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EXHIBIT 10.56
EXECUTION COPY
▇▇▇▇▇▇ FUNDING MASTER TRUST
AMENDED AND RESTATED
POOLING AGREEMENT
Among
▇▇▇▇▇▇ FUNDING INC.
▇▇▇▇▇▇ MICRO INC.,
as Master Servicer
and
THE CHASE MANHATTAN BANK
as Trustee
Dated as of March 8, 2000
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS.........................................................1
SECTION 1.01. Definitions...................................................1
SECTION 1.02. Other Definitional Provisions................................26
ARTICLE II CONVEYANCE OF RECEIVABLES; REPRESENTATIONS,
WARRANTIES AND COVENANTS..........................................27
SECTION 2.01. Conveyance of Receivables....................................27
SECTION 2.02. Acceptance by Trustee........................................30
SECTION 2.03. Representations and Warranties of the Company Relating
to the Company...............................................32
SECTION 2.04. Representations and Warranties of the Company Relating
to the Receivables...........................................35
SECTION 2.05. Adjustment Payment for Ineligible Receivables................36
SECTION 2.06. Purchase of Investor Certificateholders' Interest in Trust
Portfolio....................................................37
SECTION 2.07. Affirmative Covenants of the Company.........................38
SECTION 2.08. Negative Covenants of the Company............................41
ARTICLE III RIGHTS OF HOLDERS AND ALLOCATION AND APPLICATION OF COLLECTIONS..44
SECTION 3.01. Establishment of Collection Account; Certain Allocations.....45
ARTICLE IV ARTICLE IV IS RESERVED AND MAY BE SPECIFIED IN ANY SUPPLEMENT
WITH RESPECT TO THE SERIES RELATING THERETO.......................50
ARTICLE V THE INVESTOR CERTIFICATES AND EXCHANGEABLE COMPANY INTEREST........50
SECTION 5.01. The Investor Certificates....................................50
SECTION 5.02. Authentication of Certificates...............................50
SECTION 5.03. Registration of Transfer and Exchange of Investor
Certificates.................................................51
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Investor Certificates...53
SECTION 5.05. Persons Deemed Owners........................................53
SECTION 5.06. Appointment of Paying Agent..................................54
SECTION 5.07. Access to List of Investor Certificateholders' Names and
Addresses....................................................55
SECTION 5.08. Authenticating Agent.........................................55
SECTION 5.09. Tax Treatment................................................57
SECTION 5.10. Exchangeable Company Interest................................57
SECTION 5.11. Book-Entry Certificates......................................60
SECTION 5.12. Notices to Clearing Agency...................................61
SECTION 5.13. Definitive Certificates......................................61
ARTICLE VI OTHER MATTERS RELATING TO THE COMPANY.............................61
SECTION 6.01. Liability of the Company.....................................61
ARTICLE VII EARLY AMORTIZATION EVENTS........................................62
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SECTION 7.01. Early Amortization Events....................................62
SECTION 7.02. Additional Rights upon the Occurrence of Certain Events......63
ARTICLE VIII THE TRUSTEE.....................................................64
SECTION 8.01. Duties of Trustee............................................64
SECTION 8.02. Rights of the Trustee........................................66
SECTION 8.03. Trustee Not Liable for Recitals..............................68
SECTION 8.04. Trustee May Own Investor Certificates........................69
SECTION 8.05. Trustee's Fees and Expenses..................................69
SECTION 8.06. Eligibility Recitals.........................................71
SECTION 8.07. Resignation or Removal of Trustee............................71
SECTION 8.08. Successor Trustee............................................72
SECTION 8.09. Merger or Consolidation of Trustee...........................72
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee................72
SECTION 8.11. Tax Returns..................................................74
SECTION 8.12. Trustee May Enforce Claims Without Possession of Investor
Certificates.................................................75
SECTION 8.13. Suits for Enforcement........................................75
SECTION 8.14. Rights of Investor Certificateholders To Direct Trustee......75
SECTION 8.15. Representations and Warranties of Trustee....................76
SECTION 8.16. Maintenance of Office or Agency..............................76
SECTION 8.17. Limitation of Liability......................................76
ARTICLE IX TERMINATION.......................................................77
SECTION 9.01. Termination of Trust.........................................77
SECTION 9.02. Final Termination Date of Investor Certificates of Any
Series.......................................................77
SECTION 9.03. Final Payment with Respect to Any Series.....................79
SECTION 9.04. Company's Termination Rights.................................80
ARTICLE X MISCELLANEOUS PROVISIONS...........................................80
SECTION 10.01. Amendment....................................................80
SECTION 10.02. Protection of Right, Title and Interest to Trust.............82
SECTION 10.03. Limitation on Rights of Holders..............................82
SECTION 10.04. Governing Law................................................83
SECTION 10.05. Notices......................................................84
SECTION 10.06. Severability of Provisions...................................85
SECTION 10.07. Assignment...................................................85
SECTION 10.08. Investor Certificates Nonassessable and Fully Paid...........85
SECTION 10.09. Further Assurances...........................................85
SECTION 10.10. No Waiver; Cumulative Remedies...............................85
SECTION 10.11. Counterparts.................................................85
SECTION 10.12. Third-Party Beneficiaries....................................85
SECTION 10.13. Actions by Investor Certificateholders.......................86
SECTION 10.14. Merger and Integration.......................................86
SECTION 10.15. Headings.....................................................86
SECTION 10.16. Construction of Agreement....................................86
SECTION 10.17. No Setoff....................................................86
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SECTION 10.18. No Bankruptcy Petition.......................................87
SECTION 10.19. Limitation of Liability......................................87
SECTION 10.20. Certain Information..........................................88
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EXHIBITS
Exhibit A Form of Lockbox Agreement
Exhibit B Form of Annual Opinion of Counsel
Exhibit C Schedule of Fiscal Months of the Master Servicer
SCHEDULES
Schedule 1 Intentionally Omitted
Schedule 2 Identification of the Trust Accounts
Schedule 3 Location of Chief Executive Office of the Company
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AMENDED AND RESTATED POOLING AGREEMENT dated as of March 8, 2000 among
the Company, the Master Servicer and the Trustee.
W I T N E S S E T H:
WHEREAS, as of the date of this Amended and Restated Pooling Agreement,
(i) the Company, the Seller and the Master Servicer have entered into an Amended
and Restated Receivables Sale Agreement (as so amended and restated, the
"Receivables Sale Agreement") and (ii) the Company, the Master Servicer and the
Trustee have entered into a Servicing Agreement (as amended, supplemented or
otherwise modified from time to time, the "Servicing Agreement");
WHEREAS, the parties hereto and ▇▇▇▇▇▇ Industries Inc. entered into the
Pooling and Servicing Agreements dated as of February 12, 1993, as amended by
Amendment No. 1 dated as of January 31, 1994, Amendment No. 2 dated as of
November 6, 1996 (as so amended, the "Original Pooling Agreement") in order to
create a master trust to which the Company would transfer all its right, title
and interest in, to and under the Receivables and other Trust Assets then or
thereafter owned by the Company and such master trust has issued, and shall,
from time to time at the direction of the Company, issue one or more Series of
Investor Certificates, representing interests in the Receivables and such other
Trust Assets as specified in the Supplement related to such Series;
WHEREAS, the parties hereto wish to amend and restate the Original
Pooling Agreement so as to amend various provisions of the Original Pooling
Agreement; and
WHEREAS, the Original Pooling Agreement shall be replaced in whole by
this Amended and Restated Pooling Agreement.
NOW, THEREFORE, in consideration of the premises and of 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 shall have the
following meanings:
"Accounts" shall have the meaning specified in Section 2.01(a)(vi) of
this Agreement.
"Accrual Period" shall mean, except as otherwise set forth in the
applicable Supplement, for any Series, the period from and including a
Distribution Date, or, in the case of the initial Accrual Period for such
Series, the Issuance Date for such Series, to but excluding the succeeding
Distribution Date.
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"Adjusted Invested Amount" shall mean, with respect to any Outstanding
Series, the definition assigned to such term in the related Supplement.
"Adjustment Payments" shall mean the collective reference to payments of
Transfer Deposit Amounts and Cash Dilution Payments.
"Affiliate" shall mean, with respect to any specified Person, any other
Person which, directly or indirectly, is in control of, is controlled by, or is
under common control with, such specified Person, or in any event, a Person
which has the power to vote 25% or more of the securities having ordinary voting
power for the election of directors of the specified Person. For purposes of
this definition "control" of a Person means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities or
otherwise, and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agent" shall mean, with respect to any Series, the Person, if any, so
designated in the related Supplement.
"Aggregate Adjusted Invested Amount" shall mean, with respect to any
date of determination, the sum of the Adjusted Invested Amounts with respect to
all Outstanding Series on such date of determination.
"Aggregate Allocated Receivables Amount" shall mean, with respect to any
date of determination, the sum of the Allocated Receivables Amounts with respect
to all Outstanding Series on such date of determination.
"Aggregate Daily Collections" shall mean, with respect to any Business
Day, the aggregate amount of all Collections deposited into the Collection
Account on such day.
"Aggregate Invested Amount" shall mean, at any date of determination,
the sum of the Invested Amounts with respect to all Outstanding Series on such
date of determination.
"Aggregate Overconcentration Amount" shall mean, with respect to any
date of determination, the sum of the Overconcentration Amounts of all Eligible
Obligors at the end of the preceding Business Day plus the amount by which the
aggregate Principal Amounts of Eligible Receivables due from Qualifying DIP
Obligors exceeds 5% of the aggregate Principal Amount of all Eligible
Receivables as of such date of determination.
"Aggregate Receivables Amount" shall mean, with respect to any date of
determination, (i) the aggregate Principal Amount of all Eligible Receivables in
the Trust at the end of the Business Day immediately preceding such date minus
(ii) the Aggregate Overconcentration Amount for such date.
"Aggregate Target Receivables Amount" shall mean, with respect to any
date of determination, the sum of the Target Receivables Amounts with respect to
all Outstanding Series on such date of determination.
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"Agreement" shall mean this Amended and Restated Pooling Agreement and
all amendments hereof and supplements hereto, and including, unless expressly
stated otherwise, each Supplement.
"Allocable Charged-Off Amount" shall have, with respect to any Series,
the meaning specified in Section 3.01(e).
"Allocable Recoveries Amount" shall have, with respect to any series,
the meaning specified in Section 3.01(e) .
"Allocated Receivables Amount" shall have, with respect to any
Outstanding Series, the meaning specified in the related Supplement for such
Outstanding Series.
"Amortization Period" shall have, with respect to any Outstanding
Series, the definition assigned to such term in the related Supplement.
"Applicable Insolvency Laws" shall have the meaning specified in Section
7.01(a).
"Applicants" shall have the meaning specified in Section 5.07.
"Authorized Newspapers" shall have the meaning specified in Section
7.02.
"Bankruptcy Code" shall mean the United States Federal Bankruptcy Code,
11 U.S.C. Sections 101-1330, as amended.
"Board" shall mean the Board of Governors of the Federal Reserve system
of the United States of America.
"Book-Entry Certificates" shall mean Investor Certificates, ownership
and transfers of which shall be made through book entries by a Clearing Agency
as described in Section 5.11; provided, however, that after the occurrence of a
condition whereupon book-entry registration and transfer are no longer permitted
and Definitive Certificates are issued to the Certificate Book-Entry Holder,
such Investors Certificates shall no longer be "Book-Entry Certificates".
"Business Day" shall mean any day other than (i) a Saturday or a Sunday
or (ii) another day on which commercial banking institutions or trust companies
in the state or in the city where the Corporate Trust Office is located, are
authorized or obligated by law, executive order or governmental decree to be
closing; provided that, when used in connection with the calculation of
Certificate Rates which are determined by reference to LIBOR, "Business Day"
shall mean any Business Day banks are open for dealings in dollar deposits in
the London interbank market.
"Business Day Received" shall mean, except as otherwise set forth in the
applicable Supplement, (i) with respect to funds deposited in the Collection
Account (a) if funds are deposited in the Collection Account by 1:00 p.m.,
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New York City time, such day of deposit and (b) if funds are deposited in the
Collection Account after 1:00 p.m., New York City time, the Business Day
immediately following such day of deposit and (ii) with respect to funds
deposited in any Lockbox Account (a) if funds are deposited in such Lockbox
Account by the cut-off time established by the related Lockbox Processor for
same-day processing of deposits, such day of deposit and (b) if funds are
deposited in such Lockbox Account after such cut-off time, the Business Day
immediately following such day of deposit.
"Cash Dilution Payment" shall have the meaning specified in Section
4.05(a) of the Servicing Agreement.
"Certificate" shall mean any certificate issued pursuant to a
Supplement.
"Certificate Book-Entry Holder" shall mean, with respect to a Book-Entry
Certificate, the Person who is listed on the books of the Clearing Agency, or on
the books of a Person maintaining an account with such Clearing Agency, as the
beneficial owner of such Book-Entry Certificate (directly or as an indirect
participant, in accordance with the rules of such Clearing Agency).
"Certificate Rate" shall mean with respect to any Series and Class of
Investor Certificates, the percentage interest rate (or formula on the basis of
which such interest rate shall be determined) stated in the applicable
Supplement.
"Certificate Register" shall have the meaning specified in Section
5.03(a).
"Charged-Off Receivables" shall mean, with respect to any Settlement
Period, all Receivables which, in accordance with the Policies of the applicable
Seller, have or should have been written off during such Settlement Period as
uncollectible, including without limitation the Receivables of any Obligor other
than a Qualifying DIP Obligor which becomes the subject of any voluntary or
involuntary bankruptcy proceeding.
"Class" shall mean, with respect to any Series, any one of the classes
of Investor Certificates of that Series as specified in the related Supplement.
"Clearing Agency" shall mean each organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934.
"Clearing Agency Participant" shall mean a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with
such Clearing Agency.
"CMD" shall refer to the operations categorized as the Consumer Markets
Division from time to time on the internal records of ▇▇▇▇▇▇ Micro Inc. or any
Subsidiary, which operations generally include the marketing of products to
certain retailers engaged in mass marketing. The activities so categorized and
the specific obligors included therein may change from time to time in the good
faith determination of ▇▇▇▇▇▇ Micro Inc. or any Subsidiary.
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"Collection Account" shall have the meaning specified in Section
3.01(a).
"Collections" shall mean all collections and all amounts in respect of
the Receivables transferred to the Trust, including Recoveries, Adjustment
Payments, indemnification payments made by the Master Servicer, any Servicer or
the Company and payments in respect of Dilution Adjustments, together with all
collections in respect of the Related Property in the form of cash, checks, wire
transfers or any other form of cash payment, and all proceeds of Receivables and
collections thereof (including, without limitation, collections evidenced by an
account, note, instrument, letter of credit, security, contract, security
agreement, chattel paper, general intangible or other evidence of indebtedness
or security, whatever is received upon the sale, exchange, collection or other
disposition of, or any indemnity, warranty or guaranty payable in respect of,
the foregoing and all "proceeds" as defined in Section 9-306 of the UCC).
"Company" shall mean ▇▇▇▇▇▇ Funding Inc., a Delaware corporation and any
successor thereto.
"Company Collection Subaccount" shall have the meaning specified in
Section 3.01(a).
"Company Exchange" shall have the meaning specified in Section 5.10(a).
"Company Material Adverse Effect" shall mean (i) any material impairment
of the Company's ability to perform any of its material obligations or to comply
with or conduct its business in accordance with any of its material
representations, warranties, covenants or agreements under any Transaction
Document or (ii) any material impairment of the interests, rights or remedies of
the Trustee or the Investor Certificateholders against or with respect to the
Company, in the Receivables or under any Transaction Document.
"Company Subordinated Obligation" shall mean any payment obligation or
other liability designated as such in any Pooling and Servicing Agreements, each
of which payment obligations and other liabilities shall (i) be subordinated and
subject to the prior payment in full of all Company Unsubordinated Obligations
then due, (ii) be made solely from funds available to the Company that are not
required to be applied to Company Unsubordinated Obligations then due and (iii)
not constitute a general recourse claim against the Company, but only a claim
against the Company to the extent of funds available to the Company after
satisfying all Company Unsubordinated Obligations then due.
"Company Unsubordinated Obligations" shall mean all payment obligations
and other liabilities of the Company under any Pooling and Servicing Agreements
that are not designated as Company Subordinated Obligations.
"Contractual Obligation" shall mean, as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
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"Corporate Trust Office" shall mean the principal office of the Trustee
at which at any particular time its corporate trust business shall be
administered, which office at the date of the execution of this Agreement is
located at The Chase Manhattan Bank ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention: Capital Markets Fiduciary Services.
"Cut-Off Date", shall mean the close of business on February 29, 2000.
"Daily Report" shall have the meaning specified in each Supplement.
"Defaulted Receivable" shall mean any Receivable (a) which is unpaid in
whole or in part for more than 60 days after its original due date or (b) which
is a Charged-Off Receivable.
"Definitive Certificates" shall have the meaning specified in Section
5.11.
"Depository" shall mean, with respect to any Series, the Clearing Agency
designated as the "Depository" in the related Supplement.
"Depository Agreement" shall mean, with respect to any Series an
agreement among the Company, the Trustee and a Clearing Agency, in a form
reasonably satisfactory to the Trustee and the Company.
"Dilution Adjustment" shall mean any payments, rebates, discounts,
refunds or adjustments (including without limitation, as a result of the
application of any special or other discounts or any reconciliations) of any
Receivable, the amount owing for any returns (including, without limitation, as
a result of the return of any defective goods) or cancellations and the amount
of any other reduction of any payment under any Receivable, in each case granted
or made by the Seller to the related Obligor; provided, however, a "Dilution
Adjustment" does not include any Charged-Off Receivable.
"Distribution Date" shall mean, except as otherwise set forth in the
applicable Supplement, the 15th day of the month, or if such 15th day is not a
Business Day, the next succeeding Business Day.
"Dollars", "U.S. Dollars" and "$" shall mean dollars in lawful currency
of the United States of America.
"Early Amortization Event" shall have, with respect to any Series, the
meaning specified in Section 7.01 of this Agreement (without taking into account
any Supplements) and in any Supplement for such Series.
"Early Amortization Period" shall have, with respect to any Series, the
definition assigned to such term in Section 7.01 of this Agreement and in any
Supplement for such Series.
"Effective Date" shall mean March 8, 2000.
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"Eligible Institution" shall mean a depositary institution or trust
company (which may include the Trustee and its Affiliates) organized under the
laws of the United States of America or any one of the states thereof or the
District of Columbia; provided, however, that at all times (i) such depositary
institution or trust company is a member of the Federal Deposit Insurance
Corporation, (ii) the unsecured and uncollateralized debt obligations of such
depositary institution or trust company are rated in one of the two highest
long-term rating categories or the highest short-term rating category by each
Rating Agency and (iii) such depositary institution or trust company has a
combined capital and surplus of at least $100,000,000.
"Eligible Investments" shall mean any book-entry securities, negotiable
instruments or securities represented by instruments in bearer or registered
form which evidence:
(a) direct obligations of, or obligations fully guaranteed as to
timely payment by, the United States of America;
(b) Federal funds, demand deposits, time deposits or
certificates of deposit of any depositary institution or trust company
incorporated under the laws of the United States of America or any state
thereof (or any domestic branch of a foreign bank) and subject to
supervision and examination by federal or state banking or depositary
institution authorities; provided, however, that at the time of the
investment or contractual commitment to invest therein the commercial
paper or other short-term unsecured debt obligations (other than such
obligations the rating of which is based on the credit of a Person other
than such depository institution or trust company) thereof shall have a
credit rating from each of the Rating Agencies rating such investment in
the highest investment category granted thereby (which in the case of
S&P is A-1+);
(c) commercial paper rated, at the time of the investment or
contractual commitment to invest therein, in the highest rating category
by each Rating Agency rating such commercial paper (which in the case of
S&P is A-1+);
(d) investments in money market funds (including funds for which
the Trustee or any of its Affiliates is investment manager or adviser)
rated in the highest rating category by each Rating Agency rating such
money market fund (provided that, if such Rating Agency is S&P, such
rating shall be AAAm);
(e) bankers acceptances issued by any depository institution or
trust company referred to in clause (b) above;
(f) 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 (b) above; or
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(g) any other investment upon satisfaction of the Rating Agency
Condition with respect thereto.
"Eligible Letter of Credit" shall mean any irrevocable documentary
credit (a direct-pay letter of credit) or any irrevocable standby letter of
credit supporting a Receivable, or two or more Receivables sold to the Company
by the same Seller, that is (a) either (i) issued in favor of such Seller or the
Company and the right to draw under which is, or the proceeds of which are,
legally transferable and assignable to the Trustee or (ii) issued in favor of
the Trustee, (b) governed by the UCC of a state of the United States of America,
governed by the UCP 500 or governed as to certain terms by the UCP 500 and as to
any remaining terms by the UCC of a state of the United States of America, (c)
issued by a commercial bank that (i) has a combined capital and surplus of at
least $50,000,000 (ii) has (or the holding company parent of which has) either a
long-term or a short-term senior unsecured debt rating in the highest rating
category by each Rating Agency and (iii) is either organized under the laws of
(A) the United States or a State thereof or is a U.S. branch or agency of such
commercial bank, or (B) a country having sovereign rating of "AA" or better, (d)
permits the beneficiary to draw, upon notice to the issuing bank, an amount
equal to the entire Principal Amount of any Receivable supported thereby in U.S.
Dollars payable by the issuing bank to the Trustee, as assignee or as original
beneficiary, in the case of a documentary credit (a direct-pay letter of
credit), on or before the due date of such Receivable and, in the case of a
standby letter of credit, on or before the fifth day following the due date of
such Receivable and (e) with respect to which the Rating Agency Condition has
been satisfied if the Receivables supported by such Letter of Credit are to be
considered "Eligible Receivables".
"Eligible Obligor" shall mean, as of any date of determination, each
Obligor in respect of a Receivable that satisfies the following eligibility
criteria:
(a) it is "located" (within the meaning of Section 9-103(3)(d)
of the UCC) in the United States or if not so located, its Receivables
are supported by an Eligible Letter of Credit and all necessary actions
are taken for the perfection of the transfer of such Eligible Letter of
Credit to the Trust, including the delivery requirement set forth in
Section 2.01(b);
(b) it is not a Seller or an Affiliate of a Seller;
(c) it is either (i) not the subject of any voluntary or
involuntary bankruptcy proceeding, or (ii) a Qualifying DIP Obligor; and
(d) it is not a Governmental Authority;
provided, however, that, if 35% or more of the Principal Amounts of Receivables
of an Obligor are reported as being aged 121 days or more after the respective
original invoice dates of such Receivables as at the end of the Settlement
Period immediately preceding the most recent Settlement Report Date, such
Obligor shall not be deemed an Eligible Obligor until such time as the Master
Servicer furnishes the Rating Agencies and the Agents with a report which may be
part of a Daily Report or a Monthly Settlement
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Statement indicating that less than 35% of the Principal Amounts of Receivables
of such Obligor then in the Trust are aged 121 days or more after the respective
original invoice dates of such Receivables.
"Eligible Receivable" shall mean, as of any date of determination, each
Receivable owing by an Eligible Obligor in existence as of such date that
satisfies the following eligibility criteria:
(a) it constitutes either (i) an account within the meaning of
Section 9-106 of the UCC of the state the law of which governs the
perfection of the interest granted in it, (ii) an instrument within the
meaning of Section 9-105 of such UCC, which shall be subject to
compliance with the delivery requirement set forth in Section 2.01(b),
(iii) chattel paper within the meaning of Section 9-105 of such UCC,
which shall be subject to compliance with the delivery requirement set
forth in Section 2.01(b), or (iv) a general intangible (including to the
extent that such Receivable includes interest, finance charges, returned
check or late charges on sales or similar charges) within the meaning of
Section 9-106 of such UCC;
(b) it is not a Defaulted Receivable;
(c) the goods related to it shall have been shipped (and such
goods are not subject to a ▇▇▇▇ and hold arrangement) or the services
related to it shall have been performed and such Receivable shall have
been billed to the related Obligor;
(d) it is denominated and payable only in U.S. Dollars in the
United States and Collections on which ultimately are deposited to a
Lockbox, a Lockbox Account or the Collection Account in the United
States;
(e) it arose in the ordinary course of business from the sale of
goods, products or services of a Seller and in accordance with the
Policies of such Seller and, at such date of determination, the
Receivables Sale Agreement has not been terminated as to such Seller;
(f) it does not contravene any applicable law, rule or
regulation and the related Seller is not in violation of any law, rule
or regulation in connection with it, in each case which in any way
renders such Receivable unenforceable or would otherwise impair in any
material respect the collectibility of such Receivable;
(g) if the Trust is not excluded from the definition of
"investment company" pursuant to Rule 3a-7 under the 1940 Act, it is an
account receivable representing all or part of the sales price of
merchandise, insurance or services within the meaning of Section 3(c)(5)
of the 1940 Act;
(h) it is not a Receivable for which the applicable Seller has
established an offsetting specific reserve; provided that a Receivable
subject only in part to the foregoing shall be an Eligible Receivable to
the extent not so subject;
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(i) it is not a Receivable with original payment terms in excess
of 90 days from its original invoice date, or in respect of which the
applicable Seller has (i) entered into an arrangement with the Obligor
pursuant to which payment of any portion of the purchase price has been
extended or deferred, whether by means of a promissory note or by any
other means, to a date more than 90 days from its original invoice date
or (ii) altered the basis of the aging from the initial due date for
payment such that the final due date extends to a date more than 90 days
from its original invoice date or (iii) otherwise made any modification
except in the ordinary course of business and consistent with the
Policies of such Seller;
(j) all required consents, approvals or authorizations necessary
for the creation and enforceability of such Receivable and the effective
assignment and sale thereof by a Seller to the Company and by the
Company to the Trust shall have been obtained with respect to such
Receivable;
(k) the Seller is not in default in any material respect under
the terms of the contract, if any, from which such Receivable arose;
(l) all right, title and interest in it has been validly sold by
a Seller to the Company pursuant to the Receivables Sales Agreement;
(m) the Company or the Trust will have legal and beneficial
ownership therein free and clear of all Liens other than Liens created
pursuant to any Transaction Document in clause (i) of the definition of
Permitted Liens and such Receivable has been the subject of either a
valid transfer from the Company to the Trust or, alternatively, the
grant of a first priority perfected security interest therein to the
Trust free and clear of all Liens other than Liens created pursuant to
any Transaction Document;
(n) it is not subject to any dispute in whole or in part or to
any offset, counterclaim or defense;
(o) it did not arise as a result of a charge-back;
(p) it is at all times the legal, valid and binding obligation
of the Obligor thereon, enforceable against such Obligor in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in
equity or law);
(q) as of the related Receivables Purchase Date, neither the
Company nor a Seller has (i) taken any action in contravention of the
terms of any Transaction Document or (ii) failed to take any action
required to be taken by the terms of any Transaction Document that, in
either case, would materially impair the rights therein of the Trustee
or Investor Certificateholders with respect to such Receivable;
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(r) as of the related Receivables Purchase Date, each of the
representations and warranties with respect to such Receivable made in
the Receivables Sale Agreement by the Seller is true and correct in all
material respects; and
(s) at the time such Receivable was sold by the Seller to the
Company under the Receivables Sale Agreement, no event described in
Section 7.01(d) of the Receivables Sale Agreement had occurred with
respect to such Seller;
provided, that a Receivable which would otherwise not qualify as an Eligible
Receivable because of a failure to comply with clause (n) above shall constitute
an Eligible Receivable to the extent of the Principal Amount of such Receivable
minus the amount of such Receivable which fails to comply with such clause.
