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Exhibit 4.1
OH&S DRAFT
8/10/99
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MASTER FACILITY AGREEMENT
by and among
ADVANTA BUSINESS SERVICES CORP.,
as the Servicer,
ADVANTA LEASING RECEIVABLES CORP. VIII,
and
ADVANTA LEASING RECEIVABLES CORP. IX,
as the Obligors
And
Bankers Trust Company,
as Trustee
Dated as of August __, 1999
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ARTICLE I
DEFINITIONS
Section 1.01. Definitions................................................................................. 2
Section 1.02. Acts of Holders............................................................................. 18
Section 1.03. Notice to Holders: Waiver................................................................... 19
Section 1.04. Alternate Payment and Notice Provisions..................................................... 20
Section 1.05. Conflict with Trust Indenture Act........................................................... 20
Section 1.06. Effect of Headings and Table of Contents.................................................... 20
Section 1.07. Successors and Assigns...................................................................... 20
Section 1.08. Benefits of Master Agreement................................................................ 20
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 2.01. Representations, Warranties and Covenants of Obligors....................................... 21
Section 2.02. Representations, Warranties and Covenants of Servicer....................................... 23
ARTICLE III
PLEDGING THE TRUST ESTATE
Section 3.01. Series Trust Estates........................................................................ 25
Section 3.02. Preservation of Series Collateral........................................................... 26
Section 3.03. Waiver of Stay or Extension Laws; Marshalling of Assets..................................... 26
Section 3.04. Noninterference, Etc........................................................................ 26
Section 3.05. Obligor Changes............................................................................. 26
Section 3.06. Limited Recourse to Obligors................................................................ 27
Section 3.07. Authorization of Actions to be Taken by the Trustee......................................... 27
Section 3.08. Termination of Security Interests........................................................... 27
Section 3.09. Filing; Maintenance of Contract Files....................................................... 28
Section 3.10. Costs and Expenses.......................................................................... 28
ARTICLE IV
NOTE FORMS
Section 4.01. Forms Generally............................................................................. 28
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Section 4.02. Form of Trustee's Certificate of Authentication............................................. 29
Section 4.03. Securities Legend........................................................................... 29
ARTICLE V
THE NOTES
Section 5.01. Amount Limited; Issuable in Series.......................................................... 30
Section 5.02. Execution, Authentication, Delivery and Dating.............................................. 30
Section 5.03. Temporary Notes............................................................................. 31
Section 5.04. Registration, Registration of Transfer and Exchange, Transfer Restrictions.................. 31
Section 5.05. Mutilated, Destroyed, Lost and Stolen Notes................................................. 33
Section 5.06. Final Distribution.......................................................................... 33
Section 5.07. Persons Deemed Owners....................................................................... 35
Section 5.08. Cancellation................................................................................ 35
Section 5.09. Book-Entry Notes............................................................................ 35
Section 5.10. Notices to Clearing Agency.................................................................. 36
Section 5.11. Definitive Notes............................................................................ 36
ARTICLE VI
ADMINISTRATION AND SERVICING OF THE CONTRACTS AND EQUIPMENT
Section 6.01. Appointment of Servicer: Responsibilities of Servicer....................................... 37
Section 6.02. Standard of Care............................................................................ 39
Section 6.03. Credit and Collection Policy................................................................ 39
Section 6.04. Maintenance of Interest in the Trust Estate................................................. 39
Section 6.05. Servicing Compensation; Payment of Certain Expenses by Servicer............................. 39
Section 6.06. Servicer's Certificate...................................................................... 40
Section 6.07. Annual Statement as to Compliance........................................................... 40
Section 6.08. Financial Statements and Independent Accountant's Servicing Certificate Review.............. 40
Section 6.09. Access to Certain Documentation and Information Regarding the Pledged Property.............. 41
Section 6.10. Other Necessary Data........................................................................ 42
Section 6.11. Release of Contracts........................................................................ 42
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Section 6.12. Removal Related to Upgrades or Trade-Ins.................................................... 43
Section 6.13. Notification to Noteholders of Defaults and Events of Default............................... 43
Section 6.14. Security Deposits........................................................................... 43
Section 6.15. Removal of Nonconforming Pledged Property................................................... 44
ARTICLE VII
ACCOUNTS
Section 7.01. Establishment of Series Accounts........................................................... 44
Section 7.02. Investment of Funds in the Series Accounts.................................................. 45
Section 8.01. Liability of Servicer; Indemnities.......................................................... 45
Section 8.02. Merger, Consolidation, or Assumption of the Obligations of Servicer......................... 46
Section 8.03. Limitation on Liability of Servicer and Others.............................................. 46
Section 8.04. Servicer Not to Resign...................................................................... 47
Section 8.05. Reserved.................................................................................... 47
Section 8.06. Indemnities of the Obligors................................................................. 47
Section 8.07. Limitation on Liability of the Obligors..................................................... 48
ARTICLE IX
SERVICER TERMINATION
Section 9.01. Events of Servicer Termination.............................................................. 48
Section 9.02. Trustee to Act; Appointment of Successor.................................................... 49
Section 9.03. Notification to Noteholders................................................................. 51
Section 9.04. Waiver of Past Events of Servicer Termination............................................... 51
Section 9.05. Effects of Termination of Servicer.......................................................... 51
ARTICLE X
EVENTS OF DEFAULT AND REMEDIES
Section 10.01. Events of Default........................................................................... 52
Section 10.02. Collection of Indebtedness and Suits for Enforcement by Trustee: Authority
of Controlling Party........................................................................ 52
Section 10.03. Limitation on Suits......................................................................... 54
Section 10.04. Unconditional Right of Holders to Receive Principal and Interest............................ 55
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Section 10.05. Restoration of Rights and Remedies.......................................................... 55
Section 10.06. Rights and Remedies Cumulative.............................................................. 55
Section 10.07. Delay or Omission Not Waiver................................................................ 55
Section 10.08. Control by Holders.......................................................................... 56
Section 10.09. Waiver of Past Defaults..................................................................... 56
Section 10.10. Undertaking for Costs....................................................................... 56
Section 10.11. Action on Notes............................................................................. 57
ARTICLE XI
THE TRUSTEE
Section 11.01. Certain Duties and Responsibilities......................................................... 57
Section 11.02. Notice of Defaults.......................................................................... 59
Section 11.03. Certain Rights of Trustee................................................................... 59
Section 11.04. Not Responsible for Recitals or Issuance of Notes........................................... 60
Section 11.05. May Hold Notes.............................................................................. 60
Section 11.06. Compensation and Indemnity.................................................................. 60
Section 11.07. Disqualification; Conflicting Interests..................................................... 61
Section 11.08. Corporate Trustee Required; Eligibility..................................................... 61
Section 11.09. Resignation and Removal, Appointment of Successor........................................... 61
Section 11.10. Acceptance of Appointment by Successor...................................................... 62
Section 11.11. Merger, Conversion, Consolidation or Succession to Business................................. 63
Section 11.12. Preferential Collection of Claims Against Obligors.......................................... 63
Section 11.13. Appointment of Authenticating Agent......................................................... 63
Section 11.14. Paying Agent................................................................................ 65
Section 11.15. Appointment of Co-Trustee or Separate Trustee............................................... 66
ARTICLE XII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND OBLIGORS
Section 12.01. Obligors to Furnish Trustee Names and Addresses of Holders.................................. 67
Section 12.02. Preservation of Information; Communications to Holders...................................... 68
Section 12.03. Reports by Trustee.......................................................................... 68
Section 12.04. Reports by Obligors......................................................................... 68
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ARTICLE XIII
MASTER AGREEMENT SUPPLEMENTS
Section 13.01. Supplements Affecting All Series, or the Master Agreement Generally......................... 69
Section 13.02. Supplements Authorizing a Series of Notes................................................... 72
Section 13.03. Execution of Master Agreement Supplements................................................... 73
Section 13.04. Effect of Master Agreement Supplements...................................................... 73
Section 13.05. Reference in Notes to Master Agreement Supplements.......................................... 73
ARTICLE XIV
COVENANTS
Section 14.01. Payment of Principal and Interest........................................................... 73
Section 14.02. Maintenance of Non-U.S. Office or Agency.................................................... 73
Section 14.03. Consolidation, Merger, Sale of Assets....................................................... 74
Section 14.04. Negative Covenants.......................................................................... 75
Section 14.05. Performance of Obligations: Servicing of each Series Trust Estate........................... 76
Section 14.06. Money for Note Payments to Be Held in Trust................................................. 77
Section 14.07. Corporate Existence; Separate Corporate Existence........................................... 78
Section 14.08. Payment of Taxes and Other Claims........................................................... 80
Section 14.09. Amendment of Organizational Documents....................................................... 80
Section 14.10. Rule 144A Information....................................................................... 81
Section 14.11. Further Instruments and Acts................................................................ 81
Section 14.12. Compliance with Laws........................................................................ 81
Section 14.13. Income Tax Characterization................................................................. 81
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.01. Counterparts................................................................................ 81
Section 15.02. Governing Law............................................................................... 81
Section 15.03. Notices..................................................................................... 82
Section 15.04. Severability of Provisions.................................................................. 82
Section 15.05. Binding Effect.............................................................................. 82
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Section 15.06. Exhibits.................................................................................... 82
Section 15.07. Calculations................................................................................ 82
Section 15.08. Further Assurances.......................................................................... 83
Section 15.09. Nonpetition Covenant........................................................................ 83
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This MASTER FACILITY AGREEMENT, dated as of August __, 1999, by and
among Advanta Business Services Corp., a Delaware corporation, as Servicer,
Advanta Leasing Receivables Corp. VIII, a Nevada corporation, and Advanta
Leasing Receivables Corp. IX, a Nevada corporation, as the Obligors and Bankers
Trust Company, a New York banking corporation, as Trustee.
WITNESSETH:
In consideration of the mutual agreements herein contained and of other
good and valuable consideration the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Whenever used in this Master Agreement, the
following words and phrases shall have the following meanings:
(i) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(ii) all other terms used herein which are defined in the
Trust Indenture Act (as hereinafter defined), either directly or by
reference therein, have the meanings assigned to them therein;
(iii) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the date of
such computation; and
(iv) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Master Agreement as a whole and
not to any particular Article, Section or other subdivision, "or" is
not exclusive and "including" means including without limitations
Act. When used with respect to any Holder, has the meaning specified in
Section 1.02.
Actuarial Method. The method of allocating a Scheduled Payment with
respect to any Contract between principal and interest, pursuant to which the
portion of such payment that is allocated to interest is the product of (a) the
Payment Interval Adjusted Applicable Discount Rate with respect to such Contract
multiplied by (b) the applicable Contract Principal Balance (before giving
effect to such principal payment).
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Advance Payment. With respect to any Contract, any Scheduled Payment or
a portion thereof made by or on behalf of a User which does not become due until
a subsequent Collection Period. Advance Payments shall be applied as
"Collections" with respect to the Collection Period(s) to which such Advance
Payment relates.
Adverse Claim. A lien, security interest, charge or encumbrance, or
other right or claim in, of or on any Person's assets or properties in favor of
any other Person.
Affiliate. With respect to any Person, any other Person directly or
indirectly controlling, controlled by or under direct or indirect common control
with such specified Person. For the purposes of this definition, "control," when
used with respect to any specified Person, means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
Applicable Discount Rate. With respect to any Contract has the meaning
set forth in the related Series Supplement.
Authenticating Agent. Any Person authorized by the Trustee to act on
behalf of the Trustee to authenticate Notes.
Authorized Officer. With respect to any Obligor, any president, senior
vice president, vice president, treasurer or the chief financial officer of such
Obligor.
Bearer Notes. Has the meaning specified in Section 4.01.
Book-Entry Notes. Notes registered in the name of a Clearing Agency, or
its nominee as described in Section 5.09.
Booked Residual Value. With respect to any Contract on any date of
determination, the residual value of the Equipment subject to such Contract, as
reflected in the Servicer's servicing system.
Broker. The Person (including any broker, vendor or other Person, but
excluding the Originator) that originally leases an item of Equipment to a User
pursuant to a Contract between the Originator and the User of such Equipment, or
any Person from whom the Originator purchased a Contract in respect of which the
Originator is not a party.
Broker Agreement. Any agreement between the Originator and a Broker
pursuant to which the Originator has acquired Contracts.
Business Day. Any day other than a Saturday, a Sunday or a day on which
banking institutions in New York, New York, Philadelphia, Pennsylvania,
Voorhees, New Jersey or Reno, Nevada are authorized or obligated by law,
executive order or governmental decree to be closed.
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Calculation Date. The last day of a Collection Period. Amounts
calculated from Calculation Date balances shall be calculated from such balances
as of the close of business on the Calculation Date.
Cedelbank. Cedelbank, societe anonyme, incorporated under the laws of
Luxembourg.
Class. With respect to any Series, any one of the classes of such Notes
as designated in the Series Supplement for such Series.
Clearing Agency. The Depository Trust Company, or any other
organization registered as a "clearing agency" pursuant to Section 17A of the
Securities Exchange Act of 1934, as amended.
Clearing Agency Participant. A broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency effects
book entry transfers and pledges of securities deposited with the Clearing
Agency.
Closing Date. August __, 1999.
Code. The Internal Revenue Code of 1986, as amended from time to time,
and Treasury Regulations promulgated thereunder.
Collection Period. With respect to any Payment Date, the immediately
preceding calendar month; provided that if, with respect to any Series, the
Cut-Off Date applicable thereto is a day other than the first day of a calendar
month, then the initial Collection Period with respect to such Series shall be
the period commencing on such Cut-Off Date and ending, at the end of the
calendar month in which such Cut-Off Date occurs.
Collections. With respect to a Series and any Collection Period, all
collections and proceeds of the Contracts and the Related Security, including
without limitation, Scheduled Payments, Prepayments, Offset Amounts, Residual
Receipts and any other Recoveries, Prepayment Amounts, Investment Earnings, and
Insurance Proceeds received by the Servicer, the Trustee or the Obligors, in
each case, during such Collection Period; provided that "Collections" shall not
include (i) Advance Payments until (and then only to the extent that) such
amounts are required to be deposited in the applicable Series Account for
distribution to the related Noteholders in accordance with Section 7.02, and
(ii) Servicing Charges; and provided further that any amounts paid under any
Series Support in reduction of the principal amount of any Note, any interest
thereon or any other amount in connection therewith shall not constitute
Collections.
Commission. The Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended,
or, if at anytime after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
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Computer Tape. Collectively, the computer tapes generated by the
Originator which provide information relating to the Contracts and which were,
or will be, used by the Originator in selecting the Contracts sold to the
Obligors pursuant to the Master Sale Agreement and Sale Agreement Supplement.
Contract Balance Remaining. With respect to any Contract, as of any
date, the aggregate (undiscounted) amount of all unpaid Scheduled Payments due
under such Contract.
Contract. Each of the agreements conveyed by the Originator to an
Obligor pursuant to the Master Sale Agreement and subsequently pledged by such
Obligor to the Trustee pursuant to this Master Agreement or a Series Supplement,
pursuant to which the applicable originator thereof leases specified Equipment
to, or makes loans to or otherwise finances equipment for a User and, with
respect to a Series, which are identified on the List of Contracts delivered to
the Servicer on or about the date of issuance of such Series.
Contract File. With respect to each Contract, the following documents:
(i) The executed original counterparts of the Contract;
(ii) A copy of any related Broker Agreement;
(iii) Copies of all documents (which may be in microfiche form
or on the Servicer's computerized information system), if any, that the
Originator or the Servicer keeps on file for the benefit of the
Originator in accordance with the Originator's or Servicer's customary
procedures; and
(iv) Copies (together with all amendments, assignments, and
continuations thereof and including evidence of filings with the
appropriate office) of all UCC financing statements filed with respect
to the Contracts, identifying the User as debtor and the Originator as
secured party, if applicable.
Contract Principal. With respect to any Contract for any Collection
Period, an amount equal to the excess of (i) the Scheduled Payment due on such
Contract during such Collection Period over (ii) the product of (x) the Contract
Principal Balance as of the opening of business on the first day of such
Collection Period and (y) one-twelfth of the Applicable Discount Rate or Payment
Interval Adjusted Discount Rate, as applicable.
Contract Principal Balance. As to each Series, the amount described in
the Series Supplement.
Corporate Trust Office. The principal office of the Trustee at which at
any particular time its corporate trust business shall be administered, which
office at the date of this Master Agreement is specified in Section 15.03
hereof.
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Coupons. Any interest or other coupons attached to a Note.
Credit and Collection Policy. The credit and collection policies and
practices of the Servicer as the same may be modified from time to time in
accordance with the terms of this Master Agreement.
Cut-Off Date. With respect to any Series, the "Cut-Off Date" as set
forth in the related Series Supplement.
Default. Any occurrence that is, or with notice or the lapse of time or
both would become, an Event of Default.
Defaulted Contract: Any Contract (a)(i) that is a Delinquent Contract
with respect to which a User is contractually delinquent for 121 days or more
(without regard to any Servicer Advances or the application of any Security
Deposit) or (ii) as to which the Servicer has determined in accordance with its
customary servicing practices that eventual payment of the remaining Scheduled
Payments thereunder is unlikely or (iii) that has been rejected by or on behalf
of the User in a bankruptcy proceeding.
Definitive Notes. Has the meaning specified in Section 5.09 hereof.
Delinquent Contract. A Contract as to which any payment, or part
thereof, remains unpaid more than 60 days after the original due date for such
payment.
Depositaries. Means the Person(s), if any, specified in the applicable
Supplement, in its capacity as depositary for the respective accounts of any
Clearing Agency or any Foreign Clearing Agencies.
Depository Agreement. Means, if applicable with respect to any Series,
the agreement among the Obligors, the Trustee and a Clearing Agency, or as
otherwise provided in the related Series Supplement.
Determination Date. With respect to any Series as set forth in the
related Series Supplement.
Dollars or $. The lawful money of the United States.
Eligible Investments. Any instrument, security or security entitlement
evidencing any of the following:
(a) marketable obligations of the United States of America which are
backed by the full faith and credit of the United States of America;
(b) marketable obligations directly and fully guaranteed by the full
faith and credit of the United States of America;
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(c) bankers' acceptances and certificates of deposit and other
interest-bearing obligations denominated in Dollars and issued by any bank with
capital, surplus and undivided profits aggregating at least $100,000,000, the
short-term securities of which are rated "A-1" by S&P, "P-1" by Moody's and
"F-1" by Fitch;
(d) repurchase obligations for underlying securities of the types
described in clauses (a), (b) and (c) above entered into with any bank of the
type described in clause (c) above;
(e) commercial paper rated at least "A-1+" by S&P and "P-1" by Moody's;
(f) freely redeemable shares in money market funds (including funds for
which the Trustee, any Noteholder or any affiliates of either of the foregoing
may act as sponsor or advisor or for which any of the foregoing Persons may
receive fee income) which invest solely in obligations, bankers' acceptances,
certificates of deposit, repurchase agreements and commercial paper of the types
described in clauses (a) through (e), bankers' acceptances, certificates of
deposit, repurchase agreements or commercial paper set forth in such clauses,
which money market funds are rated at least "AAm" or "AAm-g" by S&P and "Aa1" by
Moody's; and
(g) 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 domestic branches of any foreign bank) and subject to
supervision and examination by federal or state banking or depository
institution authorities; provided that at the time such investment, or the
commitment to make such investment, is entered into, the short-term debt rating
of such depository institution or trust company shall be at least "A-1" by S&P
and "P-1" by Moody's.
Notwithstanding anything set forth in clauses (a) through (g) above,
any Eligible Investment must mature no later than the Business Day prior to the
next Payment Date.
Eligible Contract. With respect to any Series, as defined in the
related Series Supplement.
Equipment. The equipment leased to or sold to a User or otherwise
financed pursuant to any Contract and any security interest in such equipment
and the Residual Interest therein or derived therefrom.
Euroclear Operator. Means Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System.
Event of Default. Has the meaning specified in Section 10.01.
Event of Servicer Termination. An Event described in Section 9.01
hereof.
Exchange Act. Means the Securities Exchange Act of 1934, as amended.
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Final Date. With respect to any Series, the date on which all amounts
due to the related Series Secured Parties have been indefeasibly paid in full.
Fitch. Means Fitch IBCA, Inc.
Foreign Clearing Agency. Means Cedelbank and the Euroclear Operator.
Governmental Authority. The United States of America, any State or
other political subdivision of either of the foregoing and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
Holder or Noteholder. Means (i), with respect to a Book-Entry Note, the
Person who is the owner of such Book-Entry Note, as reflected on the books of
the Clearing Agency, or on the books of a Person maintaining an account with
such Clearing Agency (directly or as an indirect participant, in accordance with
the rules of such Clearing Agency) and (ii) otherwise, the Registered Holder.
Increased Servicer Fee. Has the meaning ascribed to such term in
Section 9.02 hereof.
Increased Servicer Fee Differential. Has the meaning ascribed to such
term in Section 9.02 hereof.
Indebtedness. Means, with respect to any Person at any time, (a)
indebtedness or liability of such Person for borrowed money whether or not
evidenced by bonds, debentures, notes or other instruments, or for the deferred
purchase price of property or services (excluding trade obligations and accrued
expenses incurred in the ordinary course of business); (b) obligations of such
Person as lessee under leases which should have been or should be, in accordance
with generally accepted accounting principles, recorded as capital leases; (c)
current liabilities of such Person in respect of unfunded vested benefits under
plans covered by Title IV of ERISA; (d) obligations issued for or liabilities
incurred on the account of such Person; (e) obligations or liabilities of such
Person arising under acceptance facilities, including obligations of such Person
under any guarantees, endorsements (other than for collection or deposit in the
ordinary course of business) and other contingent obligations to purchase, to
provide funds for payment, to supply funds to invest in any Person or otherwise
to assure a creditor against loss; (f) obligations of such Person secured by any
lien on property or assets of such Person, whether or not the obligations have
been assumed by such Person; or (g) obligations of such Person under any
interest rate or currency exchange agreement.
Indemnified Amounts. Has the meaning set forth in subsection 8.01(b)
hereof.
Indemnified Party. Has the meaning set forth in subsection 8.01(b)
hereof.
Independent Accountant. A firm of nationally recognized independent
certified public accountants with respect to Advanta Leasing Holding Corp.,
Advanta Corp., Advanta Business
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Services Corp., the Originator, the Servicer (if other than Advanta Business
Services Corp.), and/or the Obligors, as applicable, within the meaning of the
Securities Act.
Initial Unpaid Amounts. Means with respect to a Contract, the excess of
the aggregate amount of all Scheduled Payments due prior to the related Cut-Off
Date over the aggregate of all Scheduled Payments made prior to the related
Cut-Off Date with respect to such Contract or Loan.
