EXHIBIT 4.2.10
FORM OF POOLING AND SERVICING AGREEMENT
(EQUIPMENT SECURITIES)
POOLING AND SERVICING AGREEMENT
among
[ ] EQUIPMENT TRUST SECURITIES [ ]
as Issuer,
GS Mortgage Securities Corp.
as Depositor,
[ ]
in its individual capacity
and
[ ]
in its individual capacity and as Servicer
Dated as of [ , ]
TABLE OF CONTENTS
ARTICLE I DEFINITIONS
Section 1.01 Definitions.................................................................................1
Section 1.02 Usage of Terms.............................................................................35
Section 1.03 Section References.........................................................................35
Section 1.04 Accounting Terms...........................................................................35
ARTICLE II FUNDINGS OF TRUST; TRANSFERS OF CONTRACTS
Section 2.01 Creation and Funding of Trust; Transfer of Transferred Assets to Trust.....................36
Section 2.02 Conditions to Transfers....................................................................37
Section 2.03 Acceptance by Trust........................................................................39
Section 2.04 Conveyance of Substitute Contracts.........................................................39
Section 2.05 Release of Excluded Amounts................................................................40
ARTICLE III REPRESENTATIONS AND WARRANTIES
Section 3.01 Representations and Warranties Regarding the Depositor.....................................41
Section 3.02 Representations and Warranties of the Servicer.............................................43
ARTICLE IV PERFECTION OF TRANSFERS AND PROTECTION OF SECURITY INTERESTS
Section 4.01 Custody of Contracts.......................................................................44
Section 4.02 Filings....................................................................................45
Section 4.03 Name Change or Relocation..................................................................45
ARTICLE V SERVICING OF CONTRACTS
Section 5.01 Initial Servicer's Appointment and Acceptance; Responsibility for Contract Administration..46
Section 5.02 General Duties.............................................................................46
Section 5.03 Assignment or Replacement..................................................................47
Section 5.04 Disposition Upon Termination of Contract...................................................47
Section 5.05 Subservicers...............................................................................47
Section 5.06 Further Assurance..........................................................................48
Section 5.07 Notice to Obligors.........................................................................48
Section 5.08 Collection Efforts; Modification of Contracts..............................................48
Section 5.09 Prepayments of Certain Contracts...........................................................49
Section 5.10 Certain Extensions; Acceleration...........................................................49
Section 5.11 Taxes and Other Amounts....................................................................50
Section 5.12 Suits by Servicer..........................................................................50
Section 5.13 Remittances................................................................................50
Section 5.14 Servicer Advances..........................................................................50
Section 5.15 Realization Upon Defaulted Contract........................................................50
Section 5.16 Maintenance of Insurance Policies..........................................................51
Section 5.17 Certain Other Duties With Respect to Trust.................................................51
Section 5.18 Servicing Compensation.....................................................................51
Section 5.19 Payment of Certain Expenses by Servicer....................................................51
Section 5.20 Records....................................................................................51
Section 5.21 Inspection.................................................................................52
Section 5.22 Trust To Cooperate in Releases.............................................................52
Section 5.23 [Reserved].................................................................................52
Section 5.24 Separate Entity Existence..................................................................52
ARTICLE VI COVENANTS OF THE DEPOSITOR
Section 6.01 LLC Existence..............................................................................53
Section 6.02 Contracts Not to be Evidenced by Promissory Notes..........................................53
Section 6.03 Security Interests.........................................................................53
Section 6.04 Delivery of Collections....................................................................53
Section 6.05 Regulatory Filings.........................................................................53
Section 6.06 Compliance With Law........................................................................54
Section 6.07 Activities.................................................................................54
Section 6.08 Indebtedness...............................................................................54
Section 6.09 Guarantees.................................................................................54
Section 6.10 Investments................................................................................54
Section 6.11 Merger; Transfers..........................................................................54
Section 6.12 Payments...................................................................................55
Section 6.13 Other Agreements...........................................................................55
Section 6.14 Separate Entity Existence..................................................................55
Section 6.15 Location; Records..........................................................................56
Section 6.16 Liability of Depositor; Indemnities........................................................56
Section 6.17 Bankruptcy Limitations.....................................................................57
Section 6.18 Limitation on Liability of Depositor and Others............................................58
Section 6.19 Chief Executive Office.....................................................................58
ARTICLE VII ESTABLISHMENT OF ACCOUNTS; PAYMENTS
Section 7.01 Trust Accounts; Collections................................................................58
Section 7.02 Cash Collateral Account....................................................................59
Section 7.03 Trust Account Procedures...................................................................59
Section 7.04 Securityholder Payments....................................................................60
Section 7.05 Allocations and Payments...................................................................60
Section 7.06 Repurchases of, or Substitution for, Contracts for Breach
of Representations and Warranties..........................................................67
Section 7.07 Reassignment of Repurchased or Substituted Contracts.......................................68
Section 7.08 [ ] and Depositor's Repurchase Option................................................68
ARTICLE VIII SERVICER DEFAULTS; SERVICING TRANSFER
Section 8.01 Servicer Default...........................................................................68
Section 8.02 Servicing Transfer.........................................................................69
Section 8.03 Appointment of Successor Servicer; Reconveyance; Successor Servicer to Act.................70
Section 8.04 Notifications to Noteholders and the Equity Certificateholders.............................71
Section 8.05 Effect of Transfer.........................................................................71
Section 8.06 Database File..............................................................................72
Section 8.07 Successor Servicer Indemnification.........................................................72
Section 8.08 Responsibilities of the Successor Servicer.................................................72
ARTICLE IX SERVICER REPORTING
Section 9.01 Monthly Reports............................................................................73
Section 9.02 Officer's Certificate......................................................................73
Section 9.03 Other Data.................................................................................73
Section 9.04 Annual Reporting; Evidence as to Compliance................................................73
Section 9.05 Annual Statement of Compliance from Servicer...............................................74
ARTICLE X TERMINATION
Section 10.01 Sale of Trust Assets.......................................................................74
ARTICLE XI MISCELLANEOUS
Section 11.01 Amendments.................................................................................75
Section 11.02 [Reserved].................................................................................76
Section 11.03 Governing Law..............................................................................76
Section 11.04 Notices....................................................................................76
Section 11.05 Severability of Provisions.................................................................78
Section 11.06 Third Party Beneficiaries..................................................................78
Section 11.07 Counterparts...............................................................................78
Section 11.08 Headings...................................................................................78
Section 11.09 No Bankruptcy Petition; Disclaimer and Subordination.......................................78
Section 11.10 Jurisdiction...............................................................................79
Section 11.11 Tax Characterization.......................................................................79
Section 11.12 Servicer Indemnity.........................................................................79
Section 11.13 Limitation of Liability of Owner Trustee...................................................80
Section 11.14 WAIVER OF JURY TRIAL.......................................................................80
Section 11.15 Third Party Beneficiary....................................................................80
EXHIBITS
Exhibit A - Form of Transfer Agreement...............................................................A-1
Exhibit B - [Reserved]...............................................................................B-1
Exhibit C - Initial Schedule of Contracts............................................................C-1
Exhibit D - Form of Servicer's Monthly Report........................................................D-1
Exhibit E - Form of Substitution Transfer Agreement..................................................E-1
Exhibit F - Hedging Requirements.....................................................................F-1
Exhibit G - Schedule of Representations and Warranties...............................................G-1
Exhibit H - Certain Concentration Criteria...........................................................H-1
Exhibit I - [Reserved]...............................................................................I-1
Exhibit J - Minimum Value Filing Exceptions..........................................................J-1
This POOLING AND SERVICING AGREEMENT, dated as of [ ], is among [ ]
Equipment Trust Securities [ ], a Delaware business trust (together with its
successors and assigns, the "Issuer" or the "Trust"), GS Mortgage Securities
Corp., a Delaware corporation (together with its successors and assigns, the
"Depositor"), [ ], a [ ] corporation (together with its successors and
assigns, "[ ]" and, in its capacity as the Servicer, the "Servicer") and [ ]
together with its successors and assigns, "[ ]").
WHEREAS the Depositor desires to fund the Trust by selling, conveying
and assigning from time to time, pursuant hereto or Substitution Transfer
Agreements hereunder, designated Contracts or pools of Contracts together with
certain related security therefor and other related rights and property as
further described herein, which Contracts were originated by one or more
Financing Originators, or acquired by purchase and assignment by a Financing
Originator from the prior owner thereof, and subsequently conveyed: (i) by
certain Financing Originators to [ ] pursuant to the Conveyancing Agreement
(as defined herein), and (ii) by [ ] to the Depositor, with respect to
Contracts and related assets both originated or acquired directly by [ ] as a
Financing Originator, and acquired by [ ] from the other Financing Originators
as described in clause (i) above, pursuant to the Purchase and Sale Agreement
(as defined herein); and
WHEREAS the Trust is willing to purchase and accept assignment of
such Contracts and related assets, including, without limitation such
Contracts and other assets as the Depositor has previously conveyed to the [ ]
- [ ] and which the [ ] - [ ] has assigned back to the Depositor from the
Depositor pursuant to the terms hereof; and
WHEREAS the Servicer is willing to service such Contracts and related
assets for the benefit and account of the Trust and the Holders pursuant to
the terms hereof;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
"Accounting Date" means, with respect to a Payment Date, the last day
of the preceding calendar month.
"Accrual Period" means, with respect to any Payment Date, the period
from and including the immediately preceding Payment Date to but excluding
such Payment Date, provided, that the initial Accrual Period following the
Closing Date shall be the period from and including the Closing Date to but
excluding the first Payment Date following the Closing Date.
"Addition Notice" means, with respect to any transfer of Subsequent
Contracts to the Trust pursuant to Section 2.04 (and the Depositor's
corresponding prior purchase of such Contracts from [ ]), a notice, which
shall be given at least five days prior to the related Subsequent Transfer
Date, identifying the Subsequent Contracts to be transferred, the Contract
Principal Balance of such Subsequent Contracts and the related Substitution
Event (with respect to an identified Contract or Contracts then in the
Contracts Pool) to which such Subsequent Contract relates, with such notice to
be signed both by the Depositor and the [ ].
"Additional Principal" means, with respect to any Payment Date, an
amount equal to: (a) the Total Principal Payment Amount, less (b) the sum of
the Class A-1 Principal Payment Amount, the Class A-2 Principal Payment
Amount, the Class A-3 Principal Payment Amount, the Class A-4 Principal
Payment Amount, the Class A-5 Principal Payment Amount, the Class B Principal
Payment Amount, the Class C Principal Payment Amount and the Class D Principal
Payment Amount.
"Administration Agreement" means the Administration Agreement dated
as of [ ] by and among the Trust, [ ], the Depositor and the Indenture
Trustee.
"Affiliate" of any specified Person means any other Person
controlling or controlled by, or under 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" or
"controlled" have meanings correlative to the foregoing.
"Agreement" means this Pooling and Servicing Agreement, as amended,
restated, supplemented or otherwise modified from time to time in accordance
with the terms hereof.
"Aggregate Principal Amount" means, with respect to any group of
Notes, at any date of determination, the sum of the Principal Amounts of such
Notes on such date of determination.
"Allocation Criteria" means, with respect to the allocation of
Insurance Proceeds or Liquidation Proceeds between the Trust (for inclusion as
Pledged Revenues) and the Depositor, as contemplated in the definition of
Available Pledged Revenues, that Insurance Proceeds or Liquidation Proceeds
with respect to the Contracts consisting of Leases are allocable pro rata
between inclusion as Available Pledged Revenues in respect of the Contract
Pool, on the one hand, and directly to the Depositor, on the other, based
upon: (i) for allocation to Available Pledged Revenues, the Required Payoff
Amount for such Lease (determined as of the beginning of the Collection Period
during which such Lease became a Defaulted Contract), and (ii) for allocation
to the Depositor, the Book Value of the related Equipment; provided, that in
the event the Insurance Proceeds or Liquidation Proceeds in respect of a
particular Lease exceed the sum of such Required Payoff Amount for such Lease
plus the Book Value of the related Equipment, any such excess shall be
allocated solely to the Depositor.
"Applicable Security" means, with respect to a Vendor Loan, any: (i)
Secondary Contract securing such Vendor Loan and (ii) Equipment securing such
Vendor Loan or a related Secondary Contract.
"Assignment Agreement" means each Assignment Agreement, substantially
in the form of Exhibit A-1 attached hereto, in the case of the [ ] Assignment,
and in the form of Exhibit A to the Purchase and Sale Agreement, in the case
of the Assignment Agreement executed by [ ], relating to an assignment,
transfer and conveyance of Contracts and related assets by the [ ] Trust or [
] to the Depositor, as the case may be.
"Amount Available" means, with respect to any Payment Date, the sum
of: (i) the Available Pledged Revenues for such Payment Date, and (ii) that
portion of the balance in the Cash Collateral Account available for withdrawal
by the Trustee in accordance with Section 7.05(c).
"Available Cash Collateral" means, with respect to a Payment Date,
the amount of funds equal to the lesser of: (i) the amount on deposit in the
Cash Collateral Account (determined (a) exclusive of any net investment
earnings, thereon and (b) before giving effect to any deposit to be made or
withdrawals from the Cash Collateral Account with respect to such Payment
Date), and (ii) the Requisite Cash Collateral Amount.
"Available Pledged Revenues" means, as to any Payment Date, the sum
of: (i) the Related Collection Period Pledged Revenues for such Payment Date,
(ii) all Purchase Amounts (other than any portion thereof attributable to the
Book Value of the Leased Equipment) on deposit in the Collection Account as of
the immediately preceding Deposit Date, (iii) the amount paid by the Depositor
to purchase the Contracts pursuant to Section [ ] of the Pooling and Servicing
Agreement on deposit in the Collection Account as of the immediately preceding
Deposit Date, (iv) all net income from investments of funds in the Collection
Account and the Note Distribution Account during the related Collection
Period, and (v) to the extent necessary to pay the Note Interest Distributable
Amount for such Payment Date, the Current Collection Period Pledged Revenues
for such Payment Date.
"Book Value" means, with respect to any Equipment subject to a Lease,
the value of such Equipment as shown on the accounting books and records of
the applicable Financing Originator (or the Depositor, in the case of
Equipment relating to Contracts being transferred pursuant to the [ ]
Assignment), as of the Cut-off Date for the related Lease (it being understood
that, Book Value constitutes a measure of the lessor's residual interest in
the Equipment as shown on its books and records as of such date, net of the
financial asset shown on such books and records represented by the discounted
Scheduled Payments owing on the Lease).
"Business Day" means any day which is neither a Saturday or a Sunday,
nor another day on which banking institutions in the cities of [ ],
Wilmington, Delaware or New York, New York are authorized or obligated by law,
executive order, or governmental decree to be closed.
"Business Trust Statute" has the meaning specified in the Trust
Agreement.
"Cash Collateral Account" means the Cash Collateral Account
established and maintained pursuant to Section 7.01 hereof
"Cash Collateral Account Agreement" means the Loan Agreement dated as
of [ ], among the Depositor, the Trust, the Indenture Trustee, the Cash
Collateral Account Lenders and the Cash Collateral Account Lenders' Agent, as
the same may be amended, supplemented or otherwise modified in accordance with
the terms thereof.
"Cash Collateral Account Lenders" means the parties identified as
lenders in the Cash Collateral Account Agreement.
"Cash Collateral Account Lenders' Agent" means the party identified
as agent for the Cash Collateral Account Lenders in the Cash Collateral
Account Agreement.
"Cash Collateral Initial Balance" means [ ], which is equal to [ ]%
of the Initial Contract Pool Principal Balance.
"Casualty Loss" means, with respect to any item of Equipment, the
loss, theft, damage beyond repair or governmental condemnation or seizure of
such item of Equipment.
"Certificate Register" has the meaning specified in the Trust
Agreement.
"Certificateholder" has the meaning specified in the Trust Agreement.
"Class" means any of the group of Notes or the Equity Certificate
identified herein as, as applicable, the Class A-1 Notes, the Class A-2 Notes,
the Class A-3 Notes, the Class A-4 Notes, the Class A-5 Notes, the Class B
Notes, the Class C Notes, the Class D Notes, or the Equity Certificate.
"Class A Notes" means the Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes, the Class A-4 Notes and the Class A-5 Notes.
"Class A Percentage" means [ ]%.
"Class A Principal Payment Amount" means:
(A) (i) with respect to any Payment Date on or
prior to the Payment Date on which the Class A-1 Principal Balance is
reduced to zero, the Total Principal Payment Amount; provided that
if, the distribution of the Total Principal Payment Amount in
accordance with Section [ ] would result in the Class A-1 Principal
Balance equaling zero, the Class A Principal Payment Amount with
respect to such Payment Date will be an amount equal to: (x) the
Class A-1 Principal Balance plus (y) the greater of: (1) [ ]% of the
Total Principal Payment Amount or (2) the remainder of: (I) the sum
of the Class A-2 Principal Balance, the Class A-3 Principal Balance,
the Class A-4 Principal Balance and the Class A-5 Principal Balance
minus (II) the Class A Target Principal Amount; and
(ii) with respect to any Payment Date thereafter,
the remainder of: (a) the sum of the Class A-2 Principal Balance, the
Class A-3 Principal Balance, the Class A-4 Principal Balance and the
Class A-5 Principal Balance minus (b) the Class A Target Principal
Amount; plus
(B) with respect to any Payment Date, any Class A
Principal Shortfall Amount; provided, however, that in no event will
the Class A Principal Payment Amount exceed the Class A Principal
Balance.
"Class A Principal Shortfall Amount" means, with respect to any
Payment Date that is the Stated Maturity Date for a Class of Class A Notes,
and any Payment Date thereafter, the amount, if any, by which: (i) the sum of
(a) the Principal Balance of such Class, plus (b) until the Class A-4
Principal Balance has been reduced to zero, [ ]% of the Total Principal
Payment Amount, exceeds (ii) the Total Principal Payment Amount.
"Class A Target Principal Amount" means, with respect to any Payment
Date, the product of: (i) the Class A Percentage and (ii) the Contract Pool
Principal Balance as of the related Accounting Date.
"Class A-1 Interest Carryover Shortfall" means, with respect to any
Payment Date, the excess, if any, of the Class A-1 Interest Distributable
Amount for the preceding Payment Date over the amount that was actually
distributed in respect of interest on the Class A-1 Notes on such preceding
Payment Date, plus, to the extent permitted by law, an amount equal to the
product of: (i) the Class A-1 Interest Rate, (ii) such excess, and (iii) a
fraction equal to the number of days in the related Interest Period divided
by 360.
"Class A-1 Interest Distributable Amount" means, with respect to any
Payment Date, the sum of the Class A-1 Monthly Interest Distributable Amount
and the Class A-1 Interest Carryover Shortfall for such Payment Date.
"Class A-1 Interest Rate" means [ ]% per annum.
"Class A-1 Interest Distributable Amount" means, with respect to any
Account Period and the related Payment Date, an amount equal to the product
of: (i) the Class A-1 Interest Rate, (ii) the Principal Balance of the Class
A-1 Notes on the immediately preceding Payment Date, after giving effect to
all payments of principal to Class A-1 Noteholders on or prior to such
immediately preceding Payment Date (or, in the case of the first Payment Date,
the Initial Principal Amount of the Class A-1 Notes), and (iii) a fraction
equal to the number of days in such Interest Period divided by 360.
"Class A-1 Notes" means the $[ ] aggregate principal amount of [ ]%
Receivable-Backed Notes, Class A-1, issued pursuant to the Indenture.
"Class A-1 Maturity Date" means [ ] (or, if such day is not a
Business Day, the next preceding Business Day).
"Class A-2 Interest Carryover Shortfall" means, with respect to any
Payment Date, the excess, if any, of the Class A-2 Interest Distributable
Amount for the preceding Payment Date over the amount that was actually
distributed in respect of interest on the Class A-2 Notes on such preceding
Payment Date, plus, to the extent permitted by law, an amount equal to the
product of: (i) the Class A-2 Interest Rate, (ii) such excess, and (iii) a
fraction equal to one-twelfth.
"Class A-2 Interest Distributable Amount" means, with respect to any
Payment Date, the sum of the Class A-2 Monthly Interest Distributable Amount
and the Class A-2 Interest Carryover Shortfall for such Payment Date.
"Class A-2 Interest Rate" means [ ]% per annum.
"Class A-2 Interest Distributable Amount" means: (a) with respect to
the first Interest Period and the related Payment Date, an amount equal to the
product of: (i) the Class A-2 Interest Rate, (ii) the Initial Principal Amount
of the Class A-2 Notes, and (iii) a fraction equal to 28 divided by 360, and
(b) with respect to each subsequent Accrual Period and the related Payment
Date, an amount equal to the product of: (i) the Class A-2 Interest Rate, (ii)
the Principal Balance of the Class A-2 Notes on the immediately preceding
Payment Date, after giving effect to all payments of principal to Class A-2
Noteholders on or prior to such immediately preceding Payment Date, and (iii)
a fraction equal to one-twelfth.
"Class A-2 Notes" means the $[ ] aggregate principal amount of [ ]%
Receivable-Backed Notes, Class A-2, issued pursuant to the Indenture.
"Class A-2 Maturity Date" means [ ] (or, if such day is not a
Business Day, the next succeeding Business Day thereafter).
"Class A-3 Interest Carryover Shortfall" means, with respect to any
Payment Date, the excess, if any, of the Class A-3 Interest Distributable
Amount for the preceding Payment Date over the amount that was actually
distributed in respect of interest on the Class A-3 Notes on such preceding
Payment Date, plus, to the extent permitted by law, an amount equal to the
product of: (i) the Class A-3 Interest Rate, (ii) such excess, and (iii) a
fraction equal to one-twelfth.
"Class A-3 Interest Distributable Amount" means, with respect to any
Payment Date, the sum of the Class A-3 Monthly Interest Distributable Amount
and the Class A-3 Interest Carryover Shortfall for such Payment Date.
"Class A-3 Interest Rate" means [ ]% per annum.
"Class A-3 Monthly Interest Distributable Amount" means: (a) with
respect to the first Accrual Period and the related Payment Date, an amount
equal to the product of: (i) the Class A-3 Interest Rate, (ii) the Initial
Principal Amount of the Class A-3 Notes, and (iii) a fraction equal to 28
divided by 360, and (b) with respect to each subsequent Accrual Period and the
related Payment Date, an amount equal to the product of: (i) the Class A-3
Interest Rate, (ii) the Principal Balance of the Class A-3 Notes on the
immediately preceding Payment Date, after giving effect to all payments of
principal to Class A-3 Noteholders on or prior to such immediately preceding
Payment Date, and (iii) a fraction equal to one-twelfth.
"Class A-3 Notes" means the $[ ] aggregate principal amount of [ ]%
Receivable-Backed Notes, Class A-3, issued pursuant to the Indenture.
"Class A-3 Maturity Date" means [ ] (or, if such day is not a
Business Day, the next succeeding Business Day thereafter).
"Class A-4 Interest Carryover Shortfall" means, with respect to any
Payment Date, the excess, if any, of the Class A-4 Interest Distributable
Amount for the preceding Payment Date over the amount that was actually
distributed in respect of interest on the Class A-4 Notes on such preceding
Payment Date, plus, to the extent permitted by law, an amount equal to the
product of: (i) the Class A-4 Interest Rate, (ii) such excess, and (iii) a
fraction equal to one-twelfth.
"Class A-4 Interest Distributable Amount" means, with respect to any
Payment Date, the sum of the Class A-4 Monthly Interest Distributable Amount
and the Class A-4 Interest Carryover Shortfall for such Payment Date.
"Class A-4 Interest Rate" means [ ]% per annum.
"Class A-4 Monthly Interest Distributable Amount" means: (a) with
respect to the first Accrual Period and the related Payment Date, an amount
equal to the product of: (i) the Class A-4 Interest Rate, (ii) the Initial
Principal Amount of the Class A-4 Notes, and (iii) a fraction equal to 28
divided by 360, and (b) with respect to each subsequent Accrual Period and the
related Payment Date, an amount equal to the product of: (i) the Class A-4
Interest Rate, (ii) the Principal Balance of the Class A-4 Notes on the
immediately preceding Payment Date, after giving effect to all payments of
principal to Class A-4 Noteholders on or prior to such immediately preceding
Payment Date, and (iii) a fraction equal to one-twelfth.
"Class A-4 Notes" means the $[ ] aggregate principal amount of [ ]%
Receivable-Backed Notes, Class A-4, issued pursuant to the Indenture.
"Class A-4 Maturity Date" means [ ] (or, if such day is not a
Business Day, the next succeeding Business Day thereafter).
"Class A-5 Interest Carryover Shortfall" means, with respect to any
Payment Date, the excess, if any, of the Class A-5 Interest Distributable
Amount for the preceding Payment Date over the amount that was actually
distributed in respect of interest on the Class A-5 Notes on such preceding
Payment Date, plus, to the extent permitted by law, an amount equal to the
product of: (i) the Class A-5 Interest Rate, (ii) such excess, and (iii) a
fraction equal to one-twelfth.
"Class A-5 Interest Distributable Amount" means, with respect to any
Payment Date, the sum of the Class A-5 Monthly Interest Distributable Amount
and the Class A-5 Interest Carryover Shortfall for such Payment Date.
"Class A-5 Interest Rate" means [ ]%.
"Class A-5 Monthly Interest Distributable Amount" means: (a) with
respect to the first Accrual Period and the related Payment Date, an amount
equal to the product of (i) the Class A-5 Interest Rate, (ii) the Initial
Principal Amount of the Class A-5 Notes, and (iii) a fraction equal to 28
divided by 360, and (b) with respect to each subsequent Accrual Period and the
related Payment Date, an amount equal to the product of: (i) the Class A-5
Interest Rate, (ii) the Principal Balance of the Class A-5 Notes on the
immediately preceding Payment Date, after giving effect to all payments of
principal to Class A-5 Noteholders on or prior to such immediately preceding
Payment Date, and (iii) a fraction equal to one-twelfth.
"Class A-5 Notes" means the $[ ] aggregate principal amount of [ ]%
Receivable-Backed Notes, Class A-5, issued pursuant to the Indenture.
"Class A-5 Maturity Date" means [ ] (or, if such day is not a
Business Day, the next succeeding Business Day thereafter).
"Class B Floor" means, with respect to any Payment Date: (i) [ ]% of
the Contract Pool Principal Balance as of the Initial Cut-off Date, plus (ii)
the Principal Differential, if any, for such Payment Date, minus (iii) the sum
of the Class C Principal Balance and the Class D Principal Balance (prior to
giving effect to any payments of principal on the Class C or Class D Notes on
such Payment Date) and the amount on deposit in the Cash Collateral Account
(after giving effect to withdrawals to be made on such Payment Date);
provided, however, that in no event will the Class B Floor be greater than the
Class B Principal Balance immediately prior to such Payment Date nor less than
zero.
"Class B Interest Carryover Shortfall" means, with respect to any
Payment Date, the excess, if any, of the Class B Interest Distributable Amount
for the preceding Payment Date over the amount that was actually distributed
in respect of interest on the Class B Notes on such preceding Payment Date,
plus, to the extent permitted by law, an amount equal to the product of: (i)
the Class B Interest Rate, (ii) such excess, and (iii) a fraction equal to
one-twelfth.
"Class B Interest Distributable Amount" means, with respect to any
Payment Date, the sum of the Class B Monthly Interest Distributable Amount and
the Class B Interest Carryover Shortfall for such Payment Date.
"Class B Interest Rate" means [ ]% per annum.
"Class B Monthly Interest Distributable Amount" means (a) with
respect to the first Accrual Period and the related Payment Date, an amount
equal to the product of: (i) the Class B Interest Rate, (ii) the Initial
Principal Balance of the Class B Notes, and (iii) a fraction equal to 28
divided by 360, and (b) with respect to each subsequent Accrual Period and the
related Payment Date Payment Date, an amount equal to the product of: (i) the
Class B Interest Rate, (ii) the Principal Balance of the Class B Notes on the
immediately preceding Payment Date, after giving effect to all payments of
principal to Class B Noteholders on or prior to such immediately preceding
Payment Date, and (iii) a fraction equal to one-twelfth.
"Class B Notes" means the $[ ] aggregate principal amount of [ ]%
Receivable-Backed Notes, Class B, issued pursuant to the Indenture.
"Class B Percentage" means [ ]%.
"Class B Principal Payment Amount" means: (i) zero with respect to
any Payment Date prior to the Payment Date on which the Class A-1 Principal
Balance is reduced to zero, and (ii) with respect to any Payment Date
thereafter, the excess, if any, of: (a) the Class B Principal Balance over (b)
the greater of: (1) the Class B Target Principal Amount and (2) the Class B
Floor, if any; provided, however, that in no event will the Class B Principal
Payment Amount exceed the Class B Principal Balance.
"Class B Maturity Date" means [ ] (or, if such day is not a Business
Day, the next succeeding Business Day thereafter).
"Class B Target Principal Amount " means, with respect to any Payment
Date, the product of: (i) the Class B Percentage and (ii) the Contract Pool
Principal Balance as of the related Accounting Date.
