controlled Accumulation Period will be
equal to (i) the product of (x) the Initial Invested Amount and (y) the
Accumulation Period Factor for such Monthly Period divided by (ii) the Required
Accumulation Factor Number.
"Controlled Accumulation Period" shall mean, unless a Pay Out Event
shall have occurred prior thereto, the period commencing at the close of
business on February 28, 2006 or such later date as is determined in accordance
with subsection 4.04(e), and ending on the first to occur of (a) the
commencement of the Early Amortization Period, (b) the payment in full of the
Note Principal Balance and (c) the Series 2003-D Final Maturity Date.
"Controlled Deposit Amount" shall mean, for any Payment Date occurring
during the Controlled Accumulation Period, an amount equal to the sum of the
Controlled Accumulation Amount for such Payment Date and any existing
Accumulation Shortfall.
"Covered Amount" shall mean an amount, determined as of each Payment
Date with respect to any Interest Period, equal to the product of (i) a
fraction, the numerator of which is the actual number of days in such Interest
Period and the denominator of which is 360, times (ii) the weighted average of
the Class A Note Interest Rate, the Class B Note Interest Rate, the Class C Note
Interest Rate and the Class D Note Interest Rate in effect with respect to such
Interest Period, times (iii) the aggregate amount on deposit in the Principal
Funding Account.
"Early Amortization Period" shall mean the period commencing on the
Business Day on which a Pay Out Event with respect to Series 2003-D is deemed to
have occurred, and ending on the first to occur of (i) the payment in full of
the Note Principal Balance and (ii) the Series 2003-D Final Maturity Date.
"Eligible Institution" shall mean any depository institution (which may
be the Owner Trustee or the Indenture Trustee) organized under the laws of the
United States or any one of the
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states thereof, or the District of Columbia (or any domestic branch of a foreign
bank), which depository institution at all times (a) has FDIC deposit insurance
and (b) has either (i) a long-term unsecured debt rating of "AA-" or better by
Standard & Poor's and "Aa2" or better by Moody's or (ii) a certificate of
deposit rating of "A-1+" by Standard & Poor's and "P-1" by Moody's.
Notwithstanding the previous sentence, any institution the appointment of which
satisfies the Rating Agency Condition shall be considered an Eligible
Institution. If so qualified, the Servicer may be considered an Eligible
Institution for the purposes of this definition.
"Eligible Investments" shall mean the following securities,
instruments, security entitlement or other investment property, other than
securities issued by or obligations of the Seller:
(a) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States of America;
(b) demand deposits, time deposits or certificates of deposit
(having original maturities of no more than 365 days) of depository institutions
or trust companies incorporated under the laws of the United States of America
or any state thereof, or the District of Columbia (or domestic branches of
foreign banks) and subject to supervision and examination by federal or state
banking or depository institution authorities; provided that at the time of the
Trust's investment or contractual commitment to invest therein, the short-term
debt rating of such depository institution or trust company shall be "A-1+" by
Standard & Poor's and "P-1" by Xxxxx'x;
(c) commercial paper or other short-term obligations having
original or remaining maturities of no more than thirty (30) days, and having,
at the time of the Trust's investment or contractual commitment to invest
therein, a rating of "A-1+" by Standard & Poor's and "P-1" by Moody's;
(d) demand deposits, time deposits and certificates of deposit
which are fully insured by the FDIC having, at the time of the Trust's
investment therein, a rating of "A-1+" by Standard & Poor's and "P-1" by
Moody's;
(e) notes or bankers' acceptances (having original maturities of
no more than 365 days) issued by any depository institution or trust company
referred to in clause (b) above;
(f) money market funds having, at the time of the Trust's
investment therein, a rating of "A-1+" by Standard & Poor's and "P-1" by Moody's
(including funds for which the Indenture Trustee or any of its Affiliates is
investment manager or advisor);
(g) time deposits (having maturities not later than the succeeding
Payment Date) other than as referred to in clause (d) above, with a Person the
commercial paper of which has a credit rating of "A-1+" by Standard and Poor's
and "P-1" by Xxxxx'x; and
(h) any other investment of a type or rating that satisfies the
Rating Agency Condition.
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"Excess Spread Percentage" shall mean with respect to any Payment Date,
a percentage equal to the Net Portfolio Yield for the preceding Monthly Period
minus the Base Rate for the preceding Monthly Period.
"Expected Final Principal Payment Date" shall mean the November 2006
Payment Date.
"Finance Charge Shortfall" shall have the meaning specified in Section
4.07.
"Finance Charge and Administrative Receivables" shall have the meaning
specified in the Transfer and Servicing Agreement.
"Fixed Investor Percentage" shall mean, with respect to any Monthly
Period, the percentage equivalent (which percentage shall never exceed 100%) of
a fraction, (a) the numerator of which is the Invested Amount as of the close of
business on the last day of the Revolving Period and (b) the denominator of
which is the greater of (i) the sum of (A) the total amount of Principal
Receivables in the Trust as of the close of business on the last day of the
immediately preceding Monthly Period (or with respect to the first Monthly
Period, the total amount of Principal Receivables in the Trust as of the close
of business on the Closing Date) and (B) the principal amount on deposit in the
Excess Funding Account as of the close of business on such last day (or with
respect to the first Monthly Period, the Closing Date) and (ii) the sum of the
numerators used to calculate the investor percentages for allocations with
respect to Principal Receivables for all Series outstanding as of the date as to
which such determination is being made; provided, however, that with respect to
any Monthly Period in which a Reset Date occurs, the amount in clause (b)(i)(A)
above shall be (1) the aggregate amount of Principal Receivables in the Trust as
of the close of business on the last day of the prior Monthly Period, for the
period from and including the first day of the prior Monthly Period to but
excluding the related Reset Date, and (2) the aggregate amount of Principal
Receivables in the Trust as of the opening of business on the related Reset Date
after adjusting for the aggregate amount of Principal Receivables added to or
removed from the Trust on the related Reset Date, for the period from and
including the related Reset Date, to and including the last day of such Monthly
Period.
"Floating Investor Percentage" shall mean, with respect to any Monthly
Period, the percentage equivalent (which percentage shall never exceed 100%) of
a fraction, (a) the numerator of which is the Adjusted Invested Amount as of the
close of business on the last day of the preceding Monthly Period (or with
respect to the first Monthly Period, the Initial Invested Amount) and (b) the
denominator of which is the greater of (i) the sum of (A) the total amount of
Principal Receivables in the Trust as of the close of business on the last day
of the immediately preceding Monthly Period (or with respect to the first
Monthly Period, the total amount of Principal Receivables in the Trust as of the
close of business on the Closing Date) and (B) the principal amount on deposit
in the Excess Funding Account as of the close of business on such last day (or
with respect to the first Monthly Period, as of the Closing Date) and (ii) the
sum of the numerators used to calculate the investor percentages for allocations
with respect to Finance Charge and Administrative Receivables, Defaulted Amounts
or Principal Receivables, as applicable, for all Series outstanding as of the
date as to which such determination is being made; provided, however, that with
respect to any Monthly Period in which a Reset Date occurs, the amount in clause
(b)(i)(A) above shall be (1) the aggregate amount of Principal Receivables in
the Trust as of the close of business on the last day of the prior Monthly
Period, for the period
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from and including the first day of such Monthly Period to but excluding the
related Reset Date and (2) the aggregate amount of Principal Receivables in the
Trust as of the opening of business on the related Reset Date after adjusting
for the aggregate amount of Principal Receivables added to or removed from the
Trust on the related Reset Date, for the period from and including the related
Reset Date to and including the last day of such Monthly Period.
"Group One" shall mean Series 1997-A, Series 2000-C, Series 2001-A,
Series 2002-A, Series 2003-A, Series 2003-B, Series 2003-C, Series 2003-D and
each other Series hereafter specified in the related indenture supplement to be
included in Group One.
"Initial Cash Collateral Account Amount" shall mean $9,000,000.
"Initial Invested Amount" shall mean $400,000,000.
"Interest Period" shall mean, with respect to any Payment Date, the
period from and including the Payment Date immediately preceding such Payment
Date (or, in the case of the first Payment Date, from and including the Closing
Date) to but excluding such Payment Date.
"Invested Amount" shall mean, as of any date of determination, an
amount equal to (i) the Initial Invested Amount, minus (ii) the amount of
principal previously paid to the Series 2003-D Noteholders, minus (iii) the
excess, if any, of the aggregate amount of Investor Charge-Offs and Reallocated
Principal Collections over the reimbursements of such amounts pursuant to
subsection 4.04(a)(vi) prior to such date.
"Investment Earnings" shall mean, with respect to any Payment Date, all
interest and earnings on Eligible Investments included in the Cash Collateral
Account (net of losses and investment expenses) during the period commencing on
and including the Payment Date immediately preceding such Payment Date and
ending on but excluding such Payment Date.
"Investment Letter" shall have the meaning specified in subsection
8.03(a).
"Investor Charge-Off" shall have the meaning specified in Section 4.05.
"Investor Default Amount" shall mean, with respect to any Payment Date,
an amount equal to the product of (a) the Defaulted Amount for the related
Monthly Period and (b) the Floating Investor Percentage for such Monthly Period.
"Investor Finance Charge Collections" shall mean, with respect to any
Monthly Period, an amount equal to the Investor Percentage for such Monthly
Period of (a) Collections of Finance Charge and Administrative Receivables
(including Recoveries treated as Collections of Finance Charge and
Administrative Receivables) deposited in the Collection Account for such Monthly
Period and (b) Interchange treated as Investor Finance Charge Collections for
such Monthly Period pursuant to subsection 3.01(b).
"Investor Percentage" shall mean, for any Monthly Period, (a) with
respect to Defaulted Amounts and Finance Charge and Administrative Receivables
at any time and Principal Receivables during the Revolving Period, the Floating
Investor Percentage and (b) with respect
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to Principal Receivables during the Controlled Accumulation Period or the Early
Amortization Period, the Fixed Investor Percentage.
"Investor Principal Collections" shall mean, with respect to any
Monthly Period, the aggregate amount retained in the Collection Account for
Series 2003-D pursuant to subsection 4.01(c)(ii) for such Monthly Period and any
amount treated as Investor Principal Collections for Series 2003-D pursuant to
Section 8.03(b) of the Indenture.
"LIBOR" shall mean, the London interbank offered rate for one-month
United States dollar deposits determined by the Indenture Trustee for each such
Interest Period in accordance with the provisions of Section 4.12.
"LIBOR Determination Date" shall mean (a) with respect to the first
Payment Date, (i) December 2, 2003 for the period from and including the Closing
Date through and including January 19, 2004 and (ii) January 15, 2004 for the
period from and including January 20, 2004 through and including February 19,
2004 and (b) with respect to any Payment Date after the first Payment Date, the
second London Business Day prior to the commencement of the second and each
subsequent Interest Period.
"London Business Day" shall mean any Business Day on which dealings in
deposits in United States dollars are transacted in the London interbank market.
"Monthly Interest" shall mean, with respect to any Payment Date, the
sum of the Class A Monthly Interest, the Class B Monthly Interest, the Class C
Monthly Interest and the Class D Monthly Interest for such Payment Date.
"Monthly Principal" shall mean the monthly principal distributable in
respect of the Notes as calculated in accordance with Section 4.03.
"Monthly Principal Reallocation Amount" shall mean, with respect to any
Monthly Period, an amount equal to the sum of:
(A) the lower of (i) the Class A Required Amount and (ii)
the product of (a) 20.00% and (b) (x) the Initial Invested Amount minus (y) the
amount of unreimbursed Investor Charge-Offs (after giving effect to Investor
Charge-Offs for the related Monthly Period) and unreimbursed Reallocated
Principal Collections (as of the previous Payment Date); and
(B) the lower of (i) the sum of the Class B Required
Amount and the Servicing Fee Required Amount and (ii) the product of (a) 10.75%
and (b) (x) the Initial Invested Amount minus (y) the amount of unreimbursed
Investor Charge-Offs (after giving effect to Investor Charge-Offs for the
related Monthly Period) and unreimbursed Reallocated Principal Collections (as
of the previous Payment Date and as required in (A) above); and
(C) the lower of (i) the Class C Required Amount and (ii)
the product of (a) 3.50% and (b) (x) the Initial Invested Amount minus (y) the
amount of unreimbursed Investor Charge-Offs (after giving effect to Investor
Charge-Offs for the related Monthly Period) and unreimbursed Reallocated
Principal Collections (as of the previous Payment Date and as required in (A)
and (B) above).
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"Monthly Servicing Fee" shall have the meaning specified in subsection
3.01(a).
"Moody's" shall mean Xxxxx'x Investors Service, Inc. and any successor
in interest thereto.
"Net Portfolio Yield" shall mean, with respect to any Monthly Period,
the per annum rate (calculated on the basis of a 360-day year consisting of
twelve (12) 30-day months) equal to the product of (I) the percentage equivalent
of a fraction, (a) the numerator of which is equal to the sum of (i) Investor
Finance Charge Collections with respect to such Monthly Period, plus (ii) the
Principal Funding Investment Proceeds deposited into the Collection Account on
the Payment Date related to such Monthly Period, plus (iii) the amount of the
Reserve Draw Amount (up to the Available Reserve Account Amount) plus any
amounts of interest and earnings described in Section 4.10, each deposited into
the Collection Account on the Payment Date relating to such Monthly Period, such
sum to be calculated on a cash basis after subtracting the Investor Default
Amount for such Monthly Period, and (b) the denominator of which is the Invested
Amount as of the last day of the prior Monthly Period, multiplied by (II) twelve
(12); provided, however, that Excess Finance Charge Collections that are
allocated to Series 2003-D with respect to such Monthly Period may be added to
the numerator if the Transferor shall have provided ten (10) Business Days prior
written notice of such action to each Rating Agency and the Transferor, the
Servicer and the Indenture Trustee shall have received notification in writing
that such action will not result in any Rating Agency reducing or withdrawing
its then existing rating of the Notes of any outstanding Series or Class with
respect to which it is a Rating Agency.
"Note Principal Balance" shall mean, on any date of determination, an
amount equal to the sum of the Class A Note Principal Balance, the Class B Note
Principal Balance, the Class C Note Principal Balance and the Class D Note
Principal Balance.
"Payment Date" shall mean February 20, 2004 and the twentieth day of
each calendar month thereafter, or if such twentieth day is not a Business Day,
the next succeeding Business Day.
"Percentage Allocation" shall have the meaning set forth in subsection
4.01(c).
"Principal Funding Account" shall have the meaning set forth in
subsection 4.09(a).
"Principal Funding Account Balance" shall mean, with respect to any
date of determination, the principal amount, if any, on deposit in the Principal
Funding Account on such date of determination.
"Principal Funding Investment Proceeds" shall mean, with respect to
each Payment Date, the investment earnings on funds in the Principal Funding
Account (net of investment expenses and losses) for the period from and
including the immediately preceding Payment Date to but excluding such Payment
Date.
"Private Holder" shall mean each holder of a right to receive interest
or principal in respect of any direct or indirect interest in the Trust,
including any financial instrument or contract the value of which is determined
in whole or in part by reference to the Trust (including the assets of the
Trust, income of the Trust or distributions made by the Trust), but excluding
any
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interest in the Trust represented by any Series or Class of Notes or any other
interest as to which the Transferor has provided to the Indenture Trustee an
Opinion of Counsel to the effect that such Series, Class or other interest will
be treated as debt or otherwise not as an equity interest in either the Trust or
the Receivables for federal income tax purposes, in each case, provided such
interest is not convertible or exchangeable into an interest in the Trust or the
Trust's income or equivalent value. Notwithstanding the immediately preceding
sentence, (i) "Private Holder" shall also include any other Person that the
Transferor determines is, may be, or may become a "partner" within the meaning
of Section 1.7704-1(h)(1)(ii) (including by reason of Section 1.7704-1(h)(3)) of
the United States Treasury Regulations. "Private Holders" shall include the
Holders of the Trust Beneficial Interest or other ownership interest or any
interest in either, the Servicer and the Class D Noteholders. Any Person holding
more than one interest in the Trust each of which separately would cause such
Person to be a Private Holder shall be treated as a single Private Holder. Each
holder of an interest in a Private Holder which is a partnership, S corporation
or a grantor trust under the Code shall be treated as a Private Holder unless
excepted with the consent of the Transferor.
"Quarterly Excess Spread Percentage" shall mean (a) with respect to the
February 2004 Payment Date, the Excess Spread Percentage for the February 2004
Payment Date, (b) with respect to the March 2004 Payment Date, the percentage
equivalent of a fraction the numerator of which is the sum of (i) the Excess
Spread Percentage for the February 2004 Payment Date and (ii) the Excess Spread
Percentage for the March 2004 Payment Date and the denominator of which is two,
(c) with respect to the April 2004 Payment Date, the percentage equivalent of a
fraction the numerator of which is the sum of (i) the Excess Spread Percentage
for the February 2004 Payment Date, (ii) the Excess Spread Percentage for the
March 2004 Payment Date and (iii) the Excess Spread Percentage for the April
2004 Payment Date and the denominator of which is three, (d) with respect to the
May 2004 Payment Date and each Payment Date thereafter, the percentage
equivalent of a fraction the numerator of which is the sum of the Excess Spread
Percentages for the then-current Payment Date and the immediately preceding two
Payment Dates and the denominator of which is three.
"Rating Agency" shall mean each of Standard & Poor's and Moody's.
"Reallocated Principal Collections" shall mean, with respect to any
Payment Date, Investor Principal Collections applied in accordance with Section
4.06 in an amount not to exceed the Monthly Principal Reallocation Amount for
the related Monthly Period.
"Reassignment Amount" shall mean, with respect to any Payment Date,
after giving effect to any deposits and distributions otherwise to be made on
such Payment Date, the sum of (i) the Note Principal Balance on such Payment
Date, plus (ii) Monthly Interest for such Payment Date and any Monthly Interest
previously due but not distributed to the Series 2003-D Noteholders, plus (iii)
the amount of Additional Interest, if any, for such Payment Date and any
Additional Interest previously due but not distributed to the Series 2003-D
Noteholders on a prior Payment Date.
"Reference Banks" shall mean three major banks in the London interbank
market selected by the Servicer.
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"Required Accumulation Factor Number" shall be equal to a fraction,
rounded upwards to the nearest whole number, the numerator of which is one and
the denominator of which is equal to the lowest monthly principal payment rate
on the Accounts, expressed as a decimal, for the 12 months preceding the date of
such calculation; provided, however, that this definition may be changed at any
time if the Rating Agency Condition is satisfied.
"Required Cash Collateral Account Amount" shall mean, (a) prior to the
occurrence of an Event of Default with respect to Series 2003-D, with respect to
any date of determination, the product of (i) the Cash Collateral Account
Percentage in effect on such date and (ii) the Initial Invested Amount; provided
that the Required Cash Collateral Account Amount shall not exceed the sum of the
Class C Note Principal Balance and the Class D Note Principal Balance, minus the
excess, if any, of the Principal Funding Account Balance over the sum of the
Class A Note Principal Balance and the Class B Note Principal Balance on such
date of determination and (b) after the occurrence of an Event of Default with
respect to Series 2003-D, for any Payment Date, the sum of (i) the amount on
deposit in the Cash Collateral Account on such Payment Date (including any
amount transferred from the Reserve Account to the Cash Collateral Account
pursuant to Section 4.10(e)), plus (ii) Available Finance Charge Collections for
such Payment Date remaining after application of such amounts pursuant to
subsection 4.04(a)(vii); provided, however, that if after the occurrence of an
Event of Default with respect to Series 2003-D the maturity of the Series 2003-D
Notes is not accelerated, the Required Cash Collateral Account Amount shall not
exceed the Note Principal Balance.
"Required Reserve Account Amount" shall mean, with respect to any
Payment Date on or after the Reserve Account Funding Date, an amount equal to
(a) the product of (i) 0.50% of the Note Principal Balance as of the preceding
Payment Date and (ii) a fraction the numerator of which is the number of Monthly
Periods scheduled to be included in the Controlled Accumulation Period as of
such date and the denominator of which is eight (except that if such numerator
is one, the Required Reserve Account Amount determined pursuant to this clause
(a) shall be $0), or (b) any other amount designated by the Transferor;
provided, however, that if such designation is of a lesser amount, the
Transferor shall (i) provide the Servicer and the Indenture Trustee with
evidence that the Rating Agency Condition with respect to such designation shall
have been satisfied and (ii) deliver to the Indenture Trustee a certificate of
an Authorized Officer to the effect that, based on the facts known to such
officer at such time, in the reasonable belief of the Transferor, such
designation will not cause a Pay Out Event or an event that, after the giving of
notice or the lapse of time, would cause a Pay Out Event to occur with respect
to Series 2003-D.
"Required Transferor Interest" shall have the meaning specified in the
Indenture.
"Reserve Account" shall have the meaning specified in subsection
4.10(a).
"Reserve Account Funding Date" shall mean the date designated by the
Servicer which occurs not later than the earliest of (a) the Payment Date with
respect to the Monthly Period which commences 3 months prior to the commencement
of the Controlled Accumulation Period or (b) such other date designated by the
Servicer.
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"Reserve Account Surplus" shall mean, as of any Payment Date following
the Reserve Account Funding Date, the amount, if any, by which the amount on
deposit in the Reserve Account exceeds the Required Reserve Account Amount.
"Reserve Draw Amount" shall mean, with respect to each Payment Date
during the Controlled Accumulation Period or the first Payment Date during the
Early Amortization Period, the amount, if any, by which the Principal Funding
Investment Proceeds for such Payment Date are less than the Covered Amount
determined as of such Payment Date.
"Reset Date" shall mean, any date that is (i) an Addition Date, (ii) a
date on which the issuance of additional Notes of an Outstanding Series occurs,
(iii) a date on which an increase or decrease in the Invested Amount of any
Series that is a variable principal funding Series occurs or (iv) a Removal
Date.
