EXHIBIT 10.25
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XXXXXX FUNDING INC.,
Transferor,
XXXXXX INDUSTRIES INC.,
Servicer
and
CHEMICAL BANK,
Trustee
on behalf of the Certificateholders
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INGRAM FUNDING MASTER TRUST
POOLING AND SERVICING AGREEMENT
Dated as of February 10, 1993
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS
Section 1.01 Definitions . . . . . . . . . . . 1
Section 1.02 Other Definitional Provisions . . 1
Section 1.03 Calculations and Payments . . . . 2
ARTICLE II CONVEYANCE OF RECEIVABLES; ISSUANCE
OF CERTIFICATES
Section 2.01 Conveyance of Receivables . . . . 3
Section 2.02 Acceptance by Trustee . . . . . . 4
Section 2.03 Representations and Warranties of
the Transferor Relating to the
Transferor. . . . . . . . . . . 5
Section 2.04 Representations and Warranties of
the Transferor Relating to the
Agreement, any Supplement and the
Receivables; Reassignment of
Receivables . . . . . . . . . . 10
Section 2.05 [Reserved] . . . . . . . . . . . 16
Section 2.06 Covenants of the Transferor . . . 16
Section 2.07 Authentication of Certificates . 23
Section 2.08 Tax Treatment . . . . . . . . . . 23
Section 2.09 Cancellation of the Certificates
of any Series . . . . . . . . . 24
Section 2.10 Transferor Minimum Amount; Minimum
Adjusted Eligible Principal
Receivables . . . . . . . . . . 24
ARTICLE III ADMINISTRATION AND SERVICING OF
RECEIVABLES
Section 3.01 Acceptance of Appointment and
Other Matters Relating to the
Servicer . . . . . . . . . . . . 25
Section 3.02 Servicing Compensation . . . . . . 27
Section 3.03 Representations, Warranties and
Covenants of the Servicer. . . . 29
Section 3.04 Reports and Records for the
Trustee; Bank Account
Statements . . . . . . . . . . . 35
Section 3.05 Annual Servicer's Certificate. . . 36
Section 3.06 Annual Independent Public
Accountants' Servicing Report. . 36
Section 3.07 [Reserved] . . . . . . . . . . . . 38
Section 3.08 Notices to the Transferor. . . . . 38
Section 3.09 Credits . . . . . . . . . . . . . 38
Section 3.10 Covenant to Maintain Privileges. . 38
ARTICLE IV RIGHTS OF CERTIFICATEHOLDERS AND
ALLOCATION AND APPLICATION OF
COLLECTIONS
Section 4.01 Rights of Certificateholders . . . 39
Section 4.02 Establishment of Collection
Account and Transferor Account . . 39
Section 4.03 Collections and Allocations. . . . 42
Section 4.04 Payments of Imputed Yield
Collections to Investor
Certificateholders. . . . . . . 46
Section 4.05 Payments of Imputed Yield
Collections with Respect to the
Variable Funding Certificate . . 46
Section 4.06 Payment of Principal Collections . 46
Section 4.07 Defaulted Receivables. . . . . . . 47
Section 4.08 [Reserved] . . . . . . . . . . . . 47
Section 4.09 Removal of Funds from Lock-Box
Accounts . . . . . . . . . . . . 47
ARTICLE V DISTRIBUTIONS AND REPORTS TO
CERTIFICATEHOLDERS
Section 5.01 Distributions . . . . . . . . . . 49
Section 5.02 Monthly Investor Certificate
holders' Statement; Annual Tax
Statement. . . . . . . . . . . 49
ARTICLE VI THE CERTIFICATES
Section 6.01 The Certificates . . . . . . . . . 51
Section 6.02 Authentication of Certificates . . 52
Section 6.03 Registration of Transfer and
Exchange of Certificates . . . . 53
Section 6.04 Mutilated, Destroyed, Lost or
Stolen Certificates. . . . . . . 57
Section 6.05 Persons Deemed Owners. . . . . . . 57
Section 6.06 Appointment of Paying Agent . . . .58
Section 6.07 Access to List of Certificates
holders' Names and Addresses . . 59
Section 6.08 Authenticating Agent. . . . . . . .59
Section 6.09 Delivery of Additional Series of
Investor Certificates or the
Variable Funding Certificate . . 61
Section 6.10 Issuer Additional Amounts. . . . . 64
Section 6.11 Book-Entry Certificates. . . . . . 65
Section 6.12 Notices to Clearing Agency . . . . 66
Section 6.13 Definitive Certificates. . . . . . 67
ARTICLE VII OTHER MATTERS RELATING TO THE
TRANSFEROR
Section 7.01 Liability of the Transferor. . . . 68
Section 7.02 Merger or Consolidation of, or
Assumption of the Obligations of,
the Transferor . . . . . . . . . 68
Section 7.03 Limitation on Liability of the
Transferor . . . . . . . . . . . 69
Section 7.04 Liabilities. .. . . . . . . . . . 70
ARTICLE VIII OTHER MATTERS RELATING TO THE
SERVICER
Section 8.01 Liability of the Servicer. . . . . 71
Section 8.02 Merger or Consolidation of, or
Assumption of the Obligations of,
the Servicer . . . . . . . . . . 71
Section 8.03 Limitation on Liability of the
Servicer and Others . . . . . . .72
Section 8.04 Servicer Indemnification of the
Trust and the Trustee. . . . . . 72
Section 8.05 The Servicer Not to Resign. . . . .74
Section 8.06 Access to Certain Documentation
and Information Regarding the
Receivables. . . . . . . .. . . 74
Section 8.07 Delegation of Duties. . . . . . . 75
Section 8.08 Examination of Records. . . . . . 75
Section 8.09 Successor Servicer Indemnification
of Transferor. . . . . . . . . . 75
ARTICLE IX EVENTS OF TERMINATION
Section 9.01 Events of Termination with Respect
to any Series. . . . . . . . . . 76
Section 9.02 Events of Termination with Respect
to the Variable Funding
Certificate. . . . . . . . . . . 78
Section 9.03 Additional Rights Upon the
Occurrence of Certain Events. . .82
ARTICLE X SERVICER DEFAULTS
Section 10.01 Servicer Defaults. . . . . . . . . 85
Section 10.02 Trustee to Act; Appointment of
Successor. . . . . . . . . . . . 88
Section 10.03 Notification to Certificate
holders. . . . . . . . . . . . . 90
Section 10.04 Waiver of Past Defaults. . . . . . 90
ARTICLE XI THE TRUSTEE
Section 11.01 Duties of Trustee. . . . . . . . . 92
Section 11.02 Certain Matters Affecting the
Trustee. . . . . . . . . . . . . 95
Section 11.03 Trustee Not Liable for Recitals in
Certificates. . . . . . . . . . 97
Section 11.04 Trustee May Own Certificates. . . .98
Section 11.05 The Servicer to Pay Trustee's Fees
and Expenses. . . . . . . . . . .98
Section 11.06 Eligibility Requirements for
Trustee. . . . . . . . . . . . . 98
Section 11.07 Resignation or Removal of
Trustee. . . . . . . . . . . . . 99
Section 11.08 Successor Trustee. . . . . . . . . 100
Section 11.09 Merger or Consolidation of
Trustee. . . . . . . . . . . . . 100
Section 11.10 Appointment of Co-Trustee or
Separate Trustee. . . . . . . . 101
Section 11.11 Tax Returns. . . . . . . . . . . . 103
Section 11.12 Trustee May Enforce Claims Without
Possession of Certificates. . .. 103
Section 11.13 Suits for Enforcement. . . . . . . 104
Section 11.14 Rights of Certificateholders to
Direct Trustee. . . . . . . . .. 104
Section 11.15 Representations and Warranties of
Trustee . . . . . . . . . . . .. 105
Section 11.16 Maintenance of Office or Agency. . 105
Section 11.17 Notices . . . . . . . . . . . . .. 106
ARTICLE XII TERMINATION
Section 12.01 Termination of Trust . . . . . . . 107
Section 12.02 Optional Purchase and Series
Termination Date of Investor
Certificates of any Series or the
Variable Funding Certificate. . .108
Section 12.03 Final Payment . . . . . . . . . . .109
Section 12.04 Transferor's Termination Rights . .111
ARTICLE XIII MISCELLANEOUS PROVISIONS
Section 13.01 Amendment . . . . . . .. . . . . .112
Section 13.02 Protection of Right, Title and
Interest of Trust. . . . . . . .114
Section 13.03 Limitation on Rights of
Certificateholders. . . . . . . .115
Section 13.04 Governing Law . . . . . . . . . . .116
Section 13.05 Notices . . . . . . . . . . . . . .116
Section 13.06 Severability of Provisions . . . . 117
Section 13.07 Assignment . . . . . . . . . . . . 117
Section 13.08 Certificates Nonassessable and
Fully Paid . . . . . . . . . . . 117
Section 13.09 Further Assurances . . . . . . . . 118
Section 13.10 No Waiver; Cumulative Remedies . . 118
Section 13.11 Counterparts . . . . . . . . . . . 118
Section 13.12 Third-Party Beneficiaries. . . . . 118
Section 13.13 Actions by Certificateholders . .. 118
Section 13.14 Merger and Integration . . . . . . 119
Section 13.15 Headings . . . . . . . . . . . . . 120
Section 13.16 No Bankruptcy Petition Against the
Transferor . . . . . . . . . . . 120
EXHIBITS
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Exhibit A: Form of Investor Certificate
Exhibit B: Form of Variable Funding Certificate
Exhibit C: Form of Transferor Certificate
Exhibit D: Form of Supplement
Exhibit E: Form of Daily Report
Exhibit F: Form of Annual Servicer's
Certificate
Exhibit G: Credit and Collection Policy
Exhibit H: Form of Settlement Statement
Exhibit I: Lock-Box Agreements
Exhibit J: Form of Lock-Box Agreement
Exhibit K: List of Lock-Box Banks
Exhibit L: Omitted
Exhibit M: Form of Annual Opinion of Counsel
(Section 13.02(c))
SCHEDULES
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Schedule 1. Identification of the
Collection Account
and Transferor
Account
Schedule 2. List of Days In 1993
on Which Ingram is
Closed
ANNEX
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Annex X. Definitions
POOLING AND SERVICING AGREEMENT, dated as of February 10, 1993, by and
among XXXXXX FUNDING INC., a Delaware corporation, as Transferor, XXXXXX
INDUSTRIES INC., a Tennessee corporation, as Servicer, and CHEMICAL BANK, a
New York banking corporation, as Trustee.
