EXHIBIT 10.6
EXECUTION
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MASTER LEASE RECEIVABLES
ASSET-BACKED FINANCING FACILITY AGREEMENT
by and among
▇▇▇▇▇▇ LEASING CORP.
as the Servicer,
▇▇▇▇▇▇ LEASING RECEIVABLES CORP. IV
as the Obligors' Agent,
and
▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Trustee and Back-up Servicer,
Dated as of December 1, 2000
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TABLE OF CONTENTS
Page
Article I DEFINITIONS................................................................................... 1
Section 1.01. Definitions....................................................................... 1
Section 1.02. Acts of Holders................................................................... 20
Section 1.03. Notice to Holders; Waiver......................................................... 21
Section 1.04. Alternate Payment and Notice Provisions........................................... 22
Section 1.05. Conflict with Trust Indenture Act................................................. 22
Section 1.06. Effect of Headings and Table of Contents.......................................... 22
Section 1.07. Successors and Assigns............................................................ 22
Section 1.08. Benefits of Agreement............................................................. 22
Section 1.09. Allocation of Series to Groups.................................................... 23
Section 1.10. Status of Obligors' Agent......................................................... 23
Article II REPRESENTATIONS, WARRANTIES AND COVENANTS.................................................... 23
Section 2.01. Representations, Warranties and Covenants of Obligors............................. 23
Section 2.02. Representations, Warranties and Covenants of Servicer............................. 26
Section 2.03. Representations and Warranties of Trustee......................................... 29
Article III PLEDGING THE TRUST ESTATE................................................................... 30
Section 3.01. Series Trust Estates.............................................................. 30
Section 3.02. Preservation of Series Collateral................................................. 30
Section 3.03. Waiver of Stay or Extension Laws; Marshalling of Assets........................... 31
Section 3.04. Noninterference, Etc.............................................................. 31
Section 3.05. Obligor Changes................................................................... 31
Section 3.06. Limited Recourse to Obligors...................................................... 32
Section 3.07. Authorization of Actions to Be Taken by the Trustee............................... 32
Section 3.08. Termination of Security Interests................................................. 33
Section 3.09. Filing; Maintenance of Contract Files............................................. 33
Section 3.10. Costs and Expenses................................................................ 33
Article IV NOTE FORMS................................................................................... 33
Section 4.01. Forms Generally................................................................... 33
Section 4.02. Form of Trustee's Certificate of Authentication................................... 34
Section 4.03. Securities Legend................................................................. 34
Article V THE NOTES..................................................................................... 35
Section 5.01. Amount Limited; Issuable in Series................................................ 35
Section 5.02. Execution, Authentication, Delivery and Dating.................................... 36
Section 5.03. Temporary Notes................................................................... 36
Section 5.04. Registration, Registration of Transfer and Exchange, Transfer Restrictions........ 37
Section 5.05. Mutilated, Destroyed, Lost and Stolen Notes....................................... 39
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Section 5.06. Final Distribution................................................................ 39
Section 5.07. Persons Deemed Owners............................................................. 41
Section 5.08. Cancellation...................................................................... 41
Section 5.09. Book-Entry Notes.................................................................. 41
Section 5.10. Notices to Clearing Agency........................................................ 42
Section 5.11. Definitive Notes.................................................................. 42
Article VI ADMINISTRATION AND SERVICING OF THE TRUST ESTATE............................................. 43
Section 6.01. Retention of Servicer; Responsibilities of Servicer............................... 43
Section 6.02. Standard of Care.................................................................. 45
Section 6.03. Credit and Collection Policy...................................................... 45
Section 6.04. Maintenance of Interest in the Trust Estate....................................... 45
Section 6.05. Servicing Compensation; Payment of Certain Expenses by Servicer................... 46
Section 6.06. Servicer's Certificate............................................................ 46
Section 6.07. Annual Statement as to Compliance................................................. 46
Section 6.08. Financial Statements and Independent Accountant's Servicing Certificate Review.... 47
Section 6.09. Access to Certain Documentation and Information Regarding the Pledged Property.... 48
Section 6.10. Other Necessary Data.............................................................. 49
Section 6.11. Release of Contracts.............................................................. 50
Section 6.12. Removal Related to Upgrades or Trade-ins and Delinquent Contracts................. 51
Section 6.13. Notification to Noteholders of Defaults and Events of Default..................... 51
Section 6.14. Security Deposits................................................................. 51
Section 6.15. Removal of Nonconforming Pledged Property......................................... 52
Section 6.16. Substitution of Contracts......................................................... 52
Article VII ACCOUNTS AND ALLOCATIONS.................................................................... 53
Section 7.01. Establishment of Facility Accounts; Establishment of Advance Payment Accounts..... 53
Section 7.02. Collections and Allocations....................................................... 54
Section 7.03. Investment of Funds in each Facility Account and the Advance Payment Account...... 54
Article VIII THE SERVICER AND THE OBLIGORS.............................................................. 55
Section 8.01. Liability of Servicer; Indemnities................................................ 55
Section 8.02. Merger, Consolidation, or Assumption of the Obligations of Servicer............... 56
Section 8.03. Limitation on Liability of Servicer and Others.................................... 56
Section 8.04. Servicer Not to Resign............................................................ 57
Section 8.05. Reserved.......................................................................... 57
Section 8.06. Indemnities of the Obligors....................................................... 57
Section 8.07. Limitation on Liability of the Obligors........................................... 58
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Article IX SERVICER TERMINATION......................................................................... 58
Section 9.01. Events of Servicer Termination.................................................... 58
Section 9.02. Back-up Servicer to Act; Taking of Bids; Appointment of Successor Servicer........ 59
Section 9.03. Notification of Event of Servicer Termination..................................... 61
Section 9.04. Waiver of Past Defaults........................................................... 61
Section 9.05. Effects of Servicer Termination................................................... 61
Section 9.06. Responsibilities of Back-up Servicer.............................................. 62
Section 9.07. Back-up Servicer Compensation..................................................... 64
Section 9.08. Merger or Consolidation of, or Assumption of the Obligation of Back-up Servicer... 65
Section 9.09. Back-up Servicer Termination or Resignation....................................... 65
Section 9.10. Limitation on Liability of Back-up Servicer and Others............................ 66
Section 9.11. Representations and Warranties of the Back-up Servicer............................ 67
Article X EVENTS OF DEFAULT AND REMEDIES................................................................ 68
Section 10.01. Events of Default................................................................. 68
Section 10.02. Collection of Indebtedness and Suits for Enforcement by Trustee; Authority
of Series Controlling Party....................................................... 68
Section 10.03. Limitation on Suits............................................................... 70
Section 10.04. Unconditional Right of Holders to Receive Principal and Interest.................. 71
Section 10.05. Restoration of Rights and Remedies................................................ 71
Section 10.06. Rights and Remedies Cumulative.................................................... 71
Section 10.07. Delay or Omission Not Waiver...................................................... 71
Section 10.08. Control by Holders................................................................ 72
Section 10.09. Waiver of Past Defaults........................................................... 72
Section 10.10. Undertaking for Costs............................................................. 73
Section 10.11. Action on Notes................................................................... 73
Article XI THE TRUSTEE.................................................................................. 73
Section 11.01. Certain Duties and Responsibilities............................................... 73
Section 11.02. Notice of Defaults................................................................ 75
Section 11.03. Certain Rights of Trustee......................................................... 76
Section 11.04. Not Responsible for Recitals or Issuance of Notes................................. 77
Section 11.05. May Hold Notes.................................................................... 77
Section 11.06. Compensation and Indemnity........................................................ 77
Section 11.07. Disqualification; Conflicting Interests........................................... 77
Section 11.08. Corporate Trustee Required; Eligibility........................................... 78
Section 11.09. Resignation and Removal; Appointment of Successor................................. 78
Section 11.10. Acceptance of Appointment by Successor............................................ 79
Section 11.11. Merger, Conversion, Consolidation or Succession to Business....................... 79
Section 11.12. Preferential Collection of Claims Against Obligors................................ 80
Section 11.13. Appointment of Authenticating Agent............................................... 80
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Section 11.14. Paying Agent...................................................................... 82
Section 11.15. Appointment of Co-Trustee or Separate Trustee..................................... 83
Article XII HOLDERS' LISTS AND REPORTS BY TRUSTEE AND OBLIGORS' AGENT................................... 84
Section 12.01. Obligors' Agent to Furnish Trustee Names and Addresses of Holders................. 84
Section 12.02. Preservation of Information; Communications to Holders............................ 85
Section 12.03. Reports by Trustee................................................................ 86
Section 12.04. Reports by Obligors' Agent........................................................ 86
Section 12.05. Trustee Internet Website.......................................................... 86
Article XIII MASTER AGREEMENT SUPPLEMENTS............................................................... 87
Section 13.01. Supplements Affecting All Series, or the Master Agreement Generally............... 87
Section 13.02. Supplements Authorizing a Series of Notes......................................... 90
Section 13.03. Execution of Master Agreement Supplements......................................... 90
Section 13.04. Effect of Master Agreement Supplements............................................ 91
Section 13.05. Reference in Notes to Master Agreement Supplements................................ 91
Article XIV COVENANTS................................................................................... 91
Section 14.01. Payment of Principal and Interest................................................. 91
Section 14.02. Maintenance of Non-U.S. Office or Agency.......................................... 91
Section 14.03. Consolidation, Merger, Sale of Assets............................................. 92
Section 14.04. Negative Covenants................................................................ 93
Section 14.05. Performance of Obligations; Servicing of Each Series Trust Estate................. 94
Section 14.06. Money for Note Payments to Be Held in Trust....................................... 95
Section 14.07. Corporate Existence............................................................... 96
Section 14.08. Payment of Taxes and Other Claims................................................. 97
Section 14.09. Amendment of Organizational Documents............................................. 97
Section 14.10. Rule 144A Information............................................................. 97
Section 14.11. Further Instruments and Acts...................................................... 98
Section 14.12. Compliance with Laws.............................................................. 98
Section 14.13. Income Tax Characterization....................................................... 98
Article XV MISCELLANEOUS PROVISIONS..................................................................... 98
Section 15.01. Counterparts...................................................................... 98
Section 15.02. Governing Law..................................................................... 98
Section 15.03. Notices........................................................................... 98
Section 15.04. Severability of Provisions........................................................ 99
Section 15.05. Binding Effect.................................................................... 99
Section 15.06. Exhibits.......................................................................... 99
Section 15.07. Calculations...................................................................... 99
Section 15.08. Further Assurances................................................................ 100
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Section 15.09. Nonpetition Covenant.............................................................. 100
Section 15.10. Special Supplement Agreement...................................................... 100
Exhibit A Form of Back-up Servicer Verification Certificate
Exhibit B Form of Trustee Website Investor Certification
Schedule 1 Required Fields for List of Contracts
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This MASTER LEASE RECEIVABLES ASSET-BACKED FINANCING FACILITY
AGREEMENT, dated as of December 1, 2000, with respect to the ▇▇▇▇▇▇ Leasing
Receivables Master Facility, by and among ▇▇▇▇▇▇ Leasing Corp., a Delaware
corporation, as Servicer, ▇▇▇▇▇▇ Leasing Receivables Corp. IV, a Nevada
corporation, as the Obligors' Agent and ▇▇▇▇▇ Fargo Bank Minnesota, National
Association, a national banking association, 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;
(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 limitation;
and
(v) any references contained herein to agreements,
documents and instruments are to the same as they may be amended or
modified from time to time.
Act. When used with respect to any Holder, has the meaning
specified in Section 1.02 hereof.
Actuarial Method. The method of allocating a Scheduled Payment
with respect to any Contract between principal and interest, pursuant to which
(i) the portion of such payment that is allocated to interest is the product of
(a) one-twelfth of the Applicable Discount Rate with respect to such Contract
multiplied by (b) the applicable Contract Principal Balance (before giving
effect to such principal payment) and (ii) the remainder of such payment is
allocated to principal.
Advance Payment. Means, 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) in which such
Scheduled Payments are due.
Advance Payment Account. Has the meaning ascribed in Section
7.01(c) hereof.
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.
Agreement or Master Agreement. This Master Lease Receivables
Asset-Backed Financing Facility Agreement, as the same may be amended, restated
or otherwise modified from time to time.
Applicable Discount Rate. With respect to any Contract shall
have the meaning set forth in the Series Supplement under which such Contract is
pledged to the Trustee.
Authenticating Agent. Means any Person authorized by the
Trustee to act on behalf of the Trustee to authenticate Notes.
Authorized Officer. Means, with respect to any Obligor or the
Obligors' Agent, any President, Vice President or Director of Securitization of
such Obligor or of the Obligors' Agent.
Back-up Servicer. Means ▇▇▇▇▇ Fargo Bank Minnesota, National
Association and any successor thereto.
Back-up Servicer Fee: With respect to a Series, has the
meaning specified in the related Series Supplement.
Back-up Servicer Resignation Notice. Has the meaning specified
in Section 9.09(b) hereof.
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Back-up Servicer Termination Notice. Has the meaning specified
in Section 9.09(a) hereof.
Bearer Notes. Shall have the meaning specified in Section 4.01
hereof.
Book-Entry Notes. Shall mean Notes registered in the name of a
Clearing Agency or its nominee as described in Section 5.09 hereof.
Booked Residual. Means, with respect to any Contract on any
date of determination, the residual value of the Equipment subject to such
Contract, as reflected in Marlin's servicing system.
Borrowing Base. Has the meaning specified therefor in the
related Series Supplement.
Broker. Means (i) the Person (excluding the Transferor and any
equipment vendor) that arranges for the lease of an item of Equipment to a User
pursuant to a Contract between the Transferor and the User of such Equipment, or
(ii) any Person from whom the Transferor purchased a Contract in respect of
which the Transferor is not an original party (other than pursuant to a vendor
program); provided, however, that the term "Broker" shall not include (a) any
Person who serves as an intermediary between the Transferor and any vendor or
manufacturer with whom the Transferor has a program agreement and ▇▇▇▇▇▇ has
made the credit decision and is the initial lessor (except with respect to the
Provident Capital Group programs, where Provident Capital Group or an Affiliate
thereof may be the initial lessor) or (b) any Person who merely provides the
Transferor with lease referral information with ▇▇▇▇▇▇ performing the credit
decision analysis relating to a prospective lessee and where ▇▇▇▇▇▇ is the
initial lessor.
Broker Agreement. Any agreement between the Transferor and a
Broker pursuant to which the Transferor 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, Mt. Laurel, New Jersey,
Minneapolis, Minnesota or Reno, Nevada are authorized or obligated by law,
executive order or governmental decree to be closed.
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.
