Exhibit 4.1
[EXECUTION COPY]
ADVANTA BUSINESS CARD MASTER TRUST
AMENDMENT NO. 1
TO THE
MASTER INDENTURE
THIS AMENDMENT NO. 1 TO THE MASTER INDENTURE, dated as of May 9, 2006
(this "Amendment"), is by and between WILMINGTON TRUST COMPANY (the "Owner
Trustee"), as owner trustee of ADVANTA BUSINESS CARD MASTER TRUST, a common law
trust organized under the laws of the State of Delaware (herein called 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 (the "Indenture Trustee").
WHEREAS, the Owner Trustee and the Indenture Trustee have executed
that certain Master Indenture, dated as of August 1, 2000 (as amended and
supplemented through the date hereof and as the same may be further amended,
supplemented or otherwise modified and in effect from time to time, the
"Indenture"); and
WHEREAS, the Owner Trustee and the Indenture Trustee wish to amend the
Indenture as provided herein.
NOW THEREFORE, in consideration of the premises and the agreements
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree to amend
the provisions of the Indenture as follows:
SECTION 1. Amendment of Section 1.01. Section 1.01 of the Indenture is
hereby amended by adding the following definitions in the appropriate
alphabetical order:
"Regulation AB" shall mean Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. Sections 229.1100-229.1123, as such may be
amended from time to time, and subject to such clarification and
interpretation as have been provided by the Commission in the adopting
release (Asset-Backed Securities, Securities Act Release No. 33-8518, 70
Fed. Reg. 1,506, 1531 (January 7, 2005)) or by the staff of the Commission,
or as may be provided by the Commission or its staff from time to time.
"Securitization Transaction" shall mean any Notes issued by the Issuer
after January 1, 2006, whether publicly offered or privately placed, rated
or unrated.
SECTION 2. Addition of Article XIII. The Indenture is hereby amended
by adding the following new Article XIII after Article XII of the Indenture:
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ARTICLE XIII
COMPLIANCE WITH REGULATION AB
Section 13.01 Intent of Parties; Reasonableness. The Issuer and the
Indenture Trustee acknowledge and agree that the purpose of this Article XIII is
to facilitate compliance by the Transferor with the provisions of Regulation AB
and related rules and regulations of the Commission. The Transferor shall not
exercise its right to request delivery of information or other performance under
these provisions other than in good faith, or for purposes other than the
Transferor's compliance with the Securities Act, the Securities Exchange Act and
the rules and regulations of the Commission thereunder (or the provision in a
private offering of disclosure comparable to that required under the Securities
Act). The Indenture Trustee agrees to cooperate in good faith with any
reasonable request by the Transferor for information regarding the Indenture
Trustee which is required in order to enable the Transferor to comply with the
provisions of Regulation AB, including, without limitation, Items 1109(a),
1109(b), 1117, 1119 and 1122 of Regulation AB as it relates to the Indenture
Trustee or to the Indenture Trustee's obligations under this Indenture or any
other Transaction Document.
Section 13.02 Additional Representations and Warranties of the Indenture
Trustee. The Indenture Trustee shall be deemed to represent to the Transferor,
as of the date on which information is provided to the Transferor under Section
13.03 that, except as disclosed in writing to the Transferor prior to such date
to the best of its knowledge: (i) neither the execution, delivery and
performance by the Indenture Trustee of this Indenture or any other Transaction
Document, the performance by the Indenture Trustee of its obligations under this
Indenture or any other Transaction Document nor the consummation of any of the
transactions by the Indenture Trustee contemplated thereby, is in violation of
any indenture, mortgage, bank credit agreement, note or bond purchase agreement,
long-term lease, license or other agreement or instrument to which the Indenture
Trustee is a party or by which it is bound, which violation would have a
material adverse effect on the Indenture Trustee's ability to perform its
obligations under this Indenture or any other Transaction Document, or of any
judgment or order applicable to the Indenture Trustee; and (ii) there are no
proceedings pending or threatened against the Indenture Trustee in any court or
before any governmental authority, agency or arbitration board or tribunal
which, individually or in the aggregate, would have a material adverse effect on
the right, power and authority of the Indenture Trustee to enter into this
Indenture or any other Transaction Document or to perform its obligations under
this Indenture or Transaction Document.
Section 13.03 Information to be Provided by the Indenture Trustee.
The Indenture Trustee shall provide such information regarding the
Indenture Trustee as is required for the purpose of compliance with Items
1109(a), 1109(b), 1117 and 1119 of Regulation AB in the form of a certificate
signed by an authorized officer of the Indenture Trustee at the time of the
offering of any new Notes issued by the Issuing Entity in the form attached
hereto as Exhibit C, or such other form as may mutually be agreed upon.