"Class C Floor" means, with respect to any Payment Date: (i) [ ]% of
the Contract Pool Principal Balance as of the Initial Cut-off Date, plus (ii)
the Principal Differential, if any, for such Payment Date, minus (iii) the sum
of the Class D Principal Balance (prior to giving effect to any payments of
principal on the Class D Notes on such Payment Date) and the amount on deposit
in the Cash Collateral Account (after giving effect to withdrawals to be made
on such Payment Date); provided, however, that in no event will the Class C
Floor be greater than the Class C Principal Balance immediately prior to such
Payment Date nor less than zero. Furthermore, if the Class B Principal Balance
immediately prior to any Payment Date is less than or equal to the Class B
Floor for such Payment Date, the Class C Floor with respect to such Payment
Date will equal the Class C Principal Balance immediately prior to such
Payment Date.
"Class C Interest Carryover Shortfall" means, with respect to any
Payment Date, the excess, if any, of the Class C Interest Distributable Amount
for the preceding Payment Date over the amount that was actually distributed
in respect of interest on the Class C Notes on such preceding Payment Date,
plus, to the extent permitted by law, an amount equal to the product of: (i)
the Class C Interest Rate, (ii) such excess, and (iii) a fraction equal to
one-twelfth.
"Class C Interest Distributable Amount" means, with respect to any
Payment Date, the sum of the Class C Monthly Interest Distributable Amount and
the Class C Interest Carryover Shortfall for such Payment Date.
"Class C Interest Rate" means [ ]% per annum.
"Class C Monthly Interest Distributable Amount" means: (a) with
respect to the first Accrual Period and the related Payment Date, an amount
equal to the product of: (i) the Class C Interest Rate, (ii) the Initial
Principal Amount of the Class C Notes, and (iii) a fraction equal to 28
divided by 360, and (b) with respect to each subsequent Accrual Period and the
related Payment Date, an amount equal to the product of: (i) the Class C
Interest Rate, (ii) the Principal Balance of the Class C Notes on the
immediately preceding Payment Date, after giving effect to all payments of
principal to Class C Noteholders on or prior to such immediately preceding
Payment Date, and (iii) a fraction equal to one-twelfth.
"Class C Notes" means the $[ ] aggregate principal amount of [ ]%
Receivable-Backed Notes, Class C, issued pursuant to the Indenture.
"Class C Percentage" means [ ]%.
"Class C Principal Payment Amount" means: (i) zero with respect to
any Payment Date prior to the Payment Date on which the Class A-1 Principal
Balance is reduced to zero, and (ii) with respect to any Payment Date
thereafter, the excess, if any, of: (a) the Class C Principal Balance over (b)
the greater of: (1) the Class C Target Principal Amount and (2) the Class C
Floor, if any; provided, however, that in no event will the Class C Principal
Payment Amount exceed the Class C Principal Balance.
"Class C Maturity Date" means [ ] (or, if such day is not a Business
Day, the next succeeding Business Day thereafter).
"Class C Target Principal Amount" means, with respect to any Payment
Date, the product of: (i) the Class C Percentage and (ii) the Contract Pool
Principal Balance as of the related Accounting Date.
"Class D Floor" means, with respect to any Payment Date: (i) [ ]% of
the Contract Pool Principal Balance as of the Initial Cut-off Date, plus (ii)
the Principal Differential, if any, for such Payment Date, minus (iii) the
amount on deposit in the Cash Collateral Account (after giving effect to
withdrawals to be made on such Payment Date); provided, however, that in no
event will the Class D Floor be greater than the Class D Principal Balance
immediately prior to such Payment Date nor less than zero. Furthermore, if the
Class C Principal Balance immediately prior to any Payment Date is less than
or equal to the Class C Floor for such Payment Date, the Class D Floor with
respect to such Payment Date will equal the Class D Principal Balance
immediately prior to such Payment Date.
"Class D Interest Carryover Shortfall" means, with respect to any
Payment Date, the excess, if any, of the Class D Interest Distributable Amount
for the preceding Payment Date over the amount that was actually distributed
in respect of interest on the Class D Notes on such preceding Payment Date,
plus, to the extent permitted by law, an amount equal to the product of: (i)
the Class D Interest Rate, (ii) such excess, and (iii) a fraction equal to
one-twelfth.
"Class D Interest Distributable Amount" means, with respect to any
Payment Date, the sum of the Class D Monthly Interest Distributable Amount and
the Class D Interest Carryover Shortfall for such Payment Date.
"Class D Interest Rate" means [ ]% per annum.
"Class D Monthly Interest Distributable Amount" means: (a) with
respect to the first Accrual Period and the related Payment Date, an amount
equal to the product of: (i) the Class D Interest Rate, (ii) the Initial
Principal Amount of the Class D Notes, and (iii) a fraction equal to 28
divided by 360, and (b) with respect to each subsequent Accrual Period and the
related Payment Date Payment Date, an amount equal to the product of: (i) the
Class D Interest Rate, (ii) the Principal Balance of the Class D Notes on the
immediately preceding Payment Date, after giving effect to all payments of
principal to Class D Noteholders on or prior to such immediately preceding
Payment Date, and (iii) a fraction equal to one-twelfth.
"Class D Notes" means the $[ ] aggregate principal amount of [ ]%
Receivable-Backed Notes, Class D, issued pursuant to the Indenture.
"Class D Percentage" means [ ]%.
"Class D Principal Payment Amount" means: (i) zero with respect to
any Payment Date prior to the Payment Date on which the Class A-1 Principal
Balance is reduced to zero, and (ii) with respect to any Payment Date
thereafter, the excess, if any, of: (a) the Class D Principal Balance over (b)
the greater of (1) the Class D Target Principal Amount and (2) the Class D
Floor, if any; provided, however, that in no event will the Class D Principal
Payment Amount exceed the Class D Principal Balance.
"Class D Maturity Date" means [ ] (or, if such day is not a Business
Day, the next succeeding Business Day thereafter).
"Class D Target Principal Amount" means, with respect to any Payment
Date, the product of: (i) the Class D Percentage and (ii) the Contract Pool
Principal Balance as of the related Accounting Date.
"Certificate of Formation" means the limited liability company
Certificate of Formation of the Depositor.
"Certificate of Trust" has the meaning given such term in the Trust
Agreement.
"Certificate Register" has the meaning specified in the Trust
Agreement.
"Closing Date" means [ ].
"Code" means the Internal Revenue Code of 1986, as amended.
"Collection Account" means the account so designated established
pursuant to Section 7.01.
"Collection Account Property" means the Collection Account, all
amounts and investments held from time to time in the Collection Account
(whether in the form of deposit accounts, physical property, book-entry
securities, uncertificated securities or otherwise), and all proceeds of the
foregoing.
"Collection Period" means a period beginning on the first day of a
calendar month and ending on, but not including, the first day of the next
calendar month, provided that the first Collection Period shall be the period
beginning on the Initial Cut-off Date and ending on, but not including, the
first day of the calendar month immediately following the calendar month in
which the Closing Date occurs.
"Commission" means the United States Securities and Exchange
Commission.
"Computer Disk" means the computer disk generated by the Servicer (or
applicable Financing Originator acting as subservicer as described in Section
5.05), which provides information relating to Contracts in the Contract Pool
and which was used by such party in selecting the related Contracts for
conveyance and inclusion in such Contract Pool, and includes the master file
and the history file as well as servicing information with respect to such
Contracts.
"Contract" means each End-User Contract and each Vendor Loan listed
on any Schedule of Contracts but, unless otherwise specified herein, shall not
refer to any Secondary Contract.
"Contract Assets" means, with respect to any Contracts (including
Substitute Contracts) and related assets conveyed or being conveyed to the
Depositor pursuant to the Purchase and Sale Agreement, a Substitution
Assignment Agreement executed thereunder or the [ ] Assignment, and
concurrently conveyed or being conveyed by the Depositor to the Trust pursuant
to this Pooling Agreement or a Substitution Transfer Agreement, all right,
title and interest of [ ] or the [ ] Trust, as the case may be, in, to and
under:
(i) such Contracts, and all monies due or to become due in
payment of such Contracts on and after the relevant Cut-off Date, and
including Scheduled Payments due but not yet received prior to the
relevant Cut-off Date and all other Scheduled Payments (including in
respect of any Guaranteed Residual Investment) due or becoming due on
or after the relevant Cut-off Date, any Prepayments, any payments in
respect of a casualty or early termination, any Liquidation Proceeds
received with respect thereto, but excluding any Scheduled Payments
both due and actually received prior to the related Cut-off Date and
any Excluded Amounts;
(ii) the Financed Items related to such Contracts and, in
the case of any Vendor Loan, related Applicable Security, including
all proceeds from any sale or other disposition of such Financed
Items (but subject to the exclusion and release herein of Excluded
Amounts) and any Guaranteed Residual Investment;
(iii) related Contract Files;
(iv) all payments made or to be made in the future with
respect to such Contracts or the Obligor thereunder under any Vendor
Agreements with the relevant Financing Originator and under any
guarantee or similar credit enhancement with respect to such
Contracts;
(v) all Insurance Proceeds with respect to each such Contract;
(vi) the Conveyancing Agreement (but solely with respect to
[ ] Contract Assets conveyed to [ ] thereunder constituting Contract
Assets), including: (A) all rights of [ ] to receive moneys due and
to become due under or in respect of such Contract Assets pursuant to
the Conveyancing Agreement, (B) all rights of [ ] to receive proceeds
of any insurance, indemnity, warranty or guaranty with respect to [ ]
Contract Assets conveyed to [ ] thereunder constituting Contract
Assets, (C) all claims of [ ] for damages arising out of or for
breach of or default under the Conveyancing Agreement to the extent
relating to [ ] Contract Assets conveyed to [ ] thereunder
constituting Contract Assets, and (iv) the right of [ ] to amend,
waive or terminate the Conveyancing Agreement, to compel performance
and otherwise exercise remedies and rights thereunder, in each case
with respect to or as applicable to [ ] Contract Assets conveyed
thereunder constituting Contract Assets; and
(vii) all income from and proceeds of the foregoing.
"Contract File" means, with respect to each Contract, the fully
executed original counterpart (for UCC purposes) of the Contract, the original
certificate of title or other title document with respect to the related
Equipment (if applicable), and otherwise such documents or electronic entries,
if any, that the Servicer (or applicable Financing Originator) keeps on file
in accordance with Customary Policies and Procedures evidencing ownership of
such Equipment (if applicable), and all other documents originally delivered
to the Financing Originator or held by the Servicer (or subservicer under
Section 5.05) with respect to any Contract.
"Contract Pool" means, as of any date of determination, the aggregate
of the Contracts which have been conveyed to the Trust and which constitute as
of such date Trust Assets under the terms and provisions hereof.
"Contract Pool Principal Balance" means with respect to any Payment
Date, the sum of the Contract Principal Balances (computed as of the related
Accounting Date) for all Contracts.
"Contract Principal Balance" means as of any Accounting Date, with
respect to any Contract the present value of the unpaid Scheduled Payments due
on such Contract after such Accounting Date (excluding all Scheduled Payments
due on or prior to, but not received as of, such Accounting Date, as well as
any Scheduled Payments due after, but received as of, such Accounting Date),
after giving effect to any Prepayments received on or prior to such Accounting
Date, discounted monthly at the Discount Rate (assuming, for purposes of such
calculation, that each Scheduled Payment is due on the last day of the
applicable Collection Period); provided that, for purposes of computing the
Total Principal Payment Amount or the Required Cash Collateral Amount for a
given Payment Date (as well as all Payment Dates thereafter), the Contract
Principal Balance of any Contract which became a Defaulted Contract during the
related Collection Period or was required to be purchased by [ ] as of the
last day of the related Collection Period in accordance with Section 5.01 of
the Purchase and Sale Agreement, will be deemed to be zero on and after the
last day of such Collection Period.
"Controlled Group" means all members of a controlled group of
corporations or other business entities and all trades or businesses (whether
or not incorporated) under common control which, together with the Servicer or
any of its Subsidiaries, are treated as a single employer under Section 414 of
the Code.
"Conveyancing Agreement" means the Conveyancing Agreement dated as of
[ ] among the [ ] Financing Originators and [ ], as the same may be amended,
supplemented, restated or otherwise modified from time to time.
"Corporate Trust Office" means the office of the Owner Trustee at
which its corporate trust business shall be administered, which initially
shall be [ ], or such other office at such other address in the State of [ ]
as the Owner Trustee may designate from time to time by notice to the
Certificateholder, the Servicer, the Administrative Agent and the Depositor.
"CPR" means a conditional prepayment rate which assumes that a
fraction of the outstanding Contract Pool is prepaid on each Payment Date and
also assumes that all Contracts have the same initial principal balance and
amortize at the same rate.
"CSA" means each conditional sales agreement, including, as
applicable, schedules, subschedules, supplements and amendments to a master
conditional sales agreement, pursuant to which specified assets were
conditionally sold to an Obligor at specified monthly, quarterly, semi-annual
or annual payments.
"Current Collection Period Pledged Revenues" means, with respect to
any Payment Date, the amount of Pledged Revenues in the Collection Account as
of the immediately preceding Deposit Date which were received by the Servicer
after the end of the related Collection Period, including all Liquidation
Proceeds so received but excluding any Purchase Amount.
"Customary Policies and Procedures" means, with respect to any
Contract Assets, the customary standards, policies and procedures of the
relevant Financing Originator with respect to such Contract Assets in effect
at the time of the Cut-off Date with respect thereto, as the same may be
changed from time to time (provided that any such change does not materially
impair: (i) the collectability of the related Contract, or (ii) the Servicer's
ability to perform its obligations under this Agreement with respect thereto).
"Cut-off Date" means either or both (as the context may require) the
Initial Cut-off Date and any Subsequent Cut-off Date, as applicable to the
Contract or Contracts in question.
"Date of Processing" means, with respect to any transaction or
Pledged Revenue, the date on which such transaction or Pledged Revenue is
first recorded (and, in the case of a transaction or Pledged Revenue related
to a particular Contract, identified as to such particular Contract) on the
related Financing Originator's or the Servicer's computer master file of
Contracts (without regard to the effective date of such recordation).
"Defaulted Contract" means a Contract in the Contract Pool with
respect to which there has occurred one or more of the following: (i) all or
some portion of any Scheduled Payment under the Contract (constituting at
least ten percent (10%) of such Scheduled Payment due) is more than 180 days
delinquent from its original due date (or, with respect to a Contract for
which there exists available payment recourse to a Vendor to satisfy the
amount in default, and which recourse was not yet available (pursuant to the
contractual terms thereof) or had not yet been paid by the Vendor prior to the
end of such 180 day period, then at such time thereafter as the Vendor shall
have failed to pay such defaulted amount in accordance with the provisions of
the Program Agreement, Vendor Assignment or other agreement with the Vendor
providing such recourse), (ii) the Servicer has determined in its sole
discretion, in accordance with Customary Policies and Procedures (and taking
into account any available Vendor recourse), that such Contract is not
collectible; or (iii) the End-User under such Contract (or applicable Vendor,
if such Contract is a Vendor Loan) becomes the subject of an Insolvency Event.
"Delinquent Contract" means any Contract as to which all or a portion
of a Scheduled Payment (constituting at least ten percent (10%) of such
Scheduled Payment due) is more than 60 days delinquent from its original due
date.
"Deposit Date" means the Business Day immediately preceding each
Payment Date.
"Depositor" means the "Depositor" as defined in the preamble hereto,
or any successor entity thereto.
"Determination Date" means, with respect to any Payment Date, the
second Business Day prior to such Payment Date.
"Discount Rate" means [ ]%.
"Dollar" and "$" means lawful currency of the United States of America.
"Eligible Contract" means each Contract owned (prior to its
conveyance by a [ ] Financing Originator to [ ] under the Conveyancing
Agreement if a [ ] Contract, prior to its conveyance by [ ] to the Depositor
under the Purchase and Sale Agreement if an [ ] Contract, and prior to its
conveyance by the [ ] Trust to the Depositor pursuant to the [ ] Assignment,
if a [ ] Contract) by an Eligible Originator or the [ ] Trust, and with
respect to which each of the following is true (to the extent applicable to
such type of Contract) at the time of its conveyance to the Trust on the
Closing Date (or Substitution Transfer Date, as applicable):
(a) the information with respect to the Contract, any Secondary
Contract securing the obligations under such Contract, and the Financed Items
related to the Contract, delivered to the Administrative Agent by or at the
direction of [ ] under the Purchase and Sale Agreement or by or at the
direction of the [ ] Trust pursuant to the [ ] Assignment is true and correct
in all material respects;
(b) immediately prior to the transfer of such Contract and any
related Equipment (or security interest therein) or Applicable Security to the
Depositor (and the Depositor's concurrent transfer thereof to the Trust) such
Contract was owned by [ ] or the [ ] Trust (and by the Depositor following the
transfer by [ ] or the [ ] Trust) free and clear of any adverse claim, other
than Permitted Liens; and immediately prior to the transfer of such Contract
(if a [ ] Contract) and any related Equipment (or security interest therein)
or Applicable Security by the applicable [ ] Financing Originator to [ ], such
Contract was owned by the applicable [ ] Financing Originator free and clear
of any adverse claim, other than with respect to Permitted Liens;
(c) the Contract is neither a Defaulted Contract nor a Delinquent
Contract;
(d) no provision of the Contract has been waived, altered or modified
in any material respect, except as indicated in the Contract File;
(e) the Contract is a valid and binding payment obligation of the
Obligor and is enforceable in accordance with its terms (except as may be
limited by applicable Insolvency Laws and the availability of equitable
remedies);
(f) the Contract is not subject to litigation, or to rights of
rescission, setoff, counterclaim or defense and, to [ ] or the Servicer's
knowledge, no such rights have been asserted or threatened with respect to the
Contract;
(g) the Contract, at the time it was made, had been originated in
compliance (in all material respects) with applicable law, and did not violate
the laws of the United States or any state in any material respect;
(h) (i) the Contract and any related Financed Item or interest
therein (other than Excluded Residual Investments) have not been sold,
transferred, assigned or pledged by the relevant Financing Originator, [ ] (in
respect of [ ] Contracts) or the [ ] Trust to any other Person (other than (a)
the sale of Contracts and any related financed or interest therein to [ ] or
to the Depositor and then the [ ] Trust and (b) the financed sale of Equipment
to an End-User effected through an End-User Contract), and (ii) if such
Contract finances Equipment, either: (A) such Contract is secured by a fully
perfected lien or ownership interest in favor of the relevant Financing
Originator or, in the case of Equipment relating to the [ ] Contracts, the
Depositor, on or in respect of the related Equipment (other than as
contemplated by the Minimum Value Filing Exception), or, if the Contract is a
Vendor Loan, the Vendor Loan is secured by a fully perfected lien or ownership
interest in favor of the relevant Financing Originator or the [ ] Trust in the
related Applicable Security, or (B) in the case of such a Contract secured by
a Vehicle, within 90 calendar days of the origination or acquisition of such
Contract by the relevant Financing Originator all applicable state
registration or recording procedures were initiated, and the Financing
Originator's interest in such Vehicle will be so noted or recorded within 180
days of such acquisition or origination, or a certificate of title or similar
evidence of recordation on which the Financing Originator's interest has been
noted has been obtained;
(i) if the Contract constitutes an "instrument" or "chattel paper"
for purposes of the UCC, there is not more than one "secured party's original"
counterpart of the Contract and such original counterpart is in the Contract
File;
(j) all filings (including filings of UCC financing statements)
necessary: (i) in respect of Contracts consisting of [ ] Contracts, to
evidence or perfect the conveyance or transfer of the relevant [ ] Financing
Originator's ownership interest in the [ ] Contract, and the [ ] Financing
Originator's corresponding interest in the related Equipment or Applicable
Security, as applicable, to [ ], and (ii) in respect of all Contracts (i.e.,
Contracts consisting of either [ ] Contracts, [ ] Contracts or [ ] Contracts),
to evidence or perfect the conveyance or transfer of [ ] or [ ] Trust's
ownership interest in the Contract, and [ ] corresponding interest in the
related Equipment or Applicable Security, as applicable, to the Depositor (as
well as the concurrent conveyance of such property hereunder, other than
ownership interests in Equipment, from the Depositor to the Trust), have been
made in all appropriate jurisdictions; provided, that UCC financing statement
filings with respect to Equipment or Applicable Security which name the
Financing Originator as secured party have not been amended to indicate either
[ ] (with respect to [ ] Contracts), the Depositor or the Trust as an assignee
(although separate UCC filings were made against the relevant Financing
Originator's interest in Applicable Security in each jurisdiction where a
related Vendor is located); and provided further, that only filings in the
States of [ ] and [ ] have been made in favor of the Trust as secured party
against the Depositor as debtor describing as collateral (among other things)
the Depositor's ownership interest in Equipment, in respect of the security
interest in Equipment owned by the Depositor which has been granted to the
Trust pursuant to Section 2.01 hereof.
(k) the Obligor is not, to [ ] knowledge, subject to bankruptcy or
other insolvency proceedings;
(l) the Obligor's billing address is in the United States or Puerto
Rico, and the Contract is a U.S. dollar-denominated obligation;
(m) the Contract does not require the prior written notification to
or consent of an Obligor or contain any other restriction on the transfer or
assignment of the Contract, other than (i) certain Contracts the Contract Pool
Principal Balance of which, in proportion to the Contract Pool Principal
Balance of all Contracts in the Contract Pool at the time of conveyance, is
not material, that require notifications of the assignment to the Obligor,
which notification will be given by the Servicer not more than 10 days
following the Closing Date (or Substitution Transfer Date in the case of a
Substitution Contract) (it being understood that if such notifications are not
so timely obtained, the affected Contract shall be deemed and treated for all
purposes of this Pooling Agreement and the other Transaction Documents as not
having complied with this criteria for an Eligible Contract as of the Closing
Date or Substitution Transfer Date, as the case may be), and (ii) certain
Contracts that require the consent of the related Obligor, which consent shall
have been obtained by the Servicer not later than 10 days following the
Closing Date or Substitution Transfer Date, as the case may be;
(n) either: (x) the obligations of the related Obligor under such
Contract are irrevocable and unconditional and non-cancelable (it being
understood that Contracts which are prepayable in accordance with their terms
shall not, by virtue of that fact alone, be deemed revocable, conditional or
cancelable) or, if not irrevocable and unconditional, have the benefit of a
Vendor Guarantee or (y) with respect to certain Leases with Lessees that are
governmental entities or municipalities, if such Lease is canceled in
accordance with its terms, either: (1) the Vendor that assigned such Lease to
the applicable Financing Originator is unconditionally obligated to repurchase
such lease from the Financing Originator for a purchase price not less than
the Contract Principal Balance of such Lease (as of the date of cancellation),
or (2) pursuant to the Purchase and Sale Agreement, [ ] has indemnified the
Depositor against such cancellation in an amount at least equal to the
Contract Principal Balance of such Lease (as of the date of cancellation),
less any amounts paid by the Vendor pursuant to clause (1);
(o) no selection procedure adverse to the interests of the Trust or
the Equity Certificateholder was used in selecting the Contract for the
Contract Pool;
(p) the Obligor under the Contract is required to maintain casualty
insurance or to self-insure with respect to the related Equipment in
accordance with Customary Policies and Procedures;
(q) the Contract constitutes chattel paper, an account, an instrument
or a general intangible, in each case as defined under the UCC;
(r) the Contract is not a "consumer lease" as defined in Section
2A-103(1)(e) of the UCC;
(s) if such Contract is a Lease, to the best knowledge of the
relevant Financing Originator, the Lessee thereunder has accepted and has had
reasonable opportunity to inspect the related Equipment;
(t) except as provided in clause (n) above, the Contract is not
subject to any guarantee by the Financing Originator, nor has the Financing
Originator established any specific credit reserve with respect to the related
Obligor;
(u) if such Contract is a Lease, such Lease is a "triple net lease"
under which the Obligor is responsible for the maintenance, taxes and
insurance with respect to the related Equipment in accordance with general
industry standards applicable to such item of Equipment;
(v) if such Contract is a Vendor Loan, such Vendor Loan is secured by
an Eligible Secondary Contract having an aggregate Discounted Contract Balance
for such Eligible Secondary Contract (determined as of the relevant Cut-off
Date for such Vendor Loan) not less than the outstanding principal amount of
such Vendor Loan (assuming the interest rate specified in such Vendor Loan is
the "Sale Discount Rate" for purposes of calculating such Discounted Contract
Balance);
(w) such Contract is not an obligation of the United States of
America or an agency, department, or instrumentality of the United States of
America;
(x) such Contract contains provisions customary to similar financing
agreements for Financed Items, which provisions are sufficient and enforceable
(except as may be limited by applicable Insolvency Laws and the availability
of equitable remedies) to enable the relevant Financing Originator (or its
assignees, including the [ ] Trust, the Depositor and the Trust) to realize
against the Financed Items related thereto (to the extent such Financed Items
secure or support the payment of the Contract);
(y) if the Obligor in respect of such Contract is a state or local
governmental entity or municipality, the conveyance of such a Contract under
and pursuant to the Transaction Documents does not violate applicable state or
municipal laws or regulations (if any) restricting or prohibiting the
assignment of claims against or obligations of such Obligor.
"Eligible Investments" means negotiable instruments or securities or
other investments: (a) which, except in the case of demand or time deposits,
investments in money market funds and Eligible Repurchase Obligations, are
represented by instruments in bearer or registered form or the ownership of
which is represented by book entries by a Clearing Agency or by a Federal
Reserve Bank in favor of depository institutions eligible to have an account
with such Federal Reserve Bank who hold such investments on behalf of their
customers, (b) which, as of any date of determination, mature by their terms
on or prior to the Payment Date immediately following such date of
determination (or mature on such other Business Day as the Rating Agencies may
approve), and (c) which evidence:
(i) direct obligations of, and obligations fully guaranteed
as to full and timely payment by, the United States of America (or by
any agency thereof to the extent such obligations are backed by the
full faith and credit of the United States of America);
(ii) demand deposits, time deposits or certificates of
deposit of depository institutions or trust companies incorporated
under the laws of the United States of America or any state thereof
and subject to supervision and examination by federal or state
banking or depository institution authorities; provided, however,
that at the time of the Trust's investment or contractual commitment
to invest therein, the commercial paper, if any, and short-term
unsecured debt obligations (other than such obligation whose rating
is based on the credit of a Person other than such institution or
trust company) of such depository institution or trust company shall
have a credit rating from each of Standard & Poor's and Moody's in
the Highest Required Investment Category granted by such Rating
Agency;
(iii) commercial paper, or other short term obligations,
having, at the time of the Trust's investment or contractual
commitment to invest therein, a rating in the Highest Required
Investment Category granted by each of Standard & Poor's and Moody's;
(iv) demand deposits, time deposits or certificates of
deposit that are fully insured by the FDIC;
(v) notes that are payable on demand or bankers' acceptances
issued by any depository institution or trust company referred to in
(ii) above;
(vi) investments in money market funds having, at the time
of the Trust's investment or contractual commitment to invest
therein, a rating of the Highest Required Investment Category from
each of Standard & Poor's and Moody's or having otherwise been
approved in writing by each Rating Agency;
(vii) time deposits with an entity the commercial paper of
which has, at the time of the Trust's investment or contractual
commitment to invest therein, a rating of the Highest Required
Investment Category granted by each of Standard & Poor's and Moody's;
(viii) Eligible Repurchase Obligations; and
(ix) any other negotiable instruments or securities or other
investments in which the investment by the Trust therein has been
approved in writing by each Rating Agency.
"Eligible Repurchase Obligations" means repurchase obligations with
respect to any security that is a direct obligation of, or fully guaranteed
by, the United States of America or any agency or instrumentality thereof the
obligations of which are backed by the full faith and credit of the United
States of America, in either case entered into with a depository institution
or trust company (acting as principal) described in clause (c)(ii) of the
definition of Eligible Investments.
"Eligible Secondary Contract" shall mean each Secondary Contract
(i) that satisfies all the criteria set forth in the
definition of "Eligible Contract" except clauses (b), (h) (with
respect to ownership by the Financing Originator of the Contract) and
(w) thereof, and except that the term "Obligor" shall mean "End-User"
in all such criteria;
(ii) with respect to which Secondary Contract and the
proceeds thereof the relevant Financing Originator (or, in the case
of [ ] Contracts, the [ ] Trust, as assignee) has a duly perfected
first priority lien; and
(iii) with respect to which: (A) if such Secondary Contract
secures a Vendor Loan constituting a [ ] Contract, the transfer of
the [ ] Financing Originator's security interest in such Secondary
Contract and the proceeds thereof to [ ], the transfer of [ ]
interest so acquired to the Depositor, and, if applicable, the
Depositor's transfer of its interest therein to the [ ] Trust and the
[ ] Trust's transfer of such interest back to the Depositor, is
effective to create in favor of the Depositor a lien therein and such
lien has been duly perfected, or (B) if the Secondary Contract
instead secures a Vendor Loan constituting an [ ] Contract, then the
transfer of [ ] security interest in such Secondary Contract and the
proceeds thereof to the Depositor, and if applicable, the Depositor's
transfer of its interest therein to the [ ] Trust and the [ ] Trust's
transfer of such interest back to the Depositor, is effective to
create in favor of the Depositor a lien therein and such lien has
been duly perfected.
"End-User" shall mean any party that uses the Financed Items pursuant
to an End-User Contract.
"End-User Contract" shall mean any CSA, Secured Note, Lease, IPA, or
other Financing Agreement covering Financed Items originated by an Originator.
"Equipment" means with respect to any Contract, the tangible assets
constituting "goods" within the meaning of the UCC, in each case financed or
leased by an Obligor pursuant to a Contract, or which otherwise provide
security for the payment of amounts payable thereunder.