This Pooling and Servicing Agreement shall be applicable to the formation
of the Trust and the issuance of the Transferor Certificate and, upon the
execution of any Supplement, shall apply also to the issuance of any Series of
Certificates or the Variable Funding Certificate issued thereby.
In consideration of the mutual agreements herein contained, each party
agrees as follows for the benefit of the other parties, for the benefit of the
Certificateholders and for the benefit of any credit enhancer with respect to
any Series or the Variable Funding Certificate to the extent provided herein:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. For all purposes of this Agreement, except as
otherwise expressly provided herein or unless the context otherwise requires,
capitalized terms not otherwise defined herein shall have the meanings
assigned to such terms in the Definitions attached hereto as Annex X which is
incorporated by reference herein. All other capitalized terms used herein
shall have the meanings specified herein.
"Agreement" shall mean this Pooling and Servicing Agreement as it may
from time to time be amended, supplemented or otherwise modified in accordance
with the terms hereof, including by any Supplement.
Section 1.02 Other Definitional Provisions.
(a) All terms defined in any Supplement or this Agreement shall
have the defined meanings when used in any certificate or other document made
or delivered pursuant hereto unless otherwise defined therein.
(b) As used herein and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined
in Annex X or otherwise defined herein, and accounting terms partly defined
in Annex X or otherwise defined herein, 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 or in Annex X are inconsistent
with the meanings of such terms under GAAP, the definitions contained
herein or in Annex X shall control.
(c) The agreements, representations and warranties of Ingram in
this Agreement in its capacity as Servicer shall be deemed to be the
agreements, representations and warranties of Ingram solely in such capacity.
(d) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement or any Supplement shall refer to
such Supplement or this Agreement, as the case may be, as a whole and not to
any particular provision of such Supplement or this Agreement, as the case may
be; and Section, Schedule and Exhibit references contained in this Agreement
or any Supplement are references to Sections, Schedules and Exhibits in or to
this Agreement or such Supplement unless otherwise specified.
Section 1.03 Calculations and Payments. All computations of Imputed Yield
shall be made on the basis of the actual number of days in each year and the
actual number of days elapsed (including the first and excluding the last day)
in the period for which such calculations are being made. Unless otherwise
specified herein, expressions of a time of day refer to such time in New York,
New York. All amounts payable hereunder shall be paid in immediately available
funds. Whenever any reference is made to an amount or time the determination
or calculation of which is governed by this Section 1.03, the provisions of
this Section 1.03 shall be applicable to such determination or calculation,
whether or not reference is specifically made to this Section 1.03, unless
some other method of determination or calculation is expressly specified in
the particular provision.
[END OF ARTICLE I]
ARTICLE II
CONVEYANCE OF RECEIVABLES; ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Receivables. (a) By execution of this
Agreement, the Transferor does hereby assign, transfer and otherwise convey
to the Trust from time to time, without recourse (except as specifically
provided herein), all its right, title and interest, whether now owned or
hereafter acquired, in, to and under (i) all Receivables in each case sold
or otherwise transferred to the Transferor pursuant to the Purchase
Agreement prior to the Final Trust Termination Date, (ii) with respect to
such Receivables, all accounts, chattel paper, general intangibles, and
instruments (each, as defined in the applicable Uniform Commercial code),
and all rights (but not the obligations) relating thereto, (iii) all
Related Security and all other instruments and all rights under the
Receivables Documents (but not the obligations) relating to such
Receivables and all rights (but not the obligations) relating to such
Receivables, (iv) all monies due or to become due with respect to any of the
foregoing, and (v) all proceeds of any of the foregoing. Such property,
together with all monies on deposit in the Lock-Box Accounts, the
Collection Account, the Transferor Account, any Interest Funding Account,
any Principal Funding Account or any Reserve Fund (with respect to each
account or fund, other than net investment earnings), shall constitute the
assets of the Trust (the "Trust Assets"). The foregoing transfer,
assignment, set-over and conveyance does not constitute and is not intended
to result in the creation, or an assumption by the Trust, the Trustee or
any Investor Certificateholder, of any obligation of Ingram, any Designated
Subsidiary, the Transferor or any other Person in connection with the
Receivables or under any agreement or instrument relating thereto,
including, without limitation, any obligation to any Obligors, merchants or
any Affiliate of or other Person to whom the Servicer may delegate
servicing duties hereunder or insurers.
(b) In connection with such transfer, the Transferor agrees to
record and file, at its own expense, any financing statements (and
continuation statements with respect to such financing statements when
applicable) required to be filed with respect to the Receivables now
existing and hereafter created and the other Trust Assets meeting the
requirements of applicable state law in such manner and in such
jurisdictions as are necessary under the applicable UCC to perfect the
transfer and assignment of the Receivables and the other Trust Assets to
the Trust, and to deliver a file-stamped copy of such financing statements
or other evidence of such filings to the Trustee within 10 days of the
Initial Closing Date (excluding such continuation and similar statements,
which shall be delivered promptly after filing). The Trustee shall be
under no obligation whatsoever to file such financing or continuation
statements or make any other filings under the UCC in connection with such
conveyance.
(c) In connection with such transfer, on the fifth Business Day
following (i) the date on which the Servicer receives a Termination Notice
pursuant to Section 10.01 or (ii) the Amortization Period Commencement Date if
attributable to the occurrence of an Event of Termination, the Servicer shall
deliver to the Trustee a true and complete file or list of all Receivables
outstanding on such date, specifying for each such Receivable the name of the
Obligor thereunder and its aggregate Unpaid Balance as of the date on which
the Termination Notice is delivered. Each such file or list shall be marked as
a schedule hereto.