Insolvency Event. Means, with respect to a specified Person, either of
the following events:
(i) the commencement of a petition seeking entry of a decree
or order for relief by a court having, jurisdiction in the premises in
respect of such Person or any substantial part of such Person's assets
in an involuntary case under any applicable Federal or state
bankruptcy, insolvency, receivership, conservatorship or other similar
law now or hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of such
Person or for such Person or any substantial part of such Person's
assets, or ordering the winding-up or liquidation of such Person's
affairs, and such petition shall remain unstayed and in effect for a
period of 60 consecutive days or immediately upon entry of such decree
or order; or
(ii) the commencement by such Person of a voluntary case under
any applicable Federal or state bankruptcy, insolvency, receivership,
conservatorship or other similar law now or hereafter in effect, or the
consent by such Person to the entry of an order for relief in an
involuntary case under any such law, or the consent by such Person to
the appointment or taking possession by a receiver, conservator,
liquidator, assignee, custodian, trustee, sequestrator or similar
official of such Person for such Person or any substantial part of such
Person's assets, or the making, by such Person of any general
assignment for the benefit of creditors, or the failure by such Person
generally to pay its debts as such debts become due, or the admission
in writing by such Person of its inability generally to pay its debts
as they become due or the taking of action by such Person in
furtherance of any of the foregoing.
Insurance Policy. With respect to an item of Equipment and the related
Contract, any insurance policy or similar agreement required to be maintained by
the User pursuant to such Contract that covers physical damage to the Equipment
(including, policies procured by the Originator or the Servicer on behalf of the
User) or covering any liabilities arising from the Equipment or the use thereof
by the User.
Insurance Proceeds. With respect to an item of Equipment and the
related Contract, any amount received during a Collection Period pursuant to an
Insurance Policy issued with respect to such Equipment and the related Contract.
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Investment Earnings. Any income or earnings received from the
investment of funds from time to time on deposit in or credited to any Series
Account in accordance with a Series Supplement, net of any investment expenses
and losses on any such investments.
Lien. Any security interest, mortgage, deed of trust, lien (statutory
or otherwise), charge, pledge, equity, hypothecation, assignment, deposit
arrangement, encumbrance, preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever, including, without
limitations any conditional sale or other title retention agreement, any
financing lease having substantially the same economic effect as any of the
foregoing and the filing, of any financing statement under the UCC (other than
any such financing statement filed for informational purposes only) or
comparable law of any jurisdiction to evidence any of the foregoing.
List of Contracts. With respect to each Series the electronic list of
Contracts delivered to the Trustee and designating the Contracts pledged to
secure such Series. Each List of Contracts shall include for each Contract
listed thereon (a) a number identifying such Contract, (b) the Contract
Principal Balance, (c) the User, (d) the State in which the User's billing
address is located, (e) the scheduled maturity date of the Contract, (f) the
Scheduled Payment amount for such Contract, (g) the stated amount of the Booked
Residual Value if any, on such Contract, and (h) the Applicable Discount Rate or
the Payment Interval Adjusted Applicable Discount Rate, if applicable.
Majority Control Parties. Means those Series Controlling Parties for
the outstanding Series, the Outstanding Amounts of which represent, in the
aggregate, 66-2/3% or more of the aggregate Outstanding Amounts for all
outstanding Series.
Master Agreement. Means this Master Facility Agreement, as the same may
be amended, restated or otherwise modified from time to time.
Master Agreement Supplement. Means any Series Supplement or any other
document which amends or supplements this Master Agreement.
Master Sale Agreement. Means the Master Sale and Contribution
Agreement, dated as of August __, 1999, by and among the Originator and the
Obligors.
Maturity Date. When used with respect to any Note, means the date on
which the principal of such Note or an installment of principal becomes due and
payable as therein or herein provided, whether on the final scheduled Payment
Date or by declaration of acceleration, prepayment or otherwise,
Moody's. Moody's Investors Service, Inc.
Municipal Contract. Means a Contract under which the User is a state or
local Government or government agency.
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Non-Monthly Payment Contracts. Means any Contract that does not require
the User to make regularly scheduled monthly payments.
Note Register and Note Registrar. Have the respective meanings
specified in Section 5.04.
Noteholders' Agent. Means any Person designated by one or more
Noteholders to be their "agent."
Notes. Any Note authenticated and delivered under this Master Agreement
and a Series Supplement.
Obligors. Means Advanta Leasing Receivables Corp. VIII and Advanta
Leasing Receivables Corp. IX, the initial Obligors under this Master Agreement.
Obligors' Order or Obligors' Request. With respect to an Obligor, a
written request or order signed by such Obligor and, with respect to more than
one Obligor, a written request or order signed by all such Obligors and, in each
case, delivered to the Trustee.
Officer's Certificate. Means a certificate signed by an Authorized
Officer.
Offset Amount. The meaning ascribed to such term in Section 6.14
hereof.
Opinion of Counsel. A written opinion of counsel, who may be counsel
employed by the Servicer or the Originator or other counsel, in each case
acceptable to the named recipient thereof.
Organizational Documents. With respect to any Obligor, such Obligor's
articles of incorporation and bylaws.
Original Issue Date. Means, for any Series the date of original issue
of such Series of Notes, as specified in the related Series Supplement.
Original Servicer Fee Rate. With respect to any Series, the rate at
which the Servicer Fee is calculated, as specified on the related Series
Supplement.
Originator. Means Advanta Business Services Corp., its successors and
assigns.
Outstanding. When used with respect to Notes, means, as of the date of
determination, all Notes theretofore authenticated and delivered under this
Master Agreement except,
(i) Notes theretofore cancelled by the Note Registrar or
delivered to the Note Registrar for cancellation; and
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(ii) Notes for whose payment or prepayment money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent for the Holders of such Notes; and
(iii) Lost, destroyed or stolen notes in lieu of which other
Notes have been authenticated and delivered pursuant to Section 5.05
hereof, other than any such Notes in respect of which there shall have
been presented to the Trustee proof satisfactory to it that such Notes
are held by a bona fide purchaser in whose hands such Notes are valid
obligations of the Obligors;
provided, however, that any Notes which have been paid with proceeds of the
related Series Support shall continue to remain Outstanding for purposes of this
Master Agreement until the related Series Support Provider has been paid as
subrogee hereunder or reimbursed as evidenced by a written notice from the
related Series Support Provider delivered to the Trustee and the Servicer, and
the related Series Support Provider shall be deemed to be the Holder thereof to
the extent of any payments thereon made by the related Series Support Provider;
provided, further, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Notes have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or under
any related document, Notes owned by the Obligors, the Servicer, the Originator
or any Affiliate of any of the foregoing shall be disregarded and deemed not to
be Outstanding, except that, in determining, whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Notes that the Trustee knows to be so owned
shall be so disregarded. Notes so owned that have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Notes and that the
pledgee is not an Obligor, any other obligor upon the Notes, the Originator or
any Affiliate of any Obligor or of any of the foregoing Persons.
Outstanding Amount. Means, with respect to any Series, the aggregate
principal amount of all Notes of such Series which are Outstanding at the date
of determination after giving effect to all distributions of principal on such
date of determination.
Overdue Payment. Any Scheduled Payment or portion thereof due on a
Contract and not received during the Collection Period in which such Scheduled
Payment was due.
Paying Agent. Means the Paying Agent appointed pursuant to Section
11.14 hereof.
Payment Date. With respect to a Series, the date specified therefor in
the related Series Supplement.
Payment Interval. Means, with respect to any Contract, notwithstanding
the number of actual periodic payments in any calendar year (without regard to
the actual duration of such Contract or whether such payments are actually made
with respect to such Contract), 12.
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Payment Interval Adjusted Applicable Discount Rate. With respect to any
Contract, shall mean the Applicable Discount Rate of such Contract multiplied by
a fraction, the numerator of which is one and the denominator of which is the
Payment Interval of such Contract.
Person. Any legal person, including any individual, corporation,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization, Governmental Authority or any other entity.
Pledge. Means with respect to each Series, the pledge by the Obligors
of the related Series Trust Estate to the Trustee for the benefit of the
Noteholders of such Series in accordance with Section 3.01 hereof.
Pledged Property. With respect to any Series Trust Estate, the property
described as Pledged Property in the related Series Supplement.
Predecessor Note. Means every previous Note evidencing all or a portion
of the same debt as that evidenced by a particular Note; and, for the purposes
of this definition, any Note authenticated and delivered under Section 5.05 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Note shall be
deemed to evidence the same debt as the mutilated, destroyed, lost or stolen
Note.
Prepayment. With respect to a Collection Period and a Contract (except
a Defaulted Contract), the payment by the related User of all remaining
Scheduled Payments to become due on such Contract if the User has designated
such payment as a prepayment and the Servicer has consented to such prepayment.
Advance Payments and Residual Receipts are not "Prepayments."
Prepayment Amount. With respect to any Contract: (a) the Contract
Principal Balance of such Contract (without any deduction for any security
deposit paid by the related User, unless such security deposit has been applied
to the Contract Principal Balance pursuant to the Credit and Collection Policy
and deposited into the appropriate Series Account) as of the date of
reconveyance of such Contract to the related Obligor by the Trustee, plus (b)
the product of (i) the Contract Principal Balance as of the date of reconveyance
and (ii) one-twelfth of the Applicable Discount Rate, plus (c) the Booked
Residual Value for such Contract.
Principal Terms. With respect to any Series, (i) the name or
designation; (ii) the initial Outstanding Amount, the maximum Outstanding Amount
(or method for calculating such amounts); (iii) the interest rate (or method for
the determination thereof); (iv) the Payment Date or dates and the date or dates
from which interest shall accrue; (v) the method for allocating Collections to
Noteholders of such Series; (vi) the designation of any Series Accounts and the
terms governing the operation of any such Series Accounts; (vii) the method of
calculating the Servicer Fee with respect thereto; (viii) the terms of any form
of Series Support with respect thereto; (ix) the Series Termination Date; (x)
the number of Classes of Notes of such Series and, if such Series consists of
more than one Class, the rights and priorities of each such Class; (xi) whether
the Notes of such Series may be issued as Bearer Certificates and any
limitations
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imposed thereon; (xii) the priority of such Series with respect to any other
Series; and (xiii) any other terms of such Series.
Proceeding. Any suit in equity, action at law or other judicial or
administrative proceeding.
Property. Any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
Rating Agencies. Moody's and Fitch and any other nationally recognized
rating agencies specified with respect to a Series in the Series Supplement for
such Series.
Record Date. With respect to any Series, as specified in the related
Series Supplement.
Records. Means, with respect to any Contract, all Contracts and other
documents, books, records and other information (including, without limitation,
Contract Files, computer programs, tapes, disks, punch cards, data processing
software and related property and rights) relating to such Contract, any Related
Security therefor and the related User.
Recoveries. Means all amounts received in respect of a Defaulted
Contract, including, without limitation, amounts received in connection with the
sale or other disposition of the related Equipment, amounts received in
connection with the sale or other disposition of the Defaulted Contracts,
Insurance Proceeds with respect to the related Equipment, or any other payments
made by or on behalf of the related User, including any amounts paid from a
Security Deposit and applied by the Servicer as a Recovery and net of costs of
collection in connection with such Defaulted Contract.
Refinance Proceeds. Means with respect to any Collection Period, (i)
any proceeds of the issuance of a new series of notes or the issuance of
certificates in connection with a securitization of leases and loans, remitted
by the Obligors to the Trustee on the Payment Date following such Collection
Period for deposit into the related Series Accounts and application in
accordance with the related Series Supplement, and (ii) any amounts remitted to
the Trustee by the Obligors in accordance with the related Series Supplement for
deposit into the related Series Accounts and application in accordance with the
related Series Supplement.
Registered Holder. Means the Person in whose name a Note is registered
on the Note Register on the applicable Record Date.
Registered Notes. Has the meaning set forth in Section 4.01 hereof.
Related Security. With respect to any Contract, all of Obligors'
rights, title and interest in, to and under:
(i) the related Master Sale Agreement and the Sale Agreement
Supplement (including without limitation, all rights, remedies, powers
and privileges thereunder),
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pursuant to which, among, other things, the Contract, the Contract
Files and the related Equipment have been purchased by or contributed
to the Obligors;
(ii) all of the Obligors' interest in the related Equipment,
together with such Obligor's interest in all property from time to time
securing or purporting to secure obligations under such Contract,
whether pursuant to such Contract or otherwise, together with all UCC
Financing Statements covering any such property filed by or otherwise
filed in favor of the Originator and/or such Obligors (and, in the case
of those UCC financial statements filed in favor of the Obligors,
assigned to the Trustee);
(iii) all guarantees, letters of credit, indemnities,
warranties, insurance policies (including, without limitation, the
Insurance Policies), and proceeds and premium refunds thereof and other
agreements or arrangements of whatever character from time to time
supporting or securing a payment of such Contract whether pursuant to
the Contract or otherwise (including, without limitation, the Security
Deposits);
(iv) all of such Obligors' interest in the Equipment, Residual
Receipts and Recoveries related to such Contract;
(v) the Contract Files and other instruments, documents,
agreements, Computer Tapes, books, and records relating to such
Contract; and
(vi) all proceeds of the foregoing.
Release Events. Has the meaning ascribed in Section 6.11 hereof.
Requirements of Law. Any law, treaty, rule or regulation, or final
determination of an arbitrator or Governmental Authority, and, when used with
respect to any Person, the certificate of incorporation and bylaws or other
organizational or governing, documents of such Person.
Residual Interest. The ownership interest in Residual Receipts and/or
the contractual right to receive and retain Residual Receipts as owner thereof.
Residual Receipts. With respect to any Collection Period, all residual
proceeds received by the Servicer, proceeds of the sale of the Equipment
received by the Servicer in the event the related User does not purchase the
Equipment at the end of the related Contract, any amounts collected by the
Servicer as judgments against a User or others related to the failure of such
User to pay any required amounts under the related Contract or to return the
Equipment, including any amounts relating to a Security Deposit applied by the
Servicer as Residual Receipts, plus any other amounts which are received by the
Servicer and applied against the Booked Residual Value of such Contract in
accordance with the Servicer's servicing standards during such Collection
Period, in each case as reduced by any reasonably incurred out-of-pocket
expenses incurred by the Servicer in enforcing such Contract or in liquidating
such Equipment.
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Responsible Officer. When used with respect to the Trustee, any officer
assigned to the corporate trust division (or any successor thereto), including
any Vice President, Second Vice President, Assistant Vice President, Senior
Trust Officer, Trust Officer, Authorized Signer, Assistant Trust Officer, any
Assistant Secretary, any trust officer or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and having a direct responsibility for the administration of
this Master Agreement, and also, with respect to a particular matter, any other
officer to whom such matter is referred because of such officer's knowledge of
and familiarity with the particular subject.
Rule 144A Information. Has the meaning specified in Section 14.10
hereof.
S&P. Standard & Poor's Ratings Services.
Sale Agreement Supplement. Each supplement to the Master Sale
Agreement.
Scheduled Payments. With respect to any Contract, the stated periodic
rental Payments (exclusive of any amounts in respect of insurance or taxes) set
forth in such Contract due from the User in the related Collection Period.
Securities Act. The Securities Act of 1933, as amended. and the
applicable published rules and regulations thereunder.
Security Deposit. Any amount paid to the Originator by a User as a
security deposit on a Contract, which has not previously been refunded to such
User.
Series. With respect to any Notes, means those Notes issued pursuant to
the same Series Supplement.
Series Accounts. Any deposit, trust, escrow, collateral, reserve or
similar account established and maintained by the Trustee for the benefit of the
Noteholders of any Series or Class as specified in any Series Supplement.
Series Closing Date. With respect to any Series, the date designated in
the related Series Supplement as the closing date for such Series.
Series Controlling Party. With respect to any Series on any date the
Person or Persons designated as such in the related Series Supplement.
Series Related Documents. With respect to a Series, has the meaning,
specified therefor in the related Supplement.
Series Secured Obligations. Has the meaning specified therefor in the
related Series Supplement.
Series Secured Parties. Has the meaning specified in the related Series
Supplement.
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Series Supplement. With respect to any Series, a Supplement to this
Master Agreement setting fourth the terms of such Series and, executed and
delivered in connection with the original issuance of the Notes of such Series,
and all amendments thereof and supplements thereto.
Series Support. The rights and benefits provided to the Trustee or the
Noteholders of any Series or Class pursuant to any letter of credit, surety
bond, cash collateral account, spread account, guaranteed rate agreement,
maturity liquidity facility, interest rate swap agreement, tax protection
agreement or other similar arrangement. The overcollateralization provided to
any Series and the subordination of any Series or Class to another Series or
Class shall be deemed to be Series Support. Notwithstanding that such Series
Support may be held by or in favor of the Trustee for the benefit of any Series
or Class, only those Series or Classes to which such Series Support relates
shall have any rights with respect thereto and all payments thereunder received
by the Trustee shall be distributed exclusively as prescribed in the Series
Supplement relating to such Series or Class.
Series Support Provider. The Person providing any Series Support, other
than the Noteholders of any Series or Class which is subordinated to another
Class or Series.
Series Termination Date. Has the meaning ascribed in the Series
Supplement.
Series Trust Estate. With respect to a Series, has the meaning,
specified therefor in the related Series Supplement.
Series Trustee-Secured Obligations. With respect to a Series, has the
meaning specified in the related Series Supplement.
Servicer. The Person performing the duties of the Servicer hereunder,
which shall initially be Advanta Business Services Corp. and may subsequently be
(i) any Person which is an Affiliate of Advanta Business Services Corp. and has
fulfilled the conditions set forth in Section 8.02 of this Master Agreement or
(ii) a successor Servicer appointed as provided in Section 9.02 of this Master
Agreement.
Servicer Advance. With respect to any Series, the amount, if any, which
the Servicer at its option advances with respect to Overdue Payments, in
accordance with the related Series Supplement.
Servicer Fee. With respect to each Series, the fee payable to the
Servicer on each Payment Date in consideration of the Servicer's performance of
its duties pursuant to Article VI with respect to the Series Trust Estate
related to such Series, payable as provided in the related Series Supplement.
Servicer Termination Notice. The notice described in subsection 9.01(a)
hereof.
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Servicer's Certificate. With respect to each Series Trust Estate, a
written informational statement, substantially in the form prescribed by the
related Series Supplement, to be provided by the Servicer in accordance with the
related Series Supplement and signed by a Servicing Officer and furnished by the
Servicer to the Trustee and to any other Persons which are entitled to such
certificate under the terms of any Series Supplement.
Servicing Charges. The sum of (i) any late payment charges paid by a
User on a delinquent Contract after application of any such charges to amounts
then due under such Contract and (ii) any other incidental charges or fees
received from a User, including (x) insurance premium payments and (y)
prepayment charges paid by a User in connection with a Prepayment.
Servicing Officer. Those officers of the Servicer involved in, or
responsible for, the administration and servicing of the Contracts, as
identified on the list of Servicing Officers furnished by the Servicer to the
Trustee and the Noteholders from time to time.
State. Any state of the United States of America, its territories and
possessions and the District of Columbia.
Supplement. Each supplement to amendment of this Master Agreement.
Support Default. With respect to a Series, those events specified in
the related Series Supplement.
Trust Indenture Act. The Trust Indenture Act of 1939, as amended from
time to time.
Trustee. Means the Person named as the "Trustee" in the first paragraph
of this instrument unless a successor Trustee shall have become such pursuant to
the applicable provisions of this Master Agreement, and thereafter "Trustee"
shall mean or include the Person who is then the Trustee hereunder.
UCC. The Uniform Commercial Code as in effect in the applicable
jurisdiction.
Unregistered Note. Any Note which is not registered under the
Securities Act.
User. Any obligor, under any Contract, whose obligations thereunder
constitute the principal source of payments under such Contract, including any
guarantor of such obligations.
Section 1.02. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Master Agreement to be given or taken by
the Holders of the related Notes may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agents duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
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instruments are, delivered to the Trustee and, where it is hereby expressly
required, to the Obligors. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing, appointing any such agent shall be
sufficient for any purpose of this Master Agreement and (subject to Section
11.01) conclusive in favor of the Trustee and the Obligors, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner that the Trustee deems
sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Note shall bind every future Holder of
the same Note and the Holder of every Note issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Obligors in
reliance thereon, whether or not notation of such action is made upon such Note.
Section 1.03. Notice to Holders: Waiver. Where this Master Agreement or
any Series Supplement provides for notice to the Holders of the related Notes of
any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first class postage prepaid, to
each Holder affected by such event, at such Holder's address as it appears in
the Note Register, or if in writing and by facsimile, to the facsimile number
provided by a Holder to the Person giving such notice, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders, and any notice that is mailed in the manner herein provided shall
conclusively be presumed to have been duly given. Where this Master Agreement or
any Series Supplement provides for notice in any manner, such notice may be
waived in writing, by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Where any Series Supplement provides for notice to the Rating Agencies,
failure to give such notice shall not affect any rights or obligations created
hereunder and shall not under any circumstance constitute a Default or Event of
Default.
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Section 1.04. Alternate Payment and Notice Provisions. Notwithstanding
any provision of this Master Agreement, any Series Supplement or any of the
Notes to the contrary, the Obligors may enter into any agreement with any Holder
of a Note providing for a method of payment, or notice by the Trustee or any
Paying Agent to such Holder, that is different from the methods provided for in
this Master Agreement or the related Series Supplement for such payments or
notices. The Obligors will furnish to the Trustee a copy of each such agreement
and the Trustee will cause payments to be made and notices to be given in
accordance with such agreements provided the Trustee is not adversely affected
thereby.
Section 1.05. Conflict with Trust Indenture Act. If this Master
Agreement is qualified under the Trust Indenture Act and any provision hereof
limits, qualifies or conflicts with another provision hereof that is deemed to
be included in and to govern this Master Agreement by any of the provisions of
the Trust Indenture Act, such provision deemed to be included herein shall
control.
Section 1.06. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 1.07. Successors and Assigns. All covenants and agreements in
this Master Agreement or any Series Supplement by the Servicer shall bind the
successors and assigns of the Servicer and all covenants and agreements in this
Master Agreement or any Series Supplement by any Obligor shall bind the
successors and assigns of such Obligor, whether so expressed or not.
All agreements by the Trustee in this Master Agreement or any Series
Supplement shall bind its successors and assigns.
Section 1.08. Benefits of Master Agreement. To the extent specified in
the related Series Supplement, the related Series Support Provider and its
successors and assigns shall be a third-party beneficiary to the provisions of
this Master Agreement and such Series Supplement, insofar as such provisions
apply to the related Notes, and shall be entitled to rely upon and directly to
enforce such provisions of this Master Agreement and such Series Supplement so
long as no Support Default shall have occurred and be continuing with respect to
such Series Support Provider. Except as aforesaid, nothing in this Master
Agreement or any Series Supplement or in the Notes, express or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and the Holders of the related Notes, and any other party secured hereunder, and
any other Person with an ownership interest in any part of the related Series
Trust Estate, any benefit or any equal or equitable right, remedy or claim under
this Master Agreement. The related Series Support Provider may disclaim any of
its rights and powers under this Master Agreement (in which case the Trustee may
exercise such right or power hereunder), but not its duties and obligations
under the related Series Support, upon delivery of a written notice to the
Trustee and to the Obligors.
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ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 2.01. Representations, Warranties and Covenants of Obligors. By
its execution and delivery of this Master Agreement each Obligor hereby makes
each of the following representations, warranties and covenants to the Trustee
and the Noteholders of the related Series on which representations, warranties
and covenants the Trustee relies in accepting the related Series Trust Estate in
trust and on which the Noteholders of the related Series have relied in agreeing
to purchase the related Notes. Such representations, warranties and covenants
are deemed to be remade and reaffirmed on the Series Closing Date for each
Series, and shall survive the date of the making or remaking of such
representations and warranties. Each of the covenants of each Obligor with
respect to a Series shall continue until the Final Date of such Series.