"Equity Certificate" has the meaning specified in the Trust Agreement.
"Equity Certificateholder" means the Person in whose name the Equity
Certificate is registered in the Certificate Register.
"Event of Default" has the meaning specified in the Indenture.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
or supplemented from time to time.
"Excluded Amounts" means: (i) any collections on deposit in the
Collection Account or otherwise received by the Servicer on or with respect to
the Contract Pool or related Equipment, which collections are attributable to
any taxes, fees or other charges imposed by any Governmental Authority, (ii)
any collections representing reimbursements of insurance premiums or payments
for services that were not financed by the applicable Originator, (iii)
collections relating to security deposits, and (iv) collections representing
Late Charges, documentation fees, administrative charges or extension fees on
any Contract, or maintenance premiums in respect of related Equipment.
"Excluded Residual Investments" means Residual Investments, other
than Guaranteed Residual Investments.
"FDIC" shall mean the Federal Deposit Insurance Corporation, or any
successor thereto.
"Financed Items" means Equipment, Software, Services and other
property and services that are permitted to be financed under Contracts in
accordance with Customary Policies and Procedures of the applicable Financing
Originator.
"Financing Agreement" means each financing agreement covering
Financed Items, other than a CSA, a Secured Note, a Lease or an IPA.
"Financing Originator" means any of the following as of the Closing
Date: [ ].
"Governmental Authority" means the United States of America, any
state or other political subdivision thereof, and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of,
or pertaining to, government.
"Guaranteed Residual Investment" means each Residual Investment with
respect to which the Financing Originator may look to either the Vendor or to
the related Obligor on an End-User Contract constituting a Lease, and not just
the value of the related Equipment itself, to recover its full Residual
Investment.
"Highest Required Investment Category" means: (i) with respect to
ratings assigned by S&P, A-1+ for short-term instruments and AAA for long-term
instruments and (ii) with respect to ratings assigned by Moody's, A2 or P-1
for one month instruments, A1 or P-1 for three month instruments, Aa3 or P-1
for six month instruments and Aaa or P-1 for instruments with a term in excess
of six months.
"Holder" has the meaning specified in the Indenture.
"Indebtedness" means, with respect to any Person at any date, without
duplication: (a) all indebtedness of such person for borrowed money or for the
deferred purchase price of property or services (other than current
liabilities incurred in the ordinary course of business and payable in
accordance with customary trade practices) or which is evidenced by a note,
bond, debenture or similar instrument, (b) all obligations of such Person
under capital leases, (c) all obligations of such Person in respect of
acceptances or letters of credit issued or created for the account of such
Person, (d) all liabilities secured by any Lien on any property owned by such
Person even though such Person has not assumed or otherwise become liable for
the payment thereof, and (e) obligations of such Person under direct or
indirect guaranties in respect of, and obligations (contingent or otherwise)
to purchase or otherwise acquire, or otherwise to assure a creditor against
loss in respect of, indebtedness or obligations of others of the kinds
referred to in clauses (a) through (d) above.
"Indenture" means the Indenture, dated as of the date hereof, between
the Issuer and the Indenture Trustee, as amended, supplemented or otherwise
modified from time to time.
"Indenture Trustee" means the Person acting as Indenture Trustee
under the Indenture, its successors in interest and any successor trustee
under the Indenture.
"Independent", when used with respect to any specified Person, means
such a Person who: (i) is in fact independent of the Issuer, the Depositor or
the Servicer, (ii) is not a director, officer or employee of any Affiliate of
the Issuer, the Depositor or the Servicer, (iii) is not a person related to
any officer or director of the Issuer, the Depositor or the Servicer or any of
their respective Affiliates, (iv) is not a holder (directly or indirectly) of
more than 10% of any voting securities of the Issuer, the Depositor or the
Servicer or any of their respective Affiliates, and (v) is not connected with
the Issuer, the Depositor or the Servicer as an officer, employee, promoter,
underwriter, trustee, partner, director or person performing similar
functions.
"Ineligible Contract" has the meaning specified in Section 7.06.
"Initial Class A-1 Principal Amount" means $[ ].
"Initial Class A-2 Principal Amount" means $[ ].
"Initial Class A-3 Principal Amount" means $[ ].
"Initial Class A-4 Principal Amount" means $[ ].
"Initial Class A-5 Principal Amount" means $[ ].
"Initial Class B Principal Amount" means $[ ].
"Initial Class C Principal Amount" means $[ ].
"Initial Class D Principal Amount" means $[ ].
"Initial Contract Assets" has the meaning assigned in Section 2.01 of
the Purchase and Sale Agreement.
"Initial Contract Pool Principal Balance" is $[ ].
"Initial Contracts" means those Contracts conveyed to the Trust on
the Closing Date.
"Initial Cut-off Date" means [ ].
"Initial Principal Amount" means, when used in the context of a
reference to an individual Class of Notes, the initial principal amount
applicable to such Class as defined above.
"Insolvency Event" means, with respect to a specified Person: (a) the
filing of a decree or order for relief by a court having jurisdiction in the
premises in respect of such Person or any substantial part of its property in
an involuntary case under any applicable Insolvency Law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official for such Person or for any substantial part
of its property, or ordering the winding-up or liquidation of such Person's
affairs, and such decree or order shall remain unstayed and in effect for a
period of 60 consecutive days; or (b) the commencement by such Person of a
voluntary case under any applicable Insolvency Law now or hereafter in effect,
or the consent by such Person to the entry of an order for relief in an
involuntary case under such law, taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official for such Person
or for any substantial part of its property; or (c) or the making by such
Person of any general assignment for the benefit of creditors; or (d) the
failure by such Person generally to pay its debts as such debts become due; or
(e) the admission by such Person in writing of its inability generally to pay
its debts when the same become due; or (f) the taking of action by such Person
in furtherance of any of the foregoing.
"Insolvency Laws" means the Bankruptcy Code of the United States of
America and all other applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency, reorganization,
suspension of payments, or similar debtor relief laws from time to time in
effect affecting the rights of creditors generally.
"Insurance Policy" means, with respect to any Contract, an insurance
policy covering physical damage to or loss of the related Equipment.
"Insurance Proceeds" means, depending on the context, any amounts
payable or any payments made, to the Servicer (or applicable Financing
Originator) under any Insurance Policy.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time.
"Investment Earnings" means, the investment earnings (net of losses
and investment expenses) on amounts on deposit in the Collection Account, Note
Distribution Account and the Cash Collateral Account.
"IPA" means each installment payment agreement, including as
applicable, schedules, subschedules, supplements and amendments, pursuant to
which the relevant Originator financed the purchase or acquisition of
specified assets by an Obligor for specified monthly, quarterly, semiannual or
annual payments.
"Issuer" is defined in the preamble hereto.
"Late Charges" means any late payment fees paid by Obligors on
Contracts.
"Lease" means each agreement constituting a "lease" within the
meaning of Section 2A-103 of the UCC, and including, as applicable, schedules,
subschedules, supplements and amendments to a master lease, pursuant to which
the Originator, as lessor, leased specified assets to a Lessee at a specified
monthly, quarterly, semiannual or annual rental.
"Lessee" means, with respect to any Lease, the Obligor with respect
to such Lease.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
equity interest, participation interest, preference, priority or other
security agreement or preferential arrangement of any kind or nature
whatsoever, including, without limitation, any conditional transfer or other
title retention agreement, and any financing lease having substantially the
same economic effect as any of the foregoing.
"Liquidation Expenses" means, with respect to any Defaulted Contract,
the aggregate amount of all out-of-pocket expenses reasonably incurred by the
Servicer (including amounts paid to or expenses incurred by any subservicer,
other than subservicing fees, if any) in accordance with Customary Policies
and Procedures in connection with the repossession, refurbishing and
disposition of any related Equipment, and other out-of-pocket costs related to
the liquidation of any such Equipment, including reasonable attorneys fees
incurred in the attempted collection of any amount owing pursuant to such
Defaulted Contract, and including amounts determined by the Servicer in its
reasonable discretion as payable in respect of any sales, use, personal
property or other taxes assessed or to be assessed on repossessed or
liquidated Equipment.
"Liquidation Proceeds" means, with respect to a Defaulted Contract,
proceeds from the transfer, lease or re-lease of the related Financed Items,
Insurance Proceeds, and any other recoveries with respect to such Defaulted
Contract and the related Financed Items (including, without limitation,
amounts received pursuant to a Program Agreement), but net of Liquidation
Expenses, Late Charges, amounts payable to a Vendor in respect of (and in
amounts not exceeding) amounts previously paid by such Vendor in respect of
such Contract under Vendor recourse provisions, and amounts, if any, so
received that are required to be refunded to the Obligor on such Contract.
"Material Adverse Effect" means, with respect to any event or
circumstance, a material adverse effect on:
(i) the ability of [ ], [ ] any Financing Originator, the
[ ] Trust, the Depositor, the Trust or the Servicer to perform in all
material respects its obligations under this Agreement or any other
Transaction Document;
(ii) the validity or enforceability of this Agreement, any
other Transaction Document, or the Contracts, or the collectability
of the Contracts; or
(iii) the status, existence, perfection, priority or
enforceability of the Trust's interest in the Contracts and the other
Trust Assets.
"Material Modification" means a termination or release (including
pursuant to prepayment), or an amendment, modification or waiver, or
equivalent similar undertaking or agreement, by the Servicer with respect to a
Contract which would not otherwise be permitted under the standards and
criteria set forth in Sections 5.08, 5.09 and/or 5.10 hereof.
"Maturity Date" means, as applicable, the Class A-1 Maturity Date,
Class A-2 Maturity Date, Class A-3 Maturity Date, Class A-4 Maturity Date,
Class A-5 Maturity Date, Class B Maturity Date, Class C Maturity Date, or
Class D Maturity Date.
"Minimum Value Filing Exception" means the variation from the
relevant Financing Originator's normal policies and practices with respect to
filing UCC financing statements against an Obligor describing Equipment which
is the subject of a Contract, in each case as set forth in Exhibit J hereto.
"Monthly Report" has the meaning specified in Section 9.01.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., or any successor
thereto.
"Note" means any one of the notes of the Trust of any Class executed
and authenticated in accordance with the Indenture.
"Note Distribution Account" means the account established and
maintained as such pursuant to Section 7.01.
"Note Register" has the meaning given such term in Section 2.04 of
the Indenture.
"Noteholder" means any registered holder of a Note.
"[ ] Contract" means a Contract originated or acquired by [ ]
(including without limitation any Contract originated or acquired by [ ] and
transferred to the Depositor and by the Depositor to the [ ] Trust prior to
the Closing Date) but which is not a [ ] Contract.
"[ ] Contract Assets" means Contract Assets relating to [ ]
Contracts.
"[ ] Representations and Warranties" means the representations and
warranties set forth in Sections 3.02, of the Purchase and Sale Agreement.
"Obligor" means, with respect to any Contract, the Person or Persons
obligated to make payments with respect to such Contract, including any
guarantor thereof (and including, with respect to a Contract consisting of a
Vendor Loan, the Vendor obligated in respect of such Vendor Loan).
"Officer's Certificate" means, with respect to any Person, a
certificate signed by an authorized officer of such Person and delivered to
the party entitled to receipt thereof under any applicable Transaction
Document.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel (including internal counsel) for the Depositor or the Servicer and who
shall be reasonably acceptable to the Owner Trustee.
"Originator" means, with respect to each Contract, the party that is
the original lessor or financing party thereunder.
"Owner Trustee" means [ ], not in its individual capacity, but solely
as Owner Trustee under the Trust Agreement, its successors in interest and any
successor owner trustee under the Trust Agreement.
"Payment Date" shall mean the [ ] day of each calendar month or, if
such [ ] day is not a Business Day, the next succeeding Business Day, with the
first such Payment Date hereunder being [ ]
"Paying Agent" means any Person described as such in Section 7.04(b).
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Permitted Liens" means
(a) with respect to Contracts in the Contract Pool:
(i) Liens for state, municipal or other local taxes if such
taxes shall not at the time be due and payable or if the Depositor
shall currently be contesting the validity thereof in good faith by
appropriate proceedings and shall have set aside on its books
adequate reserves with respect thereto;
(ii) Liens in favor of [ ] created by a [ ] Financing
Originator pursuant to the Conveyancing Agreement, or Liens in favor
of the Depositor created pursuant to the Purchase and Sale Agreement
or Liens in favor of the [ ] Trust created pursuant to the [ ]
Pooling Agreement, in each case transferred to the Trust pursuant
hereto;
(iii) Liens in favor of the Trust created pursuant to this
Agreement; and
(iv) Liens in favor of the Indenture Trustee created
pursuant to the Indenture and/or this Agreement; and
(b) with respect to the related Equipment:
(i) materialmen's, warehousemen's, mechanics' and other
liens arising by operation of law in the ordinary course of business
for sums not due;
(ii) Liens for state, municipal or other local taxes if such
taxes shall not at the time be due and payable or if the Depositor
shall currently be contesting the validity thereof in good faith by
appropriate proceedings and shall have set aside on its books
adequate reserves with respect thereto;
(iii) Liens in favor of [ ] created by a [ ] Financing
Originator pursuant to the Conveyancing Agreement, or Liens in favor
of the Depositor created pursuant to the Purchase and Sale Agreement,
in each case transferred to the Trust pursuant hereto or Liens in
favor of the Depositor created pursuant to the [ ] Purchase and Sale
Agreement;
(iv) Liens in favor of the Trust created pursuant to this
Agreement;
(v) Liens in favor of an Originator which have been
transferred to the applicable Financing Originator and pursuant to
the Purchase and Sale Agreement by such Financing Originator to the
Depositor (through [ ] and the Conveyancing Agreement in the case of
[ ] Financing Originators, and through [ ], the Depositor and the [ ]
Trust and the [ ] Assignment in the case of the [ ] Contracts) and in
each case transferred to the Trust pursuant hereto;
(vi) Liens in favor of the Indenture Trustee crated pursuant
to the Indenture and/or this Agreement;
(vii) (A) interests in favor of [ ] (" ") which are subject
to the prior payment of all Obligor obligations in respect of
Scheduled Payments on the related Contract and which have been
transferred by [ ] along with the related Contract to its limited
purpose affiliate, [ ], and (B) interests in favor of a Vendor which
are subject to the prior payment of all Obligor obligations in
respect of Scheduled Payments on the related Contract; and
(viii) Liens granted by the End-Users which are subordinated
to the interest of the Trust in such Equipment.
"Person" means any individual, corporation, estate, partnership,
limited liability company, joint venture, association, joint stock company,
trust (including any beneficiary thereof), unincorporated organization or
government or any agency or political subdivision thereof.
"Plan" means an employee pension benefit plan which is covered by
Title IV of ERISA or subject to the minimum funding standards under Section
412 of the Code as to which the Servicer or any member of the Controlled Group
may have any liability.
"Pledged Revenues" means: (i) all Scheduled Payments on the Contracts
received on or after the Cut-Off Date (excluding the Excluded Amounts); (ii)
any Prepayments received on the Contracts on or after the Cut-Off Date (other
than
(a) in the case of a Lease, any portion thereof allocated to the
Depositor, or
(b) in the case of a Prepaid Contract for which a substitution has
been made in accordance with Section [ ] of the Pooling and Servicing
Agreement, that portion thereof to which the Depositor is entitled pursuant to
Section [ ]); (iii) the Purchase Amount of any Contracts purchased by [ ] in
accordance with Section [ ] of the Pooling and Servicing Agreement (other than
any portion thereof attributable in the case of a Lease to the Excluded
Residual Investment of the related Equipment); (iv) the amount paid by the
Depositor to purchase the Contracts pursuant to Section [ ] of the Pooling and
Servicing Agreement; (v) that portion of the Liquidation Proceeds received in
respect of any Contracts and the disposition of the related Equipment on or
after the Cut-Off Date and allocated to the Trust; and (vi) any earnings on
the investment of amounts credited to the Trust Accounts. Pledged Revenues
shall not include any amounts received with respect to any Excluded Residual
Investment.
"Pooling Agreement" means this Pooling and Servicing Agreement, as
amended, restated, supplemented or otherwise modified from time to time in
accordance with the terms hereof.
"Prepaid Contract" means any Contract that has terminated or been
prepaid in full prior to its scheduled expiration date (including because of a
Casualty Loss), other than a Defaulted Contract.
"Prepayment" means with respect to any Collection Period for any
Contract, a partial or full prepayment of amounts due and owing under such
Contract.
"Principal Amount" means, with respect to a Class of Notes, the
aggregate Initial Principal Amount thereof reduced by: (i) the aggregate
amount of any payments applied in reduction of such principal amount and (ii)
the aggregate amount of any payments then on deposit in the Note Distribution
Account, if any, for such Class of Notes established in accordance with the
Indenture and to be applied in reduction of such principal amount in
accordance with such Indenture.
"Principal Differential" means, with respect to any Payment Date, the
excess, if any, of: (i) the remainder, if any, of: (a) the Aggregate Principal
Amount of the Notes (prior to giving effect to the payment of principal on the
Notes on such Payment Date) minus (b) the lesser of: (1) the Contract Pool
Principal Balance as of the related Accounting Date for the preceding Payment
Date, minus the Contract Pool Principal Balance as of the related Accounting
Date for such Payment Date, or (2) the Related Collection Period Pledged
Revenue remaining after the payment of amounts owing to the Servicer and the
payment of all interest due on the Notes on such Payment Date, over (ii) the
aggregate of the Required Payoff Amounts for all Contracts as of the related
Accounting Date.
"Principal Deficiency Amount" means, with respect to any Payment
Date, the lesser of: (a) the Current Realized Losses for the related
Collection Period or (b) the excess, if any, of: (i) the Principal Amount of
the Notes (after giving effect to all distributions of principal from the
Available Pledged Revenues (determined without regard to the last sentence of
the definition thereof) on such Payment Date), over (ii) the aggregate of the
Required Payoff Amounts for all Contracts as of the last day of the related
Collection Period.
"Program Agreement" means each vendor finance program agreement
pursuant to which End-User Contracts originated by a Vendor are assigned to
the applicable Financing Originator.
"Prospectus" has the meaning given such term in the Underwriting
Agreement.
"Purchase Amount" means, with respect to Ineligible Contracts, on any
date of determination, the aggregate Required Payoff Amount for such
Ineligible Contracts as of the related Accounting Date. "Purchase and Sale
Agreement" means the Purchase and Sale Agreement dated as of [ ] among [ ], [
] and the Depositor, as the same may be amended, supplemented, restated or
otherwise modified from time to time.
"Purchase Price" means, with respect to any Contract conveyed on the
Closing Date (or any Subsequent Transfer Date, as applicable), an amount equal
to the Contract Principal Balance of such Contract as of the applicable
Cut-off Date.
"Qualified Eligible Investments" means Eligible Investments acquired
by the Indenture Trustee in its name and in its capacity as Indenture Trustee,
which are held by the Indenture Trustee in the Trust Accounts and with respect
to which: (a) the Indenture Trustee has noted its interest therein on its
books and records, and (b) the Indenture Trustee has purchased such
investments for value without notice of any adverse claim thereto (and, if
such investments are securities or other financial assets or interests
therein, within the meaning of Section 8-102 of the UCC as enacted in the
State of New York, without acting in collusion with a securities intermediary
in violating such securities intermediary's obligations to entitlement holders
in such assets, under Section 8-504 of such UCC, to maintain a sufficient
quantity of such assets in favor of such entitlement holders), and (c) either:
(i) such investments are in the possession of the Indenture Trustee, or (ii)
such investments: (A) if certificated securities and in bearer form, have been
delivered to the Indenture Trustee, or in registered form, have been delivered
to the Indenture Trustee and either registered by the issuer in the name of
the Indenture Trustee or endorsed by effective endorsement to the Indenture
Trustee or in blank; (B) if uncertificated securities, the ownership of which
has been registered to the Indenture Trustee on the books of the issuer
thereof (or another person, other than a securities intermediary, either
becomes the registered owner of the uncertified security on behalf of the
Indenture Trustee or, having previously become the registered owner,
acknowledges that it holds for the Indenture Trustee); or (C) if securities
entitlements (within the meaning of Section 8-102 of the UCC as enacted in the
State of New York) representing interests in securities or other financial
assets (or interests therein) held by a securities intermediary (within the
meaning of said Section 8-102), a securities intermediary indicates by book
entry that a security or other financial asset has been credited to the
Indenture Trustee's securities account with such securities intermediary. Any
such Qualified Eligible Investment may be purchased by or through the
Indenture Trustee or any of its Affiliates.
"Qualified Institution" means: (a) the corporate trust department of
the Indenture Trustee or (b) a depository institution organized under the laws
of the United States of America or any one of the states thereof or the
District of Columbia (or any domestic branch of a foreign bank): (i) (A) which
has (or the parent corporation of which has) either: (1) a long-term unsecured
debt rating acceptable to the Rating Agencies or (2) a short-term unsecured
debt rating or certificate of deposit rating acceptable to the Rating Agencies
or (B) which is otherwise acceptable to the Rating Agencies and (ii) whose
deposits are insured by the FDIC.
"Rating Agency" means each of S&P and ▇▇▇▇▇'▇, so long as such
Persons maintain a rating on the Notes; and if none of S&P or ▇▇▇▇▇'▇, no
longer maintains a rating on the Notes; such other nationally recognized
statistical rating organization selected by the Depositor.
"Rating Agency Condition" means, with respect to any action or series
of related actions or proposed transaction or series of related proposed
transactions, that each Rating Agency shall have notified the Depositor and
the Owner Trustee and the Indenture Trustee in writing that such action or
series of related actions or the consummation of such proposed transaction or
series of related transactions will not result in a Ratings Effect.
"Ratings Effect" means, with respect to any action or series of
related actions or proposed transaction or series of related proposed
transactions, a reduction or withdrawal of the rating of any outstanding Class
with respect to which a Rating Agency has previously issued a rating as a
result of such action or series of related actions or the consummation of such
proposed transaction or series of related transactions.
"Record Date" means, with respect to any Payment Date, the calendar
day immediately preceding such Payment Date.
"Related Collection Period Pledged Revenues" means, with respect to
any Payment Date, the amount of Pledged Revenues in the Collection Account as
of the Deposit Date which were received by the Servicer during the related
Collection Period, including all Liquidation Proceeds (other than in respect
of Excluded Residual Investment) so received by excluding any Purchase
Amounts.
"Replaced Assets" has the meaning assigned such term in Section 2.04.
"Replaced Contracts" has the meaning assigned such term in
Section 2.04.
"Reportable Event" means a reportable event as defined in Section
4043 of ERISA and the regulations issued under such section, with respect to a
Plan, excluding, however, such events as to which the PBGC has by regulation
waived the requirement of Section 4043(a) of ERISA that it be notified within
30 days of the occurrence of such event, provided, however, that a failure to
meet the minimum funding standard of Section 412 of the Code and of Section
302 of ERISA shall be a Reportable Event regardless of the issuance of any
such waiver of the notice requirement in accordance with either Section
4043(a) of ERISA or Section 412(d) of the Code.
"Required Holders" means: (i) prior to the payment in full of the
Class A Notes Outstanding, Class A-1 Noteholders, Class A-2 Noteholders, Class
A-3 Noteholders, Class A-4 Noteholders and/or Class A-5 Noteholders holding
Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4 Notes and/or
Class A-5 Notes evidencing more than 66 2/3% of the Aggregate Principal Amount
of all Class A Notes Outstanding, (ii) from and after the payment in full of
the Class A Notes Outstanding, Holders of Class B Notes holding Class B Notes
evidencing more than 66 2/3% of the Aggregate Principal Amount of all Class B
Notes Outstanding, (iii) from and after the payment in full of the Class B
Notes Outstanding, Holders of Class C Notes holding Class C Notes evidencing
more than 66 2/3% of the Aggregate Principal Amount of all Class C Notes
Outstanding, and (iv) from and after the payment in full of the Class C Notes
Outstanding, Holders of Class D Notes holding Class D Notes evidencing more
than 66 2/3% of the Aggregate Principal Amount of all Class D Notes
Outstanding.
"Required Payoff Amount" means, with respect to any Collection Period
for a Contract, the sum of: (i) the Scheduled Payment due in such Collection
Period, together with any Scheduled Payments due in prior Collection Periods
but not yet received, plus (ii) the Contract Principal Balance of such
Contract (after taking into account the Scheduled Payment due in such
Collection Period whether or not received).
"Requirements of Law" for any Person means the certificate of
incorporation or articles of association and by-laws or other organizational
or governing documents of such Person, and any law, treaty, rule or
regulation, or order or determination of an arbitrator or Governmental
Authority, in each case applicable to or binding upon such Person or to which
such Person is subject, whether federal, State or local (including, without
limitation, usury laws, the Federal Truth in Lending Act and Regulation Z and
Regulation B of the Board of Governors of the Federal Reserve System).
"Required Cash Collateral Amount" means: (i) with respect to any
Payment Date on or prior to the Payment Date occurring in [ ], an amount equal
to $[ ], and (ii) with respect to any Payment Date thereafter, an amount equal
to the greater of: (a) the sum of: (1) [ ]% of the Contract Pool Principal
Balance for such Payment Date, plus (2) the excess, if any of: (A) the
Aggregate Principal Amount of the Notes (after giving effect to all
distributions of principal on such Payment Date) over (B) the Contract Pool
Principal Balance for such Payment and (b) $[ ]; provided, that in no event
will the Required Cash Collateral Amount exceed the Aggregate Principal Amount
of the Notes.
"Residual Investment" means, with respect to certain Leases, any
funds that the Financing Originator shall have advanced against all or any
portion of the anticipated residual value of the leased Equipment upon the
expiration of such Lease in accordance with its terms, and in excess of the
discounted present value of the rental payments due under such Lease.
"Responsible Officer" means, with respect to the Owner Trustee, any
officer in its Corporate Trust Administration Department (or any similar group
of a successor Owner Trustee) customarily performing functions similar to
those performed by persons who at the time shall be such officers,
respectively, or to whom a corporate trust matter is referred because of
knowledge of, familiarity with, and authority to act with respect to a
particular matter.
"Scheduled Payment" means, with respect to any Contract, the monthly
or quarterly or semi-annual or annual rent or financing (whether principal or
principal and interest) payment or other payment scheduled to be made by the
related Obligor under the terms of such Contract (or, if applicable, from a
Vendor or Obligor with respect to any Guaranteed Residual Investment); it
being understood that Scheduled Payments do not include any Excluded Amount or
Excluded Residual Investment but does not include Guaranteed Residual
Investment.
"Schedule of Contracts" means the schedule of Contracts which are
conveyed to the Trust pursuant to the related Assignment Agreement, executed
and delivered on of the Closing Date, which schedule shall identify by any
reasonable means or designation the applicable Financing Originator with
respect to each Contract identified in such Schedule, and which shall
otherwise be substantially in the form attached hereto as Exhibit C. Such
Schedule shall be supplemented from time to time: (a) by each subsequent
Substitution Schedule of Contracts with respect to each Substitution Transfer
Agreement and related Substitution Transfer, which Schedules of Contracts
shall be deemed incorporated and made a part of the original Schedule of
Contracts on Exhibit C hereto; and (b) by the Servicer from time to time to
reflect the release by and removal from the Trust Assets of: (i) Contracts
released in connection with: (A) in respect of a Contract becoming a Prepaid
Contract in accordance herewith or having its final Scheduled Payment paid in
full in accordance with the Contract, or (B) in respect of a repurchase from
the Trust through payment of a Purchase Amount, and (ii) Replaced Contracts.
The comprehensive Schedule of Contracts is to be maintained by the Servicer
(with copies thereof, as the same shall be supplemented or amended as
described above, to be provided promptly to the Owner Trustee). With respect
to the Closing Date Transfer Agreement (or Substitution Transfer Agreement, as
applicable), "Schedule of Contracts" shall mean the schedule attached thereto
identifying the Contracts being conveyed thereby.
"Schedule of Representations" means the Schedule of Representations
and Warranties set forth on Exhibit G hereto.
"Secondary Contract" shall mean, with respect to a Vendor Loan, each
End-User Contract securing such Vendor Loan.
"Secured Note" means each promissory note with a related security
interest evidenced by written agreement, pursuant to which the purchase of
specified assets by an Obligor or End-User is financed for specified monthly,
quarterly, semiannual or annual payments.
"Securities" means the Notes and the Certificate, or any of them.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
"Securityholders" means the Holders of the Notes or the Certificate.
"Servicer" means initially [ ], until any Successor Servicer is
appointed pursuant to Article VIII hereof, and thereafter, means the Successor
Servicer so appointed.
"Servicer Advance" means, with respect to any Payment Date, the
amounts, if any, deposited by the Servicer in the Collection Account for such
Payment Date in respect of Scheduled Payments pursuant to Section 5.14 hereof.
"Servicer Default" has the meaning given such term in Section 8.01.
"Services" means, in connection with the financing of Software by an
Originator, the support and consulting services related to such Software, the
procurement of which was also financed by such Originator pursuant to a
Contract.
"Servicing Fee" has the meaning specified in Section 5.18 hereof.
"Servicing Fee Percentage" means [ ]%.
"Servicing Officer" means any officer of the Servicer involved in, or
responsible for, the administration and servicing of Contracts.