"Revolving Period" shall mean the period beginning on the Closing Date
and ending on the earlier of the close of business on the day the Controlled
Accumulation Period commences or the Early Amortization Period commences.
"Series 2003-D" shall mean the Series of Notes the terms of which are
specified in this Indenture Supplement.
"Series 2003-D Final Maturity Date" shall mean the earlier to occur of
(a) the Payment Date on which the Note Principal Balance is paid in full and (b)
the October 2009 Payment Date.
"Series 2003-D Note" shall mean a Class A Note, a Class B Note, a Class
C Note or a Class D Note.
"Series 2003-D Noteholder" shall mean a Class A Noteholder, a Class B
Noteholder, a Class C Noteholder or a Class D Noteholder.
"Series 2003-D Pay Out Event" shall have the meaning specified in
Section 6.01.
"Series 2003-D Principal Shortfall" shall have the meaning specified in
subsection 4.08.
"Servicing Fee Rate" shall mean 2% per annum, which may be changed
pursuant to subsection 3.01(c).
"Servicing Fee Required Amount" shall mean, with respect to any Payment
Date, an amount equal to the excess of the amount described in subsection
4.04(a)(iii) over the Available Finance Charge Collections applied to pay such
amount pursuant to subsection 4.04(a).
"Standard & Poor's" shall mean Standard & Poor's, a division of the
XxXxxx-Xxxx Companies, Inc. and any successor in interest thereto.
"Telerate Page 3750" shall mean the display page currently so
designated on the Moneyline Telerate Service (or such other page as may replace
that page in that service for the purpose of displaying comparable rates or
prices).
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(b) The words "HEREOF," "HEREIN," "HEREUNDER" and words of similar
import when used in this Indenture Supplement shall refer to this Indenture
Supplement as a whole and not to any particular provision of this Indenture
Supplement; references to any Article, subsection, Section or Exhibit are
references to Articles, subsections, Sections and Exhibits in or to this
Indenture Supplement unless otherwise specified; and the term "INCLUDING" means
"INCLUDING WITHOUT LIMITATION."
ARTICLE III
Servicing Fee and Interchange
Section 3.01 Servicing Compensation; Interchange.
(a) Servicing Fee. The Servicer shall determine the share of the
Servicing Fee allocable to Series 2003-D with respect to any Payment Date (the
"MONTHLY SERVICING FEE"), which shall be equal to one-twelfth of the product of
(a) the Servicing Fee Rate and (b) (i) the Adjusted Invested Amount as of the
last day of the Monthly Period preceding such Payment Date, minus (ii) the
product of the amount, if any, on deposit in the Excess Funding Account as of
the last day of the Monthly Period preceding such Payment Date and the Floating
Investor Percentage with respect to such Monthly Period; provided, however, that
with respect to the first Payment Date, the Monthly Servicing Fee shall be equal
to $666,667. The remainder of the Monthly Servicing Fee shall be paid by the
holder of the Trust Beneficial Interest or the noteholders of other Series (as
provided in the related Indenture Supplements) and in no event shall the Trust,
the Indenture Trustee or the Series 2003-D Noteholders be liable for the share
of the Servicing Fee to be paid by the holder of the Trust Beneficial Interest
or the Noteholders of any other Series. To the extent that the Monthly Servicing
Fee is not paid in full pursuant to the preceding provisions of this Section
3.01 and Section 4.04, it shall be paid by the holder of the Trust Beneficial
Interest.
(b) Interchange. On or before each Determination Date, the
Servicer shall notify the Transferor of the amount of Interchange to be included
as Investor Finance Charge Collections with respect to the preceding Monthly
Period as determined pursuant to this subsection 3.01(b). Such amount of
Interchange shall be equal to the product of (i) the amount of Interchange
attributable to the Accounts, as reasonably estimated by the Servicer, and (ii)
the Floating Investor Percentage. On each Payment Date, the Servicer shall
deposit into the Collection Account, in immediately available funds, the amount
of Interchange to be so included as Investor Finance Charge Collections with
respect to the preceding Monthly Period and such Interchange shall be treated as
a portion of Investor Finance Charge Collections for all purposes of this
Indenture Supplement, the Indenture and the Transfer and Servicing Agreement.
(c) The Servicing Fee Rate may be increased upon the written
direction of Series 2003-D Noteholders holding 66 2/3% or more of the
then-outstanding note principal balance of each Class of the Series 2003-D Notes
and upon the written confirmation from each rating agency then rating any Class
of the Series 2003-D Notes that the increase in the Servicing Fee Rate will not
cause a reduction or withdrawal of the rating of any outstanding Class.
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ARTICLE IV
Rights of Series 2003-D Noteholders
and Allocation and Application of Collections
Section 4.01 Collections and Allocations.
(a) Allocations. Collections of Finance Charge and Administrative
Receivables and Principal Receivables and Defaulted Receivables allocated to
Series 2003-D pursuant to Article VIII of the Indenture shall be allocated and
distributed as set forth in this Article.
(b) Payments to the Transferor. The Servicer shall, on Deposit
Dates, withdraw from the Collection Account and pay to the holders of Trust
Beneficial Interests or Certificates the following amounts:
(i) an amount equal to the Transferor Percentage of
Collections of Finance Charge and Administrative Receivables to the extent such
amount is deposited in the Collection Account; and
(ii) an amount equal to the Transferor Percentage of
Collections of Principal Receivables deposited in the Collection Account, if the
Transferor Interest (determined after giving effect to any Principal Receivables
transferred to the Trust on such Deposit Date) exceeds zero and otherwise shall
be deposited in the Excess Funding Account.
The withdrawals to be made from the Collection Account pursuant to this
subsection 4.01(b) do not apply to deposits into the Collection Account that do
not represent Collections, including payment of the purchase price for the
Receivables or the Notes pursuant to, respectively, Section 2.06 or Section 7.01
of the Transfer and Servicing Agreement and payment of the purchase price for
the Series 2003-D Notes pursuant to Section 7.01 of this Indenture Supplement.
(c) Allocations to the Series 2003-D Noteholders. The Servicer
shall, prior to the close of business on any Deposit Date, allocate to the
Series 2003-D Noteholders the following amounts as set forth below:
(i) Allocations of Finance Charge Collections. The
Servicer shall, allocate to the Series 2003-D Noteholders and deposit in the
Collection Account for application as provided herein an amount equal to the
product of (A) the Investor Percentage and (B) the aggregate amount of
Collections of Finance Charge and Administrative Receivables for such Deposit
Date.
(ii) Allocations of Principal Collections. The Servicer
shall allocate to the Series 2003-D Noteholders the following amounts as set
forth below:
(x) Allocations During the Revolving Period.
During the Revolving Period, an amount equal to the product of (I) the
Investor Percentage and (II) the aggregate amount of Collections of
Principal Receivables on such Deposit Date shall be allocated to the
Series 2003-D Noteholders and, following allocation in accordance with
Section 4.04(b) hereof and Section 8.05 of the Indenture, shall be paid
to the holders of Trust Beneficial Interests or Certificates only if
the Transferor Interest on such date is
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greater than the Required Transferor Interest (after giving effect to
all Principal Receivables transferred to the Trust on such day) and
otherwise shall be deposited in the Excess Funding Account.
(y) Allocations During the Controlled
Accumulation Period. During the Controlled Accumulation Period an
amount equal to the product of (I) the Investor Percentage and (II) the
aggregate amount of Collections of Principal Receivables deposited in
the Collection Account on such Deposit Date (the product for any such
date is hereinafter referred to as a "PERCENTAGE ALLOCATION") shall be
allocated to the Series 2003-D Noteholders and retained in the
Collection Account until deposited monthly in the Principal Funding
Account as provided herein; provided, however, that if the sum of such
Percentage Allocation and all preceding Percentage Allocations with
respect to the same Monthly Period exceeds the Controlled Deposit
Amount during the Controlled Accumulation Period for the related
Payment Date, then such excess shall not be treated as a Percentage
Allocation and, following allocation in accordance with Section 4.08
hereof and Section 8.05 of the Indenture, shall be paid to the holders
of Trust Beneficial Interests or Certificates only if the Transferor
Interest on such date is greater than the Required Transferor Interest
(after giving effect to all Principal Receivables transferred to the
Trust on such day) and otherwise shall be deposited in the Excess
Funding Account.
(z) Allocations During the Early Amortization
Period. During the Early Amortization Period, an amount equal to the
product of (I) the Investor Percentage and (II) the aggregate amount of
Collections of Principal Receivables deposited in the Collection
Account on such Deposit Date, shall be allocated to the Series 2003-D
Noteholders and retained in the Collection Account until applied as
provided herein; provided, however, that after the date on which an
amount of such Collections equal to the Adjusted Invested Amount has
been deposited into the Collection Account and allocated to the Series
2003-D Noteholders, such amount, following allocation in accordance
with Section 4.08 hereof and Section 8.05 of the Indenture, shall be
paid to the holders of Trust Beneficial Interests or Certificates only
if the Transferor Interest on such date is greater than the Required
Transferor Interest (after giving effect to all Principal Receivables
transferred to the Trust on such day) and otherwise shall be deposited
in the Excess Funding Account.
Section 4.02 Determination of Monthly Interest.
(a) Subject to Section 4.02(e), the amount of monthly interest
("CLASS A MONTHLY INTEREST") distributable from the Collection Account with
respect to the Class A Notes on any Payment Date shall be an amount equal to the
product of (i) a fraction, the numerator of which is the actual number of days
in the related Interest Period and the denominator of which is 360, times (ii)
the Class A Note Interest Rate in effect with respect to the related Interest
Period, times (iii) the Class A Note Principal Balance as of the close of
business on the related Record Date (or, with respect to the first Payment Date,
the Class A Note Initial Principal Balance).
On the Determination Date preceding each Payment Date, the Servicer
shall determine the excess, if any (the "CLASS A INTEREST SHORTFALL"), of (x)
the Class A Monthly Interest for such Payment Date over (y) the aggregate amount
of funds allocated and available to pay such
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Class A Monthly Interest on such Payment Date. If the Class A Interest Shortfall
with respect to any Payment Date is greater than zero, on each subsequent
Payment Date until such Class A Interest Shortfall is fully paid, an additional
amount ("CLASS A ADDITIONAL INTEREST") equal to the product of (i) a fraction,
the numerator of which is the actual number of days in the related Interest
Period and the denominator of which is 360, times (ii) the Class A Note Interest
Rate in effect with respect to the related Interest Period, times (iii) such
Class A Interest Shortfall (or the portion thereof which has not been paid to
the Class A Noteholders) shall be payable as provided herein with respect to the
Class A Notes. Notwithstanding anything to the contrary herein, Class A
Additional Interest shall be payable or distributed to the Class A Noteholders
only to the extent permitted by applicable law.
(b) Subject to Section 4.02(e), the amount of monthly interest
("CLASS B MONTHLY INTEREST") distributable from the Collection Account with
respect to the Class B Notes on any Payment Date shall be an amount equal to the
product of (i) a fraction, the numerator of which is the actual number of days
in the related Interest Period and the denominator of which is 360, times (ii)
the Class B Note Interest Rate in effect with respect to the related Interest
Period, times (iii) the Class B Note Principal Balance as of the close of
business on the related Record Date (or, with respect to the first Payment Date,
the Class B Note Initial Principal Balance).
On the Determination Date preceding each Payment Date, the Servicer
shall determine the excess, if any (the "CLASS B INTEREST SHORTFALL"), of (x)
the Class B Monthly Interest for such Payment Date over (y) the aggregate amount
of funds allocated and available to pay such Class B Monthly Interest on such
Payment Date. If the Class B Interest Shortfall with respect to any Payment Date
is greater than zero, on each subsequent Payment Date until such Class B
Interest Shortfall is fully paid, an additional amount ("CLASS B ADDITIONAL
INTEREST") equal to the product of (i) a fraction, the numerator of which is the
actual number of days in the related Interest Period and the denominator of
which is 360, times (ii) the Class B Note Interest Rate in effect with respect
to the related Interest Period, times (iii) such Class B Interest Shortfall (or
the portion thereof which has not been paid to the Class B Noteholders) shall be
payable as provided herein with respect to the Class B Notes. Notwithstanding
anything to the contrary herein, Class B Additional Interest shall be payable or
distributed to the Class B Noteholders only to the extent permitted by
applicable law.
(c) Subject to Section 4.02(e), the amount of monthly interest
("CLASS C MONTHLY INTEREST") distributable from the Collection Account with
respect to the Class C Notes on any Payment Date shall be an amount equal to the
product of (i) a fraction, the numerator of which is the actual number of days
in the related Interest Period and the denominator of which is 360, times (ii)
the Class C Note Interest Rate in effect with respect to the related Interest
Period, times (iii) the Class C Note Principal Balance as of the close of
business on the related Record Date (or, with respect to the first Payment Date,
the Class C Note Initial Principal Balance).
On the Determination Date preceding each Payment Date, the Servicer
shall determine an amount (the "CLASS C INTEREST SHORTFALL") equal to (x) the
aggregate Class C Monthly Interest for such Payment Date minus (y) the aggregate
amount of funds allocated and available to pay such Class C Monthly Interest,
including, but not limited to, the Available Cash Collateral Account Amount, on
such Payment Date. If the Class C Interest Shortfall with respect to any Payment
Date is greater than zero, on each subsequent Payment Date until such Class C
Interest
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Shortfall is fully paid, an additional amount ("CLASS C ADDITIONAL INTEREST")
shall be payable as provided herein with respect to the Class C Notes equal to
the product of (i) a fraction, the numerator of which is the actual number of
days in the related Interest Period and the denominator of which is 360, times
(ii) the Class C Note Interest Rate in effect with respect to the related
Interest Period, times (iii) such Class C Interest Shortfall (or the portion
thereof which has not been paid to the Class C Noteholders (after giving effect
to the application of the proceeds of any draw made on the Cash Collateral
Account as provided in Section 4.04(a)(iv) and Section 4.11(c) for the purpose
of paying such amount with respect to such Payment Date)). Notwithstanding
anything to the contrary herein, Class C Additional Interest shall be payable or
distributed to the Class C Noteholders only to the extent permitted by
applicable law.
(d) Subject to Section 4.02(e), the amount of monthly interest
("CLASS D MONTHLY INTEREST") distributable from the Collection Account with
respect to the Class D Notes on any Payment Date shall be an amount equal to the
product of (i) a fraction, the numerator of which is the actual number of days
in the related Interest Period and the denominator of which is 360, times (ii)
the Class D Note Interest Rate in effect with respect to the related Interest
Period, times (iii) the Class D Note Principal Balance as of the close of
business on the related Record Date (or, with respect to the first Payment Date,
the Class D Note Initial Principal Balance).
On the Determination Date preceding each Payment Date, the Servicer
shall determine an amount (the "CLASS D INTEREST SHORTFALL") equal to (x) the
aggregate Class D Monthly Interest for such Payment Date minus (y) the aggregate
amount of funds allocated and available to pay such Class D Monthly Interest,
including, but not limited to, the Available Cash Collateral Account Amount
(after giving effect to any reduction in such amount after application of funds
therefrom pursuant to Section 4.02(c)), on such Payment Date. If the Class D
Interest Shortfall with respect to any Payment Date is greater than zero, on
each subsequent Payment Date until such Class D Interest Shortfall is fully
paid, an additional amount ("CLASS D ADDITIONAL INTEREST") shall be payable as
provided herein with respect to the Class D Notes equal to the product of (i) a
fraction, the numerator of which is the actual number of days in the related
Interest Period and the denominator of which is 360, times (ii) the Class D Note
Interest Rate in effect with respect to the related Interest Period, times (iii)
such Class D Interest Shortfall (or the portion thereof which has not been paid
to the Class D Noteholders (after giving effect to the application of the
proceeds of any draw made on the Cash Collateral Account as provided in Section
4.04(a)(viii) and Section 4.11(c) for the purpose of paying such amount with
respect to such Payment Date)). Notwithstanding anything to the contrary herein,
Class D Additional Interest shall be payable or distributed to the Class D
Noteholders only to the extent permitted by applicable law.
(e) The amount of Class A Monthly Interest, Class B Monthly
Interest, Class C Monthly Interest and Class D Monthly Interest distributable
pursuant to Section 4.02(a), (b), (c) and (d) above on the first Payment Date
will equal the sum of the interest accrued at the applicable note interest rate
from the Closing Date through and including January 19, 2004 based on LIBOR
determined on December 2, 2003 and the interest accrued from January 20, 2004
through and including February 19, 2004 based on LIBOR determined on January 15,
2004.
(f) The Transferor may change the Class D Margin Percentage with
the prior written consent of each Rating Agency and without the prior consent of
any Noteholder, so long as all of
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the Class D Notes are held by the Transferor or an Affiliate of the Transferor;
provided, however, that the Class D Margin Percentage shall not exceed 7.50% at
any time.
Section 4.03 Determination of Monthly Principal. The amount of monthly
principal distributable from the Collection Account with respect to the Notes on
each Payment Date (the "MONTHLY PRINCIPAL"), beginning with the Payment Date in
the month following the month in which the Controlled Accumulation Period or, if
earlier, the Early Amortization Period, begins, shall be equal to the least of
(i) the Available Principal Collections on deposit in the Collection Account
with respect to such Payment Date, (ii) for each Payment Date during the
Controlled Accumulation Period, the Controlled Deposit Amount for such Payment
Date and (iii) the Adjusted Invested Amount (after taking into account any
adjustments to be made on such Payment Date pursuant to Sections 4.05 and 4.06)
prior to any deposit into the Principal Funding Account on such Payment Date.
Section 4.04 Application of Available Finance Charge Collections and
Available Principal Collections. The Servicer shall apply, or shall cause the
Indenture Trustee to apply, by written instruction to the Indenture Trustee, on
each Payment Date, Available Finance Charge Collections and Available Principal
Collections with respect to such Payment Date to make the following
distributions:
(a) On each Payment Date, an amount equal to the Available Finance
Charge Collections with respect to such Payment Date will be distributed or
deposited in the following priority:
(i) an amount equal to Class A Monthly Interest for such
Payment Date, plus the amount of any Class A Interest Shortfall previously due
but not distributed to the Class A Noteholders on a prior Payment Date, plus the
amount of any Class A Additional Interest for such Payment Date, plus the amount
of any Class A Additional Interest previously due but not distributed to Class A
Noteholders on a prior Payment Date, shall be distributed to the Paying Agent
for payment to Class A Noteholders on such Payment Date;
(ii) an amount equal to Class B Monthly Interest for such
Payment Date, plus the amount of any Class B Interest Shortfall previously due
but not distributed to the Class B Noteholders on a prior Payment Date, plus the
amount of any Class B Additional Interest for such Payment Date, plus the amount
of any Class B Additional Interest previously due but not distributed to Class B
Noteholders on a prior Payment Date, shall be distributed to the Paying Agent
for payment to Class B Noteholders on such Payment Date;
(iii) an amount equal to the Monthly Servicing Fee for such
Payment Date, plus the amount of any Monthly Servicing Fee previously payable
pursuant to this clause (iii) for a prior Payment Date but not paid to the
Servicer, shall be paid to the Servicer unless such amount has been netted
against deposits to the Collection Account in accordance with Section 8.04 of
the Indenture;
(iv) an amount equal to Class C Monthly Interest for such
Payment Date, plus the amount of any Class C Interest Shortfall previously due
but not distributed to the Class C Noteholders on a prior Payment Date, plus the
amount of any Class C Additional Interest for
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such Payment Date, plus the amount of any Class C Additional Interest previously
due but not distributed to the Class C Noteholders on a prior Payment Date shall
be distributed to the Paying Agent for payment to the Class C Noteholders on
such Payment Date; provided, however, that, in the event that the sum of Class C
Monthly Interest exceeds the amount of Available Finance Charge Collections
available (after giving effect to subsections 4.04(a)(i) through (iii) above) to
fund such Class C Monthly Interest and Class C Additional Interest, a draw will
be made from amounts available for distribution in the Cash Collateral Account
(at the times and in the amounts specified in Section 4.11) and shall be
distributed to the Paying Agent for payment to the Class C Noteholders on such
Payment Date in accordance with this subsection 4.04(a)(iv);
(v) an amount equal to the Investor Default Amount, if
any, for the related Monthly Period shall be treated as a portion of Available
Principal Collections for such Payment Date;
(vi) an amount equal to the sum of the aggregate amount of
Investor Charge-Offs and the amount of Reallocated Principal Collections which
have not been previously reimbursed pursuant to this subparagraph (vi) shall be
treated as a portion of Available Principal Collections for such Payment Date;
(vii) on each Payment Date from and after the Reserve
Account Funding Date, but prior to the date on which the Reserve Account
terminates as described in subsection 4.10(f), an amount up to the excess, if
any, of the Required Reserve Account Amount over the Available Reserve Account
Amount shall be deposited into the Reserve Account;
(viii) an amount equal to Class D Monthly Interest for such
Payment Date, plus the amount of any Class D Interest Shortfall previously due
but not distributed to the Class D Noteholders on a prior Payment Date, plus the
amount of any Class D Additional Interest for such Payment Date, plus the amount
of any Class D Additional Interest previously due but not distributed to the
Class D Noteholders on a prior Payment Date shall be distributed to the Paying
Agent for payment to the Class D Noteholders on such Payment Date; provided,
however, that, in the event that the sum of Class D Monthly Interest exceeds the
amount of Available Finance Charge Collections available (after giving effect to
subsections 4.04(a)(i) through (vii) above) to fund such Class D Monthly
Interest and Class D Additional Interest, a draw will be made from amounts
available for distribution in the Cash Collateral Account (at the times and in
the amounts specified in Section 4.11) and shall be distributed to the Paying
Agent for payment to the Class D Noteholders on such Payment Date in accordance
with this subsection 4.04(a)(viii);
(ix) an amount equal to the amounts required to be
deposited in the Cash Collateral Account pursuant to Section 4.11(f) shall be
deposited into the Cash Collateral Account as provided in Section 4.11(f);
(x) the balance, if any, will constitute a portion of
Excess Finance Charge Collections for such Payment Date and will be available
for allocation to other Series in Group One as described in Section 8.08 of the
Indenture; and
(xi) to the extent not applied as set forth in clause (x),
any remaining amounts will be paid to the holders of Trust Beneficial Interests
or Certificates.