Clearstream Bank. Shall mean Centrale de Livraison de Valeurs
Mobilieres S.A.
Charged-Off Contract. Means a Contract (i) as to which a
notice of acceleration has been sent to the relevant User, (ii) as to which an
Insolvency Event has occurred with respect to the User, (iii) all or any portion
of which has been or should have been, in accordance with the Credit and
Collection Policy, written off the related Obligor's books as uncollectible,
(iv) with respect to which the Servicer has elected not to
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make a Servicer Advance, or (v) as to which any Scheduled Payment, or part
thereof in excess of 10% of such Scheduled Payment, remains unpaid for 121 days
(as of the 20th calendar day of the month) or more from the original due date
for such payment.
Class. With respect to any Series, all the Notes of such
Series having the same specified payment terms and priorities in payment.
Clearing Agency. Shall mean 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. Shall mean 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. With respect to a Series, has the meaning
specified therefor in the relevant Series Supplement.
Code. Means the Internal Revenue Code of 1986, as amended from
time to time, and Treasury Regulations promulgated thereunder.
Collection Period. With respect to any Settlement Date, the
immediately preceding calendar month; provided, that if, with respect to any
Contract, 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
Contract 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 Trust Estate and any
Collection Period, all cash collections and other cash proceeds of the Contracts
and the Related Security, including without limitation, Scheduled Payments,
Prepayments, Residual Receipts, Recoveries, Investment Earnings and Insurance
Proceeds received from such Series Trust Estate by the Servicer, the Trustee,
the Transferor or the Obligors and Servicer Advances made in respect thereof, in
each case, during such Collection Period (or, if the related Cut-Off Date is
later than the first day of such Collection Period, from such Cut-Off Date
through the end of such Collection Period); provided, that "Collections" shall
not include (i) Advance Payments until (and 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. Means 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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Commonly Controlled Entity. Means each Obligor and each
entity, whether or not incorporated, which is affiliated with any of the
foregoing pursuant to Section 414(b), (c), (m) or (o) of the Code.
Companion Series. Shall mean (i) each Series which has been
paired with one or more other Series (which Series may be prefunded or partially
prefunded), such that the reduction of the Outstanding Amount of such Series
results in the increase of the Outstanding Amount of such other Series, as
described in the related Series Supplements, and (ii) such other Series.
Computer Tape. Collectively, the computer tapes generated by
the Transferor which provide information relating to the Contracts and which
were, or will be, used by the Transferor in selecting the Contracts sold or
contributed to the Obligors pursuant to a Transfer Agreement Supplement.
Contract. Each of the agreements conveyed by the Transferor to
an Obligor pursuant to the Master Transfer Agreement and subsequently pledged by
such Obligor to the Trustee pursuant hereto and any Supplement, including, as
applicable, schedules, supplements and amendments thereto, pursuant to which
specified Equipment is leased to, or loans are made to, a User or which are
identified on the List of Contracts delivered on the related Pledge Date.
Contract Balance Remaining. Means, with respect to any
Contract (or other lease in the Servicer's servicing portfolio), as of any date,
the aggregate (undiscounted) amount of all unpaid Scheduled Payments due under
such Contract (or other lease).
Contract File. With respect to each Contract, the following
documents:
(i) The executed original counterparts of the Contract
that constitutes "chattel paper" for purposes of Sections 9-105(1)(b)
and 9-305 of the UCC (bearing the original signatures of an employee of
▇▇▇▇▇▇, together with the facsimile copy of the signature of the User
or the original signature of the User) or an "instrument" for purposes
of Sections 9-105(1)(i) and 9-305 of the UCC;
(ii) A copy of any related Broker Agreement;
(iii) Copies of all documents (which may be in microfiche
or imaged form or on the Servicer's computerized information system),
if any, that the Transferor or the Servicer keeps on file for benefit
of the Transferor in accordance with the Transferor's or Servicer's
customary procedures indicating that the Equipment is owned by the
Transferor and copies of any and all other material documents
(including, if any, delivery and acceptance notices, guaranties, and
vendor recourse agreements) that the Transferor or the Servicer keeps
on file for the benefit of the Transferor in accordance with the
Transferor's or Servicer's customary procedures relating to any
individual Contract, Broker, User or Equipment (including, without
limitation, any documents providing or relating to any credit support
of or for the User of such Contract); and
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(iv) Copies (together with all amendments, assignments,
and continuations thereof and including evidence of filing with the
appropriate office) of all UCC financing statements filed with respect
to the Contracts, identifying the User as debtor and the Transferor as
secured party, if any.
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 for
such Contract.
Contract Principal Balance. As of any date in the case of a
Contract, the present value of the Scheduled Payments to become due on and after
the date of calculation (excluding all Scheduled Payments due on or prior to,
but not received as of such date of calculation), discounted monthly in arrears
at one-twelfth of the Applicable Discount Rate.
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.
Coupons. Any interest or other coupons attached to a Note.
Credit and Collection Policy. The credit and collection
policies and practices of the Transferor, as the same may be modified from time
to time in accordance with the terms of this Master Agreement.
Crossover Amounts. Any amounts designated as "Crossover
Amounts" in a Series Supplement.
Cut-Off Date. With respect to any Contract, the close of
business on the day prior to the related Pledge Date or the related Transfer
Date, as appropriate.
Default. Means any occurrence that is, or with notice or the
lapse of time or both would become, an Event of Default.
Definitive Notes. Has the meaning specified in Section 5.09
hereof.
Delinquent Contract. A Contract, other than a Charged-Off
Contract, as to which any Scheduled Payment, or part thereof in excess of 10% of
such Scheduled Payment, remains unpaid for more than 30 days from the original
due date for such payment.
Depositaries. Shall mean 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.
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Depository Agreement. Shall mean, if applicable with respect
to any Series or Tranche, the agreement among the Obligors' Agent, the Trustee
and a Clearing Agency, or as otherwise provided in the related Series
Supplement.
Determination Date. With respect to a Collection Period, the
date which is three Business Days prior to the earliest Settlement Date relating
to such Collection Period.
Dollars or $. The lawful money of the United States.
Eligible Contract. With respect to any Series, as defined in
the related Series Supplement.
Eligible Investments. 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;
(c) bankers' acceptances and certificates of deposit and
other interest bearing obligations denominated in Dollars and issued by any
commercial bank with capital, surplus and undivided profits aggregating at least
$100,000,000, the short term unsecured and unguaranteed securities of which are
rated at least "A-1+" by S&P and "P-1" by Moody's;
(d) repurchase obligations for underlying securities of
the types described in clauses (a), (b) and (c) above entered into with any
commercial 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), which money
market funds are rated at least "AAAm" or "AAAm-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
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into, the short-term unsecured and unguaranteed debt rating of such depository
institution or trust company shall be at least "P-1" by Moody's and the
long-term unsecured and unguaranteed debt rating of such depositary institution
or trust company shall be at least "AA-" by S&P.
Each of the Eligible Investments may be purchased by the
Trustee through an Affiliate of the Trustee.
Notwithstanding anything set forth in clauses (a)-(g) above,
any Eligible Investment purchased with funds on deposit in any Facility Account,
Advance Payment Account or Series Account must mature no later than the Business
Day prior to the next Settlement Date for the applicable Series.
ERISA. Shall mean the Employee Retirement Income Security Act
of 1974, including, unless the context otherwise requires, the rules and
regulations thereunder, as amended from time to time.
Equipment. The equipment leased to a User pursuant to any
Contract.
Euroclear Operator. Shall mean ▇▇▇▇▇▇ 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
hereof.
Event of Servicer Termination. An Event described in Section
9.01 hereof.
Exchange Act. Means the Securities Exchange Act of 1934, as
amended, and the applicable rules and regulations thereunder.
Facility Account. Shall have the meaning ascribed in Section
7.01(a) hereof.
Facility Shadow Rating. Means the rating which would be
assigned to the Outstanding Notes with respect to any Series, if such
Outstanding Notes were not provided insurance or other credit support by any
Series Support Provider.
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.
Foreign Clearing Agency. Shall mean Clearstream Bank and the
Euroclear Operator.
Government Contract. Means a Contract of Equipment under which
the User is a federal, state or local government or government agency (or any
agency or instrumentality thereof).
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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.
Group. Shall mean, with respect to any Series, the group of
Series, if any, in which the related Series Supplement specifies such Series is
to be included.
Holder or Noteholder. Shall mean, (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) or (ii) with
respect to a Definitive Note, the Person who is the owner of such Definitive
Note, as reflected in the books of the Note Registrar.
Increased Servicer Fee. With respect to any Series, the
amount, if any, of the fee payable in accordance with Section 9.02(b) hereof to
a successor Servicer appointed pursuant to Section 9.02(b) hereof and the
related Series Supplement that is in excess of the Servicer Fee.
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 and not overdue); (b)
obligations of such Person as lessee under leases which are, 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; (f)
reimbursement obligations with respect to letters of credit; (g) 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; (h) 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 (i) obligations of such Person
under any interest rate or currency exchange agreement.
Indemnified Amounts. Has the meaning set forth in Section
8.01(b) hereof.
Indemnified Party. Has the meaning set forth in Section
8.01(b) hereof.
Independent Accountant. A firm of nationally recognized
independent certified public accountants appointed by ▇▇▇▇▇▇ and/or the Servicer
(if other than ▇▇▇▇▇▇), as applicable, within the meaning of the Securities Act.
9
Initial Unpaid Amounts. Shall mean 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.
Insolvency Event. Means, with respect to a specified Person,
either of the following events:
(i) a case or proceeding shall have been commenced
against such Person seeking a decree or order in respect of such Person
(a) under Title 11 of the United States Code, as now constituted or
hereafter amended or any other applicable federal, state or foreign
bankruptcy, insolvency or other similar law, (b) appointing a
custodian, receiver, liquidator, assignee, trustee or sequestrator (or
similar official) for such Person or of any substantial part of such
Person's assets, or (c) ordering the winding-up or liquidation of the
affairs of such Person, and such case or proceeding shall remain
undismissed or unstayed for sixty (60) days or more or such court shall
enter a decree or order granting the relief sought in such case or
proceeding; or
(ii) the commencement by such Person of a voluntary case
under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other applicable federal, state or foreign
bankruptcy, insolvency or other similar law, 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, liquidator, assignee, custodian,
trustee, sequestrator or similar official of such Person for 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 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 and loss or theft of the Equipment (including policies procured by
the Transferor or the Servicer (including those from an affiliate of the
Transferor or Servicer) on behalf of the User) or covering any liabilities
arising from such item of 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 item of Equipment and the
related Contract.
Investment Earnings. Any income earned from the investment of
funds from time to time on deposit in any Facility Account, Advance Payment
Account or Series Account in accordance with Section 7.03 hereof and the Series
Supplements, net of any investment expenses and losses on any such investments.
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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 limitation, 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 any specified group of
Contracts, a printed or electronic list of such Contracts, certified by an
Authorized Officer of the Obligors' Agent. Each List of Contracts shall include
for each Contract listed thereon as of the related Cut-Off Date, the information
specified on Schedule 1 hereto.
Majority Control Parties. Shall mean those Series Controlling
Parties for the outstanding Series, the Maximum Series Limit of which represent,
in the aggregate, 66 2/3% or more of the aggregate Maximum Series Limit for all
outstanding Series.
▇▇▇▇▇▇. Shall mean ▇▇▇▇▇▇ Leasing Corp., a Delaware
corporation.
Master Agreement Supplements. Shall have the meaning ascribed
in Section 13.01(a) hereof.
Master Transfer Agreement. That certain Master Lease
Acquisition and Sale Agreement, dated as of December 1, 2000, by and between the
Transferor and the Obligors' Agent.
Maturity Date. When used with respect to any Note, means the
date on which the principal of such Note becomes due and payable in full as
therein or herein provided, whether on the final scheduled Settlement Date or by
declaration of acceleration, prepayment or otherwise.
Maximum Series Limit. Means, with respect to any Series, the
aggregate principal amount of all Notes of such Series which have been committed
to at the date of determination as set forth in the related Series Supplement.
Moody's. ▇▇▇▇▇'▇ Investors Service and its successors.
Multiemployer Plan. Means a multiemployer plan (within the
meaning of Section 4001(a)(3) of ERISA) in respect of which a Commonly
Controlled Entity makes contributions or has liability.
Non-Monthly Payment Contracts. Means any Contract that does
not require the User to make monthly payments.
Note Register and Note Registrar. Have the respective meanings
specified in Section 5.04 hereof.
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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.
Obligors. Means each Person designated as an "Obligor" in this
Master Agreement or in a Series Supplement with respect to the related Series of
Notes, or any successor thereto.
Obligors' Agent. ▇▇▇▇▇▇ Leasing Receivables Corp. IV, a Nevada
corporation, and its successors and permitted assigns.
Obligors' Order or Obligors' Request. Means a written request
or order signed by an Authorized Officer of the Obligors' Agent and delivered to
the Trustee.
Officer's Certificate. Means a certificate signed by an
Authorized Officer of an Obligor or the Obligors' Agent.
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 other counsel, in each case acceptable to
the named recipients thereof.
Organizational Documents. With respect to any Obligor, such
Obligor's articles of incorporation and by-laws, partnership agreement, trust
agreement, limited liability company agreement, or other charter-type governing
instruments.
Original Issue Date. Means, for any Series, Class or Tranche
of Notes, the date of original issue of such Series, Class or Tranche of Notes,
as specified in the related Series Supplement.
Original Servicer Fee Rate. With respect to any Series, the
rate at which the Servicing Fee is calculated, as specified on the related
Series Supplement.
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
(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 in connection with a
proposed termination and for which termination notice has been
provided; and
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(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 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 or any other obligor upon the Notes, the Transferor
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 a Responsible Officer of 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 Transferor or any Affiliate 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 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.
PBGC. Means the Pension Benefit Guaranty Corporation or any
successor agency, corporation or instrumentality of the United States to which
the duties and powers of the Pension Benefit Guaranty Corporation are
transferred.
Person. Any legal person, including any individual,
corporation, limited liability company, partnership, joint venture, association,
joint stock company, trust, unincorporated organization, Governmental Authority
or any other entity.
Plan. Means any pension plan (other than a Multiemployer Plan)
covered by Title IV of ERISA, which is maintained by a Commonly Controlled
Entity or in respect of which a Commonly Controlled Entity has liability.
13
Pledge. Means each Pledge by the related Obligors of all or
any portion of the related Series Trust Estate to the Trustee for the benefit of
the related Noteholders in accordance with Section 3.01 hereof.
Pledge Date. Shall have the meaning specified therefor in the
related Series Supplement.
