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Exhibit 4.3
EXECUTION COPY
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MASTER SALE AND CONTRIBUTION AGREEMENT
among
ADVANTA BUSINESS SERVICES CORP.,
as the Originator and Servicer,
ADVANTA LEASING RECEIVABLES CORP. VIII
and
ADVANTA LEASING RECEIVABLES CORP. IX,
as the Obligors
Dated as of
August 26, 1999
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
SECTION 1.01 Terms Defined in the Master Agreement.................. 1
SECTION 1.02 Additional Definitions................................. 2
ARTICLE II
CONVEYANCE OF CONVEYED ASSETS
SECTION 2.01 Conveyance............................................. 3
SECTION 2.02 Custody of Contract Files.............................. 4
SECTION 2.03 Servicing of Conveyed Assets........................... 4
SECTION 2.04 Conveyance of Conveyed Assets.......................... 4
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.0l Representations and Warranties of ABS.................. 5
SECTION 3.02 Representations and Warranties of the Obligors......... 7
SECTION 3.03 Repurchase Contracts and Equipment by ABS.............. 10
ARTICLE IV
COVENANTS OF ABS AND THE OBLIGORS
SECTION 4.01 ABS Covenants.......................................... 10
SECTION 4.02 Covenants of Each Obligor.............................. 13
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.01 Conditions to the Obligors' Obligations................ 14
SECTION 5.02 Conditions to ABS' Obligations......................... 15
ARTICLE VI
TERMINATION
SECTION 6.01 Termination............................................ 16
SECTION 6.02 Effect of Termination.................................. 16
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TABLE OF CONTENTS
(CONTINUED)
PAGE
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.01 Amendment.............................................. 16
SECTION 7.02 Governing Law.......................................... 16
SECTION 7.03 Notices................................................ 16
SECTION 7.04 Severability of Provisions............................. 17
SECTION 7.05 Assignment............................................. 17
SECTION 7.06 Further Assurances..................................... 17
SECTION 7.07 No Waiver; Cumulative Remedies......................... 17
SECTION 7.08 Counterparts........................................... 17
SECTION 7.09 Binding Effect......................................... 17
SECTION 7.10 Merger and Integration................................. 17
SECTION 7.11 Headings............................................... 18
SECTION 7.12 Exhibit................................................ 18
SECTION 7.13 No Bankruptcy Petition Against any Obligor............. 18
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MASTER SALE AND CONTRIBUTION AGREEMENT
THIS MASTER SALE AND CONTRIBUTION AGREEMENT, dated as of August 26,
1999 (this "Master Sale Agreement"), is entered into among ADVANTA BUSINESS
SERVICES CORP., a Delaware corporation ("ABS"), as Originator and as Servicer
under the Master Agreement, ADVANTA LEASING RECEIVABLES CORP. VIII, a Nevada
corporation located at 639 Isbell Road, Suite 390-A, Reno, Nevada 89509 ("ALRC
VIII") and ADVANTA LEASING RECEIVABLES CORP. IX, a Nevada corporation located at
639 Isbell Road, Suite 390-B, Reno, Nevada 89509 ("ALRC IX"), (ALRC VIII and
ALRC IX each individually, an "Obligor" and, together, the "Obligors") as the
purchasers or recipient of Conveyed Assets hereunder.
W I T N E S S E T H:
WHEREAS, ABS, in the ordinary course of its business has,
originated or acquired a portfolio of Contracts; and
WHEREAS, ABS desires to sell, contribute, transfer and assign all of
its right, title and interest in and to the Conveyed Assets (as defined below)
to the Obligors upon the terms and conditions set forth herein;
WHEREAS, the Obligors, ABS, in its capacity as Servicer, and Bankers
Trust Company, as Trustee, has on the date hereof entered into a Master Facility
Agreement, dated as of August 26, 1999 (the "Master Agreement") pursuant to
which the Obligors will finance, in whole or in part, their purchase and holding
of the Conveyed Assets;
WHEREAS, it is contemplated that, following the purchase of the
Conveyed Assets by the Obligors, ABS, as Servicer or any successor thereto as
Servicer under the Master Agreement, will administer and service the Conveyed
Assets.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Terms Defined in the Master Agreement. For the purposes
of this Master Sale Agreement, capitalized terms used herein but not otherwise
defined shall have the respective meanings assigned to such terms in the Master
Agreement.
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SECTION 1.02 Additional Definitions. Whenever used in this Master
Sale Agreement, the following words and phrases shall have the following
meanings:
"ABS" shall mean Advanta Business Services Corp., a Delaware
corporation, and its successors and assigns.
"Conveyance" shall have the meaning set forth in Section 2.01
hereof.
"Conveyed Assets" shall mean all accounts, general intangibles,
instruments, chattel paper, documents, money, letters of credit, advices of
credit, deposit accounts, certificates of deposit, investment property, goods
and other property consisting of, arising from or related to any of the
following: (i) the Contracts listed on the respective List of Contracts
delivered with the Sale Agreement Supplements and all amounts due or to become
due thereunder, (ii) all Collections after the related Cut-Off Date, (iii) all
of ABS' right, title and interest in, to and under the Related Security
associated therewith, (iv) all balances, instruments, monies, securities,
investment property or other property received or held from time to time by the
Servicer and representing Collections received after the related Cut-off Date,
(v) the right, title and interest of ABS in the Equipment associated with such
Contracts, and (vii) all proceeds of the foregoing, but excluding, any Insurance
Premiums, taxes, late charge fees (if the Servicer has made an advance to cover
such late payment) and Initial Unpaid Amounts.
"Electronic Ledger" shall mean the Servicer's master electronic
record of all contracts serviced by it, including the Contracts.
"Insurance Premiums" shall mean amounts paid on the Contracts to
cover insurance premiums.
"Master Sale Agreement" shall mean this Master Sale and Contribution
Agreement and all amendments hereto.