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(b) On each Payment Date with respect to the Revolving Period, an
amount equal to the Available Principal Collections for the related Monthly
Period shall be treated as Shared Principal Collections and applied in
accordance with Section 8.05 of the Indenture.
(c) On each Payment Date during the Controlled Accumulation Period
or the Early Amortization Period, an amount equal to the Available Principal
Collections for the related Monthly Period shall be distributed or deposited in
the following order of priority:
(i) during the Controlled Accumulation Period, an amount
equal to the Monthly Principal for such Payment Date shall be deposited into the
Principal Funding Account;
(ii) during the Early Amortization Period, an amount equal
to the Monthly Principal for such Payment Date shall be distributed to the
Paying Agent for payment to the Class A Noteholders on such Payment Date and on
each subsequent Payment Date until the Class A Note Principal Balance has been
paid in full;
(iii) during the Early Amortization Period, after the Class
A Note Principal Balance has been paid in full, an amount equal to the Monthly
Principal remaining, if any, shall be distributed to the Paying Agent for
payment to the Class B Noteholders on such Payment Date and on each subsequent
Payment Date until the Class B Note Principal Balance has been paid in full;
(iv) during the Early Amortization Period, after the Class
A Note Principal Balance and the Class B Note Principal Balance have been paid
in full, an amount equal to the Monthly Principal remaining, if any, shall be
distributed to the Paying Agent for payment to the Class C Noteholders on such
Payment Date and on each subsequent Payment Date until the Class C Note
Principal Balance has been paid in full;
(v) during the Early Amortization Period, after the Class
A Note Principal Balance, the Class B Note Principal Balance and the Class C
Note Principal Balance have been paid in full, an amount equal to the Monthly
Principal remaining, if any, shall be distributed to the Paying Agent for
payment to the Class D Noteholders on such Payment Date and on each subsequent
Payment Date until the Class D Note Principal Balance has been paid in full; and
(vi) in the case of each of the Controlled Accumulation
Period and the Early Amortization Period, the balance of such Available
Principal Collections remaining after application in accordance with clause (i)
or (v) above shall be treated as Shared Principal Collections and applied in
accordance with Section 8.05 of the Indenture.
(d) On the earlier to occur of (i) the first Payment Date during
the Early Amortization Period and (ii) the Expected Final Principal Payment
Date, the Indenture Trustee, acting in accordance with written instructions from
the Servicer, shall withdraw from the Principal Funding Account and distribute
to the Paying Agent for payment to the Class A Noteholders, the Class B
Noteholders, the Class C Noteholders and the Class D Noteholders, in that order
of priority, the amounts deposited into the Principal Funding Account pursuant
to subsection 4.04(c)(i).
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(e) The Controlled Accumulation Period is scheduled to commence at
the close of business on February 28, 2006; provided, however, that, if the
Accumulation Period Length (determined as described below) is less than 8
months, the date on which the Controlled Accumulation Period actually commences
will be delayed to the first Business Day of the month that is the number of
whole months prior to the Expected Final Principal Payment Date at least equal
to the Accumulation Period Length and, as a result, the number of Monthly
Periods in the Controlled Accumulation Period will at least equal the
Accumulation Period Length. On the Determination Date immediately preceding the
Reserve Account Funding Date, and each Determination Date thereafter until the
Controlled Accumulation Period begins, the Servicer will determine the
"ACCUMULATION PERIOD LENGTH" which will equal the number of whole months such
that the sum of the Accumulation Period Factors for each month during such
period will be equal to or greater than the Required Accumulation Factor Number;
provided, however, that the Accumulation Period Length will not be determined to
be less than one month; provided further, however, that the determination of the
Accumulation Period Length may be changed at any time if the Rating Agency
Condition is satisfied.
Section 4.05 Investor Charge-Offs. On each Determination Date, the
Servicer shall calculate the Investor Default Amount, if any, for the related
Payment Date. If, on any Payment Date, the Investor Default Amount for such
Payment Date exceeds the amount of Available Finance Charge Collections
allocated with respect thereto pursuant to subsection 4.04(a)(v) with respect to
such Payment Date, the Invested Amount (after giving effect to any reductions
for any Reallocated Principal Collections on such Payment Date) will be reduced
by the amount of such excess, but not by more than the lesser of the Investor
Default Amount and the Invested Amount (after giving effect to any reductions
for any Reallocated Principal Collections on such Payment Date) for such Payment
Date (such reduction, an "INVESTOR CHARGE-OFF").
Section 4.06 Reallocated Principal Collections. On each Payment Date,
the Servicer shall apply, or shall cause the Indenture Trustee to apply,
Reallocated Principal Collections with respect to such Payment Date, to fund any
deficiency pursuant to and in the priority set forth in subsections 4.04(a)(i),
(ii), (iii) and (iv). On each Payment Date, the Invested Amount shall be reduced
by the amount of Reallocated Principal Collections for such Payment Date.
Section 4.07 Excess Finance Charge Collections. Series 2003-D shall be
an Excess Allocation Series with respect to Group One only. Subject to Section
8.08 of the Indenture, Excess Finance Charge Collections with respect to the
Excess Allocation Series in Group One for any Payment Date will be allocated to
Series 2003-D in an amount equal to the product of (x) the aggregate amount of
Excess Finance Charge Collections with respect to all the Excess Allocation
Series in Group One for such Payment Date and (y) a fraction, the numerator of
which is the Finance Charge Shortfall for Series 2003-D for such Payment Date
and the denominator of which is the aggregate amount of Finance Charge
Shortfalls for all the Excess Allocation Series in Group One for such Payment
Date. The "FINANCE CHARGE SHORTFALL" for Series 2003-D for any Payment Date will
be equal to the excess, if any, of (a) the full amount required to be paid,
without duplication, pursuant to subsections 4.04(a)(i) through (viii) on such
Payment Date over (b) the Available Finance Charge Collections with respect to
such Payment Date (excluding any portion thereof attributable to Excess Finance
Charge Collections).
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Section 4.08 Shared Principal Collections. Subject to Section 8.05 of
the Indenture, Shared Principal Collections with respect to the Series in Group
One for any Payment Date will be allocated to Series 2003-D in an amount equal
to the product of (x) the aggregate amount of Shared Principal Collections with
respect to all Principal Sharing Series in Group One for such Payment Date and
(y) a fraction, the numerator of which is the Series 2003-D Principal Shortfall
for such Payment Date and the denominator of which is the aggregate amount of
Principal Shortfalls for all the Series which are Principal Sharing Series in
Group One for such Payment Date. The "SERIES 2003-D PRINCIPAL SHORTFALL" will be
equal to (a) for any Payment Date with respect to the Revolving Period or the
Early Amortization Period, zero; (b) for any Payment Date with respect to the
Controlled Accumulation Period, the excess, if any, of the Controlled Deposit
Amount with respect to such Payment Date over the amount of Available Principal
Collections for such Payment Date (excluding any portion thereof attributable to
Shared Principal Collections).
Section 4.09 Principal Funding Account.
(a) The Indenture Trustee shall establish and maintain with an
Eligible Institution, which may be the Indenture Trustee in the name of the
Trust, on behalf of the Trust, for the benefit of the Series 2003-D Noteholders,
a segregated trust account with the corporate trust department of such Eligible
Institution (the "PRINCIPAL FUNDING ACCOUNT"), bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Series 2003-D Noteholders. The Indenture Trustee shall possess all right, title
and interest in all funds on deposit from time to time in the Principal Funding
Account and in all proceeds thereof. The Principal Funding Account shall be
under the sole dominion and control of the Indenture Trustee for the benefit of
the Series 2003-D Noteholders. If at any time the institution holding the
Principal Funding Account ceases to be an Eligible Institution, the Servicer
shall notify the Indenture Trustee in writing, and the Indenture Trustee upon
being so notified (or the Servicer on its behalf) shall, within ten (10)
Business Days, establish a new Principal Funding Account meeting the conditions
specified above with an Eligible Institution, and shall transfer any cash or any
investments to such new Principal Funding Account. The Indenture Trustee, at the
written direction of the Servicer, shall (i) make withdrawals from the Principal
Funding Account from time to time, in the amounts and for the purposes set forth
in this Indenture Supplement, and (ii) on each Payment Date (from and after the
commencement of the Controlled Accumulation Period) prior to the termination of
the Principal Funding Account, make deposits into the Principal Funding Account
in the amounts specified in, and otherwise in accordance with, subsection
4.04(c)(i).
(b) Funds on deposit in the Principal Funding Account shall be
invested at the written direction of the Servicer by the Indenture Trustee in
Eligible Investments. Funds on deposit in the Principal Funding Account on any
Payment Date, after giving effect to any deposits to or withdrawals from the
Principal Funding Account on such Payment Date, shall be invested in such
investments that will mature so that such funds will be available for withdrawal
on or prior to the following Payment Date.
The Indenture Trustee shall hold such of the Eligible Investments as
consists of instruments, deposit accounts, negotiable documents, money, goods,
letters of credit, and advices of credit in the State of New York. The Indenture
Trustee shall hold such of the Eligible
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Investments as constitutes investment property through a securities
intermediary, which securities intermediary shall agree with the Indenture
Trustee that (a) such investment property shall at all times be credited to a
securities account of the Indenture Trustee, (b) such securities intermediary
shall treat the Indenture Trustee as entitled to exercise the rights that
comprise each financial asset credited to such securities account, (c) all
property credited to such securities account shall be treated as a financial
asset, (d) such securities intermediary shall comply with entitlement orders
originated by the Indenture Trustee without the further consent of any other
person or entity, (e) such securities intermediary will not agree with any
person or entity other than the Indenture Trustee to comply with entitlement
orders originated by such other person or entity, (f) such securities accounts
and the property credited thereto shall not be subject to any lien, security
interest or right of set-off in favor of such securities intermediary or anyone
claiming through it (other than the Indenture Trustee), and (g) such agreement
shall be governed by the laws of the State of New York. Terms used in the
preceding sentence that are defined in the New York UCC and not otherwise
defined herein shall have the meaning set forth in the New York UCC.
On each Payment Date during the Controlled Accumulation Period and on
the first Payment Date to occur during the Early Amortization Period, the
Indenture Trustee, acting at the Servicer's written direction given on or before
such Payment Date, shall transfer from the Principal Funding Account to the
Collection Account the Principal Funding Investment Proceeds on deposit in the
Principal Funding Account for application as Available Finance Charge
Collections in accordance with Section 4.04.
Principal Funding Investment Proceeds (including reinvested interest)
shall not be considered part of the amounts on deposit in the Principal Funding
Account for purposes of this Indenture Supplement.
Section 4.10 Reserve Account.
(a) The Indenture Trustee shall establish and maintain with an
Eligible Institution, which may be the Indenture Trustee in the name of the
Trust, on behalf of the Trust, for the benefit of the Series 2003-D Noteholders,
a segregated trust account with the corporate trust department of such Eligible
Institution (the "RESERVE ACCOUNT"), bearing a designation clearly indicating
that the funds deposited therein are held for the benefit of the Series 2003-D
Noteholders. The Indenture Trustee shall possess all right, title and interest
in all funds on deposit from time to time in the Reserve Account and in all
proceeds thereof. The Reserve Account shall be under the sole dominion and
control of the Indenture Trustee for the benefit of the Series 2003-D
Noteholders. If at any time the institution holding the Reserve Account ceases
to be an Eligible Institution, the Servicer shall notify the Indenture Trustee
in writing, and the Indenture Trustee upon being so notified (or the Servicer on
its behalf) shall, within ten (10) Business Days, establish a new Reserve
Account meeting the conditions specified above with an Eligible Institution, and
shall transfer any cash or any investments to such new Reserve Account. The
Indenture Trustee, at the written direction of the Servicer, shall (i) make
withdrawals from the Reserve Account from time to time in an amount up to the
Available Reserve Account Amount at such time, for the purposes set forth in
this Indenture Supplement, and (ii) on each Payment Date (from and after the
Reserve Account Funding Date) prior to termination of the
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Reserve Account, make a deposit into the Reserve Account in the amount specified
in, and otherwise in accordance with, subsection 4.04(a)(vii).
(b) Funds on deposit in the Reserve Account shall be invested at
the written direction of the Servicer by the Indenture Trustee in Eligible
Investments. Funds on deposit in the Reserve Account on any Payment Date, after
giving effect to any deposits to or withdrawals from the Reserve Account on such
Payment Date, shall be invested in such investments that will mature so that
such funds will be available for withdrawal on or prior to the following Payment
Date.
The Indenture Trustee shall hold such of the Eligible Investments as
consist of instruments, deposit accounts, negotiable documents, money, goods,
letters of credit, and advices of credit in the State of New York. The Indenture
Trustee shall hold such of the Eligible Investments as constitute investment
property through a securities intermediary, which securities intermediary shall
agree with the Indenture Trustee that (a) such investment property shall at all
times be credited to a securities account of the Indenture Trustee, (b) such
securities intermediary shall treat the Indenture Trustee as entitled to
exercise the rights that comprise each financial asset credited to such
securities account, (c) all property credited to such securities account shall
be treated as a financial asset, (d) such securities intermediary shall comply
with entitlement orders originated by the Indenture Trustee without the further
consent of any other person or entity, (e) such securities intermediary will not
agree with any person or entity other than the Indenture Trustee to comply with
entitlement orders originated by such other person or entity, (f) such
securities accounts and the property credited thereto shall not be subject to
any lien, security interest, or right of set-off in favor of such securities
intermediary or anyone claiming through it (other than the Indenture Trustee),
and (g) such agreement shall be governed by the laws of the State of New York.
Terms used in the preceding sentence that are defined in the New York UCC and
not otherwise defined herein shall have the meaning set forth in the New York
UCC.
On each Payment Date, all interest and earnings (net of losses and
investment expenses) accrued since the preceding Payment Date on funds on
deposit in the Reserve Account shall be retained in the Reserve Account (to the
extent that the Available Reserve Account Amount is less than the Required
Reserve Account Amount) and the balance, if any, shall be deposited into the
Collection Account and included in Available Finance Charge Collections for such
Payment Date. For purposes of determining the availability of funds or the
balance in the Reserve Account for any reason under this Indenture Supplement,
except as otherwise provided in the preceding sentence, investment earnings on
such funds shall be deemed not to be available or on deposit.
(c) On or before each Payment Date during the Controlled
Accumulation Period and on or before the first Payment Date to occur during the
Early Amortization Period, the Servicer shall calculate the Reserve Draw Amount;
provided, however, that such amount will be reduced to the extent that funds
otherwise would be available for deposit in the Reserve Account under Section
4.04(a)(vii) with respect to such Payment Date.
(d) In the event that for any Payment Date the Reserve Draw Amount
is greater than zero, the Reserve Draw Amount, up to the Available Reserve
Account Amount, shall be withdrawn from the Reserve Account on such Payment Date
by the Indenture Trustee (acting in
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accordance with the written instructions of the Servicer) and deposited into the
Collection Account for application as Available Finance Charge Collections for
such Payment Date.
(e) In the event that the Reserve Account Surplus on any Payment
Date, after giving effect to all deposits to and withdrawals from the Reserve
Account with respect to such Payment Date, is greater than zero, the Indenture
Trustee, acting in accordance with the written instructions of the Servicer,
shall withdraw from the Reserve Account an amount equal to such Reserve Account
Surplus and (i) deposit such amounts in the Cash Collateral Account, to the
extent that funds on deposit in the Cash Collateral Account are less than the
Required Cash Collateral Account Amount, and (ii) distribute any such amounts
remaining after application pursuant to subsection 4.10(e)(i) to the holders of
Trust Beneficial Interests or Certificates.
(f) Upon the earliest to occur of (i) the termination of the Trust
pursuant to Article VIII of the Trust Agreement, (ii) the first Payment Date to
occur during the Early Amortization Period and (iii) the Expected Final
Principal Payment Date, the Indenture Trustee, acting in accordance with the
written instructions of the Servicer, after the prior payment of all amounts
owing to the Series 2003-D Noteholders that are payable from the Reserve Account
as provided herein, shall withdraw from the Reserve Account all amounts, if any,
on deposit in the Reserve Account and (x) deposit such amounts in the Cash
Collateral Account, to the extent that funds on deposit in the Cash Collateral
Account are less than the Required Cash Collateral Account Amount, and (y)
distribute any such amounts remaining after application pursuant to subsection
4.10(f)(x) to the holders of the Trust Beneficial Interests or Certificates. The
Reserve Account shall thereafter be deemed to have terminated for purposes of
this Indenture Supplement.
Section 4.11 Cash Collateral Account.
(a) On or prior to the Closing Date, the Servicer shall establish
and maintain with an Eligible Institution, which may be the Indenture Trustee in
the name of the Trust, on behalf of the Trust, for the benefit of the Class C
Noteholders and the Class D Noteholders, a segregated account with the corporate
trust department of such Eligible Institution (the "CASH COLLATERAL ACCOUNT"),
bearing a designation clearly indicating that the funds deposited therein are
held for the benefit of the Class C Noteholders and the Class D Noteholders.
Except as otherwise provided in this Section 4.11, the Indenture Trustee shall
possess all right, title and interest in all funds on deposit from time to time
in the Cash Collateral Account and in all proceeds thereof. The Cash Collateral
Account shall be under the sole dominion and control of the Indenture Trustee
for the benefit of the Class C Noteholders and the Class D Noteholders. If at
any time the institution holding the Cash Collateral Account ceases to be an
Eligible Institution, the Servicer shall notify the Indenture Trustee in
writing, and the Indenture Trustee upon being so notified (or the Servicer on
its behalf) shall, within ten (10) Business Days (or such longer period as to
which the Rating Agencies may consent) establish a new Cash Collateral Account
meeting the conditions specified above with an Eligible Institution and shall
transfer any cash or any investments to such new Cash Collateral Account. The
Indenture Trustee, at the written direction of the Servicer, shall (i) make
withdrawals from the Cash Collateral Account from time to time in an amount up
to the Available Cash Collateral Account Amount at such time, for the purposes
set forth in this Indenture Supplement, and (ii) on each Payment Date prior to
termination of the Cash Collateral Account, make a deposit into the Cash
Collateral Account in the amount specified in, and otherwise in accordance with,
subsection 4.11(f).
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On the Closing Date, the Transferor shall deposit the Initial Cash
Collateral Account Amount in the Cash Collateral Account.
(b) Funds on deposit in the Cash Collateral Account shall be
invested at the written direction of the Servicer by the Indenture Trustee in
Eligible Investments. Funds on deposit in the Cash Collateral Account on any
Payment Date, after giving effect to any withdrawals from and deposits to the
Cash Collateral Account on such Payment Date, shall be invested in such
investments that will mature so that such funds will be available for withdrawal
on or prior to the following Payment Date.
The Indenture Trustee shall hold such of the Eligible Investments as
consists of instruments, deposit accounts, negotiable documents, money, goods,
letters of credit, and advices of credit in the State of New York. The Indenture
Trustee shall hold such of the Eligible Investments as constitutes investment
property through a securities intermediary, which securities intermediary shall
agree with the Indenture Trustee that (a) such investment property shall at all
times be credited to a securities account of the Indenture Trustee, (b) such
securities intermediary shall treat the Indenture Trustee as entitled to
exercise the rights that comprise each financial asset credited to such
securities account, (c) all property credited to such securities account shall
be treated as a financial asset, (d) such securities intermediary shall comply
with entitlement orders originated by the Indenture Trustee without the further
consent of any other person or entity, (e) such securities intermediary will not
agree with any person or entity other than the Indenture Trustee to comply with
entitlement orders originated by such other person or entity, (f) such
securities accounts and the property credited thereto shall not be subject to
any lien, security interest, or right of set-off in favor of such securities
intermediary or anyone claiming through it (other than the Indenture Trustee),
and (g) such agreement shall be governed by the laws of the State of New York.
Terms used in the preceding sentence that are defined in the New York UCC and
not otherwise defined herein shall have the meaning set forth in the New York
UCC. Except as permitted by this subsection 4.11(b), the Indenture Trustee shall
not hold Eligible Investments through an agent or a nominee.
On each Payment Date (but subject to subsections 4.11(c) and 4.11(d)),
the Investment Earnings, if any, accrued since the preceding Payment Date on
funds on deposit in the Cash Collateral Account shall be retained in the Cash
Collateral Account and applied as other funds therein are applied. For purposes
of determining the availability of funds or the balance in the Cash Collateral
Account for any reason under this Indenture Supplement (subject to subsections
4.11(c) and 4.11(d)), all Investment Earnings shall be deemed not to be
available or on deposit.
(c) If, on any Payment Date, the aggregate amount available for
distribution pursuant to subsections 4.04(a)(iv) and 4.04(a)(viii), including,
but not limited to, any amount available pursuant to Section 4.07, is less than
the aggregate amount required to be distributed pursuant to subsections
4.04(a)(iv) and 4.04(a)(viii) (without giving effect to any limitation based on
Available Finance Charge Collections), the Indenture Trustee, at the written
direction of the Servicer, shall withdraw from the Cash Collateral Account the
amount of such deficiency up to the Available Cash Collateral Account Amount
and, if the Available Cash Collateral Account Amount is less than such
deficiency, Investment Earnings credited to the Cash Collateral Account, and
deposit such amount in the Collection Account for payment first to the Class C
Noteholders in respect of interest on the Class C Notes to the extent of any
deficiency in amounts
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otherwise available under subsection 4.04(a)(iv) and then to the Class D
Noteholders in respect of interest on the Class D Notes in accordance with
Section 4.04.