"Eligible Successor Master Servicer" and "Eligible Successor Servicer"
means an entity (which may include the Trustee) which is not a direct competitor
of ▇▇▇▇▇▇ Micro Inc., (except for affiliates of GE Capital other than GE's IT
Solutions business) unless ▇▇▇▇▇▇ Micro Inc. waives such restriction at the time
of its appointment as Master Servicer (i) is servicing a portfolio of trade
receivables, (ii) is legally qualified and has the capacity to service the
Receivables, (iii) has demonstrated the ability to service professionally and
completely a portfolio of similar accounts in accordance with high standards of
skill and care, (iv) shall have a net worth of at least $100,000,000, (v) is
qualified and, if required, licensed to use the software that the Master
Servicer is then currently using to service the Receivables or obtains the right
to use or has software which is adequate to perform its duties under the Pooling
Agreement and the Servicing Agreement (including pursuant to a license from or
other agreement with ▇▇▇▇▇▇ Micro Inc. or any of its Affiliates).
"Enhancement" shall mean, with respect to any Series (i) the funds on
deposit in or credited to any bank account (or subaccount thereof) of the Trust,
(ii) any surety arrangement, any letter of credit, guaranteed rate agreement,
maturity guaranty facility, tax protection agreement, interest rate swap,
currency swap or other contract, agreement or arrangement, in each case for the
benefit of any Investor Certificateholders of such Series or for providers of
liquidity and/or credit enhancement to any Investor Certificateholders of such
Series, in each case as designated in the applicable Supplement and (iii) the
subordination of one Class of Investor Certificates in a Series to another Class
in such Series or the subordination of any Interest to the Investor Certificates
of such Series.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended.
"Exchange Date" shall have the meaning, with respect to any Series
issued pursuant to a Company Exchange, specified in Section 5.10(a).
"Exchange Notice" shall have the meaning, with respect to any Series
issued pursuant to a Company Exchange, specified in Section 5.10(a).
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"Exchange Register" shall have the meaning specified in Section 5.10(a).
"Exchangeable Company Interest" shall have the meaning specified in
Section 3.01(b), may be represented by a Certificate and shall be exchangeable
as provided in Section 5.10.
"Excluded Receivable" shall mean, as of any date of determination, any
indebtedness and payment obligations of any Person to the Seller arising from a
sale of merchandise or services by the Seller that has the attributes set forth
in any of the following paragraphs:
(a) it is owing by an Obligor that is an Affiliate of the Seller;
(b) it is owing by an Obligor that is not "located" (within the
meaning of Section 9-103(3)(d) of the UCC as in effect in the State of
New York) in the United States and it is not supported by an Eligible
Letter of Credit;
(c) it is a Receivable originated by CMD; or
(d) it is owing by a Government Obligor; or
(e) it is a Receivable originated through the Seller's Select
Source Program.
"Federal Government Obligor" shall mean the United States Federal
government or any subdivision thereof or any agency, department or
instrumentality thereof.
"Fitch IBCA" shall mean Fitch IBCA, Inc. and any successor thereto.
"Force Majeure Delay" shall mean any delay caused by an act of God,
public enemy, acts of declared or undeclared war, public disorder, rebellion or
sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes,
floods, telecommunications disruptions, disruptions to the federal wire transfer
system or similar causes but shall not include strikes; provided that no such
cause or event shall be deemed to be a Force Majeure Delay unless the Master
Servicer or the Trustee, as applicable, shall have given the Company and the
Trustee written notice thereof as soon as reasonably possible after the
beginning of such delay.
"GAAP" shall mean generally accepted accounting principles in the United
States of America as in effect from time to time.
"General Opinion" shall mean, with respect to any action, an Opinion of
Counsel to the effect that (i) such action has been duly authorized by all
necessary corporate action on the part of the applicable Servicer or the
Company, as the case may be and (ii) any agreement executed in connection with
such action constitutes a legal, valid and binding obligation of such Servicer
or the Company, as the case may be, enforceable in accordance with the terms
thereof, except as enforceability may be limited
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by applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereinafter in effect, affecting the enforcement of
creditors' rights and except as such enforceability may be limited by general
principles of equity (whether considered in a proceeding at law or in equity).
"Government Obligor" shall mean any Federal Government Obligor or any
State/Local Government Obligor.
"Governmental Authority" shall mean any nation or government, any state
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Holders" shall mean any or all of the Investor Certificateholders, the
holders of Subordinated Company Interests and the holders of the Exchangeable
Company Interest.
"Indebtedness" shall mean, with respect to any Person at any date, (a)
all indebtedness of such Person for borrowed money, (b) any obligation owed for
the deferred purchase price of property or services which purchase price is
evidenced by a note or similar written instrument, (c) notes payable and drafts
accepted representing extensions of credit whether or not representing
obligations for borrowed money, (d) that portion of obligations of such Person
under capital leases which is properly classified as a liability on a balance
sheet in conformity with GAAP, (e) all liabilities of the type described in the
foregoing clauses (a) through (d) 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 (f) guarantees made by such Person with respect to
liabilities of the type described in the foregoing clauses (a) through (e).
"Indemnified Person" shall have the meaning specified in Section 10.19.
"Independent Public Accountants" shall mean, with respect to any Person,
any independent certified public accountants of nationally recognized standing,
or any successor thereto, (who may also render other services to the Company,
any Servicer or any Seller); provided that such firm is independent with respect
to such Person within the meaning of Rule 2-01(b) of Regulation S-X under the
Securities Act.
"Ineligibility Determination Date" shall have the meaning specified in
Section 2.05(a).
"Ineligible Receivable" shall have the meaning specified in Section
2.05(a).
"▇▇▇▇▇▇ Micro Inc." shall mean ▇▇▇▇▇▇ Micro Inc., a Delaware
corporation, and any successor thereto.
"Initial Invested Amount" shall have, with respect to any Series, the
meaning specified in the related Supplement for such Series.
"Insolvency Event" shall mean the occurrence of any one or more of the
Early Amortization Events specified in paragraph (a) of Section 7.01.
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"Insurer" shall mean any Person designated as an "Insurer" in any
Supplement.
"Interest" shall mean any interest in the Trust Assets issued pursuant
to this Agreement or any Supplement.
"Internal Revenue Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the rules and regulations promulgated thereunder
from time to time.
"Invested Amount" shall have, with respect to any Series, the meaning
specified in the related Supplement for such Series.
"Invested Percentage" shall have, with respect to any Series, the
meaning specified in the related Supplement for such Series.
"Investment" shall mean the making by the Company or any Seller of any
advance, loan, extension of credit or capital contribution to, the purchase of
any stock, bonds, notes, debentures or other securities of or any assets
constituting a business unit of, or the making by the Company or any Seller of
any other investment in, any Person.
"Investment Earnings" shall have the meaning specified in Section
3.01(c).
"Investor Certificateholder" shall mean the holder of record of an
Investor Certificate.
"Investor Certificateholders' Interest" shall have the meaning specified
in Section 3.01(b). For purposes of determining whether Holders of Investor
Certificates evidencing a specified percentage of the Investor
Certificateholders' Interest have approved, consented or otherwise agreed to any
action hereunder, such determination shall be made based on the percentage of
the Invested Amount represented by such Investor Certificates.
"Investor Certificates" shall mean the certificates executed by the
Company and authenticated by or on behalf of the Trustee, substantially in the
form attached to the applicable Supplement, but shall not include the
Exchangeable Company Interest, any Subordinated Company Interest or any other
Interest held by the Company.
"Issuance Date" shall mean, with respect to any Series, the date of
issuance of such Series, or the date of any increase to the Invested Amount of
such Series, as specified in the related Supplement.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge or security interest in or on such
asset and (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement relating to such asset;
provided, however, that if a lien is imposed under Section 412(n) of the
Internal Revenue Code or Section 302(f) of ERISA for a failure to make a
required installment or other payment to a plan to which Section 412(n) of the
Internal Revenue Code or Section 302(f) of ERISA applies, then such lien shall
not be
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treated as a "Lien" from and after the time (x)(i) any Person who is obligated
to make such payment pays to such plan the amount of such lien determined under
Section 412(n)(3) of the Internal Revenue Code or Section 302(f)(3) of ERISA, as
the case may be, and provides to the Trustee, the Rating Agencies and any Agent
a written statement of the amount of such lien together with written evidence of
payment of such amount, or (ii) such lien expires pursuant to Section 412 (n)
(4) (B) of the Internal Revenue Code or Section 302(f)(4)(B) of ERISA and (y)
the Rating Agency Condition shall have been satisfied.
"Lien Creation" shall mean the creation, incurrence, assumption or
suffering to exist by the Company or a Seller of any Lien upon the Receivables,
Related Property or the proceeds thereof.
"Lockbox" shall mean the post office boxes and accounts listed on
Schedule 3 to the Receivables Sale Agreement to which the Obligors are
instructed to remit payments on the Receivables and/or such other post office
boxes as may be established pursuant to Section 2.03 of the Servicing Agreement.
"Lockbox Account" shall mean the intervening account or accounts used by
a Lockbox Processor for deposit of funds received in a Lockbox prior to their
transfer to the Collection Account.
"Lockbox Agreement" shall mean a lockbox agreement substantially in one
of the forms set forth as Exhibit A, with such differences from such form as are
permitted upon satisfying the Rating Agency Condition and obtaining the Agent's
consent thereto (which consent shall not be unreasonably withheld).
"Lockbox Processor" shall mean the depositary institution or processing
company (which may be the Trustee) that processes payments on the Receivables
sent by the Obligors thereon forwarded to a Lockbox.
"Margin Stock" shall have the meaning given to such term in Regulation U
of the Board.
"Master Servicer" shall mean ▇▇▇▇▇▇ Micro Inc., and any successor Master
Servicer under the Transaction Documents.
"Master Servicer Resignation Notice" shall have the meaning specified in
Section 6.02(b) of the Servicing Agreement.
"Master Servicer Termination Notice" shall have the meaning specified in
Section 6.02(b) of the Servicing Agreement.
"Master Servicer Transfer" shall have the meaning specified in Section
6.01 of the Servicing Agreement.
"Material Adverse Effect" shall mean (a) a material impairment of the
legality, validity or enforceability of any of the Transaction Documents against
a Seller, the
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Master Servicer, a Servicer or the Company or (b) a material impairment of the
collectibility of the Receivables taken as a whole or of any significant portion
of the Receivables.
"Monthly Settlement Statement" shall have the meaning specified in
Section 4.02 of the Servicing Agreement.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
"1940 Act" shall mean the Investment Company Act of 1940, as amended.
"Obligor" shall mean, with respect to any Receivable, the party
obligated to make payments with respect to such Receivable, including any
guarantor thereof.
"Officer's Certificate" shall mean, with respect to any Person, unless
otherwise specified in this Agreement, a certificate signed by the Chairman of
the Board, any Vice Chairman of the Board, the Chief Executive Officer, the
President, the Chief Financial Officer, any Vice President (however denominated)
or any Treasurer or any Assistant Treasurer of such Person (or an officer
holding an office with equivalent or more senior responsibilities).
"Opinion of Counsel" shall mean a written opinion or opinions of one or
more counsel (who may be internal counsel) to the Company, the Master Servicer
or any Servicer, designated by the Company or any Servicer, as the case may be,
that is reasonably acceptable to the Trustee and not at the expense of the
Trustee.
"Outstanding Series" shall mean, at any time, a Series issued pursuant
to an effective Supplement and for which the Series Termination Date has not
occurred, provided that for purposes of any vote or similar decision process
determined by a vote based on a percentage of the Invested Amount or the
Adjusted Invested Amount of any one or more Series or Classes, any Series or
Class, 50% or more of which is owned either individually or in the aggregate by
▇▇▇▇▇▇ Micro Inc. or any Affiliate or Affiliates thereof, such Persons shall not
be included in any such vote or decision process.
"Overconcentration Amount" shall mean, at any date with respect to an
Eligible Obligor, the Principal Amount of otherwise Eligible Receivables due
from such Obligor which, expressed as a percentage of the Principal Amount of
all Eligible Receivables in the Trust at such date, exceeds the percentage set
forth below for the applicable ratings category of senior debt of that Obligor
(or such larger percentage upon satisfaction of the Rating Agency Condition and
obtaining the Agent's consent thereto (which consent shall not be unreasonably
withheld)):
Minimum Rating
S&P Fitch IBCA Moody's Percentage
A-l+ or AA- F-1+ or AA- P-1 or Aa3 15%
A-1 or A+ F-1 or A+ P-1 or A1 15%
A-2 or BBB+ F-2 or BBB+ P-2 or Baa1 7.5%
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S&P Fitch IBCA Moody's Percentage
A-3 or BBB- F-3 or BBB- P-3 or Baa3 5%
Less than A-3 or Less than F-3 or Less than P-3 or 3%
BBB-/Not rated BBB-/Not Rated Baa3/Not Rated
provided, however that, for purposes of this definition, all Eligible Obligors
that are Affiliates of each other shall be deemed to be a single Eligible
Obligor to the extent the Servicer has actual knowledge of the affiliation and
in that case, the applicable debt rating for such group of Obligors shall be the
debt rating of the ultimate parent of the group.
If the ratings given by S&P, ▇▇▇▇▇'▇ and Fitch IBCA to the senior debt
of any Obligor (or the ultimate parent of the affiliated group of which such
Obligor is a member, as the case may be) would result in different applicable
percentages under the table above, the applicable percentage shall be the
percentage associated with the lower rating, as between S&P's rating, ▇▇▇▇▇'▇
rating and Fitch IBCA's rating, of such Obligor's (or such ultimate parent's, as
the case may be) short-term senior debt; provided that: (i) if such short-term
debt is not rated by Fitch IBCA, the applicable percentage will be the
percentage associated with the rating issued by S&P and Moody's, (ii) if such
short-term debt is not rated by Moody's, the applicable percentage will be the
percentage associated with the rating issued by S&P and Fitch IBCA, and (iii) if
S&P does not issue a short-term rating with respect to such Obligor's (or such
ultimate parent's, as the case may be) debt, then the percentage applicable to
such Obligor (or such ultimate parent's, as the case may be) shall be the
percentage associated with the categories "Less than A-3 or BBB-/Not rated" and
"Less than F-3 or BBB-/Not rated"; provided, further that in the event that both
the long-term debt and short-term debt of any Obligor are rated by S&P, Moody's
or Fitch IBCA, as the case may be, the lower of the long-term or short-term
rating shall be used in determining the applicable percentage. The ratings
specified in the table are minimums for each percentage category, so that a
rating not shown in the table falls in the category associated with the highest
rating shown in the table that is lower than that rating. It is understood that
the rating given by Moody's to the senior debt of any Obligor shall be
considered for purposes of determining the Overconcentration Amount only for any
period during which one or more VFC Certificates issued pursuant to the Series
2000-1 Supplement is outstanding and held by a Purchaser whose holdings of such
VFC and other investments are subject to review by Moody's in connection with
▇▇▇▇▇'▇ rating of such Purchaser.
"Paying Agent" shall mean any paying agent and co-paying agent appointed
pursuant to Section 5.06 and, unless otherwise specified in the related
Supplement of any Series and with respect to such Series, shall initially be the
Trustee.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA and any Person succeeding to the
functions thereof.
"Permitted Liens" shall mean, at any time, for any Person:
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(i) Liens created pursuant to any Transaction Document;
(ii) Liens which are in all respects junior under the applicable
UCC to the Liens created under the Transaction Documents and which
secure the payment of taxes, assessments or other governmental charges
or levies (a) not yet due or (b) that are being contested in good faith
by appropriate legal or administrative proceedings and with respect to
which reserves in conformity with GAAP have been provided on the books
of such Person; and
(iii) Liens for federal taxes not in excess of $100,000 in the
aggregate at any one time outstanding which are being contested in good
faith by appropriate legal or administrative proceedings and as to which
action is being taken with due diligence to resolve or remove.
"Person" shall mean any individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint venture,
limited liability company, Governmental Authority or other entity of whatever
nature.
"Policies" shall mean, with respect to each Seller, the credit and
collection policies of such Seller, copies of which have been previously
delivered to the Trustee, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with the Transaction Documents.
"Pooling and Servicing Agreements" shall have the meaning specified in
Section 10.01(a).
"Potential Early Amortization Event" shall mean an event which, with the
giving of notice and/or the lapse of time, would constitute an Early
Amortization Event hereunder or under any Supplement.
"Potential Servicer Default" shall mean an event which, with the giving
of notice and/or the lapse of time, would constitute a Servicer Default
hereunder or under the Servicing Agreement or any Supplement.
"Principal Amount" shall mean, with respect to any Receivable, the
unpaid principal amount of such Receivable.
"Principal Terms" shall have the meaning, with respect to any Series
issued pursuant to an Exchange, specified in Section 5.10(c).
"Program Costs" shall have, with respect to any Series, the meaning
specified in the related Supplement for such Series.
"Publication Date" shall have the meaning specified in Section 7.02(a).
"Qualifying DIP Obligor" shall mean, as of any date of determination, an
Obligor (i) that is a "debtor in possession", for which no trustee or examiner
has been appointed and no application is pending for the appointment of a
trustee or examiner, in a
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case under Chapter 11 of the Bankruptcy Code in which no motion has been made
for an order liquidating all or any substantial portion of such debtor's assets
and no motion has been made for the conversion of such case to a case under
Chapter 7 of the Bankruptcy Code and no restriction prescribed by the bankruptcy
court is in effect, which would restrict such Obligor's payments under the
Receivables, (ii) in the case of any proposed Qualifying DIP Obligor whose
Receivables would, if included in the Trust Assets, account for 5% or more of
the aggregate Principal Amount of all Receivables included in the Trust, each
Agent has been given notice at least five Business Days prior to any transfer of
Receivables owing by such Obligor to the Trust of the proposed inclusion of such
Obligor as an Eligible Obligor on the basis of being a Qualifying DIP Obligor,
(iii) as to which the bankruptcy court has given its approval to the payment by
such Obligor of the related Receivables and (iv) as to which no Agent has, in
the exercise of its reasonable discretion, given notice to the Company and the
Master Servicer that such Obligor shall not be included as an Eligible Obligor.
"Rating Agency" shall mean, with respect to each Outstanding Series, any
rating agency or agencies designated as such in the related Supplement; provided
that (i) in the event that no Outstanding Series has been rated, then for
purposes of the definitions of "Eligible Institution" and "Eligible
Investments", "Rating Agency" shall mean S & P; (ii) except as provided in the
immediately preceding clause (i), in the event no Outstanding Series has been
rated, any reference to "Rating Agency" or the "Rating Agencies" shall be deemed
to have been deleted herefrom, except that references to the term "Rating Agency
Condition" shall not be deemed deleted, but shall be modified as set forth under
the definition of such term.
"Rating Agency Condition" shall mean, with respect to any action, that
each Rating Agency shall have notified the Company, the Master Servicer, any
Agent and the Trustee in writing that such action will not result in a
reduction, qualification or withdrawal of the rating of any Outstanding Series
or any Class of any such Outstanding Series with respect to which it is a Rating
Agency or with respect to any series of Variable Funding Certificates, the
"shadow" rating of such Series of Variable Funding Certificates (without giving
effect to any Enhancement) and the rating of the commercial paper issued to fund
such Series of Variable Funding Certificates; provided that in the event that no
Outstanding Series has been rated, any reference to a "Rating Agency Condition"
shall be deemed to be a reference to the consent of Investor Certificateholders
representing Investor Certificateholders' Interests aggregating not less than
50% of the Invested Amount of such Series with respect to such action.
"Receivable" shall mean the indebtedness and payment obligations of any
Person to any Seller (without giving effect to the transactions contemplated by
the Receivables Sale Agreement, and including, without limitation, obligations
evidenced by an account, note, instrument, contract, security agreement, chattel
paper, general intangible or other evidence of indebtedness or security) arising
from a sale of merchandise or services by such Seller , including, without
limitation, any right to payment for goods sold or for services rendered, and
including the right to payment of any interest, sales taxes, finance charges,
returned check or late charges and other obligations of such Person with respect
thereto, but not including any Excluded Receivable.
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"Receivables Purchase Date" shall mean, with respect to any Receivable,
the Business Day on which the Company purchases such Receivable from a Seller
and transfers such Receivable to the Trust.
"Receivables Sale Agreement" shall mean the Amended and Restated
Receivables Sale Agreement, dated as of the date hereof, among the Seller, the
Master Servicer and the Company, as amended, supplemented or otherwise modified
from time to time in accordance with the Transaction Documents.
"Record Date", shall mean, with respect to any Series, the date
specified as such in the applicable Supplement.
"Recoveries" shall mean all amounts collected (net of out-of-pocket
costs of collection) in respect of Charged-Off Receivables.
"Regulation U" shall mean Regulation U of the Board as from time to time
in effect and all official rulings and interpretations thereunder or thereof.
"Regulation X" shall mean Regulation X of the Board as from time to time
in effect and all official rulings and interpretations thereunder or thereof.
"Related Property" shall mean, with respect to each Receivable:
(a) all of the Seller's and the Company's right, title and interest in
the goods (including returned goods), if any, relating to the sale which gave
rise to such Receivable;
(b) all other security interests or Liens and property subject thereto
from time to time purporting to secure payment of such Receivable, whether
pursuant to the contract related to such Receivable or otherwise, together with
all financing statements signed by an Obligor describing any collateral securing
such Receivable;
(c) all guarantees, insurance, letters of credit (including any Eligible
Letter of Credit) and other agreements or arrangements of whatever character
from time to time supporting or securing payment of such Receivable whether
pursuant to the contract related to such Receivable or otherwise; and
(d) all other instruments and all rights under the contracts and other
documents related to the Receivables and all rights (but not obligations)
relating to such Receivables;
including in the case of clauses (b), (c) and (d), without limitation, pursuant
to any obligations evidenced by an account, note, instrument, contract, security
agreement, chattel paper, general intangible or other evidence of indebtedness
or security.
"Reported Day" shall have the meaning specified in Section 4.01(a) of
the Servicing Agreement.
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"Requirement of Law" for any Person shall mean the certificate of
incorporation and by-laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation, or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Resignation Notice" shall have the meaning specified in Section 6.02(a)
of the Servicing Agreement.
"Responsible Officer" shall mean (i) when used with respect to the
Trustee, any officer within the Corporate Trust Office of the Trustee with
direct responsibility for the administration of the Pooling and Servicing
Agreements or, with respect to any particular matter, any other officer of the
Trustee customarily performing functions similar to those performed by any of
the above designated officers to whom such matters have been specifically
referred and (ii) when used with respect to any other Person, the Chairman of
the Board, any Vice Chairman of the Board, the Chief Executive Officer, the
President, the Chief Financial Officer, any Vice President or the Treasurer or
Assistant Treasurer of such Person.
"Restricted Payments" shall have the meaning assigned in Section
2.08(n).
"Revolving Period" shall have, with respect to any Outstanding Series,
the definition assigned to such term in the related Supplement.
"S&P" shall mean Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. or any successor thereto.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Select Source Program" shall refer to the operations categorized as the
Select Source Program from time to time on the internal records of ▇▇▇▇▇▇ Micro
Inc. or any Subsidiary, which operations shall include the sale of products by
▇▇▇▇▇▇ Micro Inc. or any Subsidiary of ▇▇▇▇▇▇ Micro Inc. to certain
participating resellers and the subsequent sale of such products by such
resellers to end-users, whereby ▇▇▇▇▇▇ Micro Inc. or a Subsidiary of ▇▇▇▇▇▇
Micro Inc. ships to end-users the products so sold by resellers, invoices such
end-users and collects the related Receivables, and pays over to resellers the
profits on their respective sales to end-users.
"Seller" shall mean ▇▇▇▇▇▇ Micro Inc. and any additional Seller becoming
a party to the Receivables Sale Agreement by execution and delivery of an
Additional Seller/Servicer Supplement substantially in the form of Exhibit B to
the Receivables Sale Agreement.
"Seller Material Adverse Effect" shall mean, with respect to any Seller,
(i) any material impairment of such Seller's ability to perform any of its
material obligations or to comply with or conduct its business in accordance
with any of its material representations, warranties, covenants or agreements
under any Transaction Document or (ii) any material impairment of the interests,
rights or remedies of the Trustee or the
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Investor Certificateholders against or with respect to such Seller, in the
Receivables or under any Transaction Document, including any interests, rights
or remedies of the Trustee or the Investor Certificateholders as an assignee or
assignees of the Company under, or a third-party beneficiary or third-party
beneficiaries of, the Receivables Sale Agreement.
"Seller Note" shall have the meaning specified in Section 8.01 of the
Receivables Sale Agreement.
"Series" shall mean any series of Investor Certificates and any related
Subordinated Company Interest, the terms of which are set forth in a Supplement.
"Series Account" shall mean any deposit, trust, escrow, reserve or
similar account maintained for the benefit of the Investor Certificateholders
and the holders of the related Subordinated Company Interest of any Series or
Class, as specified in any Supplement.
"Series Collection Subaccount" shall have the meaning specified in
Section 3.01(a).
"Series Collection Sub-subaccount" shall have the meaning specified in
Section 3.01(a).
"Series Non-Principal Collection Sub-subaccount" shall have the meaning
specified in Section 3.01(a).
"Series Principal Collection Sub-subaccount" shall have the meaning
specified in Section 3.01(a).
"Series Termination Date" shall have, with respect to any Series, the
meaning specified in the related Supplement for such Series.
"Serviced Receivable" shall have the meaning specified in Section 2.01
of the Servicing Agreement.
"Service Transfer" shall have the meaning specified in Section 6.01 of
the Servicing Agreement.
"Servicer" shall mean ▇▇▇▇▇▇ Micro Inc., any additional Servicer
becoming a party hereto by execution and delivery of an Additional
Seller/Servicer Supplement substantially in the form of Exhibit B to the
Receivables Sale Agreement and any Successor Servicer under the Transaction
Documents.
"Servicer Default" shall have, with respect to any Series, the meaning
specified in Section 6.01 of the Servicing Agreement and, if applicable, as
supplemented by the related Supplement for such Series.
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"Servicer Material Adverse Effect" shall mean, with respect to the
Master Servicer or any Servicer, (i) any material impairment of such Person's
ability to perform any of its material obligations or to comply with or conduct
its business in accordance with any of its material representations, warranties,
covenants or agreements under any Transaction Document, or (ii) any material
impairment of the interests, rights or remedies of the Trustee or the Investor
Certificateholders against or with respect to such Person, in the Receivables or
under any Transaction Document.
"Servicing Agreement" shall have the meaning specified in the recitals
hereto.
"Servicing Fee" shall have the meaning specified in Section 2.05(a) of
the Servicing Agreement.
"Servicing Fee Percentage" shall mean 1.00% per annum.
"Settlement Period" shall mean each fiscal month of the Master Servicer
as set forth in Exhibit C hereto and amendments thereto from time to time.
"Settlement Report Date" shall mean, except as otherwise set forth in
the applicable Supplement, the 10th day of each calendar month or, if such 10th
day is not a Business Day, the next succeeding Business Day.
