FIRST AMENDMENT TO
SALE AND SERVICING AGREEMENT
AND
FIRST AMENDMENT TO
TRUST AGREEMENT
FIRST AMENDMENT TO SALE AND SERVICING AGREEMENT and FIRST AMENDMENT TO
TRUST AGREEMENT (this "Amendment"), dated as of January 31, 1996, by and among
Hattiesburg Gas Storage Company, a Delaware general partnership ("HGSC"),
Hattiesburg Industrial Gas Sales Company, a Delaware corporation ("HIG"),
Wilmington Trust Company, as Owner Trustee (the "Owner Trustee"), and FRGC Owner
Trust, a Delaware business trust (the "Trust").
WITNESSETH:
WHEREAS, HGSC, HIG and the Owner Trustee entered into the Trust Agreement
dated as of November 21, 1995 (the "Trust Agreement"), providing for the
formation of the Trust;
WHEREAS, HGSC, HIG and the Trust entered into the Sale and Servicing
Agreement dated as of November 21, 1995 (the "S&S Agreement"), providing for the
sale to the Trust of certain receivables of HGSC and HIG, and pursuant to which
HIG agreed to act as servicer of such receivables;
WHEREAS, pursuant to Article XI of the Trust Agreement and Article IX of
the S&S Agreement, the parties hereto desire to amend certain definitions
contained in Appendix A to the S&S Agreement, which definitions also apply to
the Trust Agreement pursuant to Article I of the Trust Agreement, in order to
resolve an ambiguity with respect to certain distribution calculations and
payment provisions; and
WHEREAS, the parties hereto desire to reaffirm the provisions of the Trust
Agreement and the S&S Agreement subject to the amendments contained herein;
NOW, THEREFORE, in consideration of the premises and of the mutual terms
and covenants contained herein, the parties hereto agree as follows:
1. All capitalized terms used and not otherwise defined herein shall have
the meanings given such terms in the Trust Agreement and the S&S Agreement.
2. APPENDIX A to the S&S Agreement is hereby amended and restated in its
entirety as set forth in APPENDIX A attached hereto (the only changes to such
APPENDIX A intended by the parties in this Amendment are changes to the
definitions of the terms "Monthly Fixed Return" and "Total Available Amount").
Pursuant to Article I of the Trust Agreement, such amendment shall also apply to
the Trust Agreement to the extent applicable.
3. This Amendment may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute but one and the same
instrument.
4. This Amendment shall be governed by, construed and enforced in
accordance with the laws of the State of New York, excluding choice-of-law
principles of the laws of such State that would require the application of the
laws of a jurisdiction other than such State.
5. As amended by this Amendment, the Trust Agreement and the S&S
Agreement remain in full force and effect and the parties hereto hereby reaffirm
the Trust Agreement and the S&S Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective officers as of the day and year first above
written.
HATTIESBURG GAS STORAGE COMPANY
By: HATTIESBURG INDUSTRIAL GAS
SALES COMPANY,
its General Partner
By: /s/ X. X. Xxxxxx
---------------------------------------------
X. X. Xxxxxx, Vice President
HATTIESBURG INDUSTRIAL GAS SALES
COMPANY
By: /s/ X. X. Xxxxxx
---------------------------------------------
X. X. Xxxxxx, Vice President
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: /s/ W. Xxxxx Xxxxxxxxxx
---------------------------------------------
Name: W. Xxxxx Xxxxxxxxxx
-------------------------------------------
Title: Financial Services Officer
------------------------------------------
FRGC OWNER TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: /s/ W. Xxxxx Xxxxxxxxxx
----------------------------------------
Name: W. Xxxxx Xxxxxxxxxx
--------------------------------------
Title: Financial Services Officer
-------------------------------------
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This Amendment has been consented to by the Investor Certificateholders
pursuant to Section 11.1 of the Trust Agreement and Section 9.1 of the S&S
Agreement.