The Indenture Trustee shall provide to the Transferor, in writing, any
updates to the information regarding the Indenture Trustee as is required for
the purpose of compliance with Items 1109(a), 1109(b), 1117 and 1119 of
Regulation AB, and as promptly as practicable following notice to or discovery
by the Indenture Trustee of any changes to such information.
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The Indenture Trustee's obligations to provide disclosure required by Item
1119 of Regulation AB pursuant to this Section 13.03 shall be deemed satisfied
if the Indenture Trustee provides a description of any affiliation between (a)
the Indenture Trustee, on the one hand, and (b) those parties to the
Securitization Transaction as are identified by the Transferor in writing, on
the other.
Section 13.04 Report on Assessment of Compliance and Attestation; Annual
Certification.
(a) Within the earlier of 60 days after the end of each fiscal year of
the Issuer or such date as required by Regulation AB, beginning after the
end of fiscal year 2006, the Indenture Trustee shall:
(i) deliver to the Transferor a report regarding the Indenture
Trustee's assessment of compliance with the Servicing Criteria during
the immediately preceding fiscal year of the Trust, as required under
Rules 13a-18 and 15d-18 of the Securities Exchange Act and Item 1122
of Regulation AB. Such report shall be addressed to the Transferor and
signed by an authorized officer of the Indenture Trustee, and shall
address each of the Servicing Criteria specified in Exhibit B, as may
be amended from time to time by the parties hereto;
(ii) deliver to the Transferor a report of an independent
registered public accounting firm reasonably acceptable to the
Transferor that attests to, and reports on, the assessment of
compliance made by the Indenture Trustee and delivered pursuant to the
preceding paragraph. Such attestation shall be in accordance with
Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities
Act and the Securities Exchange Act; and
(iii) deliver to the Transferor or any other Person that will be
responsible for signing the Sarbanes Certification on behalf of the
Issuing Entity or the Transferor, upon written request by such person,
with respect to a Securitization Transaction a certification in the
form attached hereto as Exhibit A, or such other form as may mutually
be agreed upon.
(b) The Indenture Trustee acknowledges that the parties identified in
clause (iii) above may rely on the certification provided by the Indenture
Trustee pursuant to such clause in signing a Sarbanes Certification and
filing such certification with the Commission.
[END OF ARTICLE XIII]
SECTION 3. Effectiveness. The amendments provided for by this
Amendment shall become effective upon:
(a) confirmation that the Rating Agency Condition shall have been
satisfied;
(b) receipt by the Owner Trustee and the Indenture Trustee of an
Officer's Certificate of the Transferor to the effect that the Transferor
reasonably believes that the terms of this Amendment will not have an Adverse
Effect;
(c) receipt by each Rating Agency of a Tax Opinion;
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(d) receipt by the Indenture Trustee of an Opinion of Counsel pursuant
to Section 10.3 (Execution of Supplemental Indentures) of the Indenture; and
(e) receipt by the Owner Trustee, the Indenture Trustee and each
Rating Agency of counterparts of this Amendment, duly executed by the parties
hereto.
SECTION 4. Indenture in Full Force and Effect as Amended. Except as
specifically amended or waived hereby, all of the terms and conditions of the
Indenture shall remain in full force and effect. All references to the Indenture
in any other document or instrument shall be deemed to mean the Indenture as
amended by this Amendment. This Amendment shall not constitute a novation of the
Indenture, but shall constitute an amendment thereof. The parties hereto agree
to be bound by the terms and obligations of the Indenture, as amended by this
Amendment, as though the terms and obligations of the Indenture were set forth
herein.
SECTION 5. Counterparts. This Amendment may be executed in any number
of counterparts and by separate parties hereto on separate counterparts, each of
which when executed shall be deemed an original, but all such counterparts taken
together shall constitute one and the same instrument.
SECTION 6. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 7. Defined Terms and Section References. Capitalized terms
used herein and not otherwise defined shall have the meanings assigned to such
terms in the Trust Agreement. All Section or subsection references herein shall
mean Sections or subsections of the Trust Agreement, except as otherwise
provided herein.
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IN WITNESS WHEREOF, the Owner Trustee and the Indenture Trustee have
caused this Amendment to be duly executed by their respective officers as of the
day and year first above written.