"Significant Subsidiary" means: (a) with respect to any Subsidiary of
▇▇▇▇▇▇ Micro Inc. as of the date hereof, a Subsidiary of ▇▇▇▇▇▇ Micro Inc. that
(as of any date of determination), (i) on an average over the three (3) most
recently preceding fiscal years of ▇▇▇▇▇▇ Micro contributed at least five
percent (5%) to consolidated net income of ▇▇▇▇▇▇ Micro Inc. or (ii) on an
average at the end of the three (3) most recently preceding fiscal years of
▇▇▇▇▇▇ Micro Inc. owned assets constituting at least five percent (5%) of
consolidated assets.
"Special Allocation Settlement Report Date" shall have the meaning
specified in Section 3.01(e).
"Specified Bankruptcy Opinion Provisions" shall mean the factual
assumptions (including those contained in the factual certificate referred to
therein) and the actions to be taken by the Seller or the Company in each case
in the legal opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ relating to certain bankruptcy
matters delivered on each Issuance Date.
"State/Local Government Obligor" shall mean any state or local
government or any subdivision thereof or any agency, department or
instrumentality thereof.
"Subordinated Company Interest" shall mean any Interest (which may be in
the form of a Certificate) issued to the Company pursuant to the Supplement for
any Series which represents an interest in the Trust Assets which is
subordinated to the Investor Certificates of such Series.
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"Subordinated Interest Amount" shall have, with respect to any
Outstanding Series, the meaning specified in the related Supplement for such
Outstanding Series.
"Subordinated Interest Register" shall have the meaning specified in
Section 5.10(d).
"Subsequent Cut-Off Date" shall have the meaning specified in the
Supplements related to the VFC Certificates.
"Subsidiary" shall mean, as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests having
such power only by reason of the happening of a contingency) to elect a majority
of the board of directors or other managers of such corporation, partnership or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by such Person.
"Successor Master Servicer" shall have the meaning specified in Section
6.02 of the Servicing Agreement.
"Successor Servicer" shall have the meaning specified in Section 6.02 of
the Servicing Agreement.
"Supplement" shall mean, with respect to any Series, a supplement to
this Agreement complying with the terms hereof, executed in conjunction with the
issuance of any Series.
"Supplemental Agreement" shall have the meaning provided in Section
5.01(a) of the Servicing Agreement.
"Target Receivables Amount" shall have, with respect to any Outstanding
Series, the meaning specified in the related Supplement for such Outstanding
Series.
"Tax Opinion" shall mean, unless otherwise specified in the Supplement
for any Series with respect to such Series or any Class within such Series, with
respect to any action, an Opinion of Counsel (a) to the effect that, for United
States federal income tax purposes, (i) such action will not adversely affect
the characterization as debt of any Investor Certificates of any Outstanding
Series or Class not retained by the Company, (ii) in the case of Section 5.10,
the Investor Certificates of the new Series that are not retained by the Company
will be characterized as debt or should be characterized as debt and if not so
treated, will be characterized as equity interests in a partnership between the
Company and one or more Classes of the Investor Certificateholders, which
partnership will not be considered a publicly traded partnership taxable as a
corporation and (iii) following such action, the Trust will not be an
association (or publicly traded partnership) taxable as a corporation and (b)
with respect to state taxation issues regarding the taxation of the Trust, in
substantially the form delivered at the Effective Date.
"Termination Notice" shall have the meaning specified in Section 6.01 of
the Servicing Agreement.
"Transactions" shall have the meaning specified in Section 2.03(b).
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"Transaction Documents" shall mean the collective reference to this
Agreement, the Servicing Agreement, each Supplement with respect to any
Outstanding Series, the Receivables Sale Agreement, the Lockbox Agreements, the
Investor Certificates, and any other documents delivered pursuant to or in
connection therewith.
"Transfer Agent and Registrar" shall have the meaning specified in
Section 5.03 and shall initially be the Trustee.
"Transfer Deposit Amount" shall have the meaning specified in Section
2.05(b).
"Transferred Agreements" shall have the meaning assigned in Section
2.01(a)(v).
"Trust" shall mean the ▇▇▇▇▇▇ Funding Master Trust, as amended by this
Agreement.
"Trust Accounts" shall mean the trust accounts established under the
Supplements.
"Trust Assets" shall have the meaning specified in Section 2.01(a).
"Trust Termination Date" shall have the meaning specified in Section
9.01(a).
"Trustee" shall mean the institution executing this Agreement as
trustee, or its successor in interest, or any successor trustee appointed as
herein provided.
"UCC" shall mean the Uniform Commercial Code, as amended from time to
time, as in effect in any specified jurisdiction.
"UCP 500" shall mean "The Uniform Customs and Practices for Documentary
Credits", 1993 Revision, International Chamber of Commerce Publication No. 500.
"United States" for purposes of geographic description shall mean the
United States of America, its territories and possessions and Puerto Rico.
"Variable Funding Certificates" or "VFC Certificates" shall have the
meaning specified in Section 5.10.
"Voluntary Liquidation Date" shall mean, with respect to any Series of
Investor Certificates, any date during an Early Amortization Period for such
Series on which the Trustee shall have been directed in writing by Investor
Certificateholders representing more than 50% of the Invested Amount of such
Series or, in the case of a Series having more than one Class of Investor
Certificates, Investor Certificateholders representing more than 50% of the
Invested Amount of each Class of such Series, to sell Receivables pursuant to
the terms of Section 9.02 hereof.
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SECTION 1.02. Other Definitional Provisions. All terms defined in this
Agreement, the Servicing Agreement or in any Supplement shall have such defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(a) As used herein and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in Section
1.01, and accounting terms partly defined in Section 1.01 to the extent not
defined, shall have the respective meanings given to them under GAAP. To the
extent that the definitions of accounting terms herein are inconsistent with the
meanings of such terms under GAAP, the definitions contained herein shall
control.
(b) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; and Section, subsection,
Schedule, Exhibit and Appendix references contained in this Agreement are
references to Sections, subsections, Schedules, Exhibits and Appendices in or to
this Agreement unless otherwise specified.
(c) The definitions contained in Section 1.01 are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
(d) Where a definition contained in Section 1.01 specifies that such
term shall have the meaning set forth in the related Supplement, the definition
of such term set forth in the related Supplement may be preceded by a prefix
indicating the specific Series or Class to which such definition shall apply.
(e) Where reference is made in this Agreement or any related Supplement
to the principal amount of Receivables, such reference shall, unless explicitly
stated otherwise, be deemed a reference to the Principal Amount (as such term is
defined in Section 1.01) of such Receivables.
(f) Any reference herein or in any other Transaction Document to a
provision of the Bankruptcy Code, the Internal Revenue Code, ERISA or the 1940
Act shall be deemed a reference to any successor provision thereto.
(g) Any reference herein to a Schedule, Exhibit or Appendix to this
Agreement shall be deemed to be a reference to such Schedule, Exhibit or
Appendix as it may be amended, modified or supplemented from time to time to the
extent that such Schedule, Exhibit or Appendix may be amended, modified or
supplemented (or any term or provision of any Transaction Document may be
amended that would have the effect of amending, modifying or supplementing
information contained in such Schedule, Exhibit or Appendix) in compliance with
the terms of the Transaction Documents.
(h) Any reference herein to any representation, warranty or covenant
"deemed" to have been made is intended to encompass only representations,
warranties or covenants that are expressly stated to be repeated on or as of
dates following the
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execution and delivery of this Agreement, and no such reference shall be
interpreted as a reference to any implicit, inferred, tacit or otherwise
unexpressed representation, warranty or covenant.
(i) The words "include", "includes" or "including" shall be interpreted
as if followed, in each case, by the phrase "without limitation".
ARTICLE II
CONVEYANCE OF RECEIVABLES; REPRESENTATIONS, WARRANTIES
AND COVENANTS
SECTION 2.01. Conveyance of Receivables.
(a) By execution and delivery of this Agreement, the Company does hereby
sell, assign, set over and otherwise convey to the Trust from time to time, for
the benefit of the Holders, with the intention of effecting a legal true sale,
without recourse and free and clear of all liens (except as specifically
provided herein), all its present and future right, title and interest in, to
and under:
(i) all Receivables, including those purchased by the Company at
or before the close of business on the Effective Date and all
Receivables thereafter purchased from time to time until but not
including the Trust Termination Date;
(ii) the Related Property;
(iii) all Collections;
(iv) all rights (including rescission, replevin or reclamation)
relating to any Receivable or arising therefrom;
(v) each of the Receivables Sale Agreement, the Servicing
Agreement and the subordination provisions set forth in paragraphs 3 and
6 of the Seller Note, including in respect of each agreement, (A) all
rights of the Company to receive monies due and to become due under or
pursuant to such agreement, whether payable as fees, expenses, costs or
otherwise, (B) all rights of the Company to receive proceeds of any
insurance, indemnity, warranty or guaranty with respect to such
agreement, (C) claims of the Company for damages arising out of or for
breach of or default under such agreement, (D) the right of the Company
to amend, waive or terminate such agreement, to perform thereunder and
to compel performance and otherwise exercise all remedies thereunder,
(E) with respect to the Seller Note, the right to enforce the
subordination provisions thereof, and (F) all other rights, remedies,
powers, privileges and claims of the Company under or in connection with
such agreement (whether arising pursuant to such agreement or otherwise
available to the Company at law or in equity), including the rights of
the Company to enforce such agreement and to give or
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withhold any and all consents, requests, notices, directions, approvals,
extensions or waivers under or in connection therewith (all of the
foregoing set forth in subclauses (v) (A) through (F), inclusive, the
"Transferred Agreements");
(vi) the Collection Account, each Lockbox and each Lockbox
Account (collectively, the "Accounts"), including (A) all funds and
other evidences of payment held therein and all certificates and
instruments, if any, from time to time representing or evidencing any of
such Accounts or any funds and other evidences of payment held therein,
(B) all investments of such funds held in such Accounts and all
certificates and instruments from time to time representing or
evidencing such investments, (C) all notes, certificates of deposit and
other instruments from time to time hereafter delivered or transferred
to, or otherwise possessed by, the Trustee for and on behalf of the
Company in substitution for any of the then existing Accounts and (D)
all interest, dividends, cash, instruments and other property from time
to time received, receivable or otherwise distributed in respect of or
in exchange for any and all of the then existing Accounts; and
(vii) all proceeds of or payments in respect of any and all of
the foregoing clauses (i) through (vi) (including proceeds that
constitute property of the types described in clause (vi) above and
including Collections).
Such property described in the foregoing clauses (i) through (vii), together
with all investments and all monies on deposit in any other bank account or
accounts maintained for the benefit of any Holders for payment to Holders shall
constitute the assets of the Trust (collectively, the "Trust Assets").
Subject to Section 5.09, although it is the intent of the parties to this
Agreement that the conveyance of the Company's right, title and interest in, to
and under the Receivables and the other Trust Assets pursuant to this Agreement
shall constitute a purchase and sale and not a loan, in the event that such
conveyance is deemed to be a loan, the Company hereby grants to the Trustee for
the benefit of the Holders a perfected first priority security interest in all
of the Company's present and future right, title and interest in, to and under
the Receivables and the other Trust Assets, and that this Agreement shall be
deemed to constitute a security agreement under applicable law in favor of the
Trustee, for the benefit of the Holders.
(b) The assignment, setover and conveyance to the Trust pursuant to
Section 2.01(a) shall be made to the Trustee, on behalf of the Trust, and each
reference in this Agreement to such assignment, setover and conveyance shall be
construed accordingly. In connection with the foregoing assignment, the Company
and the Master Servicer agree to deliver to the Trustee each Trust Asset
evidencing a Receivable or any Related Property with respect thereto (including
any original document or instrument necessary to effect or to perfect such
assignment) in which the transfer of an interest is being perfected under the
UCC or otherwise by possession and not by filing a financing statement or
similar document (although a precautionary filing of a financing statement or
similar document is expected to be made in respect of each such Trust Asset).
Without limiting
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the generality of the foregoing sentence, the Company and the Master Servicer
agree to deliver or cause to be delivered to the Trustee an original of (i) any
promissory note or other instrument evidencing a Receivable sold to the Trust,
(ii) any chattel paper evidencing a Receivable sold to the Trust and (iii) each
Eligible Letter of Credit related to any Person that is to be considered an
Eligible Obligor on the basis of paragraph (a) of the definition of "Eligible
Obligor".
(c) Notwithstanding the assignment of the Transferred Agreements set
forth in Section 2.01(a), the Company does not hereby assign or delegate any of
its duties or obligations under the Receivables Sale Agreement to the Trust or
the Trustee and neither the Trust nor the Trustee accepts such duties or
obligations, and the Company shall continue to have the right and the obligation
to purchase Receivables from the Seller thereunder from time to time and to
consummate the other transactions and take any actions contemplated thereby. The
foregoing assignment, set-over and conveyance does not constitute and is not
intended to result in a creation or an assumption by the Trust, the Trustee, any
Investor Certificateholder or the Company, in its capacity as a Holder, of any
obligation of the Master Servicer, any Servicer, the Company, the Seller or any
other Person in connection with the Receivables or under any agreement or
instrument relating thereto, including, without limitation, any obligation to
any Obligor.
(d) In connection with the foregoing assignment, the Company agrees to
record and file, or cause to be recorded or filed, at its own expense, any
financing statements (and continuation statements with respect to such financing
statements when applicable) or, where applicable, registrations in the
appropriate records, (i) with respect to the Receivables now existing and
hereafter created and (ii) with respect to any other Trust Assets for which a
security interest may be perfected under the relevant UCC, legislation or
similar statute by such filing or registration, as the case may be, in each case
meeting the requirements of applicable law in such manner and in such
jurisdictions as are necessary to perfect and maintain perfection of the
assignment of the Receivables and such other Trust Assets (excluding returned
merchandise) to the Trust, and to deliver a file-stamped copy or certified
statement of such financing statement or registration or other evidence of such
filing or registration to the Trustee on or prior to the date of issuance of any
Investor Certificates, any Subordinated Company Interest or the Exchangeable
Company Interest. The Trustee shall be under no obligation whatsoever to file
such financing statement, or a continuation statement to such financing
statement, or to make any other filing or other registration under the UCC,
other relevant legislation or similar statute in connection with such transfer.
The Trustee shall be entitled to conclusively rely on the filings or
registrations made by or on behalf of the Company without any independent
investigation and the Company's obligation to make such filings as evidence that
such filings have been made.
(e) In connection with such assignment, the Company further agrees, at
its own expense, (a) on or prior to the Effective Date and thereafter, to
indicate, or to cause to be indicated, in its computer files containing its
master database of Receivables and to cause the Seller to indicate in its
records containing its master database of Receivables that Receivables have been
conveyed to the Company or the Trust, as the case may be,
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pursuant to the Receivables Sale Agreement or this Agreement, respectively, for
the benefit of the Holders and (b) to deliver or transmit or cause to be
delivered or transmitted to the Trustee computer tapes, diskettes or data
transmission containing a true and complete list of all Receivables transferred
to the Trust specifying for each such Receivable, as of the Cut-Off Date or any
Subsequent Cut-Off Date as applicable, at least (i) the name of the Obligor and
(ii) the aggregate Principal Amount of the Receivables owing by such Obligor.
Such tapes, diskettes or data transmission shall constitute Schedule 1 to this
Agreement and are hereby incorporated into and made a part of this Agreement
whether they are delivered together with or separate from this Agreement.
SECTION 2.02. Acceptance by Trustee.
(a) The Trustee hereby acknowledges its acceptance on behalf of the
Trust of all right, title and interest in, to and under the property, now
existing and hereafter created, assigned to the Trust pursuant to Section 2.01
and declares that it shall maintain such right, title and interest, upon the
trust herein set forth, for the benefit of all Holders. The Trustee further
acknowledges that, prior to or simultaneous with the execution and delivery of
this Agreement, the Company delivered to the Trustee the computer tapes
containing a list of the Receivables described in Section 2.01(e). The Trustee
shall maintain a copy of Schedule 1, as delivered from time to time, at the
Corporate Trust Office.
(b) The Trustee shall have no power to create, assume or incur
indebtedness or other liabilities in the name of the Trust other than as
contemplated in this Agreement.
SECTION 2.03. Representations and Warranties of the Company Relating to
the Company. The Company hereby represents and warrants to the Trustee and the
Trust, for the benefit of the Holders, as of the Effective Date, that:
(a) Organization; Powers. The Company (i) is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) has all requisite power and authority to
own its property and assets and to carry on its business as now conducted and as
proposed to be conducted, (iii) is qualified to do business in, and is in good
standing in, every jurisdiction where the nature of its business so requires,
except where the failure so to qualify could not reasonably be expected to
result in a Company Material Adverse Effect and (iv) has the corporate power and
authority to execute, deliver and perform its obligations under each of the
Transaction Documents and each other agreement or instrument contemplated hereby
to which it is or will be a party.
(b) Authorization. The execution, delivery and performance by the
Company of each of the Transaction Documents and the performance of the
transactions contemplated hereby (collectively, the "Transactions") (i) have
been duly authorized by all requisite corporate and, if required, stockholder
action and (ii) will not (A) violate (1) any Requirement of Law or (2) any
provision of any Transaction Document or any other Contractual Obligation to
which the Company is a party or by which it or any of its property is or may be
bound, (B) be in conflict with, result in a breach of or constitute
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(alone or with notice or lapse of time or both) a default under, or give rise to
any right to accelerate or to require the prepayment, repurchase or redemption
of any obligation under, any Transaction Document or any other Contractual
Obligation or (C) result in the creation or imposition of any Lien upon or with
respect to any property or assets now owned or hereafter acquired by the Company
(other than any Lien created hereunder or contemplated or permitted hereby).
(c) Enforceability. This Agreement has been duly executed and delivered
by the Company and constitutes, and each other Transaction Document to which the
Company is a party when executed and delivered by the Company will constitute, a
legal, valid and binding obligation of the Company enforceable against it in
accordance with its respective terms, subject (a) to applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting the
enforcement of creditors rights generally, from time to time in effect and (b)
to general principles of equity (whether enforcement is sought by a proceeding
in equity or at law).
(d) Governmental Approvals. No action, consent or approval of,
registration or filing with or any other action by any Governmental Authority is
or will be required in connection with the Transactions, except for (i) the
filing of appropriate UCC financing statements and (ii) such as have been made
or obtained and are in full force and effect; provided, however, that the
Company makes no representation or warranty regarding state securities or "blue
sky" laws in connection with the distribution of the Certificates and Interests.
(e) Litigation; Compliance with Laws. (i) There are not any actions,
suits or proceedings at law or in equity or by or before any Governmental
Authority now pending or, to the knowledge of the Company, threatened against
the Company.
(ii) The Company is not in default with respect to any judgment, writ,
injunction, decree or order of any Governmental Authority.
(f) Agreements. (i) The Company has no Contractual Obligations other
than (A) the Transaction Documents to which it is a party (including the Seller
Note) and (B) any other agreements or instruments that the Company is not
prohibited from entering into by Section 2.08(f) and that, in the aggregate,
neither contain payment obligations or other liabilities on the part of the
Company in excess of $100,000 nor would upon default result in a Company
Material Adverse Effect. Other than the restrictions created by the Transaction
Documents, the Company is not subject to any corporate restriction that could
reasonably be expected to have a Company Material Adverse Effect.
(ii) The Company is not in default in any material respect under any
provision of any Transaction Document or any other Contractual Obligation to
which it is a party or by which it or any of its properties or assets are or may
be bound.
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(g) Federal Reserve Regulations. (i) The Company is not engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of buying or carrying Margin Stock.
(ii) No part of the proceeds from the issuance of any Investor
Certificates will be used, whether directly or indirectly, and whether
immediately, incidentally or ultimately, for any purpose that entails a
violation of, or that is inconsistent with, the provisions of the Regulations of
the Board, including Regulation U or Regulation X.
(h) Investment Company Act. Neither the Company nor the Trust is an
"investment company" as defined in, or subject to regulation under, the 1940
Act.
(i) No Early Amortization Event. No Early Amortization Event or
Potential Early Amortization Event has occurred and is continuing.
(j) Tax Returns. The Company has filed or caused to be filed all
material tax returns (Federal, state or local) which it reasonably believes are
required to have been filed by it and has paid or caused to be paid or made
adequate provision for all taxes due and payable by it and all assessments
received by it except to the extent that any failure to file or nonpayment is
being contested in good faith.
(k) Location of Records--Chief Executive Office. The offices at which
the Company keeps its records concerning the Receivables either (x) are located
at the addresses set forth for the Sellers on Schedule 4 of the Receivables Sale
Agreement or (y) the Company has notified the Trustee of the location thereof in
accordance with the provisions of Section 2.08 (i) of this Agreement. The chief
executive office of the Company is located at the address set forth on Schedule
3 and is the place where the Company is "located" for the purposes of Section
9-103(3)(d) of the UCC as in effect in the State of New York. As of the
Effective Date, the state and county where the chief executive office of the
Company is "located" for the purposes of Section 9-103(3) (d) of the UCC as in
effect in the State of New York has not changed in the past four months.
(l) Solvency. No Insolvency Event with respect to the Company has
occurred and the transfer of the Receivables by the Company to the Trust has not
been made in contemplation of the occurrence thereof. Both prior to and after
giving effect to the transactions occurring on each Issuance Date, (i) the fair
value of the assets of the Company at a fair valuation will exceed the debts and
liabilities, subordinated, contingent or otherwise, of the Company; (ii) the
present fair salable value of the property of the Company will be greater than
the amount that will be required to pay the probable liability of the Company on
its debts and other liabilities, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured; (iii) the Company will be
able to pay its debts and liabilities, subordinated, contingent or otherwise, as
such debts and liabilities become absolute and matured; and (iv) the Company
will not have unreasonably small capital with which to conduct the business in
which it is engaged as such business is now conducted and is proposed to be
conducted. For all purposes of clauses (i) through (iv) above, the amount of
contingent liabilities at any time shall be
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computed as the amount that, in the light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability. The Company does not intend to, nor does
it believe that it will, incur debts beyond its ability to pay such debts as
they mature, taking into account the timing of and amounts of cash to be
received by it and the timing of and amounts of cash to be payable in respect of
its Indebtedness.
(m) Ownership; Subsidiaries. All of the issued and outstanding capital
stock of the Company is owned, legally and beneficially, by ▇▇▇▇▇▇ Micro Inc.
The Company has no Subsidiaries.
(n) Names. The legal name of the Company is as set forth in this
Agreement. The Company has no trade names, fictitious names, assumed names or
"doing business as" names.
(o) Liabilities. Assuming (x) the execution and delivery of each of the
Transaction Documents on or before each Issuance Date and (y) that all
liabilities and obligations of the Company in respect of any previous
transactions or activities are canceled on or before such Issuance Date, then
other than, (i) the liabilities, commitments or obligations (whether absolute,
accrued, contingent or otherwise) arising under or in respect of the Transaction
Documents and (ii) immaterial amounts due and payable in the ordinary course of
business of a special-purpose company, the Company does not have any
liabilities, commitments or obligations (whether absolute, accrued, contingent
or otherwise), whether due or to become due.
(p) Collection Procedures. The Company and the Seller have in place
procedures pursuant to the Transaction Documents which are either necessary or
advisable to ensure the timely collection of Receivables.
(q) Lockbox Agreements; Lockbox Accounts. Except to the extent otherwise
permitted under the terms of this Agreement, (i) each Lockbox Account is the
subject of a Lockbox Agreement, (ii) each Lockbox Agreement to which the Company
is party is in full force and effect and (ii) each Lockbox Account set forth in
Schedule 3 to the Receivables Sales Agreement is free and clear of any Lien. All
Obligors have been instructed to make payments only to Lockbox Accounts and such
instructions are in full force and effect.
(r) Company Material Adverse Effect. Since December 31, 1998, no event
has occurred which has had a Company Material Adverse Effect.
The representations and warranties as of the date made set forth in this Section
2.03 shall survive the transfer and assignment of the Trust Assets to the Trust.
Upon discovery by a Responsible Officer of the Company, the Master Servicer, any
Servicer or by a Responsible Officer of the Trustee of a breach of any of the
foregoing representations and warranties with respect to any Outstanding Series
as of the Issuance Date of such Series, the party discovering such breach shall
give prompt (and in any event within three
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Business Days of such discovery) written notice thereof to the other parties and
to each Agent with respect to all Outstanding Series. The Trustee's obligations
in respect of any breach are limited as provided in Section 8.02(g).
SECTION 2.04. Representations and Warranties of the Company Relating to
the Receivables. The Company hereby represents and warrants to the Trustee and
the Trust, for the benefit of the Holders, with respect to each Receivable
transferred to the Trust as of the related Receivables Purchase Date, unless, in
either case, otherwise stated in the applicable Supplement or unless such
representation or warranty expressly relates only to a prior date, that:
(a) Receivables Description. As of the Cut-Off Date and thereafter as of
each Subsequent Cut-Off Date, the computer tape, disk or data delivered to the
Trustee, or the Agent, as the case may be, sets forth a complete listing of all
Receivables, aggregated by Obligor, transferred to the Trust as of the Cut-Off
Date and thereafter as of each Subsequent Cut-Off Date and the information
contained therein specified in clauses (i) and (ii) of Section 2.01(e) with
respect to each such Receivable is true and correct (except for any errors or
omissions that do not result in material impairment of the interests, rights or
remedies of the Trustee or the Investor Certificateholders with respect to any
Receivable) as of the Cut-Off Date and thereafter as of each Subsequent Cut-Off
Date. As of the Cut-Off Date and thereafter as of each Subsequent Cut-Off Date,
the aggregate amount of Receivables owned by the Company is accurately set forth
in such tape, disk or data.
(b) No Liens. Each Receivable existing on the Effective Date or, in the
case of Receivables transferred to the Trust after the Effective Date, on the
date that each such Receivable shall have been transferred to the Trust, has
been conveyed to the Trust free and clear of any Lien, except for Liens created
pursuant to any Transaction Document.
(c) Eligible Receivable. On the Effective Date, each Receivable
transferred to the Trust that is included in the calculation of the initial
Aggregate Receivables Amount is an Eligible Receivable and, in the case of
Receivables transferred to the Trust after the Effective Date, on the date such
Receivable shall have been transferred to the Trust, each such Receivable that
is included in the calculation of the Aggregate Receivables Amount on such date
is an Eligible Receivable.
(d) Filings. Within ten days of (i) the Effective Date or (ii) in the
case of Receivables transferred to the Trust after the Effective Date, the date
that each such Receivable shall have been transferred to the Trust, all filings
and other acts necessary (including but not limited to all filings and other
acts necessary or advisable under the UCC) shall have been made or performed in
order to grant the Trust on the Effective Date a first priority perfected
ownership or security interest in respect of all Receivables. The
representations and warranties as of the date made set forth in this Section
2.04 shall survive the transfer and assignment of the Trust Assets to the Trust.
Upon discovery by a Responsible Officer of the Company, the Master Servicer or a
Responsible Officer of the Trustee of a breach of any of the representations and
warranties (or of any Receivable
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encompassed by the representation and warranty in Section 2.04(c) not being an
Eligible Receivable as of the relevant Receivables Purchase Date) with respect
to any Outstanding Series as of the Issuance Date of such Series, the party
discovering such breach shall give prompt written notice to the other parties
and to each Agent with respect to all Outstanding Series. The Trustee's
obligations in respect of any breach are limited as provided in Section 8.02(g).
SECTION 2.05. Adjustment Payment for Ineligible Receivables.