PACIFIC MUTUAL LIFE INSURANCE
COMPANY
By: /s/ Xxxxxx X. Milfs By: /s/ Xxxxxxx X. Xxxxxxx
--------------------- ---------------------------------------------
Name: Xxxxxx X. Milfs Name: Xxxxxxx X. Xxxxxxx
------------------- -------------------------------------------
Title: Secretary Title: Assistant Vice President
------------------ ------------------------------------------
GREAT-WEST LIFE & ANNUITY
INSURANCE COMPANY
By: /s/Xxxxx Xxxx
---------------------------------------------
Name: Xxxxx Xxxx
-------------------------------------------
Title: Manager
Private Placement Investments
------------------------------------------
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxx
-------------------------------------------
Title: Assistant Vice President
Private Placement Investments
------------------------------------------
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This Amendment is consented to by all the Noteholders and, at the direction
of all the Noteholders hereby, by the Indenture Trustee pursuant to Section
5.5(d) of the Collateral Sharing and Security Agreement.
PACIFIC MUTUAL LIFE INSURANCE
COMPANY
By: /s/ Xxxxxx X. Milfs By: /s/ Xxxxxxx X. Xxxxxxx
--------------------- ---------------------------------------------
Name: Xxxxxx X. Milfs Name: Xxxxxxx X. Xxxxxxx
------------------- -------------------------------------------
Title: Secretary Title: Assistant Vice President
------------------ ------------------------------------------
THE MUTUAL LIFE INSURANCE COMPANY
OF NEW YORK
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxx
-------------------------------------------
Title: Managing Director
------------------------------------------
MONY LIFE INSURANCE COMPANY OF
AMERICA
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxx
-------------------------------------------
Title: Authorized Agent
------------------------------------------
PROVIDENT LIFE AND ACCIDENT
INSURANCE COMPANY
By: /s/ Xxxxx Xxxxxx
---------------------------------------------
Name: Xxxxx Xxxxxx
-------------------------------------------
Title: Vice President Securities Department
------------------------------------------
GREAT-WEST LIFE & ANNUITY
INSURANCE COMPANY
By: /s/Xxxxx Xxxx By: /s/ Xxxxx X. Xxxxxx
------------------------ ---------------------------------------------
Name: Xxxxx Xxxx Name: Xxxxx X. Xxxxxx
---------------------- -------------------------------------------
Title: Manager Private Title: Assistant Vice President
Placement Investments Private Placement Investments
--------------------- ------------------------------------------
CHEMICAL BANK, as Indenture Trustee
By: /s/ Xxxxxx Xxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxx
-------------------------------------------
Title: Trust Officer
------------------------------------------
-5-
APPENDIX A
PART I - TRUST DEFINITIONS
All terms defined in this Appendix shall have the defined meanings
when used in any of the Basic Trust Documents, unless otherwise defined therein.
ADDITIONAL DISTRIBUTIONS: With respect to any Distribution Date, if
Liquidated Damages have been paid since the Closing Date or the immediately
preceding Distribution Date, as applicable, and such payment was required to be
made as a result of a default by any FRGC Party intended to cause the payment of
Liquidated Damages (with any FRGC Party being presumed for purposes of this
definition to have intended any default that was reasonably within the ability
or control of any FRGC Party to avoid or prevent), an amount equal to the
applicable Fixed Percentage for such Distribution Date multiplied by the
Additional Net Distribution Amount.
ADDITIONAL NET DISTRIBUTION AMOUNT: With respect to any Distribution
Date, the amount determined pursuant to clause (iii) of the definition of
Aggregate Return of Capital.
AFFILIATE: With respect to any specified Person, any other Person
controlling, controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
AGGREGATE FIXED RETURN: With respect to any Distribution Date, the
sum of (i) the Monthly Fixed Return for such Distribution Date, (ii) any
outstanding Fixed Return Shortfall as of the close of the preceding Distribution
Date and (iii) one-twelfth of the Fixed Return Rate multiplied by the Fixed
Return Shortfall as of the close of the preceding Distribution Date.
AGGREGATE RETURN OF CAPITAL: With respect to any Distribution Date,
the sum of (i) the Monthly Return Of Capital for such Distribution Date,
(ii) any outstanding Return Of Capital Shortfall as of the close of the
preceding Distribution Date and (iii) 79.5% of the Liquidated Damages Amount
required to be paid to the Trust and that has not previously been paid to the
Trust; provided that to the extent the amount determined pursuant to this
clause (iii) would cause the Investor Certificate Balance on such Distribution
Date to be decreased below the aggregate Discounted Present Value of all
Purchased Contract Receivables with respect to which Liquidated Damages have not
been paid, then the amount to be used for purposes of this clause (iii) shall be
reduced to the amount necessary to prevent such event.