Pledge Notice. A written notice pursuant to which the Obligors
with respect to a Series pledge property to the Trustee as part of the related
Series Trust Estate.
Pledged Property. With respect to any Series Trust Estate, the
property described as Pledged Property in the related Series Supplement.
Predecessor Note. With respect to any particular Note means
every previous Note evidencing all or a portion of the same debt as that
evidenced by such particular Note; and, for the purposes of this definition, any
Note authenticated and delivered under Section 5.05 hereof 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 Charged-Off Contract), the payment by the related User of all
remaining Scheduled Payments due on such Contract, including, without
limitation, by way of application of any Security Deposit for such Contract, so
long as such amount is designated by the User as a prepayment and the Servicer
has consented to such prepayment. Advance Payments and Residual Receipts are not
"Prepayments."
Prepayment Amount. Means, with respect to any Contract and
without duplication: (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 applicable
Facility Account as a Collection) 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 for such Contract,
plus (d) the amount of all Scheduled Payments due and payable thereon and not
made.
Principal Terms. Shall mean, with respect to any Series, (i)
the name or designation; (ii) the initial Outstanding Amount and the maximum
Outstanding Amount (or method for calculating such amounts); (iii) the interest
rate or rates (or method for the determination thereof); (iv) the Settlement
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 Servicing 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;
14
(xi) whether the Notes of such Series may be issued as Bearer Notes and any
limitations imposed thereon; (xii) the priority of such Series with respect to
any other Series; (xiii) the Group, if any, to which such Series belongs; (xiv)
whether such Series is a Companion Series to one or more other Series; and (xv)
any other terms of such Series.
Proceeding. Means any suit in equity, action at law or other
judicial or administrative proceeding.
Property. Shall mean any right or interest in or to property
of any kind whatsoever, whether real, personal or mixed and whether tangible or
intangible.
Rating Agencies. S&P and Moody's or any other nationally
recognized statistical rating agency then rating any Notes.
Record Date. Means, with respect to any Series, as specified
in the related Series Supplement.
Records. Means, with respect to any Contract, such 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
Charged-Off Contract, including, without limitation, amounts received in
connection with the sale or other disposition of the related Equipment,
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 by the
Transferor relating to a Security Deposit, net of costs of collection, in
connection with such Charged-Off Contract; provided, that in no event may
Recoveries in respect of a Charged-Off Contract be less than zero.
Refinance Proceeds. Shall mean 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 Settlement Date following
such Collection Period for deposit into the related Series Account 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 Account 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:
15
(i) the related Transfer Agreement Supplement (including,
without limitation, all rights, remedies, powers and privileges
thereunder), pursuant to which, among other things, the Contract, the
Contract Files and the related Equipment have been contributed to the
related Obligor or Obligors by the Transferor, and the Broker
Agreements, if any, relating to such Contracts;
(ii) such Obligor's or Obligors' interest in the related
Equipment, together with all security interests and/or liens and all
property subject thereto from time to time securing or purporting to
secure payment of 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 Transferor and/or
such Obligors;
(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 payment of such Contract whether pursuant to the
Contract or otherwise (including, without limitation, the Security
Deposits);
(iv) the 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.
Replaced Contract. Has the meaning set forth in Section 6.16.
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 by-laws or
other organizational or governing documents of such Person.
Residual Receipts. All amounts in respect of Booked Residuals
received by the Servicer, all proceeds of the sale of 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 relating to the Booked Residual under the related Contract or to return
the Equipment, including any amounts paid by the Transferor relating to a
Security Deposit, plus any amounts not otherwise described above which are
received by the Servicer and applied against the Booked Residual of such
Contract in accordance with the Servicer's servicing standards, 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; provided,
that in no event may Residual Receipts in respect of a Contract or any Equipment
be less than zero.
16
Responsible Officer. When used with respect to the Trustee,
any officer assigned to its Corporate Trust Office (or any successor thereto),
including any managing director, principal, vice president, assistant vice
president, assistant treasurer, assistant secretary, 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 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 Group and its successors.
Scheduled Payments. With respect to a Settlement Date and a
Contract, the stated contractually-required periodic rental payments or payments
of principal and interest (exclusive of any amounts in respect of insurance or
taxes but inclusive of any "balloon" payment due from such User) 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 Transferor by a User
as a security deposit or as a payment in advance of any amounts to become due on
a Contract, which has not previously been refunded to such User or applied
toward such User's obligations under such Contract.
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 Event of Default. Shall have the meaning specified
therefor in the related Series Supplement.
Series Related Documents. With respect to a Series, has the
meaning specified therefor in the related Supplement.
17
Series Secured Obligations. Has the meaning specified therefor
in the related Series Supplement.
Series Secured Parties. Has the meaning specified therefor in
the related Series Supplement.
Series Supplement. With respect to any Series, a supplement to
this Master Agreement, 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, financial guaranty insurance policy, surety bond, cash collateral
account, spread account, guaranteed rate agreement, maturity liquidity facility,
interest rate swap agreement, default swap agreement, tax protection agreement,
derivative contract or other similar arrangement. The subordination of any
Series or Class to another Series or Class shall be deemed to be a 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 Support Provider Default. Has the meaning specified
therefor in the relevant Series Supplement.
Series Termination Date. Has the meaning ascribed in the
relevant 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 therefor in the related Series Supplement.
Servicer. The Person performing the duties of the Servicer
hereunder, initially, ▇▇▇▇▇▇.
Servicer Advance. With respect to any Series, any amount which
the Servicer elects to advance 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 Settlement Date in consideration of the Servicer's
performance of its duties
18
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 Section
9.01(a) hereof.
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 to the Trustee by the Servicer.
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,
security deposits (other than Security Deposits applied as Offset Amounts
pursuant to Section 6.14 hereof) or fees received from a User, including (x)
insurance premium payments and reimbursements, tax payments, late charges,
documentation fees, extension fees, administrative charges and maintenance
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, the Noteholders and each Series Support Provider from time to time.
Settlement Date. With respect to a Series, has the meaning
specified therefor in the related Series Supplement.
Solvent. Means, with respect to any Person on a particular
date, that on such date (a) the fair value of the property of such Person is
greater than the total amount of liabilities, including contingent liabilities,
of such Person; (b) the present fair salable value of the assets of such Person
is not less than the amount that will be required to pay the probable liability
of such Person on its debts as they become absolute and matured; (c) such Person
does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts and liabilities
mature; and (d) such Person is not engaged in a business or transaction, and is
not about to engage in a business or transaction, for which such Person's
property would constitute an unreasonably small capital. The amount of
contingent liabilities (such as litigation, guarantees and pension plan
liabilities) at any time shall be computed as the amount which, in light of all
the facts and circumstances existing at the time, represents the amount which
can be reasonably expected to become an actual or matured liability.
State. Any state of the United States of America and, in
addition, its territories and possession and the District of Columbia.
Substitute Contract. Has the meaning set forth in Section 6.16
hereof.
19
Tranche. All the Notes of a Series (or of a Class within a
Series) having the same date of authentication.
Transfer Agreement Supplement. Means each Supplement to the
Master Lease Acquisition and Sale Agreement executed and delivered pursuant to
the Master Transfer Agreement.
Transfer Date. Means any date on which a Substitute Contract
is pledged pursuant to Section 6.16 hereof.
Transferor. ▇▇▇▇▇▇ in its capacity as the Transferor under the
Master Transfer Agreement, and its successors and permitted assigns.
Transferor Breach. Has the meaning set forth in Section 6.15
hereof.
Transition Cost. Any documented expenses reasonably incurred
by a successor Servicer or the Trustee in connection with a transfer of
servicing from the Servicer to a successor Servicer as successor Servicer
pursuant to Section 6.05 hereof, but not to exceed $50,000 per Series.
Trust Indenture Act. Means 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 Master Agreement until 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 a Bearer Note and
which is part of a Series or Class of Notes which has been designated in the
related Series Supplement as being a Series or Class of Unregistered Notes.
User. Any obligor under any Contract, whose obligations
thereunder constitute the principal source of payments under any Contract,
including any guarantor (excluding the Servicer) of such obligations.
User Termination Event. Has the meaning set forth in Section
6.12 hereof.
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
20
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the
Obligors' Agent. 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' Agent 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.
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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.
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' Agent 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' Agent 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 Obligors or by the Obligors' Agent, on behalf of the
Obligors or in its or their individual capacity, shall bind its or their
successors and assigns, whether so expressed or not.
All agreements by the Trustee and the Servicer in this Master
Agreement or any Series Supplement shall bind its successors and assigns.
Section 1.08. Benefits of Agreement.
To the extent specified in the related Series Supplement, each
of the related Series Support Providers and their 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, so long as no Series Support Provider
Default shall have occurred and be continuing with respect to such Series
Support Provider, directly to enforce such provisions of this Master Agreement
and such Series Supplement. 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
22
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 legal 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' Agent.
Section 1.09. Allocation of Series to Groups.
To the extent so provided in the Series Supplement for any
Series or in an amendment to this Master Agreement executed pursuant to
subsection 13.01(a), specified Series may be allocated in whole or in part to
one or more Groups as may be provided in such Series Supplement or amendment for
the purpose of receiving Crossover Amounts with respect to the Series Trust
Estate(s) of such other Series in such Group.
Any such Series Supplement or amendment may provide that (i)
such allocation to one or more particular Series or Groups may terminate upon
the occurrence of certain events specified therein and (ii) that upon the
occurrence of any such event, the related Crossover Amounts may be reallocated
to other Series or Groups or to all Series, all as shall be provided in such
Series Supplement or amendment.
Section 1.10. Status of Obligors' Agent.
By its execution and delivery of a Series Supplement, each
Obligor shall be deemed to have designated and appointed ▇▇▇▇▇▇ Leasing
Receivables Corp. IV to act as its agent hereunder, under the Master Transfer
Agreement and each Transfer Agreement Supplement and under each other related
Series Related Document. The Obligors' Agent is responsible for executing and
fulfilling all other duties expressly assigned to it in this Master Agreement,
the Master Transfer Agreement and each Transfer Agreement Supplement and the
Series Related Documents. The Obligors may, at any time in their discretion,
remove the Obligors' Agent and appoint a new Obligors' Agent, which shall have
duties described in this Section 1.10.
Article II
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 2.01. Representations, Warranties and Covenants of
Obligors.
By its execution and delivery of a Series Supplement, each
Obligor will be deemed to have made each of the following representations,
warranties and covenants to the Trustee, the Noteholders of the related Series
and any Series Support Provider for the related Series on which representations,
warranties and covenants the Trustee relies in accepting the related Series
Trust Estate in trust, on which the Noteholders of the related Series have
relied in agreeing to purchase the related Notes and on which such Series
Support Provider, if any, relies in agreeing to issue the related Series
Support. Such representations, warranties and covenants are deemed to be made
and affirmed on the
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Series Closing Date for the related Series, and shall survive the date of the
making or remaking of such representations and warranties. The covenants of each
of the Obligors 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) 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 incorporation or formation (as set forth on Exhibit F
to the related Series Supplement), and has all 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 and the other Series Related
Documents to which it is a party, are within its powers, have been duly
authorized by all necessary 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 Lien 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 and the other 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 Government Contracts.
(iv) Binding Effect. Each of this Master Agreement and the
other Series Related Documents to which such Obligor is a party
constitutes 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) Compliance with Law. No practice, procedure or policy
employed or proposed to be employed by such Obligor in the conduct of
its business violates any law, regulation, judgment, agreement, order
or decree applicable to
24
such Obligor which, if enforced, would have a material adverse effect
on such Obligor, any Pledged Property or the collectibility or value
thereof, or the ability of such Obligor to perform its obligations
hereunder or under any Series Related Documents.
(vi) 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 thereafter 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.
(vii) Good Title; Perfection. Immediately prior to each
Pledge hereunder, such Obligor shall be the legal and beneficial owner
of the Contracts subject to such Pledge and is either the owner or,
with respect to Equipment valued at greater than $25,000, has taken or
is taking all requisite steps to obtain on its behalf a first priority
perfected security interest in, all Equipment related thereto and the
Related Security with respect thereto, free and clear of any Lien
except as created by this Master Agreement and the other Series Related
Documents, and such Obligor has the legal right to Pledge the Contracts
and the associated Collections and Related Security to the Trustee.
(viii) 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 the Series Related Documents, (ii) seeking to prevent the
consummation of any of the transactions contemplated by 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 the
Series Related Documents or (iv) seeking any determination or ruling
that would materially and adversely affect the validity or
enforceability of the Series Related Documents.
(ix) Financing Statements. Such Obligor has not filed any
financing statements with respect to the interests of the Obligors'
Agent, ▇▇▇▇▇▇ Leasing Receivables IV LLC ("MLR IV LLC") or the
Transferor in the Contracts under any names other than "▇▇▇▇▇▇ Leasing
Receivables Corp. IV," "▇▇▇▇▇▇ Leasing Receivables IV LLC" or "▇▇▇▇▇▇
Leasing Corp."
(x) Investment Company Act. Such Obligor is not an
"investment company" or an "affiliated person" of, or a "promoter" or
"principal underwriter" for, an "investment company," in each case
within the meaning of the Investment Company Act of 1940, as amended.
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(xi) Solvency. Such Obligor is Solvent and is not in
default under any mortgage, borrowing agreement or other instrument or
agreement pertaining to indebtedness for borrowed money.
(xii) Taxes. Such Obligor has filed all federal, state and
local tax returns which are required to be filed by it and has paid all
taxes and other governmental charges, including any assessments
received by it, to the extent that such taxes have become due.
(xiii) ERISA. Such Obligor is in compliance with ERISA and
has not incurred and does not reasonably expect to incur any
liabilities to the PBGC under ERISA in connection with any Plan or
Multiemployer Plan or to contribute now or in the future in respect of
any Plan or Multiemployer Plan.
(b) Each Obligor covenants, as to itself, that:
(i) 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.
(ii) Places of Business; State of Incorporation. Except in
accordance with Section 3.05(b), such Obligor will not (x) move its
chief executive office from ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇ to another location and/or maintain any Records at any other
locations and (y) change its state and jurisdiction of incorporation or
formation from the jurisdiction set forth on Exhibit F to the related
Series Supplement.
(iii) ERISA. Such Obligor shall not, and shall not cause or
permit any Commonly Controlled Entity to, cause or permit to occur an
event that could result in the imposition of a Lien under Section 412
of the IRC or Section 302 or 4068 of ERISA.
Section 2.02. Representations, Warranties and Covenants of
Servicer.
The Servicer hereby makes the following representations,
warranties and covenants to the Trustee, the Noteholders of the related Series
and any Series Support Provider for 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, on which the
Noteholders of such Series have relied in purchasing their Notes and on which
such Series Support Provider, if any, relies in agreeing to issue the related
Series Support. 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.