"Servicing Standard" means, with respect to the servicing and
collection activities of the Servicer concerning the Contract Assets, the
conduct of such activities with reasonable care, using that degree of skill
and attention that the relevant Financing Originator for such Contract Assets
exercises with respect to all comparable contracts and related assets that it
services for itself or others, and in accordance with Customary Policies and
Procedures and applicable law.
"Servicing Transfer" is defined in Section 8.02(b).
"Software" means the computer software programs financed or leased by
an Obligor pursuant to a Contract.
"Solvent" means, as to any Person at any time, that: (a) the fair
value of the Property of such Person is greater than the amount of such
Person's liabilities (including disputed, contingent and unliquidated
liabilities) as such value is established and liabilities evaluated for
purposes of Section 101(31) of the Bankruptcy Code; (b) the present fair
saleable value of the Property of such Person in an orderly liquidation 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 is able to realize upon its Property and pay its
debts and other liabilities (including disputed, contingent and unliquidated
liabilities) as they mature in the normal course of business; (d) 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 (e) such Person is not engaged in business or a transaction, and
is not about to engage in a business or a transaction, for which such Person's
property would constitute unreasonably small capital.
"S&P" means Standard & Poor's Ratings Service, a division of The
McGraw Hill Companies, or any successor thereto.
"State" means any one of the ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, the trust territories of the United States, or the District of
Columbia.
"Subsidiary" means with respect to a Person, any corporation or other
entity of which securities or other ownership interests (whether directly or
indirectly in connection with contract rights) having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by such Person.
"Substitute Contract" means any Contract conveyed, assigned and
transferred by the Depositor or [ ] to the Trust pursuant to Section 2.04.
"Substitute Contract Assets" means Contract Assets relating to
Substitute Contracts.
"Substitute Contract Qualification Conditions" means, with respect to
any Substitute Contract being transferred to the Trust pursuant to Section
2.04, each of the following:
(c) the accuracy of each of the following statements as of the
related Cut-off Date for such Contract:
(i) the Contract Principal Balance of such Substitute
Contract is not less than that of the related Replaced Contract[s];
(ii) no adverse selection procedure shall have been employed
in the selection of such Substitute Contract from the Financing
Originator's portfolio;
(iii) each such Substitute Contract satisfied the criteria
set forth in the definition of Eligible Contract herein; and
(iv) if the Replaced Contract for which such Substitute
Contract is being substituted was a [ ] Contract, then such
Substitute Contract is itself a [ ] Contract, and if such Replaced
Contract is an [ ] Contract, then such Substitute Contract is itself
an [ ] Contract; and
(d) with respect to any such Substitute Contract which is replacing a
Replaced Contract of the type described in subclause (i) of the definition of
Substitution Event (a "Type"), the condition that after giving effect to such
transfer, the Contract Pool Principal Balance of all Substitute Contracts
transferred to the Trust since the Closing Date in respect of Replaced
Contracts of the same Type shall not exceed 10% of the Contract Pool Principal
Balance as of the Initial Cut-off Date.
"Substitute Transferred Assets" has the meaning assigned such term in
Section 2.04.
"Substitution Assignment Agreement" means, with respect to any
Substitute Contracts, the agreement between [ ] and the Depositor pursuant to
which [ ] transfers the identified Substitute Contracts to the Depositor, the
form of which is attached to the Purchase and Sale Agreement as Exhibit B.
"Substitution Cut-off Date" means the date specified as such for the
relevant Substitute Contracts, in the related Substitution Transfer Agreement.
"Substitution Event" means, with respect to any transfer of a related
Substitute Contract to the Trust under Section 2.04, the occurrence of any of
the following: (a) one or more Contracts identified in the related
Substitution Notice as being an intended Replaced Contract with respect to
such Substitute Contract, has become a Defaulted Contract, (b) one or more
Contracts identified in the related Substitution Notice as being an intended
Replaced Contract with respect to such Substitute Contract, has been subjected
to a Material Modification, (c) one or more Contracts identified in the
related Substitution Notice as being an intended Replaced Contract with
respect to such Substitute Contract, has become an Ineligible Contract, or (d)
one or more Contracts identified in the related Substitution Notice as being
an intended Replaced Contract with respect to such Substitute Contract, has
become a Prepaid Contract and the Trust has not yet received the related
Prepayment.
"Substitution Notice" means, with respect to any transfer of
Substitute Contracts to the Trust pursuant to Section 2.04 (and the applicable
Financing Originator's corresponding conveyance and assignment of such
Substitute Contracts), a notice, which shall be given at least five days prior
to the related Substitution Transfer Date, identifying the Substitute
Contracts to be transferred, the Contract Principal Balance of such Substitute
Contracts and the related Substitution Event (with respect to an identified
Contract or Contracts then in the Contracts Pool, which will upon such
substitution become a Replaced Contract) to which such Substitute Contract
relates, with such notice to be signed both by the Depositor and the
applicable Financing Originator[s].
"Substitution Schedule of Contracts" means a schedule or list,
substantially in the form of the initial Schedule of Contracts delivered on
the Closing Date, but listing each Substitute Contract being transferred to
the Trust pursuant to a related Substitution Transfer Agreement, as well as
the related Replaced Contracts being removed from the existing Contract Pool
by virtue of such substitution.
"Substitution Transfer Agreement" means the agreement identified as
such in Section 2.04 hereof.
"Substitution Transfer Date" means any date on which Substitute
Contracts are transferred to the Trust.
"Successor Servicer" has the meaning given such term in Section
8.02(b).
"Tax Opinion" means, with respect to any action, an Opinion of
Counsel to the effect that, for federal income tax purposes: (i) following
such action the Trust will not be deemed to be an association (or publicly
traded partnership) taxable as a corporation, (ii) following such action the
Trust will be disregarded as a separate entity from the Depositor, and (iii)
such action will not affect the tax characterization as debt of Notes of any
outstanding Class issued by the Trust for which an Opinion of Counsel has been
provided that such Notes are debt.
"Total Principal Payment Amount" means, with respect to any Payment
Date, the difference between: (a) the aggregate outstanding principal of all
Classes of Notes and (b) the Contract Pool Principal Balance as of the last
day of the Collection Period immediately preceding such Payment Date;
provided, that the amount referred to in clause (b) shall be deemed to be zero
on any Payment Date on which the Contract Pool Principal Balance is less than
$1,000,000.
"[ ]" has the meaning assigned in the preamble hereto.
"[ ] Assignment" has the meaning given such term in the Conveyancing
Agreement.
"[ ] Assignment Date" has the meaning given such term in the
Conveyancing Agreement.
"[ ] Contract" has the meaning given such term in the Conveyancing
Agreement.
"[ ] Contract Assets" has the meaning given such term in the
Conveyancing Agreement.
"[ ] Contract File" has the meaning given such term in the
Conveyancing Agreement.
"[ ] Financing Originator" means the Financing Originators (other
than [ ]) in each case in the capacity of a [ ] Financing Originator party to
the Conveyancing Agreement with [ ].
"Transaction Documents" means this Agreement, the Transfer Agreement,
any Substitution Transfer Agreement, the Conveyancing Agreement, any [ ]
Assignment, the Purchase and Sale Agreement, any Assignment Agreement, the
Trust Agreement, the Administration Agreement, the Indenture, the Cash
Collateral Account Agreement and the Underwriting.
"Transfer Agreement" means, the Transfer Agreement dated the Closing
Date between the Depositor and the Trust pursuant to which the Depositor
conveys and assigns the Contract and other related Transferred Assets to the
Trust, in the form attached hereto as Exhibit A.
"Transferred Assets" means with respect to any Contracts (including
Substitute Contracts) conveyed or being conveyed to the Trust pursuant to this
Agreement, all right and interest of the Depositor in, to and under the
following:
(i) such Contracts and other related Contract Assets
(subject to the proviso below);
(ii) related rights of the Depositor under the Purchase and
Sale Agreement and related Assignment Agreement (or Substitution
Assignment Agreement, as applicable) and the [ ] Assignment,
including, without limitation, in respect of the obligation of [ ] to
repurchase or substitute for such Contracts under certain
circumstances as specified therein; and
(iii) rights under the Transfer Agreement and each
Substitution Transfer Agreement; and
(iv) all income from and proceeds of the foregoing;
provided, that Transferred Assets shall not include any title to or ownership
interest in the Equipment related to such Contracts (although security
interests in such Equipment established pursuant to the related Contract, and
proceeds thereof, shall constitute Transferred Assets), and provided further,
that the security interest granted by the Depositor pursuant to Section 2.01
hereof in related Equipment owned by it, shall constitute part of Transferred
Assets.
"Trust" means the trust created by the Trust Agreement, the assets
and property of which consists of the Trust Assets.
"Trust Accounts" means, collectively, the Collection Account, the
Cash Collateral Account and the Note Distribution Account, or any of them.
"Trust Account Property" means the Trust Accounts, all amounts and
investments held from time to time in any Trust Account (whether in the form
of deposit accounts, physical property, book-entry securities, uncertificated
securities or otherwise), and all proceeds of the foregoing.
"Trust Agreement" means the Trust Agreement, dated as of [ ], between
the Depositor and the Owner Trustee, as amended, restated, supplemented or
otherwise modified from time to time.
"Trust Assets" has the meaning given to such term in the Trust
Agreement.
"Trust Estate" shall have the meaning specified in the Trust
Agreement.
"Trustees" means the Owner Trustee and the Indenture Trustee, or any
of them individually as the context may require.
"UCC" means the Uniform Commercial Code as enacted in New York;
provided, however, in the event that, by reason of mandatory provisions of
law, any and all of the attachment, perfection or priority of the Lien of the
Trust in and to the Trust Assets or the Lien of the Indenture Trustee in and
to the Collateral is governed by the Uniform Commercial Code as in effect in a
jurisdiction other than the State of New York, the term UCC shall mean the
Uniform Commercial Code as in effect in such other jurisdiction for purposes
of the provisions hereof relating to such attachment, perfection or priority
and for purposes of definitions related to such provisions.
"UCC Filing Locations" means the States of [ ] and [ ] and each other
State in which the Servicer maintains the Contract Files related to Contracts
in the Contracts Pool (as of the Closing Date, the State of [ ], and each
State in which a Vendor which is an Obligor on a Vendor Loan is located (as
defined in the UCC in such State)).
"Uncollectible Advance" means with respect to any Determination Date
and any Contract, the amount, if any, advanced by the Servicer pursuant to
Section 5.14 which the Servicer has as of such Determination Date determined
in good faith will not be ultimately recoverable by the Servicer.
"Underwriting Agreement" means the Underwriting Agreement, dated [ ]
among [ ] (as an underwriter thereunder and as representative of the
underwriters) and the Depositor.
"Unreimbursed Servicer Advances" means, at any time, the amount of
all previous Servicer Advances (or portions thereof) as to which the Servicer
has not been reimbursed as of such time pursuant to Section 7.05 and which the
Servicer has determined in its sole discretion are Uncollectible Advances, and
with respect to which the Servicer has given a written certification to such
effect to the Owner Trustee (which certification may take the form of an entry
on a Monthly Report identifying Unreimbursed Servicer Advances).
"United States" means the United States of America.
"Vehicle" means any motor vehicle, the transfer of interests in which
is governed by a state certificate of title or registry system.
"Vendor" means, with respect to a Contract, the equipment
manufacturer, dealer or distributor, or software licensor or distributor, or
other Person that provided financing under such Contract in connection with
the acquisition or use by an End-User of such party's Equipment, Software,
Services or other products.
"Vendor Agreements" means the collective reference to Vendor
Assignments and Program Agreements.
"Vendor Assignment" means each assignment agreement pursuant to which
an individual End-User Contract originated by a Vendor is assigned by such
Vendor to the Financing Originator.
"Vendor Guarantee" means the irrevocable obligation of a Vendor to
pay to the Financing Originator the aggregate outstanding principal amount of
a Contract which has been canceled by the related Obligor pursuant to the
terms of such Contract.
"Vendor Loan" means a limited recourse loan agreement payable by a
Vendor and secured by the Vendor's interest in Secondary Contracts and by the
Equipment, if any, related thereto.
"[ ] Assignment" means the Release and Assignment instrument dated [
], in the form attached hereto as Exhibit A-1, executed by the [ ] Trust
conveying, assigning and releasing the [ ] Contract Assets to the Depositor.
"[ ] Contract Assets" means the Contract Assets pertaining to the [ ]
Contracts. "[ ] Contracts" means Contracts conveyed by the [ ] Trust to the
Depositor pursuant to the [ ] Assignment, as listed in the Schedule of
Contracts attached to the [ ] Assignment.
"[ ] Trust" means the [ ] Equipment Trust -- [ ] Series created and
existing pursuant to the Trust Agreement dated as of [ ] by and between the
Depositor and [ ] as Owner Trustee.
"[ ] Pooling Agreement" means the Pooling and Contribution Agreement
dated as of [ ] by and among the [ ] Trust, the Depositor, and [ ].
"Vice President" of any Person means any vice president of such
Person, whether or not designated by a number or words before or after the
title "Vice President," who is a duly elected officer of such Person.
"Voting Power" means, with respect to any outstanding membership
interest of the Depositor, the power (expressed as a percentage) represented
by such membership interest of the aggregate voting power of all outstanding
membership interests of the Depositor having ordinary voting power, including
the power to vote for election of members of the Board of Directors (and, if
any class thereof has power to designate members of the Board of Directors or
any special committee thereof, the power so to designate).
Section 1.02 Usage of Terms. With respect to all terms in this
Agreement, the singular includes the plural and the plural the singular; words
importing any gender include the other genders; references to "writing"
include printing, typing, lithography and other means of reproducing words in
a visible form; references to agreements and other contractual instruments
include all amendments, modifications and supplements thereto or any changes
therein entered into in accordance with their respective terms and not
prohibited by this Agreement; references to Persons include their permitted
successors and assigns; and the term "including" means "including without
limitation."
Section 1.03 Section References. All section references, unless
otherwise indicated, shall be to Sections in this Agreement.
Section 1.04 Accounting Terms. All accounting terms used but not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles in the United States.
ARTICLE II
FUNDINGS OF TRUST; TRANSFERS OF CONTRACTS
Section 2.01 Creation and Funding of Trust; Transfer of Transferred
Assets to Trust. (a) The Trust shall be created pursuant to the terms and
conditions of the Trust Agreement, upon the execution and delivery of the
Trust Agreement and the filing by the Owner Trustee of an appropriately
completed Certificate of Trust under the Business Trust Statute. The
Depositor, as settlor of the Trust, shall fund and convey assets to the Trust
pursuant to the terms and provisions hereof. The Trust shall be administered
pursuant to the provisions of this Agreement, the Administration Agreement and
the Trust Agreement for the benefit of the Noteholder and the Equity
Certificateholder. Each of the Owner Trustee and the Administrator (as defined
in the Administration Agreement) is hereby specifically recognized by the
parties hereto as empowered to conduct business dealings on behalf of the
Trust in accordance with the terms hereof and of the Trust Agreement and
Administration Agreement.
(b) Subject to the terms and conditions set forth herein, on the
Closing Date, the Depositor shall, transfer, assign, set over and otherwise
convey to the Trust by execution of the Transfer Agreement, without recourse
(other than as expressly provided herein): (i) all the right and interest of
the Depositor in and to the Contracts and related Transferred Assets
identified in such Transfer Agreement, (ii) the remittances, deposits and
payments made into the Collection Account from time to time and amounts in the
Collection Account from time to time (and any investments of such amounts),
and (iii) all proceeds and products of the foregoing.
(c) The parties hereto hereby agree and acknowledge that title to or
ownership of any related Equipment shall not be transferred to the Trust upon
such conveyance and that the Depositor shall retain its ownership interest (to
the extent the same has been so conveyed to the Depositor pursuant to the
Purchase and Sale Agreement and Assignment Agreements) in such Equipment
(provided, that the parties agree and intend that any mere security interest,
as opposed to title or ownership interest, in the related Equipment which
secures the Contract pursuant to the terms thereof, is being assigned and
conveyed as part of the Transferred Assets in accordance with the definition
thereof). The Depositor and the Trust further intend and agree that, except as
described in the preceding sentence with respect to ownership interests in
related Equipment, any such transfer is intended to be a conveyance and
transfer of ownership of the related Transferred Assets (or Substitute
Transferred Assets conveyed as described in Section 2.04 below) and that such
Transferred Assets shall not be part of the Depositor's estate in the event of
the filing of a bankruptcy petition by or against the Depositor under any
bankruptcy law. In the event, however, that notwithstanding such intent and
agreement, a transfer and assignment contemplated hereby and in the Transfer
Agreement (or Substitution Transfer Agreement, as applicable) is determined
not to be a conveyance of ownership, this Agreement and the Transfer Agreement
(or Substitution Transfer Agreement, as applicable) shall be deemed to
constitute the Depositor's grant to the Trust of a perfected first priority
security interest in such Transferred Assets, and this Agreement and the
Transfer Agreement (or Substitution Transfer Agreement, as applicable),
collectively, shall constitute a security agreement under applicable law,
securing the related obligations of the Trust to the Noteholder and the Equity
Certificateholder, in the order and priorities, and subject to the other terms
and conditions of, this Agreement and the other Transaction Documents,
together with such other obligations or interests as may arise hereunder and
thereunder with respect to such Transferred Assets in favor of the parties
thereto.
(d) In furtherance of and not in limitation of any of the foregoing,
the Depositor with respect to each item of Equipment owned by it as described
above, by execution and delivery of this Agreement and the Transfer Agreement
(or Substitution Transfer Agreement, as applicable), hereby and thereby on and
as of the Closing Date (or Substitution Transfer Date, as applicable) grants
to the Trust a security interest in such item of owned Equipment, securing in
each case an amount payable by the Trust in respect of the Notes corresponding
to the Contract Principal Balance from time to time of the related Contract;
it being understood, however, that: (i) recourse to such Equipment in
realization of the benefits of such security interest shall only occur if the
related Contract has become a Defaulted Contract, and (ii) the application of
Liquidation Proceeds realized therefrom shall be governed in accordance with
the provisions hereof generally applicable to such Pledged Revenue and
allocation in accordance with the Allocation Criteria.
Section 2.02 Conditions to Transfers. The Depositor shall transfer to
the Trust the Contracts and other Transferred Assets described in Section 2.01
above only upon the satisfaction of each of the following conditions on or
prior to the Closing Date and shall be deemed to have represented in respect
of the Closing Date that all such conditions are satisfied upon the
Depositor's delivery of the Transfer Agreement:
(a) the Depositor shall have delivered to the Owner Trustee on behalf
of the Trust the duly executed Transfer Agreement, which shall include a
Schedule of Contracts listing the Contracts being transferred on the Closing
Date;
(b) [ ] shall have delivered and the [ ] Trust shall have delivered
to the Depositor and the Owner Trustee on behalf of the Trust a duly executed
Assignment Agreement (in the case of [ ]) and the [ ] Assignment (in the case
of the [ ] Trust) with respect to the Contracts being conveyed by them,
respectively, on the Closing Date;
(c) A letter from a nationally recognized accounting firm, addressed
to the Depositor and stating that such firm has reviewed a sample of the
Initial Contracts and performed specific procedures for such sample with
respect to certain contract terms and which identifies those Initial Contracts
which do not conform;
(d) Copies of resolutions of the Board of Directors of [ ], the
Servicer and the Depositor or of the Executive Committee of the Board of
Directors of [ ], the Servicer and the Depositor approving the execution,
delivery and performance of this Agreement and the other Transaction Documents
to which any of them is a party, as applicable, and the transactions
contemplated hereunder and thereunder, certified in each case by the Secretary
or an Assistant Secretary of [ ], the Servicer and the Depositor;
(e) Officially certified, recent evidence of due incorporation or
formation, as the case may be and good standing of each of [ ] and the
Depositor under the laws of Delaware;
(f) Evidence of proper filing with appropriate officers in the UCC
Filing Locations of UCC financing statements executed by [ ], as debtor,
naming the Depositor as secured party (and the Owner Trustee as assignee) and
identifying the Contract Assets as collateral; evidence of proper filing with
appropriate officer in the UCC Filing Locations of a UCC partial release
identifying the [ ] Contracts as collateral being released, executed by the [
] Trust; and evidence of proper filing with appropriate officer in the UCC
Filing Locations of UCC financing statements executed by the Depositor, as
debtor, naming the Owner Trustee as secured party (and the Indenture Trustee
as assignee) and identifying the Trust Assets as collateral; and evidence of
proper filing with appropriate officers in the UCC Filing Locations of UCC
financing statements executed by the Trust and naming the Indenture Trustee as
secured party and identifying the Trust Assets, as collateral;
(g) Evidence of deposit in the Collection Account of all Pledged
Revenues received with respect to the Initial Contracts after the Initial
Cut-off Date through and including the date which is two days preceding the
Closing Date, together with an Officer's Certificate from the Servicer to the
effect that such amount is materially correct;
(h) Evidence of deposit in the Cash Collateral Account of the initial
Required Cash Collateral Amount;
(i) A fully executed Purchase and Sale Agreement, together with the
Assignment Agreement executed by [ ] pursuant thereto;
(j) A fully executed [ ] Assignment;
(k) A fully executed Trust Agreement;
(l) A fully executed Administration Agreement;
(m) A fully executed Indenture;
(n) an opinion of [ ] to the effect that for federal income tax
purposes, the Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4
Notes, Class A-5 Notes, Class B Notes, Class C Notes and Class D Notes will be
characterized as debt and the Trust will not be characterized as an
association (or publicly traded partnership) taxable as a corporation;,
(o) each of the representations and warranties made by [ ] pursuant
to Article III of the Purchase and Sale Agreement shall be true and correct as
of the Closing Date (including the representation made thereunder as to
compliance with the UCC filing criteria as set forth in clause (j) of the
definition of Eligible Contract), and [ ] shall have performed in all material
respects all obligations to be performed by it under the Purchase and Sale on
or prior to the Closing Date;
(p) each of the representations and warranties made by the Trust, the
Depositor and the Servicer pursuant to Article III hereof shall be true and
correct as of the Closing Date;
(q) the Depositor shall, at its own expense, on or prior to the
Closing Date indicate in its computer files that the Transferred Assets
identified in the Transfer Agreement have been conveyed to the Trust pursuant
to this Agreement and the Transfer Agreement;
(r) no event has occurred and is continuing, or would result from the
conveyance on the Closing Date that constitutes a Servicer Default; and
(s) the Depositor or the Servicer shall have provided the Owner
Trustee on behalf of the Trust a statement or computer disk listing the
Contract Pool Principal Balance on the Closing Date of the contracts being
transferred on the Closing Date.
The failure to satisfy any of the foregoing conditions to transfer or to
obtain a waiver thereof shall not be deemed to adversely affect the validity
of any such transfer.
Section 2.03 Acceptance by Trust. On the Closing Date, if all the
conditions specified in Section 2.02 above have been satisfied, the Owner
Trustee shall issue on behalf of the Trust to, or upon the order of the
Depositor the Equity Certificate representing ownership of a beneficial
interest in 100% of the Trust and the Owner Trustee shall issue, and the
Indenture Trustee shall authenticate, to, or upon the order of, the Depositor
the Notes secured by the Collateral. The Owner Trustee hereby acknowledges its
acceptance, on behalf of the Trust, of the Trust Assets, and declares that it
shall maintain such right and interest in the Trust Assets in accordance with
the terms of this Agreement and the Trust Agreement on the trust herein and
therein set forth.
Section 2.04 Conveyance of Substitute Contracts. (a) Subject to the
limitations set forth in (and the other terms and conditions of) this Section
2.04, the Depositor may substitute other Contracts and related assets for
Contracts and related Transferred Assets previously conveyed to the Trust and
in the Contract Pool, by conveying such other Contracts and related assets to
the Trust pursuant to the procedures and documentation specified below. Upon
the effectiveness of such substitution, such other Contracts and related
Transferred Assets (such Contracts, "Substitute Contracts", and collectively,
"Substitute Transferred Assets") shall, for all purposes of this Agreement and
the Trust Agreement, constitute and be considered as part of the Trust Assets,
and the Contracts already in the Contract Pool and related Transferred Assets
for which the Substitute Assets have been substituted (such Contracts,
"Replaced Contracts", and collectively, "Replaced Assets") shall no longer
constitute Trust Assets. Upon consummation of such substitution, the Trust
shall be deemed to have assigned to the Depositor all of the Trust's right,
title and interest in and to the Replaced Assets, without recourse,
representation or warranty.
In addition, the parties hereto intend and agree that any conveyance described
in this Section 2.04 is made with the intent and effect described in
subsection (c) of Section 2.01 above.
(b) Subject to the conditions set forth in this subsection (b) below,
and pursuant to one or more related Substitution Transfer Agreements, the
Depositor shall transfer, assign, set over and otherwise convey to the Trust,
without recourse (other than as expressly provided herein): (i) all the right
and interest of the Depositor in and to the Substitute Contracts listed on the
related Substitution Schedule of Contracts, and (ii) all other rights and
property interests consisting of Transferred Assets related to such Substitute
Contracts. The Depositor shall effect such transfers only upon the
satisfaction of each of the following conditions on or prior to the related
Substitution Transfer Date (and the delivery of a related Substitution Notice
by the Depositor shall be deemed a representation and warranty by the
Depositor that such conditions have been or will be, as of the related
Substitution Transfer Date, satisfied):
(i) At least five days prior to the related Substitution
Transfer Date, the Depositor shall have provided the Owner Trustee on
behalf of the Trust and the Indenture Trustee with a Substitution
Notice complying with the definition thereof contained herein;
(ii) there shall have occurred, with respect to each such
Substitute Contract, a corresponding Substitution Event with respect
to one or more intended Replaced Contracts then constituting
Contracts in the Contract Pool;
(iii) the Substitute Contract(s) being conveyed to the
Trust, satisfy the Substitute Contract Qualification Conditions;
(iv) the Depositor shall have delivered to the Owner Trustee
on behalf of the Trust a duly executed written assignment agreement
in substantially the form of Exhibit E hereto (a "Substitution
Transfer Agreement"), which shall include a Substitution Schedule of
Contracts identifying the Substitute Contracts and the related
Replaced Contracts;
(v) [ ] shall have delivered to the Depositor and the Owner
Trustee on behalf of the Trust a duly executed Substitution
Assignment Agreement with respect to such conveyance;
(vi) the Depositor shall have deposited or caused to be
deposited in the Collection Account all Pledged Revenue received with
respect to the Substitute Contracts after the applicable Substitution
Cut-off Date and through and including the date which is two Business
Days preceding the related Substitution Transfer Date;
(vii) no selection procedures adverse to the interests of
either the Trust or the Noteholders or Certificateholder shall have
been utilized in selecting the Substitute Contracts;
(viii) each of the representations and warranties made by [
] pursuant to Article III of the Purchase and Sale Agreement shall be
true and correct as of the related Substitution Transfer Date
(including the representation made as to compliance with the UCC
filing criteria set forth in clause (j) of the definition of Eligible
Contract), and [ ] shall have performed in all material respects all
obligations to be performed by it under the Purchase and Sale
Agreement on or prior to such Substitution Transfer Date; and
(ix) the Servicer and [ ] shall, at their own expense, on or
prior to the Substitution Transfer Date, have indicated in their
respective computer files that the Substitute Contracts identified on
the Substitution Schedule of Contracts attached to the related
Substitution Transfer Agreement have been assigned and conveyed to
the Trust through the Depositor pursuant to this Pooling Agreement
and the Purchase and Sale Agreement.
The failure to satisfy any of the foregoing conditions to transfer or to
obtain a waiver thereof shall not be deemed to adversely affect the validity
of any such transfer.
Section 2.05 Release of Excluded Amounts. The Trust hereby agrees to
release to the Servicer, an amount equal to the Excluded Amounts immediately
upon identification thereof, which release shall be automatic and shall
require no further act by the Trust, provided that the Trust shall execute and
deliver such instruments of release and assignment, or otherwise confirm the
foregoing release, as may reasonably be requested in writing by the Servicer.
Upon such release, such Excluded Amounts shall not constitute and shall not be
included in the Trust Assets.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
[ ] under the Purchase and Sale Agreement has made, and upon
execution of each Substitution Assignment Agreement is deemed to remake with
respect to the relevant Contract Assets conveyed thereby, each of the
representations and warranties set forth in the Schedule of Representations,
and has consented to the assignment by the Depositor to the Trust of the
Depositor's rights with respect thereto. Such representations speak as of the
Closing Date in the case of the Initial Contracts, and as of the applicable
Substitution Transfer Date in the case of the Substitute Contracts, but shall
survive the transfer and assignment of the related Contracts to the Trust.
Pursuant to Section 2.01 of this Agreement, the Depositor has sold, assigned,
transferred and conveyed to the Trust as part of the Transferred Assets its
rights under the Purchase and Sale Agreement, including without limitation,
the representations and warranties of [ ] therein as set forth in the Schedule
of Representations, together with all rights of the Depositor with respect to
any breach thereof including any right to require [ ] to repurchase or
substitute for any Contract in accordance with the Purchase and Sale
Agreement. It is understood and agreed that the representations and warranties
set forth or referred to in this Section shall survive delivery of the
Contract Files to the Owner Trustee or any custodian.