(a) Each Obligor represents and warrants, as to itself, that:
(i) Corporate Existence and Power. Such Obligor is a legal
entity duly organized, validly existing and in good standing under the
laws of the State of its formation and has all corporate power and all
governmental licenses, authorizations, consents and approvals required
to carry on its business in each jurisdiction in which its business is
conducted.
(ii) No Conflict. The execution, delivery and performance by
such Obligor of this Master Agreement, the Master Sale Agreement and
the Series Related Documents to which it is a party, are within its
corporate powers, have been duly authorized by all necessary corporate
action, do not contravene or violate (i) its Organizational Documents,
(ii) any law, rule or regulation applicable to it, (iii) any
restrictions under any agreement, contract or instrument to which it is
a party or by which it or any of its property is bound, or (iv) any
order, writ, judgment, award, injunction or decree binding on or
affecting it or its property, and do not result in the creation or
imposition of any Adverse Claim on assets of such Obligor or its
subsidiaries (except the interest conveyed to the Trustee); and no
transaction contemplated hereby requires compliance with any bulk sales
act or similar law. Each of the Series Related Documents to which such
Obligor is a party has been duly executed and delivered by such
Obligor.
(iii) Governmental Authorization. Other than the filing of the
financing statements required hereunder, no authorization or approval
or other action by, and no notice to or filing with, any governmental
authority or regulatory body is required for the due execution,
delivery and performance by such Obligor of this Master Agreement, the
Master Sale Agreement and the Series Related Documents to which such
Obligor is a party, except for such authorizations, approvals, actions,
notices and filings as have already been obtained, taken or made in
connection with Municipal Contracts.
(iv) Binding Effect. Each of this Master Agreement, the Master
Sale Agreement and the Series Related Documents to which such Obligor
is a party constitutes
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the legal, valid and binding obligation of such Obligor, enforceable
against each Obligor, jointly and severally, in accordance with its
terms, except as such enforcement may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws relating
to or limiting creditors' rights generally or general equitable
principles.
(v) Accuracy of Information. All information furnished in
writing by such Obligor to the Trustee on or prior to the related
Series Closing Date for purposes of or in connection with the Series
Related Documents or any Pledge is true, accurate and complete in every
material respect on the date such information is stated or certified,
and all such information hereafter furnished by such Obligor to the
Trustee will be, true, accurate and complete in every material respect,
on the date such information is stated or certified.
(vi) Use of Proceeds. No proceeds of any sale of the Notes
will be used (i) for a purpose which violates, or would be inconsistent
with, Regulation T, U or X promulgated by the Board of Governors of the
Federal Reserve System from time to time or (ii) to acquire any
security in any transaction which is subject to Section 13 or Section
14 of the Securities Exchange Act of 1934, as amended.
(vii) Good Title; Perfection. Immediately prior to each Pledge
hereunder or under a Series Supplement, (i) such Obligor, if conveying
Contracts and such Obligor's right in the Related Security [(other than
the Residual Interest with respect thereto)] is the legal and
beneficial owner of the Contracts and the Related Security [(except the
Residual Interest in the Equipment)] subject to such Pledge and is
taking or has taken all requisite steps to obtain on its behalf a first
priority perfected security interest in, the Equipment related to such
contracts and the Related Security with respect to such equipment
(other than Equipment valued at $25,000 or less on its acquisition date
in which neither the Originator nor such Obligor has reserved a
perfected security interests) and the title and interest of such
Obligor is free and clear of any Adverse Claim except as created by
this Master Agreement, the Master Sale Agreement and the Series Related
Documents, and such Obligor has the legal right to Pledge the Contracts
and the associated Collections and Related Security to the Trustee and
(ii) such Obligor, if conveying the Residual Interest in the Equipment,
is the legal and beneficial owner of such Residual Interest in each
case, free and clear of any Adverse Claim except as created by this
Master Agreement, the Master Sale Agreement and the Series Related
Documents, and such Obligor has the legal right to Pledge such Residual
Interest.
(viii) Places of Business. Except in accordance with Section
3.05(b), such Obligor will not move its chief executive office to
another location and/or maintain any Records at any other locations.
(ix) No Proceedings. There are no proceedings or
investigations pending or, to the best knowledge of such Obligor,
threatened before any Governmental Authority (i) asserting, the
invalidity of this Master Agreement, the Master Sale Agreement or the
Series Related Documents, (ii) seeking to prevent the consummation of
any of the
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transactions contemplated by this Master Agreement, the Master Sale
Agreement or the Series Related Documents, (iii) seeking any
determination or ruling that, in the reasonable judgment of such
Obligor, would materially and adversely affect the performance by such
Obligor of its obligations under this Master Agreement, the Master Sale
Agreement or the Series Related Documents and (iv) seeking any
determination or ruling that would materially and adversely affect the
validity or enforceability of this Master Agreement, the Master Sale
Agreement or the Series Related Documents.
Section 2.02. Representations, Warranties and Covenants of Servicer.
The Servicer hereby makes the following representations, warranties and
covenants to the Trustee and the Noteholders of the related Series on which
representations, warranties and covenants the Trustee relies in accepting the
related Series Trust Estate in trust and in authenticating the related Notes and
on which the Noteholders of such Series have relied in purchasing their Notes.
Such representations, warranties and covenants shall be deemed to be made and
affirmed on each Series Closing Date and shall survive the date of the making or
remaking of such representations and warranties. Each of the Servicer's
covenants shall continue until the Final Date of the last outstanding Series.
(a) The Servicer represents and warrants, as to itself and its
responsibilities, that:
(i) Organization and Good Standing. The Servicer is a
corporation duly organized, validly existing, in good standing under
the laws of the State of Delaware (or, if other than Advanta Business
Services Corp., in the applicable state of its incorporation), has the
power to own its assets and to transact the business in which it is
presently engaged, and had at all relevant times and now has the power,
authority and legal right to service the related Series Trust Estate.
(ii) Power and Authority. The Servicer has the power,
authority and legal right to execute, deliver and perform this Master
Agreement, the Master Sale Agreement and the Series Related Documents
to which it is a party and the execution, delivery and performance of
this Master Agreement, the Master Sale Agreement and the other Series
Related Documents to which it is a party have been duly authorized by
the Servicer by all necessary corporate action.
(iii) Binding Obligation. This Master Agreement, the Master
Sale Agreement and the Series Related Documents to which the Servicer
is a party (assuming due authorization, execution and delivery by each
of the other parties hereto and thereto), constitute legal, valid and
binding obligations of the Servicer, enforceable against the Servicer
in accordance with their respective terms, except that (A) such
enforcement may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws (whether statutory, regulatory or
decisional) now or hereafter in effect relating, to creditors' rights
generally and (B) the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to certain equitable
defenses and to the discretion of the court before which any proceeding
therefor may be brought, whether in a proceeding at law or in equity.
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(iv) No Violation. The consummation by the Servicer of the
transactions contemplated by this Master Agreement, the Master Sale
Agreement and the Series Related Documents to which it is a party and
the fulfillment of the terms hereof and thereof will not conflict with,
result in any breach of any of the terms and provisions of, or
constitute (with or without notice, lapse of time or both) a default
under, the charter documents or bylaws of the Servicer, or any material
indenture, agreement, mortgage, deed of trust or other instrument to
which the Servicer is a party or by which it is bound, or result in the
creation or imposition of any Lien upon any of its material properties
pursuant to the terms of any such indenture, agreement, mortgage, deed
of trust or other instrument, other than as contemplated by the Master
Sale Agreement and this Master Agreement, or violate any law or, to the
best of the Servicer's knowledge, any order, rule or regulation
applicable to the Servicer of any court or other Governmental Authority
having a jurisdiction over the Servicer or any of its properties
(v) No Proceedings. There are no proceedings or investigations
to which the Servicer, or any of the Servicer's Affiliates, is a party
pending or, to the best of the Servicer's knowledge, threatened before
any court or other Governmental Authority (A) asserting the invalidity
of this Master Agreement, the Master Sale Agreement or any of the
Series Related Documents, (B) seeking to prevent the consummation of
any of the transactions contemplated by this Master Agreement, the
Master Sale Agreement or any of the Series Related Documents (C)
seeking any determination or ruling, that might materially and
adversely affect the performance by the Servicer of its obligations
under, or the validity or enforceability of, this Master Agreement, the
Master Sale Agreement or any of the Series Related Documents to which
it is a party.
(vi) Approvals. All approvals, authorizations, consents,
orders or other actions of any Governmental Authority or any other
Person required to be obtained or taken by, or on the part of, the
Servicer in connection with the execution and delivery of this Master
Agreement, the Master Sale Agreement or any of the Series Related
Documents to which it is a party have been or will be taken or obtained
on or prior to the date so required to be taken or obtained.
(vii) Information. Each certificate, information, exhibit,
financial statement, document, book or record or report furnished by
the Servicer to the Trustee, the Obligors, the Rating Agencies or any
Noteholder in connection with this Master Agreement, any Series
Supplement, any Series Related Document or the transactions
contemplated hereby is accurate in all material respects as of its
date, when considered as a whole with other such documents, and no such
document contains any material misstatement of fact or omits to state a
material fact or any fact necessary to make the statements contained
therein, in light of the circumstances under which they were made, not
materially misleading as of its date.
(viii) Place of Business. The chief executive office of the
Servicer is at P.O. Box 1228, 1020 Laurel Oak Road, Voorhees, New
Jersey 08043. The Servicer shall give
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the Trustee and each Obligor at least 30 days' prior written notice of
any relocation of such chief executive office.
(b) The Servicer covenants as to the Pledged Property comprising each
Series Trust Estate:
(i) Lien in Force. The Servicer shall not release or assign
any Lien in favor of the Trustee on any item of Equipment related to
any Contract in whole or in part, except as expressly permitted
hereunder.
(ii) Fulfill Obligation. The Servicer will duly fulfill and
comply, in all material respects, with all obligations on the part of
the "lessor" to be performed and fulfilled under or in connection with
each Contract and all of the Servicer's other obligations to be
fulfilled under or in connection with each Series Trust Estate. The
Servicer will not amend, rescind, cancel or modify any Contract or any
term or provision thereof, except as contemplated herein, or, with
respect to Contracts contained in a Series Trust Estate, as
contemplated in the related Series Supplement, and the Servicer will
not do anything, that would materially impair the rights of the
Noteholders with respect to any Series Trust Estate, except as
contemplated herein or in the related Series Supplement.
(iii) Books and Records. The Servicer (1) will (A) maintain
its books and records, as Servicer, separate from the books and records
of the Originator and of any Obligor, (B) maintain bank accounts
separate from those of the Originator and of any Obligor and (C)
conduct its business in an office separate from that of any Obligor and
(2) will not (X) take any action that would cause the dissolution or
liquidation of the Originator and of any Obligor, (Y) guarantee
(directly or indirectly), endorse or otherwise become contingently
liable (directly or indirectly) for the obligations of the Originator
or any Obligor (except as expressly permitted hereunder) including a
merger, consolidation or other transfer of assets and assumption of
obligations permitted by Section 8.02 hereof involving the Servicer and
the Originator) or (Z) institute against the Originator or any Obligor,
or join any other person in instituting against the Originator and of
any Obligor, any case, proceeding, or other action under any existing,
or future bankruptcy, insolvency or similar laws.
ARTICLE III
PLEDGING THE TRUST ESTATE
Section 3.01. Series Trust Estates. In order to secure the due and
punctual payment of the principal of and interest on the Notes of the related
Series and all other Series Secured Obligations of the related Series when and
as the same shall become due and payable, whether as scheduled, by declaration
of acceleration, prepayment or otherwise, according to the terms of this Master
Agreement, the related Series Supplement and the related Notes, the Obligors,
shall
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pledge the related Series Trust Estate to and grant a security interest in
the related Series Trust Estate to the Trustee for the benefit of the Holders of
the related Series and the other Series Secured Parties.
Section 3.02. Preservation of Series Collateral. Subject to the rights,
powers and authorities granted to the Trustee and the related Series Controlling
Party specified in the Series Supplement, the Obligors shall take such action as
is necessary and proper with respect to the Series Trust Estate in order to
preserve and maintain such Series Trust Estate. The Obligors will do, execute,
acknowledge and deliver, or cause to be done, executed, acknowledged and
delivered, such instruments of transfer or take such other steps or actions as
may be necessary, or required by the Servicer or the Trustee to perfect the
security interests granted hereunder in the Series Trust Estate, to ensure that
such security interests rank prior to all other Liens and to preserve the
priority of such security interests and the validity and enforceability thereof.
Upon the delivery of any portion of any Series Trust Estate to the Trustee, the
Obligors shall be obligated to execute such documents and perform such actions
as are necessary to create in the Trustee for the benefit of the related Series
Secured Parties a valid first Lien on, and valid and perfected first priority
security interest in, such Series Trust Estate so delivered, free and clear of
any other Lien together with satisfactory assurances thereof, and to pay any
reasonable costs incurred by any of the Servicer or Trustee or otherwise in
connection with such delivery.
Section 3.03. Waiver of Stay or Extension Laws; Marshalling of Assets.
Each Obligor covenants, to the fullest extent permitted by applicable law, that
it will not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any appraisement, valuation, stay, extension
or redemption law wherever enacted, now or at any time hereafter in force, in
order to prevent or hinder the enforcement of this Master Agreement, any Series
Supplement or any part hereof or thereof, to the fullest extent permitted by
applicable law, for itself and all who may claim under it, hereby waives the
benefit of all such laws, and covenants that it will not hinder, delay or impede
the execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been enacted.
Each Obligor, for itself and all who may claim under it, waives, to the fullest
extent permitted by applicable law, all right to have any Series Trust Estate
marshalled upon any foreclosure or other disposition thereof.
Section 3.04. Noninterference, Etc. No Obligor shall (i) waive or alter
any of its rights under any portion of any Series Trust Estate (or any agreement
or instrument relating thereto) without the prior written consent of the Series
Controlling Party; or (ii) take any action, or fail to take any action, if such
action or failure to take action will interfere with the enforcement of any
rights under the Series Related Documents.
Section 3.05. Obligor Changes.
(a) Change in Name Structure, Etc. No Obligor shall change its name,
identity or corporate structure unless it shall have given the Trustee at least
30 days prior written notice thereof and shall effect any necessary or
appropriate assignments or amendments thereto and filings of financing
statements or amendments thereto within 60 days of such change.
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(b) Relocation of the Obligors. No Obligor shall change its principal
executive office unless it gives the Trustee at least 30 days prior written
notice of any relocation of its principal executive office and effects within 60
days of such change whatever appropriate recordations and filings of financing
statements or amendments thereto are necessary.
Section 3.06. Limited Recourse to Obligors.
(a) Notwithstanding anything to the contrary contained herein, the
Trustee and each Holder by such Holder's acceptance of a Note hereunder agree
that the obligations of the Obligors hereunder, including, without limitation,
the obligations of the Obligors in respect of the Notes shall be payable solely
from the related Series Trust Estate and that neither the Trustee nor any Holder
shall look to any other Property or assets of such Obligors including,
specifically but without limitation, the Series Trust Estate with respect to any
other Series. No recourse shall be had for the Payment of any amount owing in
respect of any Obligor's obligations hereunder or for any payment obligation or
claim arising out of or based on this Master Agreement against any Affiliate,
agent, stockholder, employee, officer, director or incorporator of such Obligor.
(b) The Obligors' obligation to pay certain fees or expenses under, or
claims arising out of, this Master Agreement shall be limited to moneys
available to such Obligors from the related Series Trust Estate in accordance
with the payment priority set forth in the related Series Supplement, and to the
extent such funds are insufficient to pay such fees or expenses, it shall not
constitute a claim against the Obligors.
Section 3.07. Authorization of Actions to be Taken by the Trustee.
(a) The Trustee may take all actions it deems necessary or appropriate
in order to enforce or exercise its rights under each Series Supplement in
accordance with and subject to the provisions thereof and hereof. Subject to the
provisions thereof and hereof, the Trustee shall have power to institute and to
maintain suits and proceedings to prevent any impairment of the related Series
Trust Estate by any acts which may be unlawful or in violation of the related
Series Supplement or this Master Agreement, and suits and proceedings to
preserve or protect its interests and the interests of the Holders of the
related Notes in the related Series Trust Estate (including power to institute
and maintain suits or proceedings to restrain the enforcement of or compliance
with any legislative or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid if the enforcement of, or compliance with,
such enactment, rule or order would impair the security hereunder or be
prejudicial to the interests of such Holders or of the Trustee).
(b) The Trustee is authorized to receive any funds for the benefit of
the Holders distributed under the related Series Supplement and to make further
distributions of such funds to the Holders of the related Notes according to the
provisions of such Series Supplement.
Section 3.08. Termination of Security Interests. Upon the payment in
full of all Series Secured Obligations, the Trustee shall, at the request of the
Obligors and with the written consent of the Series Support Provider, if any,
deliver such certificates, notices, and instruments stating that all Series
Secured Obligations have been paid in full, and releasing the Trustee's Lien on
the
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related Series Trust Estate with respect to such Series Secured Obligations.
In addition, the Trustee shall, if and as provided in the related Series
Supplement, release the Lien on any Contract or other Property which has been
sold or otherwise disposed of by the Obligors.
Section 3.09. Filing; Maintenance of Contract Files. (a) On or prior to
the Series Closing Date with respect to a Series, the Obligors shall, and shall
cause the Originator to, file blanket UCC-1 financing statements with respect to
the related Series Trust Estate (which, in the case of any UCC-1 Financing
Statement filed by the Obligors against the Originator, shall be assigned by the
Obligors to the Trustee). Notwithstanding the foregoing, it is expressly agreed
that no such UCC-1 Financing Statement shall be filed with respect to the
Originator's ownership interest in any particular piece of Equipment, except to
the extent then required by the Servicer's Credit and Collection Policy, or as
may otherwise be required in the related Sale Agreement Supplement. On or prior
to each Series Closing Date the Obligors shall, and shall cause the Originator
to mark its internal records (including, where applicable, its electronic
ledger) to reflect (x) the conveyance of the related Pledged Property from the
Originator to the Obligors and (y) the Pledge of the related Pledged Property to
the Trustee.
Section 3.10. Costs and Expenses. The Obligors agree to pay all
reasonable costs and disbursements (and in the event the Obligors are unable to
pay such costs and disbursements, the Servicer shall pay such amounts) in
connection with the perfection and the maintenance of perfection and priority,
as against all third parties, of the Trustee's rights, title and interests in
and to each Series Trust Estate (other than the Equipment, except as otherwise
expressly agreed to herein).
ARTICLE IV
NOTE FORMS
Section 4.01. Forms Generally. The Notes of each Series shall be in
substantially the form set forth in the related Series Supplement, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Master Agreement or the related Series Supplement,
and may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to comply with the
rules of any securities exchange or as may, consistently herewith, be determined
by the officers executing such Notes, as evidenced by their execution of the
Notes.
The Notes of any Series or Class may be issued in bearer form ("Bearer
Notes") with attached interest coupons and any other applicable coupon
(collectively, the "Coupons") or in fully registered form (but which may be
uncertificated) ("Registered Notes") and shall, to the extent represented by
physical certificates, be substantially in the form of the exhibits with respect
thereto attached to the applicable Series Supplement.
The Trustee's certificate of authentication shall be in substantially
the form set forth in this Article.
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The Notes shall be printed, lithographed or engraved on steel engraved
borders or may be produced in any other manner (provided that if any Notes are
to be listed on any securities exchange, then in any such manner as may be
permitted by the rules of any such securities exchange, all as determined by the
officers executing such Notes, as evidenced by their execution of such Notes).
Section 4.02. Form of Trustee's Certificate of Authentication. This is
one of the Notes designated herein and issued pursuant to in the
within-mentioned Master Agreement and the within-mentioned Series Supplement
thereto.
__________________________
as Trustee
By _______________________
Authorized Signatory
Section 4.03. Securities Legend. Each Unregistered Note issued
hereunder will contain the following legend:
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND HAS NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION OR REGULATORY AUTHORITY
OF ANY STATE. THIS NOTE HAS BEEN OFFERED AND SOLD PRIVATELY.
THE HOLDER HEREOF ACKNOWLEDGES THAT THESE SECURITIES ARE
"RESTRICTED SECURITIES" THAT HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT AND AGREES FOR THE BENEFIT OF THE OBLIGORS
AND THEIR AFFILIATES THAT THESE SECURITIES MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) TO A PERSON
WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A OR (B) PURSUANT TO AN EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE),
IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION.
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ARTICLE V
THE NOTES
Section 5.01. Amount Limited; Issuable in Series. The aggregate
principal amount of Notes which may be authenticated and delivered and
Outstanding at any time under this Master Agreement is not limited; provided
that any Series Supplement may so limit the aggregate principal amount of Notes
of the related Series. The Notes shall be issued in one or more Series, and may
be issued in Classes within a Series.
No Series of Notes shall be issued under this Master Agreement unless
such Notes have been authorized pursuant to a Series Supplement, and all
conditions precedent to the issuance thereof, as specified in the related Series
Supplement, shall have been satisfied.
All Notes of each Series issued under this Master Agreement shall be in
all respects equally and ratably entitled to the benefits hereof and secured by
the related Series Trust Estate without preference, priority or distinction on
account of the actual time or times of authentication and delivery, all in
accordance with the terms and provisions of this Master Agreement and the
related Series Supplement.
Section 5.02. Execution, Authentication, Delivery and Dating. The Notes
shall be executed on behalf of each of the Obligors by any of the Authorized
Officers of such Obligor. The signature of any of these officers on the Notes
may be manual or facsimile.
Notes bearing the manual or facsimile signatures of individuals who
were at the time of execution of such Notes the proper officers of the Obligors
shall bind the Obligors, notwithstanding that such individuals or any of them do
not hold such offices at the time of the authentication and delivery of such
Notes.
At any time and from time to time after the execution and delivery of
this Master Agreement and the related Series Supplement, and upon satisfaction
of all the conditions set forth in the related Series Supplement, the Obligors
may deliver Notes of the related Series (including Notes of any Class within
such Series) executed by the Obligors to the Trustee or Authenticating Agent for
authentication, together with an Obligors' Order for the authentication and
delivery of such Notes and an Officer's Certificate that all conditions
precedent for such issuance have been satisfied, and the Trustee in accordance
with the Obligors' Order shall authenticate and make available for delivery such
Notes.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Master Agreement or
any Series Supplement or be valid or obligatory for any purpose unless there
appears on such Note a certificate of authentication substantially in the form
provided for herein executed by the Trustee or the Authenticating Agent by
manual signature, and such certificate of authentication upon any Note shall be
conclusive evidence, and the only evidence, that such Note has been duly
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authenticated and delivered hereunder and is entitled to the benefits of this
Master Agreement and the related Series Supplement. Notwithstanding the
foregoing, if any Note shall have been authenticated and delivered hereunder but
never issued and sold by the Obligors, and the Obligors shall deliver such Note
to the Trustee or the Authenticating Agent for cancellation as provided in
Section 5.08 together with a written statement (which need not comply with
Section 1.02 and need not be accompanied by an Opinion of Counsel) stating that
such Note has never been issued and sold by the Obligors, for all purposes of
this Master Agreement such Note shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Master Agreement.