(d) It is intended by the Transferor that the interest of the
Transferor transferred to the Trustee hereunder constitute a security interest
under Section 1-201 of the UCC (as defined in the UCC as in effect in the
States of New York and Delaware, respectively). The Transferor hereby
grants to the Trustee on the terms and conditions of this Agreement a first
priority security interest in and against all of the Transferor's right,
title and interest in the Receivables and the other Trust Assets for the
purpose of (i) securing the rights of the Trustee for the benefit of the
Certificateholders under this Agreement and (ii) securing the right,
ability and obligation of the Trustee to make all payments required to be
made in accordance with the terms and conditions of this Agreement (the
"Secured Obligations"),
Section 2.02 Acceptance by Trustee.
(a) The Trustee hereby acknowledges its acceptance on behalf of
the Trust of all right, title and interest to the property, now existing and
hereafter created, conveyed to the Trust pursuant to Section 2.01, and
declares that, subject to the terms and conditions hereof and of any
Supplement, it shall maintain such right, title and interest, upon the
trust herein set forth, for the benefit of all Certificateholders.
(b) The Trustee hereby agrees not to disclose, except as may
be required by law, to any Person any of the information contained in any
computer files or microfiche lists delivered to the Trustee by the
Transferor pursuant to Sections 2.01 or 2.06(c) except as is required in
connection with the performance of its duties hereunder or in enforcing the
rights of the Certificateholders or to a Successor Servicer appointed
pursuant to Section 10.02 or to a prospective Successor Servicer. The
Trustee agrees to take such measures as shall be reasonably requested by
the Transferor to protect and maintain the security and confidentiality of
such information and, in connection therewith, shall allow the Transferor
to inspect the Trustee's security and confidentiality arrangements from
time to time during normal business hours. The Trustee shall use its best
efforts to provide the Transferor with written notice at least five
Business Days prior to any disclosure pursuant to this Section 2.02(b).
(c) The Trustee hereby agrees not to use any information it
obtains pursuant to this Agreement, including without limitation, any of
the information contained in any computer files or microfiche lists
delivered by the Transferor to the Trustee pursuant to Sections 2.01 or
2.06(c), to compete or assist any Person in competing with the Transferor,
Ingram or any Designated Subsidiary in their respective businesses and to
use such information only in connection with its responsibilities under
this Agreement.
Section 2.03 Representations and Warranties of the Transferor Relating to
the Transferor. The Transferor hereby represents and warrants, as of the
Initial Closing Date and, with respect to any Series, as of the date of any
Supplement and the related Closing Date, unless otherwise stated in such
Supplement, that:
(a) Organization and Good Standing. The Transferor is a
corporation duly organized and validly existing in good standing under the
laws of the State of Delaware, and has full corporate power, authority and
legal right to execute, deliver and perform its obligations under the
Purchase Agreement, this Agreement and any Supplement and to execute and
deliver to the Trustee pursuant hereto the Certificates, to conduct its
business as such business is presently conducted, and in all material
respects, to own its property and conduct its other businesses as such
properties are presently owned and such businesses are presently conducted.
(b) Due Qualification. The Transferor is duly qualified to do
business and is in good standing as a foreign corporation (or is exempt from
such requirements), and has obtained all necessary licenses and approvals with
respect to the Transferor, in each jurisdiction in which failure to so qualify
or to obtain such licenses and approvals would render any Contract or any
Receivable unenforceable by the Transferor or the Trust or would have a
material adverse effect on the Certificateholders.
(c) Due Authorization. The execution, delivery and performance
of the Purchase Agreement, this Agreement and any Supplement and the execution
and delivery to the Trustee of the Certificates by the Transferor and the
consummation of the transactions provided for in this Agreement and any
Supplement, have been duly authorized by the Transferor by all necessary
corporate action on the part of the Transferor.
(d) Binding Obligation. Each of the Purchase Agreement, this
Agreement and each Supplement constitutes the legal, valid and binding
obligation of the Transferor, enforceable against it in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereinafter in effect, affecting the enforcement of creditors' rights in
general and except as such enforceability may be limited by general principles
of equity (whether considered in a proceeding at law or in equity).
(e) No Conflicts. The execution, delivery and performance
of this Agreement and any Supplement and the Certificates, the performance
of the transactions contemplated by this Agreement and any Supplement and
the fulfillment of the terms hereof by the Transferor, do not (a)
contravene its certificate of incorporation or By-Laws, (b) violate any
provision of, or require any filing (except for the filings under the UCC
required by this Agreement, each of which will be duly made and will be in
full force and effect within 10 days after the Initial Closing Date),
registration, consent or approval under, any law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award presently in
effect having applicability to the Transferor, except for such filings,
registrations, consents or approvals as have already been obtained and are
in full force and effect, (c) result in a breach of or constitute a default
or require any consent under any indenture or loan or credit agreement or
any other agreement, lease or instrument to which the Transferor is a party
or by which it or its properties may be bound or affected except those as
to which a consent or waiver has been obtained and is in full force and
effect and an executed copy of which has been delivered to the Trustee, or
(d) result in, or require, the creation or imposition of any lien upon or
with respect to any of the properties now owned or hereafter acquired by
the Transferor other than as specifically contemplated by this Agreement.
(f) Taxes. The Transferor has filed all material tax returns
(federal, state and local) which it reasonably believes are required to be
filed and has paid or made adequate provision for the payment of all taxes,
assessments and other governmental charges due from the Transferor or is
contesting any such tax, assessment or other governmental charge in good
faith through appropriate proceedings. The Transferor knows of no basis
for any material additional tax assessment for any fiscal year for which
adequate reserves have not been established.
(g) No Proceedings. There are no proceedings or
investigations pending or, to the best knowledge of the Transferor,
threatened against the Transferor, before any court, regulatory body,
administrative agency, or other tribunal or governmental instrumentality
(i) asserting the invalidity of the Purchase Agreement, this Agreement or
any Supplement or the Certificates, (ii) seeking to prevent the issuance of
the Certificates or the consummation of any of the transactions
contemplated by this Agreement or any Supplement or the Certificates, (iii)
seeking any determination or ruling that, in the reasonable judgment of the
Transferor, would materially and adversely affect the performance by the
Transferor of its obligations under the Purchase Agreement,
this Agreement or any Supplement, (iv) seeking any determination or ruling
that would materially and adversely affect the validity or enforceability of
the Purchase Agreement, this Agreement or any Supplement or the Certificates,
or (v) seeking to assert any tax liability against the Trust under the United
States Federal or New York State income tax systems.
(h) All Consents Required. All approvals, authorizations,
consents, orders or other actions of any Person or of any Governmental
Authority required in connection with the execution and delivery by the
Transferor of this Agreement, any Supplement, the Purchase Agreement and
the Certificates, the performance by the Transferor of the transactions
contemplated by this Agreement and any Supplement and the fulfillment by
the Transferor of the terms hereof, have been obtained and are in full
force and effect; provided, however, that the Transferor makes no
representation or warranty regarding state securities or "blue sky" laws in
connection with the distribution of the Certificates.
(i) Place of Business. The principal place of business of the
Transferor if it has only one place of business or its chief executive office
Has that term is used in the UCC) if it has more than one place of business is
in Wilmington, Delaware. The records concerning the Receivables and related
Contracts are kept in offices of the Servicer or of the Designated
Subsidiaries acting as subservicers located in Tennessee, California and New
York.
(j) Use of Proceeds. No proceeds of the issuance of any
Certificate will be used by the Transferor to acquire any security in a
transaction that is subject to sections 13 and 14 of the Securities Exchange
Act of 1934, as amended, or to purchase or carry any margin security in
violation of any applicable law or regulation.
(k) Lock-Box Banks and Accounts. The Lock-Box Banks are the only
institutions holding any lock-box accounts for the receipt of payments from
Obligors in respect of Receivables (subject to such changes as may be made
from time to time in accordance with Section 2.06(i)) and all Obligors, and
only such Obligors, have been instructed to make payments only to Lock-Box
Accounts and such instructions are in full force and effect.
(l) Event of Termination. As of the Initial Closing Date, no
Event of Termination and no condition that with the giving of notice and/or
the passage of time would constitute an Event of Termination (a "Prospective
Event of Termination"), has occurred and is continuing.
(m) Not an Investment Company. The Transferor is not an
"investment company" or a company controlled by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended, or is exempt
from all provisions of such Act.