(a) Adjustment Payment Obligation. If (i) any representation or warranty
under Sections 2.04(a) or (b) is not true and correct as of the date specified
therein with respect to any Receivable transferred to the Trust or any
Receivable encompassed by the representation and warranty in Section 2.04(c) is
determined not to have been an Eligible Receivable as of the relevant
Receivables Purchase Date, (ii) there is a breach of any covenant under Section
2.08(b) with respect to any Receivable or (iii) the Trust's interest in any
Receivable is not a first priority perfected ownership or security interest at
any time as a result of any action taken by, or the failure to take action by,
the Company (any Receivable as to which the conditions specified in any of
clause (i), (ii) or (iii) of this Section 2.05(a) exists is referred to herein
as an "Ineligible Receivable") then, after the earlier, to occur of (x) the
discovery by the Company of any such event that continues unremedied or (y)
receipt by the Company of written notice given by the Trustee or any Servicer of
any such event that continues unremedied (the date on which such earlier event
occurs, the "Ineligibility Determination Date"), the Company shall make an
adjustment payment with respect to such Ineligible Receivable on the terms and
conditions set forth in Section 2.05(b).
(b) Adjustment Payment Amount. Subject to the last sentence of this
Section 2.05(b), the Company shall make an adjustment payment with respect to
each Ineligible Receivable as required pursuant to Section 2.05(a) by depositing
in the Collection Account in immediately available funds on the Business Day
immediately following the related Ineligibility Determination Date an amount
equal to the lesser of (x) the amount by which the Aggregate Target Receivables
Amount exceeds the Aggregate Receivables Amount (after giving effect to the
reduction thereof by the Principal Amount of all such Ineligible Receivables)
and (y) the aggregate outstanding Principal Amount of all such Ineligible
Receivables (the "Transfer Deposit Amount").
Except as otherwise specified in any Supplement, the obligation of the Company
to pay such Transfer Deposit Amount with respect to any Ineligible Receivables
shall constitute the sole remedy respecting the event giving rise to such
obligation available to Investor Certificateholders (or the Trustee on behalf of
Investor Certificateholders).
SECTION 2.06. Purchase of Investor Certificateholders' Interest in Trust
Portfolio.
(a) In the event of any breach of any of the representations and
warranties set forth in paragraph (a), (b), (c), (d) or (e)(i) of Section 2.03
as of the date made, which
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breach has a Material Adverse Effect, a Seller Material Adverse Effect, a
Company Material Adverse Effect or a Servicer Material Adverse Effect then the
Trustee, at the written direction of Holders evidencing more than 50% of the
Invested Amount of each affected Outstanding Series, shall notify the Company to
purchase such outstanding Series and the Company shall be obligated to make such
purchase on the Distribution Date occurring at least 60 days after receipt of
such notice by the Company on the terms and conditions set forth below;
provided, however, that no such purchase shall be required to be made if, at any
time during such period the Master Servicer shall provide the Trustee with an
Officer's Certificate to the effect that the representations and warranties
contained in paragraph (a), (b), (c), (d) and (e)(i) of Section 2.03 shall then
be true and correct in all material respects.
(b) If required by the provisions of Section 2.06(a), the Company shall
deposit into the Collection Account for credit to the applicable subaccount of
the Collection Account on the Business Day immediately preceding the
Distribution Date referred to in subsection (a) above, an amount equal to the
purchase price (as described in the next succeeding sentence) for the Investor
Certificateholders' Interest for such Outstanding Series on such day. The
purchase price for any such purchase will be equal to the sum of (i) the
Adjusted Invested Amount of such Outstanding Series on the date on which the
purchase is made plus (ii) an amount equal to all interest accrued but unpaid on
such Series up to the Distribution Date on which the distribution of such
deposit is scheduled to be made pursuant to Section 9.02 plus (iii) any other
amount required to be paid in connection therewith pursuant to any Supplement.
Notwithstanding anything to the contrary in this Agreement, the entire amount of
the purchase price deposited in the Collection Account shall be distributed to
the related Investor Certificateholders on the applicable Distribution Date
pursuant to Section 9.02. If the Trustee gives notice directing the Company to
purchase the Investor Certificates of an Outstanding Series as provided above,
except as otherwise specified in any Supplement, the obligation of the Company
to purchase such Investor Certificates pursuant to this Section 2.06 shall
constitute the sole remedy respecting an event of the type specified in the
first sentence of this Section 2.06 available to the applicable Investor
Certificateholders (or the Trustee on behalf of such Investor
Certificateholders).
SECTION 2.07. Affirmative Covenants of the Company. The Company hereby
covenants that, until the Trust Termination Date occurs, the Company shall:
(a) Financial Statements, Reports, etc.
(i) Furnish to the Trustee, each Agent and the Rating Agencies,
within 60 days after the end of each fiscal quarter of the Company and 90 days
after the end of each fiscal year of the Company, the balance sheet and related
statements of income, stockholders' equity and cash flows showing the financial
condition of the Company as of the close of such period and the results of its
operations during such period, certified by an accounting officer, the Treasurer
or an Assistant Treasurer of the Company to the effect that such financial
statements fairly present in all material respects the financial condition and
results of operations of the Company in accordance with GAAP consistently
applied; and
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(ii) Furnish to the Trustee and each Agent, promptly, from time
to time, such other information regarding the operations, business affairs and
financial condition of the Company, or compliance with the terms of any
Transaction Document, in each case as any Agent or the Trustee may reasonably
request.
(b) Annual Opinion. Deliver to the Trustee an Opinion of Counsel
substantially in the form of Exhibit B hereto, by May 30th of each fiscal year
of the Company commencing with the fiscal year ending December 31, 2000.
(c) Payment of Obligations; Compliance with Obligations. Pay, discharge
or otherwise satisfy at or before maturity or before they become delinquent, as
the case may be, all its obligations of whatever nature, except where the amount
or validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have been
provided on the books of the Company . The Company shall defend the right, title
and interest of the Holders in, to and under the Receivables and the other Trust
Assets, whether now existing or hereafter created, against all claims of third
parties claiming through or under the Company, the Seller, the Master Servicer
or the Servicers. The Company will duly fulfill all material obligations on its
part to be fulfilled under or in connection with each Receivable and will do
nothing to impair the rights of the Holders in such Receivable.
(d) Inspection of Property; Books and Records; Discussions. Keep proper
books of records and account in which entries in conformity with GAAP shall be
made of all dealings and transactions in relation to its business and
activities; and permit representatives of the Trustee upon reasonable advance
notice to visit and inspect, examine and make copies and abstracts from any of
its books and records during normal business hours on any Business Day and as
often as may reasonably be requested, subject to the Company's security and
confidentiality requirements, and to discuss the business, operations and
financial condition of the Company with officers and employees of the Company.
Except as otherwise provided in Section 8.05(b) hereof, any such examination or
visit shall be at the cost and expense of the party or parties making such
examination or visit.
(e) Compliance with Law and Policies. Comply with all Requirements of
Law, the provisions of the Transaction Documents and all other material
Contractual Obligations and Policies applicable to the Company except where the
failure to so comply would not reasonably be expected to have a Company Material
Adverse Effect.
(f) Purchase of Receivables. Purchase Receivables solely in accordance
with the Receivables Sale Agreement or this Agreement.
(g) Delivery of Collections. In the event that the Company receives
Collections directly from Obligors, deliver (which may be by regular mail) or
deposit such Collections into a Lockbox, a Lockbox Account or the Collection
Account within two Business Days after its receipt thereof.
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(h) Notices. Promptly (and, in any event, within five Business Days
after a Responsible Officer of the Company becomes aware of such event) give
written notice to the Trustee, each Rating Agency and each Agent for any
Outstanding Series of:
(i) the occurrence of any Early Amortization Event or Potential
Early Amortization Event, the statement of a Responsible Officer of the Company
setting forth the details of such Early Amortization Event or Potential Early
Amortization Event and the action taken, or which the Company proposes to take,
with respect thereto ; and
(ii) any Lien not permitted by Section 2.04(b) on Receivables
accounting for 10% or more of the aggregate Principal Amount of all Eligible
Receivables in the Trust.
(i) Lockboxes. (i) Maintain, and keep in full force and effect, a
Lockbox Agreement with respect to each Lockbox Account to which the Company is a
party, except to the extent otherwise permitted under the terms of this
Agreement and the other Transaction Documents and (ii) take all reasonable
actions necessary to ensure that each related Lockbox Account shall be free and
clear of, and defend each such Lockbox Account against, any writ, order, stay,
judgment, warrant of attachment or execution or similar process; provided, that
the Company may amend a Lockbox Agreement to add or delete a Servicer in
accordance with the Transaction Documents; provided, further, that upon
satisfaction of the Rating Agency Condition and the consent thereto by the Agent
of any Series of Variable Funding Certificates (which consent shall not be
unreasonably withheld), the Company may enter into any amendments or
modifications of a Lockbox Agreement that the Company reasonably deems necessary
to conform such Lockbox Agreement to the cash management system of the Company,
the Master Servicer or the applicable Servicer.
(j) Separate Corporate Existence.
(i) to the extent the Company's office is located in the offices
of an Affiliate of the Company, maintain separate office space and pay fair
market rent for such office space;
(ii) maintain the Company's books, financial statements and
records separate from those of any Affiliate or other Person;
(iii) maintain its own deposit accounts, separate from those of
any Affiliate or other Person, and not commingle the Company's assets with those
of any Affiliate or other Person;
(iv) act solely in its corporate name and through its own
authorized officers and agents; make investments directly or by brokers engaged
and paid by the Company or its agents (provided that if any such agent is an
Affiliate of the Company, it shall be compensated at a fair market rate for its
services);
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(v) separately manage the Company's liabilities from those of any
Affiliate and pay its own liabilities, including all administrative expenses,
from its own separate assets, except that the Seller may pay the organizational
expenses of the Company;
(vi) to the extent that it shares the officers or other employees
of any Affiliate or other Person, bear its share of the salaries of, and the
expenses related to providing benefits to, such officers and other employees;
(vii) to the extent that it contracts with any Affiliate or other
Person to conduct business with vendors or to share overhead, bear its fair
share of such costs and conduct all transactions between the Company and any
Affiliates on an arms-length basis; and
(viii) pay from the Company's assets all obligations and
indebtedness of any kind incurred by the Company.
The Company shall abide by all corporate formalities, including the maintenance
of current minute books, and cause its financial statements to be prepared not
less frequently than quarterly and in accordance with GAAP in a manner that
indicates the separate existence of the Company and its assets and liabilities.
The Company shall pay all its liabilities, not assume the liabilities of any
Affiliate and not guarantee the liabilities of any Affiliate. The officers and
directors of the Company (as appropriate) shall make decisions with respect to
the business of the Company independent of, and not dictated by, any controlling
entity. The Company shall take or refrain from taking actions necessary in order
to ensure that the assumptions set forth in the Specified Bankruptcy Opinion
Provisions remain correct and shall comply with the procedures described
therein.
(k) Preservation of Corporate Existence. (i) Preserve and maintain its
corporate existence, rights, franchises and privileges in the jurisdiction of
its incorporation and (ii) qualify and remain qualified in good standing as a
foreign corporation in each jurisdiction where such qualification is required
other than any jurisdiction where the failure so to qualify would not have a
Company Material Adverse Effect.
(l) Assessments. Promptly pay and discharge all taxes, assessments,
levies and other governmental charges imposed on it except such taxes,
assessments, levies and other governmental charges that are being contested in
good faith by appropriate proceedings and for which the Company shall have set
aside on its books adequate reserves in conformity with GAAP.
(m) Net Worth. On the Effective Date have a consolidated common
stockholders' equity, and thereafter maintain at all times a net worth, of at
least $126,205,130.00.
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SECTION 2.08. Negative Covenants of the Company. The Company hereby
covenants that after the Effective Date and until the Trust Termination Date
occurs, it shall not directly or indirectly:
(a) Limitation on Liabilities. Except as required by applicable law or
as a result of operation of law, create, incur, assume or suffer to exist any
Indebtedness, except Indebtedness evidenced by the Seller Note and guarantee
obligations (if any) under or in connection with any Pooling and Servicing
Agreements; or incur any liability or obligation other than (i) liabilities or
obligations representing fees, expenses and indemnities payable pursuant to and
in accordance with the Transaction Documents and (ii) liabilities or obligations
for services supplied or furnished to the Company in an amount not to exceed
$100,000 at any time outstanding.
(b) Limitation on Transfers of Receivables, etc. At any time sell,
transfer or otherwise dispose of any of the Receivables, Related Property or the
proceeds thereof except as contemplated in the Pooling and Servicing Agreements.
(c) Limitation on Guarantee Obligations. Except as required by
applicable law or as a result of operation of law, 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 other than under or in connection with any Pooling and
Servicing Agreements.
(d) Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or make any material change in its
present method of conducting business, or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets other than the assignments and transfers contemplated hereby.
(e) Business of the Company. Engage at any time in any business or
business activity other than the acquisition of Receivables pursuant to the
Receivables Sale Agreement, the assignments and transfers hereunder, the other
transactions contemplated by the Transaction Documents or the Pooling and
Servicing Agreements and any activity incidental to the foregoing and necessary
or convenient to accomplish the foregoing, or enter into or be a party to any
agreement or instrument other than in connection with the foregoing.
(f) Agreements. (i) Become a party to any indenture, mortgage,
instrument, contract, agreement, lease or other undertaking, except the
Transaction Documents, leases of office space, equipment or other facilities for
use by the Company in its ordinary course of business, employment agreements,
service agreements, agreements relating to shared employees and the other
Transaction Documents or the Pooling and Servicing Agreements and agreements
necessary to perform its obligations under the Transaction Documents or the
Pooling and Servicing Agreements, (ii) issue any power of
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attorney (except to the Trustee or the Master Servicer or the Servicer or except
for the purpose of permitting any such Person to perform any ministerial
functions on behalf of the Company that are not prohibited by or inconsistent
with the terms of the Transaction Documents or any Pooling and Servicing
Agreements), or (iii) amend, supplement, modify or waive any of the provisions
of the Receivables Sale Agreement or any Lockbox Agreement or request, consent
or agree to or suffer to exist or permit any such amendment, supplement,
modification or waiver or exercise any consent rights granted to it thereunder
(except to add or delete a Servicer in accordance with the Transaction
Documents) unless such amendment, supplement, modification or waiver or such
exercise of consent rights would not have an adverse effect on the interests,
rights or remedies of the Trustee or the Investor Certificateholders of any
Outstanding Series under or with respect to the Transaction Documents and the
Rating Agency Condition and any other requirements therefor set forth in the
Transaction Documents shall have been satisfied with respect to any such
amendments, supplements, modifications or waivers.
(g) Policies. Make any change or modification (or permit any change or
modification to be made) in any material respect to the Policies, except (i) if
such changes or modifications are necessary under any Requirement of Law (not
including for these purposes the certificate of incorporation and by-laws or
other organizational or governing documents) or (ii) if the Rating Agency
Condition is satisfied with respect thereto and the Agent for each Series of
Variable Funding Certificates has consented thereto; provided, however, that if
any change or modification, other than a change or modification permitted
pursuant to clause (i) above, would be reasonably likely to have a Material
Adverse Effect, a Seller Material Adverse Effect, a Servicer Material Adverse
Effect or a Company Material Adverse Effect with respect to a Series (other than
a Variable Funding Series) which is not rated by a Rating Agency, the consent of
the holders of at least 50% of the outstanding Adjusted Invested Amount of such
Series (or as otherwise specified in the related Supplement) shall be required
to effect such change or modification.
(h) Receivables Not To Be Evidenced by Promissory Notes. Subject to the
delivery requirement set forth in Section 2.01(b), take any action to cause any
Receivable not evidenced by an "instrument" (as defined in the UCC as in effect
in any state in which the Company's, or the applicable Seller's chief executive
offices or books and records relating to such Receivable are located) upon
origination to become evidenced by an instrument, except in connection with its
enforcement or collection of a Defaulted Receivable.
(i) Offices. Move the location of its chief executive office or of any
of the offices where it keeps its records with respect to the Receivables, or
its legal head office to a new location within or outside the state where such
office is now located, without (i) 30 days' prior written notice to the Trustee,
each Rating Agency and each Agent and (ii) taking all actions reasonably
requested by the Trustee (including but not limited to all filings and other
acts necessary or advisable under the UCC or similar statute of each relevant
jurisdiction) in order to continue the Trust's first priority perfected
ownership or
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security interest in all Receivables now owned or hereafter created; provided,
however, that the Company shall not change the location of its chief executive
office to a state which is within the Tenth Circuit unless it delivers an
opinion of counsel reasonably acceptable to the Rating Agencies to the effect
that Octagon Gas Systems, Inc. ▇. ▇▇▇▇▇▇, 995 F.2d 948 (10th Cir. 1993) is no
longer controlling precedent in the Tenth Circuit.
(j) Change in Name. Change its name, identity or corporate structure in
any manner that would or is likely (i) to make any financing statement or
continuation statement (or other similar instrument) relating to this Agreement
seriously misleading within the meaning of Section 9-402(7) of the UCC, or (ii)
to impair the perfection of the Trust's interest in any Receivable under any
other similar law, without 30 days' prior written notice to the Trustee and each
Rating Agency and each Agent.
(k) Charter. Amend or make any change or modification to Articles III,
V, IX, XI, XII or XIII of its certificate of incorporation without first
satisfying the Rating Agency Condition and obtaining the consent of each Agent
(which consent shall not be unreasonably withheld) (provided that,
notwithstanding anything to the contrary in this Section 2.08, the Company may
make amendments, changes or modifications pursuant to changes in law of the
state of its incorporation or amendments to change the Company's name (subject
to compliance with subsection (j) above), registered agent or address of
registered office).
(l) Addition of Sellers. Agree to the addition of any additional Seller
pursuant to Section 9.12 of the Receivables Sale Agreement unless such
additional Seller shall have satisfied all conditions of the Receivables Sale
Agreement to become an additional Seller.
(m) Optional Termination of Seller. Designate any Seller as a Seller to
be terminated as a Seller pursuant to Section 9.13(b) of the Receivables Sale
Agreement unless, if such Seller is a Servicer, such Seller shall have been
terminated as a Servicer pursuant to Section 7.04 of the Servicing Agreement.
(n) Limitation on Restricted Payments and Payments on Seller Note.
Declare or pay any dividend on, or make any payment on account of, or set apart
assets for a sinking or other analogous fund for, the purchase, redemption,
defeasance, retirement or other acquisition of, any shares of any class of
capital stock of the Company, whether now or hereafter outstanding, or make any
other distribution in respect thereof, either directly or indirectly, whether in
cash or property or in obligations of the Company (such declarations, payments,
setting apart, purchases, redemptions, defeasance, retirements, acquisitions and
distributions being herein called "Restricted Payments"), or make, directly or
indirectly, payments in any form in respect of the Seller Note except, in either
case, in accordance with the terms of the Pooling and Servicing Agreements, and
provided that, on the date a Restricted Payment is made, the Company is in
compliance with its payment obligations under Section 2.05 hereof.
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ARTICLE III
RIGHTS OF HOLDERS AND ALLOCATION AND APPLICATION OF COLLECTIONS
THE FOLLOWING PORTION OF THIS ARTICLE III
IS APPLICABLE TO ALL SERIES.
SECTION 3.01. Establishment of Collection Account; Certain Allocations.
(a) The Trustee, for the benefit of the Holders, as their interests
appear in this Agreement, shall cause to be established and maintained in the
name of the Trust with an Eligible Institution or with the corporate trust
department of the Trustee or an Eligible Institution or with an Affiliate of the
Trustee or an Eligible Institution, a segregated trust account (the "Collection
Account"), bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Holders. Schedule 2, which is hereby
incorporated into and made a part of this Agreement, identifies the Collection
Account by setting forth the account number of such account, the account
designation of such account and the name of the institution with which such
account has been established. The Collection Account shall be divided into
individual subaccounts for each Outstanding Series (each, respectively, a
"Series Collection Subaccount" and, collectively, the "Series Collection
Subaccounts") and for the Company (the "Company Collection Subaccount"). For
administrative purposes only, the Trustee shall establish or cause to be
established for each Series, so long as such Series is an Outstanding Series,
sub-subaccounts of the Series Collection Subaccounts with respect to such Series
(such accounts, the "Series Principal Collection Sub-subaccount" and "Series
Non-Principal Collection Sub-subaccount" and, collectively, the "Series
Collection Sub-subaccounts").
(b) Authority of the Trustee in Respect of the Collection Account.
(i) The Trustee shall possess all right, title and interest in
all funds on deposit from time to time in the Collection Account and in all
proceeds thereof. The Collection Account shall be under the sole dominion and
control of the Trustee for the benefit of the Holders. If, at any time, the
Servicer has actual notice or knowledge that any institution holding the
Collection Account, has ceased to be an Eligible Institution, the Servicer shall
notify the Master Servicer and the Master Servicer shall direct the Trustee to
establish within 30 days a substitute account therefor with an Eligible
Institution, transfer any cash and/or any Eligible Investments to such new
account and from the date any such substitute accounts are established, such
account shall be the Collection Account. Neither the Company, the Servicer nor
any person or entity claiming by, through or under the Company or the Servicer,
shall have any right, title or interest in, except to the extent expressly
provided under the Transaction Documents, or any right to withdraw any amount
from, the Collection Account. Pursuant to the authority granted to the Servicers
in Section 2.02(b) of the Servicing Agreement, each Servicer shall have the
power to instruct the Trustee in writing to make withdrawals from
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and payments to the Collection Account, for the purposes of carrying out the
Master Servicer's, the Servicer's or Trustee's duties hereunder.
(ii) The Master Servicer agrees to give written direction (which
may be included within any Daily Report) in a timely manner to the Trustee to
apply all Collections with respect to the Receivables and to make all other
applications, allocations and distributions described in Article III hereof and
in the Supplement with respect to each Outstanding Series.
(iii) Each Series of Investor Certificates shall represent a
fractional undivided interest in the Trust Assets as indicated in the Supplement
relating to such Series and the right to receive Collections and other amounts
at the times and in the amounts specified in this Article III (as supplemented
by the Supplement related to such Series) to be deposited in the Collection
Account and any other accounts maintained for the benefit of the Investor
Certificateholders or paid to the Investor Certificateholders (with respect to
each outstanding Series, the "Investor Certificateholders' Interest"). The
Exchangeable Company Interest shall represent the interest in the Trust not
represented by any Series of Investor Certificates or Subordinated Company
Interest then outstanding, including the right to receive Collections and other
amounts at the times and in the amounts specified in this Article III to be paid
to the Company (the "Exchangeable Company Interest"), and each Subordinated
Company Interest, if any, shall represent the interests granted to such
Subordinated Company Interest pursuant to the related Supplement; provided,
however, that no such Subordinated Company Interest shall represent any interest
in any Trust Account and any other accounts maintained for the benefit of the
Investor Certificateholders, except as specifically provided in this Article
III.
(c) Administration of the Collection Account. At the written direction
of the Company, funds on deposit in the Collection Account available for
investment, shall be invested by the Trustee in Eligible Investments selected by
the Company. All such Eligible Investments shall be held by the Trustee for the
benefit of the Investor Certificateholders. Amounts on deposit in each Series
Non-Principal Collection Sub-subaccount shall, if applicable, be invested in
Eligible Investments that will mature, or that are payable or redeemable upon
demand of the holder thereof so that such funds will be available on or before
the Business Day immediately preceding the next Distribution Date. All interest
and investment earnings (net of losses and investment expenses) on funds
deposited in a Series Non-Principal Collection Sub-subaccount shall be deposited
in such sub-subaccount. Amounts on deposit in the Series Principal Collection
Sub-subaccount and any other sub-subaccounts as specified in the related
Supplement shall be invested in Eligible Investments that mature, or that are
payable or redeemable upon demand of the holder thereof, so that such funds will
be available not later than the date which is specified in any Supplement. The
Trustee, or its nominee or custodian, shall maintain possession of the
negotiable instruments or securities, if any, evidencing any Eligible
Investments from the time of purchase thereof until the time of sale or
maturity. Any earnings (net of losses and investment expenses) (the "Investment
Earnings") on such invested funds in a Series Principal Collection
Sub-subaccount and
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any other sub-subaccounts as specified in the related Supplement will be
deposited by the Trustee in the related Series Non-Principal Collection
Sub-subaccount.
(d) Daily Collections.
(i) Promptly following its receipt of Collections in the form of
available funds in a Lockbox Account, but in no event later than 10:00 a.m., New
York City time, on the Business Day following the Business Day Received, the
Master Servicer shall transfer, or cause to be transferred, all Collections on
deposit (less the aggregate amount of set-offs permitted to be retained pursuant
to any applicable Lockbox Agreement) in the form of available funds in the
Lockbox Accounts directly to the Collection Account.
(ii) If the Aggregate Daily Collections are deposited into the
Collection Account pursuant to the preceding Section 3.01(d)(i) at or before
10:00 a.m., New York City time, on the Business Day specified in Section
3.01(d)(i), and the Daily Report specified in Section 3.01(b)(ii) is received by
the Trustee at or before 3:30 p.m. New York City time, on such Business Day the
Trustee shall transfer on such Business Day, from such Aggregate Daily
Collections, to the respective Series Collection Subaccount, an amount equal to
the product of (x) the applicable Invested Percentage for such Outstanding
Series and (y) such Aggregate Daily Collections in accordance with the Daily
Report.
(iii) If the Aggregate Daily Collections are deposited into the
Collection Account at or before 10:00 a.m., New York City time, on the Business
Day specified in Section 3.01(d)(i), and the Daily Report is received by the
Trustee at or before 1:30 p.m., New York City time, on such Business Day, as set
forth in the preceding Section 3.01(d)(ii), the Trustee shall allocate on such
Business Day, funds transferred to the Series Collection Subaccount for each
Outstanding Series pursuant to the preceding Section 3.01(d)(ii) to the Series
Non-Principal Collection Sub-subaccount and the Series Principal Collection
Sub-subaccount of each such Series in accordance with the Daily Report and the
related Supplement for such Series.
(iv) Except as otherwise provided in a Supplement, if the
Aggregate Daily Collections are deposited into the Collection Account at or
before 10:00 a.m., New York City time, on the Business Day specified in Section
3.01(d)(i), and the Daily Report is received by the Trustee at or before 1:30
p.m., New York City time, on such Business Day, as set forth in Section
3.01(d)(ii), the Trustee shall, in accordance with the Daily Report, transfer on
such Business Day, to the Company Collection Subaccount the remaining funds, if
any, on deposit in the Collection Account on such day after giving effect to
transfers to be made pursuant to Section 3.01(d)(ii).
(e) Certain Allocations Following an Amortization Period.
(i) If, on any Settlement Report Date, an Amortization Period has
occurred and is continuing with respect to any Outstanding Series and at such
Settlement
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Report Date, a Revolving Period is still in effect with respect to any other
Outstanding Series (a "Special Allocation Settlement Report Date"), then the
Master Servicer shall make the following calculations:
(A) the amount (the "Allocable Charged-Off Amount") equal to the
excess, if any, of (I) the aggregate Principal Amount of Charged-Off
Receivables for the related Settlement Period over (II) the aggregate
Principal Amount of Recoveries received during the related Settlement
Period; and
(B) the amount (the "Allocable Recoveries Amount") equal to the
excess, if any, of (I) the aggregate Principal Amount of Recoveries
received during the related Settlement Period over (II) the aggregate
Principal Amount of Charged-Off Receivables for the related Settlement
Period.