WILMINGTON TRUST COMPANY, not in its
individual capacity, but solely as Owner
Trustee of ADVANTA BUSINESS CARD MASTER
TRUST
By: /s/ Michsel McCarthy
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Name: Michsel McCarthy
Title: Assistant Vice President
DEUTSCHE BANK TRUST COMPANY AMERICAS,
not in its individual capacity but
solely as Indenture Trustee
By: /s/ Jenna Kaufman
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Name: JENNA KAUFMAN
Title: VICE PRESIDENT
By: /s/ Louis Bodi
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Name: LOUIS BODI
Title: VICE PRESIDENT
The Transferor hereby confirms the
Rating Agency Condition has been
satisfied with respect to the
foregoing amendment.
ADVANTA BUSINESS RECEIVABLES CORP.,
Transferor
By: /s/ Michael Coco
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Name: Michael Coco
Title: President
Exhibit A
FORM OF ANNUAL CERTIFICATION
Re: MASTER INDENTURE, dated as of August 1, 2000 (as amended through the date
hereof, the "Indenture"), by and between Wilmington Trust Company, as owner
trustee (the "Owner Trustee") for Advanta Business Card Master Trust, as
issuer (the "Issuer") 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, as indenture trustee (the
"Indenture Trustee")
I, ________________________________, the _______________________ of the
Indenture Trustee, certify to each of the Transferor and the Issuer, and their
officers, with the knowledge and intent that they will rely upon this
certification, that:
(1) I have reviewed the report on assessment of the Indenture
Trustee's compliance provided in accordance with Rules 13a-18 and 15d-18
under the Securities Exchange Act of 1934, as amended (the "Securities
Exchange Act") that were delivered by the Indenture Trustee to the
Transferor pursuant to the Indenture (collectively, the "Indenture Trustee
Information") (in making such statement, we make no representation or
warranty as to any information prepared or provided to us by a third person
and upon which we relied in preparing our Indenture Trustee Information);
(2) To the best of my knowledge, the Indenture Trustee Information,
taken as a whole, does not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements made, in
the light of the circumstances under which such statements were made, not
misleading with respect to the period of time covered by the Indenture
Trustee Information; and
(3) To the best of my knowledge, all of the Indenture Trustee
Information required to be provided by the Indenture Trustee under the
Indenture has been provided to the Transferor and the Issuer.
Capitalized terms used but not defined herein have the meaning ascribed to them
in the Indenture.
Date:
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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A-1
Exhibit B
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF
COMPLIANCE
The assessment of compliance to be delivered by the Indenture Trustee shall
address, at a minimum, the criteria identified below as "Applicable Servicing
Criteria":
SERVICING CRITERIA
APPLICABLE
SERVICING
REFERENCE CRITERIA CRITERIA
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GENERAL SERVICING CONSIDERATIONS
1122(d)(1)(i) Policies and procedures are instituted to
monitor any performance or other triggers and
events of default in accordance with the
transaction agreements.
1122(d)(1)(ii) If any material servicing activities are [X]
outsourced to third parties, policies and
procedures are instituted to monitor the third
party's performance and compliance with such
servicing activities.
1122(d)(1)(iii) Any requirements in the transaction agreements
to maintain a back-up servicer for the credit
card accounts or accounts are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy
is in effect on the party participating in the
servicing function throughout the reporting
period in the amount of coverage required by and
otherwise in accordance with the terms of the
transaction agreements.
CASH COLLECTION AND ADMINISTRATION
1122(d)(2)(i) Payments on credit card accounts are deposited [X]
into the appropriate custodial bank accounts and
related bank clearing accounts no more than two
business days following receipt, or such other
number of days specified in the transaction
agreements.
1122(d)(2)(ii) Disbursements made via wire transfer on behalf [X]
of an obligor or to an investor are made only by
authorized personnel.
1122(d)(2)(iii) Advances of funds or guarantees regarding
collections, cash flows or distributions, and
any interest or other fees charged for such
advances, are made, reviewed and approved as
specified in the transaction agreements.
1122(d)(2)(iv) The related accounts for the transaction, such
as cash reserve accounts or accounts established
as a form of overcollateralization, are
separately maintained (e.g., with respect to
commingling of cash) as set forth in the
transaction agreements.
1122(d)(2)(v) Each custodial account is maintained at a
federally insured depository institution as set
forth in the transaction agreements. For purposes
of this criterion, "federally insured
B-1
SERVICING CRITERIA
APPLICABLE
SERVICING
REFERENCE CRITERIA CRITERIA
--------- -------- ----------
depository institution" with respect to a
foreign financial institution means a foreign
financial institution that meets the
requirements of Rule 13k-1(b)(1) of the
Securities Exchange Act.