(d) On the Series 2003-D Final Maturity Date, the Indenture
Trustee at the written direction of the Servicer shall withdraw from the Cash
Collateral Account an amount equal to the lesser of (i) the sum of the Class C
Note Principal Balance and the Class D Note Principal Balance (after any
payments to be made pursuant to subsection 4.04(c) on such date) and (ii) the
Available Cash Collateral Account Amount and, if the Available Cash Collateral
Account Amount is not sufficient to reduce first, the Class C Note Principal
Balance and then, the Class D Note Principal Balance to zero, Investment
Earnings credited to the Cash Collateral Account up to the amount required to
reduce each of the Class C Note Principal Balance and the Class D Note Principal
Balance to zero, and the Indenture Trustee or the Servicer shall deposit such
amounts into the Collection Account for distribution first, to the Class C
Noteholders and then, to the Class D Noteholders in accordance with subsections
5.02(f) and 5.02(h).
(e) On any day following the occurrence of an Event of Default
with respect to Series 2003-D and acceleration of the maturity of the Series
2003-D Notes pursuant to Section 5.03 of the Indenture, the Servicer shall
withdraw from the Cash Collateral Account an amount equal to the Available Cash
Collateral Account Amount and the Indenture Trustee or the Servicer shall
deposit such amounts into the Collection Account for distribution to the Class C
Noteholders and the Class D Noteholders, in that order of priority, in
accordance with Section 5.02, to fund any shortfalls in amounts owed to such
Noteholders.
(f) If on any Payment Date, after giving effect to all withdrawals
from the Cash Collateral Account, the Available Cash Collateral Account Amount
is less than the Required Cash Collateral Account Amount then in effect,
Available Finance Charge Collections, minus the amount described in clause (d)
of the definition of Available Finance Charge Collections, shall be deposited
into the Cash Collateral Account under the circumstances set forth in subsection
4.04(a)(ix) up to the amount of the Cash Collateral Account Deficiency.
(g) If on any Payment Date, after giving effect to all withdrawals
from and deposits to the Cash Collateral Account, the amount on deposit in the
Cash Collateral Account would exceed the Required Cash Collateral Account Amount
then in effect, the Indenture Trustee shall, at the written direction of the
Servicer, release such excess to the Transferor. On the date on which each of
the Class C Note Principal Balance and the Class D Note Principal Balance has
been paid in full (including amounts to be paid to the Class C Noteholders and
the Class D Noteholders pursuant to subsection 4.11(d) above), the Indenture
Trustee, at the written direction of the Servicer, shall withdraw from the Cash
Collateral Account all amounts then remaining in the Cash Collateral Account and
pay such amounts to the Transferor.
Section 4.12 Determination of LIBOR.
(a) On each LIBOR Determination Date, the Indenture Trustee shall
determine LIBOR on the basis of the rate for deposits in United States dollars
having a maturity of one month commencing on such LIBOR Determination Date which
appears on Telerate Page 3750 as of 11:00 a.m., London time, on such date. If
such rate does not appear on Telerate Page 3750, LIBOR for that LIBOR
Determination Date shall be determined on the basis of the rates at which
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deposits in United States dollars are offered by the Reference Banks at
approximately 11:00 a.m., London time, on that day to prime banks in the London
interbank market for a one-month period and in an amount of not less than U.S.
$1,000,000. The Indenture Trustee shall request the principal London office of
each of the Reference Banks to provide a quotation of its rate. If at least two
(2) such quotations are provided, LIBOR for that LIBOR Determination Date shall
be the arithmetic mean of the quotations. If fewer than two (2) quotations are
provided as requested, LIBOR for that LIBOR Determination Date will be the
arithmetic mean of the rates quoted by major banks in New York City, selected by
the Servicer, at approximately 11:00 a.m., New York City time, on that day for
loans in United States dollars to leading European banks for a one-month period
and in an amount of not less than U.S. $1,000,000; provided, that, if the banks
selected by the Servicer are not quoting such rates, LIBOR for that LIBOR
Determination Date will be the same as LIBOR for the immediately preceding LIBOR
Determination Date.
(b) The Class A Note Interest Rate, the Class B Note Interest
Rate, the Class C Note Interest Rate and the Class D Note Interest Rate
applicable to the then current and the immediately preceding Interest Periods
may be obtained by telephoning the Indenture Trustee at its corporate trust
office at (000) 000-0000 or such other telephone number as shall be designated
by the Indenture Trustee for such purpose by prior written notice by the
Indenture Trustee to each Series 2003-D Noteholder from time to time.
(c) On each LIBOR Determination Date, the Indenture Trustee shall
send to the Transferor by facsimile transmission, notification of LIBOR for the
following Interest Period.
Section 4.13 Investment Instructions. Any investment instructions
required to be given to the Indenture Trustee pursuant to the terms hereof must
be given to the Indenture Trustee no later than 11:00 a.m., New York City time,
on the date such investment is to be made. In the event the Indenture Trustee
receives such investment instruction later than such time, the Indenture Trustee
may, but shall have no obligation to, make such investment. In the event the
Indenture Trustee is unable to make an investment required in an investment
instruction received by the Indenture Trustee after 11:00 a.m., New York City
time, on such day, such investment shall be made by the Indenture Trustee on the
next succeeding Business Day. In no event shall the Indenture Trustee be liable
for any investment not made pursuant to investment instructions received after
11:00 a.m., New York City time, on the day such investment is requested to be
made.
ARTICLE V
Delivery of Series 2003-D Notes;
Distributions; Reports to Series 2003-D Noteholders
Section 5.01 Delivery and Payment for the Series 2003-D Notes; Form and
Denomination. The Issuer shall execute and issue, and the Indenture Trustee
shall authenticate, the Series 2003-D Notes in accordance with Section 2.03 of
the Indenture. The Indenture Trustee shall deliver the Series 2003-D Notes to or
upon the order of the Trust when so authenticated. The Class A Notes, the Class
B Notes and the Class C Notes shall be Book-Entry Notes. The Class D Notes shall
be delivered as Definitive Notes, and not as Book-Entry Notes. The Class D Notes
shall not be registered in the name of the nominee of the Clearing Agency or
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Foreign Clearing Agency. The Class D Notes shall be available in denominations
of $500,000 and integral multiples thereof.
Section 5.02 Distributions.
(a) On each Payment Date, the Paying Agent shall distribute to
each Class A Noteholder of record on the related Record Date (other than as
provided in Section 11.02 of the Indenture) such Class A Noteholder's pro rata
share of the amounts held by the Paying Agent that are allocated and available
on such Payment Date to pay interest on the Class A Notes pursuant to this
Indenture Supplement.
(b) On each Payment Date, the Paying Agent shall distribute to
each Class A Noteholder of record on the related Record Date (other than as
provided in Section 11.02 of the Indenture) such Class A Noteholder's pro rata
share of the amounts held by the Paying Agent that are allocated and available
on such Payment Date to pay principal of the Class A Notes pursuant to this
Indenture Supplement.
(c) On each Payment Date, the Paying Agent shall distribute to
each Class B Noteholder of record on the related Record Date (other than as
provided in Section 11.02 of the Indenture) such Class B Noteholder's pro rata
share of the amounts held by the Paying Agent that are allocated and available
on such Payment Date to pay interest on the Class B Notes pursuant to this
Indenture Supplement.
(d) On each Payment Date, the Paying Agent shall distribute to
each Class B Noteholder of record on the related Record Date (other that as
provided in Section 11.02 of the Indenture) such Class B Noteholder's pro rata
share of the amounts held by the Paying Agent that are allocated and available
on such Payment Date to pay principal of the Class B Notes pursuant to this
Indenture Supplement.
(e) On each Payment Date, the Paying Agent shall distribute to
each Class C Noteholder of record on the related Record Date (other than as
provided in Section 11.02 of the Indenture) such Class C Noteholder's pro rata
share of the amounts held by the Paying Agent (including amounts held by the
Paying Agent with respect to amounts withdrawn from the Cash Collateral Account
(at the times and in the amounts specified in Section 4.11(c) and Section
4.11(e))) that are allocated and available on such Payment Date to pay interest
on the Class C Notes pursuant to this Indenture Supplement.
(f) On each Payment Date, the Paying Agent shall distribute to
each Class C Noteholder of record on the related Record Date (other that as
provided in Section 11.02 of the Indenture) such Class C Noteholder's pro rata
share of the amounts held by the Paying Agent (including amounts held by the
Paying Agent with respect to amounts withdrawn from the Cash Collateral Account
(at the times and in the amounts specified in Section 4.11(d) and Section
4.11(e))) that are allocated and available on such Payment Date to pay principal
of the Class C Notes pursuant to this Indenture Supplement.
(g) On each Payment Date, the Paying Agent shall distribute to
each Class D Noteholder of record on the related Record Date (other than as
provided in Section 11.02 of the Indenture) such Class D Noteholder's pro rata
share of the amounts held by the Paying Agent
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(including amounts held by the Paying Agent with respect to amounts withdrawn
from the Cash Collateral Account (at the times and in the amounts specified in
Section 4.11(c) and Section 4.11(e))) that are allocated and available on such
Payment Date to pay interest on the Class D Notes pursuant to this Indenture
Supplement.
(h) On each Payment Date, the Paying Agent shall distribute to
each Class D Noteholder of record on the related Record Date (other that as
provided in Section 11.02 of the Indenture) such Class D Noteholder's pro rata
share of the amounts held by the Paying Agent (including amounts held by the
Paying Agent with respect to amounts withdrawn from the Cash Collateral Account
(at the times and in the amounts specified in Section 4.11(d) and Section
4.11(e))) that are allocated and available on such Payment Date to pay principal
of the Class D Notes pursuant to this Indenture Supplement.
(i) The distributions to be made pursuant to this Section 5.02 are
subject to the provisions of Sections 2.06, 6.01 and 7.01 of the Transfer and
Servicing Agreement, Section 11.02 of the Indenture and Section 7.01 of this
Indenture Supplement.
(j) Except as provided in Section 11.02 of the Indenture with
respect to a final distribution, distributions to Series 2003-D Noteholders
hereunder shall be made by (i) check mailed to each Series 2003-D Noteholder (at
such Noteholder's address as it appears in the Note Register), except that with
respect to any Series 2003-D Notes registered in the name of the nominee of a
Clearing Agency, such distribution shall be made in immediately available funds
and (ii) without presentation or surrender of any Series 2003-D Note or the
making of any notation thereon.
Section 5.03 Reports and Statements to Series 2003-D Noteholders.
(a) On each Payment Date, the Paying Agent, on behalf of the
Indenture Trustee, shall forward to each Series 2003-D Noteholder a statement
substantially in the form of EXHIBIT C prepared by the Servicer.
(b) Not later than the second Business Day preceding each Payment
Date, the Servicer shall deliver to the Owner Trustee, the Indenture Trustee,
the Paying Agent and each Rating Agency (i) a statement substantially in the
form of EXHIBIT C prepared by the Servicer and (ii) a certificate of an
Authorized Officer substantially in the form of EXHIBIT D; provided that the
Servicer may amend the form of EXHIBIT C and EXHIBIT D, from time to time, with
the consent of the Indenture Trustee, which consent shall not be unreasonably
withheld.
(c) A copy of each statement or certificate provided pursuant to
paragraph (a) or (b) may be obtained by any Series 2003-D Noteholder by a
request in writing to the Servicer.
(d) On or before January 31 of each calendar year, beginning with
calendar year 2005, the Paying Agent, on behalf of the Indenture Trustee, shall
furnish or cause to be furnished to each Person who at any time during the
preceding calendar year was a Series 2003-D Noteholder, a statement prepared by
the Servicer containing the information which is required to be contained in the
statement to Series 2003-D Noteholders, as set forth in paragraph (a) above,
aggregated for such calendar year or the applicable portion thereof during which
such Person was a Series 2003-D Noteholder, together with other information as
is required to be provided by
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an issuer of indebtedness under the Code. Such obligation of the Paying Agent
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Paying Agent pursuant to any
requirements of the Code as from time to time in effect.
ARTICLE VI
Series 2003 - D Pay Out Events
Section 6.01 Series 2003-D Pay Out Events. If any one of the following
events shall occur with respect to the Series 2003-D Notes:
(a) failure on the part of the Transferor (i) to make any payment
or deposit required to be made by the Transferor by the terms of the Transfer
and Servicing Agreement, the Indenture or this Indenture Supplement on or before
the date occurring five (5) Business Days after the date such payment or deposit
is required to be made therein or herein or (ii) duly to observe or perform any
other covenants or agreements of the Transferor set forth in the Transfer and
Servicing Agreement, the Indenture or this Indenture Supplement, which failure
has a material adverse effect on the Series 2003-D Noteholders and which
continues unremedied for a period of sixty (60) days after the date on which
written notice of such failure, requiring the same to be remedied, shall have
been given to the Transferor by the Indenture Trustee, or to the Transferor and
the Indenture Trustee by any Holder of the Series 2003-D Notes and continues to
materially and adversely affect the interests of the noteholders during such
60-day period;
(b) any representation or warranty made by the Transferor in the
Transfer and Servicing Agreement, the Indenture or this Indenture Supplement, or
any information contained in a computer file or microfiche list required to be
delivered by the Transferor pursuant to Section 2.01 or subsection 2.09(h) of
the Transfer and Servicing Agreement shall prove to have been incorrect in any
material respect when made or when delivered, which continues to be incorrect in
any material respect for a period of sixty (60) days after the date on which
written notice of such failure, requiring the same to be remedied, shall have
been given to the Transferor by the Indenture Trustee, or to the Transferor and
the Indenture Trustee by any Holder of the Series 2003-D Notes and as a result
of which the interests of the Series 2003-D Noteholders are materially and
adversely affected for such period; provided, however, that a Series 2003-D Pay
Out Event pursuant to this subsection 6.01(b) shall not be deemed to have
occurred hereunder if the Transferor has accepted reassignment of the related
Receivable, or all of such Receivables, if applicable, during such period in
accordance with the provisions of the Transfer and Servicing Agreement;
(c) the average of the Net Portfolio Yields for any three
consecutive Monthly Periods is reduced to a rate which is less than the average
of the Base Rates for such period;
(d) the Class A Note Principal Balance, the Class B Note Principal
Balance, the Class C Note Principal Balance or the Class D Note Principal
Balance shall not be paid in full on the Expected Final Principal Payment Date;
or
(e) without limiting the foregoing, the occurrence of an Event of
Default with respect to Series 2003-D.
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then, in the case of any event described in subparagraph (a) or (b) or any Trust
Pay Out Event described in Section 5.01(a) of the Indenture, after the
applicable grace period, if any, set forth in such subparagraphs or in Section
5.01 of the Indenture, either the Indenture Trustee or the Holders of Series
2003-D Notes evidencing not less than 50% of the aggregate unpaid principal
amount of Series 2003-D Notes by notice then given in writing to the Transferor
and the Servicer (and to the Indenture Trustee if given by the Series 2003-D
Noteholders) may declare that a "Series Pay Out Event" with respect to Series
2003-D (a "SERIES 2003-D PAY OUT EVENT") has occurred as of the date of such
notice, and, in the case of any event described in subparagraph (c), (d) or (e)
or any Trust Pay Out Event described in Sections 5.01(b), (c) or (d) of the
Indenture, a Series 2003-D Pay Out Event shall occur without any notice or other
action on the part of the Indenture Trustee or the Series 2003-D Noteholders
immediately upon the occurrence of such event.
ARTICLE VII
Redemption of Series 2003-D Notes;
Final Distributions; Series Termination
Section 7.01 Optional Redemption of Series 2003-D Notes; Final
Distributions.
(a) On any day occurring on or after the date on which the Note
Principal Balance is reduced to 10% or less of the Note Principal Balance as of
the Closing Date, the Servicer shall have the option to redeem the Series 2003-D
Notes, at a purchase price equal to (i) if such day is a Payment Date, the
Reassignment Amount for such Payment Date or (ii) if such day is not a Payment
Date, the Reassignment Amount for the Payment Date following such day.
(b) The Servicer shall give the Issuer and the Indenture Trustee
at least thirty (30) days prior written notice of the date on which the Servicer
intends to exercise such optional redemption. Not later than 12:00 noon, New
York City time, on such day the Servicer shall deposit into the Collection
Account in immediately available funds the excess of the Reassignment Amount
over the amount, if any, on deposit in the Principal Funding Account. Such
redemption option is subject to payment in full of the Reassignment Amount.
Following such deposit into the Collection Account in accordance with the
foregoing, the Invested Amount for Series 2003-D shall be reduced to zero and
the Series 2003-D Noteholders shall have no further security interest in the
Receivables. The Reassignment Amount shall be distributed as set forth in
subsection 7.01(d).
(c) (i) The amount to be paid by the Transferor with respect
to Series 2003-D in connection with a reassignment of Receivables to the
Transferor pursuant to Section 2.06 of the Transfer and Servicing Agreement
shall equal the Reassignment Amount for the first Payment Date following the
Monthly Period in which the reassignment obligation arises under the Transfer
and Servicing Agreement.
(ii) The amount to be paid by the Transferor with respect
to Series 2003-D in connection with a repurchase of the Notes pursuant to
Section 7.01 of the Transfer and Servicing Agreement shall equal the
Reassignment Amount for the Payment Date of such repurchase.
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(d) With respect to the Reassignment Amount deposited into the
Collection Account pursuant to this Section 7.01, the Indenture Trustee shall,
in accordance with the written direction of the Servicer, not later than 12:00
noon, New York City time, on the related Payment Date, make deposits or
distributions of the following amounts (in the priority set forth below and, in
each case, after giving effect to any deposits and distributions otherwise to be
made on such date) in immediately available funds: (i) (x) the Class A Note
Principal Balance on such Payment Date will be distributed to the Paying Agent
for payment to the Class A Noteholders and (y) an amount equal to the sum of (A)
Class A Monthly Interest for such Payment Date, (B) any Class A Monthly Interest
previously due but not distributed to the Class A Noteholders on a prior Payment
Date and (C) the amount of Class A Additional Interest, if any, for such Payment
Date and any Class A Additional Interest previously due but not distributed to
the Class A Noteholders on any prior Payment Date, will be distributed to the
Paying Agent for payment to the Class A Noteholders, (i) (x) the Class B Note
Principal Balance on such Payment Date will be distributed to the Paying Agent
for payment to the Class B Noteholders and (y) an amount equal to the sum of (A)
Class B Monthly Interest for such Payment Date, (B) any Class B Monthly Interest
previously due but not distributed to the Class B Noteholders on a prior Payment
Date and (C) the amount of Class B Additional Interest, if any, for such Payment
Date and any Class B Additional Interest previously due but not distributed to
the Class B Noteholders on any prior Payment Date, will be distributed to the
Paying Agent for payment to the Class B Noteholders, (ii) (x) the Class C Note
Principal Balance on such Payment Date will be distributed to the Paying Agent
for payment to the Class C Noteholders and (y) an amount equal to the sum of (A)
Class C Monthly Interest for such Payment Date, (B) any Class C Monthly Interest
previously due but not distributed to the Class C Noteholders on a prior Payment
Date and (C) the amount of Class C Additional Interest, if any, for such Payment
Date and any Class C Additional Interest previously due but not distributed to
the Class C Noteholders on any prior Payment Date, will be distributed to the
Paying Agent for payment to the Class C Noteholders, (iii) (x) the Class D Note
Principal Balance on such Payment Date will be distributed to the Paying Agent
for payment to the Class D Noteholders and (y) an amount equal to the sum of (A)
Class D Monthly Interest for such Payment Date, (B) any Class D Monthly Interest
previously due but not distributed to the Class D Noteholders on a prior Payment
Date and (C) the amount of Class D Additional Interest, if any, for such Payment
Date and any Class D Additional Interest previously due but not distributed to
the Class D Noteholders on any prior Payment Date, will be distributed to the
Paying Agent for payment to the Class D Noteholders and (iv) any excess shall be
released to the Issuer.
(e) Notwithstanding anything to the contrary in this Indenture
Supplement, the Indenture or the Transfer and Servicing Agreement, if the Paying
Agent is not also the Indenture Trustee, all amounts distributed to the Paying
Agent pursuant to subsection 7.01(d) for payment to the Series 2003-D
Noteholders shall be deemed distributed in full to the Series 2003-D Noteholders
on the date on which such funds are distributed to the Paying Agent pursuant to
this Section 7.01 and shall be deemed to be a final distribution pursuant to
Section 11.02 of the Indenture.
Section 7.02 Series Termination. On the Series 2003-D Final Maturity
Date, the right of the Series 2003-D Noteholders to receive payments from the
Issuer will be limited solely to the right to receive payments pursuant to
Section 5.05 of the Indenture.
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ARTICLE VIII
Miscellaneous Provisions
Section 8.01 Ratification of Indenture. As supplemented by this
Indenture Supplement, the Indenture is in all respects ratified and confirmed
and the Indenture as so supplemented by this Indenture Supplement shall be read,
taken and construed as one and the same instrument.
Section 8.02 Form of Delivery of the Series 2003-D Notes. The Class A
Notes, the Class B Notes and the Class C Notes shall be Book-Entry Notes and
shall be delivered as Registered Notes as provided in Section 2.01 of the
Indenture in substantially the form of Exhibit A hereto.
Section 8.03 Additional Requirements for Registration of and
Limitations on Transfer and Exchange of Class D Notes.