"Purchase Date" shall mean each date on which a sale and/or
contribution of Conveyed Assets is to be effected, as set forth in the related
Sale Agreement Supplement.
"Sale Agreement Supplement" shall mean each Sale and Contribution
Agreement Supplement executed and delivered pursuant to this Master Sale
Agreement substantially in the form of Exhibit A.
"Series Supplement" shall mean each supplement to the Master
Agreement which provides for the issuance of a Series of Notes as provided in
such supplement and the Master Agreement.
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ARTICLE II
CONVEYANCE OF CONVEYED ASSETS
SECTION 2.01 Conveyance. (a) ABS hereby, on each Purchase Date, as
evidenced by the execution and delivery by ABS and the Obligors of a Sale
Agreement Supplement, sells, transfers, assigns, sets over, contributes,
quitclaims and otherwise conveys to the Obligors (collectively, the
"Conveyance") all of ABS' right, title and interest in, to and under the related
Conveyed Assets, whether in existence at the Purchase Date or thereafter
arising. The Conveyed Assets conveyed to each of the respective Obligors shall
be as set forth in the related Sale Agreement Supplement. Each such transfer of
Conveyed Assets by ABS shall be without representation, warranty or recourse
except as expressly provided in Section 3.01.
(b) The purchase price for the Conveyed Assets conveyed pursuant to
this Master Sale Agreement and the amount of such Conveyed Assets which will be
contributed to the Obligors shall be determined by ABS and the Obligors at the
time of the execution and delivery of such related Sale Agreement Supplement.
The amount paid to ABS for the Conveyed Assets sold on a Purchase Date shall be
paid by the Obligors to or at the direction of ABS as provided in the related
Sale Agreement Supplement.
(c) In connection with each such Conveyance, prior to each related
Purchase Date, ABS agrees to record and file, at its own expense, financing
statements (and thereafter timely continuation statements with respect to such
financing statements) with respect to the related Conveyed Assets, meeting the
requirements of applicable state law in such manner and in such jurisdictions as
are necessary or reasonably desirable to perfect and to maintain the perfection
of, the conveyance of the related Conveyed Assets from ABS to the Obligors and
the pledge of such related Conveyed Assets from the Obligors to the Trustee, and
to deliver a copy of such financing statements or other evidence of such filings
to the Obligors on or prior to the related Purchase Date; provided, however,
that except as required by the Master Agreement, no financing statements will be
recorded or filed with respect to the sale or transfer of the Equipment owned by
ABS unless (i) ABS, as Servicer shall determine to file UCC-3 statements or
similar statements with respect to such Equipment in order to exercise remedies
with respect to Defaulted Contracts to which such Equipment relates or (ii) such
Equipment has a value in excess of $25,000; and provided further that the
Contract Files will not be physically delivered to the Obligors or to the
Trustee, but instead will be held by the Servicer (or its designated custodian)
on behalf of the Trustee and the Contract Files will be marked as required by
the Master Agreement.
(d) In connection with each such Conveyance, ABS shall, at its own
expense, (i) cause its books and records to be marked to show that the related
Conveyed Assets have been transferred to the Obligors in accordance with this
Master Sale Agreement, and that the related Conveyed Assets have been pledged to
the Trustee in accordance with the Master Agreement on or prior to the related
Purchase Date and (ii) deliver to the Obligors or at their direction the related
List of Contracts on the related Purchase Date. Each Obligor agrees (i) to mark
its books and records to show the acquisition of the Conveyed Assets and that
such Conveyed Assets have been pledged to the Trustee in accordance with the
Master Agreement and a specified Series Supplement and (ii) to deliver to the
Trustee the related List of Contracts on the related Purchase
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Date. In addition, the Servicer, shall cause its Electronic Ledger to include
the Conveyed Assets as contracts serviced by the Servicer and shall mark its
Electronic Ledger to show that the related Conveyed Assets are owned by the
Obligors in accordance with this Master Sale Agreement and such Conveyed Assets
have been pledged to the Trustee in accordance with the Master Agreement and the
Series Supplement on or prior to the related Purchase Date.
(e) The parties hereto intend that the conveyance of ABS' right,
title and interest in and to the Conveyed Assets (other than Insurance Premiums,
taxes, late charge fees (if the Servicer has made an advance to cover such late
payment) and Initial Unpaid Amounts) shall constitute an absolute sale or
contribution to capital, conveying good title free and clear of any liens,
claims, encumbrances or rights of others from ABS to the respective Obligor and
that the Conveyed Assets shall not be part of ABS' estate in the event of the
insolvency, bankruptcy or similar event with respect to ABS. It is the intention
of the parties hereto that the arrangement with respect to Conveyed Assets shall
constitute a purchase and sale or contribution to capital and not a loan. In the
event, however, that it were to be determined that the transactions evidenced
hereby constitute a loan and not a purchase and sale, it is the intention of the
parties hereto that this Master Sale Agreement and each Sale Agreement
Supplement shall constitute a security agreement under applicable law, and that
ABS shall be deemed to have granted, and does hereby grant, to the respective
Obligors a first priority perfected security interest in all of ABS' right,
title and interest in the Conveyed Assets.
SECTION 2.02 Custody of Contract Files. In connection with (a) each
Conveyance of Conveyed Assets to the Obligors, and (b) each pledge by such
Obligors to the Trustee for the benefit of the related Series Secured Parties
pursuant to this Master Agreement or pursuant to any Sale Agreement Supplement,
the Servicer will retain the Contract Files (provided that such Contract Files
may be held by a designated custodian of the Servicer) and any related evidence
of insurance and payments on behalf of the Trustee.