(n) ERISA. No Plan maintained by the Transferor or any of its
ERISA Affiliates has any "accumulated funding deficiency" (within the meaning
of Section 302 of ERISA or Section 412 of the Internal Revenue code), whether
or not waived. The Transferor and each ERISA Affiliate of the Transferor has
timely made all contributions required to be made by it to any Plan and
Multiemployer Plan to which contributions are or have been required to be made
during the preceding five years by the Transferor or such ERISA Affiliate, and
no event requiring notice to the PBGC under Section 302(f) of ERISA has
occurred and is continuing or could reasonably be expected to occur with
respect to any such Plan, in any case, that could reasonably be expected to
result, directly or indirectly, in any lien being imposed on the property of
the Transferor or the payment of any material amount to avoid such lien.
No Plan Event with respect to the Transferor or any of its ERISA Affiliates
has occurred or could reasonably be expected to occur that could
reasonably be expected to result, directly or indirectly, in any Lien
being imposed on the property of the Transferor or the payment of any
material amount to avoid such Lien.
The representations and warranties set forth in this Section
2.03 shall survive the transfer and assignment of the Receivables to the
Trust. Upon discovery by the Transferor, the Servicer or a Responsible
Officer of the Trustee of a material breach of any of the foregoing
representations and warranties, the party discovering such breach shall
give written notice thereof to the others and to the Rating Agencies within
three Business Days of such discovery.
Section 2.04 Representations and Warranties of the Transferor Relating
to the Agreement, any Supplement and the Receivables; Reassignment of
Receivables.
(a) Representations and Warranties. The Transferor (x) hereby
represents and warrants as of the Initial Closing Date, with respect to the
Receivables created on or prior to, and outstanding on, such date and (y)
shall be deemed to represent and warrant as of the date of the creation and
transfer to the Trust of any Receivables with respect to such Receivables,
that:
(i) the Transferor is not insolvent;
(ii) the Transferor is the legal and beneficial owner of all
right, title and interest in and to each such Receivable and each such
Receivable has been or will be transferred to the Trust free and clear of any
Lien;
(iii) all consents, licenses, approvals or authorizations of or
registrations or declarations with any Governmental Authority or Person
required to be obtained, effected or given by the Transferor in connection
with the transfer of Trust Assets to the Trust have been duly obtained,
effected or given and are in full force and effect;
(iv) the Transferor has clearly and unambiguously marked all its
computer records and all its microfiche storage files, if any, regarding such
Receivables as the property of the Trust and shall maintain such records in
a manner such that the Trust shall have a perfected interest of first
priority in the Receivables. This Agreement constitutes either (i) a valid
transfer and assignment to the Trust of all right, title and interest of
the Transferor in the Receivables now existing and hereafter created and in
the Related Security and Collections with respect thereto, all proceeds (as
defined in the UCC as in effect in the State of New York) of each Receivable
and such funds as are deposited from time to time in the Collection
Account, and such property will be free and clear of any Adverse Claim or
interest of any Person not holding through the Trust, or (ii) a grant of a
"security interest" (as defined in the UCC as in effect in the State of New
York) in such property to the Trust as provided in Section 2.02(c), which,
in the case of existing Receivables and the Related Security and
Collections with respect thereto and the proceeds thereof, is enforceable
upon execution and delivery of this Agreement, and which will be
enforceable with respect to such Receivables hereafter created and the
proceeds thereof upon such creation. Upon the filing of any financing
statements described in Section 2.01 and, in the case of the Receivables
hereafter created or transferred to the Trust and the proceeds thereof,
upon the creation or transfer thereof, the Trust shall have a first
priority perfected security interest in such property; provided, however,
that such security interest in proceeds shall remain perfected after 10
days from their receipt by the Transferor only to the extent that such
proceeds are identifiable cash proceeds or they come into the Trust's
possession within the applicable 10-day period; and provided, further, that
the Transferor makes no representation or warranty with respect to the
effect of Section 9-306(4) of the UCC on the rights of the Trust to
proceeds held by the Transferor at the time insolvency proceedings are
instituted by or against the seller of the Receivables to which the
proceeds relate. Except as otherwise provided in this Agreement, neither
the Transferor nor any Person claiming through or under the Transferor has
any claim to or interest in the Collection Account;
(v) on the fifth Business Day following (i) the date the
Servicer receives a Termination Notice pursuant to Section 10.01 or (ii) the
Amortization Period Commencement Date if attributable to the occurrence of an
Event of Termination, the Transferor shall cause the Servicer to deliver a
Schedule to this Agreement which will be an accurate and complete listing of
all the Receivables in all material respects as of such day and the
information contained therein with respect to the identity of each
Receivable and the Unpaid Balance existing thereunder will be true and
correct in all material respects as of such day; as of the close of
business on February 10, 1993, the aggregate Unpaid Balance for all
Receivables was $499,889,865.08; as of the close of business on February
10, 1993 the aggregate Unpaid Balance for all Eligible Receivables was
$486,234,178.85;
(vi) each such Receivable and Related Security and Collections
with respect thereto has been or will be transferred to the Trust free and
clear of any Adverse Claim or interest of any Person not holding through the
Trust;
(vii) each account receivable conveyed pursuant to Section 2.01
hereof is on the date of creation of such account receivable a Receivable and
each Receivable classified as an "Eligible Receivable" by the Transferor in
any document or report delivered hereunder will satisfy the requirements
contained in the definition of Eligible Receivable;
(viii) each Receivable is or will be at the time of transfer to
the Trust an account receivable arising out of the performance by the Xxxxxx
Book Company division of Xxxxxx or any Designated Subsidiary in accordance
with the terms of the Contract giving rise to such Receivable. The Transferor
has no knowledge of any fact which should have led it to expect at the time of
the initial creation of an interest in any Receivable hereunder that such
Receivable would not be paid in full when due except with respect to any sales
and marketing discount then available to Obligors. Each Receivable classified
as an "Eligible Receivable" by the Transferor in any document or report
delivered hereunder will satisfy the requirements of eligibility contained in
the definition of Eligible Receivable; and
(ix) each such Receivable was purchased in accordance with the
terms of the Purchase Agreement, which is in full force and effect.
(b) Notice of Breach. The representations and warranties
set forth in this Section 2.04 shall survive the transfer and assignment of
the Trust Assets to the Trust. Upon discovery by the Transferor, the
Servicer or a Responsible Officer of the Trustee of a material breach of
any of the representations and warranties set forth in this Section
2.04(a)(i) through (ix), the party discovering such breach shall give
written notice to the others and to the Rating Agencies within three
Business Days of such discovery.
(c) Transfer Upon Breach of Warranty. In the event of a
breach with respect to a Receivable of any of the representations and
warranties set forth in Section 2.04(a)(ii) through (ix) above which cannot
be cured by the Business Day following the first day on which the
Transferor has knowledge thereof, such Receivable (a "Reconveyed
Receivable") shall be removed from the Trust (without further action) by
deducting the Unpaid Balance of each such Reconveyed Receivable from the
Eligible Receivables in the Trust and decreasing the Transferor Amount. On
and after the date of such removal, each Reconveyed Receivable so removed
shall not be included in the calculation of any Invested Percentage, the
Issuer Percentage, the Transferor Percentage, any Invested Amount, the
Issuer Amount or the Transferor Amount. To the extent that the exclusion
of a Reconveyed Receivable from the calculation of the Transferor Amount
would cause the Transferor Eligible Amount to be reduced below the
Transferor Minimum Amount or would otherwise not be permitted by any
Requirement of Law, the Transferor shall make or cause to be made a deposit
in the Collection Account in immediately available funds by the close of
business on the Business Day following the first day the Transferor has
knowledge of the existence of a Reconveyed Receivable in an amount equal to
the related Transfer Deposit Amount remaining due. Such deposit shall be
considered a payment in full of the Reconveyed Receivable during the
Settlement Period to which such payment relates and shall be allocated in
accordance with Section 4.03. Upon each removal of a Reconveyed Receivable
from the Trust, the Trust shall automatically and without further action be
deemed to transfer, assign, set-over and otherwise convey to or upon the
order of the Transferor, without recourse, representation or warranty,
all the right, title and interest of the Trust in and to such Reconveyed
Receivable, all Related Security and Collections with respect thereto and all
proceeds thereof The Trustee shall execute such documents and instruments of
transfer or assignment as shall be prepared by the Transferor, and shall take
such other actions as shall reasonably be requested by the Transferor, to
effect the conveyance of such Reconveyed Receivable pursuant to this Section.