(a) No Holder of a Class D Note may sell, convey, assign,
hypothecate, pledge, participate or otherwise transfer any interest in the Class
D Notes (each, a "CLASS D NOTE ASSIGNMENT"), to any Person (upon such Class D
Note Assignment, a "CLASS D NOTE ASSIGNEE"), unless (i) the Class D Note
Assignment consists of the entirety of such assignor Holder's Class D Note and
no Class D Note Assignments of a partial interest in such Class D Notes will be
made, and (ii) the Transferor shall have granted its prior written consent
(which consent shall not be granted if, among other things, the Transferor
determines in its sole and absolute discretion that such Class D Note Assignment
would create or increase a risk that the Trust would be classified for Federal
or any applicable state tax purposes as an association or publicly traded
partnership taxable as a corporation); provided, however, that any Class D Note
Assignment shall be void unless (i) such proposed Class D Note Assignee, other
than ABC or an Affiliate of ABC, shall comply with this Section 8.03 and shall
have delivered to the Indenture Trustee, the Servicer and the Transferor an
investment representation letter substantially in the form of Exhibit E attached
hereto (an "INVESTMENT LETTER"), or such other form as the Transferor in its
sole and absolute discretion deems acceptable, prior to the effectiveness of
such Class D Note Assignment; (ii) the number of Private Holders would not
exceed, as of the date of the proposed Class D Note Assignment, eighty (80), and
(iii) the number of Private Holders owning interests in the Class D Notes would
not exceed, as of the date of the proposed Class D Note Assignment, four (4) or
such greater number as may be consented to by the Transferor in its sole and
absolute discretion. In connection with any Class D Note Assignment, the
assignor Class D Note Holder shall request in writing to the Indenture Trustee
(who shall promptly deliver it to the Transferor) for the consent of the
Transferor, and the Transferor shall respond to any such request within ten
Business Days after its receipt; it being understood that the obtaining of such
consent is a condition to the effectiveness of the Class D Note Assignment. Each
Class D Note Assignee is subject to the terms and conditions of this Section
8.03 and its Investment Letter on an ongoing basis and shall make the
certifications, representations and warranties contained in its Investment
Letter. Any transfer, resale, pledge or other transfer of a Class D Note (or any
interest therein) contrary to the restriction set forth above in this Section
8.03 or made in reliance upon any false representation or warranty made by a
transferee in its Investment Letter shall be deemed void ab initio by the
Indenture Trustee.
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(b) Registration of transfer of the Class D Notes shall be
effected only if such transfer is exempt from the registration requirements
under the Securities Act. The transferor or the transferee, other than ABC or an
Affiliate of ABC, shall deliver, at its expense, to the Transferor, the Servicer
and the Indenture Trustee, an investment letter from the transferee,
substantially in the form of the investment representation letter attached
hereto as Exhibit E. None of the Issuer, the Transferor, the Servicer, the
Seller, the Indenture Trustee or the Transfer Agent and Registrar is obligated
to register or qualify the Class D Notes under the Securities Act or any other
securities law or to take any action not otherwise required under this Indenture
Supplement or the Indenture to permit the transfer of the Class D Notes without
registration or qualification. Any Class D Noteholder desiring to effect a
transfer of unregistered Class D Notes shall, and does hereby agree to,
indemnify the Issuer, the Transferor (unless the transferor of the Class D Notes
is the Transferor), the Servicer, the Seller, the Indenture Trustee and the
Transfer Agent and Registrar against any liability that may result if the
transfer is not exempt from such registration or qualification or is not made in
accordance with such federal and state laws and no registration of transfer
shall be made until such letter is so delivered.
(c) The Class D Notes may not be acquired or held by or on behalf
of or with "plan assets" of (a) an employee benefit plan (as defined in Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), whether or not subject to Title I of ERISA, (b) a plan described in
Section 4975(e)(1) of the Code, (c) an entity whose underlying assets include
"plan assets" by reason of a plan's investment in the purchaser or (d) a
"benefit plan investor" (as defined in U.S. Department of Labor ("DOL")
Regulation Section 2510.3-101) ("BENEFIT PLAN INVESTOR"), unless (i) the
investor is acquiring or holding the Class D Notes with assets of an "insurance
company general account" (within the meaning of DOL Prohibited Transaction Class
Exemption ("PTCE") 95-60 (a "GENERAL ACCOUNT")), (ii) the purchase and holding
of the Class D Notes are eligible for the exemptive relief afforded under
Section I of PTCE 95-60, (iii) less than 25% of the assets of such General
Account constitute "plan assets" of Benefit Plan Investors, and (iv) after
giving effect to the purchase of the Class D Notes and all other purchases
occurring simultaneously therewith, less than 25% of the Class D Notes
(excluding Class D Notes held by the Servicer or any Affiliate of the Servicer)
will constitute "plan assets" of Benefit Plan Investors.
(d) Each Class D Noteholder, other than ABC or an Affiliate of
ABC, agrees with the Transferor and the Indenture Trustee that: (i) such Class D
Noteholder will deliver to the Transferor, the Servicer and the Indenture
Trustee on or before the acquisition of the Class D Notes and on or before the
effective date of any Class D Note Assignment, as applicable, a letter in the
form annexed hereto as Exhibit E, executed by the Class D Noteholder, or such
Class D Note Assignee, in the case of a Class D Note Assignment, with respect to
the purchase by such Class D Noteholder or Class D Note Assignee, as the case
may be, of a Class D Note and (ii) all of the statements made by such Class D
Noteholder in its Investment Letter shall be true and correct as of the date
made.
(e) Class D Notes issued upon registration or transfer of, or
Class D Notes issued in exchange for Class D Notes shall bear the restrictive
legends regarding securities laws, tax and ERISA matters contained in the form
of the Class D Note attached as Exhibit A-4 hereto, unless the Transferor, the
Servicer, the Indenture Trustee and the Transfer Agent and Registrar receive
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an Opinion of Counsel, satisfactory to each of them, to the effect that such
legend may be removed or modified.
(f) If so requested by the Transferor, the Indenture Trustee will
make available to any prospective purchaser of Class D Notes who so requests, a
copy of a letter provided to the Indenture Trustee by or on behalf of the
Transferor relating to the transferability of any Series or Class.
Section 8.04 Amendment. This Indenture Supplement may be amended only
in accordance with the provisions set forth in Sections 10.01 and 10.02 of the
Indenture.
Section 8.05 Counterparts. This Indenture 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.
Section 8.06 GOVERNING LAW. THIS INDENTURE SUPPLEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section 8.07 Limitation of Liability. Notwithstanding any other
provision herein or elsewhere, this Agreement has been executed and delivered by
Wilmington Trust Company, not in its individual capacity, but solely in its
capacity as Owner Trustee of the Trust, in no event shall (i) Wilmington Trust
Company in its individual capacity, (ii) any owner of a beneficial interest in
the Trust or (iii) any partner, owner, beneficiary, agent, officer, director,
employee or agent of the Owner Trustee in its individual capacity, any holder of
a beneficial interest in the Trust, the Owner Trustee or of any successor or
assign of the Owner Trustee in its individual capacity, except as any such
Person may have expressly agreed (it being understood that the Owner Trustee has
no such obligations in its individual capacity), have any liability in respect
of the representations, warranties, or obligations of the Trust hereunder or
under any other document, as to all of which recourse shall be had solely to the
assets of the Trust, and for all purposes of this Agreement and each other
document, the Owner Trustee (as such or in its individual capacity) shall be
subject to, and entitled to the benefits of, the terms and provisions of the
Trust Agreement.
Section 8.08 Representations and Warranties of the Issuer. The Issuer
hereby represents and warrants to the Indenture Trustee that:
(a) Valid and Enforceable Security Interest. The Indenture creates
a valid and continuing security interest (as defined in the applicable UCC) in
the Collateral in favor of the Indenture Trustee, which security interest is
prior to all other Liens, and is enforceable as such as against creditors of and
purchasers from the Issuer;
(b) No Liens. The Issuer owns and has good and marketable title to
the Collateral free and clear of any Lien;
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(c) Filings. The Issuer has caused the delivery for filing of all
appropriate financing statements in the proper filing office in the appropriate
jurisdictions under applicable law in order to perfect the security interest in
the Collateral granted to the Indenture Trustee under the Indenture;
(d) Accounts. The Receivables constitute "accounts" within the
meaning of the applicable UCC;
(e) Conveyance of Collateral; Judgments and Tax Liens. Other than
the security interest granted to the Indenture Trustee pursuant to the
Indenture, the Issuer has not pledged, assigned, sold, granted a security
interest in, or otherwise conveyed any of the Collateral. The Issuer has not
authorized the filing of and is not aware of any financing statements against
the Issuer that include a description of collateral covering the Collateral,
other than any financing statement relating to the security interest granted to
the Indenture Trustee under the Indenture or that has been terminated. The
Issuer is not aware of any judgment or tax lien filings against the Collateral;
and
(f) Survival of Representations and Warranties. All
representations, warranties and agreements contained in this Section 8.08 shall
remain operative and in full force and effect and shall survive the consummation
of the transactions contemplated hereby.
Section 8.09 Tax Disclosure and Investor List Requirements. The
Transferor, the Servicer, the Owner Trustee and the Indenture Trustee agree, and
the underwriters and each recipient of this prospectus are deemed to agree, that
each of them and each of their employees, representatives, and other agents may
disclose to any and all persons, without limitation of any kind, the tax
treatment and tax structure of any transaction relating to the Trust or the
Notes or Trust Beneficial Interest or Certificates and all materials of any kind
(including opinions or other tax analyses) that are provided to any of them
relating to such tax treatment and tax structure. For this purpose, the phrase
"tax treatment" refers to the Federal income tax treatment of the Trust, the
Notes and the Trust Beneficial Interest or Certificates, and the phrase "tax
structure" refers to any fact that may be relevant to the understanding of such
tax treatment.
- 39 -
IN WITNESS WHEREOF, the undersigned have caused this Indenture
Supplement to be duly executed and delivered by their respective duly authorized
officers on the day and year first above written.
WILMINGTON TRUST COMPANY,
as Owner Trustee of
ADVANTA BUSINESS CARD MASTER TRUST
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Financial Services Officer
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Indenture Trustee
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Acknowledged and Accepted:
ADVANTA BANK CORP.,
as Servicer
By: /s/ Xxxxxxx Xxxx
---------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
ADVANTA BUSINESS RECEIVABLES CORP.,
as Transferor
By: /s/ Xxxxxxx Xxxx
---------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
[Signature Page to Series 2003-D Indenture Supplement]
EXHIBIT A-1
FORM OF CLASS A ASSET BACKED NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF COVENANTS AND AGREES
THAT IT WILL NOT AT ANY TIME INSTITUTE AGAINST THE ISSUER OR THE TRANSFEROR, OR
JOIN IN INSTITUTING AGAINST THE ISSUER OR THE TRANSFEROR, ANY BANKRUPTCY,
REORGANIZATION, ARRANGEMENT, INSOLVENCY OR LIQUIDATION PROCEEDINGS, OR OTHER
PROCEEDINGS UNDER ANY UNITED STATES FEDERAL OR STATE BANKRUPTCY OR SIMILAR LAW.
THE HOLDER OF THIS CLASS A NOTE, BY ACCEPTANCE OF THIS NOTE, AND EACH
HOLDER OF A BENEFICIAL INTEREST THEREIN, AGREE TO TREAT THE CLASS A NOTES AS
INDEBTEDNESS FOR APPLICABLE FEDERAL, STATE, AND LOCAL INCOME AND FRANCHISE TAX
LAW AND FOR PURPOSES OF ANY OTHER TAX IMPOSED ON, OR MEASURED BY, INCOME.
Exhibit A-1-1
INITIAL OUTSTANDING PRINCIPAL BALANCE REGISTERED $__________*
No. A-_________ CUSIP NO. 00761H BC 4
ADVANTA BUSINESS CARD MASTER TRUST SERIES 2003-D
CLASS A ASSET BACKED NOTE
Wilmington Trust Company, as Owner Trustee of Advanta Business Card
Master Trust (herein referred to as the "Issuer" or the "Trust"), a Delaware
common law trust governed by a Trust Agreement dated as of August 1, 2000, for
value received, hereby promises to pay to _________________________, or
registered assigns, subject to the following provisions, the principal sum of
__________ DOLLARS, or such greater or lesser amount as determined in accordance
with the Indenture, on the Series 2003-D Final Maturity Date (which is the
earlier to occur of (a) the Payment Date on which the Note Principal Balance is
paid in full and (b) the October 2009 Payment Date), except as otherwise
provided below or in the Indenture. The Issuer will pay interest on the unpaid
principal amount of this Note at the Class A Note Interest Rate on each Payment
Date until the principal amount of this Note is paid in full. Interest on this
Note will accrue for each Payment Date from and including the most recent
Payment Date on which interest has been paid to but excluding such Payment Date
or, for the first Payment Date, from and including the Closing Date to but
excluding such Payment Date. Interest will be computed on the basis of a 360-day
year and the actual number of days elapsed. Principal of this Note shall be paid
in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by or
on behalf of the Indenture Trustee, by manual signature, this Note shall not be
entitled to any benefit under the Indenture or the Indenture Supplement referred
to on the reverse hereof, or be valid for any purpose.
----------
* Denominations of $1,000 and integral multiples of $1,000 in excess
thereof.
Exhibit A-1-2
IN WITNESS WHEREOF, the Issuer has caused this Class A Note to be duly
executed.
WILMINGTON TRUST COMPANY,
as Owner Trustee of
ADVANTA BUSINESS CARD MASTER TRUST
By: ________________________________
Name:
Title:
Dated:
Exhibit A-1-3
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A Notes described in the within-mentioned Indenture.
DEUTSCHE BANK TRUST COMPANY AMERICAS,
not in its individual capacity,
but solely as Indenture Trustee
By:____________________________________
Authorized Signatory
Dated:
Exhibit A-1-4
ADVANTA BUSINESS CARD MASTER TRUST SERIES 2003-D
CLASS A ASSET BACKED NOTE
Summary of Terms and Conditions
This Class A Note is one of a duly authorized issue of Notes of the
Issuer, designated as Advanta Business Card Master Trust, Series 2003-D (the
"SERIES 2003-D NOTES"), issued under a Master Indenture dated as of August 1,
2000 (the "MASTER INDENTURE"), between the Issuer and Deutsche Bank Trust
Company Americas (formerly known as Bankers Trust Company), as indenture trustee
(the "INDENTURE TRUSTEE"), as supplemented by the Indenture Supplement dated as
of December 1, 2003 (the "INDENTURE SUPPLEMENT"), and representing the right to
receive certain payments from the Issuer. The term "Indenture," unless the
context otherwise requires, refers to the Master Indenture as supplemented by
the Indenture Supplement. The Notes are subject to all of the terms of the
Indenture. All terms used in this Note that are defined in the Indenture shall
have the meanings assigned to them in or pursuant to the Indenture. In the event
of any conflict or inconsistency between the Indenture and this Note, the
Indenture shall control.
The Class B Notes, the Class C Notes and the Class D Notes will also be
issued under the Indenture.
The Noteholder, by its acceptance of this Note, agrees that it will
look solely to the property of the Trust allocated to the payment of this Note
for payment hereunder and that the Indenture Trustee is not liable to the
Noteholders for any amount payable under the Note or the Indenture or, except as
expressly provided in the Indenture, subject to any liability under the
Indenture.
This Note does not purport to summarize the Indenture and reference is
made to the Indenture for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Indenture Trustee.
The Class A Note Initial Principal Balance is $320,000,000. The Class A
Note Principal Balance on any date of determination will be an amount equal to
(a) the Class A Note Initial Principal Balance, minus (b) the aggregate amount
of principal payments made to the Class A Noteholders on or prior to such date.
The Expected Final Principal Payment Date is the November 20, 2006
Payment Date, but principal with respect to the Class A Notes may be paid
earlier or later under certain circumstances described in the Indenture. If for
one or more months during the Controlled Accumulation Period there are not
sufficient funds to deposit the Controlled Deposit Amount into the Principal
Funding Account, then to the extent that excess funds are not available on
subsequent Payment Dates with respect to the Controlled Accumulation Period to
make up for such shortfalls, the final payment of principal of the Notes will
occur later than the Expected Final Principal Payment Date. Payments of
principal of the Notes shall be payable in accordance with the provisions of the
Indenture.
Exhibit A-1-5
Subject to the terms and conditions of the Indenture, the Transferor
may, from time to time, direct the Owner Trustee, on behalf of the Trust, to
issue one or more new Series of Notes.
On each Payment Date, the Paying Agent shall distribute to each Class A
Noteholder of record on the related Record Date (except for the final payment in
respect of this Class A Note) such Class A Noteholder's pro rata share of the
amounts held by the Paying Agent that are allocated and available on such
Payment Date to pay interest and principal on the Class A Notes pursuant to the
Indenture Supplement. Except as provided in the Indenture with respect to a
final payment, payments to Series 2003-D Noteholders shall be made by (i) check
mailed to each Series 2003-D Noteholder (at such Noteholder's address as it
appears in the Note Register), except that with respect to any Series 2003-D
Notes registered in the name of the nominee of a Clearing Agency, such payment
shall be made in immediately available funds and (ii) without presentation or
surrender of any Series 2003-D Note or the making of any notation thereon. Final
payment of this Class A Note will be made only upon presentation and surrender
of this Class A Note at the office or agency specified in the notice of final
payment delivered by the Indenture Trustee to the Series 2003-D Noteholders in
accordance with the Indenture.
On any day occurring on or after the date on which the outstanding
principal balance of the Series 2003-D Notes is reduced to 10% or less of the
initial outstanding principal balance of the Series 2003-D Notes, the Servicer
shall have the option to redeem the Series 2003-D Notes, at a purchase price
equal to (i) if such day is a Payment Date, the Reassignment Amount for such
Payment Date or (ii) if such day is not a Payment Date, the Reassignment Amount
for the Payment Date following such day.
THIS CLASS A NOTE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST
IN, THE TRANSFEROR, ADVANTA BANK CORP., ADVANTA CORP., OR ANY AFFILIATE OF ANY
OF THEM AND IS NOT INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
Each Noteholder, by accepting a Note, hereby covenants and agrees that
it will not at any time institute against the Issuer or the Transferor, or join
in instituting against the Issuer or the Transferor, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or state bankruptcy or similar law.
Except as otherwise provided in the Indenture Supplement, the Class A
Notes are issuable only in minimum denominations of $1,000 and integral
multiples of $1,000. The transfer of this Class A Note shall be registered in
the Note Register upon surrender of this Class A Note for registration of
transfer at any office or agency maintained by the Transfer Agent and Registrar
accompanied by a written instrument of transfer, in a form satisfactory to the
Indenture Trustee or the Transfer Agent and Registrar, duly executed by the
Class A Noteholder or such Class A Noteholder's attorney, and duly authorized in
writing with such signature guaranteed, and thereupon one or more new Class A
Notes in any authorized denominations of like aggregate principal amount will be
issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein
set forth, Class A Notes are exchangeable for new Class A Notes in any
authorized denominations and of like
Exhibit A-1-6
aggregate principal amount, upon surrender of such Notes to be exchanged at the
office or agency of the Transfer Agent and Registrar. No service charge may be
imposed for any such exchange but the Issuer or Transfer Agent and Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith.
The Issuer, the Transferor, the Indenture Trustee and any agent of the
Issuer, the Transferor or the Indenture Trustee shall treat the person in whose
name this Class A Note is registered as the owner hereof for all purposes, and
neither the Issuer, the Transferor, the Indenture Trustee nor any agent of the
Issuer, the Transferor or the Indenture Trustee shall be affected by notice to
the contrary.
THIS CLASS A NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Exhibit A-1-7
ASSIGNMENT
Social Security or other identifying number of assignee ________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ______________________________ (name and address of assignee) the within
certificate and all rights thereunder, and hereby irrevocably constitutes and
appoints ____________________, attorney, to transfer said certificate on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated:__________ _________________________**
Signature Guaranteed
__________
** The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
Exhibit A-1-8
EXHIBIT A-2
FORM OF CLASS B ASSET BACKED NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF COVENANTS AND AGREES
THAT IT WILL NOT AT ANY TIME INSTITUTE AGAINST THE ISSUER OR THE TRANSFEROR, OR
JOIN IN INSTITUTING AGAINST THE ISSUER OR THE TRANSFEROR, ANY BANKRUPTCY,
REORGANIZATION, ARRANGEMENT, INSOLVENCY OR LIQUIDATION PROCEEDINGS, OR OTHER
PROCEEDINGS UNDER ANY UNITED STATES FEDERAL OR STATE BANKRUPTCY OR SIMILAR LAW.
THE HOLDER OF THIS CLASS B NOTE, BY ACCEPTANCE OF THIS NOTE, AND EACH
HOLDER OF A BENEFICIAL INTEREST THEREIN, AGREE TO TREAT THE CLASS B NOTES AS
INDEBTEDNESS FOR APPLICABLE FEDERAL, STATE, AND LOCAL INCOME AND FRANCHISE TAX
LAW AND FOR PURPOSES OF ANY OTHER TAX IMPOSED ON, OR MEASURED BY, INCOME.
Exhibit A-2-1
INITIAL OUTSTANDING PRINCIPAL BALANCE REGISTERED $__________*
No. B-_________ CUSIP NO. 00761H BD 2
ADVANTA BUSINESS CARD MASTER TRUST SERIES 2003-D
CLASS B ASSET BACKED NOTE
Wilmington Trust Company, as Owner Trustee of Advanta Business Card
Master Trust (herein referred to as the "Issuer" or the "Trust"), a Delaware
common law trust governed by a Trust Agreement dated as of August 1, 2000, for
value received, hereby promises to pay to _________________, or registered
assigns, subject to the following provisions, the principal sum of
__________________ DOLLARS, or such greater or lesser amount as determined in
accordance with the Indenture, on the Series 2003-D Final Maturity Date (which
is the earlier to occur of (a) the Payment Date on which the Note Principal
Balance is paid in full and (b) the October 2009 Payment Date), except as
otherwise provided below or in the Indenture. The Issuer will pay interest on
the unpaid principal amount of this Note at the Class B Note Interest Rate on
each Payment Date until the principal amount of this Note is paid in full.
Interest on this Note will accrue for each Payment Date from and including the
most recent Payment Date on which interest has been paid to but excluding such
Payment Date or, for the first Payment Date, from and including the Closing Date
to but excluding such Payment Date. Interest will be computed on the basis of a
360-day year and the actual number of days elapsed. Principal of this Note shall
be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by or
on behalf of the Indenture Trustee, by manual signature, this Note shall not be
entitled to any benefit under the Indenture or the Indenture Supplement referred
to on the reverse hereof, or be valid for any purpose.