BASIC DOCUMENTS: The Basic Trust Documents and the Basic Note
Documents (as defined in the Indenture).
BASIC TRUST DOCUMENTS: The Certificates, the Certificate Purchase
Agreements, the Certificate of Trust, the Trust Agreement, the Sale and
Servicing Agreement, the Guarantees, the Mortgage and the Collateral Sharing and
Security Agreement.
BENEFIT PLAN: As defined in Section 3.5 of the Trust Agreement.
BUSINESS DAY: Any day other than a Saturday, a Sunday or any other
day on which banking institutions in New York, New York or Wilmington, Delaware
are authorized or obligated by law, executive order or governmental decree to be
closed.
BUSINESS INTERRUPTION INSURANCE: As defined in Section 3.2(q) of the
Sale and Servicing Agreement.
BUSINESS TRUST STATUTE: Chapter 38 of Title 12 of the Delaware Code,
12 DEL. CODE Sections 3801 ET SEQ., as the same may be amended from time to
time.
CAPITAL ACCOUNT: As defined in Section 6.1 of the Trust Agreement.
CERTIFICATEHOLDER: An Investor Certificateholder or a Residual
Certificateholder.
CERTIFICATE OF TRUST: The certificate of trust of the Trust
substantially in the form of EXHIBIT C to the Trust Agreement to be filed for
the Trust pursuant to Section 3810(a) of the Business Trust Statute.
CERTIFICATE PURCHASE AGREEMENTS: The several certificate purchase
agreements, dated as of November 21, 1995, among the Trust, HGSC, HIG and the
respective purchasers named therein, providing for the sale and purchase of the
Investor Certificates.
CERTIFICATES: The Investor Certificates and the Residual Certificate.
CLOSING CONDITIONS: The conditions to the closing of the transactions
contemplated by the Basic Documents which are set forth on Appendix C to the
Sale and Servicing Agreement and Schedule 3 to the Trust Agreement.
CLOSING DATE: November 22, 1995.
CODE: The Internal Revenue Code of 1986, as amended from time to
time, and the Treasury Regulations promulgated thereunder.
COLLATERAL SHARING AND SECURITY AGREEMENT: The Collateral Sharing and
Security Agreement substantially in the form of EXHIBIT C to the Sale and
Servicing Agreement, as amended and supplemented from time to time.
COLLATERAL TRUSTEE: As defined in the Collateral Sharing and Security
Agreement.
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COLLECTED AMOUNT: With respect to any Distribution Date, the total
collections (other than payments of Liquidated Damages) received by the Trust in
respect of the Purchased Contract Receivables during the Monthly Period relating
to such Distribution Date.
COLLECTION ACCOUNT: The account designated as such, established and
maintained pursuant to Section 5.1(a) of the Trust Agreement.
CONSOLIDATED NET WORTH: Of the Residual Certificateholder, as of any
date, all amounts that would be included under partnership capital or
stockholders' equity, as the case may be, of the Residual Certificateholder,
determined on a fair market value basis, by the general partner or the Board of
Directors of the Residual Certificateholder in good faith, minus the amount of
the Investor Certificates and the Residual Certificate held by the Residual
Certificateholder.
CONTRACT: Each of the contracts described on Schedule 2 to the Sale
and Servicing Agreement.
CONTRACT RECEIVABLES: With respect to each Contract, the indebtedness
and payment obligations arising from or relating to storage charges designated
in such Contract as "D1" and deliverability charges designated as "D2"
(including, without limitation, any Contract Regulatory Receivables).
CONTRACT REGULATORY RECEIVABLES: With respect to any Contract, any
increase in the Contract Receivables in respect of such Contract arising from or
relating to a redetermination by the appropriate regulatory body of the storage
or deliverability charges payable thereunder in accordance with the terms of
such Contract, excluding any Contract Regulatory Receivables relating to a
Contract for which Liquidated Damages have been paid pursuant to Section 5.2 of
the Sale and Servicing Agreement.
CONTRACTUAL OBLIGATION: 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.
CORPORATE TRUST OFFICE: With respect to the Owner Trustee, the
principal office at which at any particular time the corporate trust business of
the Owner Trustee shall be administered, which offices at the Closing Date are
located at 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx, Attention: Corporate
Trust Administration.