The Depositor hereby confirms to the Trust that it has entered into
the Purchase and Sale Agreement with [ ], that [ ] has made the
representations and warranties in the Schedule of Representations, that such
representations and warranties run to and are for the benefit of the
Depositor, and that pursuant to Section 2.01 of this Agreement the Depositor
has transferred and assigned to the Trust all rights of the Depositor to cause
[ ] under the Purchase and Sale Agreement to repurchase or substitute for
Contracts conveyed thereunder in the event of a breach of such representations
and warranties applicable to such Contract.
Section 3.01 Representations and Warranties Regarding the Depositor.
By its execution of this Agreement, and each Substitution Transfer Agreement,
the Depositor represents and warrants to the Trust, the Owner Trustee, the
Indenture Trustee, the Noteholders and the Equity Certificateholder that, as
of the date of the Closing Date and Substitution Transfer Date (and, with
respect to the representation set forth in subsection (l) of this Section 3.01
below, as of the date the certificate, written report or written statement
referred to in such subsection is furnished):
(a) Organization and Good Standing. The Depositor is a limited
liability company duly organized, validly existing and in good standing under
the laws of Delaware and has the requisite power to own its assets and to
transact the business in which it is currently engaged. The Depositor is duly
qualified to do business and is in good standing in each jurisdiction in which
the character of the business transacted by it or properties owned or leased
by it requires such qualification and in which the failure so to qualify would
have a material adverse effect on the business, properties, assets, or
condition (financial or other) of the Depositor or the Trust.
(b) Authorization; Valid Transfer; Binding Obligations. The Depositor
has the power and authority to make, execute, deliver and perform this
Agreement and the other Transaction Documents to which it is a party and all
of the transactions contemplated under this Agreement and the other
Transaction Documents to which it is a party, and to create the Trust and
cause it to make, execute, deliver and perform its obligations under this
Agreement and the other Transaction Documents to which it is a party and has
taken all necessary corporate action to authorize the due execution, delivery
and performance of this Agreement and the other Transaction Documents to which
it is a party and to cause the Trust to be created. This Agreement and the
Transfer Agreement and any Substitution Transfer Agreement shall effect a
valid transfer and assignment of the relevant Transferred Assets, enforceable
against the Depositor and creditors of and purchasers from the Depositor. This
Agreement and the other Transaction Documents to which the Depositor is a
party have been duly executed and delivered by the Depositor and constitute
the legal, valid and binding obligation of the Depositor enforceable in
accordance with their terms, except as enforcement of such terms may be
limited by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and by the availability of equitable remedies.
(c) No Consent Required. The Depositor is not required to obtain the
consent of any other Person or any consent, license, approval or authorization
from, or registration or declaration with, any Governmental Authority in
connection with the execution, delivery, performance, validity or
enforceability of this Agreement or the other Transaction Documents to which
it is a party.
(d) No Violations. The execution, delivery and performance of this
Agreement and the other Transaction Documents to which it is a party by the
Depositor, and the consummation of the transactions contemplated hereby and
thereby, will not violate any Requirements of Law applicable to the Depositor,
or constitute a material breach of any mortgage, indenture, contract or other
agreement to which the Depositor is a party or by which the Depositor or any
of the Depositor's properties may be bound, or result in the creation or
imposition of any security interest, lien, charge, pledge, preference, equity
or encumbrance of any kind upon any of its properties pursuant to the terms of
any such mortgage, indenture, contract or other agreement, other than as
contemplated by the Transaction Documents.
(e) Litigation. No litigation or administrative proceeding of or
before any court, tribunal or governmental body is currently pending, or to
the knowledge of the Depositor threatened, against the Depositor or any of its
properties or with respect to this Agreement or the other Transaction
Documents to which it is a party: (1) which, if adversely determined, would in
the reasonable judgment of the Depositor have a material adverse effect on the
business, properties, assets or condition (financial or otherwise) of the
Depositor or the Trust or the transactions contemplated by this Agreement or
the other Transaction Documents to which the Depositor is a party or (2)
seeking to adversely affect the federal income tax or other federal, state or
local tax attributes of the Notes.
(f) Taxes. The Depositor has filed or caused to be filed all material
tax returns which, to its knowledge, are required to be filed and has paid all
taxes shown to be due and payable on such returns or on any material
assessments made against it or any of its property and all other material
taxes, fees or other charges imposed on it or any of its property by any
Governmental Authority (other than any amount of tax due, the validity of
which is currently being contested in good faith by appropriate proceedings
and with respect to which reserves in accordance with generally accepted
accounting principles have been provided on the books of the Depositor); no
tax lien has been filed and, to the Depositor's knowledge, no claim is being
asserted, with respect to any such tax, fee or other charge.
(g) Schedule of Representations. The representations and warranties
set forth on the Schedule of Representations are true and correct as of the
Closing Date (or Substitution Transfer Date, as applicable) with respect to
the Transferred Assets being conveyed to the Trust on such date.
(h) Solvency. The Depositor, at the time of and after giving effect
to each conveyance made hereunder, is Solvent on and as of the date thereof.
(i) Place of Business; Name Changes. The location of the
Depositor's sole place of business or chief executive office (within
the meaning of Article 9 of the UCC) is as set forth in Section 11.04
below, and such location has not been changed within the four months
preceding any Transfer Date (or if so changed, all necessary actions
in connection with such change have been or are being timely taken in
accordance with Section 4.03 hereof). The Depositor has not changed
its name, whether by amendment of its certificate of formation, by
reorganization or otherwise, within the four months preceding any
Transfer Date (or if so changed, all necessary actions in connection
with such change have been or are being timely taken in accordance
with Section 4.03 hereof).
(j) Not an Investment Company. The Depositor is not an "investment
company" (and does not control, and is not under the control of, an investment
company) within the meaning of the Investment Company Act of 1940, as amended
(or the Depositor is exempt from all provisions of such Act).
Such representations (except to the extent expressly stated by their terms to
speak as of a different date or time) speak as of the Closing Date and each
Transfer Date and Substitution Transfer Date, if any, but shall survive the
transfer and assignment of the Contracts to the Trust.
Section 3.02 Representations and Warranties of the Servicer. The
Servicer represents and warrants to the Trust, the Owner Trustee, the
Indenture Trustee, the Noteholders and the Equity Certificateholder that, as
of the date of the execution and delivery of this Agreement and as of the
Closing Date and each Substitution Transfer Date (and, with respect to the
representations set forth in subsection (h) of this Section 3.02 below, as of
the date the certificate, written report or written statement or financial
statement referred to in such subsection is furnished):
(a) Organization and Good Standing. The Servicer is a corporation
duly organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has the corporate power to own its assets
and to transact the business in which it is currently engaged. The Servicer is
duly qualified to do business as a foreign corporation and is in good standing
in each jurisdiction in which the character of the business transacted by it
or properties owned or leased by it requires such qualification and in which
the failure so to qualify would have a material adverse effect on the
business, properties, assets, or condition (financial or otherwise) of the
Servicer or the Trust. The Servicer (or any permitted subservicer hereunder
with respect to affected Contracts, if the Servicer is not so licensed) is
properly licensed in each jurisdiction to the extent required by the laws of
such jurisdiction to service the Contracts in accordance with the terms
hereof.
(b) Authorization; Binding Obligations. The Servicer has the power
and authority to make, execute, deliver and perform this Agreement and the
other Transaction Documents to which the Servicer is a party and all of the
transactions contemplated under this Agreement and the other Transaction
Documents to which the Servicer is a party, and has taken all necessary
corporate action to authorize the due execution, delivery and performance of
this Agreement and the other Transaction Documents to which the Servicer is a
party. This Agreement and the other Transaction Documents to which the
Servicer is a party have been duly executed and delivered by the Servicer and
constitute the legal, valid and binding obligation of the Servicer enforceable
in accordance with their terms, except as enforcement of such terms may be
limited by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and by the availability of equitable remedies.
(c) No Consent Required. The Servicer is not required to obtain the
consent of any other Person or any consent, license, approval or authorization
from, or registration or declaration with, any Governmental Authority in
connection with the execution, delivery, performance, validity or
enforceability of this Agreement and the other Transaction Documents to which
the Servicer is a party.
(d) No Violations. The execution, delivery and performance of this
Agreement and the other Transaction Documents to which the Servicer is a party
by the Servicer will not violate any Requirements of Law applicable to the
Servicer, or constitute a material breach of any mortgage, indenture, contract
or other agreement to which the Servicer is a party or by which the Servicer
or any of the Servicer's properties may be bound, or result in the creation of
or imposition of any security interest, lien, pledge, preference, equity or
encumbrance of any kind upon any of its properties pursuant to the terms of
any such mortgage, indenture, contract or other agreement, other than as
contemplated by the Transaction Documents.
(e) Litigation. No litigation or administrative proceeding of or
before any court, tribunal or governmental body is currently pending, or to
the knowledge of the Servicer threatened, against the Servicer or any of its
properties or with respect to this Agreement, or any other Transaction
Document to which the Servicer is a party which, if adversely determined,
would in the reasonable judgment of the Servicer have a material adverse
effect on the business, properties, assets or condition (financial or
otherwise) of the Servicer or the Trust or the transactions contemplated by
this Agreement or any other Transaction Document to which the Servicer is a
party.
(f) No Servicer Default. No event has occurred and is continuing and
no condition exists which constitutes a Servicer Default.
ARTICLE IV
PERFECTION OF TRANSFERS AND PROTECTION OF SECURITY INTERESTS
Section 4.01 Custody of Contracts. (a) Subject to the terms and
conditions of this Section 4.01, the contents of each Contract File shall be
held in the custody of the Servicer (including through any subservicer
contemplated under Section 5.05), for the benefit of, and as agent for, the
Noteholders, the Equity Certificateholder, the Indenture Trustee and the
Issuer, as well as the Trust as the owner thereof.
(b) The Servicer agrees to maintain the Contract Files at its offices
where they are currently maintained, or at such other offices of the Servicer
(or a subservicer contemplated under Section 5.05) as shall from time to time
be established by the Servicer or such subservicer (or in certain instances at
offsite storage facilities in the same general geographic area as an office of
the Servicer or subservicer, pursuant to contractual agreement between the
Servicer or subservicer and the Person owning or maintaining such offsite
facility). The Servicer may temporarily move individual Contract Files or any
portion thereof without notice or other such compliance, as necessary to
conduct collection and other servicing activities in accordance with the
Servicing Standard; provided, however, that the Servicer will take all action
necessary to maintain the perfection of the Trust's interest in the Trust
Assets and the proceeds thereof. It is intended that by the Servicer's
agreement pursuant to Section 4.01(a) above and this Section 4.01(b), the
Trust and the Owner Trustee for the benefit of the Trust shall be deemed to
have possession of the Contract Files for purposes of Section 9-313 of the
Uniform Commercial Code of the State in which the Contract Files are located.
(c) As custodian, the Servicer shall have and perform the following
powers and duties:
(i) hold the Contract Files on behalf of the Noteholder and
the Equity Certificateholder and the Trust; maintain accurate records
pertaining to each Contract to enable it to comply with the terms and
conditions of this Agreement; and maintain a current inventory
thereof;
(ii) maintain and comply with Customary Policies and
Procedures with respect to Persons authorized to have access to the
Contract Files;
(iii) attend to all details in connection with maintaining
custody of the Contract Files on behalf of the Noteholder and the
Equity Certificateholder and the Trust; and
(iv) indicate in the appropriate computer records that the
Contracts as of the Closing Date (or Substitution Transfer Date, as
the case may be) have been conveyed to the Trust.
(d) In performing its duties under this Section 4.01, the Servicer
agrees to act in accordance with the applicable Servicing Standard. In acting
as custodian of the Contract Files, the Servicer further agrees not to assert
any legal or beneficial ownership interest in the Contracts or the Contract
Files, except as provided in Section 5.06.
(e) The Servicer agrees to indemnify the Noteholder and the Equity
Certificateholder, the Owner Trustee, the Indenture Trustee and the Trust for
any and all liabilities, obligations, losses, damages, payments, costs, or
expenses of any kind whatsoever which may be imposed on, incurred by or
asserted against any of such parties as the result of any act or omission by
the Servicer relating to the maintenance and custody of the Contract Files or
any other breach or noncompliance of the Servicer in the performance of its
duties and obligations as Servicer hereunder; provided, however, that the
Servicer will not be liable to any such party for any portion of any such
amount resulting from the gross negligence or willful misconduct of such party.
Section 4.02 Filings. On or prior to the Closing Date, the Servicer
shall cause UCC financing statement(s) to be filed, and from time to time the
Servicer shall take and cause to be taken such other actions and execute such
other documents as are necessary to perfect or further perfect and protect the
Trust's first priority interest in the Trust Assets against all other Persons.
Such additional actions may include without limitation, the filing of
financing statements, amendments thereto and continuation statements, the
execution of transfer instruments and the making of notations on or taking
possession of records or documents of title.
Section 4.03 Name Change or Relocation. (a) During the term of this
Agreement, neither the Servicer nor the Depositor shall change, nor shall the
Servicer permit any Financing Originator to change, its name, identity or
structure or relocate its chief executive office without first giving at least
30 days' prior written notice to the Servicer, the Owner Trustee, and the
Indenture Trustee.
(b) If any change in either the Servicer's, a Financing Originator's
or the Depositor's name, identity or structure or other action would make any
financing or continuation statement or notice of lien seriously misleading
within the meaning of applicable provisions of the UCC or any title statute,
the Servicer, no later than thirty days after the effective date of such
change, shall file such amendments as may be required to preserve and protect
the Trust's interests in the Trust Assets and the proceeds thereof. In
addition, neither any Financing Originator, the Servicer nor the Depositor
shall change its place of business (within the meaning of Article 9 of the
UCC), from the locations specified in Section 11.04 hereof unless it has first
taken such action as is necessary to preserve and protect the Trust's interest
in the Trust Assets.
Promptly after taking any of the foregoing actions, the Servicer shall deliver
to the Owner Trustee and the Indenture Trustee an Opinion of Counsel
reasonably acceptable to the Owner Trustee and the Indenture Trustee stating
that, in the opinion of such counsel, all financing statements or amendments
necessary to preserve and protect the interests of the Trust and Indenture
Trustee in the Trust Assets have been filed, and reciting the details of such
filing.
ARTICLE V
SERVICING OF CONTRACTS
Section 5.01 Initial Servicer's Appointment and Acceptance;
Responsibility for Contract Administration. [ ] shall be and is hereby
appointed as the Servicer and custodian (as contemplated in Article IV hereof)
pursuant to this Agreement with respect to the Contract Assets in the Contract
Pool. [ ] accepts the appointment and agrees to act as the Servicer and
custodian pursuant to this Agreement.
Except to the extent otherwise specified herein or as contemplated in
Section 5.05, the Servicer will have the sole obligation to manage,
administer, service and make collections on the Contracts and perform or cause
to be performed all contractual and customary undertakings of the Originator
of the Contracts to the Obligor. The Trust, at the written request of a
Servicing Officer, shall furnish the Servicer with any powers of attorney or
other documents necessary or appropriate in the opinion of the Servicer to
enable the Servicer to carry out its servicing and administrative duties
hereunder. The Servicer is hereby appointed the Servicer hereunder until such
time as any Servicing Transfer may be effected pursuant to Article VIII hereof.
Section 5.02 General Duties. The Servicer will service, administer
and enforce the Contracts in the Contract Pool on behalf of the Trust and will
have full power and authority to do any and all things in connection with such
servicing and administration which it deems necessary or desirable and as
shall not contravene the provisions of this Agreement or any other Transaction
Document. The Servicer will manage, service, administer, and make collections
on the Contracts in the Contract Pool in accordance with the Servicing
Standard. The Servicer's duties will include collection and posting of all
payments, responding to inquiries of Obligors regarding the Contracts in the
Contract Pool, investigating delinquencies, accounting for collections,
furnishing reports with respect to collections and payments as contemplated in
Article IX hereof, making Servicer Advances in its discretion, and using its
best efforts to maintain the perfected first priority interest of the Trust in
the Trust Assets. The Servicer will have full power and authority, acting
alone, to do any and all things in connection with such managing, servicing,
administration, and collection that it deems necessary or desirable. If the
Servicer commences a legal proceeding to enforce a Defaulted Contract pursuant
to Section 5.15 or commences or participates in a legal proceeding (including
a bankruptcy proceeding) relating to or involving a Contract in the Contract
Pool, the Trust will be deemed to have automatically assigned such Contract to
the Servicer solely for purposes of, and to the extent necessary for,
commencing or participating in any such proceeding as a party or claimant (but
in all cases subject to the continuing interest of the Trust and its assignees
in the proceeds and recoveries from such proceedings, as and to the extent
provided in the Transaction Documents), and the Servicer is authorized and
empowered by the Trust, pursuant to this Section 5.02, to execute and deliver,
on behalf of itself and the Trust, any and all instruments of satisfaction or
cancellation, or partial or full release or discharge, and all other notices,
demands, claims, complaints, responses, affidavits or other documents or
instruments in connection with any such proceedings. If 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 Owner Trustee will, at the
Servicer's expense and written direction, take steps on behalf of the Trust to
enforce the Contract, including bringing suit in the Trust's name.
Section 5.03 Assignment or Replacement. At the request of an Obligor,
the Servicer may in its sole discretion consent to the assignment by such
Obligor of its rights under a Contract in the Contract Pool or the sublease of
a unit of the Equipment relating to such a Contract, so long as such Obligor
remains liable for all of its obligations under such Contract; provided, that
the Servicer may release such Obligor from its obligations if the Obligor's
assignee is determined by the Servicer to be of at least equivalent credit
risk, all in accordance with Customary Policies and Procedures. Upon the
request of any Obligor, the Servicer may, in its sole discretion, provide for
the substitution or replacement of any unit of Equipment for a substantially
similar unit of Equipment, so long as such Obligor remains liable for all of
its obligations under such Contract.
Section 5.04 Disposition Upon Termination of Contract. Upon the
termination of a Contract included in the Contract Pool as a result of a
default by the Obligor thereunder, and upon any such Contract becoming a
Defaulted Contract, the Servicer will use commercially reasonable efforts to
dispose of any related Equipment. Without limiting the generality of the
foregoing, if the Servicer disposes of any such Equipment by purchasing such
Equipment or by selling such Equipment to any of its Affiliates, such
disposition shall be for a purchase price equal to the fair market value
thereof (as determined by the Servicer in its reasonable discretion). The
Servicer will deposit any Prepayments and any Liquidation Proceeds derived
from any such disposition in accordance with Article VII hereof.
Section 5.05 Subservicers. The Servicer may enter into servicing
agreements with one or more subservicers (including the Financing Originators
or any other Affiliate of the Servicer) to perform all or a portion of the
servicing functions on behalf of the Servicer; provided that the Servicer
shall remain obligated and be liable to the Trust for servicing and
administering the Contracts in the Contract Pool in accordance with the
provisions of this Agreement without diminution of such obligation and
liability by virtue of the appointment of such subservicer, to the same extent
and under the same terms and conditions as if the Servicer alone were
servicing and administering such Contracts. The fees and expenses of the
subservicer (if any) will be as agreed between the Servicer and its
subservicer and neither the Owner Trustee, the Trust, the Indenture Trustee
nor any Noteholder or Equity Certificateholder will have any responsibility
therefor. All actions of a subservicer taken pursuant to such a subservicing
agreement will be taken as an agent of the Servicer with the same force and
effect as though performed by the Servicer.
Section 5.06 Further Assurance. The Trust will execute and deliver to
the Servicer, and the Servicer will prepare and furnish any subservicer with,
any powers of attorney and other documents necessary or appropriate to enable
the Servicer or a subservicer, as applicable, to carry out its servicing and
administrative duties under this Agreement and the other Transaction
Documents.
Section 5.07 Notice to Obligors. Except as contemplated in clause (m)
of the definition of Eligible Contract, the Servicer will not be required to
notify any Obligor that such Obligor's Contract or related Equipment, or any
security interest in such Contract or such Equipment, has been transferred,
assigned, and conveyed pursuant to the Conveyancing Agreement, the Purchase
and Sale Agreement or pursuant to this Agreement; provided that, in the event
that the Servicer resigns or is replaced, then if the place for payment
pursuant to any Contract is changed, the Successor Servicer must give each
related Obligor prompt written notice of the appointment of the Successor
Servicer and the place to which such Obligor should make payments pursuant to
each such Contract.
Section 5.08 Collection Efforts; Modification of Contracts. (a) The
Servicer will make reasonable efforts to collect all payments called for under
the terms and provisions of the Contracts in the Contract Pool as and when the
same become due, in accordance with the Servicing Standard. The Servicer is
authorized in its discretion to waive any Late Charges, or other
administrative fees, expenses and charges collectible in respect of a Contract
in the Contract Pool, including late payment interest, documentation fees,
insurance administration charges, and extension fees.
(b) The Servicer also may, subject to Sections 5.09 and 5.10, at the
request of an Obligor and at the Servicer's option, waive, amend, modify or
otherwise vary any other provision of a Contract in accordance with Customary
Policies and Procedures (it being understood that any modification or
amendment of a Contract resulting from an Insolvency Event with respect to the
related Obligor will not be deemed to have been granted by the Servicer
hereunder),including without limitation:
(i) in order to: (A) change the Obligor's regular due date
to a date within the Collection Period in which such due date occurs,
or (B) re-amortize (over the remainder of the original Contract term)
the Scheduled Payments on a Contract following a partial Prepayment
(provided, that the sum of such partial Prepayment and the Contract
Principal Balance of the affected Contract after re-amortization is
at least equal to the Contract Principal Balance for such Contract
prior to giving effect to the partial Prepayment), or
(ii) for any other purpose; provided, that no such
modification or amendment shall:
(A) change the amount or the due date of any Scheduled
Payment (except as provided in clauses (i)(A) and (B) above, Section
5.09 and Section 5.10 below);
(B) release the related Equipment from the Contract, unless:
(1) the release complies with Section 5.03 above, or (2) the release
is pursuant to a partial Prepayment (which, in the case of a partial
Prepayment on a Lease, meets the requirements of Section 5.09 below)
and the ratio of the fair market value (determined by the Servicer in
its reasonable discretion) of the related Equipment to the Contract
Principal Balance of the affected Contract after giving effect to
such Prepayment and release, is at least equal to such ratio existing
prior to such event;
(C) except as provided in clause (ii)(A) above, result in
the Contract Principal Balance of the Contract being less than it
would have been absent such modification or amendment; or
(D) if such modification or amendment had been in effect on
the relevant Transfer Date with respect to the Contract, cause or
have caused the Contract not to constitute an Eligible Contract.
Section 5.09 Prepayments of Certain Contracts. The Servicer may, at
its option and in accordance with Customary Policies and Procedures, agree to
permit a Contract in the Contract Pool that is not otherwise contractually
prepayable by its terms and is not a Defaulted Contract, to become a Prepaid
Contract through a voluntary Prepayment by the Obligor (which shall not be
deemed to include prepayment due to a Casualty Loss); provided, that the
Servicer will not permit the voluntary full or partial Prepayment of such a
Contract unless the amount of such Prepayment (or, in the case of a partial
Prepayment, the sum of such Prepayment and the remaining Contract Principal
Balance of the Contract after application of such Prepayment), together with
such additional amounts as are: (i) otherwise available to or supplied by the
Servicer for the purpose of prepaying such Contract, and (ii) deposited in the
Collection Account contemporaneously with the deposit therein of such
Prepayment, is at least equal to the Required Payoff Amount for such Contract
determined as of the beginning of the current Collection Period.
Section 5.10 Certain Extensions; Acceleration. (a) he Servicer may
(subject to subsection (b) below) grant payment extensions on a Contract in
the Contract Pool, consistent with Customary Policies and Procedures (it being
understood that any extensions on a Contract resulting from an Insolvency
Event with respect to the related Obligor will not be deemed to have been
granted by the Servicer hereunder) if the Servicer believes in good faith that
such extension is necessary to avoid a termination and liquidation of such
Contract and will maximize the amount to be received by the Trust with respect
to such Contract; provided, however, that the aggregate period of all
extensions granted on a Contract shall not exceed six months. Nothing in this
Section 5.10 shall be deemed to prevent the Servicer from extending or
renewing, or otherwise accepting the continued performance by the Obligor
under, a Contract after expiration of its stated term.
(b) The Servicer also, consistent with Customary Policies and
Procedures, may accelerate (or elect not to accelerate) the maturity of all or
any Scheduled Payments under any Contract in the Contract Pool under which a
default under the terms thereof has occurred and is continuing (after the
lapse of any applicable grace period); provided that the Servicer is required
to accelerate the Scheduled Payments due under any Contract in the Contract
Pool (and take other action in accordance with applicable Customary Policies
and Procedures, including repossessing or otherwise converting the related
Equipment, to realize upon the value of such Contract and the related
Equipment) to the fullest extent permitted by the terms of such Contract,
promptly after such Contract becomes a Defaulted Contract.
Section 5.11 Taxes and Other Amounts. To the extent provided for in
any Contract in the Contract Pool, the Servicer will make reasonable efforts
consistent with the applicable Servicing Standard to collect (or cause to be
collected) all payments with respect to amounts due for taxes, assessments and
insurance premiums relating to such Contract or the related Equipment and
remit such amounts to the appropriate Governmental Authority or insurer on or
prior to the date such payments are due.
Section 5.12 Suits by Servicer. Notwithstanding anything herein to
the contrary, the Servicer does not have any obligation pursuant to this
Agreement to appear in, prosecute or defend any legal action which is not
incidental to its servicing duties under this Agreement.
Section 5.13 Remittances. The Servicer will service all Collections
in accordance with Article VII hereof.
Section 5.14 Servicer Advances. on any Collection Period, if the
Servicer determines that any Scheduled Payment (or portion thereof) which was
due and payable pursuant to a Contract in the Contract Pool during such
Collection Period was not received prior to the end of such Collection Period,
the Servicer may make a Servicer Advance in an amount up to the amount of such
delinquent Scheduled Payment (or portion thereof), to the extent that in its
sole discretion it determines that it can recover such amount from subsequent
Collections under the related Contract. The Servicer will deposit any Servicer
Advances into the Collection Account on or prior to 11:00 a.m. (New York time)
on the Deposit Date, in immediately available funds. The Servicer will be
entitled to be reimbursed for Servicer Advances pursuant to Article VII hereof.
Section 5.15 Realization Upon Defaulted Contract. The Servicer will
use its best efforts consistent with the applicable Servicing Standard to
repossess or otherwise comparably convert the ownership of any Equipment
relating to a Defaulted Contract and will act as transfer and processing agent
for Equipment or Applicable Security which it repossesses. The Servicer will
follow such other practices and procedures, consistent with the Servicing
Standard, in order to realize upon such Equipment or Applicable Security,
which practices and procedures may include reasonable efforts to enforce all
obligations of Obligors and repossessing and selling such Equipment or
Applicable Security at public or private sale in circumstances other than
those described in the preceding sentence. Without limiting the generality of
the foregoing, the Servicer may sell any such Equipment or Applicable Security
to the Servicer or its Affiliates for a purchase price equal to the then fair
market value thereof (determined by the Servicer in its reasonable
discretion). In any case in which any such Equipment or Applicable Security
has suffered damage, the Servicer will not expend funds in connection with any
repair or toward the repossession of such Equipment or Applicable Security
unless it determines in its discretion that such repair and/or repossession
will increase the Liquidation Proceeds by an amount greater than the amount of
such expenses. The Servicer will remit to the Collection Account the
Liquidation Proceeds received in connection with the transfer or disposition
of Equipment or Applicable Security relating to a Defaulted Contract in
accordance with Article VII hereof.
Section 5.16 Maintenance of Insurance Policies. The Servicer will use
reasonable efforts, consistent with the Servicing Standard, to ensure that
each Obligor complies with applicable insurance requirements set forth in the
related Contract; provided that the Servicer, in accordance with Customary
Policies and Procedures, may allow Obligors to self-insure. If an Obligor
fails to maintain property damage insurance to the extent required under its
Contract, the Servicer may, consistent with Customary Policies and Procedures,
purchase and maintain such insurance on behalf of, and at the expense of (if
the applicable Contract so provides), the Obligor. In connection with its
activities as Servicer of Contracts in the Contract Pool, the Servicer agrees
to present, on behalf of itself, the Trust and the Noteholders or Equity
Certificateholders, claims to the insurer under each Insurance Policy and any
such liability policy, and to settle, adjust and compromise such claims, in
each case, consistent with the terms of each Contract.
Section 5.17 Certain Other Duties With Respect to Trust. The Servicer
shall, and hereby agrees that it will, monitor the Trust's compliance with all
applicable provisions of state and federal securities laws, notify the Trust
and the Administrator of any actions to be taken by the Trust necessary for
compliance with such laws and prepare on behalf of the Trust and the
Administrator all notices, filings or other documents or instruments required
to be filed under such laws.
Section 5.18 Servicing Compensation. As compensation for its
servicing activities with respect to the Contract Pool, and also in
consideration of its expenses as set forth in Section 5.19, the Servicer shall
be entitled to receive a servicing fee in respect of any Collection Period (or
portion thereof) (with respect to each Collection Period, the "Servicing
Fee"), equal to the sum of: (i) one-twelfth of the product of (A) the
Servicing Fee Percentage and (B) the Contract Pool Principal Balance as of the
first day of such Collection Period and (ii) any amount described in the
clause (iv) of the definition of "Excluded Accounts."