THIS CLASS B NOTE IS SUBORDINATED TO THE EXTENT NECESSARY TO FUND
PAYMENTS ON THE CLASS A NOTES TO THE EXTENT SPECIFIED IN THE INDENTURE
SUPPLEMENT.
__________
* Denominations of $1,000 and integral multiples of $1,000 in excess
thereof.
Exhibit A-2-2
IN WITNESS WHEREOF, the Issuer has caused this Class B Note to be duly
executed.
WILMINGTON TRUST COMPANY,
as Owner Trustee of
ADVANTA BUSINESS CARD MASTER TRUST
By: ________________________________
Name:
Title:
Dated:
Exhibit A-2-3
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A Notes described in the within-mentioned Indenture.
DEUTSCHE BANK TRUST COMPANY AMERICAS,
not in its individual capacity,
but solely as Indenture Trustee
By:____________________________________
Authorized Signatory
Dated:
Exhibit A-2-4
ADVANTA BUSINESS CARD MASTER TRUST SERIES 2003-D
CLASS B ASSET BACKED NOTE
Summary of Terms and Conditions
This Class B Note is one of a duly authorized issue of Notes of the
Issuer, designated as Advanta Business Card Master Trust, Series 2003-D (the
"SERIES 2003-D NOTES"), issued under a Master Indenture dated as of August 1,
2000 (the "MASTER INDENTURE"), between the Issuer and Deutsche Bank Trust
Company Americas (formerly known as Bankers Trust Company), as indenture trustee
(the "INDENTURE TRUSTEE"), as supplemented by the Indenture Supplement dated as
of December 1, 2003 (the "INDENTURE SUPPLEMENT"), and representing the right to
receive certain payments from the Issuer. The term "Indenture," unless the
context otherwise requires, refers to the Master Indenture as supplemented by
the Indenture Supplement. The Notes are subject to all of the terms of the
Indenture. All terms used in this Note that are defined in the Indenture shall
have the meanings assigned to them in or pursuant to the Indenture. In the event
of any conflict or inconsistency between the Indenture and this Note, the
Indenture shall control.
The Class A Notes, the Class C Notes and the Class D Notes will also be
issued under the Indenture.
The Noteholder, by its acceptance of this Note, agrees that it will
look solely to the property of the Trust allocated to the payment of this Note
for payment hereunder and that the Indenture Trustee is not liable to the
Noteholders for any amount payable under the Note or the Indenture or, except as
expressly provided in the Indenture, subject to any liability under the
Indenture.
This Note does not purport to summarize the Indenture and reference is
made to the Indenture for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Indenture Trustee.
The Class B Note Initial Principal Balance is $37,000,000.
The Class B Note Principal Balance on any date of determination will be
an amount equal to (a) the Class B Note Initial Principal Balance, minus (b) the
aggregate amount of principal payments made to the Class B Noteholders on or
prior to such date.
The Expected Final Principal Payment Date is the November 20, 2006
Payment Date, but principal with respect to the Class B Notes may be paid
earlier or later under certain circumstances described in the Indenture. If for
one or more months during the Controlled Accumulation Period there are not
sufficient funds to deposit the Controlled Deposit Amount into the Principal
Funding Account, then to the extent that excess funds are not available on
subsequent Payment Dates with respect to the Controlled Accumulation Period to
make up for such shortfalls, the final payment of principal of the Notes will
occur later than the Expected Final Principal Payment Date. Payments of
principal of the Notes shall be payable in accordance with the provisions of the
Indenture.
Exhibit A-2-5
Subject to the terms and conditions of the Indenture, the Transferor
may, from time to time, direct the Owner Trustee, on behalf of the Trust, to
issue one or more new Series of Notes.
On each Payment Date, the Paying Agent shall distribute to each Class B
Noteholder of record on the related Record Date (except for the final payment in
respect of this Class B Note) such Class B Noteholder's pro rata share of the
amounts held by the Paying Agent that are allocated and available on such
Payment Date to pay interest and principal on the Class B Notes pursuant to the
Indenture Supplement. Except as provided in the Indenture with respect to a
final payment, payments to Series 2003-D Noteholders shall be made by (i) check
mailed to each Series 2003-D Noteholder (at such Noteholder's address as it
appears in the Note Register), except that with respect to any Series 2003-D
Notes registered in the name of the nominee of a Clearing Agency, such payment
shall be made in immediately available funds and (ii) without presentation or
surrender of any Series 2003-D Note or the making of any notation thereon. Final
payment of this Class B Note will be made only upon presentation and surrender
of this Class B Note at the office or agency specified in the notice of final
payment delivered by the Indenture Trustee to the Series 2003-D Noteholders in
accordance with the Indenture.
On any day occurring on or after the date on which the outstanding
principal balance of the Series 2003-D Notes is reduced to 10% or less of the
initial outstanding principal balance of the Series 2003-D Notes, the Servicer
shall have the option to redeem the Series 2003-D Notes, at a purchase price
equal to (i) if such day is a Payment Date, the Reassignment Amount for such
Payment Date or (ii) if such day is not a Payment Date, the Reassignment Amount
for the Payment Date following such day.
THIS CLASS B NOTE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST
IN, THE TRANSFEROR, ADVANTA BANK CORP., ADVANTA CORP., OR ANY AFFILIATE OF ANY
OF THEM AND IS NOT INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
Each Noteholder, by accepting a Note, hereby covenants and agrees that
it will not at any time institute against the Issuer or the Transferor, or join
in instituting against the Issuer or the Transferor, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or state bankruptcy or similar law.
Except as otherwise provided in the Indenture Supplement, the Class B
Notes are issuable only in minimum denominations of $1,000 and integral
multiples of $1,000. The transfer of this Class B Note shall be registered in
the Note Register upon surrender of this Class B Note for registration of
transfer at any office or agency maintained by the Transfer Agent and Registrar
accompanied by a written instrument of transfer, in a form satisfactory to the
Indenture Trustee or the Transfer Agent and Registrar, duly executed by the
Class B Noteholder or such Class B Noteholder's attorney, and duly authorized in
writing with such signature guaranteed, and thereupon one or more new Class B
Notes in any authorized denominations of like aggregate principal amount will be
issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein
set forth, Class B Notes are exchangeable for new Class B Notes in any
authorized denominations and of like
Exhibit A-2-6
aggregate principal amount, upon surrender of such Notes to be exchanged at the
office or agency of the Transfer Agent and Registrar. No service charge may be
imposed for any such exchange but the Issuer or Transfer Agent and Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith.
The Issuer, the Transferor, the Indenture Trustee and any agent of the
Issuer, the Transferor or the Indenture Trustee shall treat the person in whose
name this Class B Note is registered as the owner hereof for all purposes, and
neither the Issuer, the Transferor, the Indenture Trustee nor any agent of the
Issuer, the Transferor or the Indenture Trustee shall be affected by notice to
the contrary.
THIS CLASS B NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Exhibit A-2-7
ASSIGNMENT
Social Security or other identifying number of assignee _______________________.
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _________________________ (name and address of assignee) the within
certificate and all rights thereunder, and hereby irrevocably constitutes and
appoints ____________________, attorney, to transfer said certificate on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated: __________ _________________________**
Signature Guaranteed
__________
** The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
Exhibit A-2-8
EXHIBIT A-3
FORM OF CLASS C ASSET BACKED NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF COVENANTS AND AGREES
THAT IT WILL NOT AT ANY TIME INSTITUTE AGAINST THE ISSUER OR THE TRANSFEROR, OR
JOIN IN INSTITUTING AGAINST THE ISSUER OR THE TRANSFEROR, ANY BANKRUPTCY,
REORGANIZATION, ARRANGEMENT, INSOLVENCY OR LIQUIDATION PROCEEDINGS, OR OTHER
PROCEEDINGS UNDER ANY UNITED STATES FEDERAL OR STATE BANKRUPTCY OR SIMILAR LAW.
THE HOLDER OF THIS CLASS C NOTE, BY ACCEPTANCE OF THIS NOTE, AND EACH
HOLDER OF A BENEFICIAL INTEREST THEREIN, AGREE TO TREAT THE CLASS C NOTES AS
INDEBTEDNESS FOR APPLICABLE FEDERAL, STATE, AND LOCAL INCOME AND FRANCHISE TAX
LAW AND FOR PURPOSES OF ANY OTHER TAX IMPOSED ON, OR MEASURED BY, INCOME.
Exhibit A-3-1
INITIAL OUTSTANDING PRINCIPAL BALANCE REGISTERED $__________*
No. C-_________ CUSIP NO. 00761H BE 0
ADVANTA BUSINESS CARD MASTER TRUST SERIES 2003-D
CLASS C ASSET BACKED NOTE
Wilmington Trust Company, as Owner Trustee of Advanta Business Card
Master Trust (herein referred to as the "Issuer" or the "Trust"), a Delaware
common law trust governed by a Trust Agreement dated as of August 1, 2000, for
value received, hereby promises to pay to _________________, or registered
assigns, subject to the following provisions, the principal sum of
__________________ DOLLARS, or such greater or lesser amount as determined in
accordance with the Indenture, on the Series 2003-D Final Maturity Date (which
is the earlier to occur of (a) the Payment Date on which the Note Principal
Balance is paid in full and (b) the October 2009 Payment Date), except as
otherwise provided below or in the Indenture. The Issuer will pay interest on
the unpaid principal amount of this Note at the Class C Note Interest Rate on
each Payment Date until the principal amount of this Note is paid in full.
Interest on this Note will accrue for each Payment Date from and including the
most recent Payment Date on which interest has been paid to but excluding such
Payment Date or, for the first Payment Date, from and including the Closing Date
to but excluding such Payment Date. Interest will be computed on the basis of a
360-day year and the actual number of days elapsed. Principal of this Note shall
be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by or
on behalf of the Indenture Trustee, by manual signature, this Note shall not be
entitled to any benefit under the Indenture or the Indenture Supplement referred
to on the reverse hereof, or be valid for any purpose.
THIS CLASS C NOTE IS SUBORDINATED TO THE EXTENT NECESSARY TO FUND
PAYMENTS ON THE CLASS A AND THE CLASS B NOTES TO THE EXTENT SPECIFIED IN THE
INDENTURE SUPPLEMENT.
__________
* Denominations of $1,000 and integral multiples of $1,000 in excess
thereof.
Exhibit A-3-2
IN WITNESS WHEREOF, the Issuer has caused this Class C Note to be duly
executed.
WILMINGTON TRUST COMPANY,
as Owner Trustee of
ADVANTA BUSINESS CARD MASTER TRUST
By: ________________________________
Name:
Title:
Dated:
Exhibit A-3-3
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A Notes described in the within-mentioned Indenture.
DEUTSCHE BANK TRUST COMPANY AMERICAS,
not in its individual capacity,
but solely as Indenture Trustee
By:____________________________________
Authorized Signatory
Dated:
Exhibit A-3-4
ADVANTA BUSINESS CARD MASTER TRUST SERIES 2003-D
CLASS C ASSET BACKED NOTE
Summary of Terms and Conditions
This Class C Note is one of a duly authorized issue of Notes of the
Issuer, designated as Advanta Business Card Master Trust, Series 2003-D (the
"SERIES 2003-D NOTES"), issued under a Master Indenture dated as of August 1,
2000 (the "MASTER INDENTURE"), between the Issuer and Deutsche Bank Trust
Company Americas (formerly known as Bankers Trust Company), as indenture trustee
(the "INDENTURE TRUSTEE"), as supplemented by the Indenture Supplement dated as
of December 1, 2003 (the "INDENTURE SUPPLEMENT"), and representing the right to
receive certain payments from the Issuer. The term "Indenture," unless the
context otherwise requires, refers to the Master Indenture as supplemented by
the Indenture Supplement. The Notes are subject to all of the terms of the
Indenture. All terms used in this Note that are defined in the Indenture shall
have the meanings assigned to them in or pursuant to the Indenture. In the event
of any conflict or inconsistency between the Indenture and this Note, the
Indenture shall control.
The Class A Notes, the Class B Notes and the Class D Notes will also be
issued under the Indenture.
The Noteholder, by its acceptance of this Note, agrees that it will
look solely to the property of the Trust allocated to the payment of this Note
for payment hereunder and that the Indenture Trustee is not liable to the
Noteholders for any amount payable under the Note or the Indenture or, except as
expressly provided in the Indenture, subject to any liability under the
Indenture.
This Note does not purport to summarize the Indenture and reference is
made to the Indenture for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Indenture Trustee.
The Class C Note Initial Principal Balance is $29,000,000.
The Class C Note Principal Balance on any date of determination will be
an amount equal to (a) the Class C Note Initial Principal Balance, minus (b) the
aggregate amount of principal payments made to the Class C Noteholders on or
prior to such date.
The Expected Final Principal Payment Date is the November 20, 2006
Payment Date, but principal with respect to the Class C Notes may be paid
earlier or later under certain circumstances described in the Indenture. If for
one or more months during the Controlled Accumulation Period there are not
sufficient funds to deposit the Controlled Deposit Amount into the Principal
Funding Account, then to the extent that excess funds are not available on
subsequent Payment Dates with respect to the Controlled Accumulation Period to
make up for such shortfalls, the final payment of principal of the Notes will
occur later than the Expected Final Principal Payment Date. Payments of
principal of the Notes shall be payable in accordance with the provisions of the
Indenture.
Exhibit A-3-5
Subject to the terms and conditions of the Indenture, the Transferor
may, from time to time, direct the Owner Trustee, on behalf of the Trust, to
issue one or more new Series of Notes.
On each Payment Date, the Paying Agent shall distribute to each Class C
Noteholder of record on the related Record Date (except for the final payment in
respect of this Class C Note) such Class C Noteholder's pro rata share of the
amounts held by the Paying Agent that are allocated and available on such
Payment Date to pay interest and principal on the Class C Notes pursuant to the
Indenture Supplement. Except as provided in the Indenture with respect to a
final payment, payments to Series 2003-D Noteholders shall be made by (i) check
mailed to each Series 2003-D Noteholder (at such Noteholder's address as it
appears in the Note Register), except that with respect to any Series 2003-D
Notes registered in the name of the nominee of a Clearing Agency, such payment
shall be made in immediately available funds and (ii) without presentation or
surrender of any Series 2003-D Note or the making of any notation thereon. Final
payment of this Class C Note will be made only upon presentation and surrender
of this Class C Note at the office or agency specified in the notice of final
payment delivered by the Indenture Trustee to the Series 2003-D Noteholders in
accordance with the Indenture.
On any day occurring on or after the date on which the outstanding
principal balance of the Series 2003-D Notes is reduced to 10% or less of the
initial outstanding principal balance of the Series 2003-D Notes, the Servicer
shall have the option to redeem the Series 2003-D Notes, at a purchase price
equal to (i) if such day is a Payment Date, the Reassignment Amount for such
Payment Date or (ii) if such day is not a Payment Date, the Reassignment Amount
for the Payment Date following such day.
THIS CLASS C NOTE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST
IN, THE TRANSFEROR, ADVANTA BANK CORP., ADVANTA CORP., OR ANY AFFILIATE OF ANY
OF THEM AND IS NOT INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
Each Noteholder, by accepting a Note, hereby covenants and agrees that
it will not at any time institute against the Issuer or the Transferor, or join
in instituting against the Issuer or the Transferor, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or state bankruptcy or similar law.
Except as otherwise provided in the Indenture Supplement, the Class C
Notes are issuable only in minimum denominations of $1,000 and integral
multiples of $1,000. The transfer of this Class C Note shall be registered in
the Note Register upon surrender of this Class C Note for registration of
transfer at any office or agency maintained by the Transfer Agent and Registrar
accompanied by a written instrument of transfer, in a form satisfactory to the
Indenture Trustee or the Transfer Agent and Registrar, duly executed by the
Class C Noteholder or such Class C Noteholder's attorney, and duly authorized in
writing with such signature guaranteed, and thereupon one or more new Class C
Notes in any authorized denominations of like aggregate principal amount will be
issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein
set forth, Class C Notes are exchangeable for new Class C Notes in any
authorized denominations and of like
Exhibit A-3-6
aggregate principal amount, upon surrender of such Notes to be exchanged at the
office or agency of the Transfer Agent and Registrar. No service charge may be
imposed for any such exchange but the Issuer or Transfer Agent and Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith.
The Issuer, the Transferor, the Indenture Trustee and any agent of the
Issuer, the Transferor or the Indenture Trustee shall treat the person in whose
name this Class C Note is registered as the owner hereof for all purposes, and
neither the Issuer, the Transferor, the Indenture Trustee nor any agent of the
Issuer, the Transferor or the Indenture Trustee shall be affected by notice to
the contrary.
THIS CLASS C NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Exhibit A-3-7
ASSIGNMENT
Social Security or other identifying number of assignee ________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ______________________________ (name and address of assignee) the within
certificate and all rights thereunder, and hereby irrevocably constitutes and
appoints ____________________, attorney, to transfer said certificate on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated:__________ _________________________**
Signature Guaranteed
__________
** The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
Exhibit A-3-8
EXHIBIT A-4
FORM OF CLASS D ASSET BACKED NOTE
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF COVENANTS AND AGREES
THAT IT WILL NOT AT ANY TIME INSTITUTE AGAINST THE ISSUER OR THE TRANSFEROR, OR
JOIN IN INSTITUTING AGAINST THE ISSUER OR THE TRANSFEROR, ANY BANKRUPTCY,
REORGANIZATION, ARRANGEMENT, INSOLVENCY OR LIQUIDATION PROCEEDINGS, OR OTHER
PROCEEDINGS UNDER ANY UNITED STATES FEDERAL OR STATE BANKRUPTCY OR SIMILAR LAW.
THE HOLDER OF THIS CLASS D NOTE, BY ACCEPTANCE OF THIS NOTE, AND EACH
HOLDER OF A BENEFICIAL INTEREST THEREIN, AGREE TO TREAT THE CLASS D NOTES AS
INDEBTEDNESS FOR APPLICABLE FEDERAL, STATE, AND LOCAL INCOME AND FRANCHISE TAX
LAW AND FOR PURPOSES OF ANY OTHER TAX IMPOSED ON, OR MEASURED BY, INCOME.
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, AGREES THAT THIS
NOTE, OR ANY INTEREST OR PARTICIPATION HEREIN, MAY BE REOFFERED, RESOLD, PLEDGED
OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER
APPLICABLE LAWS AND ONLY (1) TO THE ISSUER OR ITS AFFILIATES OR (2) PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT TO A PERSON THAT THE HOLDER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
UNDER THE SECURITIES ACT (A "QIB") PURCHASING FOR ITS OWN ACCOUNT OR A QIB
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A UNDER THE SECURITIES ACT. THIS SECURITY WILL NOT BE ACCEPTED FOR
REGISTRATION OF TRANSFER EXCEPT UPON PRESENTATION OF EVIDENCE SATISFACTORY TO
THE TRANSFER AGENT AND REGISTRAR THAT THE RESTRICTIONS ON TRANSFER SET FORTH IN
THE MASTER INDENTURE AND THE INDENTURE SUPPLEMENT HAVE BEEN COMPLIED WITH. THIS
NOTE MAY NOT BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT THE
PRIOR WRITTEN CONSENT OF THE TRANSFEROR AND UNLESS AND UNTIL THE INDENTURE
TRUSTEE, THE TRANSFEROR AND THE SERVICER SHALL HAVE RECEIVED THE CERTIFICATIONS
REQUIRED BY THE MASTER INDENTURE AND THE INDENTURE SUPPLEMENT.
THE CLASS D NOTES ARE ALSO SUBJECT TO RESTRICTIONS ON THE PURCHASE,
OWNERSHIP AND DISPOSITION OF SUCH SECURITIES, INCLUDING THE CONSENT OF THE
TRANSFEROR AND THE DELIVERY OF AN INVESTMENT LETTER. SUCH RESTRICTIONS ARE SET
FORTH IN THE MASTER INDENTURE AND THE INDENTURE SUPPLEMENT, COPIES OF WHICH ARE
AVAILABLE FROM THE INDENTURE TRUSTEE.
Exhibit A-4-1
THIS CLASS D NOTE MAY NOT BE SOLD OR TRANSFERRED TO ANY PLAN THAT IS
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA") OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), TO ANY PERSON ACTING ON BEHALF OF OR WITH "PLAN ASSETS" OF ANY SUCH
PLAN, OR TO ANY OTHER "BENEFIT PLAN INVESTOR" (AS DEFINED IN UNITED STATES
DEPARTMENT OF LABOR REGULATION SECTION 2510.3-101(f)(2)), INCLUDING AN INSURANCE
COMPANY GENERAL ACCOUNT, EXCEPT IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
THE INDENTURE SUPPLEMENT.
THIS CLASS D NOTE MAY NOT BE ACQUIRED, SOLD, TRADED OR TRANSFERRED, NOR
MAY AN INTEREST IN THIS CLASS D NOTE BE MARKETED, ON OR THROUGH (I) AN
"ESTABLISHED SECURITIES MARKET" WITHIN THE MEANING OF SECTION 7704(b)(1) OF THE
CODE AND ANY TREASURY REGULATION THEREUNDER, INCLUDING, WITHOUT LIMITATION, AN
OVER THE-COUNTER-MARKET OR AN INTERDEALER QUOTATION SYSTEM THAT REGULARLY
DISSEMINATES FIRM BUY OR SELL QUOTATIONS OR (II) A "SECONDARY MARKET (OR THE
SUBSTANTIAL EQUIVALENT THEREOF)" WITHIN THE MEANING OF SECTION 7704(b)(2) OF THE
CODE AND ANY TREASURY REGULATION THEREUNDER, INCLUDING A MARKET WHEREIN
INTERESTS IN THE CLASS D NOTES ARE REGULARLY QUOTED BY ANY PERSON MAKING A
MARKET IN SUCH INTERESTS AND A MARKET WHEREIN ANY PERSON REGULARLY MAKES
AVAILABLE BID OR OFFER QUOTES WITH RESPECT TO INTERESTS IN THE CLASS D NOTES AND
STANDS READY TO EFFECT BUY OR SELL TRANSACTIONS AT THE QUOTED PRICES FOR ITSELF
OR ON BEHALF OF OTHERS.