CRYSTAL: Crystal Oil Company, a Louisiana corporation.
CUT-OFF DATE: December 1, 1995.
DISCOUNTED PRESENT VALUE: As of any Distribution Date with respect to
the Purchased Contract Receivables, the sum of the amounts set forth on
Schedule 4 to the Sale and Servicing Agreement as the "Liquidated Damages
Amount" for each Purchased
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Contract Receivable after giving effect to the distributions paid on such
Distribution Date.
DISTRIBUTION DATE: With respect to a Monthly Period, the fifth day of
the next succeeding calendar month or, if such fifth day is not a Business Day,
the next succeeding Business Day, commencing January 5, 1996.
ELIGIBLE ACCOUNT: A segregated trust account with an Eligible
Institution.
ELIGIBLE INSTITUTION: A depository institution organized under the
laws of the United States of America or any State (or any domestic branch of a
foreign bank), (A) which either (1) has a long-term unsecured debt rating of at
least A+ from the Rating Agency at the time of any deposit therein (or, if such
obligations are at the time of such deposit not rated by the Rating Agency but
are rated at least A+ by Standard & Poor's ("S&P") and at least A1 by Xxxxx'x
Investor Services Inc. ("Moody's"), provided that if such obligations are rated
by only one of S&P or Moody's, such rating shall be sufficient) or (2) is a
federal or state charter depository institution subject to regulations regarding
fiduciary funds on deposit substantially similar to 12 C.F.R. Section 9.10(b),
(B) whose deposits are insured by the FDIC and (C) having a combined capital and
surplus of at least $250,000,000 as set forth in its most recent published
annual report of condition.
ELIGIBLE INVESTMENTS: Book-entry securities, negotiable instruments
or securities represented by instruments in bearer or registered form which
evidence:
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States of America;
(ii) demand deposits, time deposits or certificates of deposit of
any depository 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 depository 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 the Rating Agency (or an
equivalent of S&P or Moody's) for short-term unsecured debt obligations or
certificates of deposit granted thereby of at least D-1 (or an equivalent
of S&P or Moody's);
(iii) commercial paper having, at the time of the investment or
contractual commitment to invest therein, a rating from the Rating Agency
(or an equivalent of S&P or Moody's) for short-term unsecured debt
obligations granted thereby of at least D-1 (or an equivalent of S&P or
Moody's);
(iv) investments in money market or common trust funds having a
rating from the Rating Agency (or an equivalent of S&P or Moody's) for
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short-term unsecured debt obligations granted thereby of at least D-1 (or
an equivalent of S&P or Moody's) (including funds for which the Owner
Trustee or any of its Affiliates is investment manager or advisor, so long
as such fund shall have such rating);
(v) bankers' acceptances issued by any depository institution or
trust company referred to in clause (ii) above; and
(vi) 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 (ii);
in each case maturing not later than the Business Day immediately preceding the
next Distribution Date.
ELIGIBLE OBLIGOR: Any Obligor listed on Schedule 1 to the Sale and
Servicing Agreement.