(ii) If, on any Special Allocation Settlement Report Date, either
of the Allocable Charged-off Amount or the Allocable Recoveries Amount is
greater than zero for the related Settlement Period, the Trustee shall (in
accordance with written directions received pursuant to Section (b)(ii) above)
make (A) a pro rata allocation to each Outstanding Series (based on the Invested
Percentage for such Series) of a portion (as determined in clause (iii) below)
of each such positive amount and (B) an allocation to the Exchangeable Company
Interest of the remaining portion of each such positive amount.
(iii) With respect to each portion of the Allocable Charged-off
Amount and the Allocable Recoveries Amount which is allocated to an Outstanding
Series pursuant to Section 3.01(e)(ii), the Trustee shall (in accordance with
the written direction of the Master Servicer) apply each such amount to such
Series in accordance with the related Supplement for such Series.
(f) Allocations for the Exchangeable Company Interest. Until the
occurrence and continuation of an Early Amortization Period, on each Business
Day and, after the occurrence and continuation of an Early Amortization Period
and until the Trust Termination Date, on each Distribution Date, after making
all allocations required pursuant to Section 3.01(d), the Trustee shall (in
accordance with the written direction of the Master Servicer) transfer, using
commercially reasonable efforts to transfer no later than 3:00 p.m., New York
City time, on such Business Day, the amounts on deposit in the Company
Collection Subaccount to the holder of the Exchangeable Company Interest or to
such accounts or such Persons as the holder of the Exchangeable Company Interest
may direct in writing (which direction may consist of standing instructions
provided by the holder of the Exchangeable Company Interest that shall remain in
effect until changed by the holder of the Exchangeable Company Interest in
writing); provided, however, that the Trustee shall remit any such amounts net
of the amount of the Servicing Fee which has not been allocated to an
Outstanding Series pursuant to Section 2.05 of the Servicing Agreement (and the
Trustee shall remit any such portion of the Servicing Fee directly to
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the Master Servicer (less any amount payable out of such Servicing Fee to the
Trustee pursuant to Section 8.05 which shall be paid to the Trustee)) and a
transfer for purposes of this Section 3.01(f) shall be deemed to have occurred
at such time as the Trustee instructs the Federal Reserve Bank of New York of
the outgoing amount; provided, further, that a failure of the Trustee to
transfer funds by 3:00 p.m., New York City time, shall not be a breach of this
Section 3.01(f) if (i) the same bank wire transfer program is not used by both
the Company and the Trustee to make such transfers or (ii) a Trustee Force
Majeure Delay occurs, and in either such event the Trustee shall use
commercially reasonable efforts to transfer funds within a reasonable time.
(g) Setoff. In addition to the provisions of Section 8.05 hereof, (i) if
the Company shall fail to make a payment as provided in this Agreement or any
Supplement, the Master Servicer or the Trustee may set off and apply any amounts
otherwise payable to the Company under any Pooling and Servicing Agreements. The
Company hereby waives demand, notice or declaration of such setoff and
application; provided that notice will promptly be given to the Company of such
setoff and application; provided, further, that failure to give such notice
shall not affect the validity of such setoff; and (ii) in the event the Servicer
shall fail to make a payment as provided in any Pooling and Servicing
Agreements, the Trustee may set off and apply any amounts otherwise payable to
the Servicer in its capacity as Servicer under the Transaction Documents on
account of such obligation. The Servicer hereby waives demand, notice or
declaration of such setoff and application; provided that notice will promptly
be given to the Servicer of such setoff; provided, further, that failure to give
such notice shall not affect the validity of such setoff.
(h) Allocation and Application of Funds. The Master Servicer shall
direct the Trustee in writing (which may be given in the form of the Daily
Reports and the Monthly Settlement Statements) to apply all Collections with
respect to the Receivables as described in this Article III and in the
Supplement with respect to each Outstanding Series. The Master Servicer shall
direct the Trustee in writing to pay Collections to the holder of the
Exchangeable Company Interest to the extent such Collections are allocated to
the Exchangeable Company Interest under Section 3.01(f) and as otherwise
provided in Article III. Unless otherwise provided in one or more Supplements,
if the Trustee receives any Daily Report at or before 1:30 p.m., New York City
time, on any Business Day, the Trustee shall make any applications of funds
required thereby on the same Business Day and otherwise on the next succeeding
Business Day.
THE REMAINDER OF ARTICLE III SHALL BE SPECIFIED
IN THE SUPPLEMENT WITH RESPECT TO EACH SERIES.
SUCH REMAINDER SHALL BE APPLICABLE ONLY TO THE
SERIES RELATING TO THE SUPPLEMENT IN WHICH
SUCH REMAINDER APPEARS.
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ARTICLE IV
ARTICLE IV IS RESERVED AND MAY BE SPECIFIED IN ANY SUPPLEMENT
WITH RESPECT TO THE SERIES RELATING THERETO.
ARTICLE V
THE INVESTOR CERTIFICATES AND EXCHANGEABLE COMPANY INTEREST
SECTION 5.01. The Investor Certificates. The Investor Certificates of
each Series and any Class thereof shall be in fully registered form and shall be
substantially in the form of the exhibits with respect thereto attached to the
applicable Supplement. The Investor Certificates shall, upon issue, be executed
and delivered by the Company to the Trustee for authentication and redelivery as
provided in Section 5.02 hereof. Except as otherwise set forth as to any Series
or Class in the related Supplement, the Investor Certificates shall be issued in
minimum denominations of $2,000,000 and in integral multiples of $100,000 in
excess thereof. Unless otherwise specified in any Supplement for any Series, the
Investor Certificates shall be issued upon initial issuance as a single global
certificate in an original principal amount equal to the Initial Invested Amount
with respect to such Series. The Company is hereby authorized to execute and
deliver each Investor Certificate and any documents related thereto on behalf of
the Trust. Each Investor Certificate shall be executed by manual or facsimile
signature on behalf of the Company by a Responsible Officer or his designee by
power of attorney or otherwise. Investor Certificates bearing the manual or
facsimile signature of the individual who was, at the time when such signature
was affixed, authorized to sign on behalf of the Company or the Trustee shall
not be rendered invalid, notwithstanding that such individual has ceased to be
so authorized prior to or on the date of the authentication and delivery of such
Investor Certificates or does not hold such office at the date of such Investor
Certificates. No Investor Certificate shall be entitled to any benefit under
this Agreement, or be valid for any purpose, unless there appears on such
Investor Certificate a certificate of authentication substantially in the form
provided for in Section 5.08(f) executed by or on behalf of the Trustee by the
manual signature of a duly authorized signatory, and such certificate of
authentication upon any Investor Certificate shall be conclusive evidence, and
the only evidence, that such Investor Certificate has been duly authenticated
and delivered hereunder. All Investor Certificates shall be dated the date of
their authentication but failure to do so shall not render them invalid.
SECTION 5.02. Authentication of Certificates.
(a) Investor Certificates. The Trustee shall authenticate and deliver
the initial Series of Investor Certificates that is issued upon the written
order of the Company in a form reasonably satisfactory to the Trustee, to the
holders of the initial Series of Investor Certificates, against payment to the
Company of the Initial Invested Amount. The Investor Certificates shall be duly
authenticated by or on behalf of the Trustee in authorized denominations equal
to (in the aggregate) the Initial Invested Amount. Upon a Company Exchange as
provided in Section 5.10 hereof and the satisfaction of certain other conditions
specified therein, the Trustee shall authenticate and deliver the Investor
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Certificates of additional Series (with the designation provided in the
applicable Supplement) (or, if provided in any Supplement, the additional
Investor Certificates of an existing Series), upon the written order of the
Company, to the Persons designated in such Supplement. Upon the written order of
the Company, the Investor Certificates of any Series shall be duly authenticated
by or on behalf of the Trustee, in authorized denominations equal to (in the
aggregate) the Initial Invested Amount of such Series of Investor Certificates
or, in the case of Series of Variable Funding Certificates, the maximum Invested
Amount specified in the Supplement for such Series.
(b) Company Certificates. Upon written request of the Company, the
Trustee shall authenticate and deliver to the Company one or more certificates
representing the Exchangeable Company Interest and/or Subordinated Company
Interests in a form reasonably satisfactory to the Trustee. Such certificates
shall be duly authenticated by or on behalf of the Trustee in denominations as
requested by the Company. The Company shall pay all costs associated with such
issuance of certificates and such payment obligation shall be a Company
Subordinated Obligation.
SECTION 5.03. Registration of Transfer and Exchange of Investor
Certificates.
(a) The Trustee shall cause to be kept at the office or agency to be
maintained by a transfer agent and registrar (which may be the Trustee) (the
"Transfer Agent and Registrar") in accordance with the provisions of Section
8.16 hereof a register (the "Certificate Register") in which, subject to such
reasonable regulations as the Trustee may prescribe, the Transfer Agent and
Registrar shall provide for the registration of the Investor Certificates and of
transfers and exchanges of the Investor Certificates as herein provided. The
Company hereby appoints the Trustee as Transfer Agent and Registrar for the
purpose of registering the Investor Certificates and transfers and exchanges of
the Investor Certificates as herein provided. The Trustee shall be permitted to
resign as Transfer Agent and Registrar upon 30 days' prior written notice to the
Company, the Trustee and the Master Servicer; provided, however, that such
resignation shall not be effective and the Trustee shall continue to perform its
duties as Transfer Agent and Registrar until the Trustee has appointed a
successor Transfer Agent and Registrar reasonably acceptable to the Company and
such successor Transfer Agent and Registrar has accepted such appointment. The
provisions of Sections 8.01, 8.02, 8.03, 8.05 and 10.19 shall apply to any
Person (or the Trustee to the extent it is so acting) in its role as Transfer
Agent or Registrar, as the case may be, for so long as such Person (or the
Trustee to the extent it is so acting) shall act as Transfer Agent or Registrar,
as the case may be.
The Company hereby agrees to provide the Trustee from time to time
sufficient funds, on a timely basis and in accordance with and subject to
Section 8.05 hereof, for the payment of any reasonable compensation payable to
the Transfer Agent and Registrar for its services under this Section 5.03 and
under Section 5.10. The Trustee hereby agrees that, upon the receipt of such
funds from the Company, it shall pay the Transfer Agent and Registrar such
amounts.
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Upon surrender for registration of transfer of any Investor Certificate
at any office or agency of the Transfer Agent and Registrar maintained for such
purpose, the Company shall execute, and the Trustee shall, upon the written
order of the Company, authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Investor Certificates in authorized
denominations of the same Series representing like aggregate Investor
Certificateholders' Interests and which bear numbers that are not
contemporaneously outstanding.
At the option of an Investor Certificateholder, Investor Certificates
may be exchanged for other Investor Certificates of the same Series in
authorized denominations of like aggregate Investor Certificateholders'
Interests, bearing numbers that are not contemporaneously outstanding, upon
surrender of the Investor Certificates to be exchanged at any such office or
agency of the Transfer Agent and Registrar maintained for such purpose.
Whenever any Investor Certificates of any Series are so surrendered for
exchange, the Company shall execute, and the Trustee shall, upon the written
order of the Company, authenticate and (unless the Transfer Agent and Registrar
is different from the Trustee, in which case the Transfer Agent and Registrar
shall) deliver, the Investor Certificates of such Series which the Investor
Certificateholder making the exchange is entitled to receive. Every Investor
Certificate presented or surrendered for registration of transfer or exchange
shall be accompanied by a written instrument of transfer, with sufficient
instructions, duly executed by the Investor Certificateholder thereof or his
attorney-in-fact duly authorized in writing delivered to the Trustee (unless the
Transfer Agent and Registrar is different from the Trustee, in which case to the
Transfer Agent and Registrar) and complying with any requirements set forth in
the applicable Supplement.
No service charge shall be made for any registration of transfer or
exchange of Investor Certificates, but the Transfer Agent and Registrar may
require any Investor Certificateholder that is transferring or exchanging one or
more Investor Certificates to pay a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Investor Certificates.
All Investor Certificates surrendered for registration of transfer and
exchange shall be canceled and disposed of in a customary manner satisfactory to
the Trustee.
The Company shall execute and deliver Investor Certificates to the
Trustee or the Transfer Agent and Registrar in such amounts and at such times as
are necessary to enable the Trustee and the Transfer Agent and Registrar to
fulfill their respective responsibilities under this Agreement and the Investor
Certificates.
(b) The Transfer Agent and Registrar will maintain at its expense in the
city of New York and, subject to Section 5.03(a), if specified in the related
Supplement for any Series, any other city designated in such Supplement, an
office or offices or agency or agencies where Investor Certificates may be
surrendered for registration or transfer or exchange.
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(c) Unless otherwise stated in any related Supplement, registration of
transfer of Investor Certificates containing a legend relating to restrictions
on transfer of such Investor Certificates (which legend shall be set forth in
the Supplement relating to such Investor Certificates) shall be effected only if
the conditions set forth in the related Supplement are complied with.
Investor Certificates issued upon registration or transfer of, or in
exchange for, Investor Certificates bearing the legend referred to above shall
also bear such legend unless the Company, the Master Servicer, the Trustee and
the Transfer Agent and Registrar receive an Opinion of Counsel satisfactory to
each of them, to the effect that such legend may be removed.
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Investor
Certificates. If (i) any mutilated Investor Certificate is surrendered to the
Transfer Agent and Registrar, or the Transfer Agent and Registrar receives
evidence to its satisfaction of the destruction, loss or theft of any Investor
Certificate and (ii) there is delivered to the Transfer Agent and Registrar and
the Trustee such security or indemnity as may be required by them to save the
Trust, each of them and the Company harmless, then, in the absence of actual
notice to the Trustee or Transfer Agent and Registrar that such Investor
Certificate has been acquired by a bona fide purchaser, the Company shall
execute and, upon the written request of the Company, the Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Investor Certificate, a new Investor Certificate of
like tenor and aggregate Investor Certificateholders' Interest and bearing a
number that is not contemporaneously outstanding. In connection with the
issuance of any new Investor Certificate under this Section 5.04, the Trustee or
the Transfer Agent and Registrar may require the payment by the Investor
Certificateholder of a sum sufficient to cover any tax or other governmental
expenses (including the fees and expenses of the Trustee and Transfer Agent and
Registrar) related thereto. Any duplicate Investor Certificate issued pursuant
to this Section 5.04 shall constitute complete and indefeasible evidence of
ownership in the Trust, as if originally issued, whether or not the lost, stolen
or destroyed Investor Certificate shall be found at any time.
SECTION 5.05. Persons Deemed Owners. At all times prior to due
presentation of an Investor Certificate for registration of transfer, the
Company, the Trustee, the Paying Agent, the Transfer Agent and Registrar, any
Agent and any agent of any of them may treat the Person in whose name any
Investor Certificate is registered as the owner of such Investor Certificate for
the purpose of receiving distributions pursuant to Article IV of the related
Supplement and for all other purposes whatsoever, and neither the Trustee, the
Paying Agent, the Transfer Agent and Registrar nor any agent of any of them
shall be affected by any notice to the contrary. Notwithstanding the foregoing
provisions of this Section 5.05, in determining whether the Investor
Certificateholders of the requisite Investor Certificateholders' Interests have
given any request, demand, authorization, direction, notice, consent or waiver
hereunder, Investor Certificates owned by the Company, the Master Servicer or
the Servicer, or any Affiliate thereof, shall be disregarded and deemed not to
be outstanding, except that, in determining whether the
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Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Investor Certificates
which a Responsible Officer of the Trustee actually knows to be so owned shall
be so disregarded. Investor Certificates so owned by the Company, the Master
Servicer or any Servicer, or any Affiliate thereof which have been pledged in
good faith shall not be disregarded and may be regarded as outstanding if the
pledgee provides a certificate to the Trustee certifying as to the pledgee's
right so to act with respect to such Investor Certificates and that the pledgee
is not the Company, the Master Servicer or any Servicer, or any Affiliate
thereof.
SECTION 5.06. Appointment of Paying Agent. The Paying Agent shall make
distributions to Investor Certificateholders from the Collection Account (and/or
any other account or accounts maintained for the benefit of Investor
Certificateholders as specified in the related Supplement for any Series)
pursuant to Articles III and IV of the related Supplement. The Trustee may
revoke such power and remove the Paying Agent if the Trustee determines in its
sole discretion that the Paying Agent shall have failed to perform its
obligations under this Agreement in any material respect. Unless otherwise
specified in the related Supplement for any Series and with respect to such
Series, the Paying Agent shall initially be the Trustee and any co-paying agent
chosen by the Trustee. Each Paying Agent shall have a combined capital and
surplus of at least $50,000,000. The Paying Agent shall be permitted to resign
upon 30 days' prior written notice to the Company. In the event that the Paying
Agent shall so resign, the Company shall appoint a successor to act as Paying
Agent (which shall be a depositary institution or trust company) which
appointment shall be effective on the date on which the Person so appointed
gives the Trustee written notice that it accepts the appointment. Any
resignation or removal of the Paying Agent and appointment of successor Paying
Agent pursuant to this Section 5.06 shall not become effective until acceptance
of appointment by the successor Paying Agent, as provided in this Section
5.06(a). The Company shall cause such successor Paying Agent or any additional
Paying Agent appointed by the Company to execute and deliver to the Trustee an
instrument in which such successor Paying Agent or additional Paying Agent shall
agree with the Trustee that as Paying Agent, such successor Paying Agent or
additional Paying Agent will hold all sums, if any, held by it for payment to
the Investor Certificateholders in trust for the benefit of the Investor
Certificateholders entitled thereto until such sums shall be paid to such
Investor Certificateholders. The Paying Agent shall return all unclaimed funds
to the Trustee and upon removal of a Paying Agent such Paying Agent shall also
return all funds in its possession to the Trustee. The provisions of Sections
8.01, 8.02, 8.03, 8.05 and 10.19 shall apply to any Person (or the Trustee to
the extent it is so acting) in its role as Paying Agent, for so long as such
Person (or the Trustee to the extent it is so acting) shall act as Paying Agent.
Any reference in this Agreement to the Paying Agent shall include any co-paying
agent unless the context requires otherwise.
The Company hereby agrees to pay each Paying Agent for its services
under Section 5.06(a); provided, however, that any payments to be made by the
Company pursuant to this Section 5.06(b) shall (i) be Company Subordinated
Obligations, (ii) be made solely from funds available to the Company that are
not required to be applied to Company Unsubordinated Obligations then due and
(iii) not constitute a general recourse
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claim against the Company after satisfying all Company Unsubordinated
Obligations then due.
SECTION 5.07. Access to List of Investor Certificateholders' Names and
Addresses. The Trustee will furnish or cause to be furnished by the Transfer
Agent and Registrar to the Company, the Master Servicer or the Paying Agent,
within 10 Business Days after receipt by the Trustee of a request therefor from
the Company, the Master Servicer or the Paying Agent, respectively, in writing,
a list of the names and addresses of the Investor Certificateholders as then
recorded by or on behalf of the Trustee. The costs and expenses incurred in
connection with the provision of such list shall constitute Program Costs under
the Supplement for the applicable Series. Except as otherwise provided in any
Supplement, if three or more Investor Certificateholders of record or any
Investor Certificateholder of any Series or a group of Investor
Certificateholders of record representing Investor Certificateholders' Interests
aggregating not less than 10% of the Invested Amount of the related Outstanding
Series (the "Applicants") apply in writing to the Trustee, and such application
states that the Applicants desire to communicate with other Investor
Certificateholders of any Series with respect to their rights under this
Agreement or under the Investor Certificates and is accompanied by a copy of the
communication which such Applicants propose to transmit, then the Trustee, after
having been adequately indemnified by such Applicants for its costs and
expenses, shall transmit or shall cause the Transfer Agent and Registrar to
transmit, such communication to the Investor Certificateholders reasonably
promptly after the receipt of such application.
Every Investor Certificateholder, by receiving and holding an Investor
Certificate, agrees with the Trustee that neither the Trustee, the Transfer
Agent and Registrar, nor any of their respective agents, officers, directors or
employees shall be held accountable by reason of the disclosure or mailing of
any such information as to the names and addresses of the Investor
Certificateholders hereunder, regardless of the sources from which such
information was derived.
As soon as practicable following each Record Date, the Trustee shall
provide to the Paying Agent or its designee, a list of Investor
Certificateholders in such form as the Paying Agent may reasonably request.
SECTION 5.08. Authenticating Agent.
(a) The Trustee may appoint one or more authenticating agents with
respect to the Investor Certificates which shall be authorized to act on behalf
of the Trustee in authenticating the Investor Certificates in connection with
the issuance, delivery, registration of transfer, exchange or repayment of the
Investor Certificates. Whenever reference is made in this Agreement to the
authentication of Investor Certificates by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication on behalf of the Trustee by an authenticating agent and a
certificate of authentication executed on behalf of the Trustee by an
authenticating agent.
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(b) Any institution succeeding to the corporate trust business of an
authenticating agent shall continue to be an authenticating agent without the
execution or filing of any paper or any further act on the part of the Trustee
or such authenticating agent.
(c) An authenticating agent may at any time resign by giving written
notice of resignation to the Trustee. Upon the receipt by the Trustee of any
such notice of resignation and upon the giving of any such notice of termination
by the Trustee, the Trustee shall immediately give notice of such resignation or
termination to the Company. Any resignation of an authenticating agent shall not
become effective until acceptance of appointment by the successor authenticating
agent as provided in this Section 5.08. The Trustee may at any time terminate
the agency of an authenticating agent by giving notice of termination to such
authenticating agent. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time an authenticating agent shall cease to be
acceptable to the Trustee, the Trustee promptly may appoint a successor
authenticating agent. Any successor authenticating agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
authenticating agent. No successor authenticating agent (other than an Affiliate
of the Trustee) shall be appointed unless reasonably acceptable to the Trustee
and the Company.
(d) The Company hereby agrees to provide the Trustee from time to time
sufficient funds, on a timely basis and in accordance with and subject to
Section 8.05 hereof, for the payment of any reasonable compensation payable to
each authenticating agent for its services under this Section 5.08 and such
payment obligation shall be a Company Subordinated Obligation. The Trustee
hereby agrees that, upon the receipt of such funds from the Company it shall pay
each authenticating agent such amounts.
(e) The provisions of Sections 8.01, 8.02, 8.03 and 8.05 hereof shall be
applicable to any authenticating agent.
(f) Pursuant to an appointment made under this Section 5.08, the
Investor Certificates may have endorsed thereon, in lieu of the Trustee's
certificate of authentication, an alternate certificate of authentication in
substantially the following form:
This is one of the Investor Certificates
described in the Amended and Restated Pooling Agreement
dated as of March 8, 2000, among ▇▇▇▇▇▇ Funding Inc.,
▇▇▇▇▇▇ Micro Inc., as Master Servicer and The Chase Manhattan Bank, as Trustee.
The Chase Manhattan Bank, as Authenticating Agent
for the Trustee
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By:_____________________
Authorized Signatory
SECTION 5.09. Tax Treatment. It is the intent of the Master Servicer,
each Servicer, the Company, the Investor Certificateholders and the Trustee
that, under applicable U.S. Federal, state and local income and franchise tax
laws, the Investor Certificates will qualify as indebtedness of the Company
secured by the Trust Assets and that the Trust will not be characterized as an
association or publicly traded partnership taxable as a corporation. The Company
and the Trustee, by entering into this Agreement, and each Investor
Certificateholder, by its acceptance of its Investor Certificate, agree to treat
the Investor Certificates for applicable U.S. Federal, state and local income
and franchise tax purposes as indebtedness of the Company unless a final
determination that, under applicable law, is not subject to further appeal,
review or modification through proceedings or otherwise, including a
"determination" as defined in Section 1313(a) of the Code, causes such Investor
Certificates not to constitute indebtedness of the Company for Federal tax
purposes. The provisions of this Agreement and all related Transaction Documents
shall be construed to further these intentions of the parties. This Section 5.09
shall survive the termination of this Agreement and shall be binding on all
transferees of any of the foregoing Persons.
SECTION 5.10. Exchangeable Company Interest.
(a) The Company may decrease the amount of the Exchangeable Company
Interest in exchange for (i) an increase in the Invested Amount of a Class of
Investor Certificates of an Outstanding Series and an increase in any related
Subordinated Company Interest in connection with an issuance of additional
Investor Certificates of such Outstanding Series or (ii) one or more newly
issued Series of Investor Certificates and any related newly issued Subordinated
Company Interest (any such decrease a "Company Exchange"). (A Company Exchange
shall not be necessary in connection with an increase in the Invested Amount of
any Investor Certificates issued in a Series with an Invested Amount that may
increase or decrease from time to time. Such Investor Certificates are expected
to be designated as "Variable Funding Certificates" or "VFC Certificates".) The
Company may perform a Company Exchange by notifying the Trustee, in writing at
least five Business Days in advance (an "Exchange Notice") of the date upon
which the Company Exchange is to occur (an "Exchange Date"). Any Exchange Notice
shall state the designation of any Series to be issued on the Exchange Date and,
with respect to each such Series: (a) its additional or Initial Invested Amount,
as the case may be, if any, which in the aggregate at any time may not be
greater than the current principal amount of the Exchangeable Company Interest,
if any, at such time and (b) its Certificate Rate (or the method for allocating
interest payments or other cash flow to such Series), if any. On the Exchange
Date, the Trustee shall only (i) authenticate and deliver any Investor
Certificates evidencing an increase in the Invested Amount of a Class of
Investor Certificates or a newly issued Series and (ii) permit the issuance of
any related Subordinated Company Interest, upon delivery by the Company to the
Trustee of the following (together with the delivery by the Company to the
Trustee of any additional agreements, instruments or other documents as are
specified in the related Supplement):
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(a) a Supplement executed by the Company and specifying the Principal Terms of
such Series (provided that no such Supplement shall be required for any increase
in the Invested Amount of a Class of Investor Certificates, and any related
increase in the related Subordinated Company Interest, unless it is so required
by the related Supplement), (b) a Tax Opinion addressed to the Trustee and the
Trust, (c) a General Opinion addressed to the Trustee and the Trust, which among
other things shall state that such Supplement has been authorized and permitted
pursuant to this Agreement, (d) an Officer's Certificate certifying that all
conditions precedent to the authentication and delivery of such Investor
Certificates have been satisfied and upon which Officer's Certificate the
Trustee may conclusively rely, (e) written confirmation from each Rating Agency
that the Company Exchange will not result in the Rating Agency's reducing or
withdrawing its rating on any then Outstanding Series or any Class of any such
Outstanding Series rated by it, (f) written instructions of an officer of the
Company specifying the amount, Series, Investor Certificates and other Interests
to be issued with respect to such Company Exchange and (g) the applicable
Investor Certificates if necessary. Upon delivery of the items listed in clauses
(a) through (g) above, the Trustee shall cancel the applicable tendered Investor
Certificates and Subordinated Company Interest, as the case may be, and issue,
as provided above, such Series of Investor Certificates and allow the issuance
of such Subordinated Company Interest, if applicable, dated the Exchange Date.
The Trustee shall cause to be kept at the office or agency to be maintained by
the Transfer Agent and Registrar in accordance with the provisions of Section
8.16 hereof a register (the "Exchange Register") in which, subject to such
reasonable regulations as the Trustee may prescribe, the Transfer Agent and
Registrar shall record all Company Exchanges and the amount of the Exchangeable
Company Interest following any such Company Exchange. There is no limit to the
number of Company Exchanges that the Company may perform under this Agreement.