Section 5.19 Payment of Certain Expenses by Servicer. The Servicer
will be required to pay all expenses incurred by it in connection with its
activities under this Agreement, including fees and disbursements of
independent accountants, the Owner Trustee, the Indenture Trustee taxes
imposed on the Servicer, expenses incurred in connection with payments and
reports pursuant to this Agreement, and all other fees and expenses not
expressly stated under this Agreement to be for the account of the Trust or
the Depositor, but excluding Liquidation Expenses incurred as a result of
activities contemplated by Section 5.15 (which may be netted from Liquidation
Proceeds). The Servicer will be required to pay all reasonable fees and
expenses owing to the Owner Trustee or the Indenture Trustee in connection
with the maintenance of the Collection Account. The Servicer shall be required
to pay such expenses for its own account and shall not be entitled to any
payment or reimbursement therefor other than the Servicing Fee, payable from
Collections as provided herein.
Section 5.20 Records. The Servicer shall, during the period it is
Servicer hereunder, maintain such books of account and other records as will
enable the Trust or the Administrative Agent to determine the status of each
Contract in the Contract Pool.
Section 5.21 Inspection. (a) The Servicer shall afford the Owner
Trustee and the Indenture Trustee and their respective authorize agents not
more frequently than once during each calendar year at the Servicer's expense,
not to exceed $1,000 in expenses and upon reasonable prior written request,
reasonable access during normal business hours to the Servicer's records
relating to the Contracts in the Contract Pool, and will cause its personnel
to assist in any examination of such records by any such Person, and allow
copies of the same to be made. The examination referred to in this Section
will be conducted in a manner which does not unreasonably interfere with the
Servicer's normal operations or customer or employee relations. Without
otherwise limiting the scope of the examination, such examining party may,
using generally accepted audit procedures, verify the status of each such
Contract and review the Computer Disk and records relating thereto for
conformity to reports prepared by the Servicer pursuant to Article IX hereof,
and compliance with the standards represented to exist as to each such
Contract in this Agreement and the other Transaction Documents.
(b) At all times during the term hereof, the Servicer shall keep
available a copy of the Schedule of Contracts at its principal executive
office for inspection by any such party referred to in subsection (a) of this
Section 5.21.
Section 5.22 Trust To Cooperate in Releases. At the same time as: (i)
any Lease in the Contract Pool terminates and the Equipment related to such
Lease is sold, (ii) any Contract in the Contract Pool becomes a Prepaid
Contract and in connection therewith the Equipment related to such Prepaid
Contract is sold, (iii) the final Scheduled Payment is made in full on a
Contract in the Contract Pool, (iv) a Contract previously in the Contract Pool
becomes a Replaced Contract in accordance with Section 2.04, or is repurchased
by deposit of a Purchase Amount as provided herein, or (v) the Servicer
substitutes or replaces any unit of Equipment as contemplated in Section 5.03,
the Trust shall to the extent requested by the Servicer release the Trust's
interest in the Equipment relating to such affected Contract or such
substituted or replaced Equipment, as the case may be; provided that such
release will not constitute a release of the Trust's interest in the proceeds
of Equipment the subject of a Contract still in the Contract Pool (other than
with respect to Equipment that is replaced pursuant to Section 5.03). In
connection with any transfer of such Equipment, the Trust and the Indenture
Trustee shall execute and deliver to the Servicer any assignments, bills of
sale, termination statements and any other releases and instruments as the
Servicer may request in order to effect such release and transfer; provided
that neither the Trust nor the Indenture Trustee shall be deemed to make any
representation or warranty, express or implied, with respect to any such
Equipment in connection with such transfer and assignment. Nothing in this
Section 5.22 shall diminish the Servicer's obligations pursuant to Article VII
with respect to the proceeds of any such transfer.
Section 5.23 [Reserved]Section 5.24 Separate Entity Existence. The
Servicer agrees to take or refrain from taking or engaging in with respect to
the Depositor, as applicable, each of the actions or activities specified in
the "nonsubstantive consolidation" opinion of [ ] (or in any related
Certificate of [ ]) delivered on the Closing Date, upon which the conclusions
expressed therein are based.
ARTICLE VI
COVENANTS OF THE DEPOSITOR
Section 6.01 LLC Existence. During the term of this Agreement, the
Depositor will keep in full force and effect its existence, rights and
franchises as a limited liability company under the laws of the jurisdiction
of its formation and will obtain and preserve its qualification to do business
in each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement, the other
Transaction Documents and each other instrument or agreement necessary or
appropriate to the proper administration of this Agreement and the
transactions contemplated hereby. In addition, all transactions and dealings
between the Depositor and its Affiliates will be conducted on an arm's-length
basis.
Section 6.02 Contracts Not to be Evidenced by Promissory Notes. The
Depositor will take no action to cause any Contract not originally consisting
of or evidenced by an instrument (except to the extent part of chattel paper)
(as such terms are defined in the UCC), to be evidenced by an instrument,
except in connection with the enforcement or collection of such Contract.
Section 6.03 Security Interests. The Depositor will not sell, pledge,
assign or transfer to any other Person, or grant, create, incur, assume or
suffer to exist any Lien on any Contract in the Contract Pool or on any other
Trust Asset or on any related Equipment, whether now existing or hereafter
transferred to the Trust, or any interest therein (except for Permitted
Liens). The Depositor will immediately notify the Trust and the Indenture
Trustee of the existence of any Lien (other than Permitted Liens) on any
Contract in the Contract Pool or on any other Trust Assets or on any related
Equipment; and the Depositor shall defend the right and interest of the Trust
in, to and under the Contracts in the Contract Pool and the related Equipment,
against all claims of third parties; provided, however, that nothing in this
Section 6.03 shall prevent or be deemed to prohibit: (i) the Depositor from
suffering to exist Permitted Liens upon any of the Contracts in the Contract
Pool or any related Equipment, or (ii) repurchases or substitutions by [ ]
pursuant to the Purchase and Sale Agreement.
Section 6.04 Delivery of Collections. The Depositor agrees to pay to
the Servicer promptly any misdirected Collections received by the Depositor in
respect of the Contracts in the Contract Pool, for application in accordance
with Article VII.
Section 6.05 Regulatory Filings. The Depositor shall make any
filings, reports, notices, applications and registrations with, and seek any
consents or authorizations from, the United States Securities and Exchange
Commission and any state securities authority on behalf of the Trust as may be
necessary or that the Depositor deems advisable to comply with any federal or
State securities or reporting requirements or laws.
Section 6.06 Compliance With Law. Depositor hereby agrees to comply
in all material respects with all Requirements of Law applicable to Depositor.
Section 6.07 Activities. The Depositor shall not engage in any
business or activity of any kind, or enter into any transaction or indenture,
mortgage, instrument, agreement, contract, lease or other undertaking, which
is not directly related to the transactions contemplated and authorized by
this Agreement or the other Transaction Documents; provided, however, that the
Depositor may purchase and sell (or grant Liens in respect of) contracts
and/or other related assets similar to the Contracts to other Persons in
securitization or other non-recourse financing transactions involving [ ] or
any of their Affiliates on terms and conditions (with respect to the
liabilities imposed upon the Depositor by virtue of such transactions, as well
as in respect of agreements or restrictions concerning activities of the
Depositor and its relations or interactions with [ ] or a Financing Originator
or other applicable Affiliate relevant to "bankruptcy remoteness" or
"substantive consolidation" analysis), in each case substantially similar to
such terms and conditions applicable to the Depositor hereunder and under the
other Transaction Documents.
Section 6.08 Indebtedness. The Depositor shall not create, incur,
assume or suffer to exist any Indebtedness or other liability whatsoever,
except: (i) obligations incurred under this Agreement or other Transaction
Documents, or incidental thereto, or (ii) liabilities incident to the
maintenance of its corporate existence in good standing, or (iii) obligations
in connection with transactions described in the proviso to Section 6.07, as
limited thereby.
Section 6.09 Guarantees. The Depositor shall not become or remain
liable, directly or contingently, in connection with any Indebtedness or other
liability of any other Person, whether by guarantee, endorsement (other than
endorsements of negotiable instruments for deposit or collection in the
ordinary course of business), agreement to purchase or repurchase, agreement
to supply or advance funds, or otherwise, except as contemplated hereby and in
connection with transactions described in Section 6.07, as limited thereby.
Section 6.10 Investments. The Depositor shall not make or suffer to
exist any loans or advances to, or extend any credit to, or make any
investments (by way of transfer of property, contributions to capital,
purchase of stock or securities or evidences of indebtedness, acquisition of
the business or assets, or otherwise) in, any Person except: (i) for purchases
or other acquisitions of Contracts and related Contract Assets pursuant to the
Purchase and Sale Agreement or purchases or other acquisitions of similar
contracts and related assets permitted by Section 6.07, or (ii) the holding of
ownership interests in Equipment contemplated herein or in transactions
permitted by Section 6.07, or (iii) for investments in Eligible Investments in
accordance with the terms of this Agreement.
Section 6.11 Merger; Transfers. The Depositor shall not enter into
any transaction of merger or consolidation, or liquidate or dissolve itself
(or suffer any liquidation or dissolution) or acquire or be acquired by any
Person, or convey, sell, lease or otherwise dispose of all or substantially
all of its property or business, except as provided for in this Agreement.
Section 6.12 Payments. The Depositor shall not declare or pay,
directly or indirectly, any dividend or make any other payment (whether in
cash or other property) with respect to the profits, assets or capital of the
Depositor or any Person's interest therein, or purchase, redeem or otherwise
acquire for value any of its equity ownership interests now or hereafter
outstanding, except that the Depositor may effect payments of its earnings in
respect of Trust Assets to its members in each case so long as it would
continue to be Solvent after giving effect thereto, and otherwise in
accordance with the Transaction Documents.
Section 6.13 Other Agreements. The Depositor shall not become a
party to, or permit any of its properties to be bound by, any indenture,
mortgage, instrument, contract, agreement, lease or other undertaking,
except this Agreement and the other Transaction Documents to which it is a
party and any agreement relating to another securitization transaction
permitted by Section 6.07; nor shall it amend or modify the provisions of
its Certificate of Formation or Limited Liability Company Agreement except
in accordance with the Transaction Documents and with the consent of the
Required Holders, or issue any power of attorney except to the Owner
Trustee, the Indenture Trustee or the Servicer pursuant to the Transaction
Documents (or other similar powers of attorney in connection with
transactions permitted by the proviso to Section 6.07).
Section 6.14 Separate Entity Existence. The Depositor shall:
(i) Maintain its own deposit account or accounts, separate
from those of any Affiliate, with commercial banking institutions.
The funds of the Depositor will not be diverted to any other Person
or for other than authorized uses of the Depositor.
(ii) Ensure that, to the extent that it shares the same
officers or other employees as any of its members or Affiliates, the
salaries of and the expenses related to providing benefits to such
officers and other employees shall be fairly allocated among such
entities, and each such entity shall bear its fair share of the
salary and benefit costs associated with all such common officers and
employees.
(iii) Ensure that, to the extent that it jointly contracts
with any of its members or Affiliates to do business with vendors or
service providers or to share overhead expenses, the costs incurred
in so doing shall be allocated fairly among such entities, and each
such entity shall bear its fair share of such costs. To the extent
that the Depositor contracts or does business with vendors or service
providers when the goods and services provided are partially for the
benefit of any other Person, the costs incurred in so doing shall be
fairly allocated to or among such entities for whose benefit the
goods and services are provided, and each such entity shall bear its
fair share of such costs. All material transactions between Depositor
and any of its Affiliates shall be only on an arm's length basis.
(iv) To the extent that the Depositor and any of its members
or Affiliates have offices in the same location, there shall be a
fair and appropriate allocation of overhead costs among them, and
each such entity shall bear its fair share of such expenses.
(v) Conduct its affairs strictly in accordance with its
Limited Liability Company Agreement and its Certificate of Formation,
and observe all necessary, appropriate and customary limited
liability company formalities, including, but not limited to, holding
all regular and special members' and manager/directors' meetings
appropriate to authorize all entity action, keeping separate and
accurate records of such meetings and its actions, passing all
resolutions or consents necessary to authorize actions taken or to be
taken, and maintaining accurate and separate books, records and
accounts, including, but not limited to, payroll and intercompany
transaction accounts.
(vi) Take or refrain from taking or engaging in, as
applicable, each of the actions or activities specified in the "true
sale" and "nonsubstantive consolidation" opinions of [ ] delivered on
the Closing Date (or in any related certificate delivered in
connection therewith), upon which the conclusions expressed therein
are based.
Section 6.15 Location; Records. The Depositor shall not move outside
the State of __________, the location of its chief executive office, without
thirty (30) days' prior written notice to the Trust, the Indenture Trustee and
the Servicer, and will promptly take all actions required (including, but not
limited to, all filings and other acts necessary or advisable under the UCC of
each relevant jurisdiction) in order to continue the first priority perfected
security interest of the Indenture Trustee in Trust Assets. The Depositor will
give the Indenture Trustee, Trust and the Servicer prompt notice of a change
within the State of __________ of the location of its chief executive office.
Section 6.16 Liability of Depositor; Indemnities. The Depositor shall
be liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Depositor under this Agreement.
The Depositor shall indemnify, defend and hold harmless the Trust,
the Owner Trustee, the Indenture Trustee and the Servicer (and any of their
respective officers, directors, employees or agents) from and against any
taxes that may at any time be asserted against any such Person with respect to
the transactions contemplated herein and in the other Transaction Documents,
including any sales, gross receipts, general corporation, tangible personal
property, personal property replacement privilege or license taxes (but, in
the case of the Trust, not including any taxes asserted with respect to, and
as of the date of, the transfer of Contracts to the Trust or the issuance and
original sale of Senior Certificates, or asserted with respect to ownership of
Contract Assets, or federal or other income taxes arising out of payments from
Collections on the Trust Assets) and costs and expenses in defending against
the same.
The Depositor shall indemnify, defend and hold harmless the Trust,
the Owner Trustee, the Indenture Trustee and the Servicer (and any of their
respective officers, directors, employees or agents) and the Securityholders
from and against any loss, liability or expense incurred by reason of the
Depositor's willful misfeasance, bad faith or negligence (other than errors in
judgment) in the performance of its duties under this Agreement, or by reason
of reckless disregard of its obligations and duties under this Agreement.
The Depositor shall indemnify, defend and hold harmless the Trust,
the Owner Trustee, the Indenture Trustee and the Servicer (and any of their
respective officers, directors, employees or agents) and any Senior
Certificateholder from and against all costs, expenses, losses, claims,
damages and liabilities arising out of or incurred in connection with the
acceptance or performance (or failure of performance) of the trusts and duties
herein and, in the case of the Owner Trustee, in the Trust Agreement and, in
the case of the Indenture Trustee, in the Indenture, except to the extent that
such cost, expense, loss, claim, damage or liability in the case of: (i) the
Owner Trustee; shall be due to the willful misfeasance, bad faith or
negligence of the Owner Trustee, or shall arise from the breach by the Owner
Trustee of any of its representations or warranties set forth in Section 7.03
of the Trust Agreement, or (ii) the Indenture Trustee, shall be due to the
willful misfeasance, bad faith or negligence of the Indenture Trustee.
The Depositor shall be liable directly to and will indemnify any
injured party or any other creditor of the Trust for all losses, claims,
damages, liabilities and expenses of the Trust to the extent that the
Depositor would be liable if the Trust were a partnership under the Delaware
Revised Uniform Limited Partnership Act in which the Depositor were a general
partner; provided, however, that the Depositor shall not be liable for any
losses incurred by the Equity Certificateholder in the capacity of an investor
in the Equity Certificate or a Noteholder in the capacity of an investor in
the Notes. In addition, any third party creditors of the Trust (other than in
connection with the obligations described in the immediately preceding
sentence for which the Depositor shall not be liable) shall be deemed third
party beneficiaries of this paragraph. The obligation of the Depositor under
this paragraph shall be evidenced by the Equity Certificate.
The Depositor shall indemnify, defend and hold harmless the Owner
Trustee and the Indenture Trustee from and against any loss, liability or
expense incurred by reason of the Depositor's or Trust's violation of federal
or State securities laws in connection with the offering and sale of the Notes
and the Certificate.
Indemnification under this Section shall include, without limitation,
reasonable fees and expenses of counsel and expenses of litigation; provided,
however, that the indemnification under this Section, notwithstanding anything
to the contrary, is limited to the assets of the Depositor (including its
rights under Article VI of the Purchase and Sale Agreement); provided,
further, any indemnity payments to be made pursuant to this Section shall not
be made from the Trust Assets (except to the extent any of the same have been
distributed to the Depositor free and clear of any interest of the Trust
therein and except to the extent [ ] as co-obligor is obligated to make such
payment pursuant to Article VI of the Purchase and Sale Agreement), and such
indemnity payments, if unpaid, shall not constitute a claim against the Trust
or the Trust Assets (except in respect of rights against [ ] in respect of
such Article VI). If the Depositor (or [ ] pursuant to such Article VI) shall
have made any indemnity payments pursuant to this Section and the Person to or
on behalf of whom such payments are made thereafter shall collect any of such
amounts from others, such Person shall promptly repay such amounts to the
Depositor (or [ ], as applicable), without interest.
Indemnification under this Section shall survive the resignation or
removal of the Owner Trustee or the Indenture Trustee, as the case may be, and
the termination of this Agreement.
Section 6.17 Bankruptcy Limitations. The Depositor shall not, without
the affirmative vote of each of the manager/directors of the Depositor (which
must include the affirmative vote of at least one duly appointed Independent
Director as defined in the Certificate of Formation and the Limited Liability
Company Agreement of the Depositor): (A) dissolve or liquidate, in whole or in
part, or institute proceedings to be adjudicated bankrupt or insolvent, (B)
consent to the institution of bankruptcy or insolvency proceedings against it,
(C) file a petition seeking or consent to reorganization or relief under any
applicable federal or state law relating to bankruptcy, (D) consent to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Depositor or a substantial part of its
property, (E) make a general assignment for the benefit of creditors, (F)
admit in writing its inability to pay its debts generally as they become due,
or (G) take any entity action in furtherance of the actions set forth in
clauses (A) through (F) above; provided, however, that no manager/director may
be required by any member of the Depositor to consent to the institution of
bankruptcy or insolvency proceedings against the Depositor so long as it is
Solvent.
Section 6.18 Limitation on Liability of Depositor and Others. The
Depositor and any director or officer or employee or agent of the Depositor
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.
The Depositor shall not be under any obligation to appear in, prosecute or
defend any legal action that shall not be incidental to its obligations under
this Agreement, and that in its opinion may involve it in any expense or
liability.
Section 6.19 Chief Executive Office. During the term of this
Agreement, the Depositor will maintain its chief executive office in one of
the States of the United States, except [ ], [ ], [ ], [ ], [ ], [ ], [ ]
or [ ].
ARTICLE VII
ESTABLISHMENT OF ACCOUNTS; PAYMENTS
Section 7.01 Trust Accounts; Collections. (a) On or before the
Closing Date, the Trust Deposits or (or the Servicer on its behalf) shall
establish the Collection Account, Note Distribution Account and Cash
Collateral Account, each in the name of the Indenture Trustee for the benefit
of the Noteholders and the Certificateholder. The Servicer and Indenture
Trustee are hereby required to ensure that each of the Trust Accounts is
established and maintained as a segregated corporate trust account with a
Qualified Institution. If any institution with which any of the accounts
established pursuant to this Section 7.01(a) ceases to be a Qualified
Institution, the Servicer shall within 30 days after notice of such event
establish a replacement account at a Qualified Institution, and effect (or
cause to be effected) a concurrent transfer of all amounts in the current
non-qualifying account to the replacement account.
(b) The Servicer shall deposit or cause to be deposited, without
deposit into any intervening account, into the Collection Account as promptly
as practical after the Date of Processing (but in any case not later than the
second Business Day following the Date of Processing thereof), all Pledged
Revenues on deposit with the Servicer in the form of available funds, and all
Pledged Revenues otherwise received by the Servicer (and all Investment
Earnings from investments of the Collection Account).
(c) Notwithstanding Section 7.01(b), the Servicer shall deposit or
cause to be deposited, on the Closing Date and on each Substitution Transfer
Date, in immediately available funds into the Collection Account, all Pledged
Revenues received after the applicable Cut-off Date and through and including
the date which is two Business Days preceding the Closing Date or Substitution
Transfer Date, as the case may be, in respect of Contracts being transferred
to the Trust on such date.
(d) Notwithstanding Sections 7.01(b) and (c), if: (i) the Servicer
makes a deposit into the Collection Account in respect of Pledged Revenues of
a Contract in the Contract Pool and such Pledged Revenues were received by the
Servicer in the form of a check which is not honored for any reason, or (ii)
the Servicer makes a mistake with respect to the amount of any Pledged
Revenues and deposits an amount that is less than or more than the actual
amount of such Collection, the Servicer shall appropriately adjust the amount
subsequently deposited into the Pledged Revenues Account to reflect such
dishonored check or mistake. Any Scheduled Payment in respect of which a
dishonored check is received shall be deemed not to have been paid.
Section 7.02 Cash Collateral Account.
(a) On the Closing Date, the Depositor shall deposit the sum of $[ ]
into the Cash Collateral Account from the net proceeds of the sale of the
Notes and the Indenture Trustee shall deposit into the Cash Collateral Account
proceeds of loans made by the Cash Collateral Account Lenders equal to $[ ].
(b) If on any Payment Date, the amounts on deposit in the Cash
Collateral Account (after giving effect to all deposits thereto or withdrawals
therefrom on such Payment Date) is greater than the Required Cash Collateral
Amount, the Indenture Trustee shall distribute the excess of the amount on
deposit in the Cash Collateral Account over the Required Cash Collateral
Amount as provided in the Cash Collateral Account Agreement. Amounts properly
distributed pursuant to the prior sentence shall be deemed released from the
Trust Estate and the security interest herein granted to the Trustee, and the
Trust shall in no event be required to refund such distributed amounts.
Section 7.03 Trust Account Procedures. If the Servicer so directs, in
writing (with a copy to the Owner Trustee), the Qualified Institution
maintaining any Trust Account may invest the amounts therein in Eligible
Investments of the type specified in such written direction that mature not
later than one Business Day prior to the next succeeding Payment Date (or that
mature on such other Business Day as the Rating Agencies shall approve). Once
such funds are invested, the Servicer shall not change or permit a change in
the investment of such funds. Subject to the other provisions hereof, the
Indenture Trustee shall have sole control over each such investment and the
income thereon, and any certificate or other instrument evidencing any such
investment, if any, shall be delivered directly to the Indenture Trustee or
its agent, together with each document of transfer, if any, necessary to
transfer title to such investment to the Indenture Trustee in a manner which
complies with this Section 7.03. All Investment Earnings on investments of
funds in the Collection Account and Note Distribution Account shall be
deposited in or maintained within the Collection Account pursuant to Section
7.01 and distributed on the next Payment Date pursuant to Section 7.05. All
Investment Earnings in the Cash Collateral Account shall be distributed in
accordance with the Cash Collateral Account Agreement. The Servicer, the
Depositor and the Trust agree and acknowledge that the Indenture Trustee is to
have "control" (within the meaning of Section 8-102 of the UCC as enacted in
New York) of collateral consisting of "Investment Property" (within the
meaning of Section 9-102(a)(49) of the UCC as enacted in New York) for all
purposes of this Agreement. In the absence of timely written direction from
the Servicer, the Indenture Trustee shall invest or cause to be invested
amounts in the Trust Accounts in Eligible Investments of the type specified in
clause (vi) of the definition of Eligible Investments herein.
Section 7.04 Securityholder Payments. (a) On each Payment Date, each
Noteholder and the Equity Certificateholder as of the related Record Date
shall be paid amounts payable on such date pursuant to Section 7.05 below by
check mailed to such Noteholder or the Equity Certificateholder at the address
for such Noteholder or the Equity Certificateholder appearing on the Note
Register or the Certificate Register, or by wire transfer if such Noteholder
or the Equity Certificateholder has provided written instructions for such
payment method to the Indenture Trustee and Owner Trustee, respectively, at
least ten days prior to such Payment Date.
(b) The Indenture Trustee shall serve as the Paying Agent hereunder
and shall make the payments to the Noteholders and the Equity
Certificateholder required hereunder. The Indenture Trustee hereby agrees that
all amounts held by it for payment hereunder will be held in trust for the
benefit of the Noteholders and Certificateholder.
Section 7.05 Allocations and Payments.
(a) Distributions. On each Payment Date, the Trustee shall (based
solely on the information contained in the Servicer's Certificate delivered on
the related Determination Date, upon which the Trustee may conclusively rely)
distribute the following amounts and in the order of priority specified below.
Within each order of priority, amounts shall be deemed withdrawn first from
Available Pledged Revenues, and second (but only as to amounts described in
clauses (ii) and (iii) below) from amounts deposited in the Collection Account
pursuant to Section 7.02.
(i) first, from the Available Pledged Revenues then on
deposit in the Collection Account, to the Servicer, the Servicing Fee
and Servicer Advances for the related Collection Period (less that
portion thereof to be applied by the Trustee in accordance with the
Cash Collateral Account Agreement) and any amounts specified in
Section 2.05 hereof, to the extent the Servicer has not reimbursed
itself in respect of such amounts;
(ii) second, from the Amount Available then remaining on
deposit in the Collection Account, to the Note Distribution Account
an amount equal to the Note Interest Distributable Amount for such
Payment Date;
(iii) third, from the Amount Available then remaining on
deposit in the Collection Account, to the Note Distribution Account,
an amount equal to the Note Principal Distributable Amount for such
Payment Date;
(iv) fourth, from the Amount Available then remaining on
deposit in the Collection Account, to the Cash Collateral Account,
the amount, if any, necessary to increase the balance therein to the
Requisite Cash Collateral Amount;
(v) fifth, from the Amount Available then remaining on
deposit in the Collection Account, to the parties entitled thereto in
accordance with the Cash Collateral Account Agreement, any amounts
due and unpaid thereunder; and
(vi) sixth, any remaining Amount Available to the Owner
Trustee for distribution to the Equity Certificateholder.
In the event the Servicer's Certificate shows that, as of any Determination
Date, there are amounts on deposit in the Collection Account which do not
constitute Pledged Revenues due to the clause (ii)(b) of the definition
thereof and to which the Depositor is entitled pursuant to Section 2.04
hereof, the Trustee shall forthwith pay such amount to or upon the order of
the Depositor.