SECTION 2.03 Servicing of Conveyed Assets. In connection with the
Conveyance of the Conveyed Assets to the Obligors pursuant to this Master Sale
Agreement and pursuant to the related Sale Agreement Supplement and the pledge
thereof to the Trustee, ABS hereby agrees, until a successor servicer accepts
such duties and responsibilities, to service the Conveyed Assets for the benefit
of the Obligors (and their respective successors and assigns) and the Trustee in
accordance with the terms and conditions of the Master Agreement and the
respective Series Supplement.
SECTION 2.04 Conveyance of Conveyed Assets. Each Conveyance of
Conveyed Assets shall be evidenced by the execution and delivery by the Obligors
and ABS of this Master Sale Agreement and the execution and delivery of a Sale
Agreement Supplement in the form of Exhibit A hereto, and all of the Obligors'
rights hereunder and thereunder shall similarly be pledged to the Trustee for
the benefit of the related Series Secured Parties as of the related Purchase
Date. Each such Conveyance shall be effective as of the related Purchase Date.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.0l Representations and Warranties of ABS. ABS hereby makes
the following representations and warranties for the benefit of the Obligors,
the Trustee and, with respect to each Series of Notes, as defined in the Master
Agreement, the related Series Secured Parties. Such representations and
warranties speak, as to the Conveyed Assets conveyed as of the related Purchase
Date, unless otherwise indicated, but shall survive each Conveyance of the
Conveyed Assets to the Obligors and their successors and assigns.
(a) Each Contract, as of the relevant Purchase Date, is an "Eligible
Contract" as such term is defined in the related Series Supplement; provided
that to the extent certain characteristics of the Eligible Contract are to be
satisfied as of the Cut-Off Date rather than the Purchase Date, each such
characteristic is satisfied as of the relevant Cut-Off Date.
(b) As to ABS:
(i) Organization and Good Standing. ABS is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware, with full corporate power and authority to own its
properties as presently owned and to conduct its business as presently
conducted, and ABS had at all relevant times, and now has, power,
authority, and legal right to acquire, own, contribute and sell the
Conveyed Assets;
(ii) Due Qualification. ABS is duly qualified to do business
as a foreign corporation and is in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions in which its
ownership or lease of property or the servicing of the Contracts or the
conduct of its business requires such qualification, license or approval,
except to the extent that the failure to be so qualified, or to obtain
such licenses and approvals, would not, in the aggregate, materially and
adversely affect the ability of ABS to perform its obligations under the
Master Agreement and all Series Supplements, this Master Sale Agreement,
each Sale Agreement Supplement and each Series Related Document to which
ABS is a party;
(iii) Power and Authority. ABS has full corporate power and
authority to execute and deliver and perform its obligations under this
Master Sale Agreement, each Sale Agreement Supplement, the Master
Agreement, the Series Supplements and each other Series Related Document
to which ABS is a party and to carry out their respective terms; ABS has
duly authorized the sale and contribution to the Obligor(s) of the related
Conveyed Assets by all necessary corporate action; and the execution,
delivery, and performance of all Series Related Documents has been duly
authorized by ABS by all necessary corporate action;
(iv) Valid Sale; Binding Obligations. Upon execution and
delivery of each Sale Agreement Supplement by ABS, such Sale Agreement
Supplement will constitute an absolute assignment to the Obligors of all
right, title and interest of ABS in
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the Conveyed Assets transferred thereby, and the Conveyed Assets will
thereafter be held by the Obligors free and clear of Adverse Claims of ABS
or any Person claiming through or under ABS, except for Adverse Claims
permitted under, or to be created by, the Master Agreement and the related
Series Supplement; this Master Sale Agreement, the Master Agreement and
the Series Supplements and each Series Related Document to which ABS is a
party when duly executed and delivered, will each constitute a legal,
valid, and binding obligation of ABS, enforceable against ABS in
accordance with its terms, except that (A) such enforcement may be subject
to bankruptcy, insolvency, receivership, conservatorship 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 a
proceeding at law or in equity;
(v) No Violation. The consummation of the transactions
contemplated by and the fulfillment of the terms of the Master Agreement,
each Series Supplement, this Master Sale Agreement, each Sale Agreement
Supplement and each Series Related Document to which ABS is a party will
not conflict with, result in any breach of any of the terms and provisions
of, or constitute (with or without notice or lapse of time) a default
under, the certificate of incorporation or bylaws of ABS, or any material
term of any indenture, agreement, mortgage, deed of trust, or other
instrument to which ABS is a party or by which it is bound, or result in
the creation or imposition of any Adverse Claim upon any of its properties
pursuant to the terms of any such indenture, agreement, mortgage, deed of
trust, or other instrument, other than this Master Sale Agreement, the
Sale Agreement Supplement, the Master Agreement, the Series Supplements
and each Series Related Document to which ABS is a party, or violate any
law or any order, writ, judgment award, injunction, decree, rule, or
regulation applicable to ABS or affecting it or its property, which would
have a material adverse effect on the Conveyed Assets, and no transaction
contemplated hereby requires compliance with any bulk sales act or similar
law;
(vi) No Proceedings. There are no proceedings or
investigations pending, or, to the knowledge of ABS, threatened, before
any court, regulatory body, administrative agency, or other tribunal or
governmental authority (A) asserting the invalidity of this Master Sale
Agreement, the Sale Agreement Supplement, the Master Agreement or the
Series Supplements, (B) seeking to prevent the consummation of the
transactions contemplated by this Master Sale Agreement, any Sale
Agreement Supplement, the Master Agreement or the Series Supplements, or
(C) seeking any determination or ruling, that might (in the reasonable
judgement of ABS) materially and adversely affect the performance by ABS
of its obligations under, or the validity or enforceability of, this
Master Sale Agreement, any Sale Agreement Supplement, the Master Agreement
or the Series Supplements;
(vii) Insolvency. ABS is not insolvent and will not be
rendered insolvent by the transactions contemplated by this Master Sale
Agreement, the Sale Agreement Supplements, the Master Agreement or the
Series Supplements;
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(viii) Principal Place of Business. Except to the extent that
notice of any change in such location or locations has been given as
provided in Section 4.01(e) of this Master Sale Agreement, ABS' principal
place of business, and chief executive office is located at 1020 Laurel
Oak Road, Voorhees, New Jersey 08043;
(ix) Valid Assignment. It is the intention of ABS that each
sale, contribution, transfer and assignment herein contemplates or in a
Sale Agreement Supplement contemplated constitutes a valid assignment of
the related Conveyed Assets from ABS to the Obligors and that the
beneficial interest in and title to the Conveyed Assets not be part of the
estate of ABS in the event of any insolvency or receivership or
conservatorship proceeding with respect to ABS;
(x) 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 ABS of this Master Sale Agreement or any Sale Agreement
Supplement;
(xi) Accuracy of Information. All information heretofore
furnished in writing by ABS to the Obligors or the Trustee for purposes of
or in connection with this Master Sale Agreement or any transfer 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 ABS to such Persons will be true, accurate and complete in
every material respect, on the date such information is stated or
certified;
(xii) Names. ABS was until September 19, 1994 known as Advanta
Leasing Corp. and has, commencing in 1998 for certain of its operations,
used the names Advanta Capital Funding Group, Advanta Leasing Services and
Executive Capital. Except as stated in the preceding sentence, ABS has
not, in the past five years, used any corporate names, trade names or
assumed names other than the name in which it has executed this Master
Sale Agreement; and
(xiii) Year 2000. Any computer reprogramming required by ABS
to properly perform its obligations under this Master Sale Agreement, each
Sale Agreement Supplement, the Master Agreement and the Series Supplements
on and after January 1, 2000 will be completed prior to January 1, 2000.