Section 5.03. Temporary Notes. Pending the preparation of definitive
Notes of any Series (or of any Class within a Series), the Obligors may execute,
and, upon receipt of an Obligors' Order, the Trustee or the Authenticating Agent
shall authenticate and deliver, temporary Notes which are printed, lithographed,
typewritten, reproduced or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Notes in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Notes may determine, as evidenced by
their execution of such Notes.
If temporary Notes of any Series (or of any Class within a Series) are
issued, Obligors will cause definitive Notes of that Series (or Class) to be
prepared without unreasonable delay. After the preparation of definitive Notes
of such Series (or Class), such temporary Notes shall be exchangeable for
definitive Notes of such Series (or Class) upon surrender of the temporary Notes
at the office or agency of the Obligors to be maintained as provided in Section
14.02. Upon surrender for cancellation of any one or more temporary Notes the
Obligors shall execute, and the Trustee or the Authenticating Agent shall
authenticate and make available for delivery, in exchange therefor a like
principal amount of definitive Notes of the same Series (or Class) and tenor, of
authorized denominations. Until so exchanged, the temporary Notes of any Series
(or Class) shall in all respects be entitled to the same benefits under this
Master Agreement and the related Series Supplement as definitive Notes of such
Series (or Class).
Section 5.04. Registration, Registration of Transfer and Exchange,
Transfer Restrictions. The Obligors shall cause to be kept a register (the "Note
Register") in which, subject to such reasonable regulations as they may
prescribe, the Obligors shall provide for the registration of Notes and of
transfers of the Notes. The Trustee is hereby initially appointed "Note
Registrar" for the purpose of registering Notes and transfers of the Notes as
herein provided. Upon any resignation of any Note Registrar, the Obligors shall
promptly appoint a successor or, if the Obligors elect not to make such an
appointment, one of the Obligors shall assume the duties of the Note Registrar.
If a Person other than the Trustee is appointed by the Obligors as Note
Registrar, the Obligors will give the Trustee prompt written notice of the
appointment of such Note Registrar and of the location, and any change in the
location, of the Note Registrar, and the Trustee shall have the right to inspect
the Note Register at all reasonable times and to obtain copies thereof, and the
Trustee shall have the right to rely upon a certificate executed on behalf of
the Note
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Registrar by an Executive Officer thereof as to the names and addresses
of the Holders of the Notes and the principal amounts and number of such Notes.
Upon surrender for registration of transfer of any Note at the office
or agency of the Obligors to be maintained as provided in Section 14.02, the
Obligors shall execute, and the Trustee or the Authenticating Agent shall
authenticate and make available for delivery, in the name of the designated
transferee or transferees, one or more new Notes of any authorized denominations
and of a like tenor and aggregate principal amount.
At the option of a Registered Noteholder, Registered Notes (of the same
Series and Class) may be exchanged for other Registered Notes of authorized
denominations upon surrender of the Registered Notes to be exchanged at any such
office or agency; Registered Notes, including Registered Notes received in
exchange for Bearer Notes, may not be exchanged for Bearer Notes. At the option
of the Holder of a Bearer Note, subject to applicable laws and regulations,
Bearer Notes may be exchanged for other Bearer Notes or Registered Notes (of the
same Series and Class) of authorized denominations upon surrender of the Bearer
Notes to be exchanged at an office or agency of the Transfer Agent and Registrar
located outside the United States. Each Bearer Note surrendered pursuant to this
Section shall have attached thereto all unmatured Coupons; provided that any
Bearer Note so surrendered after the close of business on the Record Date
preceding the relevant payment date after the expected final payment date need
not have attached the Coupon relating to such payment date (in each case, as
specified in the applicable Series Supplement). Whenever any Notes are so
surrendered for exchange, the Obligors shall execute, and the Trustee or the
Authenticating Agent shall authenticate and make available for delivery, the
Notes which the Holder making the exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of the Obligors, evidencing the same debt, and
entitled to the same benefits under this Master Agreement and the related Series
Supplement, as the Notes surrendered upon such registration of transfer or
exchange.
Every Note presented or surrendered for registration of transfer or for
exchange shall (if so required by the Obligors or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Obligors, the Trustee and the Note Registrar duly executed by the Holder
thereof or his or her attorney duly authorized in writing with such signature
guaranteed by a commercial bank or trust company located, or having a
correspondent located, in the City of New York or the city in which the
Corporate Trust Office is located, or by a member firm of a national securities
exchange, and such other documents as the Trustee may require.
No service charge shall be made for any registration of transfer or
exchange of Notes, but the Obligors or the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Notes, other than
exchanges pursuant to Sections 5.03 or 5.05 not involving any transfer.
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No Holder of an Unregistered Note shall transfer its Note, unless (i)
such transfer is made in accordance with Rule 144A of the Securities Act or (ii)
pursuant to an exemption from registration provided by Rule 144 under the
Securities Act (if available) and the registration and qualification
requirements under applicable state securities laws.
Section 5.05. Mutilated, Destroyed, Lost and Stolen Notes. If any
mutilated Note (together, in the case of Bearer Notes, with all unmatured
Coupons (if any) appertaining thereto) is surrendered to the Trustee, the
Obligors shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Note of the same Series and Class, of like tenor and
principal amount and bearing a number not contemporaneously outstanding. If
there shall be delivered to the Obligors and the Trustee, (i) evidence to their
satisfaction of the destruction, loss or theft of any Note and (ii) such
security or indemnity as may be required by them to hold each of them and any
agent of any of them harmless, then, in the absence of notice to the Obligors,
the Trustee or the Support Provider that such Note has been acquired by a bona
fide purchaser, the Obligors shall execute and upon its request the Trustee
shall authenticate and make available for delivery (in the case of Bearer Notes,
outside the United States), in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Note, a new Note (of the same Series and Class), in
lieu of any such destroyed, lost or stolen Note, a new Note of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has become
or is about to become due and payable, the Obligors in their discretion may,
instead of issuing a new Note, cause the Trustee to pay such Note by depositing
with the Trustee the full amount needed to pay such Note.
Upon the issuance of any new Note under this Section, the Obligors or
the Trustee may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Note of any Series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Obligors, whether or not the destroyed, lost or
stolen Note shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Master Agreement and the related Series Supplement
equally and proportionately with any and all other Notes of the same Series duly
issued hereunder and under the related Series Supplement.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.
Section 5.06. Final Distribution.
(a) The Servicer shall give the Trustee at least 30 days prior notice
of the Payment Date on which the Noteholders of any Series or Class may
surrender their Notes for payment of
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the final distribution on and cancellation of such Notes. Not later than the
fifth day of the month in which the final distribution in respect of such Series
or Class is payable to Noteholders, the Trustee shall provide notice to the
Noteholders of such Series or Class specifying (i) the date upon which final
payment of such Series or Class will be made upon presentation and surrender of
Notes of such Series or Class at the office or offices therein designated, (ii)
the amount of any such final payment and (iii) that the Record Date otherwise
applicable to such payment date is not applicable, payments being made only upon
presentation and surrender of such Notes at the office or offices therein
specified (which, in the case of Bearer Notes, shall be outside the United
States). The Trustee shall give such notice to the Transfer Agent and Registrar
and the Paying Agent at the time such notice is given to Noteholders.
(b) Notwithstanding a final distribution to the Noteholders of any
Series or Class, except as otherwise provided in this paragraph, all funds then
on deposit in any Series Account allocated to such Noteholders shall continue to
be held in trust for the benefit of such Noteholders, and the Paying Agent or
the Trustee shall pay such funds to such Noteholders upon surrender of their
Notes. In the event that all such Noteholders shall not surrender their Notes
for cancellation within six months after the date specified in the notice from
the Trustee described in paragraph (a), the Trustee shall give a second notice
to the remaining such Noteholders to surrender their Notes for cancellation and
receive the final distribution with respect thereto (which surrender and
payment, in the case of Bearer Notes, shall be outside the United States). If
within six months after the second notice all such Notes shall not have been
surrendered for cancellation, the Trustee may take appropriate steps, or may
appoint an agent to take appropriate steps, to contact the remaining such
Noteholders concerning surrender of their Notes, and the cost thereof shall be
paid out of the funds in the Series Account held for the benefit of Noteholders.
The Trustee and the Paying Agent shall upon written request pay to the Obligors
any moneys held by them for the payment of principal or interest that remains
unclaimed for two years. After payment to the Obligors, Noteholders entitled to
the money must look to the Obligors for payment as general creditors unless an
applicable abandoned property law designates another Person.
(c) Any notice required or permitted to be given to a Holder of
Registered Notes shall be given by first-class mail, postage prepaid, at the
address of such Holder as shown in the Note Register. No Notice shall be
required to be mailed to a Holder of Bearer Notes or Coupons but shall be given
as provided below. Any notice so mailed within the time prescribed in this
Master Agreement shall be conclusively presumed to have been duly given, whether
or not the Noteholder receives such notice. In addition, (a) if and so long as
any Series or Class is listed on the Luxembourg Stock Exchange and such Exchange
shall so require, any notice to Noteholders shall be published in a newspaper of
general circulation in Luxembourg within the time period prescribed in this
Master Agreement and (b) in the case of any Series or Class with respect to
which any Bearer Notes are outstanding, any notice required or permitted to be
given to Noteholders of such Series or Class shall be published in a newspaper
designated in the related Series Supplement within the time period prescribed in
this Master Agreement.
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Section 5.07. Persons Deemed Owners. Prior to due presentment of a Note
for registration of transfer, the Obligors, the related Series Support Provider,
the Trustee and any agent of any of them may treat (a) prior to due presentation
of a Registered Note for registration of transfer, treat the Person in whose
name any Registered Note is registered as the owner of such Registered Note for
the purpose of receiving distributions pursuant to the terms of the applicable
Series Supplement and for all other purposes whatsoever, and (b) treat the
bearer of a Bearer Note or Coupon as the owner of such Bearer Note or Coupon for
the purpose of receiving distributions pursuant to the terms of the applicable
Series Supplement and for all other purposes whatsoever; and none of the
Obligors, the related Series Support Provider, the Trustee nor any agent of any
of them, shall be affected by notice to the contrary.
Section 5.08. Cancellation. All Notes surrendered for payment,
prepayment in whole, registration of transfer or exchange shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee and shall be
promptly cancelled by the Trustee. Any Obligor may at any time deliver to the
Trustee for cancellation any Notes previously authenticated and delivered
hereunder which the Obligor may have acquired in any manner whatsoever, and may
deliver to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Notes previously authenticated hereunder which the Obligors
have not issued and sold, and all Notes so delivered shall be promptly cancelled
by the Trustee. No Notes shall be authenticated in lieu of or in exchange for
any Notes cancelled as provided in this Section, except as expressly permitted
by this Master Agreement. All cancelled Notes held by the Trustee shall be held
or destroyed by the Trustee in accordance with its standard retention or
disposal policy as in effect at the time.
Section 5.09. Book-Entry Notes. Unless otherwise specified in the
related Series Supplement for any Series or Class, the Notes of each Series,
upon original issuance, shall be issued in the form of one or more typewritten
Notes representing the Book-Entry Notes, to be delivered to the Clearing Agency
specified in the applicable Series Supplement, by, or on behalf of, the
Obligors. The Notes shall initially be registered on the Note Register in the
name of the Clearing Agency or its nominee, and no Noteholder will receive a
definitive certificate representing such Noteholder's interest in the Notes,
except as provided in Section 5.11. Unless and until definitive, fully
registered Notes ("Definitive Notes") have been issued to the applicable
Noteholders pursuant to Section 5.11 or as otherwise specified in any such
Series Supplement:
(a) the provisions of this Section shall be in full force and effect;
(b) the Obligors, the Servicer and the Trustee may deal with the
Clearing Agency and the Clearing Agency Participants for all purposes (including
the making of distributions) as the authorized representatives of the respective
Noteholders;
(c) to the extent that the provisions of this Section conflict with any
other provisions of this Master Agreement, the provisions of this Section shall
control; and
(d) the rights of the respective Noteholders shall be exercised only
through the Clearing Agency and shall be limited to those established by law and
agreements between such Noteholders and the Clearing Agency or the Clearing
Agency Participants. Pursuant to the
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Depository Agreement, unless and until Definitive Notes are issued pursuant to
Section 5.11, the Clearing Agency will make book-entry transfers among the
Clearing Agency Participants and receive and transmit distributions of principal
and interest on the related Notes to such Clearing Agency Participants.
For purposes of any provision of this Master Agreement requiring, or
permitting actions with the consent of, or at the direction of, Noteholders
evidencing a specified percentage of the aggregate Outstanding Amount of Notes,
such direction or consent may be given by Noteholders (acting through the
Clearing Agency and the Clearing Agency Participants) owning Notes evidencing
the requisite percentage of Outstanding Notes.
Section 5.10. Notices to Clearing Agency. Whenever any notice or other
communication is required to be given to Noteholders of any Series or Class with
respect to which Book-Entry Notes have been issued, unless and until Definitive
Notes shall have been issued to the related Noteholders, the Trustee shall give
all such notices and communications to the applicable Clearing Agency.
Section 5.11. Definitive Notes. If Book-Entry Notes have been issued
with respect to any Series or Class and (a) the Obligors advise the Trustee that
the Clearing Agency is no longer willing or able to discharge properly its
responsibilities under the Depository Agreement with respect to such Series or
Class and the Trustee or the Obligors are unable to locate a qualified successor
or (b) the Obligors, at their option, advises the Trustee that they elect to
terminate the book-entry system with respect to such Series or Class through the
Clearing Agency, then upon surrender to the Trustee of any such Notes by the
Clearing Agency, accompanied by registration instructions from the Clearing
Agency for registration of Definitive Notes, the Obligors shall execute and the
Trustee shall authenticate and the Transfer Agent and Registrar shall deliver
such Definitive Notes. Neither the Obligors nor the Trustee shall be liable for
any delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. The Trustee shall recognize
the Holders of such Definitive Notes as Noteholders hereunder.
The holding of Bearer Notes shall be proved by the production of such
Bearer Notes or by a certificate, satisfactory to the Obligors, executed by any
bank, trust company or recognized securities dealer, wherever situated,
satisfactory to the Obligors. Each such certificate shall be dated and shall
state that on the date thereof a Bearer Note bearing a specified serial number
was deposited with or exhibited to such bank, trust company or recognized
securities dealer by the Person named in such certificate. Any such certificate
may be issued in respect of one or more Bearer Notes specified therein. The
holding by the Person named in any such certificate of any Bearer Note specified
therein shall be presumed to continue for a period of one year from the date of
such certificate unless at the time of any determination of such holding (i)
another certificate bearing a later date issued in respect of the same Bearer
Note shall be produced, (ii) the Bearer Note specified in such certificate shall
be produced by some other Person or (iii) the Bearer Note specified in such
certificate shall have ceased to be outstanding. The appointment of any proxy
shall be proved by having a the signature of the Person executing the proxy
guaranteed by any bank, trust company or recognized securities dealer
satisfactory to the Trustee.
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ARTICLE VI
ADMINISTRATION AND SERVICING OF THE CONTRACTS AND EQUIPMENT
Section 6.01. Appointment of Servicer: Responsibilities of Servicer.
(a) The Obligors hereby appoint the Servicer, and the Servicer hereby
accepts such appointment, for the purpose of administering and servicing the
Contracts and the Equipment; provided, however, that the Servicer shall
administer and service the Contracts and the Equipment materially and only in
conformance with the terms of this Master Agreement and the Series Supplements
and shall take no action to affect adversely the interests of the Trustee or the
Noteholders in such Contracts and Equipment. In consideration of such
appointment, the Obligors hereby agree to pay to the Servicer the Servicer Fee,
such Servicer Fee to be paid as provided in Section 7.02 and in each Series
Supplement and neither the Trustee nor any Noteholder shall have any
responsibility for the payment of such fee.
(b) The Servicer, for the benefit of the Trustee and the Noteholders,
shall be responsible for managing, servicing and administering the Contracts and
the Equipment, enforcing and making collections on the Contracts, any Insurance
Policies and any Related Security and enforcing any security interest in each
item of Equipment, each in accordance with the standards and procedures set
forth in this Master Agreement. The Servicer's responsibilities shall include
collecting and posting of all payments, responding to inquiries of Users,
investigating delinquencies, applying the Security Deposits, accounting for
collections and furnishing monthly and annual statements to the Trustee, with
respect to each Series Trust Estate and distributions to be made hereunder. In
addition, the Servicer may make Servicer Advances at its option and shall make
Servicer Advances to the extent required by a Series Supplement, provide
appropriate Federal income tax information to the Trustee for use in providing
information to the Noteholders, collect and remit sales and property taxes on
behalf of taxing authorities and maintain the perfected any senior ownership
and/or security interest of the Trustee and the Noteholders in each Series Trust
Estate.
Subject to the terms of Section 6.02 of this Master Agreement, the
Servicer shall have full power and authority, acting at its sole discretion, to
do any and all things in connection with the management, servicing,
administration, enforcement and collection of the Contracts and the other
property comprising each Series Trust Estate that it may deem necessary or
desirable, including the prudent delegation of such responsibilities. Without
limiting the generality of the foregoing, the Servicer shall, and is hereby
authorized and empowered by the Obligors and the Trustee, subject to Section
6.02 hereof, to execute and deliver (on behalf of itself, the Noteholders, the
Trustee or any of them) any and all instruments of satisfaction or cancellation,
or of release or discharge and all other comparable instruments, with respect to
the Contracts and the other property comprising each Series Trust Estate in
accordance with (and to the extent permitted pursuant to) Section 6.11. The
Servicer may also, for itself and on behalf of the Obligors, in the Servicer's
sole discretion, waive any prepayment charge, late payment charge or penalty, or
any other Servicing Charges that may become due from any User in the ordinary
course of servicing
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any Contract. The Trustee and the Obligors shall execute and deliver any powers
of attorney and other documents reasonably necessary or appropriate to enable
the Servicer to carry out its servicing and administrative duties hereunder as
may be prepared by the Servicer, at the Servicer's expense, and delivered to the
Trustee and the Obligors for execution and delivery. The Trustee is not
responsible for any legal insufficiencies in any such powers of attorney or
other documents.
(c) The Servicer shall conduct the management, servicing
administration, collection or enforcement actions of or in connection with each
Series Trust Estate in the following manner:
(i) The Servicer may sue to enforce or collect upon Contracts
as agent for the Obligors and the Trustee. If the Servicer elects to
commence a legal proceeding to enforce a Contract, the act of
commencement shall be deemed to be an automatic assignment of the
Contract to the Servicer for purposes of collection only. If, however,
in any enforcement suit or legal proceeding, it is held that the
Servicer may not enforce a Contract on the ground that it is not a real
party in interest or a holder entitled to enforce the Contract, then
the related Obligor(s) and/or the Trustee shall, at the Servicer's
written request and upon receipt from the Servicer of satisfactory
indemnity, take such steps as the Servicer deems necessary to enforce
the Contract, including bringing suit in its name or the names of the
related Obligor(s) and/or the Trustee and/or the related Noteholders;
(ii) The Servicer shall exercise any rights of recourse
against third parties that exist with respect to any Contract in
accordance with the Servicer's usual practice. In exercising recourse
rights, the Servicer is authorized on the Trustee's behalf to reassign
the Contract to the person against whom recourse exists to the extent
necessary, and at the price set forth in the document creating the
recourse. The Servicer will not reduce or diminish such recourse
rights, except to the extent that it exercises such rights;
(iii) The Servicer may grant to the User under any Contract
any rebate, refund or adjustment that the Servicer in good faith
believes is required because of the prepayment in full of such
Contract; provided, however, that the Servicer will not permit any
rescission or cancellation of any Contract or take any action with
respect to any Contract which would materially impair the rights of the
Trustee in the Contract or the proceeds thereof;
(iv) In the event that the Servicer acquires title to any item
of Equipment in the enforcement of any Contract, the Servicer shall use
its best efforts to sell or otherwise dispose promptly of such item of
Equipment, consistent with the standard of care set forth in Section
6.02 hereof; and
(v) The Servicer may not allow an offset of the amount of any
Security Deposit against any Scheduled Payment or Booked Residual Value
under such Contract, except as expressly permitted in Section 6.14
hereof.
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Section 6.02. Standard of Care. In managing, administering and
servicing each Series Trust Estate and enforcing and making collections on the
Contracts and any Related Security and Insurance Policies related to the
Contracts pursuant to this Master Agreement, the Servicer will exercise that
degree of skill and care consistent with that which the Servicer customarily
exercises with respect to similar contracts owned by it; provided, however, that
to the extent that the Trustee shall be acting as Servicer, the Trustee shall
not have any liability for breaching any standard of care in its performance as
Servicer hereunder to the extent the Trustee was not grossly negligent or
willfully malfeasant. The Servicer shall comply with all applicable Federal and
State laws and regulations, shall maintain all State and Federal licenses and
franchises necessary for it to perform its servicing responsibilities hereunder
and thereunder and shall not materially impair the rights of the Trustee or the
Noteholders in any Contracts or payments thereunder.
The Servicer shall comply with all applicable Requirements of Law, the
noncompliance with which would, individually or in the aggregate, materially and
adversely affect the ability of the Servicer to perform its obligations under
this Master Agreement, the related Series Supplements or the related Series
Related Document.
Section 6.03. Credit and Collection Policy. The Servicer shall not
amend or modify the provisions of the Credit and Collection Policy if such
amendment or modification would, in the reasonable good faith business judgment
of the Servicer, materially and adversely affect the interests of any
Noteholder, the Trustee, or any Series Support Provider, without first obtaining
the prior written consent of the Series Controlling Party of each affected
Series.
Section 6.04. Maintenance of Interest in the Trust Estate. The Servicer
shall, in accordance with customary servicing procedures and at the expense of
the Obligors as provided in Section 3.10 of this Master Agreement, use its best
efforts to maintain perfection and priority of the Trustee's interest in each
Series Trust Estate (other than with respect to the Equipment as to which such
perfection is not required under Section 3.09 and other than with respect to the
Pledged Property removed from the Trust Estate pursuant to Sections 6.11, 6.12
or 6.15 hereof). In connection with enforcing a Defaulted Contract, if
necessary, the Servicer shall prepare and the related Obligor shall (and, to the
extent necessary, the related Obligor shall cause the Originator to) execute and
deliver to the Servicer, and the Servicer shall file any necessary UCC financing
statements and/or amendments naming the Trustee as secured party with respect to
the related Equipment.
Section 6.05. Servicing Compensation; Payment of Certain Expenses by
Servicer.
(a) As compensation for its activities, the Servicer shall be entitled
to receive the Servicer Fee in accordance with Section 7.02 hereof and the
Series Supplements. The monthly Servicer Fee shall be payable to the Servicer,
in arrears for each Collection Period, on the Payment Date in respect of such
Collection Period. The Servicer Fees shall be payable to the Servicer solely to
the extent amounts are available for distribution pursuant to Section 7.02
hereof and the Series Supplements; provided that in accordance with such
provisions, any such Servicer Fees not paid when due as a result of there not
being sufficient available funds therefor
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shall be payable on any future Payment Dates to the extent amounts are then
available for the payment thereof.