(b) Allocations and Payments Prior to an Event of Default. On each
Payment Date and Redemption Date prior to an Event of Default, the Servicer,
pursuant to written monthly payment instructions and notification, shall
instruct the Indenture Trustee to withdraw and transfer, and on the succeeding
Payment Date the Indenture Trustee acting in accordance with such written
instructions shall withdraw and transfer, the amounts required to be withdrawn
from the Note Distribution Account in order to make the following payments or
allocations from the Amount Available for the related Payment Date (in each
case, such payment or transfer to be made only to the extent funds remain
available therefor after all prior payments and transfers for such Payment
Date have been made), in the following order of priority:
(i) pay to the Indenture Trustee on behalf of the Class A-1
Noteholders an amount equal to the Class A-1 Interest Distributable
Amount; provided, that if the Amount Available remaining to be
allocated pursuant to this clause are less than the full amount
required to be so allocated, such remaining Amount Available shall be
allocated to the Holders of Class A-1 Notes pro rata based upon their
respective entitlement pursuant to this clause;
(ii) pay to the Indenture Trustee on behalf of the Class A-2
Noteholders an amount equal to the Class A-2 Interest Distributable
Amount ; provided, that if the Amount Available remaining to be
allocated pursuant to this clause are less than the full amount
required to be so allocated, such remaining Amount Available shall be
allocated to the Holders of Class A-2 Notes pro rata based upon their
respective entitlement pursuant to this clause;
(iii) pay to the Indenture Trustee on behalf of the Class
A-3 Noteholders an amount equal to the Class A-3 Interest
Distributable Amounts provided, that if the Amount Available
remaining to be allocated pursuant to this clause are less than the
full amount required to be so allocated, such remaining Amount
Available shall be allocated to the Holders of Class A-3 Notes pro
rata based upon their respective entitlement pursuant to this clause;
(iv) pay to the Indenture Trustee on behalf of the Class A-4
Noteholders an amount equal to the Class A-4 Interest Distributable
Amount; provided, that if the Amount Available remaining to be
allocated pursuant to this clause are less than the full amount
required to be so allocated, such remaining Amount Available shall be
allocated to the Holders of Class A-4 Notes pro rata based upon their
respective entitlement pursuant to this clause;
(v) pay to the Indenture Trustee on behalf of the Class A-5
Noteholders an amount equal to the Class A-5 Interest Distributable
Amount; provided, that if the Amount Available remaining to be
allocated pursuant to this clause are less than its full amount
required to be so allocated, such remaining Amount Available shall be
allocated to its Holders of Class A-5 Notes pro rata based upon their
respective entitlement pursuant to this clause;
(vi) pay to the Indenture Trustee on behalf of the Class B
Noteholders an amount equal to the Class B Interest Distributable
Amount; provided, that if the Amount Available remaining to be
allocated pursuant to this clause are less than the full amount
required to be so paid, such remaining Amount Available shall be paid
to the Holders of Class B Notes pro rata based on their respective
entitlement pursuant to this clause;
(vii) pay to the Indenture Trustee on behalf of the Class C
Noteholders, an amount equal to the Class C Interest Distributable
Amount; provided, that if the Amount Available remaining to be
allocated pursuant to this clause are less than the full amount
required to be so paid, such remaining Amount Available shall be paid
to the Holders of Class C Notes pro rata based on their respective
entitlement pursuant to this clause;
(viii) pay to the Indenture Trustee on behalf of the Class D
Noteholders an amount equal to the Class D Interest Distributable
Amount; provided, that if the Amount Available remaining to be
allocated pursuant to this clause are less than the full amount
required to be so paid, such remaining Amount Available shall be paid
to the Holders of Class D Notes pro rata based on their respective
entitlement pursuant to this clause;
(ix) prior to the Payment Date on which the Class A-1
Principal Balance has been reduced to zero, pay to the Indenture
Trustee, on behalf of the Class A-1 and Class A-5 Noteholders, the
Class A Principal Payment Amount, [ ]% of which shall be distributed
to the Class A-1 Noteholders and [ ]% of which shall be distributed
to the Class A-5 Noteholders; provided that if the amount available
to make such payments is not sufficient to pay the full Class A
Principal Payment Amount, such amount available shall be allocated:
(1) if such Payment Date is the Class A-1 Stated Maturity Date (or
any Payment Date thereafter until the Class A-1 Principal Balance has
been reduced to zero), first, to the Class A-1 Noteholders to the
extent necessary to reduce the Class A-1 Principal Balance to zero,
and, thereafter, to the Class A-5 Noteholders, and (2) for any other
Payment Date, between the Class A-1 Noteholders and the Class A-5
Noteholders in the respective percentages specified above in this
clause;
(x) on the Payment Date on which the Class A-1 Principal
Balance shall be reduced to zero, pay to the Indenture Trustee, on
behalf of the Class A Noteholders, the Class A Principal Payment
Amount, allocated as follows:
(A) to the Class A-1 Noteholders, the remaining Class A-1
Principal Balance;
(B) to the Class A-5 Noteholders, an amount equal to [ ]% of
the Total Principal Payment Amount; and
(C) the remaining Class A Principal Payment Amount, if any,
to the Class A-2 Noteholders until the Class A-2 Principal Balance
has been reduced to zero, then to the Class A-3 Noteholders until the
Class A-3 Principal Balance has been reduced to zero, then to the
Class A-4 Noteholders until the Class A-4 Principal Balance has been
reduced to zero and then to the Class A-5 Noteholders until the Class
A-5 Principal Balance has been reduced to zero;
provided, that if the amount available to make such payments
is not sufficient to pay the full Class A Principal Payment
Amount, such amount available shall be allocated, first, to
the Class A-1 Notes and the Class A-5 Notes as provided in
clauses (A) and (B) above (and, if such amount available is
not sufficient to pay the full amounts so provided for, such
amount available shall be allocated: (I) if such Payment
Date is the Class A-1 Stated Maturity Date (or any Payment
Date thereafter until the Class A-1 Principal Balance has
been reduced to zero), first, to the Class A-1 Noteholders
to the extent necessary to reduce the Class A-1 Principal
Balance to zero, and, thereafter, to the Class A-5
Noteholders, and (II) for any other Payment Date, between
the Class A-1 Notes and the Class A-5 Notes pro rata based
upon the amounts otherwise payable pursuant to such clauses
(1) and (2)), and, thereafter, to the Class ▇-▇, ▇▇▇▇▇ ▇-▇,
Class A-4 and Class A-5 Notes as provided in clause (3)
above;
(xi) after the Payment Date on which the Class A-1 Principal
Balance has been reduced to zero, pay to the Indenture Trustee, on
behalf of the Class A Noteholders, the Class A Principal Payment
Amount, allocated as follows:
(A) on and prior to the Payment Date on which the Class A-4
Principal Balance has been reduced to zero:
(1) to the Class A-5 Noteholders, an amount equal to [ ]% of
the Total Principal Payment Amount; and
(2) the remaining Class A Principal Payment Amount to the
Class A-2 Noteholders until the Class A-2 Principal Balance has been
reduced to zero, then to the Class A-3 Noteholders until the Class
A-3 Principal Balance has been reduced to zero, then to the Class A-4
Noteholders until the Class A-4 Principal Balance has been reduced to
zero and then to the Class A-5 Noteholders until the Class A-5
Principal Balance has been reduced to zero;
provided, that if the amount available to make such payments
is not sufficient to pay the full Class A Principal Payment
Amount, such amount available shall be allocated: (x) if
such Payment Date is the Stated Maturity Date of the Class
▇-▇, ▇-▇ or A-4 Notes (or any Payment Date thereafter until
the Principal Balance of such Class has been reduced to
zero), first, to the Noteholders of such Class to the extent
necessary to reduce the Principal Balance of such Class to
zero, and, thereafter, to the Class A-5 Noteholders, and (y)
for any other Payment Date, between the Class A-5 Notes, on
the one hand, and the Class A-2, Class A-3 and Class A-4
Notes, on the other, pro rata based upon the amounts
otherwise payable pursuant to clauses (1) and (2) above; and
(B) after the Payment Date on which the
Class A-4 Principal Balance has been reduced to zero,
to the Class A-5 Notes until the Class A-5 Principal
Balance has been reduced to zero;
(xii) pay to the Indenture Trustee on behalf of the Class B
Noteholders, the Class B Principal Payment Amount;
(xiii) pay to the Indenture Trustee on behalf of the Class C
Noteholders, the Class C Principal Payment Amount;
(xiv) pay to the Indenture Trustee on behalf of the Class D
Noteholders, the Class D Principal Payment Amount; and
(xv) the Additional Principal, if any, to the Indenture
Trustee for the benefit, sequentially, of the Class ▇-▇, ▇▇▇▇▇ ▇-▇,
Class A-3, Class A-4, Class A-5, Class B, Class C, and Class D
Noteholders.
(c) Allocations and Payments after an Event of Default. On each
Determination Date after the occurrence of an Event of Default, the Servicer,
pursuant to monthly payment instructions and notification, shall instruct the
Indenture Trustee to withdraw and transfer, and on the succeeding Payment Date
the Indenture Trustee acting in accordance with such instructions shall
withdraw and transfer, the amounts required to be withdrawn from the Note
Payment Account in order to make the following payments or allocations from
the Amount Available for the related Payment Date (in each case, such payment
or transfer to be made only to the extent funds remain available therefor
after all prior payments and transfers for such Payment Date have been made),
in the following order of priority:
(i) pay to the Indenture Trustee on behalf of the Class A-1
Noteholders, Class A-2 Noteholders; Class A-3 Noteholders, the Class
A-4 Noteholders and the Class A-5 Noteholders, an amount equal to
interest accrued in respect of the related Class A-1 Notes, Class A-2
Notes, Class A-3 Notes, Class A-4 Notes and Class A-5 Notes at the
respective Class A-1 Interest Rate, Class A-2 Interest Rate, Class
A-3 Interest Rate, Class A-4 Interest Rate and Class A-5 Interest
Rate for the Accrual Period immediately preceding such Payment Date,
together with any such amounts that accrued in respect of prior
Accrual Periods for which no allocation was previously made;
provided, that if the Amount Available remaining to be allocated
pursuant to this clause are less than the full amount required to be
so allocated, such remaining Amount Available shall be allocable to
the Holders of the Class A-1 Notes, Class A-2 Notes, Class A-3 Notes,
Class A-4 Notes and Class A-5 Notes pro rata based upon the
then-outstanding Principal Amount thereof;
(ii) pay to the Indenture Trustee on behalf of the Class B
Noteholders an amount equal to the interest accrued thereon at the
Class B Interest Rate for the Accrual Period immediately preceding
such Payment Date, together with any amounts that accrued in respect
of prior Accrual Periods for which no allocation was previously made;
provided, that if the Amount Available remaining to be allocated
pursuant to this clause are less than the full amount required to be
so paid, such remaining Amount Available shall be paid to the Holder
of each Class B Note pro rata based on the outstanding Principal
Amount thereof;
(iii) pay to the Indenture Trustee on behalf of the Class C
Noteholders, an amount equal to the interest accrued thereon at the
Class C Interest Rate for the Accrual Period immediately preceding
such Payment Date, together with any such amounts that accrued in
respect of prior Accrual Periods for which no allocation was
previously made; provided, that if the Amount Available remaining to
be allocated pursuant to this clause are less than the full amount
required to be so paid, such remaining Amount Available shall be paid
to the Holder of each Class C Note pro rata based on the outstanding
Principal Amount thereof;
(iv) pay to the Indenture Trustee on behalf of the Class D
Noteholders, an amount equal to the interest accrued thereon at the
Class D Interest Rate for the Accrual Period immediately preceding
such Payment Date, together with any such amounts that accrued in
respect of prior Accrual Periods for which no allocation was
previously made; provided, that if the Amount Available remaining to
be allocated pursuant to this clause are less than the full amount
required to be so paid, such remaining Amount Available shall be paid
to the Holder of each Class D Note pro rata based on the outstanding
principal amount thereof;
(v) pay to the Indenture Trustee, on behalf of the Class A-1
Noteholders, the Class A-1 Principal Payment Amount for such Payment
Date; provided, that: (i) if the Amount Available remaining to be
allocated pursuant to this clause are less than the full amount
required to be so paid, such remaining Amount Available shall be
allocated to each Class A-1 Note pro rata based on the outstanding
principal amount thereof and (ii) if the amount to be allocated
pursuant to this clause exceeds the amount needed to repay
outstanding Class A-1 Note principal in full, then such excess shall
be applied in repayment of principal on Class A-2 Notes;
(vi) pay to the Indenture Trustee, on behalf of the Class
A-2 Noteholders, the Class A-2 Principal Payment Amount for such
Payment Date; provided, that: (i) if the Amount Available remaining
to be allocated pursuant to this clause are less than the full amount
required to be so paid, such remaining Amount Available shall be
allocated to each Class A-2 Note pro rata based on the outstanding
principal amount thereof, and (ii) if the amount to be allocated
pursuant to this clause exceeds the amount needed to repay
outstanding Class A-2 Note principal in full, then such excess shall
be applied in repayment of principal on the Class A-3 Notes;
(vii) pay to the Indenture Trustee, on behalf of the Class
A-3 Noteholders, the Class A-3 Principal Payment Amount for such
Payment Date; provided, that: (i) if the Amount Available remaining
to be allocated pursuant to this clause are less than the full amount
required to be so paid, such remaining Amount Available shall be
allocated to each Class A-3 Note pro rata based on the outstanding
principal amount thereof, and (ii) if the amount to be allocated
pursuant to this clause exceeds the amount needed to repay
outstanding Class A-3 Note principal in full, then such excess shall
be applied in repayment of principal on the Class A-4 Notes;
(viii) pay to the Indenture Trustee, on behalf of the Class
A-4 Noteholders, the Class A-4 Principal Payment Amount for such
Payment Date; provided, that: (i) if the Amount Available remaining
to be allocated pursuant to this clause are less than the full amount
required to be so paid, such remaining Amount Available shall be
allocated to each Class A-4 Note pro rata based on the outstanding
principal amount thereof, and (ii) if the amount to be allocated
pursuant to this clause exceeds the amount needed to repay
outstanding Class A-4 Note principal in full, then such excess shall
be applied in repayment of principal on the Class A-5 Notes;
(ix) pay to the Indenture Trustee, on behalf of the Class
A-5 Noteholder, the Class A-5 Principal Payment Amount for such
Payment Date, provided, that: (i) if the Amount Available remaining
to be allocated pursuant to this clause are less than the full amount
required to be paid such remaining Amount Available shall be
allocated to each Class A-5 Note pro rata based on the outstanding
principal amount thereof, and (ii) if the amount to be allocated
pursuant to this clause exceeds the amount needed to repay
outstanding class A-5 Notes principal in full, then such excess shall
be applied in repayment of principal on the Class B Notes;
(x) pay to the Indenture Trustee, on behalf of the Class B
Noteholders, the Class B Principal Payment Amount for such Payment
Date; provided, that: (i) if the Amount Available remaining to be
allocated pursuant to this clause are less than the full amount
required to be so paid, such remaining Amount Available shall be
allocated to each Class B Note pro rata based on the outstanding
principal amount thereof, and (ii) if the amount to be allocated
pursuant to this clause exceeds the amount needed to repay
outstanding Class B Note principal in full, then such excess shall be
applied in repayment of principal on the Class C Notes;
(xi) pay to the Indenture Trustee, on behalf of the Class C
Noteholders, the Class C Principal Payment Amount for such Payment
Date; provided, that: (i) if the Amount Available remaining to be
allocated pursuant to this clause are less than the full amount
required to be so paid, such remaining Amount Available shall be
allocated to each Class C Note pro rata based on the outstanding
principal amount thereof, and (ii) if the amount to be allocated
pursuant to this clause exceeds the amount needed to repay
outstanding Class C Note principal in full, then such excess shall be
applied in repayment of principal on the Class D Notes;
(xii) pay to the Indenture Trustee, on behalf of the Class D
Noteholders, the Class D Principal Payment Amount for such Payment
Date; provided, that: (i) if the Amount Available remaining to be
allocated pursuant to this clause are less than the full amount
required to be so paid, such remaining Amount Available shall be
allocated to each Class D Note pro rata based on the outstanding
principal amount thereof;
(d) On the last Business Day preceding each Payment Date, the
Indenture Trustee shall, in accordance with directions from the Servicer,
withdraw from amounts on deposit in the Cash Collateral Account, and deposit
into the Collection Account, an amount equal to the lesser of the Available
Cash Collateral Amount for such Payment Date and the sum of the following
amounts, if any:
(i) the amount, if any, by which the Available Pledged
Revenues with respect to such Payment Date, is less than the amount
specified in clauses (b)(i)-(viii) of this Section 7.05 (or in the
case of a payment after an Event of Default in clauses (c) (i) - (iv)
of this Section 7.05; plus
(ii) the Principal Deficiency Amount, if any, for such
Payment Date, plus
(iii) with respect to the Stated Maturity Date for any Class
of Notes or on the first Payment Date on which the Contract Pool
Principal Balance is less than $1,000,000, the amount, if any, by
which the Available Pledged Revenues, after payment of all amounts
specified in clauses (b)(i) through (b)(viii) (or in the event of a
payment after an Event of Default clauses (c) (i) - (b) (iv) of
Section 7.05, is less than: (A) in the case of the Stated Maturity
Date for a Class of Notes, the remaining Principal Balance of such
Class of Notes, and (B) in the case of the first Payment Date on
which the Contract Pool Analysis Principal is less than $1,000,000
the Principal Amount of all outstanding Notes.
In the event that the Available Pledged Revenues for any Payment Date are less
than the total amount, if any, specified above for such Payment Date, the
amount actually withdrawn by the Trustee shall be applied in the order of
priority specified above, and, within each clause specified above, in the
order of priority specified in Section 7.05(b). The Servicer shall give the
Trustee and the Cash Collateral Account Lenders' Agent notice, at least three
Business Days prior to each Payment Date, of the amounts, if any, specified in
clauses (i) through (iii) above for such Payment Date.
Section 7.06 Repurchases of, or Substitution for, Contracts for
Breach of Representations and Warranties. Upon a discovery by the Servicer of
an inaccuracy or breach of a representation or warranty set forth in the
Schedule of Representations which has been made or deemed made with respect to
a Contract in the Contract Pool, which inaccuracy or breach materially
adversely affects the Trust's or any Noteholder's or the Equity
Certificateholder's interest in such Contract (without regard to the benefits
of Cash Collateral Account, any reserve fund, overcollateralization or other
similar enhancement) or the collectability thereof (an "Ineligible Contract"),
the Servicer shall promptly notify [ ] thereof. As provided in the Purchase
and Sale Agreement and in accordance with this Section 7.06, [ ] is obligated
to repurchase each such Ineligible Contract, at a repurchase price equal to
the Purchase Amount (determined as of the date such repurchase is to be
funded), not later than the second Deposit Date following the date the
Servicer becomes aware of any such breach or inaccuracy and which breach or
inaccuracy has not otherwise been cured; provided, however, that if [ ] is
able to effect a substitution for any such Ineligible Contract in compliance
with Section 2.04, [ ] may, in lieu of repurchasing such Ineligible Contract,
effect a substitution for such Ineligible Contract with a Substitute Contract
not later than the date a repurchase of such Ineligible Contract would be
required hereunder; and provided further, that with respect to a breach or
inaccuracy of any such representations or warranties relating to the Contract
Pool (or all Contracts conveyed on the Closing Date or Substitution Transfer
Date, as the case may be) in the aggregate and not to any particular Contract,
[ ] (or the Servicer acting on its behalf) may select Contracts (without
adverse selection) to repurchase (or substitute for) such that had such
Contracts not been included as part of the related Transferred Assets (and, in
the case of a substitution, had such Substitute Contract been included as part
of the related Transferred Assets instead of the selected Ineligible Contract)
there would have been no breach or inaccuracy of such representation or
warranty. Notwithstanding any other provision of this Agreement, the
obligation of [ ] under the Purchase and Sale Agreement and described in this
Section 7.06 shall not terminate or be deemed released by any party hereto
upon a Servicing Transfer pursuant to Article VIII. The right to enforce the
repurchase or substitution obligation described in this Section shall
constitute the sole remedy of the Trust, the Indenture Trustee, the Depositor
and the Holders with respect to the inaccuracy or breach related to such
Ineligible Contract. The Purchase Amount shall be allocated in accordance with
the Allocation Criteria.
Section 7.07 Reassignment of Repurchased or Substituted Contracts.
Upon deposit into the Collection Account of the Purchase Amount with respect
to an Ineligible Contract as described in Section 7.06 (or upon the
Substitution Transfer Date related to a Substitute Contract described in
Section 7.06), or of the repurchase price set forth in Section 7.08, the
Indenture Trustee shall release and reassign to [ ] all of the Trust's right
and interest in the repurchased or substituted Contract and related
Transferred Assets without recourse, representation or warranty, and such
reassigned Contract shall no longer thereafter be included in any calculations
of Contract Principal Balances required to be made hereunder or otherwise be
deemed a part of the Trust Assets.
Section 7.08 [ ] and Depositor's Repurchase Option. As provided in
the Purchase and Sale Agreement, on written notice to the Indenture Trustee at
least twenty (20) days prior to a Payment Date, and provided that the
aggregate Principal Amount of Notes outstanding is then less than 10% of the
Initial Contract Pool Principal Balance, [ ], through the Depositor, may (but
is not required to) repurchase from the Trust on that Payment Date all
outstanding Contracts in the Contract Pool at a price equal to the sum of: (a)
the aggregate outstanding Principal Amount of the Notes (other than the Equity
Certificate) plus accrued unpaid interest thereon as of the current Payment
Date, and (b) the amount of unreimbursed Servicer Advances (if any) as well as
accrued and unpaid monthly Servicing Fees to the date of such repurchase plus
(c) any other amounts that would otherwise be payable from Pledged Revenues on
such Payment Date (assuming sufficient Pledged Revenues were available to
effect such payments) pursuant to Article VII, minus (d) Pledged Revenues and
other Available Pledged Revenues on deposit in the Collection Account and
available to make such payments on such Payment Date. Such price is to be
deposited in the Collection Account not later than the Deposit Date preceding
such Payment Date, against the Indenture Trustee's and Depositor's release of
the Contract Assets and the related Contract Files to [ ].
ARTICLE VIII
SERVICER DEFAULTS; SERVICING TRANSFER
Section 8.01 Servicer Default. "Servicer Default" means the
occurrence of any of the following:
(a) any failure by the Servicer to make any payment, transfer or
deposit or to give instructions or notice to the Owner Trustee or the
Indenture Trustee to make any payment, transfer or deposit, or to deliver the
Monthly Report pursuant to this Agreement, which failure continues unremedied
for a period of five (5) Business Days after the first to occur of: (i)
written notice from the Owner Trustee or the Indenture Trustee of such failure
shall have been given to the Servicer, or (ii) the date the Servicer becomes
aware thereof; or
(b) failure on the part of the Servicer duly to observe or perform
any other covenants or agreements of the Servicer set forth in this Agreement
which has a material adverse effect on the Noteholders or the Equity
Certificateholder, which continues unremedied for a period of thirty (30) days
after the first to occur of: (i) the date on which written notice of such
failure requiring the same to be remedied shall have been given to the
Servicer by and the Indenture Trustee or to the Servicer and the Indenture
Trustee by the Noteholders or the Equity Certificateholder or the Indenture
Trustee on behalf of such Noteholders of Notes aggregating not less than 25%
of the Principal Amount of any Class adversely affected thereby, and (ii) the
date on which the Servicer becomes aware thereof, and such failure continues
to materially adversely affect the Noteholders or the Equity
Certificateholders for such period; or
(c) any representation, warranty or certification made by the
Servicer in this Agreement or in any certificate delivered pursuant hereto
shall prove to have been incorrect when made, which has a material adverse
effect on the Noteholders or Equity Certificateholder and which continues to
be incorrect in any material respect for a period of thirty (30) days after
the first to occur of: (i) the date on which written notice of such
incorrectness requiring the same to be remedied shall have been given to the
Servicer and the Owner Trustee by the Indenture Trustee, or to the Servicer,
the Owner Trustee and the Indenture Trustee by Noteholders or the Equity
Certificateholders or by the Indenture Trustee on behalf of Noteholders of
Notes aggregating not less than 25% of the Principal Amount of any Class
adversely affected thereby, and (ii) the date on which the Servicer becomes
aware thereof, and such incorrectness continues to materially adversely affect
the Noteholders or Equity Certificateholders for such period; or
(d) an Insolvency Event shall occur with respect to the Servicer.
Notwithstanding the foregoing, a delay in or failure of performance
referred to under clause (a) above for a period of five (5) Business Days or
referred to under clause (b) or (c) for a period of sixty (60) days (in
addition to any period provided in (a), (b) or (c)) shall not constitute a
Servicer Default until the expiration of such additional five (5) Business
Days or sixty (60) days, respectively, if such delay or failure could not be
prevented by the exercise of reasonable diligence by the Servicer and such
delay or failure was caused by an act of God or other similar occurrences.
Upon the occurrence of any such event the Servicer shall not be relieved from
using its best efforts to perform its obligations in a timely manner in
accordance with the terms of this Pooling Agreement and the Servicer shall
provide the Owner Trustee, the Indenture Trustee and the Depositor prompt
notice of such failure or delay by it, together with a description of its
efforts to so perform its obligations. The Servicer shall promptly notify the
Indenture Trustee in writing of any Servicer Default.
Section 8.02 Servicing Transfer. (a) If a Servicer Default has
occurred and is continuing, the Required Holders, or the Indenture Trustee,
may, by written notice (a "Termination Notice") delivered to the parties
hereto, terminate all (but not less than all) of the Servicer's rights and
obligations under this Pooling Agreement with respect to the Trust Assets.
(b) Upon delivery of the Termination Notice (or, if later, on a date
designated therein), and on the date that a successor Servicer shall have been
appointed pursuant to Section 8.03 (such appointment being herein called a
"Servicing Transfer"), all rights, benefits, fees, indemnities, authority and
power of the Servicer under this Pooling Agreement, whether with respect to
the Contracts in the Contract Pool, the Contract Files or otherwise, shall
pass to and be vested in such successor (the "Successor Servicer") pursuant to
and under this Section 8.02; and, without limitation, the Successor Servicer
is 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 any and all acts or things necessary or appropriate to effect the
purposes of such notice of termination. The Servicer agrees to cooperate with
the Successor Servicer in effecting the termination of the responsibilities
and rights of the Servicer under this Pooling Agreement, including, without
limitation, the transfer to the Successor Servicer for administration by it of
all cash amounts which shall at the time be held by the Servicer for deposit,
or have been deposited by the Servicer, in the Collection Account, or for its
own account in connection with its services hereafter or thereafter received
with respect to the Contracts in the Contract Pool. The Servicer shall
transfer to the Successor Servicer: (i) all records held by the Servicer
relating to such Contracts in such electronic form as the Successor Servicer
may reasonably request and (ii) any related Contract Files in the Servicer's
possession. In addition, the Servicer shall permit access to its premises
(including all computer records and programs) to the Successor Servicer or its
designee, and shall pay the reasonable transition expenses of the Successor
Servicer. Upon a Servicing Transfer, the Successor Servicer shall also be
entitled to receive the Servicing Fee for performing the obligations of the
Servicer.
Section 8.03 Appointment of Successor Servicer; Reconveyance;
Successor Servicer to Act. Upon delivery of the Termination Notice (or, if
later, on a date designated therein), the Servicer shall continue to perform
all servicing functions under this Pooling Agreement until the date specified
in the Termination Notice or, if no such date is specified, until a date
mutually agreed by the Servicer and the Indenture Trustee. The Indenture
Trustee shall as promptly as possible after the giving of or receipt of a
Termination Notice, appoint a Successor Servicer, and such Successor Servicer
shall accept its appointment by a written assumption and by delivery of an
opinion of counsel to the Successor Servicer relating to corporate matters and
enforceability, in each case in a form acceptable to the Indenture Trustee and
the Owner Trustee. In effecting such appointment, the Indenture Trustee shall
seek bids from potential servicers which are established financial
institutions each having a net worth of at least $50,000,000 and whose regular
business includes the servicing of contracts similar to the Contracts in the
Contract Pool.
In the event that a Successor Servicer has not been appointed and has
not accepted its appointment within 60 days of the delivery of a Termination
Notice, then the Indenture Trustee shall offer the Depositor, and the
Depositor shall offer the [ ], the right to accept retransfer of all the Trust
Assets, and such party may accept retransfer of such Trust Assets in
consideration of the Depositor's delivery to the Collection Account on or
prior to the next upcoming Payment Date of a sum equal to the Aggregate
Principal Amount of all Notes then outstanding, together with accrued and
unpaid interest thereon through such date of deposit; provided, that the
Indenture Trustee, if so directed by, the Required Holders, need not accept
and effect such reconveyance in the absence of evidence (which may include
valuations of an investment bank or similar entity) reasonably acceptable to
such Indenture Trustee or Required Holders that such retransfer would not
constitute a fraudulent conveyance of the Depositor or [ ]; provided, further,
[ ] may not accept such retransfer unless it shall have delivered to each
Rating Agency an Opinion of Counsel that such retransfer would not constitute
a fraudulent conveyance of the Depositor or the Seller or that such retransfer
would not constitute a preferential payment by the Depositor or [ ].
In the event that a Successor Servicer has not been appointed and has
not accepted its appointment at the time when the then Servicer has ceased to
act as Servicer, the Indenture Trustee without further action shall
automatically be appointed the Successor Servicer. Notwithstanding the
foregoing, if the Indenture Trustee is legally unable or prohibited from so
acting, it shall petition a court of competent jurisdiction to appoint any
established financial institution having a net worth of at least $50,000,000
and whose regular business includes the servicing of contracts similar to the
Contracts in the Contract Pool as the Successor Servicer hereunder. On or
after a Servicing Transfer, the Successor Servicer shall be the successor in
all respects to the Servicer in its capacity as servicer under this Pooling
Agreement, and the transactions set forth or provided for in this Pooling
Agreement, and shall be subject to all the responsibilities, duties and
liabilities relating thereto placed on the Servicer by the terms and
provisions hereof, and the terminated Servicer shall be relieved of such
responsibilities, duties and liabilities arising after such Servicing
Transfer; provided, however, that the Successor Servicer shall not be liable
for any acts or omissions of the departing Servicer occurring prior to such
Servicer Servicing Transfer or for any breach by the departing Servicer of any
of its representations and warranties contained in this Pooling Agreement or
in any related or Transaction Document or other agreement. As compensation
therefor, the Successor Servicer shall be entitled to receive the Servicing
Fee. The Trust, the Noteholders and the Equity Certificateholders, the
Indenture Trustee and such successor shall take such action, consistent with
this Pooling Agreement, as shall be necessary to effectuate any such
succession. To the extent the terminated Servicer has made Servicer Advances,
it shall be entitled to reimbursement of the same notwithstanding its
termination hereunder, to the same extent as if it had continued to service
the Trust Assets hereunder. In addition, it is understood and agreed that if
an Event of Default has occurred and a Servicer Transfer is being effected by
action of the Indenture Trustee hereunder, any documented expenses reasonably
incurred by the Indenture Trustee in connection with effecting such Servicer
Transfer shall be deemed expenses reimbursable from Available Pledged Revenues
after an Event of Default pursuant to Section 7.05(b)(i) hereof and Section
5.06(a)(i) of the Indenture.
Section 8.04 Notifications to Noteholders and the Equity
Certificateholders. (a) Promptly following the occurrence of any Servicer
Default, the Servicer shall give written notice thereof to the Trustees, the
Depositor and each Rating Agency at the addresses described in Section 11.04
and to the Noteholders and Equity Certificateholder at their respective
addresses appearing on the Note Register and the Certificate Register,
respectively.
(b) Within ten (10) days following any termination or appointment of
a Successor Servicer pursuant to this Article VIII, the Indenture Trustee
shall give written notice thereof to each Rating Agency and the Depositor at
the addresses described in Section 11.04, and to the Noteholders and the
Equity Certificateholder at their respective addresses appearing on the Note
Register and the Certificate Register, respectively.