ELIGIBLE RECEIVABLE: Each Contract Receivable:
a. that constitutes 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;
b. that is denominated and payable only in United States dollars in
the United States;
c. that was created in the ordinary course of business from the
sale of services of the Seller and in accordance with its historical credit
and collection policies;
d. with respect to which all installments due and payable prior to
the Closing Date have been paid in full;
e. that, together with the Contracts underlying such Contract
Receivable, was created in accordance with and does not contravene any
applicable law, rule or regulation and in connection with which the Seller
is not in violation of any law, rule or regulation;
f. that is not a Contract Receivable purchased by the Seller from
any Person;
g. that is not a Contract Receivable for which the Seller has
established an offsetting specific reserve;
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h. with respect to which all material consents, licenses, approvals
or authorizations of, or registrations or declarations with, any
Governmental Authority required to be obtained, effected or given by the
Seller in connection with the creation of such Contract Receivable and the
related Contract have been duly obtained, effected or given and are in full
force and effect;
i. which has not been satisfied, subordinated or rescinded and with
respect to which the Seller is not in default in any material respect under
the terms of the Contract from which such Contract Receivable arose;
j. which through the Basic Trust Documents has been the subject of
either (A) a valid sale and assignment from the Seller to the Trust of all
the Seller's right, title and interest therein (including any proceeds
thereof) which results in the Trust having good title thereto, or (B) if
not (A), the grant of a first priority perfected security interest therein
(and in the proceeds thereof) to the Trust, in the case of each of
clauses (A) and (B), free and clear of all Liens other than Permitted
Liens;
k. with respect to which the Seller or its designee has duly given
all notices of assignment in form and substance required to permit the
legal, valid and enforceable assignment of such Contract Receivable by the
Seller to the Trust, and is otherwise in compliance in all material
respects with applicable law, all such notices are in full force and effect
and such Contract Receivable is not subject to any right of rescission or
set-off or, to the extent currently payable or asserted, any right of
counterclaim or any other defense that is enforceable against the Trust;
l. that, together with the related Contract, will at all times
(including after giving effect to the assignment of the Purchased Contract
Receivables to the Trust) be the legal, valid and binding payment
obligation and contract, as the case may be, of the Obligor thereon,
enforceable against such Obligor in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting the enforcement of creditors' rights in general and
by general principles of equity, regardless of whether such enforceability
is considered in a proceeding in equity or at law, and except as to any
immaterial provision of any Contract the lack of enforceability of which
would not affect the enforceability of the payment obligations of the
Obligor in respect of any Purchased Contract Receivable;
m. with respect to which, on or before the Closing Date, the Seller
has not (i) taken any action that would impair the rights of the Trust or
the holders of the Investor Certificates with respect to the Purchased
Contract Receivables or the other Purchased Property or (ii) failed to take
any action, that was necessary to avoid impairing the rights of the Trust
or the holders of the Investor Certificates; and
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n. with respect to which no action, claim or proceeding is pending
or, to the knowledge of Seller, threatened which would adversely affect the
payment or enforceability of the Purchased Contract Receivables.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
EVENT OF FORCE MAJEURE: An event of "force majeure" (as such term is
defined in each Contract).
EXCESS PAYMENTS: As defined in the definition of Liquidated Damages
Amount.
FDIC: Federal Deposit Insurance Corporation or any successor agency.
FIXED PERCENTAGE: With respect to any Distribution Date, the
percentage set forth on Schedule 4 to the Sale and Servicing Agreement for such
Distribution Date.
FIXED RETURN RATE: 7.52%
FIXED RETURN SHORTFALL: With respect to the close of any Distribution
Date, the Aggregate Fixed Return for such Distribution Date that was not paid on
such Distribution Date.
FRGC: First Reserve Gas Company, a Delaware corporation.
FRGC PARTIES: Collectively, FRGC, HIG, HGSC and any successors or
permitted assigns to any of them.
GAAP: Generally accepted accounting principles in the United States
of America in effect from time to time.
GENERAL ACCOUNT ASSETS: The assets of an Investor Certificateholder
that is an insurance company, other than assets allocated to a "separate
account" (as defined in ERISA) maintained by such Investor Certificateholder.
GOVERNMENTAL AUTHORITY: 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.
GUARANTEE: The Guarantee substantially in the form of EXHIBIT A to
the Sale and Servicing Agreement, as amended and supplemented from time to time.
HGSC: Hattiesburg Gas Storage Company, a Delaware general
partnership.
HIG: Hattiesburg Industrial Gas Sales Company, a Delaware
corporation.
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INDEBTEDNESS: Of any Person at any date: (i) all indebtedness of
such Person for borrowed money or for the deferred purchase price of property or
services (other than current trade liabilities incurred in the ordinary course
of business and payable in accordance with customary practices); (ii) any other
indebtedness which is evidenced by a note, bond, debenture or similar
instrument; (iii) all capital lease obligations of such Person; (iv) all
obligations of such Person in respect of outstanding letters of credit,
acceptances and similar obligations created for the account of such Person; and
(v) all liabilities secured by any Lien on any property owned by such Person
even though such Person has not assumed or otherwise become liable for the
payment thereof. The Indebtedness of any Person shall include any Indebtedness
of any partnership in which such Person is the general partner.
INDENTURE: The Indenture, dated as of November 21, 1995, among HGSC,
HIG and the Indenture Trustee, as amended and supplemented from time to time.