(b) The Servicer shall be required to pay all expenses incurred by the
Servicer in connection with its activities hereunder, including, without
limitation, fees and disbursements of the Independent Accountants, taxes imposed
on the Servicer (but excluding any sales taxes or other taxes imposed on any
User, any Broker, the Obligors, the Originator, the Trustee, any Noteholder, or
any other Person), expenses incurred in connection with distributions and
reports to Noteholders and all other fees and expenses not expressly stated
hereunder to be for the account of the Obligors.
Section 6.06. Servicer's Certificate. Not later than the time specified
in the related Series Supplement, the Servicer shall deliver to the Obligors and
the Trustee a Servicer's Certificate containing the information required by the
related Series Supplement, with respect to the related Series Trust Estate,
Collection Period and Payment Date.
Section 6.07. Annual Statement as to Compliance. The Servicer will
deliver to the Obligors and the Trustee, not later than 90 days after the end of
each fiscal year, an Officer's Certificate signed by a Servicing Officer, dated
as of the last day of such fiscal year, stating that (a) a review of the
activities of the Servicer during the preceding 12-month period and of the
Servicer's performance under this Master Agreement has been made under such
Servicing Officer's supervision and (b) nothing has come to such Servicing
Officer's attention to indicate that an Event of Servicer Termination (or an
event which with the giving of notice (other than pursuant to subsection
9.01(iv)) or passage of time, or both, would constitute an Event of Servicer
Termination) hereunder has occurred and is continuing on such last day of such
fiscal year or, if an Event of Servicer Termination or such other event has so
occurred and is continuing, specifying each such Event of Servicer Termination
or such other event known to such Servicing Officer and the nature and status
thereof, and the steps, if any, necessary to remedy such Event of Servicer
Termination or such other event.
Section 6.08. Financial Statements.
(a) The Servicer shall, not later than 90 days after the end of each
fiscal year, deliver to the Trustee, a copy of the Servicer's (or, in the case
of Advanta Business Services Corp. or another Affiliate of Advanta Corp., of
Advanta Corp.'s) annual audited financial statements for such fiscal year,
audited by an Independent Accountant.
(b) The Servicer shall, within 45 days after the end of each of the
first three calendar quarters of the Servicer's fiscal year, deliver to the
Obligors and the Trustee, quarterly, unaudited financial statements of the
Servicer (or, in the case of Advanta Business Services Corp. or another
Affiliate of Advanta Corp., of Advanta Corp.) for such calendar quarter.
(c) The Servicer shall inform the Obligors and the Trustee in writing
of the Servicer's fiscal year and any change in such fiscal year.
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Section 6.09. Access to Certain Documentation and Information Regarding
the Pledged Property.
(a) The Servicer and the Obligors shall each provide the Trustee,
and/or any of the Trustee's duly authorized representatives, attorneys or
accountants access to any and all documentation regarding each Series Trust
Estate (including the List of Contracts) that the Servicer or the Obligors, as
the case may be, may possess, such access being afforded without charge but only
upon reasonable request and during normal business hours, so as not to interfere
unreasonably with the Servicer's or any Obligor's, as the case may be, normal
operations or customer or employee relations, at such offices of the Servicer or
such Obligor, as the case may be, designated by the Servicer or an Obligor,
respectively.
(b) The Servicer shall at all times during the term hereof either (x)
keep available in physical form for inspection by the Trustee, or any of the
Trustee's duly authorized representatives, attorneys or accountants a list of
all Contracts then held as a part of each Series Trust Estate, together with a
reconciliation of such list to the List of Contracts and each of the Servicer's
Certificates, indicating the removals of Contracts from such List of Contracts
or (y) maintain electronic facilities which allow such a list and the
reconciliation thereof to be generated.
(c) The Servicer will maintain accounts and records, as to each
respective Contract serviced by the Servicer, that are accurate and sufficiently
detailed so as to permit (i) the reader thereof to know as of the most recent
Calculation Date the status of such Contract, including payments and recoveries
made and payments owing (and the nature of each), and (ii) reconciliation
between payments or recoveries on (or with respect to) each Contract and the
amounts from time to time deposited in the respective Series Account in respect
of such Contract.
(d) The Servicer will maintain its computerized accounts and records so
that (i) from and after the time of Pledge hereunder of each Contract to the
Trustee, the Servicer's accounts and records (including any back-up computer
archives) that refer to any Contract indicate clearly that the Contract is part
of a separate and distinct Series Trust Estate and (ii) the information relating
to such Contracts can be recreated in the event of the destruction of the
originals. Indication of a Contract being part of a Series Trust Estate will be
deleted from or modified on the Servicer's accounts and records when, and only
when, a Release Event has occurred with respect to such Contract.
(e) Nothing in this Section 6.09 shall derogate from the obligation of
the Servicer to observe any applicable law prohibiting disclosure of information
regarding the Brokers or Users, and the failure, as a result of such obligation
of the Servicer, to provide access as provided in this Section 6.09 shall not
constitute a breach of this Section 6.09.
(f) No person entitled to receive copies of such reports or tapes shall
disclose the information therein to any Person, except such disclosures as are
required upon appointment of a successor Servicer or by law, except when the
Servicer consents to the disclosure of any material nonpublic information with
respect to it (i) to any other such party, (ii) to any
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prospective or actual assignee or participant of any of them, (iii) by the
Trustee to any Rating Agency, commercial paper dealer or Support Provider, or
any entity organized for the purpose of purchasing, or making loans secured by,
financial assets for which any Noteholders' Agent provides managerial services
or acts as the administrative agent and (iv) to any officers, directors,
employees, outside accountants and attorneys of any of the foregoing.
Section 6.10. Other Necessary Data. The Servicer shall, on request of
the Trustee, furnish the Trustee such data necessary for the Trustee to
discharge its obligations with respect to each Series Trust Estate and the
related Notes as can be generated by the Servicer's existing data processing
systems; provided, that to the extent that the Servicer's existing data
processing systems cannot generate such data, the Servicer will cooperate with
the Trustee in finding a method of furnishing such data; however, the Servicer
shall not be obligated to provide such a method. The Servicer will cooperate in
generating additional data reasonably requested by the Trustee.
Section 6.11. Release of Contracts.
(a) Each of the following events shall herein be a "Release Event": (i)
payment in full of any Contract by the User or by any Person on behalf of such
User, (ii) any removal of a Contract by the related Obligor pursuant to Section
6.15 hereof, (iii) the Servicer's reasonable determination that all Residual
Receipts with respect to any Defaulted Contract have been received, (iv)
delivery to the Servicer by an Obligor of evidence that a Defaulted Contract has
been sold and the sale proceeds deposited as Recoveries into the appropriate
Series Account, or (v) any removal of a Contract by the related Obligor pursuant
to subsection 6.12. Upon each Release Event, the Servicer will so notify the
Trustee on the next succeeding Determination Date or such other date as the
Servicer deems appropriate by certification to the Trustee from a Servicing
Officer, which certification shall include a statement to the effect that all
amounts received in connection with such Release Event have been remitted to the
appropriate Series Account and may request delivery of the Contract to the
Servicer or other person designated by the Servicer.
Upon the Trustee's receipt of such certification and request (subject
to its confirmation of the receipt of the required funds in the appropriate
Series Account), such Contract and the related Pledged Property appurtenant
thereto shall be deemed to be released from the related Series Trust Estate.
Upon release of such Contract, the Servicer is authorized to execute an
instrument in satisfaction of such Contract and to do such other acts and
execute such other documents as it deems necessary to discharge the User
thereunder (except that such release shall not be granted if the release is
pursuant to (iv) in the immediately preceding paragraph) and release the related
Equipment (v) to the related User in the event of a Release Event described in
clause (i) of the immediately preceding paragraph, (w) to or upon the direction
of the related Obligor in the event of a Release Event described in clause (ii)
of the immediately preceding paragraph, (x) to the Person, if any, purchasing
the related Equipment in the event of a Release Event described in clause (iii)
of the immediately preceding paragraph, or, if no person is purchasing such
Equipment, to the related Obligor, (y) to the purchaser of the Contract in the
event of a release
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under clause (iv) of the immediately preceding paragraph, and (z) to the related
Obligor in the event of a Release Event described in clause (v) of the
immediately preceding paragraph.
(b) With respect to all Contracts so released, the Trustee shall
assign, without recourse, representation or warranty, to the appropriate Person
as directed by the Servicer, all of the Trustee's right, title and interest in
and to such Contract and Pledged Property appurtenant thereto, such assignment
being an assignment outright and not for security. Such Person will thereupon
own such Contract and related Pledged Property appurtenant thereto free of any
further obligation to the Trustee or the Noteholders with respect thereto. The
Trustee shall also execute and deliver all such other instruments or documents
as shall be reasonably requested by any such Person to be required or
appropriate to effect a valid transfer of title to a Contract and the Pledged
Property appurtenant thereto. Any instrument or documents required to be
executed by the Trustee pursuant to this subsection 6.11(b) shall be prepared by
the Servicer (or such Person) at the Servicer's (or such Person's) expense;
provided, that if the Servicer is not Advanta Business Services Corp. or any of
its Affiliates, then any such expenses to be paid by the Servicer pursuant to
this subsection 6.11(b) shall be paid by the Obligors.
Section 6.12. Removal Related to Upgrades or Trade-Ins and to Defaulted
Contracts.
(a) In the event that a User requests an upgrade or trade-in of
Equipment, the Obligors may remove the Equipment and the related Contract from
the related Series Trust Estate during any Collection Period by remitting to the
Trustee the applicable Prepayment Amount for deposit in the appropriate Series
Account on or prior to the Determination Date relating to such Collection
Period.
(b) The Servicer may, at its option, during any Collection Period
remove any Defaulted Contract and the Related Security from the related Series
Trust Estate by deposit by the Servicer of the applicable Prepayment Amount in
the appropriate Series Account on or prior to the Determination Date relating to
such Collection Period; provided, however, that the terms under which such
removal may occur shall be set forth in the applicable Series Supplement and
provided that aggregate amount of such removals shall not exceed __ % of the
initial aggregate Contract Principal Balance, calculated as of the Settlement
Date, of the related Series Trust Estate.
Section 6.13. Notification to Noteholders of Defaults and Events of
Default. The Servicer shall promptly notify the Trustee of any Default or any
Event of Default upon the receipt of actual knowledge thereof by a Servicing
Officer, and the Trustee shall promptly thereupon give written notice thereof to
each of the Series Controlling Parties and each of the Series Support Providers.
Section 6.14. Security Deposits. [The Servicer acknowledges that the
Security Deposits are held by Obligors on behalf of the Users and the Trustee.]
In the event that (i) any User requests that a Security Deposit be applied as an
offset against such User's payment obligations or Booked Residual Value under a
Contract or (ii) any Contract becomes a Defaulted Contract, the Servicer shall
deliver to the appropriate Obligor written demand that such Obligor remit to
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the Servicer, on the next Business Day, out of the applicable User's Security
Deposit an amount (the "Offset Amount") equal to the lesser of (a) the amount of
such Security Deposit and (b) the amount of all unpaid and remaining Scheduled
Payments and Booked Residual Value as payment in respect of, first, any unpaid
Scheduled Payments under the related Contract, and second, any unpaid Booked
Residual Value under the related Contract. The Servicer shall deposit any Offset
Amount so delivered to it into the appropriate Series Account within two
Business Days after its receipt thereof. The Servicer shall not be required to
remit from its own funds any Offset Amounts not received from the Obligor.
The Servicer shall notify the appropriate Obligor in writing, of any
demand it receives from a User for refund of such User's Security Deposit at the
end of the term of the related Contract.
In no event shall the Trustee or any Noteholder be liable to any User
with respect to the Security Deposits. The Servicer shall indemnify and hold
harmless the Trustee and the Noteholders for any loss, cost and expense
(including legal fees and expenses incurred by such parties in connection with
the prosecution of claims made in connection therewith) suffered as a result of
the Servicer's misappropriation or misapplication of any Security Deposit
received by it from an Obligor. This right of indemnification shall survive the
termination of this Master Agreement.
Section 6.15. Removal of Nonconforming Pledged Property. Upon discovery
by an Obligor, the Trustee or the Servicer of a breach of any of the
representations or warranties of the Originator set forth in the related Master
Sale Agreement or Sale Agreement Supplement with respect to any Contract, the
related Equipment or the related Contract File, as the case may be, the party
discovering such breach shall give prompt written notice to the other parties.
Except as specifically provided herein, the Trustee has no obligation to review
or monitor the Pledged Property for compliance with such representations and
warranties. As of the last day of the calendar month in which such breach was
discovered or, if later, the last day of the calendar month in which the
Servicer received the notice thereof (or, at the Servicer's and such Obligor's
election, any earlier date), the Servicer, unless such breach shall have been
waived or cured in all material respects prior to such time, shall notify the
appropriate Obligor of such breach and the appropriate Obligor shall remove such
Contract and the related Pledged Property from the related Series Trust Estate.
In consideration for the removal of such Pledged Property, the appropriate
Obligor shall, no later than the Determination Date prior to the Payment Date
next following such date, pay the Prepayment Amount to the Servicer for deposit
into the appropriate Series Account. Without limiting the foregoing in any way,
in the event of a breach of any representation or warranty of the Originator
contained in any Master Agreement or Sale Agreement Supplement that materially
and adversely affects any Contract or the related Contract File, unless the
breach shall have been cured on or before the last day of the calendar month in
which such breach was discovered or, if later, the last day of the calendar
month in which the Servicer received the notice thereof, the Servicer shall
notify the related Obligor of such breach and the related Obligor shall remove
such Contract.
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ARTICLE VII
ACCOUNTS
Section 7.01. Establishment of Series Accounts. The Obligors shall in
the respective Series Supplement direct the Trustee to establish and maintain
with respect to each Series such Series Accounts as the Obligors shall deem to
be appropriate.
Section 7.02. Investment of Funds in the Series Accounts. The Trustee,
at the written instruction of the Servicer, shall or, if the Servicer fails to
so give such instruction, may, at the Trustee's sole discretion, invest the
amounts from time to time on deposit in the Series Accounts in Eligible
Investments or any other investments permitted by the Series Supplement.
ARTICLE VIII
THE SERVICER AND THE OBLIGORS
Section 8.01. Liability of Servicer; Indemnities.
(a) The Servicer shall be liable in accordance herewith only to the
extent of the obligations specifically undertaken by the Servicer herein and in
the Series Supplements.
(b) Without in any way limiting the foregoing, the Servicer shall
indemnify and hold harmless the Trustee, the Obligors, the Noteholders, any
Series Support Provider and any permitted assignee of any of the foregoing (each
an "Indemnified Party" and collectively, the "Indemnified Parties") from and
against any claims, expenses, losses or liabilities (including, without
limitation, attorneys' fees and court costs) suffered or incurred by any
Indemnified Party (collectively, "Indemnified Amounts") arising out of or
resulting in connection with (i) any breach by the Servicer of its
representations and warranties or of its obligations under this Master Agreement
or under any Series Supplement or (ii) from the use, repossession or operation
of the Equipment by the Servicer or any of its Affiliates.
(c) The Servicer shall pay any amounts owing pursuant to subsection
8.01(b) hereof directly to the applicable Indemnified Parties entitled to the
receipt thereof, and such amounts shall not be deposited in any Series Account.
Any request by any Indemnified Party for indemnity pursuant to this Section 8.01
shall be made in writing delivered to the Servicer and the Trustee describing in
reasonable detail the amount thereof and the circumstances giving rise thereto.
The Servicer shall pay any such Indemnified Amounts within 30 days after its
receipt of any such request therefor; it being understood and agreed, however,
that payment of such amount shall not constitute a waiver of the Servicer's
right to contest the basis for such indemnity so long as the Servicer provides
written notice to the applicable Indemnified Party at the time of the Servicer's
payment of the respective Indemnified Amounts, which written notice shall state
the basis, in reasonable detail, for the Servicer's dispute of the requested
Indemnified Amount.
(d) Indemnification under this Section 8.01 shall include, without
limitation, reasonable fees and expenses of counsel and expenses of litigation
reasonably incurred. If the
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Servicer has made any indemnity payments to any of the Indemnified Parties
pursuant to this Section 8.01 and such party, thereafter collects any of such
amounts from others, such party will promptly pay such amounts collected to the
Servicer, without interest.
(e) Notwithstanding anything contained herein to the contrary, if and
to the extent that the Servicer is the Trustee or any successor Servicer
appointed by the Trustee then such Servicer shall only be responsible pursuant
to this Section 8.01 for any such amounts suffered or incurred by any such
indemnified party hereunder as a result of the Trustee's or such other successor
Servicer's negligence or willful misconduct.
(f) The agreements contained in this Section 8.01 shall survive the
Final Date of the last outstanding Series and the termination of this Master
Agreement and any applicable Series Supplement.
Section 8.02. Merger, Consolidation, or Assumption of the Obligations
of Servicer. Any corporation (i) into which the Servicer may be merged or
consolidated, (ii) resulting from any merger or consolidation to which the
Servicer shall be a party or (iii) succeeding to the business of the Servicer,
shall be the successor to the Servicer hereunder without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding, and such corporation in any of
the foregoing cases shall execute an agreement of assumption, in a form
reasonably satisfactory to the Trustee, agreeing to perform every obligation of
the Servicer hereunder and under each Series Supplement. Any corporation
succeeding to the business of the Servicer by merger, consolidation or otherwise
shall be a corporation organized and existing under the laws of the United
States or any State and have a tangible net worth of at least $20,000,000. The
Servicer shall provide prompt written notice of the effectiveness of any such
event to the Obligors and the Trustee.
In addition to the provisions set forth in the preceding paragraph, if
the Servicer is an Affiliate of Advanta Corp., the Servicer may transfer all of
its duties, obligations, rights and privileges as Servicer under this Master
Agreement and all Supplements hereto to such Affiliate of Advanta Corp. provided
that the then Servicer shall give 30 days prior written notice of such change to
the Trustee, each of the Obligors and each Series Controlling Person and the
entity assuming the Servicer position shall execute an agreement of assumption,
in a form reasonably satisfactory to the Trustee agreeing to perform every
obligation of the Servicer hereunder and under each Series Supplement. Upon the
execution and delivery to the Trustee of such written assumption such Affiliate
of Advanta Corp. shall become the Servicer hereunder and under each Series
Supplement without any further act on the part of any of the parties hereto and
the entity serving as servicer prior to such assumption shall be relieved of all
duties hereunder and shall cease to be the servicer. Any affiliate of Advanta
Corp. which becomes a Servicer under this paragraph shall not be required to
have a tangible net worth of at least $20,000,000.
Section 8.03. Limitation on Liability of Servicer and Others. No
directors, officers, employees or agents of the Servicer shall be under any
liability to the Trustee, the Obligors or any of the Noteholders, except as
provided in this Master Agreement, for any action taken or for refraining from
the taking of any action pursuant to this Master Agreement or for errors in
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judgment. The Servicer and any director or officer or employee or agent of the
Servicer may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising hereunder.
Except as provided herein, the Servicer shall not be under any obligation to
appear in, prosecute or defend any legal action that is not incidental to its
duties to service each Series Trust Estate in accordance with this Master
Agreement and each Series Supplement and that in its opinion may involve it in
any expense or liability; provided, however, that the Servicer may take any such
action that is reasonable and that may be necessary or desirable in respect of
this Master Agreement and each Series Supplement and the rights and duties of
the parties hereto and thereto and the interests of the Trustee hereunder and
thereunder. In the event the Servicer takes such action, the reasonably incurred
legal expenses and costs of such action and any liabilities resulting therefrom
shall be expenses, costs and liabilities of the related Series Trust Estate, and
the Servicer shall be entitled to be reimbursed therefor in accordance with the
terms hereof.
Section 8.04. Servicer Not to Resign. Subject to the provisions of
Section 8.02 hereof, the Servicer shall not resign from the obligations and
duties hereby imposed on it as Servicer except upon determination that the
performance of its duties hereunder is no longer permissible under applicable
law. No such resignation shall become effective until a successor Servicer shall
have assumed the responsibilities and obligations of the Servicer in accordance
with Section 9.02 hereof.
Section 8.05. Reserved.
Section 8.06. Indemnities of the Obligors.
(a) Without limiting any other rights which any of the Indemnified
Parties may have hereunder, under any Series Supplement or under applicable law,
each Obligor hereby agrees to indemnify each Indemnified Party from and against
any and all Indemnified Amounts arising out of:
(i) reliance on any representation or warranty or statement of
such Obligor made or deemed made by such Obligor under or in connection
with this Master Agreement, the Master Sale Agreement or in any of the
Series Related Documents to which such Obligor is a party or in any
certificate or report delivered in connection with any of the
foregoing, which shall have been incorrect in any material respect when
made;
(ii) the failure by such Obligor to comply with this Master
Agreement, the Master Sale Agreement or any of the Series Related
Documents to which any such Person is a party, or the failure by such
Obligor or the Originator, to comply with any applicable law, rule or
regulation with respect to any Contract,
(iii) the nonconformity of any Contract with any applicable
law, rule or regulation;
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(iv) the failure of such Obligor to vest and maintain in the
name of the Trustee a valid first priority perfected security interest
in the property pledged by such Obligor (except to the extent that such
perfection is not required with respect to Equipment);
(v) the failure of such Obligor to pay or cause to be paid
when due any taxes, including without limitation sales, excise or
personal property taxes payable in connection with any of the Contracts
or any of the Equipment, to the extent required by Section 14.08
hereof.
(b) Any request by any Indemnified Party for indemnity pursuant to this
Section 8.06 shall be made in writing delivered to the affected Obligor and the
Trustee describing in reasonable detail the amount thereof and the circumstances
giving rise thereto. The related Obligor(s) shall pay any such Indemnified
Amounts within 30 days after its receipt of any such request therefor; it being
understood and agreed, however, that payment of such amount shall not constitute
a waiver of the Obligors' right to contest the basis for such indemnity so long
as the Obligor provides written notice to the applicable Indemnified Party at
the time of the affected Obligor's payment of the respective Indemnified
Amounts, which written notice shall state the basis, in reasonable detail, for
the Obligor's dispute of the requested Indemnified Amount.
(c) The agreement contained in this Section 8.06 shall survive the
Final Date of the last outstanding Series and the termination of this Master
Agreement and any applicable Series Supplement.
Section 8.07. Limitation on Liability of the Obligors. The directors,
officers, employees or agents of any Obligor shall not be under any liability to
the Trustee, the Noteholders, the Originator, the Servicer, any Series Support
Provider or any other Person hereunder or pursuant to any document delivered
hereunder, it being expressly understood that all such liability is expressly
waived and released as a condition of, and as consideration for, the Obligor's
execution and delivery of this Master Agreement and the issuance of the Notes.
The Obligors may rely in good faith on any document of any kind prima facie
properly executed and submitted by any other Person respecting any matters
arising hereunder.
ARTICLE IX
SERVICER TERMINATION
Section 9.01. Events of Servicer Termination.