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(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 ▇▇▇▇▇▇, 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 and the other Series Related Documents to which it is a party
and the execution, delivery and performance of this Master 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 and the
other 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.
(iv) No Conflict. The execution, delivery and performance
by the Servicer of this Master Agreement and the other 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
material 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 Lien
on any assets of the Servicer or its Subsidiaries, other than as
contemplated by the Master Transfer Agreement (if ▇▇▇▇▇▇ is the
Servicer making such representation and warranty) and this Master
Agreement.
(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 or
27
any of the other Series Related Documents, (B) seeking to prevent the
consummation of any of the transactions contemplated by this Master
Agreement or any of the other Series Related Documents or (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 or any of the
other 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 or any of the other 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) Compliance with Law. No practice, procedure or policy
employed or proposed to be employed by the Servicer in the conduct of
its business violates any law, regulation, judgment, agreement, order
or decree applicable to the Servicer which, if enforced, would have a
material adverse effect on the Servicer or the ability of the Servicer
to perform its obligations hereunder or under any Series Related
Document.
(viii) 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, any
Noteholder or any Series Support Provider 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.
(ix) Place of Business. The chief executive office of the
Servicer is, as of the date hereof, and has been for the four months
prior to the date hereof, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
(x) Financing Statements. The Servicer has not filed any
financing statements with respect to the interests of the Obligors'
Agent, MLR IV LLC or the Transferor in the Contracts under any names
other than "▇▇▇▇▇▇ Leasing Receivables Corp. IV," "▇▇▇▇▇▇ Leasing
Receivables IV LLC" or "▇▇▇▇▇▇ Leasing Corp."
(xi) Event of Servicer Termination. To the best knowledge
of the Servicer, there has not been an Event of Servicer Termination.
(b) The Servicer, for itself and on behalf of each
related Series Obligor, covenants as to the Pledged Property comprising each
Series Trust Estate:
28
(i) Lien in Force. The Servicer shall not release or
assign any Lien in favor of the Trustee on any Contract, item of
Equipment or other Related Security 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, and the
Servicer will not do anything that would materially impair the rights
of the Noteholders or any Series Support Provider with respect to any
Series Trust Estate, except as contemplated herein.
(iii) Books and Records. The Servicer (1) will (A) maintain
its books and records separate from the books and records of any
Obligor, (B) maintain bank accounts separate from those 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 any Obligor, (Y) guarantee (directly or
indirectly), endorse or otherwise become contingently liable (directly
or indirectly) for the obligations of any Obligor (except as expressly
permitted hereunder) or (Z) institute against any Obligor, or join any
other person in instituting against any Obligor, any case, proceeding
or other action under any existing or future bankruptcy, insolvency or
similar laws.
Section 2.03. Representations and Warranties of Trustee.
On the Closing Date, the Trustee represents and warrants to
the Noteholders of the related Series, the Servicer, the Obligors and any Series
Support Provider for the related Series as to itself and its responsibilities:
(a) Organization and Good Standing. The Trustee is a
national banking association duly organized, validly existing and in good
standing under the laws of the United States of America;
(b) Authorization. The Trustee has the power, authority
and legal right to execute, deliver and perform this Master Agreement and the
other Series Related Documents, and the execution, delivery and performance of
this Master Agreement and the other Series Related Documents has been duly
authorized by the Trustee by all necessary corporate action;
(c) No Violation. The execution, delivery and performance
by the Trustee of this Master Agreement and the other Series Related Documents
(a) does not violate any provision of any law or any order, writ, judgment, or
decree of any court, arbitrator, or governmental authority applicable to the
Trustee or any of its assets, (b) does not violate any provision of the
corporate charter or by-laws of the Trustee, (c) does
29
not result in the creation or imposition of any Lien on any properties included
in the Series Trust Estate (other than the Lien created hereby) and (d) does not
violate any provision of, or constitute, with or without notice or lapse of
time, a default under, the provisions of any mortgage, indenture, contract,
agreement, or other undertaking to which the Trustee is a party, which violation
or default could reasonably be expected to materially and adversely affect the
Trustee's performance or ability to perform its duties under this Master
Agreement the other Series Related Documents or the transactions contemplated in
this Master Agreement or the other Series Related Documents;
(d) Governmental Authority. The execution, delivery and
performance by the Trustee of this Master Agreement and the other Series Related
Documents does not require the authorization, consent, or approval of, the
giving of notice to, the filing or registration with, or the taking of any other
action in respect of, any governmental authority or agency regulating the
banking and corporate trust activities of the Trustee; and
(e) Due Execution and Enforceability. This Master
Agreement and the other Series Related Documents have been duly executed and
delivered by the Trustee and constitutes the legal, valid, and binding agreement
of the Trustee, enforceable in accordance with its and their respective terms,
and the Trustee meets the requirements of Section 11.08 hereof.
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 related Series Obligors,
pursuant to the related Series Supplement, shall pledge the related Series Trust
Estate to the Trustee, all for the benefit of the Trustee for the benefit of the
Holders of the Notes 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 herein and in the related
Series Supplement, the related Series Obligors shall take all such action as is
necessary and proper with respect to the related 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 Series Controlling Party, to perfect the
security interests granted hereunder in the Series Trust Estate, to ensure that
such security
30
interests rank prior to all other Liens and to preserve the priority of such
security interests and the validity and enforceability thereof. Upon any
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 Series Secured Parties 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 or any portion thereof marshaled 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, Jurisdiction of Formation,
Etc. No Obligor shall change its name, identity, jurisdiction of formation or
incorporation or corporate structure unless it shall have given the Trustee at
least 30 days' prior written notice thereof and shall have effected any
necessary or appropriate filings of financing statements or amendments thereto
in order to maintain the Trustee's first priority perfected security interest in
each Series Trust Estate.
(b) Relocation of the Obligors. No Obligor shall change
its principal executive office or its jurisdiction of formation or incorporation
unless it gives the Trustee at least 30 days' prior written notice of any
relocation of its principal executive office or its jurisdiction of formation or
incorporation. If any Obligor so relocates its principal executive office or
principal place of business, such Obligor shall give prior
31
written notice thereof to the Trustee and shall effect whatever appropriate
recordations and filings are necessary in order to maintain the Trustee's first
priority, perfected security interest in each related Series Trust Estate.
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 related Obligors hereunder,
including, without limitation, the obligations of the related Obligors in
respect of the Notes shall be payable solely from the related Series Trust
Estate (including any Crossover Amounts included in such Series Trust Estate),
and that neither the Trustee nor any Holder shall look to any other Property or
assets of such Obligors, or to the Property or assets of any other Obligor,
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 Obligors' 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. Subject to
the provisions thereof, 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 and any Series Support Provider 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, any such Series Support Provider or the Trustee).
(b) The Trustee is authorized to receive any funds for
the benefit of the Holders and any Series Support Provider distributed under the
related Series Supplement and to make further distributions of such funds to the
Holders of the related Notes and any Series Support Providers according to the
provisions of such Series Supplement.
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Section 3.08. Termination of Security Interests.
Upon the payment in full of all Series Secured Obligations,
the Trustee shall, at the written request of the related 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
related Series Trust Estate with respect to such Series Secured Obligations.
Section 3.09. Filing; Maintenance of Contract Files.
On or prior to the initial Pledge Date with respect to a
Series, the related Series Obligors shall, and shall cause the Transferor 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 such
Obligors against the Transferor, shall be assigned by such Obligors to the
Trustee). Notwithstanding the foregoing, it is expressly agreed that no such
UCC-1 Financing Statement shall be filed with respect to any particular piece of
Equipment, except to the extent then required by the Credit and Collection
Policy, or as may otherwise be required in the related Transfer Agreement
Supplement or any applicable Series Supplement. On or prior to each Pledge Date
the related Obligors shall, and shall cause the Transferor to, ▇▇▇▇ their
respective internal records (including, in the case of the Contractor, its
electronic ledger) to reflect (x) the sale and conveyance of the related Pledged
Property from the Transferor to the related Obligors and (y) the Pledge of the
related Pledged Property to the Trustee.
Section 3.10. Costs and Expenses.
The related Obligors agree to pay all reasonable costs and
disbursements (and in the event the related 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.
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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.
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.
Except as provided in Section 11.13, the Trustee shall
authenticate each Note with a certificate of authentication in substantially the
following form:
"This is one of the Notes designated herein referred to in the
within-mentioned Master Agreement and the within-mentioned Series Supplement
thereto.
▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Trustee
By ________________________
Authorized Signatory"
Section 4.03. Securities Legend.
Each Unregistered Note issued hereunder will contain the
following legend limiting sales to "Qualified Institutional Buyers" within the
meaning of Rule 144A under the Securities Act and to "Qualified Purchasers" as
defined in Section 3(c)(7) of the Investment Company Act of 1940:
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
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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) (1) 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 (2)
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 AND (B) TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
PURCHASER WITHIN THE MEANING OF THE INVESTMENT COMPANY ACT OF
1940, AS AMENDED.
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 and/or Tranches
within a Series (and Tranches within a Class).
No Series of Notes shall be issued under this Master Agreement
unless (i) such Notes have been authorized pursuant to a Series Supplement, (ii)
all conditions precedent to the issuance thereof, as specified in the related
Series Supplement, shall have been satisfied and (iii) confirmation is obtained
from the Rating Agencies that such issuance will not result in a change in any
Facility Shadow Rating.
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.
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Section 5.02. Execution, Authentication, Delivery and Dating.
The Notes shall be executed on behalf of the related Obligors
or the Obligors' Agent by any of its Authorized Officers. 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 or the Obligors' Agent shall bind the related Obligors,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to 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' Agent may deliver Notes of the related Series (including Notes of
any Class or Tranche within such Series) executed by the Obligors' Agent 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 upon any Note shall be
conclusive evidence, and the only evidence, that such Note has been duly
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' Agent, and the Obligors' Agent 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' Agent,
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 or Tranche within a Series), the Obligors' Agent 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
36
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 or Tranche
within a Series) are issued, the Obligors' Agent will cause definitive Notes of
that Series (or Class or Tranche) to be prepared without unreasonable delay.
After the preparation of definitive Notes of such Series (or Class or Tranche),
such temporary Notes shall be exchangeable for definitive Notes of such Series
(or Class or Tranche) upon surrender of the temporary Notes at the office or
agency of the Obligors. Upon surrender for cancellation of any one or more
temporary Notes the Obligors' Agent 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 or Tranche) and tenor of authorized denominations. Until so exchanged,
the temporary Notes of any Series (or Class or Tranche) 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 or Tranche).
Section 5.04. Registration, Registration of Transfer and
Exchange, Transfer Restrictions.
The Obligors' Agent shall cause to be kept a register (the
"Note Register") in which, subject to such reasonable regulations as it may
prescribe, the Obligors' Agent 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' Agent
shall promptly appoint a successor or, if it elects not to make such an
appointment, assume the duties of the Note Registrar.
If a Person other than the Trustee is appointed by the
Obligors' Agent as Note Registrar, the Obligors' Agent 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 conclusively rely
upon a certificate executed on behalf of the Note 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, the Obligors' Agent 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
37
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 Note 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' Agent 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 related 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' Agent or the
Trustee) be duly endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Obligors' Agent, the Trustee and the Note Registrar
duly executed by the Holder thereof or his 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' Agent 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 Section 5.03 or 5.05 not
involving any transfer.
No Holder of an Unregistered Note shall transfer its Note,
unless such transfer is made (x) (i) 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 and (y) to a
qualified purchaser within the meaning of to Section 3(c)(7) of the Investment
Company Act of 1940. No Note may be held by more than 99 Holders.
The preceding provisions of this Section 5.04 notwithstanding,
the Obligors' Agent shall not be required to make, and the Note Registrar need
not register transfers or exchanges of Notes selected for redemption or of any
Note for a period of 15 days preceding the due date for any payment with respect
to such Note.
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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' Agent shall execute and the Trustee shall authenticate
and deliver in exchange therefor a new Note of the same Series and Tranche, of
like tenor and principal amount and bearing a number not contemporaneously
outstanding. If there shall be delivered to the Obligors' Agent and the Trustee
and the related Series Support Provider, if any (unless a Series Support
Provider Default shall have occurred and be continuing) (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'
Agent, the Trustee or the related Series Support Provider that such Note has
been acquired by a bona fide purchaser, the Obligors' Agent 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 destroyed, lost or stolen Note, a new Note (of the same Series
and Class) 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 in full, the Obligors' Agent in its
discretion may, instead of issuing a new Note, cause the related Obligors to pay
such Note.
Upon the issuance of any new Note under this Section, the
Obligors' Agent 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 reasonable fees and expenses of
the Trustee and its counsel) 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 related 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 and the Series
Support Provider, if any, at least 30 days prior notice of the Settlement Date
on which the Noteholders of any Series or Class may surrender their Notes for
payment of the final distribution on and cancellation of such Notes. Not later
than the fifth Business Day of
39
the month in which the final distribution in respect of such Series or Class is
payable to Noteholders, the Trustee (based solely on the information provided to
the Trustee by the Servicer) 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 Note Registrar and the Paying Agent (if it is not acting
in either capacity) 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 the applicable Facility Account and 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 one year
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 the Noteholders. The Trustee and the
Paying Agent shall upon written request pay to the related Obligors any moneys
held by them for the payment of principal or interest that remains unclaimed for
two years. After payment to the related Obligors, Noteholders entitled to the
money must look to the related 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 an authorized
newspaper 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 related Obligors, the Obligors' Agent, the related Series Support
Provider, the Trustee and any agent of any of them may treat (a) 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) 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 Obligors' Agent, 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 or
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. The Obligors' Agent may at any time deliver to the Trustee for
cancellation any Notes previously authenticated and delivered hereunder which
the Obligors' Agent 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'
Agent has 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 related 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 related 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;
41
(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 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 Maximum Series
Limit 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 the Maximum Series Limits.
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.
(a) If Book-Entry Notes have been issued with respect to
any Series or Class and (i) the Obligors' Agent advises 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' Agent is unable to locate a qualified
successor or (ii) the Obligors' Agent, at its option, advises the Trustee that
it elects 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' Agent
shall execute and the Trustee shall authenticate and the Note Registrar shall
deliver such Definitive Notes. Neither the Obligors' Agent 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.
(b) If a Series Supplement so provides, the Notes of such
Series or any Class thereof will be evidenced by Definitive Notes.