SECTION 3.02 Representations and Warranties of the Obligors. Each
Obligor hereby makes the following representations and warranties with respect
to itself and not with respect to any other Obligor. The following
representations and warranties are made to ABS in its individual capacity and as
Seller and as Servicer and to the Trustee and to each Series Secured Party. ABS
will rely and the Obligors acknowledge and agree that ABS will rely on the
following representations and warranties in agreeing to enter into this Master
Sale Agreement and sell and contribute Conveyed Assets hereunder. Such
representations and warranties speak
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as of each Purchase Date, and shall survive each sale, transfer and assignment
of the respective Conveyed Assets to the Obligors and their respective
successors and assigns.
(a) Organization and Good Standing. The Obligor is a legal entity
duly organized, validly existing and in good standing under the laws of the
State of its organization, with full corporate power and authority to own its
properties and to conduct its business as presently conducted;
(b) Due Qualification. The Obligor is duly qualified to do business
as a foreign corporation and is in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification, license or
approval, except to the extent that the failure to be so qualified, or to obtain
such license and approvals would not, in the aggregate, materially and adversely
affect the ability of the Obligor to comply with the terms of this Master Sale
Agreement, any Sale Agreement Supplement, the Master Agreement, the Series
Supplements or Series Related Documents to which the Obligor is a party;
(c) Power and Authority. The Obligor has the corporate power and
authority to execute and deliver this Master Sale Agreement, each Sale Agreement
Supplement, the Master Agreement, the Series Supplements and all Series Related
Documents to which it is a party and to carry out their respective terms; and
the execution, delivery, and performance of this Master Sale Agreement, each
Sale Agreement Supplement, the Master Agreement, the Series Supplements and all
Series Related Documents to which the Obligor is a party have been or prior to
the execution thereof will have been duly authorized by the Obligor by all
necessary corporate action;
(d) Binding Obligations. This Master Sale Agreement, each Sale
Agreement Supplement, the Master Agreement, the Series Supplements and each
Series Related Document to which the Obligor is a party, when executed and
delivered, will constitute a legal, valid and binding obligation of such Obligor
enforceable against such Obligor in accordance with its 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 a proceeding
at law or in equity;
(e) No Violation. The consummation of the transactions contemplated
by and the fulfillment of the terms of the Master Agreement, each Series
Supplement, this Master Sale Agreement, each Sale Agreement Supplement and each
Series Related Document to which the Obligor is a party will not conflict with,
result in any breach of any of the terms and provisions of, or constitute (with
or without notice or lapse of time) a default under, the certificate of
incorporation or bylaws of the Obligor, or any material term of any indenture,
agreement, mortgage, deed of trust, or other instrument to which the Obligor is
a party or by which it is bound, or result in the creation or imposition of any
Adverse Claim upon any of its properties pursuant to the terms of any such
indenture, agreement, mortgage, deed of trust, or other
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instrument, other than this Master Sale Agreement, the Sale Agreement
Supplement, the Master Agreement and each Series Related Document to which the
Obligor is a party, or violate any law or any order, writ, judgment award,
injunction, decree, rule, or regulation applicable to the Obligor or affecting
it or its property, which would have a material adverse effect on the Conveyed
Assets, and no transaction contemplated hereby requires compliance with any bulk
sales act or similar law;
(f) No Proceedings. There are no proceedings or investigations
pending, or, to the knowledge of either Obligor, threatened, before any court,
regulatory body, administrative agency, or other tribunal or governmental
authority (A) asserting the invalidity of this Master Sale Agreement, the Sale
Agreement Supplement, the Master Agreement or the Series Supplements, (B)
seeking to prevent the consummation of the transactions contemplated by this
Master Sale Agreement, any Sale Agreement Supplement, the Master Agreement or
the Series Supplements, or (C) seeking any determination or ruling, that might
(in the reasonable judgement of the Obligors) materially and adversely affect
the performance by each Obligor of its obligations under, or the validity or
enforceability of, this Master Sale Agreement, any Sale Agreement Supplement,
the Master Agreement or the Series Supplements;
(g) Insolvency. Neither Obligor is insolvent and will not be
rendered insolvent by the transactions contemplated by this Master Sale
Agreement, the Sale Agreement Supplements, the Master Agreement or the Series
Supplements;
(h) Principal Place of Business. Except to the extent that notice of
any change in such location or locations has been given as provided in Section
4.01(e) of this Master Sale Agreement, ALRC VIII's principal place of business
and chief executive office is located at 639 Isbell Road, Suite 390-A, Reno,
Nevada 89509, and ALRC IX's principal place of business and chief executive
office is located at 639 Isbell Road, Suite 390-B, Reno, Nevada 89509;
(i) Valid Assignment. It is the intention of the Obligors that each
sale, contribution, transfer and assignment herein contemplates or in a Sale
Agreement Supplement contemplated constitutes a valid assignment of the related
Conveyed Assets from ABS to the Obligors and that the beneficial interest in and
title to the Conveyed Assets not be part of the estate of ABS in the event of
any insolvency or receivership or conservatorship proceeding with respect to
ABS;
(j) 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
ABS of this Master Sale Agreement or any Sale Agreement Supplement;
(k) Accuracy of Information. All information heretofore furnished in
writing by the Obligors to ABS or the Trustee for purposes of or in connection
with this Master Sale Agreement or any transfer 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 the
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Obligors to such Persons will be true, accurate and complete in every material
respect, on the date such information is stated or certified;
(l) Names. Neither Obligor has, in the past five years, used any
corporate names, trade names or assumed names other than the name in which it
has executed this Master Sale Agreement; and
(m) Year 2000. Any computer reprogramming required by each Obligor
to properly perform its obligations under this Master Sale Agreement, each Sale
Agreement Supplement, the Master Agreement and the Series Supplements on and
after January 1, 2000 will be completed prior to January 1, 2000.