INDENTURE TRUSTEE: Chemical Bank, not in its individual capacity but
solely as trustee under the Indenture, or any successor trustee under the
Indenture.
INITIAL INVESTORS: The purchasers of the Investor Certificates
pursuant to the Certificate Purchase Agreement.
INITIAL REQUIRED NET WORTH: $1,000,000.
INITIAL RESIDUAL CAPITAL: $8,836,332.40.
INSOLVENCY EVENT: With respect to a specified Person, (i) the entry
of a decree or order by a court, agency or supervisory authority having
jurisdiction in the premises for the appointment of a trustee, conservator,
receiver, liquidator or other similar official for such Person, in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of such
Person's affairs, and the continuance of any such decree or order unstayed and
in effect for a period of 60 consecutive days; (ii) the consent by such Person
to the appointment of a trustee, conservator, receiver, liquidator or other
similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or relating to
such Person or of or relating to substantially all of such Person's property, or
(iii) such Person shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, make an assignment
for the benefit of its creditors or voluntarily suspend payment of its
obligations.
INSTITUTIONAL INVESTOR: (a) any original purchaser of an Investor
Certificate, (b) any Investor Certificateholder holding more than 25% of the
Investor Certificate Balance and (c) any bank, trust company, savings and loan
association or other financial institution, any pension plan, any investment
company, any insurance company, any broker or dealer, or any other similar
financial institution or entity, regardless of legal form.
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INVESTMENT ACCOUNT: As defined in Section 5.1(b) of the Trust
Agreement.
INVESTOR CERTIFICATE: Any of the investor certificates executed by
the Owner Trustee and authenticated by the Owner Trustee in substantially the
form set forth in EXHIBIT A to the Trust Agreement.
INVESTOR CERTIFICATE BALANCE: Initially, as of the Closing Date,
$33,956,317.84 and, on any Distribution Date thereafter, the initial Investor
Certificate Balance reduced by all distributions in respect of Aggregate Return
Of Capital actually made to Investor Certificateholders on or prior to such date
pursuant to clause (ii) of Section 5.2(d) of the Trust Agreement and, when the
term is used with respect to any Investor Certificate, such Investor
Certificate's pro rata portion of the Investor Certificate Balance of all
Investor Certificates.
INVESTOR CERTIFICATEHOLDER: A Person in whose name an Investor
Certificate is registered pursuant to the terms of the Trust Agreement.
INVESTOR CERTIFICATE REGISTER: The register of Investor Certificates
specified in Section 3.4 of the Trust Agreement.
INVESTOR CERTIFICATE REGISTRAR: The registrar at any time of the
Investor Certificate Register, appointed pursuant to Section 3.4 of the Trust
Agreement.
LIEN: Any security interest, lien, charge, pledge, equity or
encumbrance of any kind.
LIQUIDATED DAMAGES: As defined in Section 5.2(a) of the Sale and
Servicing Agreement.
LIQUIDATED DAMAGES AMOUNT: With respect to any payment of Liquidated
Damages, for a specific Purchased Contract Receivable (i) the amount set forth
on Schedule 4 to the Sale and Servicing Agreement for such Purchased Contract
Receivable as the "Liquidated Damages Amount" for the Distribution Date
immediately preceding the date of the breach triggering the obligation to pay
such Liquidated Damages minus (ii) all payments received by the Trust on such
Purchased Contract Receivable since such Distribution Date and prior to the date
on which the Liquidated Damages are paid.
LOCKBOX: The post office boxes to which the Obligors may be
instructed to remit payments on the Purchased Contract Receivables.
LOCKBOX ACCOUNT: Any intervening deposit account, established in the
name of the Owner Trustee, used for deposit of funds received in a Lockbox prior
to their transfer to the Collection Account.
MAJORITY CERTIFICATEHOLDERS: Investor Certificateholders whose
Investor Certificates represent greater than 50 percent of the Voting Interests
as of the close of the preceding Distribution Date.
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MATERIAL ADVERSE EFFECT: A material adverse effect on (a) the
business, operations, property or condition (financial or otherwise) of the FRGC
Parties, (b) the ability of any of the FRGC Parties to perform their respective
obligations under the Basic Trust Documents, (c) the validity or enforceability
of any of the Basic Trust Documents against any of the FRGC Parties or (d) the
rights or remedies of the Owner Trustee or the Investor Certificateholders under
or with respect to the Basic Trust Documents.