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(c) The holding of Bearer Notes shall be proved by the
production of such Bearer Notes or by a certificate, satisfactory to the
Obligors' Agent, executed by any bank, trust company or recognized securities
dealer, wherever situated, satisfactory to the Obligors' Agent. 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 the
signature of the Person executing the proxy guaranteed by any bank, trust
company or recognized securities dealer satisfactory to the Trustee.
Article VI
ADMINISTRATION AND SERVICING
OF THE TRUST ESTATE
Section 6.01. Retention 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 each Series Trust Estate; provided, however, that the Servicer shall
administer and service each Series Trust Estate materially and only in
conformance with the terms of this Master Agreement and shall take no action to
affect adversely the interests of the Trustee, the Noteholders or any Series
Support Provider in any Series Trust Estate. In consideration of such retention,
the Obligors hereby agree to pay to the Servicer the Servicer Fee, such Servicer
Fee to be paid as provided in each Series Supplement and none of the Trustee,
any Noteholder or any Series Support Provider shall have any responsibility for
the payment of such fee.
(b) The Servicer, for the benefit of the Trustee, the
Noteholders and any Series Support Provider, shall be responsible for managing,
servicing and administering each Series Trust Estate, 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, making Servicer Advances to the
extent required by a Series Supplement, providing appropriate Federal income tax
information to the Trustee for use in providing information to the Noteholders,
collecting and remitting sales and
43
property taxes on behalf of taxing authorities and maintaining the perfected
first priority security interest of the Trustee in each Series Trust Estate.
Subject to the terms of this Section 6.01 and 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 such
managing, 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 any Contract. The Trustee
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 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 ▇▇▇ 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;
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(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
under such Contract, except as expressly permitted in Section 6.14
hereof.
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 or serviced by it. The Servicer shall comply with the Credit and
Collection Policy and 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, the
Noteholders or any Series Support Provider 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 Documents.
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 its own expense, 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 (unless otherwise required herein) and other than
with respect to the Pledged Property removed
45
from the Trust Estate pursuant to Section 6.11, 6.12 or 6.15 hereof). In
connection with enforcing a Charged-Off Contract, the Servicer shall prepare,
the related Obligor shall (and, to the extent necessary, shall cause the
Transferor 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 this Section
6.05 and the Series Supplements. The monthly Servicer Fee shall be payable to
the Servicer, in arrears for each Collection Period, on the Settlement 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 shall be payable on any
future Settlement 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 Transferor, 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.
(c) In connection with any transfer of the servicing
obligations to a successor Servicer in accordance with Section 9.02 hereof, the
Back-up Servicer shall be entitled to reimbursement of Transition Costs as
provided in each Series Supplement.
Section 6.06. Servicer's Certificate.
Not later than the time specified in the related Series
Supplement, the Servicer shall deliver to the Obligors' Agent, the Trustee and
any Series Support Provider a Servicer's Certificate containing the information
required by the related Series Supplement, with respect to the related Series
Trust Estate, Collection Period and Settlement Date. Two Business Days prior to
each Determination Date, the Servicer shall deliver to the Back-up Servicer and
any Series Support Provider a Computer Tape in a format acceptable to the
Back-up Servicer and any Series Support Provider containing the information from
which the Servicer prepared the Servicer's Certificate, as well as any
additional information reasonably requested by the Back-up Servicer prior to
such Determination Date.
Section 6.07. Annual Statement as to Compliance.
The Servicer will deliver to the Obligors' Agent, the Trustee
and each Series Support Provider, not later than 90 days after the end of each
fiscal year, an
46
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 Section 9.01(a)(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 and Independent
Accountant's Servicing Certificate Review.
(a) The Servicer shall, not later than 90 days after the
end of each fiscal year, deliver to the Trustee, the Obligors' Agent and each
Series Support Provider, a copy of the Servicer's annual audited financial
statements for such fiscal year, audited by a firm of nationally recognized
independent certified public accountants (within the meaning of the Securities
Act) (which, in the case of ▇▇▇▇▇▇, shall be the 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' Agent, the Trustee and each Series Support Provider, quarterly,
unaudited financial statements of the Servicer for such calendar quarter.
(c) The Servicer shall inform the Obligors' Agent, the
Trustee and each Series Support Provider in writing of the Servicer's fiscal
year and any change in such fiscal year.
(d) On or before March 31 of each calendar year,
beginning with March 31, 2002, the Servicer shall cause a firm of nationally
recognized independent certified public accountants (who may also render other
services to the Servicer) to furnish a report (addressed to the Trustee) to the
Trustee, the Servicer and each Series Support Provider to the effect that they
have, for the one-year period ending on the preceding December 31, applied
certain procedures agreed upon with the Servicer to compare the mathematical
calculations of certain amounts set forth in the Servicer's Certificates
delivered pursuant to Section 6.06 hereof during the period covered by such
report with the Servicer's computer reports which were the source of such
amounts and that on the basis of such agreed-upon procedures and comparison,
such accountants are of the opinion that such amounts are in agreement, except
for such exceptions as they believe to be immaterial and such other exceptions
as shall be set forth in such statement.
In the event such independent certified public accountants require the Trustee
to agree to the procedures to be performed by such firm in any of the reports
required to be prepared
47
pursuant to this Section 6.08, the Servicer shall direct the Trustee in writing
to so agree; it being understood and agreed that the Trustee will deliver such
letter of agreement in conclusive reliance upon the direction of the Servicer,
and the Trustee has not made any independent inquiry or investigation as to, and
shall have no obligation or liability in respect of, the sufficiency, validity
or correctness of such procedures.
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 cumulative removals and
additions of Contracts from such Series Trust Estate or (y) maintain electronic
facilities which allow such a list of leases and reconciliation 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 applicable Facility
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
backup 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
48
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
and except that the Servicer 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 Series 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.
Notwithstanding anything herein to the contrary, the foregoing
shall not be construed to prohibit (i) disclosure of any and all information
that is or becomes publicly known, other than as the result of a disclosure by a
party hereto in violation of the foregoing, or information obtained by the
Trustee from sources other than the Servicer or an Obligor provided that the
source of such information was not bound hereunder or by a confidentiality
agreement or other contractual, legal or fiduciary obligation with respect to
such information, (ii) disclosure of any and all information after prompt
written notice to the Servicer (A) if, in the written opinion of counsel,
required to do so by any applicable statute, law, rule or regulation, (B) to any
government agency or regulatory body having authority to regulate or oversee any
respects of the Trustee's business or that of its affiliates, (C) if, in the
written opinion of counsel, required pursuant to any subpoena, civil
investigative demand or similar demand or request of any court, regulatory
authority, arbitrator or arbitration to which the Trustee or an affiliate or an
officer, director, employer or shareholder thereof is a party, (D) in any
preliminary or final offering circular, registration statement or contract or
other document pertaining to the transactions contemplated herein approved in
advance by the Servicer or an Obligor or (E) to any affiliate, independent or
internal auditor, agent, employee or attorney of Trustee having a need to know
the same, provided that the Trustee advises such recipient of the confidential
nature of the information being disclosed and such recipient agrees to comply
with the terms of the foregoing, or (iii) any other disclosure authorized in
writing by the Servicer or any Obligor.
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. The Servicer will cooperate in generating additional data reasonably
requested by the Trustee.
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Section 6.11. Release of Contracts.
(a) Upon (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
Transferor pursuant to Section 6.15 hereof, (iii) the Servicer's reasonable
determination that all Residual Receipts with respect to any Charged-Off
Contract have been received, (iv) any removal of a Contract by the Servicer
pursuant to Section 6.12(b) hereof, (v) any removal of a Contract by the
Obligors pursuant to Section 6.12(a) hereof or (vi) any removal of a Contract by
the Transferor or the Obligors pursuant to Section 6.16 hereof (the events
described in clauses (i) through (vi) being "Release Events"), the Servicer will
so notify the Trustee of the occurrence thereof on the next succeeding
Determination Date by certification (in the form set forth in the Series Related
Documents for each Series) 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 applicable
Facility 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
applicable Facility 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 and release the related Equipment: (u) to the related User in the
event of a Release Event described in clause (i) of the immediately preceding
paragraph; (v) to the Transferor in the event of a Release Event described in
clause (ii) of the immediately preceding paragraph; (w) 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; (x) to itself in the event of
a Release Event described in clause (iv) of the immediately preceding paragraph;
(y) to the related Obligor in the event of a Release Event described in clause
(v) of the immediately preceding paragraph or (z) to the related Obligor or the
Transferor, as applicable, in the event of Release Event described in clause
(vi) of the immediately preceding paragraph.
(b) With respect to all Contracts so released from any
Series Trust Estate, 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 Section
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
50
Servicer is not ▇▇▇▇▇▇ or any of its Affiliates, then any such expenses to be
paid by the Servicer pursuant to this Section 6.11(b) shall be paid by the
Obligors.
Section 6.12. Removal Related to Upgrades or Trade-ins and
Delinquent Contracts.
(a) In the event that a User requests (i) a termination
of such User's Contract prior to the end of the scheduled original term of such
Contract or (ii) an upgrade or trade-in of Equipment relating to such User's
Contract (either of events (i) or (ii), a "User Termination Event"), then the
related Obligor may remove the Contract and the related Equipment from the
related Series Trust Estate during any Collection Period by remitting to the
Trustee the applicable Prepayment Amount in the applicable Facility Account on
or prior to the Determination Date relating to such Collection Period.
(b) The Servicer may during any Collection Period remove
any Delinquent Contract and the Related Security from the related Series Trust
Estate with respect to which Contract the User is in default or such default is,
in the Servicer's judgment, imminent, by deposit by the Servicer of the
applicable Prepayment Amount in the applicable Facility Account on or prior to
the Determination Date relating to such Collection Period.
(c) Notwithstanding the foregoing provisions of Sections
6.12(a) and (b), no such removal of a Contract and Related Security shall be
permitted if the Contract Balance Remaining for (i) such Contract and all other
removed Contracts, plus (ii) all Substitute Contracts, plus (iii) Replaced
Contracts, exceeds, or would, upon such removal, exceed ten percent (10%) of the
Maximum Series Limit for such Series.
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 the Transferor 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 under a Contract or (ii) any
Contract becomes a Charged-Off Contract, the Servicer shall deliver to the
Transferor written demand that the Transferor remit to 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
Residuals as payment in respect of, first, any unpaid Scheduled Payments under
the related Contract, and second, any unpaid Booked Residual under the related
Contract.
51
The Servicer shall deposit any Offset Amount so delivered to it into the
applicable Facility Account within two Business Days after its receipt thereof.
The Servicer shall notify the Transferor 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, the Obligors, any Noteholder or
any Series Support Provider be liable to any User with respect to the Security
Deposits. The Servicer shall indemnify and hold harmless the Trustee, the
Noteholders and the Series Support Providers 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. 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, the Servicer or any
Series Support Provider of a breach of any of the representations or warranties
of the Transferor set forth in the related Transfer Agreement Supplement with
respect to any Contract (such breach, a "Transferor Breach"), 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 cause the
Transferor to remove such Contract and the related Pledged Property from the
related Series Trust Estate. In consideration for the removal of such Pledged
Property, the Transferor shall, no later than the Determination Date prior to
the Settlement Date next following such date, pay the Prepayment Amount to the
Servicer for deposit into the applicable Facility Account. Without limiting the
foregoing in any way, in the event of a breach of any representation or warranty
of the Transferor contained in any Transfer 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
enforce the obligation of the Transferor under the Master Transfer Agreement to
repurchase such Contract.
Section 6.16. Substitution of Contracts.
(a) In lieu of removing a Contract as required under the
provisions of Section 6.12(a), 6.12(b) or 6.15 hereof and subject to the
provisions of Sections 6.16(b) and 6.16(c) below, either of the Obligors or the
Transferor, as applicable, in their sole
52
discretion, may substitute one or more Contracts (each a "Substitute Contract")
and the related Equipment for and replace Contracts (each, a "Replaced
Contract") and the related Equipment of a Series Trust Estate that (i) have
become Charged-Off Contracts, (ii) are subject to a User Termination Event or
(iii) were subject to a Transferor Breach.
(b) Each Substitute Contract must be an Eligible Contract
as of the applicable Transfer Date.
(c) No such substitution under this Section 6.16 shall be
permitted on any Transfer Date if:
(i) the cumulative aggregate balance of the Contract
Balance Remaining for all Substitute Contracts outstanding at the
Transfer Date that were substituted in the applicable Series Trust
Estate exceeds, or would upon such substitution exceed, ten percent
(10%) of the Maximum Series Limit for such Series; or
(ii) such substitution results in a reduction of the
aggregate Borrowing Base for the relevant Series Trust Estate.
Article VII
ACCOUNTS AND ALLOCATIONS
Section 7.01. Establishment of Facility Accounts;
Establishment of Advance Payment Accounts.
(a) With respect to each Series of Notes, on or prior to
the related Closing Date, the Servicer, for the benefit of the Trustee, shall
establish and maintain or cause to be established and maintained in the name of
the Trustee, a segregated trust account in the Trustee's corporate trust
department for the related Series, identified as the "Facility Account for
▇▇▇▇▇▇ Leasing Lease Receivables Facility, in trust for the Registered Holders
of Series [Applicable Series] Notes and other Series [Applicable Series] Secured
Parties" (each such account, a " Facility Account"). The Trustee shall make or
permit withdrawals from each Facility Account only as provided in this Master
Agreement and in the relevant Series Supplement. The Trustee shall possess all
right, title and interest in and to all funds from time to time on deposit in
each Facility Account and in all proceeds thereof.
(b) The Servicer, the Trustee, each Obligor, and the
Transferor shall deposit to the applicable Facility Account any Collections
received directly (rather than through any lockbox account) by any of them as
soon as practicable (and, in any event, within two Business Days) after their
respective receipt thereof.
(c) With respect to each Series of Notes, the Trustee,
for the benefit of the related Noteholders, shall establish and maintain an
account (each such account, an "Advance Payment Account") as a segregated trust
account in the Trustee's corporate trust department, identified as the "Advance
Payment Account for the ▇▇▇▇▇▇ Leasing
53
Lease Receivables Facility, in trust for the Registered Holders of the Series
[Applicable Series] Notes and other Series [Applicable Series] Secured Parties."
The Trustee shall make or permit withdrawals from the applicable Advance Payment
Account only as provided in this Master Agreement and in the relevant Series
Supplement. The Trustee shall possess all right, title and interest in and to
all funds from time to time on deposit in each Advance Payment Account and in
all proceeds thereof.
(d) All Advance Payments received by the Servicer, the
Trustee, any Obligor, or the Transferor shall be deposited to the applicable
Advance Payment Account in the same manner as Collections are deposited to the
related Facility Account.