(n) Organizational Documents. The Obligor will comply with the terms
of its articles of incorporation and bylaws and will not amend its articles of
incorporation unless the Rating Agency Condition has been met with respect to
such amendment.
SECTION 3.03 Repurchase Contracts and Equipment by ABS. Upon
discovery by the Trustee, the Servicer or an Obligor of a breach of any of the
representations and warranties made by ABS in this Master Sale Agreement or in
any Sale Agreement Supplement that materially and adversely affects the
interests of the Obligors or their successors or assigns, including the Trustee
or any Holder of Notes, in any of the Contracts, the related Equipment or the
Contract File, the party discovering such breach shall give prompt written
notice to the others. Unless the breach shall have been cured by ABS or any
successor thereto or waived prior to 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 the
Obligor's election, any earlier date), ABS shall repurchase such Contract and
the related Pledged Property subject to such Contract from the appropriate
Obligor or Obligors on the date such Contract is removed from the Series Trust
Estate and on such date pay the repurchase price to the Trustee for the benefit
of the Obligors and the Obligors shall direct the Trustee to deposit such amount
in the Collection Account created under the appropriate Series Supplement. The
repurchase price shall be equal to the Prepayment Amount determined as provided
under the terms of the Master Agreement. The obligation of ABS as provided in
this Section 3.03 to repurchase any Contract and the Equipment subject to such
Contract as to which a breach has occurred and is continuing and to remit the
Prepayment Amount shall constitute the sole remedy against ABS for such breach
available to the Obligors and the Trustee. The representations and warranties
set forth in this Master Sale Agreement and the Sale Agreement Supplements shall
survive each sale, transfer and assignment of the Conveyed Assets to the
Obligors and their pledge to the Trustee.
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ARTICLE IV
COVENANTS OF ABS AND THE OBLIGORS
SECTION 4.01 ABS Covenants. ABS hereby covenants and agrees with the
Obligors as follows:
(a) Merger of, Consolidation of, or Assumption of the Obligations
of, ABS. Any corporation (i) into which ABS may be merged or consolidated, (ii)
resulting from any merger, conversion, or consolidation to which ABS shall be
party, or (iii) succeeding to the business of ABS substantially as a whole,
which corporation in any of the foregoing cases executes an agreement of
assumption to perform every obligation of ABS under this Master Sale Agreement
and each Sale Agreement Supplement and under the Master Agreement, each Series
Supplement and all other Series Related Documents, will be the successor to ABS
under this Master Sale Agreement and each Sale Agreement Supplement without the
execution or filing of any document or the taking of any further act on the part
of any of the parties to this Master Sale Agreement, anything in this Master
Sale Agreement or any Sale Agreement Supplement notwithstanding; provided,
however, that immediately after giving effect to such transaction, no
representation or warranty made pursuant to Section 3.01 shall have been
breached.
(b) Limitation on Liability of ABS and Others. ABS and any director
or officer or employee or agent of ABS may rely in good faith on any document of
any kind, prima facie properly executed and submitted by any Person respecting
any matters arising under this Master Sale Agreement and each Sale Agreement
Supplement. ABS shall not be under any obligation to appear in, prosecute, or
defend any legal action that is not incidental to its obligations as the seller
of the Conveyed Assets under this Master Sale Agreement or any Sale Agreement
Supplement and that in its opinion may involve it in any expense or liability.
(c) Preservation of Security Interest. ABS shall execute and file
such financing statements and cause to be executed and filed such continuation
statements, all in such manner and in such places as may be required by law
fully to preserve, maintain, and protect the interest of the Obligors under this
Master Sale Agreement and each Sale Agreement Supplement in the Conveyed Assets
and in the proceeds thereof; provided that no filings shall be required on any
Equipment owned by ABS except (i) as required by ABS' Credit and Collection
Policy and (ii) as otherwise required by any Sale Agreement Supplement. ABS
shall not be required to file financing statements with respect to the Equipment
owned by ABS except as otherwise required hereby or by the Sale Agreement
Supplement.
(d) Preservation of Name, etc. ABS will not change its name,
identity or corporate structure in any manner that would, could, or might make
any financing statement or continuation statement filed by ABS in accordance
with paragraph (c) above or the Master Agreement seriously misleading within the
meaning of Section 9-402 (7) of the UCC, unless it shall have given the Obligors
and the Trustee at least 30 days prior written notice thereof.
