Exhibit 4.2
[EXECUTION COPY]
ADVANTA BUSINESS CARD MASTER TRUST
AMENDMENT NO. 1
TO THE
TRUST AGREEMENT
THIS AMENDMENT NO. 1 TO THE TRUST AGREEMENT, dated as of May 9, 2006
(this "Amendment"), is by and between ADVANTA BUSINESS RECEIVABLES CORP., a
Nevada corporation, as Transferor, and WILMINGTON TRUST COMPANY, a Delaware
banking corporation, as Owner Trustee of the ADVANTA BUSINESS CARD MASTER TRUST.
WHEREAS, the Transferor and the Owner Trustee have executed that
certain Trust Agreement, dated as of August 1, 2000 (as the same may be amended,
supplemented or otherwise modified and in effect from time to time, the "Trust
Agreement"); and
WHEREAS, the Transferor and the Owner Trustee wish to amend the Trust
Agreement 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 Trust Agreement as follows:
SECTION 1. Amendment of Section. 1.01. Section 1.01 of the Trust
Agreement is hereby amended by adding the following definitions in the
appropriate alphabetical order:
"Regulation AB" shall mean subpart 229.1100 - Asset Backed Securities
(Regulations 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 XI. The Trust Agreement is hereby
amended by adding the following new Article XI after Article X of the Trust
Agreement:
ARTICLE XI
Section 11.01 Intent of the Parties; Reasonableness.
The Transferor and the Owner Trustee acknowledge and agree that the
purpose of this Article XI 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 Owner Trustee agrees to
cooperate in good faith with any reasonable request by the Transferor for
information regarding the Owner Trustee which is required in order to
enable the Transferor to comply with the provisions of Regulation AB,
including, without limitation, Items 1103(a)(1), 1109(a), 1109(b), 1117 and
1119 of Regulation AB as it relates to the Owner Trustee or to the Owner
Trustee's obligations under this Agreement.
Section 11.02 Information to Be Provided by the Owner Trustee.
For so long as the Transferor is required to report under Regulation
AB, the Owner Trustee shall, as promptly as practicable, notify the
Transferor, in writing, of: (i) the commencement of, a material development
in or, if applicable, the termination of, any and all legal proceedings
against the Owner Trustee or any and all proceedings of which any property
of the Owner Trustee is the subject, that is material to the noteholders;
and (ii) any such proceedings known to be contemplated by governmental
authorities. The Owner Trustee shall also notify the Transferor, in
writing, as promptly as practicable following notice to or discovery by a
Responsible Officer of the Owner Trustee of any material changes to
proceedings described in the preceding sentence. In addition, the Owner
Trustee will furnish to the Transferor, in writing, the necessary
disclosure regarding the Owner Trustee describing such proceedings required
to be disclosed under Item 1117 of Regulation AB, for inclusion in reports
filed by or on behalf of the Transferor pursuant to the Exchange Act.
For so long as the Transferor is required to report under Regulation
AB, the Owner Trustee shall (i) on or before the fifth Business Day of each
January, April, July and October, or as otherwise requested by the
Transferor, provide to the Transferor such information regarding the Owner
Trustee as is required for the purpose of compliance with Items 1109(a),
1109(b) and 1119 of Regulation AB; provided, however, the Owner Trustee
shall not be required to provide such information in the event that there
has been no change to the information previously provided by the Owner
Trustee to the Transferor; and (ii) as promptly as practicable following
notice to or discovery by a Responsible Officer of the Owner Trustee of any
changes to such information, provide to the Transferor, in writing, such
updated information. Such information shall include, at a minimum:
(A) the Owner Trustee's name and form of organization;
(B) a description of the extent to which the Owner Trustee has had
prior experience serving as a trustee for asset-backed securities
transactions involving credit card receivables; and
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(C) a description of any affiliation between the Owner Trustee and any
of the following parties to a Securitization Transaction, as such parties
are identified to the Owner Trustee by the Transferor in writing in advance
of such Securitization Transaction:
(1) the sponsor;
(2) any depositor;
(3) the issuing entity;
(4) any servicer;
(5) any other trustee;
(6) any originator;
(7) any significant obligor;
(8) any enhancement or support provider; and
(9) any other material party related to any Securitization
Transaction.
In addition, the Owner Trustee shall provide a description of whether
there is, and if so the general character of, any business relationship,
agreement, arrangement, transaction or understanding between the Owner
Trustee and any above-listed party that is entered into outside the
ordinary course of business or is on terms other than would be obtained in
an arm's length transaction with an unrelated third party, apart from the
Securitization Transactions, that currently exists or that existed during
the past two years and that is material to an investor's understanding of
the asset-backed securities.
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 from the Transferor to the effect that the Transferor
reasonably believes that the terms of this Amendment will not materially and
adversely affect the interest of any Noteholder or cause the Trust to be to fail
to be treated as a "qualified special purpose entity" as defined in FAS 140 (as
successor statement to FASB Statement No. 125);
(c) receipt by the Owner Trustee and the Indenture Trustee of an
opinion of Counsel addressed to the Owner Trustee and the Indenture Trustee to
the effect that the terms of this Amendment will not cause the Trust to be
classified as an association (or a publicly traded partnership) taxable as a
corporation for federal income tax purposes; and
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(d) 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. Trust Agreement in Full Force and Effects as Amended.
Except as specifically amended or waived hereby, all of the terms and conditions
of the Trust Agreement shall remain in full force and effect. All references to
the Trust Agreement in any document or instrument shall be deemed to mean the
Trust Agreement as amended by this Amendment. This Amendment shall not
constitute a novation of the Trust Agreement, but shall constitute an amendment
thereof. The parties hereto agree to be bound by the terms and obligations of
the Trust Agreement, as amended by this Amendment, as though the terms and
obligations of the Trust Agreement 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 DELAWARE 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 meaning assigned to such
terms in the Trust Agreement. All Sections or subsections references herein
shall mean Sections or subsections of the Trust Agreement, except as otherwise
provided herein.
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IN WITNESS WHEREOF, the Transferor and the Owner Trustee have caused
this Amendment to be duly executed by their respective officers as of the day
and year first above written.
ADVANTA BUSINESS RECEIVABLES CORP.,
Transferor
By: /s/ Michael Coco
------------------------------------
Name: Michael Coco
Title: President
WILMINGTON TRUST COMPANY, not in its
individual capacity, but solely as
Owner Trustee
By: /s/ Michael McCarthy
------------------------------------
Name: Michael McCarthy
Title: Assistant Vice President
The Indenture Trustee hereby consents to
the terms and conditions of the
foregoing amendment to which this
consent is attached and the execution
thereof by the Transferor and the Owner
Trustee.
DEUTSCHE BANK TRUST COMPANY AMERICAS,
not in its individual capacity but
solely as Indenture Trustee
By: /s/ Jenna Kaufman
------------------------------------
Name: JENNA KAUFMAN
Title: VICE PRESIDENT
By: /s/ Louis Bodi
------------------------------------
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
------------------------------------
Name: Michael Coco
Title: President