If the Company shall, on any Exchange Date, retain any Investor Certificates
issued on such Exchange Date, it shall, prior to transferring any such Investor
Certificates to another Person, obtain a Tax Opinion. Additional restrictions
relating to a Company Exchange may be set forth in any Supplement.
(b) Upon any Company Exchange, the Trustee, in accordance with the
written directions of the Company, shall issue to the Company under Section
5.01, for execution and redelivery to the Trustee for authentication pursuant to
Section 5.02, (i) one or more Investor Certificates representing an increase in
the Invested Amount of an outstanding Series, or (ii) one or more new Series of
Investor Certificates. Any such Investor Certificates shall be substantially in
the form specified in the applicable Supplement and each shall bear, upon its
face, the designation for such Series to which each such certificate belongs so
selected by the Company.
(c) In conjunction with a Company Exchange, the parties hereto shall,
except as otherwise provided in subsection (a) above, execute a Supplement to
this Agreement, which shall define, with respect to any additional Investor
Certificates or newly issued Series, as the case may be: (i) its name or
designation, (ii) its additional or initial principal amount, as the case may be
(or method for calculating such amount), (iii) its coupon rate (or formula for
the determination thereof), (iv) the interest payment date or
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dates and the date or dates from which interest shall accrue, (v) the method for
allocating Collections to Holders, (vi) the names of any accounts to be used by
such Series and the terms governing the operation of any such accounts, (vii)
the issue and terms of a letter of credit or other form of Enhancement, if any,
with respect thereto, (viii) the terms on which the certificates of such Series
may be repurchased by the Company or may be remarketed to other investors, (ix)
the Series Termination Date, (x) any deposit account maintained for the benefit
of Holders, (xi) the number of classes of such Series, and if more than one
class, the rights and priorities of each such class, (xii) the rights of the
Holder of the Exchangeable Company Interest that have been transferred to the
holders of such Series, (xiii) the designation of any Series Accounts and the
terms governing the operation of any such Series Accounts, (xiv) provisions
acceptable to the Trustee concerning the payment of the Trustee's fees, expenses
and indemnities and (xv) other relevant terms (all such terms, the "Principal
Terms" of such Series). The Supplement executed in connection with the Company
Exchange shall contain administrative provisions which are reasonably acceptable
to the Trustee.
(d) The Company shall not transfer, assign, exchange or otherwise
dispose of the Exchangeable Company Interest or any Subordinated Company
Interest without (i) the prior satisfaction of the Rating Agency Condition, (ii)
delivery of a Tax Opinion and (iii) the consent of the Investor
Certificateholders of any Variable Funding Certificates. If the Company shall
transfer, assign, exchange or otherwise dispose of all or any portion of the
Exchangeable Company Interest or any Subordinated Company Interest, in
accordance with the preceding sentence, the Transfer Agent and Registrar shall
record the transfer, assignment, exchange or other disposition of (i) the
Exchangeable Company Interest in the Exchange Register and (ii) any Subordinated
Company Interest in a register maintained by the Transfer Agent and Registrar at
its office or agency (the "Subordinated Interest Register"). Any Holder who
wishes to transfer, assign, exchange or otherwise dispose of all or any portion
of the Exchangeable Company Interest or any Subordinated Company Interest held
by it shall deliver instructions and a written instrument of transfer, with
sufficient instructions, duly executed by the Holder or his attorney-in-fact
duly authorized in a writing delivered to the Trustee (unless the Transfer Agent
and Registrar is different from the Trustee, in which case to the Transfer Agent
and Registrar) and complying with any requirements set forth in the applicable
Supplement. No service charge shall be made for any registration of transfer or
exchange of all or any portion of the Exchangeable Company Interest or any
Subordinated Company Interest, but the Transfer Agent and Registrar may require
any Holder that is transferring or exchanging all or any portion of the
Exchangeable Company Interest or any Subordinated Company Interest to pay a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of all or any portion of the
Exchangeable Company Interest or the Subordinated Company Interest.
(e) Except as specified in any Supplement for a related Series, all
Investor Certificates of any Series shall be equally and ratably entitled as
provided herein to the benefits hereof without preference, priority or
distinction on account of the actual time or
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times of authentication and delivery, all in accordance with the terms and
provisions of this Agreement and the applicable Supplement.
SECTION 5.11. Book-Entry Certificates. If specified in any related
Supplement, the Investor Certificates, or any portion thereof, upon original
issuance, shall be issued in the form of one or more typewritten Investor
Certificates representing the Book-Entry Certificates, to be delivered to the
Depository specified in such Supplement, which shall be the Clearing Agency,
specified by, or on behalf of, the Company for such Series. The Investor
Certificates shall initially be registered on the Certificate Register in the
name of the nominee of such Clearing Agency, and no Certificate Book-Entry
Holder will receive a definitive certificate representing such Certificate
Book-Entry Holder's interest in the Investor Certificates, except as provided in
Section 5.13 hereof. Unless and until definitive, fully registered Investor
Certificates ("Definitive Certificates") have been issued to Investor
Certificateholders pursuant to Section 5.13 or the related Supplement:
(a) the provisions of this Section 5.11 shall be in full force and
effect;
(b) the Company, the Master Servicer, each Servicer and the Trustee may
deal with each Clearing Agency for all purposes (including the making of
distributions on the Investor Certificates) as the Investor Certificateholder
without respect to whether there has been any actual authorization of such
actions by the Certificate Book-Entry Holders with respect to such actions;
(c) to the extent that the provisions of this Section 5.11 conflict with
any other provisions of this Agreement, the provisions of this Section 5.11
shall control; and
(d) the rights of Certificate Book-Entry Holders shall be exercised only
through the Clearing Agency and the related Clearing Agency Participants and
shall be limited to those established by law and agreements between such related
Certificate Book-Entry Holders and the Clearing Agency and/or the Clearing
Agency Participants. Pursuant to the Depository Agreement, the initial Clearing
Agency will make book-entry transfers among the Clearing Agency Participants and
receive and transmit distributions of principal and interest on the Investor
Certificates to such Clearing Agency Participants.
Notwithstanding the foregoing, no Class or Series of Investor
Certificates may be issued as Book-Entry Certificates (but, instead, shall be
issued as Definitive Certificates) unless at the time of issuance of such Class
or Series, the Company and the Trustee receive a Tax Opinion.
SECTION 5.12. Notices to Clearing Agency. Whenever notice or other
communication to the Investor Certificateholders is required under this
Agreement, unless and until Definitive Certificates shall have been issued to
Certificate Book-Entry Holders pursuant to Section 5.13, the Trustee shall give
all such notices and
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communications specified herein to be given to the Investor Certificateholders
to the Clearing Agencies.
SECTION 5.13. Definitive Certificates. If (a)(i) the Company advises the
Trustee in writing that any Clearing Agency is no longer willing or able to
properly discharge its responsibilities under the applicable Depository
Agreement, and (ii) the Company is unable to locate a qualified successor, (b)
the Company, at its option, advises the Trustee in writing that it elects to
terminate the book-entry system through the Clearing Agency or (c) after the
occurrence of a Servicer Default, Certificate Book-Entry Holders representing
Investor Certificateholders' Interests aggregating more than 50% of the Invested
Amount held by such Certificate Book-Entry Holders of each affected Series then
issued and outstanding advise the Clearing Agency through the Clearing Agency
Participants in writing, and the Clearing Agency shall so notify the Trustee,
that the continuation of a book-entry system through the Clearing Agency is no
longer in the best interests of the Certificate Book-Entry Holders, the Trustee
shall notify the Clearing Agency, which shall be responsible to notify the
Certificate Book-Entry Holders, of the occurrence of any such event and of the
availability of Definitive Certificates to Certificate Book-Entry Holders
requesting the same. Upon surrender to the Trustee of the Book-Entry
Certificates by the Clearing Agency, accompanied by registration instructions
from the Clearing Agency for registration, the Trustee shall issue the
Definitive Certificates. Neither the Company nor the Trustee shall be liable for
any delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions.
ARTICLE VI
OTHER MATTERS RELATING TO THE COMPANY
SECTION 6.01. Liability of the Company. The Company shall be liable for
all obligations, covenants, representations and warranties of the Company
arising under or related to this Agreement or any Supplement. Except as provided
in the preceding sentence and otherwise herein, the Company shall be liable only
to the extent of the obligations specifically undertaken by it in its capacity
as Company hereunder.
ARTICLE VII
EARLY AMORTIZATION EVENTS
SECTION 7.01. Early Amortization Events. Unless modified with respect to
any Series of Investor Certificates by any related Supplement, if any one of the
following events (each, an "Early Amortization Event") shall occur:
(a) (i) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Company or the Master Servicer in an
involuntary case under the Bankruptcy Code or any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect (the Bankruptcy Code
and all other such applicable laws being, collectively, "Applicable Insolvency
Laws"), which decree or order is not stayed or any other similar relief shall be
granted under any applicable federal or state law now or
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hereafter in effect and shall not be stayed; (ii) (A) an involuntary case is
commenced against the Company or the Master Servicer under any Applicable
Insolvency Law now or hereafter in effect, a decree or order of a court having
jurisdiction in the premises for the appointment of a receiver, liquidator,
sequestrator, trustee, custodian or other officer having similar powers over the
Company or the Master Servicer, as the case may be, or over all or a substantial
part of the property of the Company or the Master Servicer, as the case may be,
shall have been entered, an interim receiver, trustee or other custodian of the
Company or the Master Servicer for all or a substantial part of the property of
the Company or the Master Servicer is involuntarily appointed, a warrant of
attachment, execution or similar process is issued against any substantial part
of the property of the Company or the Master Servicer, and (B) any event
referred to in clause (ii)(A) above continues for 60 days unless dismissed,
bonded or discharged; provided, however, that such 60-day period shall be deemed
terminated immediately upon the occurrence of any of the events referred to in
this Section 7.01(a) other than those referred to in clause (ii)(A) above; and
(iii) the Company or the Master Servicer shall at its request have a decree or
an order for relief entered with respect to it or commence a voluntary case
under any Applicable Insolvency Law, consent to the entry of a decree or an
order for relief in an involuntary case, or to the conversion of an involuntary
case to a voluntary case, under any Applicable Insolvency Law, consent to the
appointment of or taking possession by a receiver, trustee or other custodian
for all or a substantial part of its property; (iv) the making by the Company or
the Master Servicer of any general assignment for the benefit of creditors; (v)
the inability or failure of the Company generally to pay its debts as such debts
become due; or (vi) the Board of Directors of the Company or the Master Servicer
adopts any resolution or otherwise authorizes action to approve any of the
foregoing;
(b) the Trust or the Company shall become an "investment company" within
the meaning of the 1940 Act; or
(c) the Trustee shall be appointed Successor Servicer pursuant to
Section 6.02(c) of the Servicing Agreement;
then, an "Early Amortization Period" with respect to all Outstanding Series
shall commence without any notice or other action on the part of the Trustee or
any Investor Certificateholder immediately upon the occurrence of such event,
unless otherwise provided in the Supplement with respect to any Series. The
Master Servicer shall notify each Rating Agency and the Trustee in writing of
the occurrence of any Early Amortization Period. Upon the commencement against
the Company of a case, proceeding or other action described in clause (a)(ii)
above, the Company shall cease to purchase Receivables from any Seller and cease
to transfer Receivables to the Trust, until such time, if any, as such case,
proceeding or other action is vacated, discharged, or stayed or bonded pending
appeal. If an Insolvency Event with respect to the Company occurs, the Company
shall immediately cease to transfer Receivables to the Trust (or, if the Company
has previously suspended the transfer of Receivables to the Trust to comply with
the preceding sentence, such suspension shall become a permanent cessation of
the transfer of Receivables to the Trust) and shall promptly give written notice
to the Trustee of such occurrence. Notwithstanding any cessation of the transfer
to the Trust of
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additional Receivables, Receivables transferred to the Trust prior to the
occurrence of such Insolvency Event and Collections in respect of such
Receivables and interest, whenever created, accrued in respect of such
Receivables, shall continue to be a part of the Trust.
Additional Early Amortization Events and the consequences thereof may be
set forth in each Supplement with respect to the Series relating thereto.
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SECTION 7.02. Additional Rights upon the Occurrence of Certain Events.
(a) If after the occurrence of an Insolvency Event, the Aggregate
Invested Amount and all accrued and unpaid interest thereon have not been paid
to the Investor Certificateholders, the Trustee in accordance with the written
direction of the Master Servicer shall (i) publish a notice in a newspaper with
a national circulation (an "Authorized Newspaper") that an Insolvency Event has
occurred and that the Trustee intends to sell, dispose of or otherwise liquidate
the Receivables in a commercially reasonable manner and (ii) send written notice
to the Investor Certificateholders and request instructions from such holders,
which notice shall request each Certificateholder to advise the Trustee in
writing that it elects one of the following options: (A) the Certificateholder
wishes the Trustee not to sell, dispose of or otherwise liquidate the
Receivables; (B) the Certificateholder wishes the Trustee to sell, dispose of or
otherwise liquidate the Receivables; or (C) the Certificateholder refuses to
advise the Trustee as to the specific action the Trustee should take. If the
Trustee has received written instruction selecting option (B) above from
Investor Certificateholders representing more than 50% of the Invested Amount of
each Series or, in the case of a Series having more than one Class of Investor
Certificates, Investor Certificateholders representing more than 50% of the
Invested Amount of each Class of such Series, the Trustee shall be permitted to
engage an investment bank and shall proceed to sell, dispose of, or otherwise
liquidate the Receivables in a commercially reasonable manner and on
commercially reasonable terms, which shall include the solicitation of
competitive bids and the Trustee shall proceed to consummate the sale,
liquidation or disposition of the Receivables as provided above with the highest
bidder for the Receivables. The Trustee shall rely and shall be protected in
acting or refraining from acting upon any advice from any investment bank hired
pursuant to the terms of this Section 7.02(b) to the extent provided in Section
8.01. The Company or any of its Affiliates shall be permitted to bid for the
Receivables. In addition, the Company or any of its Affiliates shall have the
right to match any bid by a third person and be granted the right to purchase
the Receivables at such matched bid price. All reasonable costs and expenses
incurred by the Trustee in such sale (including commercially reasonable fees
payable to the investment bank) shall be reimbursable to the Trustee as provided
in Section 8.05. The rights arising under this Section 7.02(a) shall in no way
limit the right of Investor Certificateholders to direct the Trustee to sell
Receivables pursuant to the terms of Section 9.02 after the occurrence of an
Insolvency Event if the Trustee does not receive authorization to sell dispose
or otherwise liquidate the Receivables in accordance with the terms of this
Section 7.02.
(b) The proceeds from the sale, disposition or liquidation of the
Receivables pursuant to subsection (a) above shall be treated as Collections on
the Receivables and such proceeds shall be released to the Trustee in an amount
equal to the amount of any expenses incurred by the Trustee acting in its
capacity either as Trustee or as liquidating agent under this Section 7.02 that
have not otherwise been reimbursed and the remainder, if any, will be
distributed to Investor Certificateholders of each Series after immediately
being deposited in the Collection Account, in accordance with the provisions of
Section 3.01(d) and the related Supplement for such Series. After giving effect
to all such distributions, the remainder, if any, shall be allocated to the
Exchangeable Company
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Interest and shall be released to the Holders of the Exchangeable Company
Interest pro-rata based on the amount of the Exchangeable Company Interest held
by each Holder thereof.
ARTICLE VIII
THE TRUSTEE
SECTION 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of a Servicer Default or Early
Amortization Event of which a Responsible Officer of the Trustee has actual
knowledge, and after the curing of all Servicer Defaults and Early Amortization
Events which may have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in the Pooling and Servicing Agreements or
any Supplement and no implied covenants or obligations shall be read into such
Pooling and Servicing Agreements against the Trustee. If a Servicer Default or
Early Amortization Event of which a Responsible Officer of the Trustee has
actual knowledge has occurred (which has not been cured or waived), the Trustee
shall exercise the rights and powers vested in it by any Pooling and Servicing
Agreements or any Supplement and shall use the same degree of care and skill in
their exercise as a prudent person would exercise or use under the circumstances
in the conduct of such person's own affairs.
(b) The Trustee may conclusively rely as to the truth of the statements
and the correctness of the opinions expressed therein upon resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee; provided, that in the case of any of the
above which are specifically required to be furnished to the Trustee pursuant to
any provision of the Pooling and Servicing Agreements, the Trustee shall,
subject to Section 8.02, examine them to determine whether they appear on their
face to conform to the requirements of this Agreement; provided, however, that
the Trustee shall not be responsible for the accuracy or content of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Master Servicer or the Company hereunder. If any
such instrument is found not to conform in any material respect to the
requirements of this Agreement, the Trustee shall notify the Holders of such
instrument in the event that the Trustee, after so requesting, does not receive
a satisfactorily corrected instrument. Upon the written request of a Rating
Agency, the Trustee shall provide such Rating Agency with a copy of any
certificates, notices, reports, documents or other instruments furnished by the
Master Servicer to the Trustee pursuant to the Transaction Documents.
(c) Subject to Section 8.01(a), no provision of this Agreement or any
Supplement shall be construed to relieve the Trustee from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct; provided, however, that:
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(i) the Trustee shall not be liable for an error of judgment
unless it shall be proved that the Trustee was negligent, or acted in bad faith,
in ascertaining the pertinent facts;
(ii) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance with
the Pooling and Servicing Agreements or the Supplements or as directed by the
Investor Certificateholders pursuant to the terms of this Article VIII, relating
to the times, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising or omitting to exercise any trust or
power conferred upon the Trustee, under the Pooling and Servicing Agreements or
the Supplements;
(iii) the Trustee shall not be charged with knowledge of any
failure by the Master Servicer or any Servicer to comply with any of its
obligations, unless a Responsible Officer of the Trustee obtains actual
knowledge of such failure or the Trustee receives written notice of such failure
from the Master Servicer, any Servicer, any Agent or any Investor
Certificateholder;
(iv) the Trustee shall not be charged with knowledge of a
Servicer Default or Early Amortization Event unless a Responsible Officer of the
Trustee obtains actual knowledge of such event or the Trustee receives written
notice of such default or event from the Servicer, any Agent or any Holder of
Investor Certificates. In the absence of such notice, the Trustee may
conclusively assume that there is no Servicer Default or Early Amortization
Event;
(v) the Trustee shall not be liable for any investment losses
resulting from any investments of funds on deposit in the Accounts or any
subaccounts thereof (provided that such investments are Eligible Investments);
and
(vi) the Trustee shall have no duty to monitor the performance of
the Master Servicer or any Servicer, nor shall it have any liability in
connection with malfeasance or nonfeasance by the Master Servicer or any
Servicer; the Trustee shall have no liability in connection with compliance of
the Master Servicer or any Servicer or the Company with statutory or regulatory
requirements related to the Receivables; and the Trustee shall have no duty to
perform any recalculation or verification of any calculation with respect to
data provided to the Trustee by the Master Servicer or any Servicer.
(d) The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
under any Pooling and Servicing Agreements or in the exercise of any of its
rights or powers, if there is reasonable ground for believing that the repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it, and none of the provisions contained in any Pooling
and Servicing Agreements shall in any event require the Trustee to perform, or
be responsible for the manner of performance of, any obligations of the Servicer
under such Agreement except during such time, if any, as the
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Trustee shall be the successor to, and be vested with the rights, duties, powers
and privileges of, the Servicer in accordance with the terms of such Agreement.
(e) Except as expressly provided in any Pooling and Servicing
Agreements, the Trustee shall have no power to vary the corpus of the Trust.
(f) Subject to the other provisions of this Agreement and without
limiting the generality of this Section 8.01, the Trustee shall have no duty (i)
to see to any recording, filing, or depositing of this Agreement or any
agreement referred to herein or any financing statement or continuation
statement evidencing a security interest, or to see to the maintenance of any
such recording or filing or depositing or to any rerecording, refiling or
redepositing of any thereof, (ii) to see to any insurance, (iii) to see to the
payment or discharge of any tax, assessment, or other governmental charge or any
lien or encumbrance of any kind owing with respect to, assessed or levied
against, any part of the Trust Assets other than from funds available in the
Collection Account or (iv) to confirm or verify the contents of any reports or
certificates of the Master Servicer delivered to the Trustee pursuant to this
Agreement believed by the Trustee to be genuine and to have been signed or
presented by the proper party or parties.
SECTION 8.02. Rights of the Trustee. Except as otherwise provided in
Section 8.01 hereof.
(a) The Trustee may conclusively rely on and shall be protected in
acting on, or in refraining from acting in accordance with, any resolution,
Officer's Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, appraisal, bond, note or other paper or document believed by it to be
genuine and to have been signed or presented to it pursuant to any Pooling and
Servicing Agreements by the proper party or parties.
(b) The Trustee may consult with counsel, and any Opinion of Counsel and
any advice of such counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it hereunder
in good faith and in accordance with such advice or Opinion of Counsel.
(c) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by any Pooling and Servicing Agreements, or to
institute, conduct or defend any litigation hereunder or in relation hereto, at
the request, order or direction of any of the Holders, pursuant to the
provisions of any Pooling and Servicing Agreements, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby; provided,
however, that nothing contained herein shall relieve the Trustee of the
obligations, upon the occurrence of a Servicer Default or Early Amortization
Event (which has not been cured), to exercise such of the rights and powers
vested in it by any Pooling and Servicing Agreements, and to use the same degree
of care and skill in their exercise as a prudent person would exercise or use
under the circumstances in the conduct of such person's own affairs. The right
of the Trustee to perform any
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discretionary act enumerated in this Agreement shall not be construed as a duty,
and the Trustee shall not be answerable for other than its negligence or willful
misconduct in the performance of any such act.
(d) The Trustee shall not be personally liable for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by any Pooling and
Servicing Agreements; provided that the Trustee shall be liable for its
negligence or willful misconduct.
(e) Except as otherwise provided in any Supplement, the Trustee shall
not be bound to make any investigation into the facts of matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, direction, order, approval, bond, note or other paper or
document, unless requested in writing so to do by the Holders of Investor
Certificates evidencing Investor Certificateholders' Interests aggregating more
than 50% of the Invested Amount of any Series which could be materially and
adversely affected if the Trustee does not perform such acts; provided, however,
that such Holders of Investor Certificates shall indemnify and reimburse the
Trustee for any liability or expense resulting from any such investigation
requested by them; provided, further, that the Trustee shall be entitled to make
such further inquiry or investigation into such facts or matters as it may
reasonably see fit, and if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books and records
of the Company, personally or by agent or attorney, at the sole cost and expense
of the Company.
(f) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through affiliates, agents
or attorneys or a custodian or nominee, and the Trustee shall not be responsible
for any misconduct or negligence on the part of, or for the supervision of, any
such affiliate, agent, attorney, custodian or nominee appointed with due care by
it hereunder.
(g) The Trustee shall not be required to make any initial or periodic
examination of any documents or records related to the Receivables or the
Accounts for the purpose of establishing the presence or absence of defects, the
compliance by the Company with its representations and warranties or for any
other purpose.
(h) In the event that the Trustee is also acting as Paying Agent or
Transfer Agent and Registrar hereunder, the rights and protections afforded to
the Trustee pursuant to this Article VIII shall also be afforded to such Paying
Agent or Transfer Agent and Registrar.
(i) The Trustee shall not be required to give any bond or surety in
respect of the execution of the Trust created hereby or the powers granted
hereunder.
(j) Anything in this Agreement to the contrary notwithstanding, in no
event shall the Trustee be liable for special, indirect or consequential loss or
damage of any
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kind whatsoever (including but not limited to lost profits), even if the Trustee
has been advised of the likelihood of such loss or damage and regardless of the
form of action.
SECTION 8.03. Trustee Not Liable for Recitals. The Trustee assumes no
responsibility for the correctness of the recitals contained herein and in the
Investor Certificates (other than the certificate of authentication on the
Investor Certificates). Except as set forth in Section 8.15, the Trustee makes
no representations as to the validity or sufficiency of any Pooling and
Servicing Agreements, of the Investor Certificates (other than the certificate
of authentication on the Investor Certificates), of the Exchangeable Company
Interest, of any Subordinated Company Interest, of any Receivable or of any
related document or interest. The Trustee shall not be accountable for the use
or application by the Company of any of the Investor Certificates, any
Subordinated Company Interest or the Exchangeable Company Interest or of the
proceeds of such Investor Certificates, such Subordinated Company Interest or
the Exchangeable Company Interest or for the use or application of any funds
paid to the Company in respect of the Receivables or deposited in or withdrawn
from the Accounts or other accounts hereafter established to effectuate the
transactions contemplated herein and in accordance with the terms of any Pooling
and Servicing Agreements.
The Trustee shall not be accountable for the use or application by the
Servicer of any of the Investor Certificates or of the proceeds of such Investor
Certificates, or for the use or application of any funds paid to the Servicer in
respect of the Receivables or deposited in or withdrawn from the Accounts or any
Lockbox by or at the direction of the Servicer or Lockbox Processors. The
Trustee shall at no time have any responsibility or liability for or with
respect to the legality, validity and enforceability of any Receivable.
SECTION 8.04. Trustee May Own Investor Certificates. The Trustee in its
individual or any other capacity (a) may become the owner or pledgee of Investor
Certificates with the same rights as it would have if it were not the Trustee
and (b) may transact any banking and trust business with the Company, the
Servicer or the Sellers as it would were it not the Trustee.
SECTION 8.05. Trustee's Fees and Expenses.