Section 8.05 Effect of Transfer. (a) After a Servicing Transfer, the
terminated Servicer shall have no further rights or obligations under this
Pooling Agreement, including, without limitation, with respect to the
management, administration, servicing, custody or collection of the Trust
Assets, and the Successor Servicer appointed pursuant to Section 8.03 shall
have all of such obligations, except that the terminated Servicer will
transmit or cause to be transmitted directly to the Successor Servicer for its
own account, promptly on receipt and in the same form in which received, any
amounts or items (properly endorsed where required for the Successor Servicer
to collect them) received as payments upon or otherwise in connection with the
Contracts in the Contract Pool.
(b) A Servicing Transfer shall not affect the rights and duties of
the parties to this Pooling Agreement (including but not limited to the
indemnities of the departing Servicer) other than those relating to the
management, administration, servicing, custody or collection of the Contracts
in the Contract Pool and related Transferred Assets.
Section 8.06 Database File. The Servicer will provide the Successor
Servicer with a magnetic tape containing the database file for each Contract
in the Contract Pool on and as of the Business Day before the actual
commencement of servicing functions by the Successor Servicer following the
occurrence of a Servicer Default.
Section 8.07 Successor Servicer Indemnification. The departing
Servicer shall defend, indemnify and hold the Successor Servicer and any
officers, directors, employees or agents of the Successor Servicer harmless
against any and all claims, losses, penalties, fines, forfeitures, reasonable
legal fees and related costs, judgments and any other costs, fees, and
expenses that the Successor Servicer may sustain in connection with the claims
asserted at any time by third parties against the Successor Servicer which
result from: (i) any willful or grossly negligent act taken or omission by the
departing Servicer or (ii) a breach of any representations of the departing
Servicer in Section 3.02. The indemnification provided by this Section 8.07
shall survive: (a) a Servicing Transfer and/or (b) the termination of this
Agreement.
Section 8.08 Responsibilities of the Successor Servicer. The
Successor Servicer will not be responsible for delays attributable to the
departing Servicer's failure to deliver information, defects in the
information supplied by the departing Servicer or other circumstances beyond
the control of the Successor Servicer.
The Successor Servicer will make arrangements with the departing
Servicer for the prompt and safe transfer of, and the departing Servicer shall
provide to the Successor Servicer, all necessary servicing files and records,
including (as deemed necessary by the Successor Servicer at such time): (i)
microfiche loan documentation, (ii) servicing system tapes, (iii) Contract
payment history, (iv) collections history and (v) the trial balances, as of
the close of business on the day immediately preceding conversion to the
Successor Servicer, reflecting all applicable Contract Pool information. The
departing Servicer shall be obligated to pay the costs associated with the
transfer of the servicing files and records to the Successor Servicer.
The Successor Servicer shall have no responsibility and shall not be
in default hereunder nor incur any liability for any failure, error,
malfunction or any delay in carrying out any of its duties under this Pooling
Agreement if any such failure or delay results from the Successor Servicer
acting in accordance with information prepared or supplied by a Person other
than the Successor Servicer or the failure of any such Person to prepare or
provide such information. The Successor Servicer shall have no responsibility,
shall not be in default and shall incur no liability: (i) for any act or
failure to act by any third party, including the departing Servicer, the
Depositor or the Trustees or for any inaccuracy or omission in a notice or
communication received by the Successor Servicer from any third party or (ii)
which is due to or results from the invalidity or unenforceability of any
Contract under applicable law or the breach or the inaccuracy of any
representation or warranty made with respect to any Contract.
Any Successor Servicer which assumes the role of Successor Servicer
hereunder shall be entitled to the benefits of (and subject to the provisions
of) Section 5.05 concerning delegation of duties to subservicers.
ARTICLE IX
SERVICER REPORTING
Section 9.01 Monthly Reports. With respect to each Payment Date and
the related Collection Period, the Servicer will provide to each Trustee, and
each Rating Agency, on the related Determination Date, a monthly statement (a
"Monthly Report") substantially in the form of Exhibit D hereto. On each
Payment Date, the Indenture Trustee will forward to each Noteholder a copy of
the Monthly Report for the related Collection Period. The parties hereto
acknowledge that the Indenture Trustee has no obligation to verify the
accuracy of the Monthly Report.
Section 9.02 Officer's Certificate. Each Monthly Report delivered
pursuant to Section 9.01 shall be accompanied by a certificate of a Servicing
Officer certifying the accuracy of the Monthly Report.
Section 9.03 Other Data. In addition, the Servicer shall, upon the
request of any Trustees, or any Rating Agency, furnish such Trustee or Rating
Agency, as the case may be, such Managing Agent such underlying data used to
generate a Monthly Report as may be reasonably requested.
Section 9.04 Annual Reporting; Evidence as to Compliance. The
Servicer shall cause a firm of nationally recognized independent accountants
(the "Independent Accountants"), who may also render other services to the
Servicer or its Affiliates, to deliver to the Trustees and each Rating Agency,
on or before March 31 (or ninety (90) days after the end of the Servicer's
fiscal year, if other than December 31) of each year, beginning on March 31, [
], with respect to the twelve months ended the immediately preceding December
31 or other applicable date), a report addressed to the Board of Directors of
the Servicer and to the Trustees (the "Accountant's Report") to the effect
that such Independent Accountants have, at the request of the Servicers: (i)
audited the financial statements of the Servicer (or, if the Servicer is a
wholly-owned subsidiary of another entity, the financial statements of such
parent entity) and issued an opinion thereon and that such audit was made in
accordance with generally accepted auditing standards as in effect in the
jurisdiction of the entity being audited, which require that such Independent
Accountants plan and perform the audit to obtain reasonable assurance as to
whether the financial statements of the Servicer (or its parent, as
applicable) are free of material misstatement, and (ii) with respect to the
immediately prior year's public securitization transactions involving similar
contracts and assets, examined management's assertion that the Servicer
maintained effective control over the servicing of such assets, in accordance
with established or stated criteria, and providing a report thereon, as well
as confirming that such examination was performed in accordance with standards
established by the American Institute of Certified Public Accountants. A copy
of the Accountant's Report may be obtained by any Securityholder by a request
in writing to the Indenture Trustee, in the case of a Noteholder, or in the
case of a Certificateholder, addressed to its respective Corporate Trust
Office.
Section 9.05 Annual Statement of Compliance from Servicer. The
Servicer will deliver to the Trustees, and each of the Rating Agencies, on or
before March 31 of each year commencing March 31, [ ], an Officer's
Certificate stating that: (a) a review of the activities of the Servicer
during the prior calendar year and of its performance under the Pooling
Agreement was made under the supervision of the officer signing such
certificate and (b) to such officer's knowledge, based on such review, the
Servicer has fully performed or cause to be performed in all material respects
all its obligations under the Pooling Agreement and no Servicer Default has
occurred or is continuing, or, if there has been a Servicer Default,
specifying each such default known to such officer and the nature and status
thereof and the steps being taken or necessary to be taken to remedy such
event.
A copy of such certificate may be obtained by any Noteholder or the
Equity Certificateholder by a request in writing to the Indenture Trustee,
with respect to any Noteholder, or the Owner Trustee, with respect to the
Equity Certificateholder.
ARTICLE X
TERMINATION
Section 10.01 Sale of Trust Assets. (a) Upon any transfer of Trust
Assets pursuant to Section 10.02 of the Trust Agreement, the Servicer shall
instruct the Indenture Trustee to deposit the proceeds from such transfer
after all payments and reserves therefrom have been made (the "Insolvency
Proceeds") into the Collection Account. On the Payment Date on which the
Insolvency Proceeds are deposited in such Collection Account (or, if such
proceeds are not so deposited on a Payment Date, on the Payment Date
immediately following such deposit), the Servicer shall instruct the Indenture
Trustee to allocate and apply the Insolvency Proceeds as if (and in the same
order of priority as) the Insolvency Proceeds were Pledged Revenues being
allocated and distributed on such date pursuant to this Pooling Agreement.
(b) Notice of any termination of the Trust shall be given by the
Servicer to the Owner Trustee and the Indenture Trustee as soon as practicable
after the Servicer has received notice thereof.
(c) Following the satisfaction and discharge of the Indenture and the
payment in full of the principal of and interest on the Notes, the Equity
Certificateholder will succeed to the rights of the Noteholders hereunder.
ARTICLE XI
MISCELLANEOUS
Section 11.01 Amendments. (a) This Pooling Agreement may be amended
by the parties signatory hereto, with the consent of the Required Holders, to
cure any ambiguity, to correct or supplement any provisions in this Agreement
which are inconsistent with other provisions herein, or to add any other
provisions with respect to matters or questions arising under this Agreement
that shall not be inconsistent with the provisions thereof.
(b) This Pooling Agreement may also be amended from time to time by
the parties signatory hereto, with the consent of the Required Holders, for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions thereof or of modifying in any manner the
rights of the Noteholders or the Equity Certificateholder; provided, however,
that no such amendment shall: (i) increase or reduce in any manner the amount
of, or accelerate or delay the timing of Pledged Revenues of payments on the
Trust Assets or payments that shall be required to be made on any Note or the
Equity Certificate (including by way of amendment of related definitions), or
(B) the manner in which the Cash Collateral Account is applied; or (ii) change
in any manner (including through amendment of related definitions), the
Noteholders and the Equity Certificateholders which are required to consent to
any such amendment; or (iii) make any Note or the Equity Certificate payable
in money other than Dollars, without the consent of the Noteholders and the
Equity Certificateholders of all Notes of the relevant affected Class then
outstanding and the Equity Certificateholder, if affected; or (iv) change in
any manner the duties of the Indenture Trustee under this Agreement without
its written consent, (in any such case).
(c) Prior to the execution of any such amendment or consent, the
Indenture Trustee shall furnish written notification of the substance of such
amendment or consent, together with a copy thereof, to each Rating Agency.
(d) Promptly after the execution of any such amendment or consent,
the Indenture Trustee, shall furnish written notification of the substance of
such amendment or consent to each Noteholder and the Equity Certificateholder,
respectively. It shall not be necessary for the consent of Noteholders and the
Equity Certificateholder pursuant to Section 11.01(b) to approve the
particular form of any proposed amendment or consent, but it shall be
sufficient if such consent shall approve the substance thereof. The manner of
obtaining such consents and of evidencing the authorization by Noteholders and
the Equity Certificateholder of the execution thereof shall be subject to such
reasonable requirements as the Indenture Trustee may prescribe.
(e) Trustee shall be entitled to receive and rely upon an Opinion of
Counsel stating that the execution of such amendment on behalf of the Trust is
authorized or permitted by this Pooling Agreement, and that all conditions
precedent to such execution as set forth herein have been satisfied. The
Trustees may, but shall not be obligated to, enter into any such amendment
which affects the Trustees' own rights, duties or immunities under this
Pooling Agreement or otherwise.
(f) Notwithstanding anything to the contrary in the foregoing
provisions of this Section 11.01: (a) the Depositor or the Servicer, acting on
behalf of the Depositor, may request each rating agency to approve a formula
for determining the Required Cash Collateral amount that is different from the
formula or result determined from the current definition thereof contained
herein so as to result in a decrease in the amount of the Required Cash
Collateral amount or the manner by which such Cash Collateral Account is
funded. If each Rating Agency delivers to the Indenture Trustee and Owner
Trustee a written notice or letter satisfying the Rating Agency condition in
connection with such change, then the Required Cash Collateral amount will be
theretofore determined in accordance with such changed formula or manner of
funding, and an amendment to this Agreement effecting such change may be
executed without the consent of any Noteholder and the Equity
Certificateholder.
Section 11.02 [Reserved].
Section 11.03 Governing Law. This Pooling Agreement shall be
construed in accordance with the laws of the State of New York and the
obligations, rights, and remedies of the parties under this Pooling Agreement
shall be determined in accordance with such laws, except that the duties of
the Owner Trustee shall be governed by the laws of the State of Delaware.
Section 11.04 Notices. All notices, demands, certificates, requests
and communications hereunder ("notices") shall be in writing and shall be
effective: (a) upon receipt when sent through the U.S. mails, registered or
certified mail, return receipt requested, postage prepaid, with such receipt
to be effective the date of delivery indicated on the return receipt, or (b)
one (1) Business Day after delivery to an overnight courier, or (c) on the
date personally delivered to an authorized officer of the party to which sent,
or (d) on the date transmitted by legible telefax transmission with a
confirmation of receipt, in all cases addressed to the recipient as follows:
(i) If to the Servicer:
[ ]
[ ]
[ ]
Fax No.: [ ]
Telephone No.: [ ]
with a copy to:
[ ]
[ ]
[ ]
Fax No.: [ ]
Telephone No.: [ ]
(ii) If to the Depositor:
[ ]
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: [ ]
Fax No.: [ ]
Telephone No.: [ ]
(iii) If to the Indenture Trustee:
[ ]
[ ]
[ ]
Fax No.: [ ]
Telephone No.: [ ]
(iv) If to a Financing Originator:
At the address, telephone and fax information set forth for such Financing
Originator in the Conveyancing Agreement (for [ ] Financing Originators) or
the Purchase and Sale Agreement (for [ ])
(v) If to [ ]:
[ ]
[ ]
[ ]
Fax No.: [ ]
Telephone No.: [ ]
(vi) If to the Owner Trustee:
[ ]
[ ]
[ ]
Fax No.: [ ]
Telephone No.: [ ]
with a copy to:
[ ]
[ ]
[ ]
Fax No.: [ ]
Telephone No.: [ ]
Each party hereto may, by notice given in accordance herewith to each
of the other parties hereto, designate any further or different address to
which subsequent notices shall be sent.
Section 11.05 Severability of Provisions. If one or more of the
covenants, agreements, provisions or terms of this 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 Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or of the Notes or
the Equity Certificateholders or the rights of the holders thereof.
Section 11.06 Third Party Beneficiaries. Except as otherwise
specifically provided herein, the parties hereto hereby manifest their intent
that no third party shall be deemed a third party beneficiary of this
Agreement, and specifically that Obligors are not third party beneficiaries of
this Agreement; provided, that the Owner Trustee shall be a third party
beneficiary of this Agreement for purposes of the fee and indemnification
provisions hereof.
Section 11.07 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
together constitute but one and the same instrument.
Section 11.08 Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
Section 11.09 No Bankruptcy Petition; Disclaimer and Subordination.
(a) Each of the Servicer, the Owner Trustee and each Noteholder and
the Equity Certificateholder (by acceptance of the applicable Notes or the
Equity Certificate) covenants and agrees that it will not institute against
the Depositor, or the Trust, or solicit or join in or cooperate with or
encourage any other Person in instituting against the Depositor or the Trust,
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other similar proceedings under the laws of the United States
or any state of the United States.
(b) Consistent with the provisions in Section 1.07 of the Trust
Agreement and Section 6.16 hereof, the Trust, as well as each Noteholder and
the Equity Certificateholder by accepting a Note or the Equity Certificate,
acknowledges and agrees that such Note or the Equity Certificate represents a
beneficial interest in the Trust and Trust Assets only and does not represent
an interest in any assets (other than the Trust Assets) of the Depositor
(including by virtue of any deficiency claim in respect of obligations not
paid or otherwise satisfied from the Trust Assets and proceeds thereof). In
furtherance of and not in derogation of the foregoing, to the extent the
Depositor enters into other securitization transactions as contemplated in
Section 6.07, the Trust as well as each Noteholder and the Equity
Certificateholder by accepting a Note or Certificate acknowledges and agrees
that it shall have no right, title or interest in or to any assets (or
interests therein) (other than Trust Assets) conveyed or purported to be
conveyed by the Depositor to another securitization trust (i.e., other than
the Issuer) or other Person or Persons in connection therewith (whether by way
of a sale, capital contribution or by virtue of the granting of a Lien)
("Other Assets"). To the extent that, notwithstanding the agreements and
provisions contained in the preceding sentences of this subsection, the Trust,
or any Noteholder and the Equity Certificateholder, either: (i) asserts an
interest in or claim to, or benefit from, Other Assets, whether asserted
against or through the Depositor or any other Person owned by the Depositor,
or (ii) is deemed to have any such interest, claim or benefit in or from Other
Assets, whether by operation of law, legal process, pursuant to applicable
provisions of Insolvency Laws or otherwise (including without limitation by
virtue of Section 1111(b) of the federal Bankruptcy Code or any successor
provision having similar effect under the Bankruptcy Code), and whether deemed
asserted against or through the Depositor or any other Person owned by the
Depositor, then the Trust and each Noteholder and the Equity Certificateholder
by accepting a Note or the Equity Certificate further acknowledges and agrees
that any such interest, claim or benefit in or from Other Assets is and shall
be expressly subordinated to the indefeasible payment in full of all
obligations and liabilities of the Depositor which, under the terms of the
relevant documents relating to the securitization of such Other Assets, are
entitled to be paid from, entitled to the benefits of, or otherwise secured by
such Other Assets (whether or not any such entitlement or security interest is
legally perfected or otherwise entitled to a priority of payment or
application under applicable law, including Insolvency Laws, and whether
asserted against the Depositor or any other Person owned by the Depositor),
including, without limitation, the payment of post-petition interest on such
other obligations and liabilities. This subordination agreement shall be
deemed a subordination agreement within the meaning of Section 510(a) of the
Bankruptcy Code. Each Noteholder and the Equity Certificateholder further
acknowledges and agrees that no adequate remedy at law exists for a breach of
this Section 11.09 and that the terms and provisions of this Section 11.09 may
be enforced by an action for specific performance.
(c) The provisions of this Section 11.09 shall be for the third party
benefit of those entitled to rely thereon and shall survive the termination of
this Agreement.
Section 11.10 Jurisdiction. Any legal action or proceeding with
respect to this Agreement may be brought in the courts of the United States
for the Southern District of New York, and by execution and delivery of this
Agreement, each party hereto consents, for itself and in respect of its
property, to the non-exclusive jurisdiction of those courts. Each such party
irrevocably waives any objection, including any objection to the laying of
venue or based on the grounds of forum non conveniens, which it may now or
hereafter have to the bringing of any action or proceeding in such
jurisdiction in respect of this Agreement or any document related hereto.
Section 11.11 Tax Characterization. Notwithstanding the provisions of
Section 2.01 and Section 2.04 hereof, the Depositor and Owner Trustee agree
that pursuant to Treasury Regulations Section 301.7701-3(b)(1)(ii), the Trust
is to be disregarded as a separate entity from the Depositor for federal
income tax purposes.
Section 11.12 Servicer Indemnity. The Servicer will indemnify the
Depositor, the Trust, the Securityholders and the Indenture Trustees, and any
of their officers, directors, employees or agents (each an "Indemnified
Party") from and against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments and any other costs, fees
and expenses that any Indemnified Party may sustain in connection with claims
asserted by third parties against such Indemnified Party which result from any
act or omission on the part of the Servicer with respect to the Trust Assets
or its duties and obligations under this Pooling Agreement, except where such
claims arise out of any willful misconduct, gross negligence or bad faith on
the part of such Indemnified Party. Indemnification under this Section shall
survive the resignation or removal of the Owner Trustee or Indenture Trustee,
as the case may be, and the termination of the Trust Agreement or this Pooling
Agreement.
Section 11.13 Limitation of Liability of Owner Trustee.
Notwithstanding anything contained herein to the contrary, the
Agreement has been executed by [ ], not in its individual capacity but solely
in its capacity as Owner Trustee of the Issuer and in no event shall [ ] in
its individual capacity or any beneficial owner of the Issuer have any
liability for the representations, warranties, covenants, agreements or other
obligations of the Issuer hereunder, as to all of which recourse shall be had
solely to the assets of the Issuer. For all purposes of this Agreement, in the
performance of any duties or obligations of the Issuer hereunder, the Owner
Trustee shall be subject to, and entitled to the benefits of, the terms and
provisions of Articles VI, VII and VIII of the Trust Agreement.
Section 11.14 WAIVER OF JURY TRIAL. EACH PARTY TO THIS AGREEMENT
WAIVES ITS RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OTHER
TRANSACTION DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN
ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE
PARTIES AGAINST ANY OTHER PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT
CLAIMS, OR OTHERWISE. THE PARTIES HERETO EACH AGREE THAT ANY SUCH CLAIM OR
CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT
LIMITING THE FOREGOING, EACH OF THE PARTIES HERETO FURTHER AGREES THAT ITS
RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS
TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN
PART, TO CHALLENGE THE VALIDITY OF THIS AGREEMENT OR A TRANSACTION DOCUMENT OR
ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, AMENDMENTS AND RESTATEMENTS, OR MODIFICATIONS TO THIS AGREEMENT OR
ANY OTHER TRANSACTION DOCUMENT.
Section 11.15 Third Party Beneficiary. The Owner Trustee shall be a
third party beneficiary of this Agreement.
[remainder of page intentionally blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers as of the day and year first
above written.
[ ]
By: [ ], not in its
individual capacity but solely as
Owner Trustee on behalf of the Trust
By: _______________________________
Name:
Title:
GS Mortgage Securities Corp., as Depositor
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
EXHIBIT A
Form of Transfer Agreement
TRANSFER AGREEMENT
This TRANSFER AGREEMENT, dated [ ], is by and between [ ], as
Depositor and transferor, and [ ] Equipment Trust Securities [ ], as
transferee with respect to the conveyances evidenced hereby.
WHEREAS, the parties named above are each parties to the Pooling and
Servicing Agreement dated as of [ ] (as from time to time amended,
supplemented or otherwise modified, the "PSA"); and
WHEREAS, pursuant to the PSA, the Depositor wishes to effect
conveyances of Transferred Assets (including the Contracts identified on the
Schedule of Contracts attached hereto), in each case in the manner and to the
effect described in Article II of the PSA;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein and in the PSA, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties hereto
agree as follows:
1. Definitions. All terms defined in the PSA (whether directly or
by reference to other documents) shall have such defined meanings when used
herein, unless such terms are otherwise defined herein.
2. Specification of Cut-off Date and Transfer Date.
(a) The "Cut-off Date" applicable to the Contracts conveyed hereby
is [ ].
(b) The "Transfer Date" with respect to the conveyances effected
hereby is [ ].
3. Conveyances. Subject to the terms and conditions provided for
in the PSA, the Depositor hereby make the assignments and conveyances
specified in Article II of the PSA as being effected by execution and delivery
of this Transfer Agreement, in each case: (i) with respect to the Transferred
Assets related to and consisting in part of the Contracts and related Contract
Assets identified on the Schedule of Contracts attached hereto, and (ii) in
the manner and to the effect described in Article II of the PSA.
4. Incorporation of PSA. This Transfer Agreement is made pursuant
to and upon the representations, warranties and agreements on the part of the
parties hereto contained in the PSA and shall be governed in all respects by
the PSA.
5. Ratification of PSA. As supplemented by this Transfer
Agreement, the PSA is in all respects ratified and confirmed by the parties
hereto.
6. Counterparts. This Transfer Agreement may be executed in two or
more counterparts including by telefax transmission thereof (and by different
parties on separate counterparts), each of which shall be an original, but all
of which together shall constitute one and the same instrument.
7. Governing Law. This Transfer Agreement shall be governed by,
and construed and enforced in accordance with, the internal laws of the State
of New York.
8. Reaffirmation. As provided in Section 2.02 of the PSA, by
delivery of this Transfer Agreement the Depositor confirms that the conditions
to transfer set forth in Section 2.02 have been satisfied or otherwise waived
as described therein.
[signatures follow]
IN WITNESS WHEREOF, the parties hereto have caused this Transfer
Agreement to be executed by their respective officers thereunto duly
authorized as of the date first written above.
[ ] [ ] EQUIPMENT TRUST SECURITIES [ ]
Corporation, as Depositor
By: [ ], not in its individual
capacity but solely as Owner Trustee
on behalf of the Trust
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
EXHIBIT B
[Reserved]
EXHIBIT C
Initial Schedule of Contracts
EXHIBIT D
Form of Servicer's Monthly Report
EXHIBIT E
Form of Substitution Transfer Agreement
SUBSTITUTION TRANSFER AGREEMENT
This SUBSTITUTION TRANSFER AGREEMENT, dated [ ], is by and between [
], as Depositor and transferor, and [ ] Equipment Trust Securities [ ], as
transferee with respect to the conveyances evidenced hereby.
WHEREAS, the parties named above are each parties to the Pooling and
Servicing Agreement dated as of [ ] (as from time to time amended,
supplemented or otherwise modified, the "PSA"); and
WHEREAS, pursuant to the PSA, the Depositor wishes to effect
conveyances of the Substitute Contracts (together with related Substitute
Transferred Assets), identified on the Substitution Schedule of Contracts
attached hereto, in each case in the manner and to the effect described in
Article II of the PSA; and
WHEREAS, the Servicer has delivered or caused to be delivered a
Substitution Notice with respect to such conveyance as required in the Pooling
Agreement referred to in Section 2 below;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein and in the PSA, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties hereto
agree as follows:
1. Definitions. All terms defined in the PSA (whether directly or
by reference to other documents) shall have such defined meanings when used
herein, unless such terms are otherwise defined herein.
2. Specification of Cut-off Date and Transfer Date.
(a) The "Substitution Cut-off Date" applicable to the Substitute
Contracts conveyed hereby is [ ].
(b) The "Substitution Transfer Date" with respect to the
conveyances effected hereby is [ ]
3. Conveyances. Subject to the terms and conditions provided for
in the PSA, the Depositor hereby makes the assignments and conveyances
specified in Article II of the PSA as being effected by execution and delivery
of this Substitution Transfer Agreement, in each case: (i) with respect to the
Substitute Contracts (together with related Substitute Transferred Assets)
identified on the Substitution Schedule of Contracts attached hereto, and (ii)
in the manner and to the effect described in Article II of the PSA.
4. Incorporation of PSA. This Substitution Transfer Agreement is
made pursuant to and upon the representations, warranties and agreements on
the part of the parties hereto contained in the PSA and shall be governed in
all respects by the PSA.
5. Ratification of PSA. As supplemented by this Substitution
Transfer Agreement, the PSA is in all respects ratified and confirmed by the
parties hereto.
6. Counterparts. This Substitution Transfer Agreement may be
executed in two or more counterparts including by telefax transmission thereof
(and by different parties on separate counterparts), each of which shall be an
original, but all of which together shall constitute one and the same
instrument.
7. Governing Law. This Substitution Transfer Agreement shall be
governed by, and construed and enforced in accordance with, the internal laws
of the State of New York.
8. Reaffirmation. As provided in Section 2.04(b) of the PSA, by
delivery of this Assignment Agreement the Depositor confirms that the
conditions to transfer set forth in Section 2.02 have been satisfied or
otherwise waived as described therein.
[signatures follow]
IN WITNESS WHEREOF, the parties hereto have caused this
Substitution Transfer Agreement to be executed by their respective officers
thereunto duly authorized as of the date first written above.
[ ] [ ] EQUIPMENT TRUST SECURITIES [ ]
Corporation, as Depositor
By: [ ], not in its individual
capacity but solely as Owner Trustee
on behalf of the Trust
By: ___________________________
Name:
Title:
By: ___________________________
Name:
Title:
EXHIBIT F
[Reserved]
EXHIBIT G
Schedule of Representations and Warranties
(a) List of Contracts. The information set forth in the Schedule
of Contracts (as the same may be amended or deemed amended in respect of a
conveyance of Substitute Contracts on a Substitution Transfer Date) is true,
complete and correct as of the Closing Date (or Substitution Transfer Date, as
applicable).
(b) Eligible Contract. As of its applicable Cut-off Date, each
Contract satisfied the criteria for the definition of Eligible Contract set
forth in the Pooling Agreement, and each Secondary Contract securing a Vendor
Loan constituting a Contract satisfied, as of its applicable Cut-off Date, the
definition of Eligible Secondary Contract set forth in the Pooling Agreement.
(c) Contracts Secured by Vehicles. None of the Contracts relating
to Equipment constituting Vehicles are "true leases."
(d) Contract Files. As of the Closing Date (or as of the
Substitution Transfer Date, with respect to Substitute Contracts): (i)
immediately prior to such date, [ ] (or the applicable Financing Originator as
custodian for [ ], with respect to [ ] Contracts) had possession of each
original Contract and the related complete Contract File, and there were no
other custodial agreements relating to the same in effect (other than offsite
storage arrangements described in Section 4.01(b)); (ii) each of such
documents which is required to be signed by the Obligor has been signed by the
Obligor in the appropriate spaces; and (iii) the complete Contract File for
each Contract is in the possession of the Servicer.
(e) No Material Obligation. No Financing Originator has a material
performance obligation in respect of any Contract in favor of an Obligor or
End-User (it being understood that covenants of quiet enjoyment, purchase
options, obligations to accept return of the property at end of lease term,
and like obligations of a lessor typical of a "triple net" lease, shall not be
deemed "material performance obligations" for purposes of this
representation).
EXHIBIT H
[Reserved]
EXHIBIT I
[Reserved]
EXHIBIT J
Minimum Value Filing Exceptions
With respect to the [ ] Financing Originators, no financing
statements are filed against an Obligor located in a particular State
describing Equipment which is the subject of a particular Contract of such [ ]
Financing Originator, unless the fair market value of the Equipment
(determined in accordance with Customary Policies and Procedures) related to
such particular Contract is at least $[ ] (or, in the alternative, at least $[
] if such Contract is a Lease with a "fair market value" purchase option).
With respect to the [ ] Financing Originator, no financing
statements are filed against an Obligor located in a particular State
describing Equipment which is the subject of a particular Contract of such
Financing Originator, unless the fair market value of the Equipment
(determined in accordance with Customary Policies and Procedures) related to
such particular Contract is at least $[ ].