(e) Notwithstanding the foregoing, the Trustee and/or the
Servicer may deduct from amounts otherwise specified for deposit to each
Facility Account or Advance Payment Account, as applicable, any amounts
previously deposited by the Trustee or the Servicer into such Facility Account
or Advance Payment Account, as the case may be, but which are (i) subsequently
uncollectible as a result of dishonor of the instrument of payment for or on
behalf of the User or (ii) later determined to have resulted from mistaken
deposits.
(f) Each Facility Account and Advance Payment Account
shall be under the sole dominion and control of the Trustee for the benefit of
the related Series Secured Parties; provided, however, that the Trustee may rely
on the information and instructions provided by the Servicer in determining the
amount of any withdrawals or payments to be made from either such account for
the purposes of carrying out the Trustee's or the Servicer's duties hereunder or
under any Series Supplement. Neither the Trustee nor the Servicer shall have any
right of setoff or banker's lien against, and no right to otherwise deduct from,
any funds held in any Facility Account or Advance Payment Account for any amount
owed to it by the Servicer, any Obligor, the Transferor, the Trustee, any
Noteholder or any Series Support Provider.
Section 7.02. Collections and Allocations.
On each Settlement Date, and as further set forth in the
related Series Supplement, the Trustee shall distribute amounts on deposit in
the related Series Accounts as described in the Servicer's Certificates relating
to such Settlement Date.
Section 7.03. Investment of Funds in each Facility Account
and the Advance Payment Account.
The Trustee, at the Obligors' Agent's written instruction,
shall invest the amounts from time to time on deposit in each Facility Account
and Advance Payment Account in Eligible Investments. In the absence of such a
written instruction, the Trustee shall invest funds in each Facility Account and
Advance Payment Account in Eligible Investments described in clause (f) of the
definition thereof. Any funds in the Advance Payment Accounts and Facility
Accounts which are not so invested must be insured by the Federal Deposit
Insurance Corporation to the limits established by such corporation.
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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 Back-up Servicer,
the Obligors, the Noteholders, any Series Support Provider (including their
respective officers, directors, employees and agents) 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, damages or
liabilities (including, without limitation, attorneys' fees and expenses 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; provided, however, that the foregoing indemnity described in
the immediately preceding clause (ii) shall not include any Indemnified Amounts
to the extent resulting from willful misconduct or gross negligence of such
Indemnified Party in the performance of any of his, her or its obligations and
duties. Indemnification pursuant to this Section shall not be payable from any
Series Trust Estate.
(c) The Servicer shall pay any amounts owing pursuant to
Section 8.01(b) hereof directly to the applicable Indemnified Parties entitled
to the receipt thereof, and such amounts shall not be deposited in the
applicable Facility Account, Advance Payment Account or the Series Accounts. 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 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 repay such amounts collected to the Servicer, without
interest.
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(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 gross 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; provided that, 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 and shall
notify the Rating Agencies prior to such succession. 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 $40,000,000. The Servicer shall
provide prompt written notice of the effectiveness of any such event to the
Obligors' Agent, the Trustee, each Series Controlling Party and each Series
Support Provider.
Section 8.03. Limitation on Liability of Servicer and Others.
No directors, officers, employees or agents of the Servicer
shall be under any personal liability to the Trustee, the Obligors or any of the
Noteholders, for any action taken or for refraining from the taking of any
action pursuant to this Master Agreement or for errors in 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.
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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 or in any of the other Series
Related Documents to which such Person 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 or any of the other Series Related Documents to which
any such Person is a party, or the failure by such Obligor or the
Transferor, to comply with any applicable law, rule or regulation with
respect to any Contract, or the nonconformity of any Contract with any
such applicable law, rule or regulation;
(iii) the failure to vest in the Trustee a first priority
perfected security interest in the property pledged by such Obligor
with respect to the related Series Trust Estate, free and clear of any
Lien;
(iv) the failure of such Obligor to pay 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
Obligors' Agent describing in reasonable detail the amount thereof and the
circumstances giving rise thereto. The Obligors' Agent on behalf of 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' Agent
right to contest the basis for such indemnity so long as the Obligors' Agent
provides written notice to the applicable Indemnified Party at the time of the
Obligors' Agent payment of the respective Indemnified Amounts, which written
notice
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shall state the basis, in reasonable detail, for the Obligors' Agent'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 each 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
Transferor, 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 Obligors' 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 interest or principal balance of any Note or the
payment of any amount payable to a Series Support Provider, in either
case, on or before the first Business Day following the date such
payment, transfer or deposit or 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 material term, covenant or agreement hereunder or in any Series
Related Document (other than as described in clause (i) above), 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, 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 (or deemed made), and such situation, if susceptible to cure, is
not remedied within 30 calendar days after receipt by the Servicer of
written notice of such situation from the Trustee;
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(iv) an Insolvency Event shall occur with respect to the
Servicer; or
(v) a Series Event of Default shall occur.
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 the Majority
Control Parties, 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 any Advance Payment Account or 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. Back-up Servicer to Act; Taking of Bids;
Appointment of Successor Servicer.
(a) (i) Except as provided in Section 9.01(b)
hereof, on and after the time the Servicer delivers its notice of
resignation to the Trustee pursuant to Section 8.04 hereof or receives
a Servicer Termination Notice pursuant to Section 9.01(a) hereof, the
Back-up Servicer shall, unless prevented by law, automatically
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and without further action be the successor Servicer. If the Back-up
Servicer cannot serve as successor Servicer, the Trustee shall appoint
as successor Servicer another firm acceptable to it, each Series
Support Provider, the Majority Control Parties and the Obligors' Agent.
(ii) The successor Servicer shall be the successor in all
respects to the Servicer in its capacity as Servicer under this Master
Agreement and the transactions set forth or provided for herein, and
shall be subject to all the responsibilities, duties and liabilities
relating thereto placed on the Servicer by the terms and provisions
hereof; provided, however, that the successor Servicer (x) shall not be
required to make any Servicer Advance and (y) shall not be liable for
any acts or omissions of the outgoing Servicer or for any breach by the
outgoing Servicer of any of its representations and warranties
contained herein or in any related document or agreement. With the
prior written consent of each Series Support Provider (which consent
shall not be unreasonably withheld), the successor Servicer may
subcontract with another firm to act as subservicer so long as the
successor Servicer remains fully responsible and accountable for
performance of all obligations of the Servicer on and after the time
the Servicer receives the Servicer Termination Notice. The successor
Servicer shall be entitled to the Servicer Fee and any Increased
Servicer Fee, subject to the taking of bids as described in subsection
(b) below.
(b) Solely for purposes of establishing the fee to be
paid to the successor Servicer upon receipt of a Servicer Termination Notice,
the Back-up Servicer shall solicit written bids, with a copy to each Series
Support Provider and the Trustee, if the Back-up Servicer is not also acting in
the capacity of Trustee (such bids to include a proposed servicer fee and
servicing transfer costs) from not less than three entities experienced in the
servicing of contracts similar to the Contracts and that are not Affiliates of
the Trustee, the Back-up Servicer, the Servicer or the Transferor and are
reasonably acceptable to each Series Controlling Party. Any such written
solicitation shall prominently indicate that bids should specify any applicable
subservicing fees required to be paid from the Servicer Fee and that any fees
and transfer costs in excess of the Servicer Fee shall be paid only in
accordance with the relevant Series Supplement, as the Increased Servicer Fee.
The successor Servicer shall act as Servicer hereunder and shall, subject to the
availability of sufficient funds in the applicable Facility Account, receive as
compensation therefor a fee equal to the fee proposed in the bids so solicited
which provides for the lowest combination of servicer fee and transition costs,
as reasonably determined by the Series Controlling Parties.
(c) The Servicer, the Back-up Servicer, the Transferor,
the Trustee and such successor Servicer shall take such action, consistent with
this Master Agreement, as shall be necessary to effectuate any such succession.
The Back-up Servicer (or the Trustee, any Series Support Provider or the
Noteholders if such Series Support Provider or such Noteholders have previously
reimbursed the Back-up Servicer and the Trustee therefor) shall be reimbursed
for Transition Costs, if any, incurred in connection with the assumption of
responsibilities of the successor Servicer, upon receipt of documentation of
such costs and expenses. The Back-up Servicer shall have no claim against the
Servicer,
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Transferor, any Noteholder, any Series Support Provider, the Trust Estate or any
other Party to the Series Related Documents for any costs and expenses incurred
in effecting such succession in excess of the amount specified in the definition
of "Transition Costs."
Section 9.03. Notification of Event of Servicer Termination.
The Servicer shall promptly (and in no event more than two
Business Days later) notify the Trustee and the Obligors' Agent in writing of
any Event of Servicer Termination upon actual knowledge thereof by a Servicing
Officer and the Trustee shall promptly (and in no event more than two Business
Days later) 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
Noteholders, each of the Series Support Providers and the Transferor.
Section 9.04. Waiver of Past Defaults.
The Majority Control Parties, on behalf of all Noteholders,
may waive any default by the Servicer in the performance of its obligations
hereunder and its consequences. Any such waiver must be in writing and be signed
by the Majority Control Parties or the Trustee acting on behalf (and at the
direction) of the Majority Control Parties. 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, any Series Related Document or otherwise. 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 Servicer Termination.
(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, Overdue Payments, Security Deposit,
Insurance Proceeds, Advance Payments, Prepayments, 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 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
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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 in the event that ▇▇▇▇▇▇ or any of its
Affiliates no longer continues to perform as Servicer hereunder, the Obligors,
upon the request of the Trustee, shall instruct the Transferor pursuant to the
Master Transfer Agreement to exercise any rights under any Contract, any
guaranty thereof, or 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.
(e) The parties expressly acknowledge and consent to
▇▇▇▇▇ Fargo Bank Minnesota, National Association acting in the possible dual
capacity of Back-up Servicer or successor Servicer and in the capacity as
Trustee. ▇▇▇▇▇ Fargo Bank Minnesota, National Association may, in such dual
capacity, discharge its separate functions fully, without hindrance or regard to
conflict of interest principles, duty of loyalty principles or other breach of
fiduciary duties to the extent that any such conflict or breach arises from the
performance by ▇▇▇▇▇ Fargo Bank Minnesota, National Association of express
duties set forth in this Master Agreement in any of such capacities, all of
which defenses, claims or assertions are hereby expressly waived by the other
parties hereto except in the case of negligence (other than errors in judgment)
and willful misconduct by ▇▇▇▇▇ Fargo Bank Minnesota, National Association.
Section 9.06. Responsibilities of Back-up Servicer.
(a) On or before the first Original Issue Date until the
receipt by the Servicer of a Servicer Termination Notice from the Trustee in
accordance with Section 9.02 hereof, the Back-up Servicer shall perform, on
behalf of the Series Secured Parties of each Series and the Trustee, the
following duties and obligations:
(i) On or before the Original Issue Date, the Back-up
Servicer shall accept from the Servicer delivery of the information
required to be set forth in the Servicer's Certificate in hard copy and
on tape (including, without limitation, the Computer Tape); provided,
however, the computer tape is in a format to be agreed upon by the
Back-up Servicer and the Servicer.
(ii) The Servicer will provide the Servicer's Certificate
signed by a Servicing Officer, setting forth the information as of the
last day of the Collection Period immediately preceding the related
Settlement Date and after giving effect to any withdrawals, deposits
and transfers to occur on or before the related Settlement Date, to the
Back-up Servicer by 12:00 noon New York time two (2)
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Business Days prior to the Determination Date preceding each Settlement
Date, and the Trustee will furnish or cause to be furnished such
Servicer's Certificate to the Noteholders on or immediately following
receipt thereof. In addition, the Servicer shall provide to the Back-up
Servicer simultaneously with the delivery of such Servicer's
Certificate a tape or other electronic media (in a format acceptable to
the Back-up Servicer) containing the detailed account and payment
information utilized to prepare such Servicer's Certificate. To enable
the Servicer to prepare the Servicer's Certificate, the Trustee shall
provide to the Servicer, on or before the fifth (5th) Business Day
following the last day of each Collection Period, a statement as to the
balances and total amount of investment income earned on funds on
deposit in each Facility Account during the preceding Collection Period
if held by the Trustee. The Trustee shall not have any duty or
obligation to recalculate, recompute or verify the information
contained on the Servicer's Certificate.
(b) During the period from the Original Issue Date until
the Series Termination Date for the related Series Supplement or until the
receipt by the Servicer of a Servicer Termination Notice, the Back-up Servicer
shall perform, on behalf of the Series Secured Parties of each Series and the
Trustee, the following duties and obligations:
(i) Prior to the related Settlement Date, the Back-up
Servicer shall review the Servicer's Certificate to ensure that it is
complete on its face.
(ii) Prior to becoming the successor Servicer, the Back-up
Servicer shall be responsible for reviewing the Servicer's Certificate
each month no later than the end of the month in which such Servicer's
Certificate was delivered (assuming such Servicer's Certificate is
delivered in accordance with the requirements of this Master
Agreement). In performing such review of the Servicer's Certificate,
the Back-up Servicer shall recalculate and verify the following
information, based solely on information provided by the Servicer, with
any discrepancies reported to the Series Controlling Parties and the
Series Support Providers: (i) aggregate Contract Balance Remaining,
(ii) aggregate Contract Principal Balance, (iii) note outstanding for
each series, (iv) Servicing Fee for related Collection Period, (v)
confirm number of Contracts, Delinquency Rate and Delinquency Ratio for
31-60, 61-90, 90+ day delinquent Contracts, (vi) confirm annualized
Charged-Off Ratio, (vii) confirm concentrations by Broker, Vendor,
Equipment, State, Government, Quarterly Payment and User. After
performing its review, the Back-up Servicer will provide to the
Trustee, the Obligors' Agent, the Servicer and the Series Support
Providers by the last day of the calendar month in which the Servicer's
Certificate is received a verification certificate, a form of which is
attached hereto as Exhibit A. Except as otherwise expressly provided
herein, the Back-up Servicer shall have no obligation to supervise,
verify, monitor or administer the performance of the Servicer and shall
have no liability for any action taken or omitted by the Servicer. The
Back-up Servicer shall not be required to expend or risk its own funds
or otherwise incur financial liability in the performance of any of its
duties hereunder, or in exercise of any of
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its rights or powers, if there is reasonable ground for believing that
the repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(c) Neither the Back-up Servicer nor any of its
directors, officers, employees or agents shall be under any liability to any of
the parties of this Master Agreement or the Noteholders, for any action taken or
for refraining from the taking of any action pursuant to this Master Agreement;
provided, however, that this provision shall not protect the Back-up Servicer or
any such person against any liability that would otherwise be imposed by reason
of willful misfeasance, bad faith or negligence in the performance of its
duties. The Back-up Servicer and any such person may rely in good faith on the
written advice of counsel or on any documents or any kind prima facie properly
executed and submitted by any person respecting any matters arising under this
Master Agreement.