(a) The Master Servicer and each Servicer (if ▇▇▇▇▇▇ Micro or an
Affiliate thereof) covenants and agrees to pay, but only from funds available to
it as the Servicing Fee paid under the Servicing Agreement, to the Trustee
annually in advance on the Effective Date and on or about each one year
anniversary thereof, and the Trustee shall be entitled to receive, such
reasonable compensation as is agreed upon in writing between the Trustee and the
Company (which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) for all services rendered by it
in the execution of the trust hereby created and in the exercise and performance
of any of the powers and duties hereunder of the Trustee. Notwithstanding the
foregoing, the Master Servicer and each Servicer will pay, reimburse and
indemnify the Trustee upon its request for all reasonable expenses (including,
without limitation, expenses incurred in connection with notices, requests for
documentation or other communications to
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Holders), disbursements, losses, liabilities, damages and advances incurred or
made by the Trustee in accordance with any of the provisions of the Pooling and
Servicing Agreements or by reason of its status as Trustee under any Pooling and
Servicing Agreements (including the reasonable fees and expenses of its agents,
any co-trustee and counsel) except any such expense, disbursement, loss,
liability, damage or advance as may arise from its negligence or bad faith. To
the extent the fees and expenses of the Trustee are not paid on a current basis,
the Trustee shall be entitled to be paid such items from amounts that would be
distributable to the Company under Article III of this Agreement and, to the
extent still unpaid in full, the Company will pay or reimburse the Trustee upon
its request for such items; provided, however that any payments to be made by
the Company pursuant to this Section shall (i) be Company Subordinated
Obligations, (ii) be made solely from funds available to the Company that are
not requested to be applied to Company Unsubordinated Obligations then due and
(iii) until the date that is one year and one day after the payment in full of
all Company Unsubordinated Obligations, not constitute a general recourse claim
against the Company after satisfying all Company Unsubordinated Obligations then
due at any time during the period of one year and one day following the date on
which all Company Unsubordinated Obligations have been paid in full but only a
claim against the Company to the extent funds are available (including, but not
limited to, funds available to the Company pursuant to the exercise of its right
to indemnity and other payments pursuant to Sections 2.06 and 9.02 of the
Receivables Sale Agreement) to the Company to make such payments. If the Trustee
is appointed Successor Servicer in accordance with the Servicing Agreement, the
provisions of this Section 8.05 shall not apply to expenses, disbursements,
losses, liabilities, damages and advances made or incurred by the Trustee in its
capacity as Successor Servicer, which items shall be paid, first, out of the
Servicing Fee, second, from amounts which would be distributable to the Company
under Article III of this Agreement, third, from amounts distributable to the
Company pursuant to Section 9.04 and fourth, to the extent still unpaid in full,
the Company will pay or reimburse the Trustee upon its request for such items
provided, however that any reimbursements to be made by the Company shall (i) be
Company Subordinated Obligations, (ii) be made solely from funds available to
the Company that are not requested to be applied to Company Unsubordinated
Obligations then due and (iii) until the date that is one year and one day after
the payment in full of all Company Unsubordinated Obligations, not constitute a
general recourse claim against the Company after satisfying all Company
Unsubordinated Obligations then due at any time during the period of one year
and one day following the date on which all Company Unsubordinated Obligations
have been paid in full but only a claim against the Company to the extent funds
are available (including, but not limited to, funds available to the Company
pursuant to the exercise of its right to indemnity and other payments pursuant
to Sections 2.06 and 9.02 of the Receivables Sale Agreement) to the Company to
make such payments. The provisions of this Section 8.05 shall apply to the
reasonable expenses, disbursements and advances made or incurred by the Trustee,
or any other Person, in its capacity as liquidating agent, to the extent not
otherwise paid. The covenants to pay the expenses, disbursements, losses,
liabilities, damages and advances provided for in this Section shall survive the
termination of any Pooling and Servicing Agreements and the resignation or
removal of the Trustee and shall be binding on the Company, the Master Servicer,
each Servicer and
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any Successor Servicer. The Company's and the Master Servicer's and each
Servicer's covenants and agreements contained in this Section 8.05 shall survive
the termination of this Agreement and the resignation or removal of the Trustee.
(b) If (i) the Trustee has reasonable cause to believe that (x) a
Servicer Default is likely to occur or (y) the Master Servicer or any Servicer
has otherwise failed in any material respect to perform its master servicing or
servicing functions in accordance with the Pooling and Servicing Agreements and
(ii) after reasonable written and/or telephonic inquiry in respect of such
likely Servicer Default or other material failure of the Master Servicer or
Servicer, the Trustee reasonably believes that further investigation or inquiry
in respect of such matter is necessary, then the Company shall pay the
reasonable fees, out-of-pocket costs and expenses incurred by the Trustee, in an
aggregate amount not to exceed $10,000 in respect of any calendar year, in
connection with an inspection of the Company's, the Master Servicer's and/or any
Servicer's offices, properties, books and records and/or discussions with the
officers, employees and Independent Public Accountants of the Company, the
Master Servicer or any Servicer in furtherance of such investigation or inquiry
(any such inspection and/or discussion, a "Reimbursable Trustee Inspection");
provided that a Reimbursable Trustee Inspection may not occur more frequently
than once per calendar year.
SECTION 8.06. Eligibility Recitals. The Trustee hereunder shall at all
times be a corporation organized and doing business under the laws of the United
States of America or any state thereof authorized under such laws to exercise
corporate trust powers, having (or having a holding company parent with) a
combined capital and surplus of at least $50,000,000 and subject to supervision
or examination by federal or state authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then, for the purpose of
this Section 8.06, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section 8.06, the Trustee
shall resign immediately in the manner and with the effect specified in Section
8.07.
SECTION 8.07. Resignation or Removal of Trustee.
(a) Subject to paragraph (c) below, the Trustee may at any time resign
and be discharged from the trust hereby created by giving written notice thereof
to the Company, the Master Servicer, the Rating Agencies and the Agents. Upon
receiving such notice of resignation, the Company shall promptly appoint a
successor trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee. If no successor trustee shall have been so appointed and have
accepted such appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
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(b) If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.06 hereof and shall fail to resign after
written request therefor by the Master Servicer, or if at any time the Trustee
shall be legally unable to act, or shall be adjudged a bankrupt or insolvent, or
if a receiver of the Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Company may remove the Trustee and promptly appoint a successor trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee.
(c) Any resignation or removal of the Trustee and appointment of
successor trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor trustee as
provided in Section 8.08.
(d) The obligations of the Company described in Section 8.05 hereof and
the obligations of the Servicer described in Section 8.05 hereof and Section
5.02 of the Servicing Agreement shall survive the removal or resignation of the
Trustee as provided in this Agreement.
(e) No Trustee under this Agreement shall be personally liable for any
action or omission of any successor trustee.
SECTION 8.08. Successor Trustee.
(a) Any successor Trustee appointed as provided in Section 8.07 shall
execute, acknowledge and deliver to the Company and to its predecessor Trustee
an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with like effect as if originally named as Trustee
herein. The predecessor Trustee shall deliver to the successor Trustee all
documents or copies thereof, at the expense of the Master Servicer, and
statements held by it hereunder; and the Company and the predecessor Trustee
shall execute and deliver such instruments and do such other things as may
reasonably be required for fully and certainly vesting and confirming in the
successor Trustee all such rights, power, duties and obligations. The Master
Servicer shall immediately give notice, but in no event less than 10 days prior
to any such resignation or removal, to each Rating Agency upon the appointment
of a successor trustee.
(b) No successor Trustee shall accept appointment as provided in this
Section 8.08 hereof unless at the time of such acceptance such successor Trustee
shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor Trustee as provided in
this Section 8.08, such successor Trustee shall mail notice of such succession
hereunder
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to all Holders at their addresses as shown in the Certificate Register, the
Exchange Register or the Subordinated Interest Register, as applicable.
SECTION 8.09. Merger or Consolidation of Trustee. Any Person into which
the Trustee may be merged or converted or with which it may be consolidated, or
any Person resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any Person succeeding to all or substantially all
of the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be eligible under the
provisions of Section 8.06, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding. The Trustee shall promptly give notice (except to the
extent prohibited under any Requirement of Law or Contractual Obligation), but
in no event less than 10 days prior to any such merger or consolidation, to the
Company, the Master Servicer and the Rating Agencies upon any such merger or
consolidation of the Trustee. Information as to such merger or consolidation
that is made publicly available by the Trustee in at least two Authorized
Newspapers shall be deemed to satisfy the notice requirement of this Section
8.09.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of any Pooling and Servicing
Agreements, at any time, for the purpose of meeting any legal requirements of
any jurisdiction in which any part of the Trust may at the time be located, the
Trustee shall have the power and may execute and deliver all instruments to
appoint one or more Persons to act as a co-Trustee or co-Trustees, or separate
Trustee or separate Trustees, of all or any part of the Trust, and to vest in
such Person or Persons, in such capacity and for the benefit of the Holders,
such title to the Trust, or any part thereof, and, subject to the other
provisions of this Section 8.10, such powers, duties, obligations, rights and
trusts as the Trustee may consider necessary. No co-trustee or separate trustee
hereunder shall be required to meet the terms of eligibility as a successor
trustee under Section 8.06 hereof and no notice to Holders of the appointment of
any co-trustee or separate trustee shall be required under Section 8.08 hereof.
The Trustee shall promptly notify each Rating Agency of the appointment of any
co-trustee.
(b) Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is not authorized to
act separately without the Trustee joining in such act), except to the extent
that under any statute of any jurisdiction in which any particular act or acts
are to be performed (whether as Trustee hereunder or as successor to the Master
Servicer hereunder), the Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Trust or any portion thereof in any such
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jurisdiction) shall be exercised and performed singly by such separate trustee
or co-trustee, but solely at the direction of the Trustee;
(ii) no Trustee hereunder shall be personally liable by reason of
any act or omission of any other Trustee hereunder; and
(iii) the Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate Trustees and co-Trustees,
as effectively as if given to each of them. Every instrument appointing any
separate Trustee or co-Trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate Trustee and co-Trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of any Pooling and
Servicing Agreements, specifically including every provision of any Pooling and
Servicing Agreements relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed with
the Trustee and a copy thereof given to the Master Servicer and the Company.
(d) Any separate Trustee or co-Trustee may at any time constitute the
Trustee, its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect to any
Pooling and Servicing Agreements on its behalf and in its name. If any separate
Trustee or co-Trustee shall die, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall vest
in and be exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 8.11. Tax Returns. In the event the Trust shall be required to
file U.S. Federal, state, local or foreign income tax returns, the Company shall
prepare and file or shall cause to be prepared and filed any such tax returns
required to be filed by the Trust and shall remit such tax returns to the
Trustee for signature at least five Business Days before such tax returns are
due to be filed (including extensions). The Company shall also prepare or shall
cause to be prepared all U.S. Federal tax information in connection with this
Agreement required by law to be distributed to Holders and shall deliver such
information to the Trustee at least five Business Days prior to the date it is
required by law to be distributed to the Holders. The Trustee, upon request,
will furnish the Company with all such information known to the Trustee as may
be reasonably determined by the Company to be required in connection with the
preparation of all U.S. Federal, state, local or foreign income tax returns of
the Trust, and shall, upon the Company's written request, execute such tax
returns. In no event shall the Trustee in its individual capacity be liable for
any liabilities, costs or expenses of the Trust, the Holders, the Company or the
Servicer, arising under any U.S. Federal, state, local or foreign income tax law
or regulation, including, without limitation, excise taxes or any other tax
imposed by a Governmental Authority on or measured by income (or any
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interest or penalty with respect thereto or arising from any failure to comply
therewith). The Trustee shall not be required to determine whether any filing of
tax returns is required.
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SECTION 8.12. Trustee May Enforce Claims Without Possession of Investor
Certificates. All rights of action and claims under any Pooling and Servicing
Agreements or the Investor Certificates may be prosecuted and enforced by the
Trustee without the possession of any of the Investor Certificates or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee. Any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Investor Certificateholders in
respect of which such judgment has been obtained.
SECTION 8.13. Suits for Enforcement. If a Servicer Default shall occur
and be continuing, the Trustee may, as provided in Section 6.01 of the Servicing
Agreement, proceed to protect and enforce its rights and the rights of the
Holders under this Agreement or any other Transaction Document by suit, action
or proceeding (including any suit, action or proceeding on behalf of the Holders
against any third party) in equity or at law or otherwise, whether for the
specific performance of any covenant or agreement contained in this Agreement or
any other Transaction Document or in aid of the execution of any power granted
in this Agreement or any other Transaction Document or for the enforcement of
any other legal, equitable or other remedy as the Trustee, being advised by
counsel, shall deem most effective to protect and enforce any of the rights of
the Trustee or the Holders. In furtherance of and without limiting the
generality of Section 8.01(d), the Trustee shall have the right to obtain,
before initiating any such action, such reasonable indemnity from the Investor
Certificateholders as the Trustee may require against the costs, expenses and
liabilities that may be incurred therein or thereby. Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or accept or
adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Investor Certificates, the Subordinated
Company Interests or the Exchangeable Company Interest or the rights of any
holder thereof, or authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
SECTION 8.14. Rights of Investor Certificateholders To Direct Trustee.
Except as otherwise provided in the applicable Supplement and in Section 9.02
hereof, holders of Investor Certificates evidencing more than 50% of the
Invested Amount of all Series (or, with respect to any remedy, trust or power
that does not relate to all Series, more than 50% of the Invested Amount of all
Series to which such remedy, trust or power relates) shall have the right to
direct the time, method, and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee; provided, however, that if Investor Certificateholders representing
more than 50% of the Invested Amount of any Series shall disagree with any
direction given to the Trustee pursuant to the terms of this Section 8.14, such
Investor Certificateholders shall be entitled to declare the Voluntary
Liquidation Date to have occurred with respect to such Series in accordance with
Section 9.02 hereof; provided, further, that nothing in any Pooling and
Servicing Agreements shall impair the right of the Trustee to take any action
deemed proper by the Trustee and which is not inconsistent
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with such direction of the Investor Certificateholders; provided, further that
in furtherance and without limiting the generality of Section 8.01(d), the
Trustee shall have the right to obtain, before acting in accordance with any
such direction of the Investor Certificateholders, such reasonable indemnity
from the Investor Certificateholders as the Trustee may require against the
costs, expenses and liabilities that may be incurred in so acting.
SECTION 8.15. Representations and Warranties of Trustee. The Trustee
represents and warrants that:
(a) the Trustee is a banking corporation organized, existing and in good
standing under the laws of the State of New York and is duly authorized to
exercise trust powers under applicable law;
(b) the Trustee has the power and authority to enter into this Agreement
and any Supplement, and has taken all necessary action to authorize the
execution, delivery and performance by it of this Agreement and any Supplement;
and
(c) each Pooling and Servicing Agreements and each of the Transaction
Documents executed by it have been duly executed and delivered by the Trustee
and, in the case of all such Transaction Documents, are legal, valid and binding
obligations of the Trustee, enforceable in accordance with their respective
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect affecting the enforcement of creditors, rights generally and except as
such enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity).
SECTION 8.16. Maintenance of Office or Agency. The Trustee will maintain
at its expense in the city of New York, an office or offices or agency or
agencies where notices and demands to or upon the Trustee in respect of the
Investor Certificates or any other Interests and the Pooling and Servicing
Agreements may be served. The Trustee will give prompt written notice to the
Company, the Master Servicer and the Holders of any change in the location of
the Certificate Register, the Exchange Register, the Subordinated Interest
Register or any such office or agency.
SECTION 8.17. Limitation of Liability. The Investor Certificates are
executed by the Trustee, not in its individual capacity but solely as Trustee of
the Trust, in the exercise of the powers and authority conferred and vested in
it by the Trust Agreement. Each of the undertakings and agreements made on the
part of the Trustee in the Investor Certificates is made and intended not as a
personal undertaking or agreement by the Trustee but is made and intended for
the purpose of binding only the Trust.
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ARTICLE IX
TERMINATION
SECTION 9.01. Termination of Trust.
(a) The Trust and the respective obligations and responsibilities of the
Company, the Servicer and the Trustee created hereby (other than the obligation
of the Trustee to make payments to Holders as hereafter set forth) shall
terminate, except with respect to any such obligations or responsibilities
expressly stated to survive such termination, on the earliest of (i) the last
day of the May, 2018 Settlement Period, (ii) at the option of the Master
Servicer, at any time when the Aggregate Invested Amount is zero and no Variable
Funding Certificates are then outstanding, (iii) following the occurrence of any
of the Early Amortization Events specified in Section 7.01 of this Agreement, at
any time when the Aggregate Invested Amount is zero and no Variable Funding
Certificates are then outstanding and (iv) upon completion of distribution of
the amounts referred to in Section 7.02 (b) (the "Trust Termination Date").
(b) If on the Distribution Date in the month immediately preceding the
month in which the Trust Termination Date occurs (after giving effect to all
transfers, withdrawals, deposits and drawings to occur on such date and the
payment of principal on any Series of Investor Certificates to be made on the
related Distribution Date pursuant to Article III hereof), the Invested Amount
of any Series would be greater than zero (as certified in writing by the Master
Servicer), the Trustee, at the written direction of Investor Certificateholders
representing more than 50% of the Aggregate Invested Amount of such Series (or
in the case of a Series having more than one Class of Investor Certificates,
Investor Certificateholders representing more than 50% of the Invested Amount of
each Class in such Series), shall make reasonable efforts to sell within 30 days
of such Distribution Date all of the Receivables. Upon such direction the
Trustee shall be entitled to engage an investment bank to carry out its
obligation to sell Receivables pursuant to this Section 9.01 and the Trustee
shall rely and shall be protected in acting or refraining from acting upon any
advice from any investment bank hired pursuant to the terms of this Section
9.01(b) to the extent provided for in Section 8.01. The proceeds of such sale
shall be treated as Collections on the Receivables and shall be allocated in
accordance with Article III hereof. During such 30-day period, the Servicer
shall continue to collect Collections on the Receivables and allocate
Collections in accordance with the provisions of Article III hereof. The
reasonable costs and expenses incurred by the Trustee (including the
commercially reasonable fees payable to any investment bank, if any) in such
sale shall be reimbursable to the Trustee as provided in Section 8.05.
SECTION 9.02. Termination Date of Investor Certificates of Any Series.
All principal or interest with respect to any Series of Investor Certificates
shall be due and payable no later than the Series Termination Date with respect
to such Series. Unless otherwise provided in a Supplement, in the event that (i)
the Invested Amount of any Series of Investor Certificates is greater than zero
on its Series Termination Date (after giving effect to all transfers,
withdrawals, deposits and drawings to occur on such date
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and the payment of principal to be made on such Series on such date) and upon
the written direction of Investor Certificateholders representing more than 50%
of the Invested Amount of such Series or, in the case of a Series having more
than one Class of Investor Certificates, Investor Certificateholders
representing more than 50% of the Invested Amount of each Class of such Series
or (ii) the Voluntary Liquidation Date with respect to any Series of Investor
Certificates has occurred, the Trustee will sell or cause to be sold and shall
be entitled to engage an investment bank to carry out such sale (and the Trustee
shall rely and shall be protected in acting or refraining from acting upon any
advice from any investment bank hired pursuant to the terms of this Section 9.02
to the extent provided for in Section 8.01) and pay the proceeds to all Investor
Certificateholders of such Series pro rata (except that unless expressly
provided to the contrary in the related Supplement, no payment shall be made to
Investor Certificateholders of any Class of any Series that is by its terms
subordinated to any other Class until such senior Class of Investor Certificates
have been paid in full) in final payment of all principal of and accrued
interest on such Series of Investor Certificates, an amount of Principal Amount
of Eligible Receivables (or interests therein) equal to 110% of the Invested
Amount with respect to such Series as soon as practicable after such Series
Termination Date or Voluntary Liquidation Date, as the case may be, plus related
amounts including interest owed by the Obligor with respect to such Receivables;
provided, however, that in no event shall such amount exceed the product of (i)
the Aggregate Principal Amount of Receivables on such Series Termination Date or
Voluntary Liquidation Date, as the case may be, and (ii) the Invested Percentage
for such Series; provided, however, in furtherance and without limiting the
generality of Section 8.01(d), the Trustee shall have the right to obtain,
before acting in accordance with any such direction of the Investor
Certificateholders for any Series, such reasonable indemnity from the Investor
Certificateholders providing such direction as the Trustee may require against
the costs, expenses and liabilities that may be incurred in so acting. Absent
such direction from Investor Certificateholders representing more than 50% of
the Invested Amount of such Series or absent such reasonable indemnity as the
Trustee may require in connection with such direction, the Trustee shall
continue to hold the Trust Assets in respect of such Series in accordance with
the terms of the Pooling and Servicing Agreements until the Trust Termination
Date (or until a majority of the Investor Certificateholders of the applicable
Series shall otherwise direct the Trustee); provided, that the terms of this
Agreement, the related Supplement and the Servicing Agreement shall be deemed to
remain in full force and effect, except that no additional Receivables shall be
allocated with respect to such Series. The reasonable costs and expenses
incurred by the Trustee in such sale shall be reimbursable to the Trustee as
provided in Section 8.05 hereof. Any proceeds of such sale in excess of such
principal and interest paid shall be paid to the holder of the Exchangeable
Company Interest, unless and to the extent otherwise specified in any applicable
Supplement. Upon the sale of Receivables as soon as practicable after the Series
Termination Date or Voluntary Liquidation Date, as the case may be, with respect
to the applicable Series, final payment of all amounts allocable to any Investor
Certificates of such Series shall be made in the manner provided in this Section
9.02.
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SECTION 9.03. Final Payment with Respect to Any Series.
(a) Written notice of any termination, specifying the Distribution Date
upon which the Investor Certificateholders of any Series may surrender their
Investor Certificates for payment of the final distribution with respect to such
series and cancellation, shall be given (subject to at least 30 days' prior
written notice from the Master Servicer to the Trustee containing all
information required for the Trustee's notice or such shorter period as is
acceptable to the Trustee) by the Trustee to Investor Certificateholders of such
Series mailed not later than the fifth day of the month of such final
distribution specifying (i) the Distribution Date upon which final payment of
the Investor Certificates will be made upon presentation and surrender of
Investor Certificates at the office or offices therein designated, (ii) the
amount of any such final payment and (iii) that the Record Date otherwise
applicable to such Distribution Date is not applicable, payments being made only
upon presentation and surrender of the Investor Certificates at the office or
offices therein specified. The Master Servicer's notice to the Trustee in
accordance with the preceding sentence shall be accompanied by an Officer's
Certificate setting forth the information specified in Section 4.03 of the
Servicing Agreement covering the period during the then current calendar year
through the date of such notice. The Trustee shall give such notice to the
Transfer Agent and Registrar and the Paying Agent at the time such notice is
given to such Investor Certificateholders.
(b) Notwithstanding the termination of the Trust pursuant to Section
9.01(a) hereof or the occurrence of the Series Termination Date or Voluntary
Liquidation Date with respect to any Series pursuant to Section 9.02 hereof, all
funds then on deposit in the Collection Account (but only to the extent
necessary to pay all outstanding and unpaid amounts to Holders) shall continue
to be held in trust for the benefit of the Holders and the Paying Agent or the
Trustee shall pay such funds to the Investor Certificateholders upon surrender
of their Investor Certificates in accordance with the terms hereof. Any Investor
Certificate not surrendered on the date specified in Section 9.03(a)(i) above
shall cease to accrue any interest provided for such Investor Certificate from
and after such date. In the event that any of the Investor Certificateholders
shall not have surrendered their Investor Certificates for cancellation within
six months after the date specified in the above-mentioned written notice, the
Trustee shall give a second written notice to the remaining Investor
Certificateholders of such Series to surrender their Investor Certificates for
cancellation and receive the final distribution with respect thereto. If within
one year after the second notice any of the Investor Certificates of such Series
shall not have been surrendered for cancellation, the Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to contact
the remaining Investor Certificateholders of such Series concerning surrender of
their Investor Certificates, and the cost thereof shall be paid out of the funds
in the Collection Account held for the benefit of such Investor
Certificateholders. The Trustee and the Paying Agent shall pay to the Company
upon request any monies held by them for the payment of principal or interest
that remains unclaimed for two years and neither the Trustee nor the Paying
Agent shall be liable to any Investor Certificateholder for such payment to the
Company
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upon its request. After payment to the Company, Holders entitled to the money
must look to the Company for payment as general creditors unless an applicable
abandoned property law designates another Person.
(c) All Investor Certificates surrendered for payment of the final
distribution with respect to such Investor Certificates and cancellation shall
be canceled by the Transfer Agent and Registrar and be disposed of in a
customary manner satisfactory to the Trustee.
SECTION 9.04. Company's Termination Rights. Upon the termination of the
Trust pursuant to Section 9.01 hereof and payment to the Trustee (in its
capacity as such and/or in its capacity as Successor Master Servicer) of all
amounts owed to it under any Pooling and Servicing Agreements, the Trustee shall
assign and convey to the Company (without recourse, representation or warranty)
in exchange for the Exchangeable Company Interest all right, title and interest
of the Trust in the Trust Assets, whether then existing or thereafter created,
and all proceeds thereof except for amounts held by the Trustee pursuant to
Section 9.03(b). The Trustee shall execute and deliver such instruments of
transfer and assignment, in each case without recourse, representation or
warranty, as shall be reasonably requested by the Company to vest in the Company
all right, title and interest which the Trust had in the Trust Assets.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. Amendment.
(a) Except as otherwise provided in this Agreement, the Servicing
Agreement and each Supplement in respect of an outstanding Series (collectively,
the "Pooling and Servicing Agreements") may be amended in writing from time to
time by the Master Servicer, the Company and the Trustee, without the consent of
any Holder, to cure any ambiguity, to correct or supplement any provisions
herein or therein which may be inconsistent with any other provisions herein or
therein or to add any other provisions hereof or to change in any manner or
eliminate any of the provisions with respect to matters or questions raised
under any Pooling and Servicing Agreements which shall not be inconsistent with
the provisions of any Pooling and Servicing Agreements; provided, however, that
prior written notice thereof shall be provided to each Agent and that such
action shall not, as evidenced by an Officer's Certificate delivered to the
Trustee, have a Material Adverse Effect, Seller Material Adverse Effect,
Servicer Material Adverse Effect or a Company Material Adverse Effect; provided
further that any amendment that is entered into to provide additional
Enhancement for any Series, to conform to regulations issued by the Internal
Revenue Service or that would provide any additional rights or benefits to
Holders or not adversely affect the interests of any Holder shall be deemed to
have no Material Adverse Effect, Company Material Adverse Effect, Seller
Material Adverse Effect or Servicer Material Adverse Effect. The Trustee may,
but shall not be obligated to, enter into any such amendment pursuant to this
subsection or
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subsections below which affects the Trustee's rights, duties or immunities under
any Pooling and Servicing Agreements or otherwise.
(b) Except as otherwise provided in the Pooling and Servicing Agreements
and, to the extent provided in any Pooling and Servicing Agreements, any other
agreement relating to the Receivables may also be amended (other than in the
circumstances referred to in the preceding subsection (a)) in writing from time
to time by the Master Servicer, the Company and the Trustee with the consent of
Investor Certificateholders evidencing more than 50% of the Invested Amount of
any Series adversely affected in any material respect by the amendment (or, if
such Series shall have more than one Class of Investor Certificates adversely
affected in any material respect, more than 50% of the Invested Amount of each
such Class) for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of such Pooling and Servicing
Agreements or such other agreement or of modifying in any manner the rights of
Holders of any Series then issued and outstanding; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, distributions which are required to be made on any Investor Certificate of
such Series without the consent of such Investor Certificateholder of such
Series; (ii) change the definition of or the manner of calculating the interest
of any Investor Certificateholder of such Series without the consent of such
Investor Certificateholder; or (iii) reduce the aforesaid percentage of the
Invested Amount of any adversely affected Series or Class the Holders of which
are required to consent to any such amendment without the consent of all
Investor Certificateholders of each Series adversely affected in any material
respect.
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(c) Notwithstanding anything in this Section 10.01 to the contrary, the
Supplement with respect to any Series may be amended on the terms and with the
procedures provided in such Supplement.
(d) Promptly after the execution of any such amendment or consent under
this Section 10.01, the Trustee shall furnish written notification of the
substance of such amendment to each Investor Certificateholder of each
Outstanding Series (or with respect to an amendment of a Supplement, to each
Investor Certificateholder of the applicable Series), and the Master Servicer
shall furnish written notification of the substance of such amendment to each
Rating Agency. No amendment under this Section 10.01 (including without
limitation, the amendment of any Supplement notwithstanding anything to the
contrary contained in any Supplement) shall be effective until the Rating Agency
Condition has been satisfied.
(e) It shall not be necessary for the consent of Investor
Certificateholders under this Section 10.01 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Investor Certificateholders shall
be subject to such reasonable requirements as the Trustee may prescribe.