(a) If any of the following events (each, an "Event of Servicer
Termination") shall occur and be continuing:
(i) any failure by the Servicer to make any payment, transfer
or deposit, or, if applicable, to give instructions or notice to the
Trustee to make such payment, transfer or deposit, relating to the
payment of the principal of or interest on any Note, in either case, on
or before the fifth calendar day following the date such payment,
transfer or deposit or
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such instruction or notice is required to be made or given, as the case
may be, under the terms of this Master Agreement or any applicable
Series Supplement; or
(ii) the Servicer shall fail to perform or observe any other
term, covenant or agreement hereunder, under the Master Sale Agreement,
or in any Series Related Document (other than as described in clause
(i) above), with the result that the interests of the Trustee, the
Noteholders or any Series Support Provider have been materially and
adversely affected, and such failure shall remain unremedied for 30
calendar days after the receipt by the Servicer of written notice of
such failure from the Trustee;
(iii) any representation, warranty, certification or statement
made by the Servicer in this Master Agreement, the Master Sale
Agreement, in any Series Related Document or in any other document
delivered pursuant hereto or thereto shall prove to have been incorrect
in any material respect when made; provided, however, that the breach
of any representation or warranty made by the Servicer will be deemed
to be "material" only if it affects the Noteholders, the enforceability
of the Master Agreement or a Series Supplement or the Notes; and
provided further that such material breach of any representation or
warranty made by the Originator or a successor thereto in the Master
Sale Agreement or any Sale Agreement Supplement with respect to any of
the Contracts or the Equipment subject thereto will not constitute an
Event of Servicer Termination if the Originator repurchases such
Contract and the Equipment in accordance with the Master Sale Agreement
and the Sale Agreement Supplement in the manner provided therein.
(iv) an Insolvency Event shall occur with respect to the
Servicer;
then, and in each and every case, so long as an Event of Servicer Termination
shall be continuing, the Trustee may, and, at the direction of a majority in
aggregate principal amount of Notes Outstanding, shall, by notice (the "Servicer
Termination Notice") then given in writing to the Servicer, terminate all, but
not less than all, of the rights and obligations of the Servicer under this
Master Agreement and each Series Related Document.
(b) On and after the time the Servicer receives a Servicer Termination
Notice pursuant to this Section 9.01, all authority and power of the Servicer
under this Master Agreement and each Series Related Document, whether with
respect to the Notes or each Series Trust Estate or otherwise, shall pass to and
be vested in the successor Servicer appointed pursuant to Section 9.02 hereof
and, without limitation, such successor Servicer is hereby authorized and
empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact
or otherwise, any and all documents and other instruments, and to do or
accomplish all other acts or things necessary or appropriate to effect the
purposes of such Servicer Termination Notice, whether to complete the transfer
of each Series Trust Estate and related documents or otherwise.
The Servicer agrees to cooperate with the Trustee and the successor
Servicer in effecting the termination of the responsibilities and rights of the
Servicer hereunder, including, without limitation, the transfer to the successor
Servicer for administration by it of all cash amounts that shall at the time be
held by the Servicer for deposit, or have been deposited by the Servicer, in
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the Advance Payment Account or the Master Facility Account or thereafter
received with respect to the related Series Trust Estate. To assist the
successor Servicer in enforcing all rights with respect to any Related Security
or under Broker Agreements and Insurance Policies to the extent that they relate
to the Contracts, the Servicer, at its own expense, shall transfer its
electronic records relating to such Contracts to the successor Servicer in such
electronic form as the successor Servicer may reasonably request and shall
transfer the related Contract Files and all other records, correspondence and
documents relating to the Contracts that it may possess to the successor
Servicer in the manner and at such times as the successor Servicer shall
reasonably request. In addition to any other amounts that are then payable to
the Servicer under this Master Agreement or any Series Related Document, the
Servicer shall be entitled to receive reimbursement for any unreimbursed
Servicer Advances made during the period prior to the delivery of a Servicer
Termination Notice pursuant to this Section 9.01.
Section 9.02. Trustee to Act; Appointment of Successor. On and after
the time the Servicer receives a Servicer Termination Notice pursuant to Section
9.01, the Trustee shall without further action be the successor in all respects
to the terminated Servicer in its capacity as Servicer under this Master
Agreement, the Master Sale Agreement and each Series Related Document and the
transactions set forth or provided for herein and therein and shall be subject
to all the responsibilities, duties and liabilities relating thereto placed on
the Servicer by the terms and provisions hereof and thereof; provided, however,
that (a) the Trustee shall be permitted in its sole discretion, but shall have
no obligation, to make any Servicer Advances and (b) the Trustee shall not be
liable for any acts or omissions of the terminated Servicer or for any breach by
either the terminated Servicer or the Originator of any of their respective
representations and warranties contained herein, in the Master Sale Agreement,
in any other Series Related Document or in any related document or agreement. As
compensation for acting as Servicer hereunder, the Trustee shall be entitled to
the payment of the Servicer Fee and other compensation (whether payable out of
the Master Facility Account or otherwise) as the terminated Servicer would have
been entitled to hereunder if no such Servicer Termination Notice had been
given.
Notwithstanding the foregoing, the Trustee may or, upon the direction
of a majority in aggregate principal amount of Notes Outstanding, shall appoint
any servicing entity acceptable to or designated by a majority in aggregate
principal amount of Notes Outstanding to act as the successor to the Servicer
hereunder and to assume (prospectively) all responsibilities, duties or
liabilities of the Servicer hereunder, provided that any such servicing entity
has a net worth of, or is a member of a consolidated group of entities which has
a net worth of, not less than $20,000,000 and whose regular business includes
the servicing of receivables of a similar nature to the Contracts and the
Equipment. In connection with such appointment and assumption, the Trustee may
make such arrangements for the payment of a Servicer Fee to such successor
Servicer in such an amount as the Trustee and such successor Servicer shall
agree; provided, however, that except as set forth in the immediately succeeding
paragraph no such agreed upon Servicer Fee shall be in excess of the Servicer
Fee then being received by the Servicer; and provided further that in no event
shall the Trustee be liable to any successor Servicer for the Servicer Fee or
any additional amounts payable to such successor Servicer, either pursuant to
this Master Agreement, any Series Related Document or otherwise. The Trustee and
such successor
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Servicer shall take such action, consistent with this Master Agreement, as shall
be necessary to effectuate any such succession.
Notwithstanding the foregoing, if the Trustee is not legally permitted
to act as Servicer under any applicable law and the Trustee is unable to engage
a successor Servicer willing to act as Servicer for a fee equal to or less than
the Servicer Fee then being received by the Servicer then the Trustee may
solicit bids from not less than three entities currently engaged in businesses
similar to that of the Originator (at the time of the origination of the
Contracts) or providing servicing services similar to that of the Servicer
which, in either case, are qualified to act as successor Servicer pursuant to
this Section 9.02 and appoint the qualified entity submitting the proposal to
act as successor Servicer for the lowest fee, even if such fee exceeds the
Servicer Fee as calculated by reference to the Original Servicer Fee Rate (such
higher fee being an "Increased Servicer Fee") and the difference between such
Increased Servicer Fee and the Original Servicer Fee shall be the "Increased
Servicer Fee Differential". Any Increased Servicer Fee Differential shall be
payable in the manner and with the priority set forth in each of the Series
Supplements solely out of funds available for such purpose; provided, that any
such Increased Servicer Fee Differential not paid when due as a result of there
not being sufficient available funds therefor on any Payment Date shall be
payable on any future Payment Date to the extent amounts are then available for
the payment thereof.
Section 9.03. Notification to Noteholders. The Servicer shall promptly
notify the Trustee and the Obligors of any Event of Servicer Termination upon
the receipt of actual knowledge thereof by a Servicing Officer, and the Trustee
shall promptly thereupon give written notice thereof to each of the Series
Controlling Parties and each of the Series Support Providers. Upon any
termination of, or appointment of a successor to, the Servicer pursuant to this
Article IX, the Trustee shall give prompt written notice thereof to each of the
Series Controlling Parties, the Noteholders, the Series Support Providers, the
Obligors and the Originator.
Section 9.04. Waiver of Past Events of Servicer Termination. A majority
in aggregate principal amounts of Notes Outstanding, on behalf of all
Noteholders may waive any default by the Servicer in the performance of its
obligations hereunder and its consequences. Upon any such waiver of a past
default, such default shall cease to exist, and any Event of Servicer
Termination arising, therefrom shall be deemed to have been remedied for every
purpose of this Master Agreement. No such waiver shall extend to any subsequent
similar or dissimilar default or impair any right consequent thereon except to
the extent expressly waived in accordance with this Section 9.04.
Section 9.05. Effects of Termination of Servicer.
(a) Upon the appointment of the successor Servicer, the terminated
Servicer shall hold in trust for the Trustee and immediately remit any Scheduled
Payments, Residual Receipts, Recoveries, Overdue Payments, Security Deposit,
Insurance Proceeds, Advance Payments, Prepayment Amounts, and proceeds of any
Related Security that it may receive pursuant to any Contract, any Broker
Agreement, Insurance Policy or otherwise to the successor Servicer for the
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benefit of the Trustee; provided, that amounts representing Security Deposits
shall be remitted as required by paragraph (b) below.
(b) After the delivery of a Servicer Termination Notice, the terminated
Servicer shall have no further obligations with respect to the management,
administration or servicing of any Series Trust Estate or the enforcement,
custody or collection of the Contracts, and the successor Servicer shall have
all of such obligations, except that the terminated Servicer will transmit or
cause to be transmitted directly to the successor Servicer for the benefit of
the Trustee (i) promptly upon receipt and in the same form in which received,
any amounts held or received by the former Servicer (properly endorsed where
required for the successor Servicer to collect them) as payments upon or
otherwise in connection with Contracts or any Series Trust Estate and (ii) when
and as required by Section 6.14 hereof, amounts representing Security Deposits.
The terminated Servicer's indemnification obligations pursuant to Section 8.01
hereof will survive its termination as the Servicer hereunder but will not
extend to any acts or omissions of any successor Servicer.
(c) Notwithstanding Section 9.05(b) hereof, it is hereby agreed by the
parties hereto that unless the Originator is Servicer, hereunder, the Obligors,
upon the request of the Trustee, shall instruct the Originator pursuant to the
Master Sale Agreement to exercise any rights under any Contract or guaranty
thereof, Insurance Policy for the benefit of the Trustee and the related Series
Secured Parties.
(d) An Event of Servicer Termination shall not affect the rights and
duties of the parties hereunder other than those relating to the management,
administration, servicing, custody or collection of the Contracts or the payment
of certain expenses by the successor Servicer, in each case, as expressly set
forth herein.
ARTICLE X
EVENTS OF DEFAULT AND REMEDIES
Section 10.01. Events of Default. The "Events of Default," with respect
to a Series, shall be set forth in the related Series Supplement.
Section 10.02. Collection of Indebtedness and Suits for Enforcement by
Trustee: Authority of Controlling Party.
(a) Subject to the provisions of the related Series Supplement, if the
Notes of any Series are accelerated following the occurrence of an Event of
Default with respect to such Series, there shall be due and payable (but only
from the funds available from the related Series Trust Estate), the whole amount
then due and payable on such Notes for principal and interest, with interest
upon the overdue principal, and, to the extent payment at such rate of interest
shall be legally enforceable, upon overdue installments of interest, at the
interest rate applicable to the Notes of such Series and in addition thereto
such further amount as shall be sufficient to cover
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the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee and its agents and counsel.
(b) If an Event of Default occurs and is continuing with respect to a
Series, the Trustee shall at the discretion of the related Series Controlling
Party, proceed to protect and enforce its rights and the rights of the
Noteholders of such Series by such appropriate Proceeding as the Trustee shall
deem most effective to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Master Agreement or
the related Series Supplement or in aid of the exercise of any power granted
herein or therein, or to enforce any other proper remedy or legal or equitable
right vested in the Trustee by this Master Agreement, the related Series
Supplement, or by law.
(c) In case there shall be pending, relative to any Obligor or any
other obligor upon the Notes or to the Originator or the Servicer or any Person
having or claiming an ownership interest in the related Series Trust Estate,
Proceedings under Title 11 of the United States Code or any other applicable
Federal or state bankruptcy, insolvency, receivership, conservatorship or other
similar law, or in case a receiver, conservator, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar official shall
have been appointed for or taken possession of any Obligor or any substantial
part of its property or such other obligor or Person, or in case of any other
comparable judicial Proceedings relative to such Obligor or other obligor upon
the Notes of such Series, or to the creditors or property of such Obligor or
such other obligor, the Trustee, irrespective of whether the principal of any
Notes of such Series shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand pursuant to the provisions of this Section, shall be entitled and
empowered, by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount
of principal and interest owing and unpaid in respect of such Notes and
to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee against the related Series
Trust Estate (including, any claim for reasonable compensation to the
Trustee and each predecessor Trustee, and their respective agents,
attorneys and counsel, and for reimbursement of all expenses and
liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee, except as a result of negligence or bad faith) and
of the Noteholders of such Series allowed in such Proceedings;
(ii) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of Notes of such Series in any election
of a trustee, a standby-trustee or person performing similar functions
in any such Proceedings;
(iii) to collect and receive any moneys or other property
payable or deliverable on such claims and received with respect to the
related Series Trust Estate and to distribute all amounts received with
respect to the claims of the Noteholders of such Series and of the
Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims
of the Trustee or the Holders of Notes
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of such Series, in each case against the related Series Trust Estate,
allowed in any judicial proceedings relative to the Obligors, its
creditors and its property; and any trustee, receiver, liquidator,
custodian or other similar official in any such Proceeding is hereby
authorized by each of such Noteholders to make payments to the Trustee,
and, in the event that the Trustee shall consent to the making of
payments directly to such Noteholders, to pay to the Trustee such
amounts as shall be sufficient to cover reasonable compensation to the
Trustee, each predecessor Trustee and their respective agents,
attorneys and counsel, and all other expenses and liabilities incurred,
and all advances made, by the Trustee and each predecessor Trustee
except as a result of negligence or bad faith.
(d) Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or vote for or accept or adopt on behalf of any
Noteholder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Noteholder in any such proceeding
except, as aforesaid, to vote for the election of a trustee in bankruptcy or
similar Person.
(e) All rights of action and of asserting claims under this Master
Agreement, the related Series Supplement, or under any of the Notes, may be
enforced by the Trustee without the possession of any of the Notes or the
production thereof in any trial or other Proceedings relative thereto, and any
such action or Proceedings instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgement, subject to
the payment of the expenses, disbursements and compensation of the Trustee, each
predecessor Trustee and their respective agents and attorneys, shall be for the
ramble benefit of the Holders of the related Notes.
(f) In any Proceedings brought by the Trustee (including any
Proceedings involving the interpretation of any provision of this Master
Agreement or the related Series Supplement), the Trustee shall be held to
represent all the Holders of the related Notes, and it shall not be necessary to
make any Noteholder a party to any such Proceedings.
Section 10.03. Limitation on Suits. No Holder of any Note shall have
any right to institute any Proceeding, judicial or otherwise, with respect to
this Master Agreement or the related Supplement, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with
respect to the Notes of the related Series;
(2) the Holders of not less than 50% of the Outstanding
Amount of the Notes of the related Series shall have
made written request to the Trustee to institute such
Proceeding in respect of such Event of Default in its
own name as Trustee hereunder;
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(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such
request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to
institute any such Proceeding;
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day
period by the Holders of a majority of the
Outstanding Amount of the Notes of the related
Series; and
(6) if any Series Support secures such Series, a Support
Default shall have occurred and be continuing.
It is understood and intended that no one or more of the Holders shall
have any right in any manner whatever hereunder or under the Notes to (i)
affect, disturb or prejudice the rights of the Holders of any other Notes, (ii)
obtain or seek to obtain priority or preference over any other such Holder or
(iii) enforce any right under this Master Agreement, except in the manner herein
provided and for the equal, ratable and common benefit of all such Holders.
Section 10.04. Unconditional Right of Holders to Receive Principal and
Interest. Subject to the provisions of Section 3.06 hereof, the Holder of any
Note shall have the right, which is absolute and unconditional, to receive
payment of the principal of and interest on such Note on or after the respective
due dates thereof expressed in such Note, in this Master Agreement or the
related Series Supplement and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder; provided, however, that (x) if such Series is secured by any Series
Support, then, so long as no Support Default shall have occurred and be
continuing, no such suit shall be instituted and (y) in no event shall such
right entitle any Holder to a payment from a source of funds other than the
related Series Trust Estate.
Section 10.05. Restoration of Rights and Remedies. If any of the
Trustee, the related Series Support Provider or any Holder has instituted any
Proceeding, to enforce any right or remedy under this Master Agreement (or the
related Series Supplement) and such Proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee, the
related Series Support Provider or to such Holder, then and in every such case,
subject to any determination in such Proceeding, the Obligors, the Trustee, the
related Series Support Provider and the related Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee, the related Series Support Provider and
the related Holders shall continue as though no such Proceeding had been
instituted.
Section 10.06. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen securities in the last paragraph of Section 5.05, no right or
remedy herein conferred upon or reserved to any of the Trustee, the related
Series Controlling Party or to the related Holders is intended to be exclusive
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of any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 10.07. Delay or Omission Not Waiver. No delay or omission of
any of the Trustee, the related Series Controlling Party or any Holder of any
related Note to exercise any right or remedy accruing upon any related Default
or related Event of Default shall impair any such right or remedy or constitute
a waiver of any such related Default or related Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the related Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the related Holders, as
the case may be.
Section 10.08. Control by Holders. If the Trustee is the Series
Controlling Party with respect to a Series, the Holders of a majority of the
Outstanding Amount of the Notes with respect to such Series shall have the right
to direct the time, method and place of conducting any Proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Notes; provided that
(1) such direction shall not be in conflict with any rule
of law, with this Master Agreement or with the
related Series Supplement, and
(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such
direction.
Section 10.09. Waiver of Past Defaults. The Series Controlling Party
with respect to a Series may, on behalf of the Holders of all the Notes of the
related Series waive any past Default relating to such Series or Event of
Default relating to such Series hereunder and its consequences, except a Default
relating to such Series:
(1) in the payment of the principal of or interest, if
any, on any Note of the related Series, or
(2) in respect of a covenant or provision hereof which
cannot be modified or amended without the consent of
the Holder of each Outstanding Note of the related
Series affected.
The Trustee may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to waive any past Default or
Event of Default of the related Series. If a record date is fixed, the Holders
of the related Series on such record date, or their duly designated proxies, and
only such Persons, shall be entitled to waive any such Default or Event of
Default, whether or not such Holders remain Holders after such record date; and
unless such majority in principal amount shall have been obtained prior to the
date which is 90
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days after such record date, any such waiver previously given shall
automatically and without further action by any Holder be cancelled and of no
further effect.
Upon any such waiver, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Master Agreement and each applicable Series Supplements; but no
such waiver shall extend to any subsequent or other Default or Event of Default
or impair any right consequent thereon.
Section 10.10. Undertaking for Costs. All parties to this Master
Agreement and the related Series Supplement agree, and each Holder of any Note
by such Holder's acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Master Agreement or the related Series Supplement, or
in any Suit against the Trustee for any action taken, suffered or omitted by it
as Trustee, the filing by any party litigant in such suit of an undertaking to
pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Obligors, to any suit
instituted by the Trustee or any Series Support Provider, to any suit instituted
by any Holder, or group of Holders, holding in a the aggregate more than 10% of
the Outstanding Amount of the Notes of the related Series, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of
or interest on any Note on or after the respective due dates expressed in such
Note and the related Series Supplement.
Section 10.11. Action on Notes. The Trustee's right to seek and recover
judgment on the Notes or under this Master Agreement or any Series Supplement
shall not be affected by the seeking, obtaining or application for any other
relief under or with respect to this Master Agreement or such Series Supplement.
Neither the lien hereof, the related Series Supplement nor any rights or
remedies of the Trustee or the Noteholders shall be impaired by the recovery of
any judgment by the Trustee against the Obligors or by the levy of any execution
under such judgment upon any portion of the related Series Trust Estate or upon
any of the assets of the Obligors.
ARTICLE XI
THE TRUSTEE
Section 11.01. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with respect
to a Series:
(1) the Trustee undertakes to perform with respect to
such Series such duties and only such duties as are
specifically set forth in this Master Agreement
and/or the related Series Supplement, and no implied
covenants or
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obligations shall be read into this Master Agreement
or the related Series Supplement against the Trustee;
and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the
requirements of this Master Agreement and/or the
related Series Supplement; but in the case of any
such certificates or opinions which by any provision
hereof are specifically required to be furnished to
the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they
conform to the requirements of this Master Agreement
and/or the related Series Supplement.
(b) If an Event of Default with respect to a Series has occurred and is
continuing, the Trustee shall exercise such of the rights and powers with
respect to such Series vested in it by this Master Agreement and/or the related
Series Supplement, and use the same degree of care and skill in their exercise,
as a prudent person would exercise or use under the circumstances in the conduct
of his or her own affairs.
(c) No provision of this Master Agreement or any Series Supplement
shall be construed to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct;
provided that
(1) this subsection shall not be construed to limit the
effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer,
unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good
faith in accordance with the direction of the related
Series Support Provider or, if the related Series
Support Provider is not a Series Controlling Party or
if there is no Series Support Provider for such
Series, the Holders of a majority of the Outstanding
Amount of the Notes of the related Series, relating
to the time, method and place of conducting any
proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the
Trustee, under this Master Agreement, the related
Series Supplement or the related Series Support with
respect to the Notes of the related Series; and
(4) no provision of this Master Agreement or the related
Series Supplement shall require the Trustee to expend
or risk its own funds or otherwise incur any
financial liability in the performance of any of its
duties hereunder or thereunder, or in the exercise of
any of its rights or powers, if it shall have
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reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not herein or therein expressly so provided, every
provision of this Master Agreement and the related Series Supplement relating to
the conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of paragraphs (a), (b) and (c) of this
Section.
(e) The Trustee shall not be liable for interest on any money received
by it.
(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law or the terms of this Master
Agreement or the related Series Supplement.
(g) The Trustee shall, upon one Business Day's prior notice received by
the Trustee, permit any representative of the related Series Controlling Party,
the Servicer and the Obligors or any representative of the related Series
Support Provider, if any, during the Trustee's normal business hours, to examine
all books of account, records, reports and other papers of the Trustee relating
to the Notes of the related Series, to make copies and extracts therefrom and to
discuss the Trustee's affairs and actions, as such affairs and actions relate to
the Trustee's duties with respect to such Notes, with the Trustee's officers and
employees responsible for carrying out the Trustee's duties with respect to such
Notes.
(h) In no event shall the Trustee be required to perform, or be
responsible for the manner of performance of, any of the obligations of any
Servicer, with respect to any Series except during such time, if any, as the
Trustee, in its capacity as Successor Servicer for such Series shall be the
successor to, and be vested with the rights, powers, duties and privileges of
the Servicer in accordance with the provisions of Section 9.02 hereof.
(i) The Trustee shall maintain or cause to be maintained, in the
Borough of Manhattan in the City of New York, an office or agency where Notes
may be surrendered for registration of transfer or exchange (except that Bearer
Notes may not be surrendered for exchange at any such office or agency in the
United States) and where notices and demands to or upon the Obligors in respect
of the Notes, this Master Agreement and the related Series Supplement may be
served.