The obligation of the Transferor set forth in this Section, or the automatic
removal of such Receivable from the Trust, as the case may be, shall
constitute the sole remedy respecting any breach of the representations and
warranties set forth in the above referenced Section with respect to such
Receivable available to the Investor Certificateholders, the Holder of the
Variable Funding Certificate or the Trustee on behalf of the Investor
Certificateholders or such Holder.
(d) Reassignment of Trust Portfolio. In the event of a
breach of any of the representations and warranties set forth in
subsections 2.03(a), (b), (c) or (d) or subsection 2.04(a)(i) with respect
to any Series, any of the Trustee, the Holder of the Variable Funding
Certificate or the Holders of Investor Certificates evidencing Undivided
Interests aggregating more than 50% of the Aggregate Invested Amount of
such Series, by notice then given in writing to the Transferor (with a copy
thereof to the Rating Agencies) and to the Trustee and the Servicer (if
given by the Investor Certificateholders or the Holder of the Variable
Funding Certificate), may direct the Transferor to accept reassignment of
an amount of Principal Receivables equal to the face amount of the Invested
Amount and/or Issuer Amount to be repurchased (as specified below) within
60 days of such notice, and the Transferor shall be obligated to accept
reassignment of such Principal Receivables on a Payment Date specified by
the Transferor (such Payment Date, the "Reassignment Date") occurring
within such applicable period on the terms and conditions set forth below;
provided, however, that no such reassignment shall be required to be made
if, at any time during such applicable period, the Servicer shall provide
the Trustee with an Officer's Certificate to the effect that the
representations and warranties contained in subsections 2.03(a), (b), (c)
and (d) and subsection 2.04(a)(i) shall then be true and correct in all
material respects. The Transferor shall, on the Business Day immediately
preceding the Reassignment Date, deposit an amount (in next day funds)
equal to the reassignment deposit amount for such Series and/or the
Variable Funding Certificate in the Collection Account, as provided in the
related Supplement, for distribution to the Investor Certificateholders
and/or to the Holder of the Variable Funding Certificate pursuant to
Article XII. The reassignment deposit amount with respect to any Series
and/or the Variable Funding Certificate, unless otherwise stated in the
related Supplement, shall be equal to (i) the Invested Amount of such
Series and/or the Issuer Amount at the end of the Record Date preceding the
Reassignment Date; plus (ii) an amount equal to all interest accrued but
unpaid on the Investor Certificates of such Series at the applicable
Certificate Rate and/or on the Variable Funding Certificate through the
Record Date for the Payment Date on which the distribution of such deposit
is scheduled to be made pursuant to Section 12.03, less the amount, if any,
previously allocated for payment of interest to the Certificateholders of
such Series and/or to the Holder of the Variable Funding Certificate on the
related Payment Date in the month in which the Reassignment Date occurs
provided, however, any such payment made with respect to the Variable
Funding Certificate shall also include such additional amounts, if any,
necessary to pay the Interest Component of all Outstanding Commercial Paper
of the CP Issuer maturing subsequent to such Reassignment Date. Payment of
the reassignment deposit amount with respect to any Series, and/or on the
Variable Funding Certificate, and all other amounts in the Collection
Account, shall be considered a prepayment in full of the Receivables
represented by the Investor Certificates of such Series and/or the Variable
Funding Certificate. On the Payment Date following the date on which such
amount has been deposited in full into the Collection Account, the
Receivables and all monies due or to become due with respect thereto and
all proceeds of the Receivables allocated to the Receivables pursuant to
the related Supplement shall be released to the Transferor after payment of
all amounts otherwise due hereunder on or prior to such dates and the
Trustee shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, representation or warranty, as
shall be prepared by and as are reasonably requested by the Transferor to
vest in the Transferor, or its designee or assignee, all right, title and
interest of the Trust in and to such Receivables, all monies due or to
become due with respect thereto and all proceeds of such Receivables
allocated to such Receivables pursuant to the related Supplement. If the
Trustee or the Investor Certificate holders of any Series and/or the Holder
of the Variable Funding Certificate give(s) notice directing the Transferor
to accept reassignment as provided above, the obligation of the Transferor
to accept reassignment of the applicable Receivables and pay the
reassignment deposit amount pursuant to this subsection 2.04(d) shall
constitute the sole remedy respecting a breach of the representations and
warranties contained in subsections 2.03(a), (b), (c) and (d) and
2.04(a)(i) available to the Investor Certificateholders of such Series
and/or the Holder of the Variable Funding Certificate or the Trustee on
behalf of the Investor Certificateholders of such Series and/or the Holder
of the Variable Funding Certificate. The Trustee shall have no duty to
conduct any affirmative investigation as to the occurrence of any condition
requiring the repurchase of any Receivable by the Transfer pursuant to
this Agreement or any Supplement or the eligibility of any Receivable for
purposes of this Agreement or any Supplement.
Section 2.05 [Reserved].
Section 2.06 Covenants of the Transferor. During the term of this
Agreement, and until (i) the Invested Amount and the Issuer Amount are
reduced to zero, (ii) the Investor Certificateholders and the Holder of the
Variable Funding Certificate shall have received all accrued interest on
the applicable Certificate, and (iii) all amounts owed by the Transferor
pursuant to this Agreement have been paid, the Transferor covenants and
agrees as follows:
(a) Compliance with Laws, etc. The Transferor shall duly satisfy
all obligations on its part to be fulfilled under or in connection with the
Receivables, will maintain in effect all qualifications required under
Requirements of Law in order to properly purchase and convey the
Receivables and other Trust Assets and will comply in all material respects
with all Requirements of Law in connection with purchasing and conveying
the Receivables the failure to comply with which would have a material
adverse effect on the Trust or its interests in the Receivables.
(b) Preservation of Corporate Existence. The Transferor (i)
shall preserve and maintain its corporate existence, rights, franchises and
privileges in the jurisdiction of its incorporation and (ii) shall qualify
and remain qualified in good standing as a foreign corporation in each
jurisdiction where the failure to preserve and maintain such existence,
rights, franchises, privileges and qualification would, if not remedied,
materially adversely affect the interests of the Holder of the Variable
Funding Certificate and the Investor Certificateholders hereunder or in the
Receivables, or the ability of the Transferor or the Servicer to perform
its obligations hereunder in the case of (ii) and where such failure shall
remain unremedied for a period of 30 days or such failure shall have a
material adverse effect on the interests of the Trust or the
Certificateholders or the Trust's interests in the Receivables, or the
ability of the Transferor or the Servicer to perform its obligations
hereunder.
(c) Audits. At any time and from time to time during the
Transferor's regular business hours, on reasonable prior notice and for a
purpose reasonably related to this Agreement, the Transferor shall, in
response to any reasonable request of the Trustee, permit the Trustee, or
its agents or representatives, (i) to examine and make copies of and
abstracts from all books, records and documents (including, without
limitation, computer tapes and disks) in the possession or under the
control of the Transferor relating to the Receivables, the Related Security
and the related Contracts and (ii) to visit the offices and properties of
the Transferor for the purpose of examining such materials and to discuss
matters relating to the Receivables or the Transferor's performance
hereunder with any of the officers or employees of the Transferor having
knowledge thereof. Any such examination or visit made pursuant to this
Section 2.06(c) shall be at the cost and expense of the party or parties
making such examination or visit.
(d) Continuous Perfection. The Transferor shall not change
its name, identity or structure in any manner which might make any
financing or continuation statement filed hereunder misleading within the
meaning of Section 9-402(7) of the UCC (or any other then applicable
provision of the UCC) unless the Transferor shall have given the Trustee at
least 90 days' prior written notice thereof and shall have taken all action
60 days prior to making such change (or made arrangements to take such
action substantially simultaneously with such change if it is impossible to
take such action in advance) necessary or advisable to amend such financing
statement or continuation statement so that it is not misleading. The
Transferor shall not change its chief executive office or change the
location of its principal records concerning the Receivables, the Related
Security or the Collections from the locations specified in Section 2.03(i)
unless it has given the Trustee at least 60 days' prior written notice of
its intention to do so and has taken such action as is necessary or
advisable to cause the interest of the Trustee in the Receivables and the
other Trust Assets to continue to be perfected with the priority required
by this Agreement. The Transferor will at all times maintain its principal
executive office and any other office at which it maintains records
relating to the Receivables and the Related Security within the United
States of America. The Transferor shall provide notice to the Rating
Agencies confirming that WCC-1 financing statements to be filed within 10
days of the Initial Closing Date shall have been filed.