(e) Preservation of Office. ABS will give the Obligors and the
Trustee at least 30 days prior written notice of any relocation of its principal
executive office if, as a result of such relocation, the applicable provisions
of the UCC would require the filing of any amendment
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of any previously filed financing, or continuation statement or of any new
financing statement filed hereunder or pursuant to the terms of any conveyance
agreement and will give the Obligors and the Trustee at least 30 days prior
written notice of any change in location of the Contract Files.
(f) Making of Record. ABS, as transferor of the Contracts and
Equipment will, at its own cost and expense, (i) maintain a master record of the
Contracts and Equipment and (ii) mark its records to show that the Contracts and
any interest ABS may have in the Equipment have been conveyed to the Obligors
and that they have been pledged and assigned to the Trustee pursuant to the
Master Agreement and the Series Supplement.
(g) Compliance with Law. ABS will comply, in all material respects,
with all acts, rules, regulations, orders, decrees and directions of any
governmental authority applicable to the Conveyed Assets or ABS or any part
thereof; provided, however, that ABS may contest any act, regulation, order,
decree or direction in any reasonable manner which shall not materially and
adversely affect the rights of the Obligors or the Trustee in the Conveyed
Assets.
(h) Conveyance of Conveyed Assets; Security Interests. Except for
the sales and conveyances under this Master Sale Agreement and under each Sale
Agreement Supplement and pursuant to the Master Agreement and the Series
Supplements, ABS will not sell, pledge, assign or transfer to any other Person,
or grant, create, incur, assume or suffer to exist any Adverse Claim on any
Asset, or any interest therein and ABS shall defend the right, title, and
interest of the Obligors and their successors and assigns in, to and under the
Conveyed Assets, against all claims of third parties claiming through or under
ABS; provided, however that nothing in this subsection 4.01(h), shall prevent or
be deemed to prohibit ABS from suffering to exist upon any of the Conveyed
Assets any Adverse Claim for federal, state, municipal or other local taxes if
such taxes shall not at the time be due and payable or if ABS shall concurrently
be contesting the validity thereof in good faith by appropriate proceedings
which act to stay enforcement thereof and shall have set aside on its books
adequate reserves with respect thereto.
(i) Notification of Breach. ABS will advise each Obligor and the
Trustee promptly, in reasonable detail, of the occurrence of any breach by ABS
or other party hereto following discovery by ABS of such breach of any of its
representations, warranties and covenants contained herein.
(j) Further Assurances. ABS will make, execute or endorse,
acknowledge and file or deliver to the Obligors from time to time such
schedules, confirmatory assignments, conveyances, transfer endorsements, powers
of attorney, certificates, reports and other assurances or instruments and take
such further steps relating to the Conveyed Assets and other rights covered by
this Master Sale Agreement or any Sale Agreement Supplement, as the Obligors or
the Trustee may request and reasonably require; provided, however, that, no UCC
filing will be required with respect to the Equipment except as otherwise
required hereby or by the Master Agreement, the Series Supplement or the Sale
Agreement Supplement.
(k) Maintenance of Records. ABS agrees to maintain this Master Sale
Agreement and each Sale Agreement Supplement continuously from the time of its
execution.
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(l) Non-disclosure. ABS hereby covenants and agrees with the
Obligors not to disclose to any Person (except the Trustee, any rating agency
rating obligations issued by the Obligors and investors or potential investors
in such obligations and any information required to be disclosed in connection
with the registration and sale of the Obligors' securities which are payable
from the Conveyed Assets) any of the information provided to the Servicer to be
included in the Electronic Ledger or any List of Contracts delivered on any
Purchase Dates pursuant to subsection 5.01(c) hereof or subsection 2(c) of the
Sale Agreement Supplement, except such disclosures as are required upon the
appointment of a successor Servicer under the Master Agreement or by law and
except that ABS consents to the disclosure of any material nonpublic information
with respect to it (i) to any other such party, (ii) to any 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. ABS hereby agrees to take
such measures as shall be reasonably requested by the Obligors or their duly
appointed agent or the Trustee to protect and maintain the security and
confidentiality of any of the information, and in connection therewith, shall
allow the Obligors or their duly appointed agent and the Trustee from time to
time during normal business hours and upon reasonable prior notice to inspect
the applicable security and confidentiality arrangements from time to time in
normal business hours. ABS shall give the Obligors and the Trustee five days
prior written notice of any disclosure pursuant to this Section 4.01(l).
(m) ABS understands that the Obligors intend to pledge the Conveyed
Assets and the Obligors' rights (but not their obligations) under this Master
Sale Agreement to the Trustee pursuant to the Master Agreement and hereby
consents to the assignment of all or any portion of this Master Sale Agreement
and the Sale Agreement Supplements by each Obligor to the Trustee. ABS agrees
that any such assignee of each Obligor may exercise the rights of such Obligor
hereunder and shall be entitled to all of the benefits of such Obligor hereunder
and to the extent provided for in the Master Agreement.
(n) Guarantees. Except in connection with the Series Related
Documents, the Servicer shall not become or remain liable, directly or
contingently, in connection with any Indebtedness or other liability of the
Obligors, whether by guarantee, endorsement (other than endorsements of
negotiable instruments for deposit or collection in the ordinary course of
business), agreement to contribute, agreement to supply or advance funds, or
otherwise.
(o) Nature of Business. The Servicer will engage in no business with
the Obligors other than the transfer of Conveyed Assets hereunder and the other
transactions permitted or contemplated by this Master Sale Agreement, the Master
Agreement and the Series Supplements.
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SECTION 4.02 Covenants of Each Obligor. Each Obligor for itself and
not for any other Obligor, each hereby covenants and agrees with ABS as follows:
(a) Non-disclosure; Inspection. Each Obligor hereby covenants and
agrees with ABS not to disclose to any Person (except the Servicer, the Trustee,
any rating agency rating obligations issued by the Obligors and investors or
potential investors in such obligations and any information required to be
disclosed in connection with the registration and sale of the Obligors'
securities which are payable from the Conveyed Assets) any of the information
contained in the Electronic Ledger, or any List of Contracts delivered on any
Purchase Date to the Obligors pursuant to subsection 5.01(c) hereof and
subsection 2(c) of the Sale Agreement Supplement, except such disclosures as are
required upon appointment of a successor Servicer under the Master Agreement or
by law and except that the Obligor consents to the disclosure of any material
nonpublic information with respect to it (i) to any other such party, (ii) to
any prospective or actual assignee or participant of any of them, (iii) by the
Trustee to any Rating Agency, commercial paper dealer or a 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. Each
Obligor agrees to take such measures as shall be reasonably requested by ABS to
protect and maintain the security and confidentiality of such information, and,
in connection therewith, shall allow ABS from time to time during normal
business hours and upon reasonable prior notice to inspect the applicable
security, and confidentiality arrangements. The Obligors shall give ABS five
days' prior written notice of any disclosure pursuant to this subsection
4.02(a).
(b) Reconveyance. Prior to each date as of which Contracts and the
Equipment subject to such Contracts are to be repurchased by ABS pursuant to
Section 3.03, the Obligors shall cause the Trustee, in accordance with Section
6.11 of the Master Agreement, to assign, on behalf of the Obligors, without
recourse, representation, or warranty, to ABS all of the Obligor's right, title,
and interest in and to such removed Contract and any interest in the related
Pledged Property, and all security and documents relating, thereto, such
assignment being an assignment outright and not for security; and upon payment
of the Prepayment Amount, ABS will thereupon own such Contract and any interest
in the Equipment which had been acquired by either of the Obligors and all such
security and documents, free of any further obligation to the Obligors with
respect thereto. If in any enforcement suit or legal proceeding holds that the
Servicer may not enforce a Contract on the ground that it is not a real party in
interest or holder entitled to enforce the Contract, the Obligors shall, at the
Obligors' expense, take such steps as the Obligors deem necessary to enforce the
Contract, including bringing suit in such Obligors' names.
(c) User's Quiet Enjoyment. Each Obligor hereby acknowledges and
agrees that its rights in the Equipment are expressly subject to the rights of
the related Users in such Equipment pursuant to the applicable Contract. Each
Obligor covenants and agrees that, so long as a User shall not be in default of
any of the provisions of the applicable Contract, no Obligor nor any assignee of
any Obligor will disturb the User's quiet and peaceful possession of the related
Equipment and the User's unrestricted use thereof for its intended purpose.
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ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.01 Conditions to the Obligors' Obligations. The
obligations of an Obligor to enter into this Master Sale Agreement and each a
Sale Agreement Supplement and purchase or otherwise acquire Conveyed Assets on
the related Purchase Date shall be subject to the satisfaction of the following
conditions:
(a) All representations and warranties of ABS contained in this
Master Sale Agreement with respect to the Conveyed Assets conveyed on the
Purchase Date shall be true and correct on the related Purchase Date with the
same effect as though such representations and warranties had been made on such
date;
(b) All information concerning such Conveyed Assets provided to such
Obligor shall be true and correct as of the related Cut-Off Date in all material
respects;
(c) ABS shall have delivered to the Obligors or at the direction of
the Obligors, a List of Contracts as of the related Cut-Off Date and shall have
substantially performed all other obligations required to be performed by the
provisions of this Master Sale Agreement;
(d) ABS shall have recorded and filed, at its expense, any financing
statement with respect to such Conveyed Assets pursuant to this Master Sale
Agreement meeting the requirements of applicable state law in such manner in
such jurisdictions as are necessary to perfect the transfer of such Conveyed
Assets from ABS to such Obligor, and shall deliver a copy of such financing
statements or other evidence of such filings to the Obligors and the Trustee;
and
(e) All corporate and legal proceedings and all instruments in
connection with the transactions contemplated by this Master Sale Agreement
shall be satisfactory in form and substance to the Obligors and the Obligors
shall have received from ABS copies of all documents (including, without
limitation, records of corporate proceedings) relevant to the transactions
herein contemplated as the Obligors may reasonably have requested.
SECTION 5.02 Conditions to ABS' Obligations. The obligations of ABS
to enter into this Master Sale Agreement and any Sale Agreement Supplement and
to sell, transfer, contribute and assign any Conveyed Assets on the related
Purchase Date shall be subject to the satisfaction of the following conditions:
(a) All representations and warranties of the Obligors contained in
this Master Sale Agreement and in the related Sale Agreement Supplement shall be
true and correct with the same effect as though such representations and
warranties had been made on such date;
(b) All corporate and legal proceedings and all instruments in
connection with the transactions contemplated by this Master Sale Agreement
shall be satisfactory in form and
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substance to ABS, and ABS shall have received from the Obligors copies of all
documents (including, without limitation, records of corporate proceedings)
relevant to the transactions herein contemplated as ABS may reasonably have
requested; and
(c) ABS shall have received payment, to the extent agreed with the
Obligors, in satisfaction of the transfer of the Conveyed Assets, and to the
extent the value of the Conveyed Assets exceeds the amount paid the difference
shall constitute a capital contribution to the Obligors and shall be allocated
between the Obligors as determined by ABS.
ARTICLE VI
TERMINATION
SECTION 6.01 Termination. The respective obligations and
responsibilities of ABS and each Obligor created by this Master Sale Agreement
and any Sale Agreement Supplement shall terminate upon the earliest of (i) the
maturity or other liquidation of the last Contract and the disposition of any
amounts received upon disposition of any Defaulted Contracts or sale of the
Equipment; (ii) the distribution to all Obligors of all amounts required to be
paid to them pursuant to this Master Sale Agreement; and (iii) the termination
of the Master Sale Agreement.
SECTION 6.02 Effect of Termination. No termination nor rejection or
failure to assume the executory obligations of this Master Sale Agreement in the
bankruptcy, insolvency conservatorship or receivership of ABS, or any Obligor
shall be deemed to impair or affect the obligations pertaining to any executed
sale or executed obligations, including, without limitation, pretermination
breaches of representations and warranties by ABS or any Obligor.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.01 Amendment. This Master Sale Agreement may be amended
from time to time by ABS and each of the Obligors, but only with the prior
written consent of the Trustee.
SECTION 7.02 Governing Law. This Master Sale Agreement and any
amendment hereof pursuant to Section 7.01 shall be construed in accordance with
and governed by the substantive laws of the State of New York (without regard to
choice of law principles) applicable to agreements made and to be performed
therein and the obligations, rights, and remedies of the parties under this
Master Sale Agreement shall be determined in accordance with such laws.
SECTION 7.03 Notices. All demands, notices, and communications under
this Master Sale Agreement shall be in writing, and shall be deemed to have been
duly given, made and received (i) when delivered against receipt of registered
or certified mail or upon actual receipt of registered or certified mail,
postage prepaid, return receipt requested; (ii) when
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delivered by courier with appropriate evidence of receipt; or (iii) upon
transmission via facsimile or telex with appropriate evidence of receipt (a) in
the case of ABS, at the following address: Advanta Business Services Corp., 1020
Laurel Oak Road, Voorhees, New Jersey, 08043, attention: Treasury Department,
(b) in the case of Advanta Leasing Receivables Corp. VIII, to such Obligor at
the following address: Advanta Leasing Receivables Corp. VIII, 639 Isbell Road,
Suite 390-A, Reno, Nevada 89509, and (c) in the case of Advanta Leasing
Receivables Corp. IX, to such Obligor at the following address: Advanta Leasing
Receivables Corp. IX, to such Obligor, at the following address: 639 Isbell
Road, Suite 390-B, Reno, Nevada 89509. Any party may alter the address to which
communications are to be sent by giving notice of such change of address in
conformity with the provisions of this Section 7.03 for giving notice and by
otherwise complying with any applicable terms of this Master Sale Agreement,
including, but not limited to, subsections 4.01(d) and (e).
SECTION 7.04 Severability of Provisions. If any one or more of the
covenants, agreements, provisions, or terms of this Master Sale 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 Sale Agreement and shall in no
way affect the validity or enforceability of the other provisions of this Master
Sale Agreement.
SECTION 7.05 Assignment. Notwithstanding, anything to the contrary
contained in this Master Sale Agreement, this Master Sale Agreement may not be
assigned by ABS, except (i) as provided in Section 4.01(a) and (ii) as
collateral security, granted to the Trustee, without the prior written consent
of each of the Obligors, and, except as pledged and assigned to the Trustee,
this Master Sale Agreement may not be assigned by either of the Obligors without
the prior written consent of ABS.
SECTION 7.06 Further Assurances. Each of ABS and each Obligor agrees
to do such further acts and to execute and deliver to the Trustee such
additional assigns, agreements, powers and instruments as are required by the
Trustee to carry into effect the purposes of this Master Sale Agreement or to
better assure and confirm unto the Trustee its rights, powers and remedies
hereunder.
SECTION 7.07 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of either Obligor or ABS, any right,
remedy, power or privilege hereunder, shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise hereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exhaustive of any rights,
remedies, powers and privilege provided by law.
SECTION 7.08 Counterparts. This Master Sale Agreement may be
executed in two or more counterparts and by different parties on separate
counterparts, each of which shall be an original, but all of which shall
constitute one and the same instrument.
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SECTION 7.09 Binding Effect. This Master Sale Agreement will inure
to the benefit of and be binding upon the parties hereto, the Trustee, the
Noteholders and their respective successors and permitted assigns.
SECTION 7.10 Merger and Integration. Except as specifically stated
otherwise herein, this Master Sale Agreement, the Sale Agreement Supplements,
the Master Agreement and all related Series Related Documents set forth the
entire understanding of the parties relating to the subject matter hereof, and
all prior understandings, written or oral, are superseded by, this Master Sale
Agreement, the Sale Agreement Supplements, the Master Agreement and the Series
Related Documents. This Master Sale Agreement may not be modified, amended,
waived or supplemented except as provided herein.
SECTION 7.11 Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
SECTION 7.12 Exhibit. The exhibit attached hereto and referred to
herein shall constitute a part of this Master Sale Agreement and is incorporated
into this Master Sale Agreement for all purposes.
SECTION 7.13 No Bankruptcy Petition Against any Obligor. Each of ABS
and each Obligor agrees that, prior to the date that is one year and one day
after the payment in full of the Notes, it will not institute against any
Obligor, or join any other Person in instituting against any Obligor, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other proceedings under the laws of the United States or any state of the
United States. This Section 7.13 shall survive the termination of this Master
Sale Agreement.
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IN WITNESS WHEREOF, ABS and the Obligors have caused this Master
Sale and Contribution Agreement to be duly executed by their respective officers
as of the day and year first above written.
ADVANTA BUSINESS SERVICES CORP.,
in its individual capacity and as
Originator and Servicer
By: /s/ Mark Shapiro
-------------------------------------
Name: Mark Shapiro
Title: Assistant Treasurer
By: /s/ Mark Shapiro
-------------------------------------
Name: Mark Shapiro
Title: Assistant Treasurer
ADVANTA LEASING RECEIVABLES CORP. VIII,
as an Obligor
By: /s/ Mark Shapiro
--------------------------------------
ADVANTA LEASING RECEIVABLES CORP. IX,
as an Obligor
By: /s/ Mark Shapiro
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EXHIBIT A
[To be added]