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent
unauthorized access.
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis
for all asset-backed securities related bank
accounts, including custodial accounts and
related bank clearing accounts. These
reconciliations (A) are mathematically accurate;
(B) are prepared within 30 calendar days after
the bank statement cutoff date, or such other
number of days specified in the transaction
agreements; (C) are reviewed and approved by
someone other than the person who prepared the
reconciliation; and (D) contain explanations for
reconciling items. These reconciling items are
resolved within 90 calendar days of their
original identification, or such other number of
days specified in the transaction agreements.
INVESTOR REMITTANCES AND REPORTING
1122(d)(3)(i) Reports to investors, including those to be
filed with the Commission, are maintained in
accordance with the transaction agreements and
applicable Commission requirements.
Specifically, such reports (A) are prepared in
accordance with timeframes and other terms set
forth in the transaction agreements; (B) provide
information calculated in accordance with the
terms specified in the transaction agreements;
(C) are filed with the Commission as required by
its rules and regulations; and (D) agree with
investors' or the trustee's records as to the
total unpaid principal balance and number of
credit card accounts serviced by the Servicer.
1122(d)(3)(ii) Amounts due to investors are allocated and [X]
remitted in accordance with timeframes,
distribution priority and other terms set forth
in the transaction agreements.
1122(d)(3)(iii) Disbursements made to an investor are posted [X]
within two business days to the Servicer's
investor records, or such other number of days
specified in the transaction agreements.
1122(d)(3)(iv) Amounts remitted to investors per the investor [X]
reports agree with cancelled checks, or other
form of payment, or custodial bank statements.
POOL ASSET ADMINISTRATION
1122(d)(4)(i) Collateral or security on pool assets is [X]
maintained as required by the transaction
agreements or related asset pool documents.
B-2
SERVICING CRITERIA
APPLICABLE
SERVICING
REFERENCE CRITERIA CRITERIA
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1122(d)(4)(ii) Pool assets and related documents are [X]
safeguarded as required by the transaction
agreements.*
1122(d)(4)(iii) Any additions, removals or substitutions to the
asset pool are made, reviewed and approved in
accordance with any conditions or requirements
in the transaction agreements.
1122(d)(4)(iv) Payments on credit card accounts, including any
payoffs, made in accordance with the related
credit card accounts documents are posted to the
Servicer's obligor records no more than two
business days after receipt, or such other
number of days specified in the transaction
agreements, and allocated to principal, interest
or other items (e.g., escrow) in accordance with
the related asset pool documents.
1122(d)(4)(v) The Servicer's records regarding the receivables
agree with the Servicer's records with respect
to an obligor's unpaid principal balance.
1122(d)(4)(vi) Changes with respect to the terms or status of
an obligor's account (e.g., loan modifications
or re-agings) are made, reviewed and approved by
authorized personnel in accordance with the
transaction agreements and related pool asset
documents.
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g.,
modifications and repossessions, as applicable)
are initiated, conducted and concluded in
accordance with the timeframes or other
requirements established by the transaction
agreements.
1122(d)(4)(viii) Records documenting collection efforts are
maintained during the period an Account is
delinquent in accordance with the transaction
agreements. Such records are maintained on at
least a monthly basis, or such other period
specified in the transaction agreements, and
describe the entity's activities in monitoring
delinquent Accounts including, for example,
phone calls, letters and payment rescheduling
plans in cases where delinquency is deemed
temporary (e.g., illness or unemployment).
1122(d)(4)(ix) Adjustments to interest rates or rates of return
for Accounts with variable rates are computed
based on the related Account documents.
1122(d)(4)(x) Regarding any funds held in trust for an obligor
(such as escrow accounts): (A) such funds are
analyzed, in accordance with the obligor's
Account documents, on at least an annual basis,
or such other period specified in the
transaction agreements; (B) interest on such
funds is paid, or credited, to obligors in
accordance with applicable Account documents and
state laws; and (C) such funds are returned to
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* Only with respect to the computer files or microfiche lists
held by the Indenture Trustee which relate to the pool assets.
B-3
SERVICING CRITERIA
APPLICABLE
SERVICING
REFERENCE CRITERIA CRITERIA
--------- -------- ----------
the obligor within 30 calendar days of full
repayment of the related Accounts, or such other
number of days specified in the transaction
agreements.