(d) After the receipt of an effective Servicer
Termination Notice by the Servicer in accordance with this Master Agreement or
any Series Supplement, all authority, power, rights and responsibilities of the
Servicer, under this Master Agreement and each Series Supplement, whether with
respect to the Contracts or otherwise shall pass to and be vested in the Back-up
Servicer as long as the Back-up Servicer is not prohibited by an applicable
provision of law from fulfilling the same, as evidenced by an Opinion of
Counsel. The successor Servicer, if ▇▇▇▇▇ Fargo Bank Minnesota, National
Association, its successors or assigns, shall have (i) no liability with respect
to any obligation which was required to be performed by the terminated Servicer
prior to the date that the successor Servicer becomes the Servicer or any claim
of a third party based on any alleged action or inaction of the terminated
Servicer, (ii) no obligation to perform any repurchase or advancing obligations,
if any, of the Servicer, (iii) no obligation to pay any taxes required to be
paid by the Servicer, (iv) no obligation to pay any of the fees and expenses of
any other party involved in this transaction and (v) no liability or obligation
with respect to any Servicer indemnification obligations of any prior Servicer
including the original Servicer other than those due to the gross negligence,
willful misfeasance or bad faith of the successor Servicer in the performance of
its duties under this Master Agreement.
Section 9.07. Back-up Servicer Compensation.
(a) As compensation for its performance under Section
9.06(a) and Section 9.06(b) the Back-up Servicer shall be paid the Back-up
Servicer Fee and any amount set forth in the related Series Supplement.
(b) As compensation for its performance under Section
9.02 above, the Back-up Servicer shall be entitled to such Servicer Fee and any
Increased Servicer Fee pursuant to Section 9.02 hereof and other amounts
(whether payable out of the applicable Facility Account or otherwise).
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Section 9.08. Merger or Consolidation of, or Assumption of
the Obligation of Back-up Servicer.
(a) Any Person (i) into which the Back-up Servicer may be
merged or consolidated, (ii) which may result from any merger or consolidation
to which the Back-up Servicer shall be a party, or (iii) which may succeed to
the properties and assets of the Back-up Servicer substantially as a whole,
which Person in any of the foregoing cases executes an agreement of assumption
to perform every obligation of the Back-up Servicer hereunder, shall be the
successor to the Back-up Servicer under this Master Agreement or any Series
Supplement without further act on the party of any of the parties this Master
Agreement or any Series Supplement.
(b) The Back-up Servicer, solely in its capacity as
Back-up Servicer hereunder, hereby irrevocably and unconditionally waives all
right of set-off that it may have under contract (including this Master
Agreement or any Series Supplement), applicable law or otherwise with respect to
any funds or monies of ▇▇▇▇▇▇ or any Obligor, at any time held by or in the
possession of the Back-up Servicer.
(c) Upon the Back-up Servicer's resignation or
termination pursuant to Section 9.09 hereof, the Back-up Servicer shall comply
with the provisions of this Master Agreement and any Series Supplement until the
acceptance of appointment by a successor Back-up Servicer. Any such successor
Back-up Servicer shall be appointed by the Trustee subject to the approval of
the Majority Control Parties.
Section 9.09. Back-up Servicer Termination or Resignation.
(a) The Trustee shall, at the direction of the Majority
Control Parties, on behalf of all Noteholders, by notice in their sole
discretion (the "Back-up Servicer Termination Notice") then given in writing to
the Back-up Servicer, terminate all, but not less than all, of the rights and
obligations of the Back-up Servicer under this Master Agreement and all Series
Supplements with respect to the Series Trust Estate. Such notice shall state the
effective date of the termination, which shall not be prior to the acceptance of
the appointment by the successor Back-up Servicer which is reasonably acceptable
to the Majority Control Parties.
(b) Provided that an Event of Servicer Termination has
not occurred and is continuing, the Back-up Servicer may by notice in its sole
discretion (the "Back-up Servicer Resignation Notice") then given in writing to
the Trustee resign as the Back-up Servicer under this Master Agreement and all
Series Supplements with respect to the Series Trust Estate and the Trustee shall
promptly (and in any event within 2 Business Days) give notice thereof to each
Series Controlling Party. Such notice shall state the effective date of the
resignation, which shall not be prior to the acceptance of the appointment by
the successor Back-up Servicer which is reasonably acceptable to the Majority
Control Parties.
(c) If a Back-up Servicer Termination Notice is received
by the Back-up Servicer or a Back-up Servicer Resignation Notice is given while
it is performing
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under Sections 9.06(a) and 9.06(b) above, the Back-up Servicer agrees to
cooperate with the Trustee, the Series Controlling Parties, the successor
Servicer and the successor Back-up Servicer in effecting the termination of the
Back-up Servicer's responsibilities and rights hereunder, including, without
limitation, the transfer to the successor Servicer or the successor Back-up
Servicer of all data then in the possession of the Back-up Servicer.
(d) If a Back-up Servicer Termination Notice is received
by the Back-up Servicer or a Back-up Servicer Resignation Notice is given while
it is performing under Section 9.02(a) above, the Back-up Servicer agrees to
perform the obligations of the outgoing Servicer in accordance with this Master
Agreement and each Series Supplement.
Section 9.10. Limitation on Liability of Back-up Servicer and
Others.
(a) Neither the Back-up Servicer nor any of the
directors, officers or employees or agents of the Back-up Servicer shall be
under any liability to the Servicer, the Trustee, or the related Noteholders
except as provided herein, for any action taken or for refraining from the
taking of any action in good faith pursuant to this Master Agreement and any
Series Supplement or for errors in judgment not involving willful misconduct,
bad faith or negligence; provided, however, that this provision shall not
protect the Back-up Servicer against any liability resulting from its breach of
any representation or warranty made herein, nor shall this provision protect the
Back-up Servicer against any liability that would otherwise be imposed by reason
of willful misconduct, bad faith or gross negligence in the performance of its
duties hereunder. Neither the Back-up Servicer nor any of its directors,
officers or employees or agents shall be under any liability of any kind or type
to any Person arising from the incomplete or inaccurate contents of any Computer
Tape provided by the Servicer. The Back-up Servicer and any director, officer,
employee or agent of the Back-up Servicer may conclusively rely in good faith on
any document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder or in connection with the
transactions contemplated herein.
(b) The Servicer shall indemnify the Back-up Servicer,
its officers, directors, employees and agents for, and to hold it harmless
against, any loss, liability or expense incurred, except to the extent that such
loss, liability or expense was incurred through gross negligence or bad faith on
its part, arising out of or in connection with the acceptance or administration
of the Series Estate Trust and the performance of its duties hereunder,
including the costs and expenses of defending against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
(c) The Back-up Servicer shall perform such duties and
only such duties as are specifically set forth in this Master Agreement, and no
implied covenants or obligations shall be read into this Master Agreement
against the Back-up Servicer.
(d) The Back-up Servicer shall be entitled to the
benefits and immunities afforded the Trustee pursuant to the provisions of
Sections 11.01, 11.03 and 11.04 of this Master Agreement.
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Section 9.11. Representations and Warranties of the Back-up
Servicer.
The Back-up Servicer hereby makes the following
representations and warranties for the benefit of the Trustee, the Series
Support Providers and the related Noteholders:
(a) The Back-up Servicer is a national banking
association duly organized, validly existing and in good standing under the laws
of the United States of America;
(b) The Back-up Servicer has the power, authority and
legal right to execute, deliver and perform this Master Agreement and any Series
Supplement, and the execution, delivery and performance of this Master Agreement
and any Series Supplement has been duly authorized by the Back-up Servicer by
all necessary corporate action;
(c) The execution, delivery and performance by the
Back-up Servicer of this Master Agreement and the other Series Related Documents
(a) does not violate any provision of any law or any order, writ, judgment, or
decree of any court, arbitrator, or governmental authority applicable to the
Back-up Servicer or any of its assets, (b) does not violate any provision of the
corporate charter or by-laws of the Back-up Servicer, (c) does not result in the
creation or imposition of any Lien on any properties included in the Series
Trust Estate and (d) does not violate any provision of, or constitute, with or
without notice or lapse of time, a default under, the provisions of any
mortgage, indenture, contract, agreement, or other undertaking to which the
Back-up Servicer is a party, which violation or default could reasonably be
expected to materially and adversely affect the Back-up Servicer 's performance
or ability to perform its duties under this Master Agreement the other Series
Related Documents or the transactions contemplated in this Master Agreement or
the other Series Related Documents;
(d) The execution, delivery and performance by the
Back-up Servicer of this Master Agreement and the other Series Related Documents
does not require the authorization, consent, or approval of, the giving of
notice to, the filing or registration with, or the taking of any other action in
respect of, any governmental authority or agency regulating the banking and
corporate trust activities of the Back-up Servicer; and
(e) This Master Agreement and the other Series Related
Documents have been duly executed and delivered by the Back-up Servicer and
constitutes the legal, valid, and binding agreement of the Back-up Servicer,
enforceable in accordance with its and their respective terms.
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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 Series 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
of such 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 the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee and its agents and counsel and in
addition thereto, all other indebtedness or other liabilities of the Transferor
and the related Obligor to the Series Secured Parties of such Series arising
from such Series.
(b) If an Event of Default occurs and is continuing with
respect to a Series, the Trustee shall at the direction of the related Series
Controlling Party, proceed to protect and enforce its rights and the rights of
the related Series Secured Parties by such appropriate Proceedings as such
Series Controlling Party 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 of the related Series 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 or other similar law, or in case a
receiver, assignee or trustee in bankruptcy or reorganization, liquidator,
sequestrator or similar official shall have been appointed for or taken
possession of any related Obligor or 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
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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 or for other obligations owing and unpaid to the related Series
Secured Parties 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 gross negligence or bad faith) and of the Noteholders of such
Series and the other related Series Secured Parties 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 the other
related Series Secured Parties 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 of such Series and the other
related Series Secured Parties, 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 gross 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 or other related Series Secured Party any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof or other related Series Secured Party or to
authorize the Trustee to vote in respect of the claim of any Noteholder or other
Series Secured Party in any such proceeding except, as aforesaid, to vote for
the election of a trustee in bankruptcy or similar Person.
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(e) All rights of action and of asserting claims under
this Master Agreement, the related Series Supplement, any other Series Related
Document 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 judgment, 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 ratable benefit of the Holders of the
related Notes and the other Series Secured Parties in accordance with the
related Series Supplement.
(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 Series Supplement, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless:
(i) 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;
(ii) the Holders of not less than 50% of the Maximum
Series Limit 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;
(iii) 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;
(iv) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
Proceeding;
(v) 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 Maximum Series Amount of the Notes of the related
Series; and
(vi) if any Series Support secures such Series, a Series
Support Provider 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
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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 Series Support Provider 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 Notes 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, the related Series Support
Provider or to the related Holders is intended to be exclusive 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, any Series Support Provider or any Holder of any related Note
to exercise any right
71
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, any Series Support
Provider or to the related Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee, any Series Support Provider 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 Maximum Series Limit 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
(i) such direction shall not be in conflict with any rule
of law, with this Master Agreement or with the related Series
Supplement, and
(ii) 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:
(i) in the payment of the principal of or interest, if
any, on any Note of the related Series, or
(ii) 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.
If the Trustee is the Series Controlling Party with respect to
a Series 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 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
72
Master Agreement and each applicable Series Supplement; 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 each 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 the aggregate more than 10% of the Maximum Series Limit 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:
(i) 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 obligations shall be read into this Master
Agreement or the related Series Supplement against the Trustee; and
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(ii) 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
grossly negligent action, its own grossly negligent failure to act, or its own
willful misconduct; provided, that
(i) this subsection shall not be construed to limit the
effect of subsection (a) of this Section;
(ii) 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;
(iii) 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 Maximum Series Limit 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
(iv) 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 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
74
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 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 Obligors' Agent, the Transferor, the Servicer, the Agent 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 in 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 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
conclusively 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 to its satisfaction
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.
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(h) The protective provisions and remedial provisions set
forth in this Master Agreement benefiting the Trustee shall also benefit the
Note Registrar, Paying Agent and Authenticating Agent to the extent the Trustee
is also performing such roles.
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 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 Authenticating 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) As provided in each Series Supplement, 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
Obligors' Agent agrees to cause to be provided to the Trustee indemnity against
any and all loss, liability or expense (including reasonable attorneys' fees and
expenses) incurred by it in connection with the administration of this trust and
the performance of their 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.
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.
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Section 11.08. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder, which shall
(a) be a commercial bank or trust company organized and doing business under the
laws of the United States of America or any State thereof, (b) have a combined
capital and surplus of at least $50,000,000, (c) have 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) 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, 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 11.10.
(b) The Trustee may resign at any time with respect to
the Notes by giving written notice thereof to the Obligors' Agent. 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' Agent.
(d) If at any time:
(1) The Trustee shall fail to comply with
Section 11.07 after written request therefor
by the Obligors, by any Holder or by any
Series Support Provider, 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, by
any such Holder or by any Series Support
Provider, or
(3) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent
or a receiver of the
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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' Agent (with the consent of each Series
Support Provider as to which a Series Support Provider 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' Agent (with the consent of
each Series Support Provider as to which a Series Support Provider Default has
not occurred and is continuing) shall promptly appoint a successor Trustee and
shall comply with the applicable requirements of Section 11.10.
(f) The Obligors' Agent 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' Agent, 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' Agent,
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' Agent 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
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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' Agent 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, Classes or Tranches of Notes
which shall be authorized to act on behalf of the Trustee to authenticate Notes
of such Series, Class or Tranche 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' Agent, 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
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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' Agent. 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' Agent.
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 reasonably acceptable to the
Obligors' Agent 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' Agent agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under this Section.
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 Authenticating Agent, the Obligors'
Agent 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, Classes
or Tranches may have endorsed thereon, in lieu of 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.
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▇▇▇▇▇ Fargo Bank Minnesota, National Association,
As Trustee
By:________________________________________________
As Authenticating Agent
By:________________________________________________
Authorized Officer
The provisions of Sections 11.01, 11.03 and 11.04 shall apply
to the Trustee also in its role as Authenticating Agent for so long as the
Trustee shall act as Authenticating Agent.
Section 11.14. Paying Agent.
(a) The payment responsibilities for the Notes shall be
performed by a Paying Agent, appointed by the Obligors' Agent 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 reasonably acceptable to
the Obligors' Agent, 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 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 merger, 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.