MONTHLY DEPOSIT AMOUNT: $180,000.
MONTHLY FIXED RETURN: With respect to any Distribution Date, a return
equal to one-twelfth of the Fixed Return Rate multiplied by the Investor
Certificate Balance as of the immediately preceding Distribution Date and after
giving effect to any distributions on such immediately preceding Distribution
Date (or, in the case of the first Distribution Date, based on the Investor
Certificate Balance as of the Closing Date and pro-rata for the number of days
from the Closing Date to but excluding such Distribution Date based on a 360 day
year of twelve 30-day months).
MONTHLY PERIOD: Each calendar month.
MONTHLY RETURN OF CAPITAL: With respect to any Distribution Date, the
amount set forth in the column labelled "Scheduled Monthly Return of Capital"
for such Distribution Date on Schedule 1 to the Trust Agreement.
MORTGAGE: The Deed of Trust, Security Agreement and Fixture Filing,
substantially in the form of EXHIBIT F to the Sale and Servicing Agreement,
pursuant to which the Seller has mortgaged the Storage Facilities to the
Collateral Trustee, as amended and supplemented from time to time.
NOTES: The 8.12% Secured Guaranteed Notes due 2005 issued by HGSC and
authenticated by the Indenture Trustee under the Indenture.
OBLIGOR: Each party obligated to make payment with respect to any
Contract Receivable, including any guarantor thereof.
OPERATOR: HIG in its capacity as the operator of the Storage
Facilities under the Sale and Servicing Agreement, or its successor in interest
pursuant to Section 13 of the Collateral Sharing and Security Agreement.
OPINION OF COUNSEL: A written opinion of counsel, who may, except as
otherwise expressly provided, be an employee of the Seller or the Servicer.
OWNER TRUST ESTATE: All right, title and interest of the Trust in and
to the property and rights assigned to the Trust pursuant to Article II of the
Sale and Servicing Agreement or pursuant to the Trust Agreement, all funds on
deposit from time to time in the Collection Account and the Investment Account
and all other property of the Trust from time to time, including any rights of
the Owner Trustee and
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the Trust pursuant to the Sale and Servicing Agreement and the other Basic Trust
Documents to which the Trust is a party.
OWNER TRUSTEE: Wilmington Trust Company, not in its individual
capacity but solely as owner trustee under the Trust Agreement, or any successor
owner trustee under the Trust Agreement.
PAYING AGENT: The paying agent for distributions to the Investor
Certificateholders appointed pursuant to Section 3.10 of the Trust Agreement.
PERMITTED LIENS: Collectively, (i) statutory Liens for taxes, labor
or materials where payment for such items is not yet delinquent; and (ii) any
defects or imperfections of title, easements, surface leases or rights or plat
restrictions that are not material in character, amount or extent and do not
materially detract from the value, or materially interfere with the use, of the
properties of the Servicer or the Seller, or materially prevent the Servicer or
the Seller from receiving revenues from such properties or otherwise materially
impair, or increase the cost of, the business operations being conducted
thereon.
PERSON: Any legal person, including any individual, corporation,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
PLAN: An employee benefit plan subject to Part 4 of subtitle B of
Title I of ERISA and any plan within the meaning of Section 4975(c)(1) of the
Code.
PURCHASED CONTRACT RECEIVABLES: (i) All Contract Receivables due
pursuant to the terms of the Contracts in 1995 (but only after the Cut-off
Date), 1996, 1997, 1998, 1999 and through June 30, 2000, and (ii) all Contract
Regulatory Receivables due during the period on and after July 1, 2000 through
June 30, 2001.
PURCHASED PROPERTY: As defined in Section 2.1 of the Sale and
Servicing Agreement.
PURCHASE PRICE: $42,712,351.02.
RATING AGENCY: Duff & Xxxxxx Credit Rating Co. or, if Duff & Xxxxxx
Credit Rating Co. is unable to act as Rating Agency, another nationally
recognized rating agency selected by the Seller.
RATING AGENCY CONDITION: With respect to any action, the condition
that the Rating Agency shall have been given at least 10 days (or such shorter
period as is acceptable to the Rating Agency) prior notice thereof and that the
Rating Agency shall have notified the Seller, the Servicer and the Trust in
writing that such action shall not result in a downgrade or withdrawal of the
then current rating of the Investor Certificates.