(e) Extension or Amendment of Receivables. The Transferor
shall not extend, amend or other wise modify the terms of any Receivable,
or amend, modify or waive any term or condition of any Contracts related
thereto in any manner which would have a material adverse effect on the
interests of the Certificateholders.
(f) Reports. The Transferor shall furnish to the Trustee and to
each Rating Agency as soon as possible and in any event within five
Business Days after the occurrence of each Event of Termination or the
Transferor's knowledge of a Prospective Event of Termination, the statement
of a senior financial officer of the Transferor setting forth the details
of such Event of Termination or Prospective Event of Termination and the
action taken, or which the Transferor proposes to take, with respect
thereto.
(g) Certain Documentation. The Transferor shall hold for
the account of the Trust (to the extent of its interest therein) any
document evidencing or securing a Receivable and the related Contract,
other than instruments (as such term is used in the WCC), if any, that
shall have been delivered to the Trustee contemporaneously with the
conveyance to the Trust hereunder. Such holding by the Transferor shall be
in trust and shall be deemed to be the holding thereof by the Trustee for
purposes of perfecting the Trust's rights therein as provided in the UCC.
(h) Assessments. The Transferor will promptly pay and discharge
all taxes, assessments, levies and other governmental charges imposed on it
which may adversely affect any of the Receivables or the Trust's rights with
respect thereto.
(i) Change in Lock-Box Banks or Instructions. The
Transferor may permit Xxxxxx to add or terminate any bank as a Lock-Box
Bank from those listed in Exhibit K hereto, or make any change in the Lock-
Box Agreements or in its existing instructions to Obligors regarding
payments to be made to any Lock-Box Bank (so long as an Obligor remains
instructed to make payments on a Receivable to a Lock-Box Account and so
long as any such change shall not change the Transferor as the owner of the
Lock-Box Account), but in each case only upon written notice from Xxxxxx to
the Trustee and the Transferor; provided that any bank, other than those
banks listed on Exhibit K hereto (including their successors), added as a
Lock-Box Bank shall have short-term debt ratings of A-1 by S&P and, if
rated by Fitch, F-1 by Fitch at the time it becomes a Lock-Box Bank or the
addition of such bank as a Lock-Box Bank shall have been consented to by
the Required Banks. The Transferor shall give notice to the Trustee of the
name and address of each additional Lock-Box Bank. In the event that the
Transferor or Xxxxxx enters into a Lock-Box Agreement with a Lock-Box Bank
with respect to which the Transferor or Xxxxxx had not entered into a Lock-
Box Agreement at the Initial Closing Date, the Transferor shall deliver, or
cause Xxxxxx to deliver, to the Trustee a copy of the executed Lock-Box
Agreement prior to instructing any Obligors to make payment to such Lock-
Box Bank. The Transferor shall provide notice to the Rating Agencies
confirming that all Lock-Box Agreements have been amended to name the
Transferor as the party thereto within 30 days of the Initial Closing Date.
(j) Further Action. The Transferor shall, from time to
time, execute and deliver to the Trustee any instruments, financing or
continuation statements or other writings reasonably necessary or
desirable to maintain the perfection or priority of the Trustee's ownership
or security interest in the Receivables, the Related Security and the
Collections under the UCC or other applicable law. The Transferor shall,
from time to time, execute and deliver to the Obligors on the Receivables
any bills, statements and letters or other writings necessary to carry out
the terms and provisions of this Agreement and to facilitate the collection
of the Receivables.
(k) Additional Indebtedness. The Transferor shall not
create, incur, assume or suffer to exist any indebtedness (including,
without limitation, any guaranty) or expense (whether or not accounted for
as a liability) except (i) indebtedness hereunder, under the Purchase
Agreement, the Investor Certificates, the Variable Funding Certificate, or
any agreements, contracts or instruments which relate thereto, (ii)
indebtedness or other expense to its professional advisers and its counsel,
not exceeding $50,000, (iii) where that Person to whom such indebtedness or
expense will be owing has delivered to the Transferor an undertaking that
it will not institute against, or join any other Person in instituting
against, the Transferor any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding, or other proceeding under any federal
or state bankruptcy or similar law, for one year and a day after the
Variable Funding Certificate and all Investor Certificates are paid in
full, and (iv) other indebtedness and expenses, not exceeding $4,750 at any
one time outstanding, on account of incidentals or services supplied or
furnished to the Transferor; provided, that the obligations of the
Transferor to Certificateholders hereunder, solely with respect to the
payment of interest and the repayment of principal under such Certificate,
shall be payable solely from the Trust Assets in accordance herewith and
the Certificateholders shall not look to any other property or assets of
the Transferor in respect of such obligations and such obligations shall
not constitute a claim against the Transferor in the event that the Trust
Assets are insufficient to pay in full such interest and principal;
provided, that the obligations of the Transferor to Certificateholders
hereunder with respect to amounts other than interest and principal under
the Certificates shall be payable from the Trust Assets or any other assets
of the Transferor, except that all such obligations of the Transferor to
Certificateholders shall be suspended at any time that, and for so long as,
the Transferor's assets are insufficient to pay in full such obligations,
and that all such obligations are fully subordinated to the Transferor's
obligations with respect to the payment of interest and principal under the
Investor Certificates and the Variable Funding Certificate, and the
security interest of the Trustee in the Trust Assets with respect to such
interest and principal obligations.
(l) No Transfer. The Transferor agrees that it shall not
sell, assign, pledge, convey or otherwise transfer any Receivable or any
interest therein or any other Trust Asset, except for the transfer of the
Trust Assets to the Trust as provided herein, and shall defend and hold
harmless the Trustee from any Adverse Claim in or to any Eligible
Receivable, except to the extent the Transferor is otherwise required to
repurchase such Receivable hereunder.
(m) No Other Business. The Transferor agrees to engage in no
business other than the business contemplated hereunder and under the Purchase
Agreement without the prior written confirmation from each Rating Agency that
such change in business will not result in such Rating Agency reducing or
withdrawing its rating on any outstanding Series or the Commercial Paper.
(n) Enforcement and No Modification of Purchase Agreement. The
Transferor agrees to take all action necessary and appropriate to enforce
its rights and claims under the Purchase Agreement. The Transferor agrees
not to amend or modify the Purchase Agreement without the prior written
consent of the Holder of the Variable Funding Certificate and the Holders
of Investor Certificates evidencing fractional undivided interests
aggregating not less than 65% of the Invested Amount and without the prior
written confirmation from each Rating Agency that such amendment will not
result in such Rating Agency reducing or withdrawing its rating on any
outstanding Series or the Commercial Paper.
(o) Separate Business. The Transferor shall at all times (a) to
the extent the Transferor's office is located in the offices of Xxxxxx or any
Affiliate of Xxxxxx, pay fair market rent for its executive office space
located in the offices of Xxxxxx or any Affiliate of Xxxxxx, (b) maintain the
Transferor's books, financial statements, accounting records and other
corporate documents and records separate from those of Xxxxxx or any other
entity, (c) not commingle the Transferor's assets with those of Xxxxxx or any
other entity; provided that the foregoing restriction shall not preclude the
Transferor from lending its excess cash balances to Xxxxxx for investment
(which may include inter-affiliate loans made by Xxxxxx) by Xxxxxx on a pooled
basis as part of the cash management system maintained by Xxxxxx for its
consolidated group so long as all such transactions are properly reflected on
the books and records of the Transferor and Xxxxxx, (d) act solely in its
corporate name and through its own authorized officers and agents, (e) make
investments directly or by brokers engaged and paid by the Transferor or its
agents (provided that if any such agent is an Affiliate of the Transferor it
shall be compensated at a fair market rate for its services), (f)
separately manage the Transferor's liabilities from those of Xxxxxx or any
affiliates of Xxxxxx and pay its own liabilities, including all
administrative expenses, from its own separate assets, except that Xxxxxx
may pay the organizational expenses of the Transferor, and (g) pay from the
Transferor's assets all obligations and indebtedness of any kind incurred
by the Transferor. The Transferor shall abide by all corporate
formalities, including the maintenance of current minute books, and the
Transferor shall cause its financial statements to be prepared in
accordance with generally accepted accounting principles in a manner that
indicates the separate existence of the Transferor and its assets and
liabilities. The Transferor shall (i) pay all its liabilities, (ii) not
assume the liabilities of Xxxxxx or any affiliate of Xxxxxx, and (iii) not
guarantee the liabilities of Xxxxxx or any affiliates of Xxxxxx. The
officers and directors of the Transferor (as appropriate) shall make
decisions with respect to the business and daily operations of the
Transferor independent of and not dictated by any con trolling entity.