(f) In executing or accepting any amendment pursuant to this Section
10.01, the Trustee shall, upon request, be entitled to receive and rely upon (i)
an Opinion of Counsel stating that such amendment is authorized pursuant to a
specific provision of a Pooling and Servicing Agreements and complies with such
provision, (ii) an Officer's Certificate stating that (A) such amendment shall
not adversely affect the interests of any Holders of any outstanding Investor
Certificates in any material respect except for Holders of any Series whose
consent to such amendment has been obtained in accordance with clause (b) of
this Section 10.01 and (B) all conditions precedent to the execution and
delivery of such amendment shall have been satisfied in full and (iii) a Tax
Opinion.
SECTION 10.02. Protection of Right, Title and Interest to Trust. The
Company shall cause each Pooling and Servicing Agreements, all amendments
thereto and/or all financing statements and continuation statements and any
other necessary documents covering the Holders' and the Trustee's right, title
and interest to the Trust to be promptly recorded, registered and filed, and at
all times to be kept recorded, registered and filed, all in such manner and in
such places as may be required by law fully to preserve and protect the right,
title and interest of the Trustee hereunder to all property comprising the
Trust. The Company shall deliver to the Trustee copies of, or filing receipts
for, any document recorded, registered or filed as provided above, as soon as
available following such recording, registration or filing. In the event that
the Company fails to file such financing or continuation statements and the
Trustee has received an Opinion of Counsel, at the expense of the Company, that
such filing is necessary to fully to preserve and to protect the Trustee's
right, title and interest in any Trust Asset then the Trustee shall have the
right to file the same on behalf of the Company and the Trustee shall be
reimbursed and indemnified by the Company for making such filing.
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SECTION 10.03. Limitation on Rights of Holders.
(a) The death or incapacity of any Holder shall not operate to terminate
this Agreement or the Trust, nor shall such death or incapacity entitle such
Holder's legal representatives or heirs to claim an accounting or to take any
action or commence any proceeding in any court for a partition or winding up of
the Trust, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) Except with respect to the Investor Certificateholders as expressly
provided in any Pooling and Servicing Agreements, no Holder shall have any right
to vote or in any manner otherwise control the operation and management of the
Trust, or the obligations of the parties hereto; nor shall any Holder be under
any liability to any third person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
(c) No Holder shall have any right by virtue of any provisions of this
Agreement to institute any suit, action or proceeding in equity or at law upon
or under or with respect to this Agreement, unless such Holder previously shall
have given to the Trustee, written request to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to initiate any such action, suit or proceeding; it being
understood and intended, and being expressly covenanted by each Holder with
every other Holder and the Trustee, that no one or more Holder(s) shall have any
right in any manner whatever by virtue or by availing itself or themselves of
any provisions of the Pooling and Servicing Agreements to affect, disturb or
prejudice the rights of any other of the Interests, or to obtain or seek to
obtain priority over or preference to any other such Holder, or to enforce any
right under this Agreement, except in the manner herein provided and for the
equal, ratable and common benefit of all Holders. For the protection and
enforcement of the provisions of this Section 10.03, each and every Holder and
the Trustee shall be entitled to such relief as can be given either at law or in
equity.
(d) By their acceptance of Interests pursuant to this Agreement and the
applicable Supplement, the Holders agree to the provisions of this Section
10.03.
SECTION 10.04. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO ANY CONFLICTS OF LAWS PRINCIPLES, EXCEPT TO THE EXTENT THAT ISSUES
OF PERFECTION ARE GOVERNED BY THE LAWS OF ANOTHER JURISDICTION.
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SECTION 10.05. Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or three days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows (i) in the case of the Company, the Master
Servicer and the Trustee, or to such other address as may be hereafter notified
by the respective parties hereto:
The Company:
▇▇▇▇▇▇ Funding Inc.
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Treasurer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The Master Servicer and the Servicer:
▇▇▇▇▇▇ Micro Inc.
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
Attention: U.S. Treasurer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The Trustee:
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Capital Markets Fiduciary Services
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
S & P:
Standard & Poor's Structured Finance Ratings
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Asset Backed Surveillance Department
Any notice required or permitted to be mailed to a Holder shall be given by
first-class mail, postage prepaid, at the address of such Holder as shown in the
Certificate Register, the Exchange Register or the Subordinated Interest
Register, as the case may be. Any notice so mailed within the time prescribed in
any Pooling and Servicing Agreements shall be conclusively presumed to have been
duly given, whether or not the Holder receives such notice.
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SECTION 10.06. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of any Pooling and Servicing
Agreements shall for any reason whatsoever be held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of such Pooling and Servicing
Agreements and shall in no way affect the validity or enforceability of the
other provisions of any Pooling and Servicing Agreements or of the Investor
Certificates or rights of the Holders.
SECTION 10.07. Assignment. Notwithstanding anything to the contrary
contained herein, no Pooling and Servicing Agreements may be assigned by the
Company or the Servicer without the prior written consent of 66 2/3% of the
Invested Amount of each Outstanding Series and without the Rating Agency
Condition having been satisfied with respect to such assignment.
SECTION 10.08. Investor Certificates Nonassessable and Fully Paid. It is
the intention of the parties to each Pooling and Servicing Agreements that the
Investor Certificateholders shall not be personally liable for obligations of
the Trust, that the interests in the Trust represented by the Investor
Certificates shall be nonassessable for any losses or expenses of the Trust or
for any reason whatsoever and that Investor Certificates upon authentication
thereof by the Trustee pursuant to Section 5.02 are and shall be deemed fully
paid.
SECTION 10.09. Further Assurances. The Company and the Master Servicer
agree to do and perform, from time to time, any and all acts and to execute any
and all further instruments required or reasonably requested by the Trustee more
fully to effect the purposes of each Pooling and Servicing Agreements,
including, without limitation, the execution of any financing statements or
continuation statements relating to the Receivables for filing under the
provisions of the UCC of any applicable jurisdiction.
SECTION 10.10. No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Trustee or the Investor
Certificateholders, any right, remedy, power or privilege hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exhaustive of any rights, remedies, powers and privileges provided by law.
SECTION 10.11. Counterparts. This Agreement may be executed in two or
more counterparts (and by different parties on separate counterparts), each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
SECTION 10.12. Third-Party Beneficiaries. This Agreement will inure to
the benefit of and be binding upon the parties hereto and the Holders and their
respective successors and permitted assigns. Except as otherwise provided in
this Section 10.12, no other Person will have any right or obligation hereunder.
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SECTION 10.13. Actions by Investor Certificateholders. Wherever in any
Pooling and Servicing Agreements a provision is made that an action may be taken
or a notice, demand or instruction given by Investor Certificateholders, such
action, notice or instruction may be taken or given by any Investor
Certificateholders of any Series, unless such provision requires a specific
percentage of Investor Certificateholders of a certain Series or all Series.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other act by an Investor Certificateholder shall bind such Investor
Certificateholder and every subsequent Holder of such Investor Certificate
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done or omitted to be done by the Trustee,
the Company, the Master Servicer or any Servicer in reliance thereon, whether or
not notation of such action is made upon such Investor Certificate.
SECTION 10.14. Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement and the Servicing Agreement.
This Agreement and the Servicing Agreement may not be modified, amended, waived,
or supplemented except as provided herein.
SECTION 10.15. Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
SECTION 10.16. Construction of Agreement.
(a) The Company hereby grants to the Trustee, for the benefit of the
Holders, a security interest in all of the Company' s right, title and interest
in, to and under the Receivables and the other Trust Assets now existing and
hereafter created, all monies due or to become due and all amounts received with
respect thereto and all "proceeds" thereof (including Recoveries), to secure all
of the Company's and the Master Servicer's obligations hereunder, including,
without limitation, the Company's obligation to sell or transfer Receivables
hereafter created to the Trust.
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(b) This Agreement shall constitute a security agreement under
applicable law.
SECTION 10.17. No Setoff. Except as expressly provided in this Agreement
or any other Transaction Document, the Trustee agrees that it shall have no
right of setoff or banker's lien against, and no right to otherwise deduct from,
any funds held in the Collection Account for any amount owed to it by the
Company, the Master Servicer, any Servicer or any Holder.
SECTION 10.18. No Bankruptcy Petition. Each of the Trustee and the
Master Servicer hereby covenant and agree that, prior to the date which is one
year and one day after the Trust Termination Date with respect to all
Outstanding Series, it will not institute against, or join any other Person in
instituting against, the Company any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any Federal or
state bankruptcy or similar law.
SECTION 10.19. Limitation of Liability. It is expressly understood and
agreed by the parties hereto that (a) each Pooling and Servicing Agreements is
executed and delivered by the Trustee, not individually or personally but solely
as Trustee of the Trust, in the exercise of the powers and authority conferred
and vested in it, (b) except with respect to Section 8.15 hereof, the
representations, undertakings and agreements herein made on the part of the
Trust are made and intended not as personal representations, undertakings and
agreements by the Trustee, but are made and intended for the purpose of binding
only the Trust, (c) nothing herein contained shall be construed as creating any
liability on the Trustee, individually or personally, to perform any covenant
either expressed or implied contained herein, all such liability, if any, being
expressly waived by the parties who are signatories to this Agreement and by any
Person claiming by, through or under such parties; provided, however, the
Trustee shall be liable in its individual capacity for its own willful
misconduct or negligence and for any tax assessed against the Trustee based on
or measured by any fees, commission or compensation received by it for acting as
Trustee and (d) under no circumstances shall the Trustee be personally liable
for the payment of any indebtedness or expenses of the Trust or be liable for
the breach or failure of any obligation, representation, warranty or covenant
made or undertaken by the Trust under any Pooling and Servicing Agreements;
provided, further, that this Section 10.19 shall survive the resignation or
removal of the Trustee and the termination of this Agreement.
The Company hereby agrees to indemnify and hold harmless the Trustee,
the Trust (for the benefit of the Holders) and the Holders (each, an
"Indemnified Person") from and against any loss, liability, expense, damage or
injury suffered or sustained by reason of any acts, omissions or alleged acts or
omissions arising out of, or relating to, activities of the Company pursuant to
any Pooling and Servicing Agreements to which it is a party, including but not
limited to any judgment, award, settlement, reasonable attorneys' fees and other
reasonable costs or expenses incurred in connection with the defense of any
actual or threatened action, proceeding or claim, except to the extent such
loss, liability, expense, damage or injury resulted from the negligence, bad
faith or willful
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misconduct of an Indemnified Person or resulted from the performance of any
Receivable, market fluctuations or other market or investment risk not
attributable to acts or omissions or alleged acts or omissions of the Company;
provided, however, that any payments to be made by the Company pursuant to this
subsection shall (i) be Company Subordinated Obligations, (ii) be made solely
from funds available to the Company that are not required to be applied to
Company Unsubordinated Obligations then due, and (iii) not constitute a general
recourse claim against the Company after satisfying all Company Unsubordinated
Obligations then due.
SECTION 10.20. Certain Information. The Master Servicer and the Company
shall promptly provide to the Trustee such information in computer tape, hard
copy or other form regarding the Receivables as the Trustee may reasonably
determine to be necessary to perform its obligations hereunder.
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IN WITNESS WHEREOF, the Company, the Master Servicer and the Trustee
have caused this Agreement to be duly executed by their respective officers as
of the day and year first above written.
▇▇▇▇▇▇ FUNDING INC.
By: /s/ P. ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Title: Attorney-in-Fact
▇▇▇▇▇▇ MICRO INC., as Master Servicer
By: /s/ P. ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Title: Senior Director & Worldwide
Assistant Treasurer
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Title: Vice President
Signature Page
to
Pooling Agreement
94
EXHIBIT A to the
Amended and Restated Pooling Agreement
FORM OF LOCKBOX AGREEMENT
________, 20__
[Name and address of Lockbox Bank]
Attention:
Ladies and Gentlemen:
▇▇▇▇▇▇ Funding Inc., a Delaware corporation (the "Company"), has agreed
to purchase certain receivables (the "Receivables") from ▇▇▇▇▇▇ Micro Inc. and
certain other sellers (the "Sellers"), and in their capacity as servicers
pursuant to the Transaction Documents, (the "Servicers") pursuant to the Amended
and Restated Receivables Sale Agreement, dated as of March 8, 2000 (as amended,
supplemented or otherwise modified from time to time, the "Receivables Sale
Agreement"), among the Sellers, the Servicer and the Company. The Company has in
turn assigned the Receivables to a master trust (the "Master Trust") pursuant to
an Amended and Restated Pooling Agreement, dated an of March 8, 2000 (as
amended, supplemented or otherwise modified from time to time, the "Pooling
Agreement"), among the Company, ▇▇▇▇▇▇ Micro Inc., as master servicer (the
"Master Servicer") and The Chase Manhattan Bank, a New York banking corporation,
as trustee (the "Trustee" or "Secured Party"). The Receivables are serviced
pursuant to the terms of an Amended and Restated Servicing Agreement dated as of
March 8, 2000 (as the same may be amended, supplemented or otherwise modified
from time to time, the "Servicing Agreement"; and, collectively with the Pooling
Agreement, the "Pooling and Servicing Agreements") among the Company, the Master
Servicer and the Trustee. Capitalized terms used herein but not defined herein
shall have the meanings assigned to such terms in the Pooling Agreement.
Pursuant to the terms of the Pooling and Servicing Agreements and except
as otherwise provided therein, (i) the Servicer party hereto has agreed to
instruct all Obligors under the Receivables originated by it as Seller to make
all payments in respect of such Receivables to a blocked deposit account (each,
a "Lockbox Account") designated by such Servicer to such Obligor and (ii) the
Company has agreed to grant a security interest in its right, title and interest
in each Lockbox Account and all funds and other evidences of payment held
therein to the Secured Party. Furthermore, the Company, such Servicer and the
Secured Party have agreed, pursuant to the Pooling and Servicing Agreements,
that the Servicer shall enter into an agreement with each bank maintaining a
Lockbox Account, and hereby request that [name of Lockbox Bank] (the "Lockbox
Bank") act, and the Lockbox Bank hereby agrees to act, as a lockbox deposit bank
for the Company with respect to the Lockbox Account. This Letter Agreement
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defines certain rights and obligations with respect to the appointment of the
Lockbox Bank.
Accordingly, the Company, the Servicer party hereto and the Lockbox Bank
agree as follows:
Reference is made to the Lockbox Account (Account No. ), including box
number thereunder (collectively, the "Specified Account"), maintained with you
by the Servicer party hereto. Such Servicer hereby transfers the Specified
Account to the Company and hereafter the Specified Account shall be in the name
of the Company and maintained by the Lockbox Bank for the benefit of the Company
and the Secured Party, as set forth herein. All funds and other evidences of
payment received by the Lockbox Bank in its capacity as Lockbox Bank shall be
deposited in the Specified Account. Such payments shall not be commingled with
other funds. All funds and other evidences of payment at any time on deposit in
the Specified Account shall be held by the Lockbox Bank for application strictly
in accordance with the terms of this Letter Agreement. The Lockbox Bank agrees
to give the Secured Party, the Company and the Servicer party hereto, prompt
notice if the Specified Account shall become subject to any writ, judgment,
warrant of attachment, execution or similar process.
The Secured Party shall have sole and exclusive dominion over and
control of the Specified Account and all Collections and other property from
time to time deposited therein, shall have the sole right of withdrawal from the
Specified Account and except as otherwise provided below and in the Pooling
Agreement, shall have the sole right as information agent to advise the Lockbox
Bank as to the payment instructions pertaining to transfers from the Specified
Account. Each of the Company and the Servicer acknowledge and agree that it
shall not have any dominion over or control of the Specified Account or any
Collections or other property from time to time deposited therein including any
right to withdraw or utilize any funds or other evidences of payment on deposit
in the Specified Account, other than the right to authorize transfers to the
Collection Account as set forth herein and pursuant to the terms of the Pooling
and Servicing Agreements. The Lockbox Bank shall automatically, by 1:00 p.m.,
_________________ time, at least as often as once each day that is a business
day for the Lockbox Bank and for the Trustee, transfer, by means of the
Automated Clearing House System, all available funds on deposit in the Specified
Account, including all funds transferred from Obligors on or before the end of
the preceding day, along with, subject to the next succeeding sentence, all
remittance advisements and payment invoices on deposit therein, to the
Collection Account provided such funds constitute good and clear monies. The
Lockbox Bank acknowledges that, until it receives instructions from the Secured
Party to the contrary, the Lockbox Bank shall return to the Company, upon the
Company's reasonable request therefor, any remittance advisements and payment
invoices deposited into the Specified Account.
Deposited checks with respect to the Specified Account returned to the
Lockbox Bank for any reason will be charged against the Specified Account.
Nothing contained in the previous sentence shall be construed to prejudice other
rights of the Lockbox Bank,
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which rights include the right of recourse against the Company for any
overdrafts in the Specified Account.
The Secured Party is authorized to receive mail delivered to the Lockbox
Bank with respect to the Specified Account and the Company has filed a form of
standing delivery order with the United States Postal Service authorizing the
Secured Party to receive mail delivered to the Lockbox Bank with respect to the
Specified Account.
The Lockbox Bank shall also furnish the Secured Party with statements,
in the form and manner typical for the Lockbox Bank, of amounts of deposits in,
and amounts transferred to the Collection Account from, the Specified Account
pursuant to any reasonable request of the Secured Party but in any event not
less frequently than monthly and such other information relating to the
Specified Account at such time as shall be reasonably requested by the Secured
Party.
For purposes of this Letter Agreement any officer of the Secured Party
shall be authorized to act, and to give instructions and notice, on behalf of
the Secured Party hereunder.
The fees for the services of the Lockbox Bank shall be mutually agreed
upon between the Company and the Lockbox Bank and paid by the Company. Neither
the Secured Party nor any investor in the Master Trust shall have any
responsibility or liability for the payment of any such fee.
The Lockbox Bank may perform any of its duties hereunder by or through
its officers, employees or agents and shall be entitled to rely upon the advice
of counsel as to its duties. The Lockbox Bank shall not be liable to the Secured
Party, the Servicer party hereto or the Company for any action taken or omitted
to be taken by it in good faith, nor shall the Lockbox Bank be responsible to
the Secured Party, such Servicer or the Company for the consequences of any
oversight or error of judgment or be answerable to the Secured Party for the
same, unless such action, omission, oversight or error of judgment shall happen
through the Lockbox Bank's negligence or willful misconduct.
The Lockbox Bank hereby represents and warrants that (a) it is a banking
corporation duly organized, validly existing and in good standing under the laws
of [ ] and has full corporate power and authority under such law to execute,
deliver and perform its obligations under this Agreement and (b) the execution,
delivery and performance of this Agreement by the Lockbox Bank have been duly
and effectively authorized by all necessary corporate action and this Agreement
has been duly executed and delivered by the Lockbox Bank and constitutes a valid
and binding obligation of the Lockbox Bank enforceable in accordance with its
terms.
The Lockbox Bank may resign at any time as Lockbox Bank hereunder by
delivery to the Secured Party and the Company of written notice of resignation
not less than 30 days prior to the effective date of such resignation. The
Company may close the Specified Account at any time by delivery of notice to the
Lockbox Bank and the Secured Party at the addresses appearing below. If the
Company shall refuse any demand by the
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Secured Party to close the Specified Account in the event (i) an Early
Amortization Event shall occur and be continuing or (ii) there has been a
failure by the Lockbox Bank to perform any of its material obligations hereunder
and such failure could adversely affect the Secured Party's interest in any
Receivable or the Secured Party's rights, or ability to exercise any remedies,
under this Letter Agreement or the Pooling and Servicing Agreements, then the
Secured Party may close the Specified Account at any time by delivery of notice
to the Lockbox Bank and the Company at the addresses appearing below. This
Letter Agreement shall terminate upon receipt of such notice of closing, or
delivery of such notice of resignation, except that the Lockbox Bank shall
immediately transfer to the Collection Account, or any other account designated
by the Secured Party all available funds or, subject to the Company's reasonable
request to retain such items, any remittance advisements or payment invoices, if
any, then on deposit in, or otherwise to the credit of, the Specified Account
and deliver any available funds or such remittance advisements or payment
invoices relating to the Receivables received by the Lockbox Bank after such
notice directly to the Collection Account or any other account designated by the
Secured Party.
All notices and communications hereunder shall be in writing (except
where telephonic instructions or notices are authorized herein) and shall be
deemed to have been received and shall be effective on the day on which
delivered (including delivery by telex):
(i) in the case of the Secured Party, to it at:
(ii) in the case of the Lockbox Bank, to it at:
(iii) in the case of the Company, to it at: ▇▇▇▇▇▇ Funding Inc.
(iv) in the case of the Master Servicer, to it at: ▇▇▇▇▇▇ Micro
Inc.
(v) in the case of the Servicer party hereto:
The Lockbox Bank shall not assign or transfer any of its rights or
obligations hereunder (other than to the Secured Party) without the prior
written consent of the Secured Party. Notwithstanding anything herein to the
contrary, upon the succession of the Master Servicer to the Servicer party
hereto in accordance with and under the Servicing Agreement, the Master Servicer
shall succeed to, and be substituted for, and may exercise every right and power
of, the Servicer party hereto under this Letter Agreement with the same effect
as if the Master Servicer had been named as the Servicer party hereto. This
Letter Agreement may be amended only by a written instrument executed by the
Company, the Master Servicer, the Servicer party hereto, the Secured Party and
the Lockbox Bank, acting by their representative officers thereunto duly
authorized. Except with respect to the amount of its fees payable hereunder, the
Lockbox Bank hereby unconditionally and irrevocably waives (so long as the
Pooling and Servicing Agreements are in effect) any rights of setoff or banker's
lien against, or to
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otherwise deduct from, any funds or other evidences of payment hold in any
Specified Account for any indebtedness or other claim owed by the Company or the
Master Servicer or any Servicer to the Lockbox Bank.
THIS LETTER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT THE VALIDITY
OR PERFECTION OF THE SECURITY INTEREST OR REMEDIES HEREUNDER IN RESPECT OF ANY
RECEIVABLE MAY BE GOVERNED BY THE LAW OF A JURISDICTION OTHER THAN NEW YORK.
This Letter Agreement (i) shall inure to the benefit of, and be binding
upon, the Company, the Master Servicer, the Servicer party hereto, the Secured
Party, the Lockbox Bank and their respective successors and assigns and (ii) may
be executed in two or more counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the same instrument.
Delivery of an executed counterpart of a signature page to this Letter Agreement
by facsimile transmission shall be effective as delivery of a manually executed
counterpart of this Letter Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Letter Agreement
to be executed by their duly authorized officers as of the date first above
written.
Very truly yours,
▇▇▇▇▇▇ FUNDING INC.
By:
---------------------------------
Name:
Title:
as Servicer
By:
---------------------------------
Name:
Title:
▇▇▇▇▇▇ MICRO INC.,
as Master Servicer
By:
---------------------------------
Name:
Title:
Agreed to and accepted:
[NAME OF LOCKBOX BANK],
as Lockbox Bank
By:
---------------------------------
Name:
Title:
Acknowledged:
THE CHASE MANHATTAN BANK, as Secured Party
By:
---------------------------------
Name:
Title:
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EXHIBIT B to the
Amended and Restated Pooling Agreement
FORM OF ANNUAL OPINION OF COUNSEL
-----------------
To the Trustee:
Re: ▇▇▇▇▇▇ Funding Master Trust
Ladies and Gentlemen:
I am the General Counsel of ▇▇▇▇▇▇ Micro Inc., a Delaware corporation
(the "Company"), and am furnishing you this opinion pursuant to Section 2.07(b)
of the Amended and Restated Pooling Agreement dated as of March 8, 2000 among
▇▇▇▇▇▇ Funding Inc. ("Funding"), the Company and The Chase Manhattan Bank, as
Trustee (the "Pooling Agreement"). Capitalized terms used but not defined herein
shall, unless the context otherwise requires, have the meanings assigned to them
in the Pooling Agreement.
In connection with this opinion, I have examined each of the following
documents:
(i) Executed copies of the Pooling Agreement, the Servicing
Agreement and the Receivables Sale Agreement;
(ii) Originals or photocopies of the following (collectively, the
"Financing Statements");
[List Financing Statements]
(iii) The originals or copies, certified or otherwise identified to my
satisfaction, of such records of the Company and Funding,
and any such agreements, certificates of public officials,
certificates of officers or representatives of the Company and
such other documents, certificates and records as I have deemed
necessary or appropriate as a basis for the opinion set forth
herein.
In my examination, I have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to me as originals, the conformity to original documents of all
documents submitted to me as certified or photostatic copies, and the
authenticity of the originals of such latter documents. In making my examination
of documents executed by parties other than the Company and Funding, I have
assumed that such parties had the power, corporate or other, to enter into and
perform all obligations thereunder and have also assumed the due authorization
by all requisite action, corporate or other, and execution and delivery by
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such parties of such documents and the validity and binding effect thereof. As
to any facts material to the opinions expressed herein which were not
independently established or verified, I have relied upon oral or written
statements and representations of officers and other representatives of the
Company and others. Nothing has come to my attention that would indicate that
any of such statements or representations are inaccurate.
I am licensed to practice law in the States of [indicate state or
states], and do not purport to be an expert on the laws of any other
jurisdiction other than the federal laws of the United States.
Based on the foregoing, I am of the opinion that no filing or other
action is necessary from the date hereof through [indicate date] to continue the
perfected status of the interest of the Trust in the collateral described in the
Financing Statements. I call to your attention, however, that, if one of the
Debtors named in the Financing Statements changes its name, identity or
corporate structure during such period so as to make one of the Financing
Statements seriously misleading, it will be necessary to file an appropriate
financing statement indicating the new name, identity or corporate structure.
This opinion is furnished to you solely for your benefit and is not to
be used, circulated, quoted or otherwise referred to for any other purpose
without my express prior written permission.
Respectfully submitted,
[General Counsel]
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EXHIBIT C to the
Amended and Restated Pooling Agreement
SCHEDULE OF FISCAL MONTHS OF THE MASTER SERVICER
Attached.
103
[▇▇▇▇▇▇ MICRO LOGO]
MEMORANDUM
TO: U.S. Senior Staff
FROM: ▇▇▇▇ ▇▇▇▇▇▇, Director - General Accounting
DATE: October 5, 1998
SUBJECT: MONTH-END CLOSING DATES - 1999 & 2000
For your reference, I have listed below our month-end closing dates for the next
two years. Also attached are the 1999 General Ledger Closing and 1999 Payroll
Distribution Calendars. Please distribute copies to your staff as needed.
MONTH 1999 2000 LENGTH
JANUARY January 30 January 29 4 Weeks
FEBRUARY February 27 February 26 4 Weeks
MARCH April 3 April 1 5 Weeks
APRIL May 1 April 29 4 Weeks
MAY May 29 May 27 4 Weeks
JUNE July 3 July 1 5 Weeks
JULY July 31 July 29 4 Weeks
AUGUST August 28 August 26 4 Weeks
SEPTEMBER October 2 September 30 5 Weeks
OCTOBER October 30 October 28 4 Weeks
NOVEMBER November 27 November 25 4 Weeks
DECEMBER January 1, 2000 December 30 5 Weeks
104
SCHEDULE 2 to
the Amended and Restated Pooling Agreement
IDENTIFICATION OF THE TRUST ACCOUNTS
DDA # Account Name
----- ------------
323-300065 ▇▇▇▇▇▇ Funding Master Trust Collection Acct
323-300634 ▇▇▇▇▇▇ Funding Mstr Tr Cmpny Coll Sb A/C
105
SCHEDULE 3 TO
POOLING AGREEMENT
Chief Executive Office of the Company:
▇▇▇▇ ▇. ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
2