1122(d)(4)(xi) Payments made on behalf of an obligor (such as
tax or insurance payments) are made on or before
the related penalty or expiration dates, as
indicated on the appropriate bills or notices
for such payments, provided that such support
has been received by the servicer at least 30
calendar days prior to these dates, or such
other number of days specified in the
transaction agreements.
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are
posted within two business days to the obligor's
records maintained by the servicer, or such
other number of days specified in the
transaction agreements.
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible
accounts are recognized and recorded in
accordance with the transaction agreements.
1122(d)(4)(xv) Any external enhancement or other support,
identified in Item 1114(a)(1) through (3) or
Item 1115 of Regulation AB, is maintained as set
forth in the transaction agreements.
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Indenture Trustee
Date:
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By:
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Name:
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Title:
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B-4
Exhibit C
FORM OF
ADVANTA BUSINESS CARD MASTER TRUST
INDENTURE TRUSTEE'S CERTIFICATE
[____________] [___], 20[__]
Reference is hereby made to the MASTER INDENTURE, dated as of August 1,
2000 (as amended, the "Indenture"), by and between WILMINGTON TRUST COMPANY, as
owner trustee (the "Owner Trustee") of ADVANTA BUSINESS CARD MASTER TRUST, a
common law trust organized under the laws of the state of Delaware (the
"Issuer") and DEUTSCHE BANK TRUST COMPANY AMERICAS, a banking corporation
organized and existing under the laws of the State of New York (formerly known
as Bankers Trust Company), as indenture trustee (the "Indenture Trustee").
In connection with transactions contemplated by a Terms Agreement, dated as
of [____________] [____], 20[__], incorporating an Underwriting Agreement, dated
as of [____________] [____], 20[__] (together, the "Underwriting Agreement"), by
and among the underwriter (the "Underwriter"), Advanta Business Receivables
Corp. (the "Transferor") and Advanta Bank Corp., a Utah Industrial bank (the
"Servicer"), relating to the sale by the Issuer to the Underwriter of
$[______________] in aggregate principal amount of Class [__](20[__]- [____])
Notes (the "Class [__](20[__]- [____]) Notes"), the undersigned, an authorized
officer of the Indenture Trustee, hereby certifies the following:
1. The information provided by the Indenture Trustee in the prospectus,
dated [____________] [____], 20[__] (the "Initial Base Prospectus"), relating to
the offering of the notes of the Issuer in the form filed with the Securities
and Exchange Commission (the "Commission") pursuant to Rule 424(b) of the
General Rules and Regulations (the "Rules and Regulations") under the Securities
Act of 1933, as amended (the "Securities Act"), as excerpted in Schedule A
hereto, is true and accurate in all material respects.
2. The information provided by the Indenture Trustee in the final
prospectus, dated [____________] [____], 20[__] (the "Final Base Prospectus"),
relating to the offering of the notes of the Issuer in the form filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations under the
Securities Act, as excerpted in Schedule B hereto, is true and accurate in all
material respects.
3. There are no legal proceedings pending or known to be contemplated
against the Indenture Trustee or against any property of the Indenture Trustee,
that would be material to security holders of the Class [__](20[____]- [____])
Notes.
4. There are no governmental proceedings pending or known to be
contemplated against the Indenture Trustee or against any property of the
Indenture Trustee, that would be material to security holders of the Class
[__](20[____]- [____]) Notes.
5. There are no affiliations that would be material to security holders of
the Class [__](20[__]- [___]) Notes with any of the following:
F-1
(a) Advanta Business Receivables Corp.;
(b) Wilmington Trust Company;
(c) Advanta Bank Corp.[;]/[; and
(d) any enhancement or support provider.](1)
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(1) If applicable, the Transferor shall inform the Indenture Trustee of the
identity of any enhancement or support provider; otherwise (d) is deleted.
F-2
IN WITNESS WHEREOF, I have executed this certificate as of the date
hereinabove set forth.
DEUTSCHE BANK TRUST COMPANY
AMERICAS
By:
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Name:
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Title:
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F-3
Schedule A
1. Page [____] of Initial Base Prospectus
[DESCRIPTION OF DEUTSCHE BANK TRUST COMPANY AMERICAS]
2. Page [____] of Initial Base Prospectus
[DESCRIPTION OF DEUTSCHE BANK TRUST COMPANY AMERICAS]
F-4
Schedule B
1. Page [____] of Final Base Prospectus
[DESCRIPTION OF DEUTSCHE BANK TRUST COMPANY AMERICAS]
2. Page [____] of Final Base Prospectus
[DESCRIPTION OF DEUTSCHE BANK TRUST COMPANY AMERICAS]
F-5