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RECORD DATE: With respect to any Distribution Date, the first
Business Day preceding such Distribution Date.
REGULATORY INCREASE: A redetermination by the appropriate regulatory
body of the charges payable under any Contract in accordance with the terms
thereof.
REINVESTMENT INCOME: As defined in Section 4.7 of the Sale and
Servicing Agreement.
REQUIREMENT OF LAW: As to any Person, 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.
RESIDUAL CERTIFICATE: The residual certificate executed by the Owner
Trustee and authenticated by the Owner Trustee in substantially the form set
forth in EXHIBIT B to the Trust Agreement.
RESIDUAL CERTIFICATEHOLDER: The Person in whose name the Residual
Certificate is registered pursuant to the terms of the Trust Agreement.
RESPONSIBLE OFFICER: With respect to the Owner Trustee, any officer
within the Corporate Trust Office of the Owner Trustee customarily responsible
for performing the functions contemplated by the Basic Documents, and, with
respect to any other Person, the President, any Vice President, Assistant Vice
President, Secretary, Assistant Secretary or any other officer or assistant
officer of such Person customarily performing functions similar to those
performed by any of the above designated officers and also, with respect to a
particular matter, any other officer to whom such matter is referred because of
such officer's knowledge of and familiarity with the particular subject.
RETURN OF CAPITAL SHORTFALL: With respect to any Distribution Date,
the Aggregate Return of Capital for such Distribution Date that was not paid on
such Distribution Date.
S&S SELLER OBLIGATIONS: As defined in the Collateral Sharing and
Security Agreement.
SALE AND SERVICING AGREEMENT: The Sale and Servicing Agreement dated
as of November 21, 1995, among the Seller, the Servicer and the Trust, as
amended and supplemented from time to time.
SERVICER: HIG in its capacity as the Servicer of the Purchased
Contract Receivables under the Sale and Servicing Agreement, or its successor in
interest.
SERVICER'S CERTIFICATE: A certificate, completed by and executed on
behalf of the Servicer, in accordance with Section 5.2(b) of the Trust
Agreement.
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STATE: Any one of the 00 Xxxxxx xx xxx Xxxxxx Xxxxxx xx Xxxxxxx or
the District of Columbia.
STORAGE FACILITIES: As set forth on Schedule 7 to the Sale and
Servicing Agreement.
SUBSIDIARY: 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.
SUPERMAJORITY CERTIFICATEHOLDERS: Investor Certificateholders whose
Investor Certificates represent at least two-thirds of the Voting Interests as
of the close of the preceding Distribution Date.
TOTAL AVAILABLE AMOUNT: With respect to a Distribution Date, the sum
of (i) the Collected Amount for such Distribution Date, (ii) the amount
transferred from the Investment Account to the Collection Account with respect
to such Distribution Date pursuant to Section 5.2(c)(ii) of the Trust Agreement
and (iii) the amount transferred to the Collection Account pursuant to Section
5.1(a) of the Trust Agreement in regard to the funds received by the Trust from
the sale of Certificates but not used to acquire the Purchased Contract
Receivables.
TREASURY REGULATIONS: The regulations, including proposed or
temporary regulations, promulgated under the Code. References herein to
specific provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
TRUST: FRGC Owner Trust, a Delaware business trust created by the
Trust Agreement.
TRUST AGREEMENT: The Trust Agreement, dated as of November 21, 1995,
among the Servicer, the Seller and the Owner Trustee, as amended and
supplemented from time to time.
UCC: The Uniform Commercial Code as in effect in the relevant
jurisdiction (or if no such jurisdiction is relevant, as in effect in the State
of New York).
UNDERTAKING LETTER: The letter referred to in Section 3.5 of the
Trust Agreement.
VOTING INTERESTS: As of any date, the aggregate Investor Certificate
Balance of all Investor Certificates outstanding; PROVIDED, HOWEVER, that
Certificates owned by any FRGC Party, the Seller or any Affiliate of any of the
foregoing Persons shall be disregarded and deemed not to be outstanding, except
that, in determining
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whether the Owner Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Investor
Certificates that the Owner Trustee knows to be so owned shall be so
disregarded.
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