Section 11.02. Notice of Defaults. If a Default or Event of Default
occurs and is continuing with respect to a Series and if it is known to a
Responsible Officer of the Trustee, the Trustee shall mail to each Noteholder of
the related Series notice of such Default or Event of Default promptly after it
occurs and shall notify the Obligors, the Originator, the Servicer and the
related Series Support Provider, if any, of any such Default or Event of Default
promptly after it occurs. Except in the case of a Default in payment of
principal of or interest on any Note, the Trustee may withhold the notice (but
not to the related Series Support Provider, if any, or the Obligors) if and so
long as a committee of its Responsible Officers in good faith determines that
withholding the notice is not materially adverse to the interest of the
Noteholders of the related Series.
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Section 11.03. Certain Rights of Trustee. Subject to the provisions of
Section 11.01:
(a) the Trustee may rely on, and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Obligors mentioned herein shall be
sufficiently evidenced by an Obligors' Order;
(c) whenever in the administration of this Master Agreement and/or any
Series Supplement the Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering, or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, request and rely upon an Officer's
Certificate;
(d) the Trustee may consult with counsel and the advice of such counsel
or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Master Agreement and/or any Series
Supplement at the request or direction of any of the related Series Support
Provider, if any, or the Holders of the related Series pursuant to this Master
Agreement, unless such Series Support Provider or such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction:
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation, into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the related Obligors, personally or by agent or
attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
Section 11.04. Not Responsible for Recitals or Issuance of Notes. The
recitals contained herein, in any Series Supplement and in the Notes, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Obligors, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Master Agreement, any Series Supplement
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or of the Notes, or any Series Trust Estate. The Trustee or any Authenticating
Agent shall not be accountable for the use or application by the Obligors of
Notes or the proceeds thereof.
Section 11.05. May Hold Notes. The Trustee, any Authentication Agent,
any Paying Agent, any Note Registrar or any other agent of the Obligors, in its
individual or any other capacity, may become the owner or pledgee of Notes and,
subject to Sections 11.07 and 11.12, may otherwise deal with the Obligors with
the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Note Registrar or such other agent.
Section 11.06. Compensation and Indemnity.
(a) The Obligors agree that the Trustee will be paid, and the Trustee
shall be entitled to, certain annual fees with respect to its administration of
the related Notes and the related Series Trust Estate, which shall not be
limited by any law on compensation of a Trustee of an express trust, and certain
reasonable out-of-pocket expenses incurred or made by it, including costs of
collection, in addition to the compensation for its services as more further set
forth in the related Series Supplement. The agreement with respect to such fees
and expenses shall be set forth in a separate agreement between the Trustee and
the Obligors. The Obligors also agree to cause to be provided to the Trustee
indemnity against any and all loss, liability or expense (including attorneys'
fees) incurred by it in connection with the administration of this trust and the
performance of its duties hereunder.
(b) When the Trustee incurs expenses after the occurrence of an
Insolvency Event with respect to any Obligor, the expenses are intended to
constitute expenses of administration under Title 11 of the United States Code
or any other applicable Federal or state bankruptcy, insolvency or similar law.
Notwithstanding anything else set forth in this Master Agreement, any Series
Supplement or any Series Related Documents, the Trustee agrees that the
obligations of the Obligors to the Trustee hereunder and under the related
Series Related Documents shall be recourse to the related Series Trust Estate
only. In addition, the Trustee agrees that its recourse to the Obligors and the
related Series Trust Estate shall be limited to the right to receive the
distributions as provided for in the payment priority provisions of the related
Series Supplement.
Section 11.07. Disqualification; Conflicting Interests. If this Master
Agreement is qualified under the Trust Indenture Act and if the Trustee has or
shall acquire a conflicting interest within the meaning of the Trust Indenture
Act, the Trustee shall either eliminate such interest or resign, to the extent
and in the manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Master Agreement.
Section 11.08. Corporate Trustee Required; Eligibility. There shall at
all times be a Trustee hereunder, which (a) shall be a commercial bank or trust
company or organized and doing business under the laws of the United States of
America or any State thereof, (b) shall have a combined capital and surplus of
at least $50,000,000, (c) a long term deposit rating of at least A3 from Moody's
or otherwise be acceptable to Moody's and a long-term deposit rating of at least
A- from S&P or otherwise be acceptable to S&P and (d) shall be authorized to
exercise corporate trust powers and be subject to supervision or examination by
Federal or State authority. If such commercial bank or trust company publishes
reports of condition at least annually,
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pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such commercial bank or trust company shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
Section 11.09. Resignation and Removal, Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 11.08.
(b) The Trustee may resign at any time with respect to the Notes by
giving written notice thereof to the Obligors. If the instrument of acceptance
by a successor Trustee required by Section 11.10 shall not have been delivered
to the Trustee within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Notes.
(c) The Trustee may be removed at any time with respect to the Notes by
Act of the Majority Control Parties, delivered to the Trustee and to the
Obligors.
(d) If at any time:
(1) The Trustee shall fail to comply with Section 11.07
after written request therefor by the Obligors or by
any Holder who has been a bona fide Holder of a Note
for at least six months, or
(2) the Trustee shall cease to be eligible under Section
11.08 and shall fail to resign after written request
therefor by the Obligors or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of
the Trustee or of its property shall be appointed or
any public officer shall take charge or control of
the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or
liquidation, then, in any such case, the Obligors
(with the consent of each Series Support Provider as
to which a Support Default has not occurred and is
continuing) may remove the Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Notes, the Obligors (with the consent of each Series Support
Provider as to which a Support Default has not occurred and is continuing) shall
promptly appoint a successor Trustee and shall comply with the applicable
requirements of Section 11.10.
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(f) The Obligors shall give notice of each resignation and each removal
of the Trustee with respect to the Notes and each appointment of a successor
Trustee with respect to the Notes by mailing written notice of such event by
first-class mail, postage prepaid, to all holders of Notes as their names and
addresses appear in the Note Register. Each notice shall include the name of the
successor Trustee with respect to the Notes and the address of its Corporate
Trust Office.
Section 11.10. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to the Notes, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Obligors, each Series Support Provider, if any
and to the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Obligors, the related Series
Support Provider, if any, or the successor Trustee, such retiring Trustee shall,
upon Payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) Upon request of any such successor Trustee, the Obligors and each
Obligor shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) of this Section.
Section 11.11. Merger, Conversion, Consolidation or Succession to
Business. Any corporation or other entity into which the Trustee may be merged
or converted or with which it may be consolidated, or any corporation or other
entity resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation or other entity succeeding to all
or substantially all the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such corporation or other entity
shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto. The Trustee shall provide the Obligors and each Series Support
Provider prompt notice of any such transaction after the completion thereof. In
case any Notes shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Notes so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Notes.
Section 11.12. Preferential Collection of Claims Against Obligors. If
this Master Agreement is ever qualified under the Trust Indenture Act, then the
provisions of Section 311 of the Trust Indenture Act shall govern.
Section 11.13. Appointment of Authenticating Agent. As of the date of
the Master Agreement and at any time when any of the Notes remain Outstanding
the Trustee may appoint an Authenticating Agent or agents with respect to one or
more Series or Classes of Notes which
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shall be authorized to act on behalf of the Trustee to authenticate Notes of
such Series or Class issued upon exchange, registration of transfer or partial
prepayment thereof, or pursuant to Section 5.05, and Notes so authenticated
shall be entitled to the benefits of this Master Agreement and shall be valid
and obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Master Agreement or any Series Supplement to
the authentication and delivery of Notes by the Trustee upon exchange,
registration of transfer or partial prepayment thereof or the Trustee's
certificate of authentication in connection therewith, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Obligors, shall be authorized under law and shall meet the
eligibility criteria established for the Trustee, as set forth in Section 11.08
hereof. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Obligors. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Obligors. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Obligors and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of the
related Notes, as their names and addresses appear in the Note Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section. No resignation or termination of an Authenticating
Agent shall become effective until a successor Authenticating Agent shall be
appointed and qualified hereunder or the Trustee assumes the duties of
Authenticating Agent hereunder.
The Obligors agree to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
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In the event an Authenticating Agent is appointed under this Master
Agreement, the Trustee shall incur no liability for such appointment or for any
misconduct or negligence of such Authenticating Agent, including without
limitation, its authentication of the Notes upon original issuance or pursuant
to Sections 5.03, 5.04 or 5.05. In the event the Trustee does incur liability
for any such misconduct or negligence of the Authentication Agent, the Obligors
agrees to indemnify the Trustee for, and hold it harmless against, any such
liability, including the costs and expenses of defending itself against any
liability in connection with such misconduct or negligence of the
Authenticating, Agent.
If an appointment with respect to one or more Series, Classes or
Tranches is made pursuant to this Section, the Notes of such Series or Classes
may have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
This is one of the Notes referred to in the within-mentioned Master
Agreement and the within-mentioned Supplement thereto.
-------------------------------,
as Trustee
By:
----------------------------------
as Authenticating Agent
By:
----------------------------------
Authorized Officer
Section 11.14. Paying Agent.
(a) The payment responsibilities for the Notes shall be performed by a
Paying Agent, appointed by the Obligors which shall be authorized to exercise
corporate trust powers and shall meet the eligibility criteria established for
the Trustee, as set forth in Section 11.08 hereof. The Trustee is hereby
initially appointed Paying Agent for the purpose of making payments on the Notes
as herein provided.
(b) Each Paying Agent shall be acceptable to the Obligors, shall be
authorized under law and shall meet the eligibility criteria established for the
Trustee, as set forth in Section 11.08 hereof. If such Paying Agent publishes
reports of condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Paying Agent shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time a Paying Agent shall cease to be eligible
in accordance with the provisions of this
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Section, such Paying Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which a Paying Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any mercer,
conversion or consolidation to which such Paying Agent shall be a party, or any
corporation succeeding to the corporate agency or corporate trust business of a
Paying Agent, shall continue to be a Paying Agent, provided such corporation
shall be otherwise eligible under this Section, without the execution or filing
of any paper or any further act on the part of the Trustee or the Paying Agent.
A Paying Agent may resign at any time by giving, written notice thereof
to the Trustee and to the Obligors. The Trustee may at any time terminate the
agency of a Paying Agent by giving a written notice thereof to such Paying Agent
and to the Obligors. Upon receiving- such a notice of resignation or upon such a
termination, or in case at any time such Paying Agent shall cease to be eligible
in accordance with the provisions of this Section, the Trustee may appoint a
successor Paying Agent which shall be acceptable to the Obligors and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all
Holders of the related Notes, as their names and addresses appear in the Note
Register. Any successor Paying Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as a Paying
Agent. No successor Paying Agent shall be appointed unless eligible under the
provisions of this Section. No resignation or termination of a Paying Agent
shall become effective until a successor Paying Agent shall be appointed and
qualified hereunder or the Trustee assumes the duties of Paying Agent hereunder.
The Obligors agree to pay to each Paying Agent from time to time
reasonable compensation for its services under this Section.
In the event a Paying Agent is appointed under this Master Agreement,
the Trustee shall incur no liability for such appointment or for any misconduct
or negligence of such Paying, Agent. In the event the Trustee does incur
liability for any such misconduct or negligence of the Paying Agent, the
Obligors agree to indemnify the Trustee for, and hold it harmless against, any
such liability, including the costs and expenses of defending itself against any
liability in connection with such misconduct or negligence of the Paying Agent.
Section 11.15. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Master Agreement, at
any time, for the purpose of meeting any legal requirement of any jurisdiction
in which any part of the Trust may at the time be located, the Trustee, shall
have the power and may execute and deliver all instruments to appoint one or
more Persons to act as a co-trustee or co-trustees, or separate trustee or
separate trustees, of all or any part of the related Series Trust Estate, and to
vest in such Person or Persons, in such capacity and for the benefit of the
related Noteholders, such title to the related Series Trust Estate, or any part
hereof, and subject to the other provisions of this Section, such powers,
duties, obligations, rights and trusts as the Trustee may consider necessary or
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desirable. No co-trustee or separate trustee hereunder shall be required to meet
the terms of eligibility as a successor Trustee under Section 11.08 and no
notice to Noteholders of the appointment of any co-trustee or separate trustee
shall be required under Section 11.09 hereof.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Trustee
joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed
the Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Trust or any portion thereof in
any such jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the
Trustee;
(ii) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder, and
(iii) the Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee.
(c) Any notice, request or other writing, given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Each instrument appointing any
separate trustee or co-trustee shall refer to this Master Agreement and the
conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Trustee or
separately, as may be provided therein, subject to all the provisions of this
Master Agreement and the related Series Supplement(s), specifically including
every provision of this Master Agreement and the related Series Supplement(s)
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) If any separate trustee or co-trustee shall die, become incapable
of acting, resign or be removed, all of its estates, properties, rights,
remedies and trusts shall vest in and be exercised by the Trustee, to the extent
permitted by law, without the appointment of a new successor trustee.
ARTICLE XII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND OBLIGORS
Section 12.01. Obligors to Furnish Trustee Names and Addresses of
Holders. The Obligors will furnish or cause to be furnished to the Trustee with
respect to each Series of Notes
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(a) not more than five days after the earlier of (i) each Record Date with
respect to such Series and (ii) three months after the last Record Date with
respect to such Series, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of Notes of such Series as of
such Record Date, (b) at such other times as the Trustee may request in writing,
within 30 days after receipt by the Obligors of any such request, a list of
similar form and content as of a date not more than 10 days prior to the time
such list is furnished; provided, however, that so long as the Trustee is the
Note Registrar, no such list shall be required to be furnished. The Trustee or,
if the Trustee is not the Note Registrar, the Obligors shall furnish or cause to
be furnished to the related Series Support Provider, if any, in writing on an
annual basis and at such other times as such Series Support Provider may request
a copy of such list with respect to the related Series.
Section 12.02. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 12.01 and the names and
addresses of Holders received by the Trustee in its capacity as Note Registrar.
The Trustee may destroy any list furnished to it as provided in Section 12.01
upon receipt of a new list so furnished.
(b) If three or more Holders of Notes of any particular Series (herein
referred to as "applicants") apply in writing to the Trustee, and furnish to the
Trustee reasonable proof that each such applicant has owned a Note for a period
of at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders
of Notes of such Series with respect to their rights under this Master
Agreement, the related Series Supplement or under such Notes and is accompanied
by a copy of the form of proxy or other communication which such applicants
propose to transmit, then the Trustee shall, within five business days after the
receipt of such application, at its election, either
(i) afford such applicants access to the information preserved
at the time by the Trustee in accordance with subsection 12.02(a), or
(ii) inform such applicants as to the approximate number of
Holders whose names and addresses appear in the information preserved
at the time by the Trustee in accordance with subsection 12.02(a), and
as to the approximate cost of mailing to such Holders the form of proxy
or other communication, if any, specified in such application.
(iii) Every Holder of Notes, by receiving and holding the
same, agrees with the Obligors and the Trustee that neither the
Obligors nor the Trustee nor any agent of either of them shall be held
accountable by reason of the disclosure of any such information as to
the names and addresses of the Holders in accordance with Section 12.01
or 12.02(b), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason
of mailing any material pursuant to a request made under Section 12.01
or subsection 12.02(b).
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Section 12.03. Reports by Trustee. If this Master Agreement is ever
qualified under the Trust Indenture Act, then the Trustee shall comply with the
provisions of Section 313 of the Trust Indenture Act.
Section 12.04. Reports by Obligors. If this Master Agreement is
qualified under the Trust Indenture Act, the Obligors shall:
(1) file or cause to be filed with the Trustee, within 15 days
after the Obligors are required to file the same with the
Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the
Obligors may be required to file with the Commission pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934; or, if the Obligors are not required to file
information, documents or reports pursuant to either of said
Sections, then it shall file with the Trustee and the
Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports
which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and
registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(2) file or cause to be filed with the Trustee and the Commission,
in accordance with rules and regulations prescribed from time
to time by the Commission, such additional information,
documents and reports with respect to compliance by the
Obligors with the conditions and covenants of this Master
Agreement as may be required from time to time by such rules
and regulations;
(3) transmit or cause to be transmitted by mail to all Holders, as
their names and addresses appear in the Note Register and each
Series Support Provider within 30 days after the filing
thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Obligors
pursuant to paragraphs (1) and (2) of this Section as may be
required by rules and regulations prescribed from time to time
by the Commission; and
(4) furnish any other periodic reports as required by the Trust
Indenture Act.
ARTICLE XIII
MASTER AGREEMENT SUPPLEMENTS
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Section 13.01. Supplements Affecting All Series, or the Master
Agreement Generally.
(a) Without the consent of any Holders, the Obligors, the Trustee when
authorized by an Obligors' Order and the Servicer, at any time and from time to
time, may enter into one or more Master Agreement Supplements, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to authorize the issuance of one or more series of Notes;
(2) to evidence the succession, in compliance with the applicable
provisions hereof, of another corporation to any Obligors and
the assumption by any such successor of the covenants of the
Obligors herein, in any Series Supplement and in the Notes; or
(3) to add to the covenants of the Obligors for the benefit the
Holders of the Notes or to surrender any right or power herein
conferred upon the Obligors; or
(4) to add to or change any of the provisions of this Master
Agreement to such extent as shall be necessary to permit or
facilitate the issuance of Notes in bearer form, registrable
or not registrable as to principal, and with or without
interest coupons, or to permit or facilitate the issuance of
Notes in uncertificated form, or to facilitate the issuance of
Notes in global form through the facilities of a Depository;
or
(5) to modify the restrictions on and procedures for resale and
other transfers of the Notes to reflect any change in
applicable law or regulation (or the interpretation thereof)
or in practices relating to the resale or transfer of
restricted securities generally; or
(6) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Notes and
to add to or change any of the provisions of this Master
Agreement as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 11.15; or
(7) to modify, eliminate or add to the provisions of this Master
Agreement to such extent as shall be necessary to qualify,
requalify or continue the qualification of this Master
Agreement (including any supplemental indenture) under the
Trust Indenture Act, or under any similar Federal statute
hereafter enacted, and to add to this Master Agreement such
other provisions as may be expressly permitted by the Trust
Indenture Act, excluding, however, the provisions referred to
in Section 316(a)(2) of the Trust Indenture Act as in effect
at the date as of which this instrument
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was executed or any corresponding provision in any similar
Federal statute hereinafter enacted; or
(8) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to
matters or questions arising under this Master Agreement, as
long as such action shall not adversely affect the interests
of the Holders of Notes of any Series affected thereby in any
material respect.
(b) The Obligors, the Servicer and the Trustee, when authorized by an
Obligors' Order, may, also without the consent of any of the Holders of the
Notes and with prior written notice to each Series Support Provider, enter into
a Master Agreement Supplement or Supplements for the purpose of adding any
provisions to, or changing in any manner or eliminating any of the provisions
of, this Master Agreement or of modifying in any manner the rights of the
Holders of the Notes under this Master Agreement; provided, however that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Noteholder.
(c) The Obligors, the Servicer and the Trustee, when authorized by an
Obligors' Order, also may, with prior notice to each Series Support Provider,
and with the consent of the Holders of not less than a majority of the
Outstanding Amount of the Notes of each affected Series, by Act of said Holders
delivered to the Obligors and the Trustee, enter into a Master Agreement
Supplement or Supplements hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Master
Agreement or of modifying in any manner the rights of the Holders of Notes under
this Master Agreement; provided that, subject to the express rights of the
related Series Support Provider under the related Series Related Documents, no
such Master Agreement Supplement shall, without the consent of the Holder of
each Outstanding Note of each affected Series affected thereby,
(1) change the date of payment of any installment of principal of
or interest on any Note, or reduce the principal amount
thereof or the rate of, or method of computation of the rate
of, interest thereon or any prepayment or redemption price
with respect thereto, change the provision of this Master
Agreement relating to the application or collections on, or
the proceeds of the sale of, the related Series Trust Estate
to payment of principal of or interest on the Notes, or change
any place of payment where, or the coin or currency in which,
any Note or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such
payment on or after the respective due dates thereof, or
(2) reduce the percentage of the Outstanding Amount of the Notes,
the consent of whose Holders is required for any such Master
Agreement Supplement, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions
of this Master Agreement or certain
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defaults hereunder and their consequences) provided for in
this Master Agreement, or
(3) permit the creation of any lien prior to the lien created by
the related Series Supplement with respect to any part of the
related Series Trust Estate, or terminate the lien created by
the related Series Supplement on any Pledged Property subject
hereto or deprive any related Holder of the security afforded
by the lien of the related Series Supplement, except to the
extent expressly permitted by this Master Agreement, the
related Series Supplement or any other related Series Related
Document, or
(4) modify any of the provisions of this Section except to
increase any such percentage or to provide that certain other
provisions of this Master Agreement, the related Supplement or
the related Series Related Documents cannot be modified or
waived without the consent of the Holder of each Outstanding
Note affected thereby, or
(5) modify or alter the provisions of the second proviso to the
definition of the term "Outstanding."
The Trustee may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to consent to any Master
Agreement Supplement described in this Section 13.01. If a record date is fixed,
the applicable Holders on such record date or their duly designated proxies, and
only such Persons, shall be entitled to consent to such Master Agreement
Supplement, whether or not such Holders remain Holders after such record date;
provided that, unless such consent shall have become effective by virtue of the
requisite percentage having been obtained prior to the date which is 90 days
after such record date, any such consent previously given shall automatically
and without further action by any Holder be cancelled and of no further effect.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed Master Agreement Supplement, but it
shall be sufficient if such Act shall approve the substance thereof.
The Obligors shall in their discretion (which may be based on an
Opinion of Counsel) determine whether or not any Notes would be affected by any
Master Agreement Supplement and any such determination shall be conclusive upon
the Holders of all Notes, whether theretofore or thereafter authenticated and
delivered hereunder. The Trustee shall not be liable for any such determination
made in good faith.
Promptly after the execution by the parties hereto of any Master
Agreement Supplement pursuant to this Section, the Trustee shall mail to the
Holders of the Notes of the affected Series a notice setting, forth in general
terms the substance of such Master Agreement Supplement. Any failure of the
Trustee to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such Master Agreement Supplement.
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Section 13.02. Supplements Authorizing a Series of Notes.
(a) Each Series of Notes issued hereunder shall be issued pursuant to a
Series Supplement, which shall set forth the terms and provisions of such
Series.
(b) Amendments to Series Supplements shall be covered by the provisions
of Section 13.01, which for such purpose shall be deemed to refer only to the
related Series Supplement. The Trustee may conclusively rely on an Opinion of
Counsel as to which Series Supplements relate to which Series, or to this Master
Agreement (and thus all Series) as a whole.
Section 13.03. Execution of Master Agreement Supplements. In executing,
or accepting the additional trusts created by, any Master Agreement Supplement
permitted by this Article or the modifications thereby of the created by this
Master Agreement, the Trustee may receive, and (subject to Section 11.01) shall
be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such Master Agreement Supplement is authorized or permitted by this
Master Agreement. The Trustee may, but shall not be obligated to, enter into any
such Master Agreement Supplement which affects the Trustee's own rights, duties
or immunities under this Master Agreement or otherwise.