BEFORE PURCHASING THIS NOTE, PURCHASERS SHOULD CONSULT COUNSEL WITH
RESPECT TO THE AVAILABILITY AND CONDITIONS OF EXEMPTION FROM THE RESTRICTION ON
RESALE OR TRANSFER. NEITHER THE ISSUER NOR THE SELLER OF THIS NOTE HAS AGREED TO
REGISTER THIS NOTE UNDER THE SECURITIES ACT, TO QUALIFY THIS NOTE UNDER THE
SECURITIES LAWS OF ANY STATE OR JURISDICTION OR TO PROVIDE REGISTRATION RIGHTS
TO ANY PURCHASER.
AS SET FORTH HEREIN, THE OUTSTANDING PRINCIPAL BALANCE OF THIS NOTE AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
Exhibit A-4-2
INITIAL OUTSTANDING PRINCIPAL BALANCE REGISTERED $__________*
No. D-_________ CUSIP NO. 00761H BF 7
ADVANTA BUSINESS CARD MASTER TRUST SERIES 2003-D
CLASS D ASSET BACKED NOTE
Wilmington Trust Company, as Owner Trustee of Advanta Business Card
Master Trust (herein referred to as the "Issuer" or the "Trust"), a Delaware
common law trust governed by a Trust Agreement dated as of August 1, 2000, for
value received, hereby promises to pay to _________________, or registered
assigns, subject to the following provisions, the principal sum of
__________________ DOLLARS, or such greater or lesser amount as determined in
accordance with the Indenture, on the Series 2003-D Final Maturity Date (which
is the earlier to occur of (a) the Payment Date on which the Note Principal
Balance is paid in full and (b) the October 2009 Payment Date), except as
otherwise provided below or in the Indenture. The Issuer will pay interest on
the unpaid principal amount of this Note at the Class D Note Interest Rate on
each Payment Date until the principal amount of this Note is paid in full.
Interest on this Note will accrue for each Payment Date from and including the
most recent Payment Date on which interest has been paid to but excluding such
Payment Date or, for the first Payment Date, from and including the Closing Date
to but excluding such Payment Date. Interest will be computed on the basis of a
360-day year and the actual number of days elapsed. Principal of this Note shall
be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by or
on behalf of the Indenture Trustee, by manual signature, this Note shall not be
entitled to any benefit under the Indenture or the Indenture Supplement referred
to on the reverse hereof, or be valid for any purpose.
THIS CLASS D NOTE IS SUBORDINATED TO THE EXTENT NECESSARY TO FUND
PAYMENTS ON THE CLASS A NOTES, THE CLASS B NOTES AND THE CLASS C NOTES TO THE
EXTENT SPECIFIED IN THE INDENTURE SUPPLEMENT.
__________
* Denominations of $500,000 and integral multiples of $500,000 in excess
thereof.
Exhibit A-4-3
IN WITNESS WHEREOF, the Issuer has caused this Class D Note to be duly
executed.
WILMINGTON TRUST COMPANY,
as Owner Trustee of
ADVANTA BUSINESS CARD MASTER TRUST
By: ________________________________
Name:
Title:
Dated:
Exhibit A-4-4
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A Notes described in the within-mentioned Indenture.
DEUTSCHE BANK TRUST COMPANY AMERICAS,
not in its individual capacity,
but solely as Indenture Trustee
By:____________________________________
Authorized Signatory
Dated:
Exhibit A-4-5
ADVANTA BUSINESS CARD MASTER TRUST SERIES 2003-D
CLASS D ASSET BACKED NOTE
Summary of Terms and Conditions
This Class D Note is one of a duly authorized issue of Notes of the
Issuer, designated as Advanta Business Card Master Trust, Series 2003-D (the
"SERIES 2003-D NOTES"), issued under a Master Indenture dated as of August 1,
2000 (the "MASTER INDENTURE"), between the Issuer and Deutsche Bank Trust
Company Americas (formerly known as Bankers Trust Company), as indenture trustee
(the "INDENTURE TRUSTEE"), as supplemented by the Indenture Supplement dated as
of December 1, 2003 (the "INDENTURE SUPPLEMENT"), and representing the right to
receive certain payments from the Issuer. The term "Indenture," unless the
context otherwise requires, refers to the Master Indenture as supplemented by
the Indenture Supplement. The Notes are subject to all of the terms of the
Indenture. All terms used in this Note that are defined in the Indenture shall
have the meanings assigned to them in or pursuant to the Indenture. In the event
of any conflict or inconsistency between the Indenture and this Note, the
Indenture shall control.
The Class A Notes, the Class B Notes and the Class C Notes will also be
issued under the Indenture.
The Noteholder, by its acceptance of this Note, agrees that it will
look solely to the property of the Trust allocated to the payment of this Note
for payment hereunder and that the Indenture Trustee is not liable to the
Noteholders for any amount payable under the Note or the Indenture or, except as
expressly provided in the Indenture, subject to any liability under the
Indenture.
This Note does not purport to summarize the Indenture and reference is
made to the Indenture for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Indenture Trustee.
The Class D Note Initial Principal Balance is $14,000,000.
The Class D Note Principal Balance on any date of determination will be
an amount equal to (a) the Class D Note Initial Principal Balance, minus (b) the
aggregate amount of principal payments made to the Class D Noteholders on or
prior to such date.
The Expected Final Principal Payment Date is the November 20, 2006
Payment Date, but principal with respect to the Class D Notes may be paid
earlier or later under certain circumstances described in the Indenture. If for
one or more months during the Controlled Accumulation Period there are not
sufficient funds to deposit the Controlled Deposit Amount into the Principal
Funding Account, then to the extent that excess funds are not available on
subsequent Payment Dates with respect to the Controlled Accumulation Period to
make up for such shortfalls, the final payment of principal of the Notes will
occur later than the Expected Final Principal Payment Date. Payments of
principal of the Notes shall be payable in accordance with the provisions of the
Indenture.
Exhibit A-4-6
Subject to the terms and conditions of the Indenture, the Transferor
may, from time to time, direct the Owner Trustee, on behalf of the Trust, to
issue one or more new Series of Notes.
On each Payment Date, the Paying Agent shall distribute to each Class D
Noteholder of record on the related Record Date (except for the final payment in
respect of this Class D Note) such Class D Noteholder's pro rata share of the
amounts held by the Paying Agent that are allocated and available on such
Payment Date to pay interest and principal on the Class D Notes pursuant to the
Indenture Supplement. Except as provided in the Indenture with respect to a
final payment, payments to Series 2003-D Noteholders shall be made by (i) check
mailed to each Series 2003-D Noteholder (at such Noteholder's address as it
appears in the Note Register), except that with respect to any Series 2003-D
Notes registered in the name of the nominee of a Clearing Agency, such payment
shall be made in immediately available funds and (ii) without presentation or
surrender of any Series 2003-D Note or the making of any notation thereon. Final
payment of this Class D Note will be made only upon presentation and surrender
of this Class D Note at the office or agency specified in the notice of final
payment delivered by the Indenture Trustee to the Series 2003-D Noteholders in
accordance with the Indenture.
On any day occurring on or after the date on which the outstanding
principal balance of the Series 2003-D Notes is reduced to 10% or less of the
initial outstanding principal balance of the Series 2003-D Notes, the Servicer
shall have the option to redeem the Series 2003-D Notes, at a purchase price
equal to (i) f such day is a Payment Date, the Reassignment Amount for such
Payment Date or (ii) if such day is not a Payment Date, the Reassignment Amount
for the Payment Date following such day.
THIS CLASS D NOTE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST
IN, THE TRANSFEROR, ADVANTA BANK CORP., ADVANTA CORP., OR ANY AFFILIATE OF ANY
OF THEM AND IS NOT INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
Each Noteholder, by accepting a Note, hereby covenants and agrees that
it will not at any time institute against the Issuer or the Transferor, or join
in instituting against the Issuer or the Transferor, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or state bankruptcy or similar law.
Except as otherwise provided in the Indenture Supplement, the Class D
Notes are issuable only in minimum denominations of $500,000 and integral
multiples of $500,000. The transfer of this Class D Note shall be registered in
the Note Register upon surrender of this Class D Note for registration of
transfer at any office or agency maintained by the Transfer Agent and Registrar
accompanied by a written instrument of transfer, in a form satisfactory to the
Indenture Trustee or the Transfer Agent and Registrar, duly executed by the
Class D Noteholder or such Class D Noteholder's attorney, and duly authorized in
writing with such signature guaranteed, and thereupon one or more new Class D
Notes in any authorized denominations of like aggregate principal amount will be
issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein
set forth, Class D Notes are exchangeable for new Class D Notes in any
authorized denominations and of like
Exhibit A-4-7
aggregate principal amount, upon surrender of such Notes to be exchanged at the
office or agency of the Transfer Agent and Registrar. No service charge may be
imposed for any such exchange but the Issuer or Transfer Agent and Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith.
Registration of transfer of Class D Notes shall be effected only if the
Transferor has given its consent to the transfer and the transferee has executed
and delivered an investment letter in the form and substance attached to the
Indenture Supplement as Exhibit E with respect to certain matters under the
Securities Act of 1933, as amended, the Employee Retirement Income Security Act
of 1974, as amended, and the Internal Revenue Code of 1986, as amended.
The Issuer, the Transferor, the Indenture Trustee and any agent of the
Issuer, the Transferor or the Indenture Trustee shall treat the person in whose
name this Class D Note is registered as the owner hereof for all purposes, and
neither the Issuer, the Transferor, the Indenture Trustee nor any agent of the
Issuer, the Transferor or the Indenture Trustee shall be affected by notice to
the contrary.
THIS CLASS D NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Exhibit A-4-8
ASSIGNMENT
Social Security or other identifying number of assignee ________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ______________________________ (name and address of assignee) the within
certificate and all rights thereunder, and hereby irrevocably constitutes and
appoints ____________________, attorney, to transfer said certificate on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated:__________ _________________________**
Signature Guaranteed
__________
** The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
Exhibit A-4-9
EXHIBIT B
FORM OF MONTHLY PAYMENT INSTRUCTIONS AND NOTIFICATION TO THE INDENTURE TRUSTEE
ADVANTA BANK CORP.
ADVANTA BUSINESS RECEIVABLES CORP.
ADVANTA BUSINESS CARD MASTER TRUST SERIES 2003-D
MONTHLY PERIOD ENDING
Capitalized terms used in this notice have their respective meanings set forth
in the Master Indenture and the Transfer and Servicing Agreement. References to
certain sections and subsections are references to the respective sections and
subsections of the Master Indenture as supplemented by the Series 2003-D
Indenture Supplement. This notice is delivered pursuant to Section 4.04
A) Advanta Bank Corp. is the Servicer under the Master Indenture.
B) The undersigned is an Authorized Officer.
C) The date of this notice is on or before the second Business Day
preceding the related Payment Date.
I. INSTRUCTION TO MAKE A WITHDRAWAL
Pursuant to Section 4.04, the Servicer does hereby instruct the Indenture
Trustee to apply Available Finance Charge Collections and Available Principal
Collections in a manner set forth below:
A. Pursuant to section 4.04 (a)(i):
1. Class A Monthly Interest for such Payment Date..................................... $ _______________
2. Any Class A Interest Shortfall previously due but not distributed to the Class A
Noteholders......................................................................... _______________
3. Class A Additional Interest for such Payment Date................................... $ _______________
4. Any Class A Additional Interest previously due but not distributed to Class A
Noteholder.......................................................................... $ _______________
B. Pursuant to section 4.04 (a)(ii)
1. Class B Monthly Interest for such Payment Date...................................... $ _______________
2. Any Class B Interest Shortfall previously due but not distributed to the Class B
Noteholders......................................................................... _______________
2. Class B Additional Interest for such Payment Date................................... $ _______________
3. Any Class B Additional Interest previously due but not distributed to Class B
Noteholder.......................................................................... $ _______________
C. Pursuant to section 4.04 (a)(iii)
Monthly Servicing Fee for such Payment Date plus the amount of any Monthly Servicing Fee
previously due but not distributed to the Servicer on a prior Payment Date............... $ _______________
D. Pursuant to section 4.04 (a)(iv)
1. The amount withdrawn from Cash Collateral Account to cover distributions pursuant to
subsection 4.04 (a)(iv)............................................................. _______________
2. Class C Monthly Interest for such Payment Date...................................... $ _______________
3. Any Class C Interest Shortfall previously due but not distributed to the Class C
Noteholders......................................................................... _______________
4. Class C Additional Interest for such Payment Date................................... $ _______________
5. Any Class C Additional Interest previously due but not distributed to Class C
Noteholder.......................................................................... $ _______________
E. Pursuant to section 4.04 (a) (v)
Exhibit B-1
Investor Default Amount for the related Monthly Period to be treated as Available
Principal Collections................................................................... $ _______________
F. Pursuant to section 4.04(a)(vi)
1. Investor Charge-Offs which have not been previously reimbursed..................... $ _______________
2. Reallocated Principal Collections which have not been previously reimbursed ....... $ _______________
G. Pursuant to section 4.04 (a)(vii)
On each Payment Date from and after the Reserve Account Funding Date, to the Reserve
Account an amount up to the excess, if any, of the Required Reserve Account Amount over
the Available Reserve Account........................................................... $ _______________
H. Pursuant to section 4.04 (a)(viii)
1. The amount withdrawn from Cash Collateral Account to cover distributions pursuant
to subsection 4.04 (a)(viii)....................................................... $ _______________
2. Class D Monthly Interest for such Payment Date..................................... $ _______________
3. Any Class D Interest Shortfall previously due but not distributed to the Class D
Noteholders........................................................................ _______________
4. Class D Additional Interest for such Payment Date.................................. $ _______________
5. Any Class D Additional Interest previously due but not distributed to Class D
Noteholder......................................................................... $ _______________
I. Pursuant to section 4.04 (a)(ix)
Amount required to be deposited in the Cash Collateral Account pursuant to subsection
4.11 (f)................................................................................ $ _______________
J. Pursuant to section 4.04 (a)(x)
Amount, if any, to be treated as Excess Finance Charge Collections for such Payment
Date allocated to other Series in Group One............................................. $ _______________
K. Pursuant to section 4..04 (a)(xi)
Remaining amounts paid to the holders of Trust Beneficial Interests or Certificates..... $ _______________
Total $
===============
L. Pursuant to section 4.04 (b)
On each Payment Date with respect to the Revolving Period, the amount of Available
Principal Collections for the related Monthly Period to be treated as Shared Principal
Collections............................................................................. $ _______________
M. Pursuant to section 4.04 (c)
On each Payment Date with respect to the Controlled Accumulation Period or the Early
Amortization Period, Available Principal Collections shall be distributed as follows:
1. The Monthly Principal for such Payment Date deposited into the Principal Funding
Account............................................................................ $ _______________
Exhibit B-2
2. Monthly Principal to the Class A Noteholder........................................ $ _______________
3. Monthly Principal to the Class B Noteholder ....................................... $ _______________
4. Monthly Principal to the Class C Noteholder ....................................... $ _______________
5. Monthly Principal to the Class D Noteholder ....................................... $ _______________
6. Monthly Principal to be treated as Shared Principal Collections ................... $ _______________
N. Pursuant to section 4.04 (d)
On the earlier to occur of (a) the first Payment Date during the early Amortization
Period and (b) the Expected Final Principal Payment Date, withdraw from the Principal
Funding Account and distribute as follows:
1. Monthly Principal to the Class A Noteholder ....................................... $ _______________
2. Monthly Principal to the Class B Noteholder ....................................... $ _______________
3. Monthly Principal to the Class C Noteholder ....................................... $ _______________
4. Monthly Principal to the Class D Noteholder ....................................... $ _______________
II. REALLOCATED PRINCIPAL COLLECTIONS
Pursuant to Section 4.06, the Servicer does hereby instruct the Indenture Trustee to
apply Reallocated Principal Collections with respect to such Payment Date, to fund any
deficiency pursuant to subsections 4.04 (a)(i), (ii), (iii), and (iv)................... $ _______________
III. SHARED PRINCIPAL COLLECTIONS
Pursuant to Section 8.05 of the Master indentures, Available Principal Collections for
the related Monthly Period treated as Shared Principal Collections paid to the Trust
Beneficial Interests or Certificates.................................................... $ _______________
IV. ACCRUED AND UNPAID AMOUNTS
After giving effect to the withdrawals and transfers to be made in accordance with this
notice, the following amounts will be accrued and unpaid with respect to all Monthly
Periods preceding the current calendar month:
1. Aggregate Class A Interest Shortfall............................................... $ _______________
2. Aggregate Class B Interest Shortfall............................................... $ _______________
3. Aggregate Class C Interest Shortfall............................................... $ _______________
4. Aggregate Class D Interest Shortfall............................................... $ _______________
5. Aggregate amount of all accrued and unpaid Monthly Servicing Fee................... $ _______________
6. Aggregate amount of all unreimbursed Investor Charge-Offs.......................... $ _______________
V. CASH COLLATERAL ACCOUNT
1. Beginning Balance ................................................................. $ _______________
2. Investment Earnings since the preceding Payment Date............................... $ _______________
3. Amount withdrawn to cover payments pursuant to subsections 4.04(a)(iv) and
4.04(a)(viii) ..................................................................... $ _______________
4. On the Series 2003-D Final Maturity Date, amount withdrawn pursuant to subsection
4.11(d)............................................................................ $ _______________
Exhibit B-3
5. On the day following the occurrence of an Event of Default, amount withdrawn
pursuant to subsection 4.11 (e).................................................... $ _______________
6. Amount deposited to cover any Cash Collateral Account Deficiency................... $ _______________
7. Excess over the Required Cash Collateral Account Amount paid to the Transferor..... $ _______________
8. Ending Balance..................................................................... $ _______________
VI. RESERVE ACCOUNT
1. Beginning Balance.................................................................. $ _______________
2. Interest and earnings for the related Payment Date................................. $ _______________
3. Interest earnings withdrawn to be included in Available Finance Charge
Collections........................................................................ $ _______________
4. On each Payment Date from and after the Reserve Account Funding Date, amount
deposited pursuant to subsection 4.04(a)(vii)...................................... $ _______________
5. The Reserve Draw Amount to be deposited into the Collection Account to be treated
as Available Finance Charge Collections............................................ $ _______________
6. The Reserve Account Surplus to be paid to the holders of Trust Beneficial
Interests ......................................................................... $ _______________
7. Amount withdrawn pursuant to subsection 4.10(f).................................... $ _______________
8. Ending Balance..................................................................... $ _______________
VII. PRINCIPAL FUNDING ACCOUNT
1. Beginning Balance.................................................................. $ _______________
2. Principal Funding Account Investment Proceeds for the related Payment Date......... $ _______________
3. Principal Funding Account Investment Proceeds to be deposited into the Collection
Account included as Available Finance Charge Collections........................... $ _______________
4. During the Controlled Accumulation Period, the amount of Monthly Principal for
such Payment Date deposited into the Principal Funding Account..................... $ _______________
5. On the earliest to occur of (a) first Payment Date during the Early Amortization
Period and (b) the Expected Final Principal Payment Date, the amount withdrawn for
payment to the Noteholders......................................................... $ _______________
6. Ending Balance..................................................................... $ _______________
VIII. EXCESS FUNDING ACCOUNT
1. Beginning Balance.................................................................. $ _______________
2. Interest income from investments in the related Monthly Period pursuant to
subsection 8.03 (b) of the Master Indenture........................................ $ _______________
3. Deposits made pursuant to subsections 4.01(b)(ii), 4.01(c)(ii)(x), 4.01(c)(ii)(y)
and 4.01(c)(ii)(z) of the Series 2000-C Indenture Supplement....................... $ _______________
4. Interest income withdrawn to be included as Available Finance Charge Collections... $ _______________
5. Amount withdrawn to be treated as Shared Principal Collections pursuant to subsection
8.03 (b) of the Master Indenture................................................... $ _______________
6. Amount withdrawn and paid to the holders of the Trust Beneficial Interest or
Certificates pursuant to subsection 8.03 (b) of the Master Indenture............... $ _______________
7. Ending Balance..................................................................... $ _______________
Exhibit B-4
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this
Certificate this _____ day of ___________ .
Advanta Bank Corp,
as Servicer
By:____________________________________
Name:
Title:
Exhibit B-5
EXHIBIT C
CLASS A CUSIP # 00761H BC 4
CLASS B CUSIP # 00761H BD 2
CLASS C CUSIP # 00761H BE 09
FORM OF MONTHLY NOTEHOLDER'S STATEMENT
ADVANTA BANK CORP.
ADVANTA BUSINESS CARD MASTER TRUST
SERIES 2003-D
PERIOD ENDING
[____________]
The information which is required to be prepared with respect to the Payment
Date of __________, 200__ and with respect to the performance of the Trust
during the period of __________ , 20___ through __________, 20___ is set forth
below.
Capitalized terms used in this statement have their respective meanings set
forth in the Master Indenture and the Transfer and Servicing Agreement.
References to certain sections and subsections are references to the respective
sections and subsections of the Master Indenture as supplemented by the Series
2003-D Indenture Supplement.