(p) Corporate Documents. The Transferor shall not amend, alter,
change or repeal Articles III, V, IX, XI, XII and XIII of its Certificate of
Incorporation without the prior written consent of each of its Independent
Directors and the Trustee and without the prior written confirmation by each
Rating Agency that such amendment will not result in such Rating Agency
reducing or withdrawing its rating on any outstanding Series or on the
Commercial Paper.
(q) Designated Subsidiaries. From and after the Initial Closing
Date, the Transferor shall not consent to the designation of additional
Designated Subsidiaries by Xxxxxx without the prior written consent of the
Required Banks.
(r) ERISA. The Transferor shall promptly give the Trustee notice
of the following events, as soon as possible and in any event within 30 days
after the Transferor or any of its ERISA Affiliates knows or has reason to
know thereof: (i) the occurrence or expected occurrence of any Reportable
Event with respect to any Plan to which the Transferor or any of its ERISA
Affiliates contributed, or any withdrawal from, or the termination,
Reorganization or Insolvency of any Multiemployer Plan to which the Transferor
or any of its ERISA Affiliates contributes or to which contributions have
been required to be made by the Transferor or such ERISA Affiliate during
the preceding five years or (ii) the institution of proceedings or the
taking of any other action by the PBGC or the Transferor or any of its
ERISA Affiliates or any such Multiemployer Plan with respect to the
withdrawal from, or the termination, Reorganization or Insolvency of, any
such Plan or Multiemployer Plan.
(s) Purchase Agreement Notices, Waivers, Etc. The
Transferor (i) shall promptly give the Trustee copies of any notices,
reports or certificates given or delivered to the Transferor under the
Purchase Agreement and (ii) shall not, without the prior consent of the
Holder of the Variable Funding Certificate and Holders of Investor
Certificates evidencing fractional undivided interests aggregating not less
than 65% of the Invested Amount, enter into any amendment, supplement or
other modification to, or waiver of any provision of, the Purchase
Agreement or consent to the addition of a Designated Subsidiary thereunder.
(t) Payments from Lock-Box Accounts. The Transferor,
promptly on the Business Day on which any Collections deposited into the
Lock-Box Accounts shall have become good available funds, shall remit or
cause to be remitted such Collections to the Collection Account.
Section 2.07 Authentication of Certificates. Pursuant to the request
of the Transferor, the Trustee has caused Certificates in authorized
denominations evidencing the entire beneficial ownership of the Trust to be
duly authenticated and delivered to or upon the order of the Transferor
pursuant to Section 6.02.
Section 2.08. Tax Treatment. The Transferor has entered into this
Agreement, and the Variable Funding Certificate and the Investor
Certificates have been (or will be) issued, with the intention that such
Investor Certificates and Variable Funding Certificate will qualify under
applicable tax law as indebtedness of the Transferor. The Transferor, the
Holder of the Variable Funding Certificate, each Investor Certificateholder
by acceptance of its Investor Certificate and each Certificate Owner by
acquiring an interest in an Investor Certificate agrees to treat the
Variable Funding Certificate or the Investor Certificates, as the case may
be, as indebtedness of the Transferor, for purposes of federal, state
and local income or franchise taxes and for any other tax imposed on or
measured by income. In accordance with the foregoing, the Transferor agrees
that it will report its income for such federal, state, and local income or
franchise taxes, or for other taxes on or measured by income, on the basis
that it is the owner of the Receivables. Furthermore, the Trustee hereby
agrees to treat the Trust as a security device only, and shall not file tax
returns or obtain an employer identification number on behalf of the Trust.
Section 2.09 Cancellation of the Certificates of any Series. The
Transferor may acquire any Certificate of any Series and deliver it to the
Trustee for cancellation under this Section. Upon such delivery, the
Trustee shall cancel such Investor Certificate as provided in Section
12.03(c). As a result of such delivery and cancellation, the Transferor
Amount shall be increased by the principal amount of such Investor
Certificate and the Invested Percentages with respect to such Series, the
Minimum Aggregate Principal Receivables and any other defined term herein
or in the applicable Supplement, the definition of which depends upon an
assumption that such Investor Certificate had been issued as a part of such
Series, shall be recomputed on the basis of the assumption that such
Investor Certificate had not been issued as part of such Series. Upon such
delivery, such Certificate shall be accompanied by an Officer's Certificate
of the Transferor stating the recomputed amounts of the defined terms
referred to in the preceding sentence.
Section 2.10 Transferor Minimum Amount; Minimum Adjusted Eligible
Principal Receivables. If, with respect to any Series or the Variable
Funding Certificate, on any Business Day (A) the Transferor Eligible
Amount as of the end of the preceding Business Day is less than the
Transferor Minimum Amount for such preceding Business Day or (B) the
Adjusted Eligible Principal Receivables as of the end of the preceding
Business Day are less than the Minimum Adjusted Eligible Principal
Receivables an of the end of such preceding Business Day, the Transferor
shall make or cause to be made a deposit in the Transferor Account in
immediately available funds by the close of business on the next Business
Day, in an amount equal to the Transferor Account Deposit Amount.
[END OF ARTICLE II]
ARTICLE III
ADMINISTRATION AND SERVICING
OF RECEIVABLES
Section 3.01 Acceptance of Appointment and Other Matters Relating to the
Servicer.
(a) Xxxxxx agrees to act, and is hereby appointed by the Trustee
and the Transferor to act, as the Servicer under this Agreement, and all
Certificate holders, including the Transferor, by their acceptance of the
Certificates consent to Xxxxxx acting as Servicer. The Servicer shall
service and administer the Receivables and shall collect payments due under
the Receivables in accordance with its customary and usual servicing
procedures for servicing receivables owned by it and comparable to the
Receivables and in accordance with the Credit and Collection Policy and
shall have full power and authority, acting alone or through any party
properly designated by it hereunder, to do any and all things in connection
with such servicing and administration which it may deem necessary or
desirable; provided, however, that if Xxxxxx is no longer the Servicer, the
Servicer shall service the Receivables in accordance with the standards
that would be employed by a prudent institution in servicing comparable
receivables for its own account. Without limiting the generality of the
foregoing and subject to Section 10.01, the Servicer is hereby authorized
and empowered (i) to instruct the Trustee to make withdrawals and payments
from the Collection Account as set forth in this Agreement or any
Supplement, (ii) to execute and deliver, on behalf of the Trust for the
benefit of the Certificateholders, any and all instruments of satisfaction
or cancellation, or of partial or full release or discharge, and all other
comparable instruments, with respect to the Receivables and, after the
delinquency of any Receivable and to the extent permitted under and in
compliance with applicable law and regulations, to commence enforcement
proceedings with respect to such Receivable, and (iii) to make any filings,
reports, notices, applications, registrations with, and to seek any consent
or authorizations from, the Securities and Exchange Commission and any
state securities authority on behalf of the Trust as may be necessary or
advisable to comply with any federal or state securities or reporting
requirements or laws.
(b) The Servicer shall not, and no Successor Servicer shall,
be obligated to use separate servicing procedures, offices, employees or
accounts for servicing the Receivables from the procedures, offices,
employees and accounts used by the Servicer or such Successor Servicer, as
the case may be, in connection with servicing other receivables of the same
type.