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A Paying Agent may resign at any time by giving written notice
thereof to the Trustee and to the Obligors' Agent. The Trustee may at any time
terminate the agency of a Paying Agent by giving written notice thereof to such
Paying Agent and to the Obligors' Agent. 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 reasonably
acceptable to the Obligors' Agent 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' Agent agrees 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' Agent 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 Paying Agent.
The provisions of Sections 11.01, 11.03 and 11.04 shall apply
to the Trustee also in its role as Paying Agent for so long as the Trustee shall
act as 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 Series Trust Estate 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 and other Series Secured
Parties, such title to the related Series Trust Estate, or any part thereof, and
subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Trustee may consider necessary or
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.
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(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' AGENT
Section 12.01. Obligors' Agent to Furnish Trustee Names and
Addresses of Holders.
The Obligors' Agent will furnish or cause to be furnished to
the Trustee with respect to each Series of Notes (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
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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' Agent 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' Agent, 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 in writing 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 Section
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 Section
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.
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 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' Agent.
If this Master Agreement is qualified under the Trust
Indenture Act, the Obligors' Agent on behalf of 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 to 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.
Section 12.05. Trustee Internet Website.
The Trustee may make available to the related Series
Controlling Party, the related Series Support Provider and the related
Noteholders, via the Trustee's Internet Website, all reports or notices required
to be provided by the Trustee with respect to a Series of Notes under the terms
of this Master Agreement (including, but not limited to Sections 6.07 and 6.08)
and the related Series Supplement available and, with the consent
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or at the direction of the Servicer and the Obligor's Agent, such other
information regarding the Notes and/or the Contracts as the Trustee may have in
its possession, but only with the use of a password provided by the Trustee or
its agent to such Person upon receipt by the Trustee from such Person of a
certification in the form of Exhibit B hereto; provided, however, that the
Trustee or its agent shall provide such password to the parties to this
Agreement and the designee of such parties (the parties to each Series
Supplement and the related Series Controlling Party and related Series Support
Provider shall be deemed to be designees) without requiring such certification.
The Trustee will make no representation or warranties as to the accuracy or
completeness of such documents and will assume no responsibility therefor.
The Trustee's Internet Website shall be initially located at
"▇▇▇.▇▇▇▇▇▇.▇▇▇" or at such other address as shall be specified by the Trustee
from time to time in writing to each Series Controlling Party. In connection
with providing access to the Trustee's Internet Website, the Trustee may require
registration and the acceptance of a disclaimer. The Trustee shall not be liable
for the dissemination of information in accordance with this Master Agreement.
Article XIII
MASTER AGREEMENT SUPPLEMENTS
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, the Servicer and each Series
Support Provider, at any time and from time to time, may enter into one or more
written supplements to this Master Agreement (the "Master Agreement
Supplements"), in form satisfactory to the Trustee, for any of the following
purposes:
(i) to authorize the issuance of one or more series of
Notes; provided, that the consent of each Series Controlling Party is
obtained in advance of such issuance and confirmation is obtained from
the Rating Agencies that the issuance of such notes will not result in
a change in any Facility Shadow Rating; or
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another corporation to any Obligor or
to the Obligors' Agent and the assumption by any such successor of the
covenants of the Obligors or the Obligors' Agent herein, in any Series
Supplement and in the Notes; or
(iii) to add to the covenants of the Obligors or the
Obligors' Agent for the benefit the Holders of the Notes or to
surrender any right or power herein conferred upon the Obligors or the
Obligors' Agent; or
(iv) 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
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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
(v) 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
(vi) 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
(vii) 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 supplement) 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 was executed or any corresponding provision
in any similar Federal statute hereinafter enacted; or
(viii) 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) Subject to the provisions of paragraph (c) below, the
Obligors' Agent on behalf of the Obligors, the Servicer, each Series Support
Provider and the Trustee, when authorized by an Obligors' Order, may, also
without the consent of any of the Holders of the Notes, 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, and prior notification of such action shall be
provided to the Rating Agencies.
(c) The Obligors' Agent on behalf of the Obligors, the
Servicer, each Series Support Provider and the Trustee, when authorized by an
Obligors' Order and upon prior notification of the Rating Agencies, also may,
with the consent of the Holders of not less than a majority of the Maximum
Series Limit of the Notes of each affected Series, by Act of said Holders
delivered to the Obligors' Agent and the Trustee, enter into
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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,
(i) 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
(ii) reduce the percentage of the Maximum Series Limit 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 defaults hereunder and their consequences)
provided for in this Master Agreement, or
(iii) 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
(iv) 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 Series 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
(v) 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
89
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' Agent shall in its 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.
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 governed by
the provisions of Section 13.01 hereof, which for such purpose shall be deemed
to refer only to the related Series Supplement and to the related Series Support
Provider. 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 trusts created by this Master Agreement, the Trustee shall
receive, and 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.
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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' Agent shall so determine, new Notes so
modified as to conform, in the opinion of the Obligors' Agent, to any such
Master Agreement Supplement may be prepared and executed by the Obligors' Agent
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 (i) any Notes remain Outstanding or (ii) any
obligation owed to a Series Support Provider or Series Secured Party remains
unpaid or unperformed:
Section 14.01. Payment of Principal and Interest.
The related 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
Account (other than amounts representing payments under any related Series
Support) in respect of principal and interest on a Settlement Date shall
constitute full satisfaction of the related 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 related
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,
in 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
and where notices and demands to or upon the Obligors in respect of the Notes,
this Master Agreement and the related Series
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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 the Obligors 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' Agent, the Servicer, each
Series Controlling Party and each Series Support Provider, the due and
punctual payment of the principal of and interest on all Notes
previously issued and having such Obligor as an Obligor with respect
thereto 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 and therein;
(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 having such Obligor as a Series
Obligor with respect thereto shall have occurred and be continuing;
(iii) each Series Support Provider and each Series
Controlling Party relating to each Series previously issued and having
such Obligor as a Series Obligor with respect thereto, if any, shall
have consented in writing to such transaction;
(iv) any action as is necessary to maintain the validity
and first priority, perfected nature of the lien and security interest
created in favor of the Trustee by each related Series Supplement shall
have been taken; and
(v) prior notification shall have been provided to the
Rating Agencies.
(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
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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 and each Series Support Provider, the due and
punctual payment of the principal of and interest on all Notes
previously issued and having such Obligor as a Series Obligor with
respect thereto 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 and 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 having such Obligor as a Series Obligor
with respect thereto and (E) expressly agree by means of such Master
Agreement Supplement 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 and having such Obligor as a
Series Obligor with respect thereto shall have occurred and be
continuing;
(iii) each Series Support Provider and each Series
Controlling Party relating to each Series previously issued and having
such Obligor as a Series Obligor with respect thereto, if any, shall
have consented in writing to such transaction; and
(iv) any action as is necessary to maintain the validity
and first priority, perfected nature of the lien and security interest
created in favor of the Trustee by each related Series Supplement(s)
shall have been taken.
Section 14.04. Negative Covenants.
The Obligors hereby covenant and agree that so long as this
Master Agreement is in effect and (i) any Notes remain Outstanding or (ii) any
obligation (other than any contingent liability or indemnity) owed to a Series
Support Provider, a Series Secured Party or any Noteholder remains unpaid or
unperformed:
(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;
93
(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 or any Series Support
Provider by reason of the payment of the taxes levied or assessed upon
any part of any Series Trust Estate; or
(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 (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 Users), (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) and perfected security interest in
the related Series Trust Estate, 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; or
(iv) contribute or incur any obligation to contribute to,
or incur any liability in respect of, any Plan or Multiemployer Plan.
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 the Obligors' Agent) 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.
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(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, its
Organizational Documents 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.
(d) If any Obligor or the Obligors' Agent shall have
knowledge of the occurrence of an Event of Servicer Termination under any Series
Related Document, the Obligors shall promptly notify the Trustee, the related
Series Controlling Party and the related Series Support Provider, if any, and
shall specify in such notice the action, if any, such Obligor and the Obligors'
Agent 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 and the Obligors' Agent 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 this Master Agreement or any Series Related Document, the
Obligors' Agent shall promptly notify the Trustee in writing.
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 related 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 related 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:
(i) 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;
(ii) give the Trustee notice of any default by the related
Obligors in the making of any payment of principal or interest on such
Notes;
(iii) 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;
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(iv) 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
(v) 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 taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith.
The related 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' Agent, as specified in an Obligors'
Order; and the Holder of such Note shall thereafter, as an unsecured general
creditor, look only to the Obligors' Agent for payment thereof, and all
liability of the Trustee, such Paying Agent or any Series Support Provider 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' Agent 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' Agent.
Section 14.07. 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 each Series Support Provider and each Series
Controlling Party, 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.
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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 or on any
portion of any Series Trust Estate; 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.
Section 14.09. Amendment of Organizational Documents.
(a) No Obligor will amend its Organizational Documents
without the prior written consent of the related Series Controlling Parties and
the prior notification of the Rating Agencies, and shall not amend its
Organizational Documents in any manner that materially and adversely affects the
Holders of the Notes or any Series Support Provider.
(b) No Obligor shall take any action which would
adversely impact the corporate separateness of such Obligor with ▇▇▇▇▇▇, 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 foregoing.
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).
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Section 14.11. Further Instruments and Acts.
Upon request of the Trustee, any Series Support Provider or
any Series Controlling Party, each Obligor and the Obligors' Agent 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 any portion of any Series Trust Estate or the
ability of such Obligor to perform its obligations under the related Notes, this
Master 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.
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 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, including Section 5-1401 of the
General Obligation Laws of New York, but otherwise without regard to the
conflicts of law 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 overnight
courier, and shall be deemed to have been duly given upon receipt (a) in the
case of Transferor and the Servicer, at the
98
following address: ▇▇▇▇▇▇ Leasing Corp., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇.
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer, (b) in the case of the Trustee,
at the following address: MAC ▇▇▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Services - Asset Backed
Administration, (c) in the case of the Obligors' Agent, at the following
address: ▇▇▇▇▇▇ Leasing Receivables Corp. IV, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇, 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. 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 or of any Series Support Provider.
Section 15.05. Binding Effect.
This Master Agreement shall inure to the benefit of, and shall
be binding upon, (i) the Servicer, (ii) the Obligors' Agent and each Obligor,
(iii) the Trustee, (iv) the Noteholders, (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.
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Section 15.08. Further Assurances.
The Obligors, the Obligors' Agent and the Servicer agree to do
and perform, from time to time, any and all acts and 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 any Series 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 Transferor, the Obligors' Agent 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.
Section 15.10. Special Supplement Agreement.
If any party to this Agreement is unable to sign any amendment
or supplement due to its dissolution, winding up or comparable circumstances,
then the consent of the Majority Control Parties shall be sufficient to amend
this Agreement without such party's signature.
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IN WITNESS WHEREOF, the Servicer, the Obligors' Agent 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.
▇▇▇▇▇▇ LEASING CORP., as Servicer
By:______________________________
Name:
Title:
▇▇▇▇▇▇ LEASING RECEIVABLES
CORP. IV, Obligors' Agent
By:______________________________
Name:
Title:
▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee
and Back-up Servicer
By:______________________________
Name:
Title:
[Signature Page to Master Facility Agreement]
EXHIBIT A
FORM OF BACK-UP SERVICER VERIFICATION CERTIFICATE
[DATE]
A-1
EXHIBIT B
FORM OF TRUSTEE WEBSITE INVESTOR CERTIFICATION
Date:
▇▇▇▇▇ Fargo Bank Minnesota,
National Association
Sixth Street and Marquette Avenue
MAC N9311-161
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services -- Asset-Backed Administration
▇▇▇▇▇▇ Notes
In accordance with Section 12.05 of the Master Lease
Receivables Asset-Backed Financing Facility Agreement dated as of December 1,
2000 by and among ▇▇▇▇▇▇ Leasing Corp., ▇▇▇▇▇▇ Leasing Receivables Corp. IV and
▇▇▇▇▇ Fargo Bank Minnesota, National Association (the "Agreement"), with respect
to Series _____ Notes (the "Notes"), the undersigned hereby certifies and agrees
as follows:
1. The undersigned is a beneficial owner of $__________
in principal balance of the Notes.
2. The undersigned is requesting a password pursuant to
Section 12.05 of the Agreement for access to certain information (the
"Information") on the Trustee's website.
3. In consideration of the Trustee's disclosure to the
undersigned of the Information, or the password in connection
therewith, the undersigned will keep the Information confidential
(except from such outside persons as are assisting it in connection
with the related Notes, from its accountants and attorneys, and
otherwise from such governmental or banking authorities or agencies to
which the undersigned is subject), and such Information will not,
without the prior written consent of the Trustee, be otherwise
disclosed by the undersigned or by its officers, directors, partners,
employees, agents or representatives (collectively, the
"Representatives") in any manner whatsoever, in whole or in part.
4. The undersigned will not use or disclose the
Information in any manner which could result in a violation of any
provision of the Securities Act of 1933, as amended (the "Securities
Act"), or the Securities Exchange Act of 1934, as amended, or would
require registration of any Certificate pursuant to Section 5 of the
Securities Act.
5. The undersigned shall be fully liable for any breach
of this agreement by itself or any of its Representative and shall
indemnify the Servicer
B-1
and the Trustee for any loss, liability or expense incurred thereby
with respect to any such breach by the undersigned or any of its
Representatives.
6. Capitalized terms used but not defined herein shall
have the respective meanings assigned thereto in the Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be
signed hereby by its duly authorized officer, as of the day and year written
above.
_______________________________________
Beneficial Owner
By:____________________________________
Title:_________________________________
Company:_______________________________
Phone:_________________________________
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SCHEDULE I
1. Lease ID or Contract #
2. Obligor ID or Obligor #
3. Equipment Type
4. Type of Loan Origination
a. Government
b. Broker
c. Vendor
5. Status of Lease (Active or Inactive)
6. Delinquency Status
a. Current
b. 31-60 days delinquent
c. 61-90 days delinquent
d. 91-120 days delinquent
e. 120+ days delinquent
7. Original Balance of Lease
8. Remaining Balance of Lease
9. Amount which is delinquent
10. # of times delinquent in past 12 months
11. First Payment date
12. Amount of Payment
13. Maturity Date
14. Original term to maturity in months
15. Remaining term to maturity in months
16. State code
17. Assumed Interest Rate?
18. UCC Filing (Y or N)
19. Type of lease
a. $1.00 out
b. 10.0% purchase option
c. FMV
20. Original Equipment cost
21. Recoveries from equipment sale
22. Booking date
23. Security deposit
24. Residual
25. Net Investment