I. INFORMATION REGARDING THE CURRENT MONTHLY PRINCIPAL DISTRIBUTION TO THE NOTEHOLDERS (STATED
ON THE BASIS OF $1,000 ORIGINAL PRINCIPAL BALANCE)
1. The amount of distribution in respect to principal payment to the Class A Noteholders.. $_________
2. The amount of distribution in respect to principal payment to the Class B Noteholders.. $_________
3. The amount of distribution in respect to principal payment to the Class C Noteholders.. $_________
4. The amount of distribution in respect to principal payment to the Class D Noteholders.. $_________
II. INFORMATION REGARDING THE CURRENT MONTHLY INTEREST DISTRIBUTION TO THE NOTEHOLDERS (STATED
ON THE BASIS OF $1,000 ORIGINAL NOTE PRINCIPAL BALANCE)
1. The amount of distribution in respect to the Class A Monthly Interest.................. $_________
2. The amount of distribution in respect to the Class B Monthly Interest.................. $_________
3. The amount of distribution in respect to the Class C Monthly Interest.................. $_________
4. The amount of distribution in respect to the Class D Monthly Interest.................. $_________
III. INFORMATION REGARDING THE TOTAL MONTHLY DISTRIBUTION TO THE NOTEHOLDER (STATED ON THE BASIS
OF $1,000 ORIGINAL NOTE PRINCIPAL BALANCE)
1. The total amount of distribution in respect to the Class A Noteholders................. $_________
2. The total amount of distribution in respect to the Class B Noteholders................. $_________
3. The total amount of distribution in respect to the Class C Noteholders................. $_________
4. The total amount of distribution in respect to the Class D Noteholders................. $_________
IV. INFORMATION REGARDING THE PERFORMANCE OF THE ADVANTA BUSINESS CARD MASTER TRUST
1. The aggregate amount of such Collections with respect to Principal Receivables for
the Monthly Period preceding such Payment Date......................................... $_________
Exhibit C-1
2. The aggregate amount of such Collections with respect to Finance
Charge and Administrative Receivables for the Monthly Period preceding such
Payment Date......................................................................... $_________
3. Recoveries for the preceding Monthly Period.......................................... $_________
4. The Defaulted Amount for the preceding Monthly Period................................ $_________
5. The total amount of Principal Receivables in the trust at the beginning of the
preceding Monthly Period............................................................. $_________
6. The total amount of Principal Receivables in the trust as of the last day of the
preceding Monthly Period............................................................. $_________
7. The total amount of Finance Charge and Administrative Receivables in the Trust as of
the last day of the preceding Monthly Period is...................................... $_________
8. The aggregated Adjusted Invested Amounts of all Series of Notes outstanding as of
the last day of the preceding Monthly Period......................................... $_________
9. The Transferor Interest as of the last day of the preceding Monthly Period........... $_________
10. The Transferor Percentage as of the last day of the preceding Monthly Period......... _________%
11. The Required Transferor Percentage................................................... _________%
12. The monthly principal payment rate for the preceding Monthly Period.................. _________%
13. The balance in the Excess Funding Account as of the last day of the preceding
Monthly Period....................................................................... $_________
14. The aggregate outstanding balance of the Accounts which were delinquent as of the
close of business on the last day of the Monthly Period preceding such Payment Date
Percentage of Aggregate
Total Account
Receivables Balance
------------- ----------
(a) Delinquent between 30 days and 59 days _____% $
(b) Delinquent between 60 days and 89 days _____% $
(c) Delinquent between 90 days and 119 days _____% $
(d) Delinquent between 120 days and 149 days _____% $
(e) Delinquent between 150 days and 179 days _____% $
(f) Delinquent 180 days or greater _____% $
------------- ---------
(e) Aggregate _____% $
------------- ---------
V. INFORMATION REGARDING SERIES 2003-D
1. The amount of Principal Receivables in the Trust represented by the Invested Amount
of Series 2003-D as of the last day of the related Monthly Period.................... $_________
2. The amount of Principal Receivables in the Trust represented by the Adjusted Invested
Amount of Series 2003-D on the last day of the related Monthly Period................ $_________
NOTE FACTORS
3. The amount of Principal Receivables in the Trust represented by the Class A Note
Principal Balance on the last day of the related Monthly Period...................... $_________
4. The amount of Principal Receivables in the Trust represented by the Class B Note
Principal Balance on the last day of the related Monthly Period...................... $_________
5. The amount of Principal Receivables in the Trust represented by the Class C Note
Principal Balance on the last day of the related Monthly Period ..................... $_________
Exhibit C-2
6. The amount of Principal Receivables in the trust represented by the Class D Note
Principal Balance on the last day of the related Monthly Period...................... $_________
7. The Floating Investor Percentage with respect to the period:
_________, 20___ through __________, 20___................................... _________%
_________, 20___ through __________, 20___................................... _________%
_________, 20___ through __________, 20___................................... _________%
8. The Fixed Investor Percentage with respect to the period:
_________, 20___ through __________, 20___................................... __________
_________, 20___ through __________, 20___................................... __________
_________, 20___ through __________, 20___................................... __________
9. The amount of Available Finance Charge Collections on deposit in the Collection
Account on related Payment Date...................................................... $_________
10. The Investor Default Amount for the related Monthly Period........................... $_________
11. The Monthly Servicing Fee for the related Monthly Period............................. $_________
12. Trust yields for the related Monthly Period:
a. The cash yield for the related Monthly Period................................ _________%
b. The default rate for the related Monthly Period.............................. _________%
c. The Net Portfolio Yield for the related Monthly Period....................... _________%
d. The Base Rate for the related Monthly Period................................. _________%
e. The Excess Spread Percentage for the related Monthly Period.................. _________%
f. The Quarterly Excess Spread percentage....................................... _________%
(i) Excess Spread Percentage related to MM-YY _________%
(ii) Excess Spread Percentage related to MM-YY _________%
(iii) Excess Spread Percentage related to MM-YY _________%
13. Floating Rate Determinations:
LIBOR for the Interest Period from _____ through and including _____, 20___.......... _________%
LIBOR for the Interest Period from _____ through and including _____, 20___.......... _________%
14. Principal Funding Account............................................................
a. The amount on deposit in the Principal Funding Account on the related Payment
Date (after taking into consideration deposits and withdraws for the
related Payment Date)........................................................ $_________
b. The Accumulation Shortfall with respect to the related Monthly Period........ $_________
c. The Principal Funding Investment Proceeds deposited in the Collection
Account to be treated as Available Finance Charge Collections................ $_________
15. Reserve Account
a. The amount on deposit in the Reserve Account on the related Payment Date
(after taking into consideration deposits and withdraws for the related
Payment Date)................................................................ $_________
b. The Reserve Draw Amount for the related Monthly Period deposited into the
Collection Account to be treated as Available Finance Charge Collections..... $_________
c. Interest earnings on the Reserve Account deposited into the Collection
Account to be treated as Available Finance Charge Collections................ $_________
16. Cash Collateral Account
a. The Required Cash Collateral Account Amount on the related Payment Date...... $_________
b. The Available Cash Collateral Account Amount on the related Payment Date..... $_________
17. Investor Charge-Offs
a. The aggregate amount of Investor Charge-Offs for the related Monthly Period.. $_________
b. The aggregate amount of Investor Charge-Offs reimbursed on the Payment Date.. $_________
Exhibit C-3
18. The Monthly Principal Reallocation Amount for the related Monthly Period............. $_________
Advanta Bank Corp.
as Servicer
By:_________________________
Name:
Title:
Exhibit C-4
EXHIBIT D
FORM OF MONTHLY SERVICER'S CERTIFICATE
ADVANTA BANK CORP. OFFICERS CERTIFICATE
I, [name], [title] of Advanta Bank Corp. ("ABC") hereby certify that
Advanta Bank Corp. ("ABRC"), as Servicer pursuant to the Advanta Business Card
Master Series 2003-D Indenture Supplement (the "Agreement") dated as of December
1, 2003 by and among Advanta Business Card Master Trust, as issuer (the
"Issuer") and Deutsche Bank Trust Company Americas, as trustee (the "Trustee").
Any terms not defined herein will have their respective meanings as defined in
the Agreement.
(a) In compliance with Section 5.03 of the Agreement, ABC hereby
states that no Pay Out Event has occurred during the preceding Monthly Period.
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of
_______, 20__.
ADVANTA BANK CORP.
By: ________________________________
Name:
Title:
Exhibit D-1
EXHIBIT E
FORM OF INVESTMENT LETTER
INVESTMENT LETTER
[Date]
[Indenture Trustee]
[Transferor]
[Servicer]
Re: Purchase of Advanta Business Card Master Trust,
Series 2003-D, Class D Asset Backed Notes
Dear Sirs:
The undersigned proposes to purchase the Class D Notes identified below
issued by Advanta Business Card Master Trust (the "Issuer"), pursuant to the
Series 2003-D Indenture Supplement, dated as of December 1, 2003 (the "Indenture
Supplement"), among the Issuer, Advanta Business Receivables Corp., as
transferor (the "Transferor"), and Advanta Bank Corp., as servicer (the
"Servicer") and Deutsche Bank Trust Company Americas (formerly known as Bankers
Trust Company), as indenture trustee (the "Indenture Trustee"). In connection
with our proposed purchase of such notes we acknowledge, represent, warrant and
covenant that:
1. the Class D Notes will be offered and may be resold only to
"qualified institutional buyers" ("QIBs") pursuant to Rule 144A of the
Securities Act of 1933, as amended (the "Securities Act");
2. the Class D Notes have not been and will not be registered
under the Securities Act or any state or other applicable securities law and the
Class D Notes, or any interest or participation therein, may not be offered,
sold, pledged or otherwise transferred unless registered pursuant to, or exempt
from registration under, the Securities Act and any other applicable securities
law;
3. none of the Owner Trustee, the Indenture Trustee, the
Transferor or the Servicer or any person representing the Owner Trustee, the
Indenture Trustee, the Transferor or the Servicer has made any representation to
us with respect to the Issuer or the offering or sale of any of the Class D
Notes, other than the information contained in the accompanying Private
Placement Memorandum, which has been delivered to us and upon which we are
relying in making our investment decision with respect to the Class D Notes. We
have had access to such financial and other information concerning the Issuer
and the Class D Notes as we have deemed necessary in connection with our
decision to purchase such notes;
Exhibit E-1
4. we have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of an
investment in the Class D Notes, and we (and any account for which we are
purchasing under paragraph (8) below) are able to bear the economic risk of an
investment in the Class D Notes;
5. the Class D Notes will bear a legend to the following effect:
"THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, AGREES THAT THIS
NOTE, OR ANY INTEREST OR PARTICIPATION HEREIN, MAY BE REOFFERED, RESOLD, PLEDGED
OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER
APPLICABLE LAWS AND ONLY (1) TO THE ISSUER OR ITS AFFILIATES OR (2) PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT TO A PERSON THAT THE HOLDER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
UNDER THE SECURITIES ACT (A "QIB") PURCHASING FOR ITS OWN ACCOUNT OR A QIB
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A UNDER THE SECURITIES ACT. THIS SECURITY WILL NOT BE ACCEPTED FOR
REGISTRATION OF TRANSFER EXCEPT UPON PRESENTATION OF EVIDENCE SATISFACTORY TO
THE TRANSFER AGENT AND REGISTRAR THAT THE RESTRICTIONS ON TRANSFER SET FORTH IN
THE MASTER INDENTURE AND THE INDENTURE SUPPLEMENT HAVE BEEN COMPLIED WITH. THIS
NOTE MAY NOT BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT THE
PRIOR WRITTEN CONSENT OF THE TRANSFEROR AND UNLESS AND UNTIL THE INDENTURE
TRUSTEE, THE TRANSFEROR AND THE SERVICER SHALL HAVE RECEIVED THE CERTIFICATIONS
REQUIRED BY THE MASTER INDENTURE AND THE INDENTURE SUPPLEMENT. THE CLASS D NOTES
ARE ALSO SUBJECT TO RESTRICTIONS ON THE PURCHASE, OWNERSHIP AND DISPOSITION OF
SUCH SECURITIES, INCLUDING THE CONSENT OF THE TRANSFEROR AND THE DELIVERY OF AN
INVESTMENT LETTER. SUCH RESTRICTIONS ARE SET FORTH IN THE MASTER INDENTURE AND
THE INDENTURE SUPPLEMENT, COPIES OF WHICH ARE AVAILABLE FROM THE INDENTURE
TRUSTEE.
THIS CLASS D NOTE MAY NOT BE SOLD OR TRANSFERRED TO ANY PLAN THAT IS
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA") OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), TO ANY PERSON ACTING ON BEHALF OF OR WITH "PLAN ASSETS" OF ANY SUCH
PLAN, OR TO ANY OTHER "BENEFIT PLAN INVESTOR" (AS DEFINED IN UNITED STATES
DEPARTMENT OF LABOR REGULATION SECTION 2510.3-101(f)(2)), INCLUDING AN INSURANCE
COMPANY GENERAL ACCOUNT, EXCEPT IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
THE INDENTURE SUPPLEMENT.
Exhibit E-2
THIS CLASS D NOTE MAY NOT BE ACQUIRED, SOLD, TRADED OR TRANSFERRED, NOR
MAY AN INTEREST IN THIS CLASS D NOTE BE MARKETED, ON OR THROUGH (I) AN
"ESTABLISHED SECURITIES MARKET" WITHIN THE MEANING OF SECTION 7704(b)(1) OF THE
CODE AND ANY TREASURY REGULATION THEREUNDER, INCLUDING, WITHOUT LIMITATION, AN
OVER THE-COUNTER-MARKET OR AN INTERDEALER QUOTATION SYSTEM THAT REGULARLY
DISSEMINATES FIRM BUY OR SELL QUOTATIONS OR (II) A "SECONDARY MARKET (OR THE
SUBSTANTIAL EQUIVALENT THEREOF)" WITHIN THE MEANING OF SECTION 7704(b)(2) OF THE
CODE AND ANY TREASURY REGULATION THEREUNDER, INCLUDING A MARKET WHEREIN
INTERESTS IN THE CLASS D NOTES ARE REGULARLY QUOTED BY ANY PERSON MAKING A
MARKET IN SUCH INTERESTS AND A MARKET WHEREIN ANY PERSON REGULARLY MAKES
AVAILABLE BID OR OFFER QUOTES WITH RESPECT TO INTERESTS IN THE CLASS D NOTES AND
STANDS READY TO EFFECT BUY OR SELL TRANSACTIONS AT THE QUOTED PRICES FOR ITSELF
OR ON BEHALF OF OTHERS.
BEFORE PURCHASING THIS NOTE, PURCHASERS SHOULD CONSULT COUNSEL WITH
RESPECT TO THE AVAILABILITY AND CONDITIONS OF EXEMPTION FROM THE RESTRICTION ON
RESALE OR TRANSFER. NEITHER THE ISSUER NOR THE SELLER OF THIS NOTE HAS AGREED TO
REGISTER THIS NOTE UNDER THE SECURITIES ACT, TO QUALIFY THIS NOTE UNDER THE
SECURITIES LAWS OF ANY STATE OR JURISDICTION OR TO PROVIDE REGISTRATION RIGHTS
TO ANY PURCHASER.
AS SET FORTH HEREIN, THE OUTSTANDING PRINCIPAL BALANCE OF THIS NOTE AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF."
Any portion of this legend may be removed or modified if the
Transferor, the Servicer and the Indenture Trustee and the Transfer Agent and
Registrar have received an Opinion of Counsel, in form and substance
satisfactory to them, to the effect that such paragraph may be removed or
modified;
6. if we are acquiring any Class D note, or any interest or
participation therein, as a fiduciary or agent for one or more investor
accounts, we have sole investment discretion with respect to that account and we
have full power to make the acknowledgements, representations and agreements
contained herein on behalf of each of those accounts;
7. we (1) are a QIB, (2) are aware that the sale to us is being
made in reliance on Rule 144A and if we are acquiring those Class D notes or any
interest or participation therein for the account of another QIB, that such
other QIB is aware that the sale is being made in reliance on Rule 144A and (3)
are acquiring those Class D notes or any interest or participation therein for
our own account or for the account of a QIB;
8. we are purchasing the Class D notes for our own account, or
for one or more investor accounts for which we are acting as fiduciary or agent,
in each case for investment, and not with a view to, or for offer or sale in
connection with, any distribution thereof in violation of
Exhibit E-3
the Securities Act, subject to any requirements of law that the disposition of
our property or the property of that investor account or accounts be at all
times within our or their control and subject to our or their ability to resell
those Class D notes, or any interest or participation therein, as described
herein and as provided in the Master Indenture or the Indenture Supplement
relating to the Series 2003-D Notes;
9. we agree that if in the future we should offer, sell or
otherwise transfer that Class D note or any interest or participation therein,
we will do so only (A) to the Transferor or an affiliate of the Transferor, or
(B) pursuant to Rule 144A to a person whom we reasonably believe is a QIB in a
transaction meeting the requirements of Rule 144A, purchasing for its own
account or for the account of a QIB, whom we have informed that such offer, sale
or other transfer is being made in reliance on Rule 144A;
10. the Transferor, the Issuer, the Servicer, the Owner Trustee,
the Indenture Trustee and others will rely on the truth and accuracy of the
foregoing representations, warranties and covenants and we agree that if any of
the foregoing representations, warranties and covenants deemed to have been made
by us are no longer accurate, we shall promptly notify the Transferor, the
Issuer, the Servicer, the Owner Trustee and the Indenture Trustee. We further
agree to use reasonable efforts to produce a replacement investor which is
acceptable to the Transferor to replace us in the event of any such breach
(understanding also that the Transferor shall also have the right to procure a
replacement investor), and agree to take all actions necessary to permit a
replacement investor to succeed to our rights and obligations with respect to
the related Class D note. We acknowledge that the portion of the Tax Opinion to
the effect that the Trust will not be treated as a publicly traded partnership
taxable as a corporation is dependent in part on the accuracy of the
certifications described herein;
11. we are the beneficial owner for United States federal income
tax purposes and, unless otherwise consented to by the Transferor in its sole
discretion in writing, we are and will remain a "United States person" for such
purposes for so long as we hold any interest in a Class D Note;
12. by our acceptance of an interest in the Class D Notes, we
agree to treat the Class D Notes for federal, state and local income and
franchise tax purposes as indebtedness of the Transferor;
13. unless otherwise consented to by the Transferor in its sole
discretion in writing, we are properly classified as, and shall remain
classified as, a "corporation" as described in Section 7701(a)(3) of the
Internal Revenue Code of 1986 (the "Code") and are not, and so long as we shall
be an owner of Class D Notes will not become, an "S Corporation" (within the
meaning of Section 1361(a) of the Code) for U.S. federal income tax purposes;
14. we have not acquired, and shall not sell, trade or transfer
any interest in the Class D Notes, nor cause any interest in the Class D Notes
to be marketed on or through either (i) an "established securities market"
within the meaning of Section 7704(b)(1) of the Code (including an interdealer
quotation system that regularly disseminates firm buy or sell quotations by
identified brokers or dealers by electronic means or otherwise) or (ii) a
"secondary market (or the substantial equivalent thereof)" within the meaning of
Code Section 7704(b)(2) (including a
Exhibit E-4
market wherein interests in the Class D Notes are regularly quoted by any person
making a market in such interests and a market wherein any person regularly
makes available bid or offer quotes with respect to interests in the Class D
Notes and stands ready to effect, buy or sell transactions at the quoted prices
for itself or on behalf of others);
15. either [check one]:
[ ] we are not, and we are not acquiring the Class D
Notes by or on behalf of, or with "plan assets" of,
(i) an employee benefit plan (as defined in Section
3(3) of The Employment Retirement Income Security Act
of 1974, as amended (" ERISA"), whether or not
subject to Title I of ERISA, (ii) a plan described in
Section 4975(e)(1) of the Code, (iii) an entity whose
underlying assets include "plan assets" by reason of
a Plan's investment in us; or (a) a person who is
otherwise a "benefit plan investor," as defined in
U.S. Department of Labor ("DOL") Regulation Section
2510.3-101 (a "Benefit Plan Investor"), including any
insurance company general account or a governmental
or foreign plan that is generally not subject to
ERISA or Section 4975 of the Code; OR
[ ] we are acquiring the Class D Notes and the Class D
Notes will be held by or on behalf of, or with "plan
assets" of, a Plan or other Benefit Plan Investor and
(a) (1) we are purchasing the Class D Notes with
assets of an "insurance company general account"
(within the meaning of DOL Prohibited Transaction
Class Exemption ("PTCE") 95-60 (a "General Account");
(2) our purchase of the Class D Notes is eligible for
the exemptive relief afforded under Section I of PTCE
95-60; and (3) less than ____% (enter a percentage
not in excess of 25%) of the assets of the such
General Account constitute "plan assets" of Benefit
Plan Investors; and
(b) after giving effect to our purchase and all
other purchases occurring simultaneously therewith,
less than 25% of the Class D Notes (excluding Class D
Notes held by the servicer or any of its affiliates)
will constitute "plan assets" of Benefit Plan
Investors;
16. we represent and warrant and agree with you that (i) our
purchase and holding of Class D Notes will satisfy the ERISA requirements
described in paragraph 15 above and (ii) we will not assign or transfer Class D
Notes unless (a) the proposed assignee or transferee delivers a letter to you
evidencing its agreement to the ERISA representations and covenants in Paragraph
Exhibit E-5
15 above with respect to its purchase, holding and transfer of Class D Notes and
(b) if we (x) are not (and are not acting on behalf of ) a Benefit Plan
Investor, the assignee or transferee will also not be a Benefit Plan Investor,
or (y) are (or are acting on behalf of) a General Account, the assignee or
transferee will be accurately identified in such letter as either another
General Account or a person who is not (and is not acting on behalf of) a
Benefit Plan Investor;
17. registration of transfer of any Class D Note or any interest
therein will require delivery of such certificates and other requirements as are
required by the Indenture Supplement, as more specifically set forth therein;
and
18. transfers of the Class D Notes or any interest or
participation therein shall otherwise be subject in all respects to the
restrictions applicable thereto contained in the Master Indenture or the
Indenture Supplement.
Capitalized terms used but not defined herein shall have the meanings
set forth in the Indenture Supplement.
Very truly yours,
[NAME OF INVESTOR]
By: ___________________________________
Name:
Title:
CLASS D NOTES TO BE PURCHASED
U.S.$__________ aggregate principal amount of Series 2003-D Class D Asset Backed
Notes
Exhibit E-6