Section 13.04. Effect of Master Agreement Supplements. Upon the
execution of any Master Agreement Supplement under this Article, this Master
Agreement shall be modified in accordance therewith, and such Master Agreement
Supplement shall form a part of this Master Agreement for all purposes, and
every Holder of Notes theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
Section 13.05. Reference in Notes to Master Agreement Supplements.
Notes authenticated and delivered after the execution of any Master Agreement
Supplement pursuant to this Article may, and shall if required by the Obligors,
bear a notation as to any matter provided for in such Master Agreement
Supplement. If the Obligors shall so determine, new Notes so modified as to
conform, in the opinion of the Obligors, to any such Master Agreement Supplement
may be prepared and executed by the Obligors and authenticated and delivered by
the Trustee in exchange for Outstanding Notes.
ARTICLE XIV
COVENANTS
The Obligors hereby covenant and agree that so long as this Master
Agreement is in effect and any Notes remain Outstanding:
Section 14.01. Payment of Principal and Interest. The Obligors will
duly and punctually pay or cause to be paid, on a nonrecourse basis and solely
from the funds available from the related Series Trust Estate, the principal of
and interest on the Notes of the related Series in accordance with the terms of
such Notes, this Master Agreement and the related Series Supplement. Amounts on
deposit in the related Series Accounts (other than amounts
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representing payments under any related Series Support) in respect of principal
and interest on a Payment Date shall constitute full satisfaction of the
Obligors' obligation with respect to the payment of such principal and interest
on the related Notes. Amounts properly withheld under the Code by any Person
from a payment to any Noteholder of interest or principal shall be considered as
having been paid by the Obligors to such Noteholder for all purposes of this
Master Agreement.
Section 14.02. Maintenance of Non-U.S. Office or Agency. The Obligors
will maintain or cause to be maintained (a) if and so long as any Series or
Class is listed on the Luxembourg Stock Exchange, Luxembourg, and (b) in London,
in the case of Bearer Notes and Holders thereof, if any for so long as any
Bearer Notes are outstanding, an office or agency where Notes may be surrendered
for registration of transfer or exchange (except that Bearer Notes may not be
surrendered for exchange at any such office or agency in the United States) and
where notices and demands to or upon the Obligors in respect of the Notes, this
Master Agreement and the related Series Supplement may be served. The Obligors
will give or cause to be given prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Obligors shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and each Obligor hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
Section 14.03. Consolidation, Merger, Sale of Assets.
(a) No Obligor shall consolidate or merge with or into any other
Person, unless
(i) the Person (if other than such Obligor) formed by or
surviving such consolidation or merger shall be a Person organized and
existing under the laws of the United States of America or any State
and shall expressly assume, by a Master Agreement Supplement, executed
and delivered to the Trustee, the Obligors and the Servicer the due and
punctual payment of the principal of and interest on all Notes
previously issued and the performance or observance of every agreement
and covenant of this Master Agreement and the related Series Supplement
and each other related Series Related Document on the part of such
Obligor to be performed or observed, all as provided herein;
(ii) immediately after giving effect to such transaction, no
Default with respect to any Series or Event of Default with respect to
any Series previously issued and shall have occurred and be continuing;
(iii) each Series Support Provider relating to such Series
previously issued, if any, shall have consented in writing to such
transaction; and
(iv) any action as is necessary to maintain the lien and
security interest created in favor of the Trustee by the related Series
Supplement shall have been taken.
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(b) No Obligor shall convey or transfer all or substantially all of its
properties or assets or any Series Trust Estate to any Person (except as
expressly permitted by this Master Agreement, the related Series Supplement or
the related Series Related Documents), unless
(i) the Person that acquires by conveyance or transfer such
Series Trust Estate shall (A) be a United States citizen or a Person
organized and existing under the laws of the United States of America
or any State, (B) expressly assume, by a Master Agreement Supplement,
executed and delivered to the Trustee the due and punctual payment of
the principal of and interest on all Notes previously issued and the
performance or observance of every agreement and covenant of this
Master Agreement, the related Series Supplement or the related Series
Related Documents on the part of such Obligor to be performed or
observed, all as provided herein or therein, (C) expressly agree by
means of such Master Agreement Supplement that all right, title and
interest so conveyed or transferred shall be subject and subordinate to
the rights of Holders of the related Notes, (D) unless otherwise
provided in such Master Agreement Supplement, expressly agree to
indemnify, defend and hold harmless such Obligor against and from any
loss, liability or expense arising under or related to this Master
Agreement, the related Series Supplement and the Notes previously
issued and (E) expressly agree by means of such supplemental indenture
that such Person (or if a group of Persons, then one specified Person)
shall make all filings with the Commission (and any other appropriate
Person) required by the Exchange Act in connection with the related
Notes;
(ii) immediately after giving effect to such transaction, no
Default with respect to the affected Series or Event of Default with
respect to any Series previously issued shall have occurred and be
continuing;
(iii) each Series Support Provider relating to such Series
previously issued, if any, shall have consented in writing to such
transaction; and
(iv) any action as is necessary to maintain the lien and
security interest created in favor of the related Trustee(s) by the
related Series Supplement(s) shall have been taken.
Section 14.04. Negative Covenants. Until the Termination Date, no
Obligor shall:
(i) except as expressly permitted by this Master Agreement,
each related Series Supplement and each related Series Related
Document, sell, transfer, exchange or otherwise dispose of any of the
properties or assets constituting any Series Trust Estate, unless
directed to do so by the related Series Controlling Party;
(ii) claim any credit on, or make any deduction from the
principal or interest in respect of, the Notes (other than amounts
properly withheld from such payments under the Code) or assert any
claim against any present or former Noteholder by reason of the payment
of the taxes levied or assessed upon any part of any Series Trust
Estate; or
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(iii) (A) except as permitted by this Master Agreement, any
related Series Supplement or any related Series Related Documents,
permit the validity or effectiveness of the related Series Supplement
to be impaired, or permit the lien in favor of the Trustee created by
the related Series Supplement to be amended, hypothecated,
subordinated, terminated or discharged, or permit any Person to be
released from any covenants or obligations with respect to any Notes
under this Master Agreement or any Series Supplement except as may be
expressly permitted hereby, (B) permit any lien, charge, excise, claim,
security interest, mortgage or other encumbrance (other than the lien
in favor of the Trustee created by the related Series Supplement) to be
created on or extend to or otherwise arise upon or burden any Series
Trust Estate or any part thereof or any interest therein or the
proceeds thereof (other than tax liens, mechanics' liens, storage liens
and other liens that arise by operation of law, in each case on any
Pledged Property and arising solely as a result of an action or
omission of the related underlying obligors), (C) permit the lien in
favor of the Trustee created by the related Series Supplement not to
constitute a valid first priority (other than with respect to any such
tax, mechanics', storage or other lien) security interest in the
related Series Trust Estate (provided that no notation or filing of the
transfer of the Liens on the title documents of any Pledged Property is
required as of the date of this Master Agreement), or (D) amend, modify
or fail to comply with the provisions of the related Series Related
Documents without the prior written consent of the related Series
Controlling Party.
Section 14.05. Performance of Obligations: Servicing of each Series
Trust Estate.
(a) No Obligor will take any action and will use its best efforts not
to permit any action to be taken by others that would release any Person from
any of such Person's material covenants or obligations under any instrument or
agreement included in any Series Trust Estate or that would result in the
amendment, hypothecation, subordination, termination or discharge of, or impair
the validity or effectiveness of, any such instrument or agreement, except as
expressly provided in this Master Agreement, the related Series Supplement or
related Series Related Document or such other instrument or agreement.
(b) Any Obligor may contract with other Persons (including other
Obligors) to assist it in performing its duties under this Master Agreement, and
any performance of such duties by a Person identified to the Trustee and each
related Series Support Provider in an Officer's Certificate of such Obligor
shall be deemed to be action taken by such Obligor.
(c) Each Obligor will punctually perform and observe or cause to be
performed and observed all of its obligations and agreements contained in this
Master Agreement, each related Series Supplement and each related Series Related
Document and in the instruments and agreements included in each Series Trust
Estate, including but not limited to filing, or causing to be filed all UCC
financing statements and continuation statements required to be filed by the
terms of this Master Agreement, each related Series Supplement and each related
Series Related Document in accordance with and within the time periods provided
for herein and therein.
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(d) If any Obligor has knowledge of the occurrence of a "Servicer
Termination Event" under any Series Related Document, the Obligor shall promptly
notify the Trustee and the related Series Support Provider, if any, shall
specify in such notice the action, if any, such Obligor is taking with respect
of such default. If such Servicer Termination Event shall arise from the failure
of the Servicer to perform any of its duties or obligations hereunder with
respect to the related Series Trust Estate, the Obligors shall take all
reasonable steps available to it to remedy such failure.
(e) Upon any termination of any Servicer's rights and powers pursuant
to any Series Related Document, the Obligors shall promptly notify the Trustee.
As soon as a successor Servicer is appointed, the Obligors shall notify the
Trustee of such appointment, specifying in such notice the name and address of
such successor Servicer.
Section 14.06. Money for Note Payments to Be Held in Trust. All
payments of amounts due and payable with respect to any Notes that are to be
made from amounts withdrawn from the related Series Account shall be made on
behalf of the Obligors by the Trustee or by another Paying Agent, and no amounts
so withdrawn from any Series Account for payments of Notes shall be paid over to
any Obligor, except as provided in the related Series Supplement.
The Obligors will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will, with respect to each related Series of Notes:
(1) hold all sums held by it for the payment of the
principal of or interest on the related Notes in
trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the
Obligors (or any other obligor upon the related
Notes) in the making of any payment of principal or
interest on such Notes;
(3) at any time during the continuance of any such
default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in
trust by such Paying Agent;
(4) immediately resign as a Paying Agent and forthwith
pay to the Trustee all sums held by it in trust for
the payment of the related Notes if at any time it
ceases to meet the standards required to be met by a
Paying Agent at the time of its appointment; and
(5) comply with all requirements of the Code with respect
to the withholding from any payments made by it on
any Notes of any applicable withholding
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taxes imposed thereon and with respect to any
applicable reporting requirements in connection
therewith.
The Obligors may at any time, for the purpose of obtaining the
satisfaction and discharge of any Series Supplement or for any other purpose,
pay, or by Obligors' Order direct any Paying Agent to pay, to the Trustee all
sums held in trust by such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, in trust for
the payment of the principal of or interest on any Note and remaining unclaimed
for two years after such principal or interest has become due and payable shall
be paid to the Obligors, as specified in an Obligors' Order; and the Holder of
such Note shall thereafter, as an unsecured general creditor, look only to the
Obligors for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, shall thereupon cease; provided, however
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Obligors cause to be published once, in a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in the Borough of Manhattan, The City of
New York, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Obligors.
Section 14.07. Corporate Existence; Separate Corporate Existence.
Except as provided in Section 14.03, each Obligor will do or cause to be done
all things necessary to preserve and keep in full force and effect its corporate
existence and material rights (charter and statutory) and material franchises of
such Obligor; provided, however that the Obligors with the prior written consent
of any Series Support Provider shall not be required to preserve any such right
or franchise if such Obligor shall determine that the preservation thereof is no
longer desirable in the conduct of the business of such Obligor, and that the
loss thereof is not disadvantageous in any material respect to the Holders of
the related Notes. Each Obligor shall, in addition:
(i) Maintain its own bank or securities account or accounts,
separate from those of any Affiliate of such Obligor, with commercial
financial institutions. The funds and other property of such Obligor
will not be diverted to any other Person or for other than the
corporate use of such Obligor, and, except as may be expressly
permitted by this Master Agreement or the Master Sale Agreement or any
Sale Agreement Supplement to which it is a party, the funds and the
other property of such Obligor shall not be commingled with those of
any Affiliate of such Obligor.
(ii) Ensure that, to the extent that it shares the same
officers or other employees as any of its stockholders or Affiliates,
the salaries of and the expenses related to providing benefits to such
officers and other employees shall be fairly
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allocated among such entities, and each such entity shall bear its fair
share of the salary and benefit costs associated with all such common
officers and employees.
(iii) Ensure that, to the extent that it jointly contracts
with any of its stockholders or Affiliates to do business with vendors
or service providers or to share overhead expenses, the costs incurred
in so doing shall be allocated fairly among such entities, and each
such entity shall bear its fair share of such costs. To the extent that
such Obligor contracts or does business with vendors or service
providers where the goods and services provided are partially for the
benefit of any other Person, the costs incurred in so doing shall be
fairly allocated to or among such entities for whose benefit the goods
and services are provided, and each such entity shall bear its fair
share of such costs. All material transactions between such Obligor and
any of its Affiliates shall be only on an arm's length basis and shall
receive the approval of such Obligor's Board of Directors including at
least two Independent Directors (defined below).
(iv) Maintain a principal executive and administrative office
through which its business is conducted and a telephone number separate
from those of its stockholders and Affiliates. To the extent that such
Obligor and any of its stockholders or Affiliates have offices in
contiguous space, there shall be fair and appropriate allocation of
overhead costs among them, and each such entity shall bear its fair
share of such expenses.
(v) Conduct its affairs strictly in accordance with its
Articles of Incorporation and observe all necessary, appropriate and
customary corporate formalities, including, but not limited to, holding
all regular and special stockholders' and directors' meetings
appropriate to authorize all corporate action, keeping separate and
accurate minutes of such meetings, passing all resolutions or consents
necessary to authorize actions taken or to be taken, and maintaining
accurate and separate books, records and accounts, including, but not
limited to, payroll and intercompany transaction accounts. Regular
stockholders' and directors' meetings shall be held at least annually.
(vi) Ensure that its Board of Directors shall at all times
include at least two Independent Directors (for purposes hereof,
"Independent Directors" shall mean any member of the Board of Directors
of such Obligor that is not and has not at any time during the
preceding five years been (x) a director, officer, consultant, agent,
employee, affiliate or shareholder of any Affiliate of such Obligor or
any affiliate or subsidiary thereof, or of any major creditor thereof,
and who is not the beneficial owner, at the time of such individual's
appointment as an Independent Director, of more than 1,000 shares in
the aggregate of all classes of common stock of an Affiliate of such
Obligor, or if greater, such number of shares the value of which
constitutes no more than 10% of such individual's net worth or (y) a
member of the immediate family of any of the foregoing).
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(vii) Ensure that decisions with respect to its business and
daily operations shall be independently made by such Obligor (although
the officer making any particular decision may also be an officer or
director of an Affiliate of such Obligor) and shall not be dictated by
an Affiliate of such Obligor.
(viii) Act solely in its own corporate name and through its
own authorized officers and agents, and no Affiliate of such Obligor
shall be appointed to act as agent of such Obligor, except as expressly
contemplated by this Master Agreement or the Master Sale Agreement or
any Sale Agreement Supplement to which it is a party. The Obligor shall
at all times use its own stationery.
(ix) Ensure that no Affiliate of such Obligor shall advance
funds to such Obligor, and no Affiliate of such Obligor will otherwise
guaranty debts of, such Obligor; provided, however, that an Affiliate
of such Obligor may provide funds to such Obligor in connection with
the capitalization of such Obligor, including capital necessary to
assure that such Obligor has "substantial assets" as described in
Treasury Regulation Section 301.7701-2(d)(2) as in effect on December
16, 1996 prior to amendment by Treasury Decision 8697.
(x) Other than organization expenses and as expressly provided
herein, pay all expenses, indebtedness and other obligations incurred
by it.
(xi) Not enter into any guaranty, or otherwise become liable,
with respect to any obligation of any Affiliate of such Obligor nor
shall such Obligor make any loans to any Person.
(xii) Ensure that any financial reports required of such
Obligor shall be issued separately from, but may be consolidated with,
any reports prepared for any of its Affiliates.
(xiii) Ensure that at all times it is adequately capitalized
to engage in the transactions contemplated in its Articles of
Incorporation.
Section 14.08. Payment of Taxes and Other Claims. Each Obligor will pay
or discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon such Obligor on any portion of any Series Trust Estate, or upon the
income, profits or property of such Obligor, and (2) all lawful claims for
labor, materials and supplies which, if unpaid, might by law become a Lien upon
the Property of such Obligor; provided, however, that such Obligor shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings and such Obligor shall have
set aside on its books adequate reserves with respect thereto.
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Section 14.09. Amendment of Organizational Documents.
(a) No Obligor will make any material change in any of its
Organizational Documents without the prior written consent of the related Series
Controlling Parties, and shall not amend its Organizational Documents in any
manner that materially and adversely affects the Holders of the related Notes or
any related Series Support Provider.
(b) No Obligor shall take any action which would adversely impact the
corporate separateness of such Obligor from its parent, or which would adversely
impact its status as a "bankruptcy remote" entity. Each Obligor shall strictly
abide by the restrictive provisions of its Organizational Documents in
furtherance of the forgoing.
Section 14.10. Rule 144A Information. With respect to the Holder of any
Unregistered Note, the Obligors shall promptly furnish or cause to be furnished
to such Holder or to a prospective purchaser of such an Unregistered Note
designated by such Holder, as the case may be, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act ("Rule 144A
Information") in order to permit compliance by such Holder with Rule 144A in
connection with the resale of such Unregistered Note by such Holder; provided,
however that the Obligors shall not be required to furnish Rule 144A Information
in connection with any request made on or after the date which is three years
from the later of (i) the date such Note (or any predecessor Note) was acquired
from the Obligors or (ii) the date such Note (or any predecessor Note) was last
acquired from an "affiliate" of the Obligors within the meaning of Rule 144
under the Securities Act; and provided, further, that the Obligors shall not be
required to furnish such information at any time to a prospective purchaser
located outside the United States who is not a "United States Person" within the
meaning of Regulation S under the Securities Act if such Note may then be sold
to such prospective purchaser in accordance with Rule 904 under the Securities
Act (or any successor provision thereto).
Section 14.11. Further Instruments and Acts. Upon request of the
Trustee or any Series Support Provider, each Obligor will execute and deliver
such further instruments and do such further acts as may be reasonably necessary
or proper to carry out more effectively the purpose of this Master Agreement,
any related Series Supplement and any related Series Related Document.
Section 14.12. Compliance with Laws. Each Obligor shall comply with all
applicable Requirements of Law, the noncompliance with which would, individually
or in the aggregate, materially and adversely affect the ability of such Obligor
to perform its obligations under the related Notes, this Master Agreement, the
Master Sale Agreement the related Series Supplements or the related Series
Related Document.
Section 14.13. Income Tax Characterization. For purposes of Federal
income, state and local income and franchise and any other income taxes, each
Obligor will treat the related Notes as debt of such Obligor.
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ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.01. Counterparts. For the purpose of facilitating the
execution of this Master Agreement and for other purposes, this Master Agreement
may be executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
Section 15.02. Governing Law. This Master Agreement, each Series
Supplement and each Note shall be governed by, and construed in accordance with,
the laws of the State of New York and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws, without
regard to the conflict of laws provisions of any State.
Section 15.03. Notices. All demands, notices and communications (other
than periodic communications of a routine nature made in connection with the
dissemination of information regarding the Pledged Property and the Servicer
required to be delivered hereunder, which shall be delivered or mailed by first
class mail) hereunder shall be in writing, personally delivered or mailed by
first class mail or overnight courier, or delivered by facsimile and shall be
deemed to have been duly given upon receipt (a) in the case of the Originator
and the Servicer, at the following address: Advanta Business Services Corp.,
1020 Laurel Oak Road, Voorhees, New Jersey 08043, Attention: Treasurer; (b) in
the case of the Trustee, at the following address: Bankers Trust Company, 4
Albany Street, New York, New York 10006, Attention: _____________________; (c)
in the case of the Obligors, at the following, address: Advanta Leasing
Receivables Corp. VIII, 639 Isbell Road, Suite 390A, Reno, Nevada 89509;
Attention: Treasurer, and Advanta Leasing Receivables Corp. IX, Reno, 639 Isbell
Road, Suite 390B, Nevada 89509; Attention: Treasurer; and (d) in the case of any
Series Support Party, at the address specified for such notice in the applicable
Series Supplement, or, in each of the foregoing cases (a) through (d), at such
other address as shall be designated by such party in a written notice to the
other parties. Any notice required or permitted to be mailed to a Noteholder
shall be given by first class mail, postage prepaid, at the address of such
Holder as shown in the Note Register or the related Series Supplement,
respectively. Any notice to a Noteholder which is so mailed within the time
prescribed in this Master Agreement shall be conclusively presumed to have been
duly given on the fifth Business Day following mailing, whether or not the
Noteholder receives such notice.
Section 15.04. Severability of Provisions. If any one or more of the
covenants, agreements, provisions, or terms of this Master Agreement shall be
for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Master Agreement and shall in no way
affect the validity or enforceability of the other provisions of this Master
Agreement or of the Notes or the rights of the Holders thereof.
Section 15.05. Binding Effect. This Master Agreement shall inure to the
benefit of, and shall be binding upon, (i) the Servicer, (ii) each Obligor,
(iii) the Trustee, (iv) the Noteholders,
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(v) the Series Support Providers, if any, (vi) to the extent expressly provided
hereunder, the Affiliates of the Trustee, the Noteholders and the Series Support
Providers, if any, and (vii) the respective successors and permitted assigns of
each of the foregoing, subject, in each of the foregoing cases, to the
limitations contained in this Master Agreement.
Section 15.06. Exhibits. The exhibits to this Master Agreement are
hereby incorporated herein and made a part hereof and are an integral part of
this Master Agreement.
Section 15.07. Calculations. All interest rate calculations under this
Master Agreement will be carried out to at least seven decimal places. All
payments on the Contracts shall be calculated on the Actuarial Method.
Section 15.08. Further Assurances. The Obligors and the Servicer agree
to do and perform and the Obligors agree to cause the Originator to do and
perform, from time to time, any and all acts and to execute (or cause the
Originator to execute) any and all further instruments and documents required or
reasonably requested by the Trustee to effect more fully the purposes of this
Master Agreement, including, without limitation, the execution of any financing
statements or continuation statements relating to the Trust Estate for filing
under the provisions of the UCC of any applicable jurisdiction.
Section 15.09. Nonpetition Covenant. Notwithstanding any prior
termination of this Master Agreement, none of the parties hereto, any
Noteholder, any Series Support Provider, the Originator, nor any Obligor shall,
prior to the date which is one year and one day after the payment in full of the
Notes of all Series, acquiesce, petition or otherwise invoke or cause any
Obligor to invoke the process of any Governmental Authority for the purpose of
commencing or sustaining a case against any Obligor under any Federal or state
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of or for
any Obligor or any substantial part of its property or ordering the winding-up
or liquidation of the affairs of any Obligor.
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IN WITNESS WHEREOF, the Servicer, the Obligors and the Trustee have
caused this Master Agreement to be duly executed by their respective officers,
all as of the day and year first above written.
ADVANTA BUSINESS SERVICES
CORP., as Servicer
By:
----------------------------------
Name:
Title:
ADVANTA LEASING RECEIVABLES
CORP. VIII, as Obligor
By:
----------------------------------
Name:
Title:
ADVANTA LEASING RECEIVABLES
CORP. IX, as Obligor
By:
----------------------------------
Name:
Title:
BANKERS TRUST COMPANY,
as Trustee
By:
----------------------------------
Name:
Title: