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Exhibit 4.4
SALE AND CONTRIBUTION AGREEMENT SUPPLEMENT
THIS SALE AND CONTRIBUTION AGREEMENT SUPPLEMENT (this "Sale Agreement
Supplement"), dated August 26, 1999 (the "Purchase Date") is entered into among
ADVANTA BUSINESS SERVICES CORP. ("ABS," in its capacity as "Originator" and
"Servicer"), a Delaware corporation located at 1020 Laurel Oak Road, Voorhees,
New Jersey 08043, ADVANTA LEASING RECEIVABLES CORP. VIII ("ALRC VIII"), a Nevada
corporation located at 639 Isbell Road, Suite 390-A, Reno, Nevada 89509 and
ADVANTA LEASING RECEIVABLES CORP. IX ("ALRC IX"), a Nevada corporation located
at 639 Isbell Road, Suite 390-B, Reno, Nevada 89509 (each of ALRC VIII and ALRC
IX is an "Obligor" and a purchaser or recipient of a contribution hereunder and,
together, ALRC VIII and ALRC IX are the "Obligors").
W I T N E S S E T H:
Reference is hereby made to that certain Master Sale and
Contribution Agreement, dated as of August 26, 1999 (the "Master Sale
Agreement"), between ABS and the Obligors. Pursuant to the Master Sale Agreement
ABS agrees to sell, transfer, assign, set over, contribute, quitclaim and
otherwise convey to the Obligors and the Obligors agree to purchase, acquire or
accept, from time to time, Conveyed Assets (as defined below) and the Obligors
agree to Pledge such Conveyed Assets to the Trustee. The Master Sale Agreement
provides that each sale of Conveyed Assets be evidenced by the execution of
delivery of a Sale and Contribution Agreement Supplement (each, a "Sale
Agreement Supplement") such as this Supplement.
The Conveyed Assets sold or contributed by ABS pursuant to this
Supplement consist of 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 List of Contracts delivered with this Sale Agreement
Supplement, 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 (vi) 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.
The Cut-Off Date with respect to the Contracts is the opening of
business on August 1, 1999. The Purchase Date is August 26, 1999.
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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:
Section 1. Definitions. For the purposes of this Agreement,
capitalized terms used herein but not otherwise defined shall have the
respective meanings assigned to such terms in the Master Agreement or the Master
Sale Agreement.
Section 2. Conveyance. (a) (i) ABS hereby sells, transfers, assigns,
sets over, contributes, quitclaims and otherwise conveys to ALRC VIII all of
ABS' right, title and interest in, to, and under ABS' Residual Interest in the
Equipment, whether now existing or hereafter arising and all monies due or to
become due in respect thereof. Each such transfer of the Residual Interest shall
be without representation, warranty or recourse except as set forth in Section 3
hereof.
(ii) ABS hereby sells, transfers, assigns, sets over, contributes,
quitclaims and otherwise conveys to ALRC IX all of ABS' right, title and
interest in, to, and under all Conveyed Assets other than the Residual Interest,
and all monies due or to become due in respect thereof whether now existing or
hereafter arising. Each such transfer of Conveyed Assets by ABS shall be without
representation, warranty or recourse except as set forth in Section 3 hereof.
(iii) 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 the 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 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.
(b) In connection with such transfer, ABS has heretofore recorded
and filed, at its own expense, financing statements (and will hereafter file
timely continuation statements with respect to such financing statements) with
respect to the Conveyed Assets, meeting the requirements of applicable state law
in such manner and in such jurisdictions as are necessary to perfect and to
maintain the perfection of, the conveyance of the Conveyed Assets from ABS to
the Obligors and the pledge of the Conveyed Assets from the Obligors to the
Trustee, and delivered a copy of such financing statements or other evidence of
such filings to the Obligors; in addition, ABS, in connection with the
conveyance of the Conveyed Assets under this Sale Agreement Supplement, shall on
or prior to the date hereof, file UCC-1 financing statements
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with respect to its interest, if any, in the Equipment in such jurisdictions as
it shall determine to be required to perfect its interest, if any, in the
Equipment, related to Contracts representing not less than 85% of the
Statistical Aggregate Contract Principal Balance. Each of the Obligors shall
also, on or prior to the date hereof, file UCC-1 financing statements with
respect to its interest, if any, in the Equipment related to the Contracts
representing not less than 85% of the Statistical Aggregate Contract Principal
Balance. For such purpose, Statistical Aggregate Contract Principal Balance
means the aggregate of the Contract Principal Balances of the related Contracts,
calculated as of the Statistical Calculation Date using the Statistical Discount
Rate (all as defined or described in the Prospectus dated August 20, 1999 and
relating to the Obligors' Equipment Receivables Asset-Backed Notes, Series
1999-1, Class A-1, Class A-2 and Class A-3).
(c) Except as provided in the preceding subsection (b) and except as
required by the Master Agreement or the Series Supplements, no financing
statements have been or will be recorded or filed with respect to the sale or
transfer of the Equipment unless (i) ABS as Servicer shall determine to file
UCC-3 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 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 such transfer, ABS shall, at its expense, (i)
cause its books and records to be marked to show that the Conveyed Assets have
been transferred to the Obligors in accordance with the Master Sale Agreement
and this Sale Agreement Supplement and the Conveyed Assets have been pledged to
the Trustee in accordance with the Master Agreement and the related Series
Supplement on or prior to the Purchase Date and (ii) deliver to the Obligors or
as directed by the Obligors, the related List of Contracts. 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, the related Series Supplement and this Sale Agreement
Supplement and (ii) to deliver to the Trustee or cause to be delivered to the
Trustee, the related List of Contracts on the Purchase Date.
(e) (i) With respect to the Residual Interest contributed to ALRC
VIII under Section 2(a)(i) of this Sale Agreement Supplement, ABS and ALRC VIII
agree that ALRC VIII shall pay to ABS such amount as is agreed between ABS and
ALRC VIII, if any, in payment of the purchase price of the Residual Interest and
any value of the Residual Interest in excess thereof, ABS hereby contributes to
the capital of ALRC VIII. The amount, if any, to be paid by ALRC VIII to ABS as
set forth in this subsection 2(d)(i) shall be paid to ABS on the date hereof in
immediately available funds.
(ii) With respect to the Conveyed Assets sold and contributed to
ALRC IX under Section 2(a)(ii) of this Sale Agreement Supplement, ABS and ALRC
IX agree that ALRC IX shall pay to ABS such amount as is agreed between ABS and
ALRC IX in payment of the purchase price of the Conveyed Assets (other than the
Residual Interest) and any value of the Conveyed Assets (other than the Residual
Interest) in excess thereof, ABS hereby contributes to
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the capital of ALRC IX. The amount, if any, to be paid by ALRC IX to ABS as set
forth in this subsection 2(d)(ii) shall be paid to ABS on the date hereof in
immediately available funds.
Section 3. Representations and Warranties. (a) ABS hereby (i)
confirms the accuracy, as of the Purchase Date, of the representations and
warranties of ABS set forth in the Master Sale Agreement, and (ii) represents
and warrants that, as of the Purchase Date, each Contract is an "Eligible
Contract" as such term is defined in the Series 1999-1 Supplement, dated as of
August 26, 1999. Such representations and warranties are made for the benefit of
the Obligors and the Trustee, and the Obligors are relying on such
representations and warranties in acquiring the Conveyed Assets. Such
representations and warranties speak as of the Purchase Date, unless otherwise
indicated, but shall survive the transfer of the respective Conveyed Assets to
the Obligor and its successors and assigns and the Pledge by the Obligor to the
Trustee.
(b) Each Obligor hereby confirms the accuracy as of the Purchase
Date of the representations and warranties set forth in Section 3.02 of the
Master Sale Agreement.
Section 4. Amendment. This Sale Agreement Supplement may be amended
from time to time by ABS and the Obligors only with the prior written consent of
the Trustee.
Section 5. Governing Law. This Sale Agreement Supplement and any
amendment hereof pursuant to Section 4 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 Sale
Agreement Supplement shall be determined in accordance with such laws.
Section 6. Counterparts. This Sale Agreement Supplement may be
executed in two or more counterparts (and by different parties on separate
counterparts), each of which shall be an original, but all of which shall
constitute one and the same instrument.
Section 7. Binding Effect: Third-Party Beneficiaries. This Sale
Agreement Supplement will inure to the benefit of and be binding upon the
parties hereto, the Trustee and their respective successors and permitted
assigns.
Section 8. Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
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IN WITNESS WHEREOF, ABS and the Obligors have caused this Sale and
Contribution Agreement Supplement 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
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Name: Mark Shapiro
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Title: Assistant Treasurer
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By: /s/ Mark Shapiro
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Name: Mark Shapiro
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Title: Assistant Treasurer
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ADVANTA LEASING RECEIVABLES VIII,
as an Obligor
By: /s/ Mark Shapiro
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Name: Mark Shapiro
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Title: Treasurer
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ADVANTA LEASING RECEIVABLES IX,
as an Obligor
By: /s/ Mark Shapiro
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Name: Mark Shapiro
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Title: Treasurer
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