(c) Each of the Transferor and the Trustee hereby appoints the
Servicer as its agent to enforce its respective rights and interest in and
under the Receivables, the related Contracts and the Related Security. If
Xxxxxx is not the Servicer, Xxxxxx shall promptly deliver to the Servicer, and
the Servicer shall hold in trust for the Transferor and the Trustee in
accordance with their respective interests, all documents, instruments and
records (including, without limitation, computer tapes or disks) that evidence
or relate to Receivables.
(d) Provided no Event of Termination shall have occurred and be
continuing, the Servicer may, in accordance with the Credit and Collection
Policy, (i) extend the maturity or adjust the Unpaid Balance of any Receivable
as the Servicer may determine to be appropriate to maximize Collections
thereof and (ii) adjust the Unpaid Balance of any Receivable to reflect
Credits.
(e) Except to the extent that, in accordance with the
Credit and Collection Policy, Credits may be applied toward future
purchases and not as a reduction of the Unpaid Balance of an existing
Receivable, or to the extent that Collections on Receivables that are not
Eligible Receivables or are in excess of the Concentration Limit are deemed
to be Collections on Adjusted Eligible Receivables or as otherwise required
by law, Credits and Collections shall be applied to the Receivables to
which they relate.
(f) The Servicer shall provide all reports and documentation
required by Section 3.04.
(g) In the event that the Transferor is unable for any
reason to transfer Receivables to the Trust in accordance with the
provisions of this Agreement (including, without limitation, by reason of
any court of competent jurisdiction ordering that the Transferor not
transfer any additional Receivables to the Trust) then, in any such event,
(A) the Servicer agrees to allocate and pay to the Trust, after the date of
such inability, all Collections with respect to Receivables transferred to
the Trust prior to the occurrence of such event, and all amounts that would
have constituted Collections with respect to accounts receivable that would
have been Receivables but for the Transferor's inability to transfer such
accounts receivable to the Trust (up to an aggregate amount equal to the
amount of Receivables in the Trust as of such date); and (B) the Servicer
agrees to have such amounts applied as Collections in accordance with
Section 4.03. For the purpose of the immediately preceding sentence of
this Section 3.01(g), unless otherwise specifically directed by the
Obligor, the Servicer shall treat the first received Collections with
respect to the Receivables as allocable to the Trust for the benefit of all
Certificateholders until the Trust shall have been allocated and paid
Collections in an amount sufficient to pay the aggregate amount of
Receivables in the Trust as of the date of occurrence of such event.
(h) Obligors shall be instructed by the Transferor, the Servicer
or a Designated Subsidiary to make all payments on the Receivables to Lock-Box
Accounts maintained by Lock-Box Banks pursuant to Lock-Box Agreements and
all Collections on Receivables of amounts due and owing will, pending
remittance by the Servicer to the Collection Account, be held for the
benefit of the Trust and shall be payable to the Collection Account not
later than the Business Day on which funds are available following receipt
thereof. Any payments on the Receivables made by Obligors directly to the
Servicer shall be mailed by the Servicer to the appropriate Lock-Box Bank
not later than the Business Day following receipt thereof or shall be
deposited in the Collection Account not later than the Business Day
following the date on which funds are available.
Section 3.02 Servicinq Compensation. As compensation for its
servicing activities hereunder and reimbursement for its expenses as set
forth in the immediately following paragraph, the Servicer shall be
entitled to receive a servicing fee in respect of each day prior to the
termination of the Trust pursuant to Section 12.01 (the "Servicing Fee"),
payable in arrears on each date specified in the applicable Supplement,
equal to the product of (i) a fraction, the numerator of which is the
actual number of days in the measuring period specified in the applicable
Supplement and the denominator of which is the actual number of days in the
year, (ii) the weighted average Servicing Fee Percentage (based upon the
Servicing Fee Percentage for each Certificate and the Principal Receivables
allocated thereto) and (iii) the daily average aggregate Unpaid Balances of
all Principal Receivables over the term of such measuring period. The
share of the Servicing Fee allocable to each Series or the Variable Funding
Certificate with respect to any date of payment shall be equal to the
product of (i) a fraction, the numerator of which is the actual number of
days in the measuring period specified in the applicable Supplement and the
denominator of which is the actual number of days in the year, (ii) the
applicable Servicing Fee Percentage for such Series or the Variable Funding
Certificate and (iii) the Issuer Amount or the Invested Amount of such
Series, as appropriate, as of the date of determination for such payment as
specified in the applicable Supplement. The remainder of the Servicing Fee
shall be paid by the Transferor, or retained by the Servicer as provided in
Article IV, and in no event shall the Trust, the Trustee or the Investor
Certificateholders be liable for the share of the Servicing Fee to be paid
by the Transferor. Any Servicing Fees shall be payable to the Servicer
solely pursuant to the terms of, and to the extent amounts are available
for payment as provided in, Section 4.04 as set forth in the Supplement
relating to any Series and Section 4.05 as set forth in the Variable
Funding Supplement. In the event a Successor Servicer is appointed
pursuant to Section 10.02 hereto, the Servicing Fee with respect to such
Successor Servicer shall, unless otherwise agreed, be at least 0.25% per
annum of the daily average Unpaid Balances of the Receivables.
The Servicer's expenses include the amounts due to the Trustee pursuant
to Section 11.05, the reasonable fees and disbursements of independent
accountants, all other expenses incurred by the Servicer in connection with
its activities hereunder, and all other fees and expenses of the Trust not
expressly stated herein to be for the account of the Certificateholders;
provided that in no event shall the Servicer be liable for any federal, state
or local income or franchise tax, or any interest or penalties with respect
thereto, assessed on the Trust, the Trustee or the Certificateholders except
as expressly provided herein. In the event that the Servicer fails to pay
the amounts due to the Trustee pursuant to Section 11.05, the Trustee shall
be entitled to deduct and re ceive such amounts from the Servicing Fee,
prior to the payment thereof to the Servicer. The Servicer shall be
required to pay expenses for its own account and shall not be entitled to
any payment or reimbursement therefor other than the Servicing Fee.
Section 3.03 Representations, Warranties and Covenants of the
Servicer. Xxxxxx, as initial Servicer, and any Successor Servicer by its
appointment hereunder, hereby represent and warrant, in the case of the
initial Servicer, as of the Initial Closing Date and, with respect to any
Series and the Variable Funding Certificate as of the date of any
Supplement and the related Closing Date, and in the case of any Successor
Servicer, as of the date of its appointment and, with respect to any Series
issued after such date, as of the date of the related Supplement and the
related Closing Date, in each case unless otherwise stated in such
Supplement, and covenant (except that no representation, warranty or
covenant is made by any Successor Servicer with respect to paragraphs (l),
(o) and (q) below):
(a) Organization and Good Standing. The Servicer is a
corporation duly organized, validly existing and in good standing under the
laws of its state of incorporation, and has full corporate power, authority
and legal right to execute, deliver and perform its obligations under this
Agreement and any Supplement and, in all material respects, to own its
property and conduct its business as such properties are presently owned and
as such business is presently conducted.
(b) Due Qualification. The Servicer is duly qualified to do
business and is in good standing as a foreign corporation (or is exempt from
such requirements), and has obtained all necessary licenses and approvals in
each jurisdiction in which the failure to obtain such license or approval
would have a material adverse affect upon the Certificateholders or upon the
ability of the Servicer to perform its obligations under this Agreement.
(c) Due Authorization. The execution, delivery and
performance of this Agreement and any Supplement, and the consummation or
the transactions provided in this Agreement and any Supplement, have been
duly authorized by the Servicer by all necessary corporate action on the
part of the Servicer.
(d) Binding Obligation. Each of this Agreement and any
Supplement constitute legal, valid and binding obligations of the Servicer,
enforceable in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereinafter in effect, relating to the
enforcement of creditors' rights in general and, with respect to any
Successor Servicer which is a national banking association, the rights of
creditors of national banks under United States law and except as such
enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity).
(e) No Violation. The execution and delivery of this
Agreement and any Supplement by the Servicer, and the performance of the
transactions contemplated by this Agreement and any Supplement and the
fulfillment of the terms hereof applicable to the Servicer, will not
conflict with, violate, result in any breach of any of the material terms
and provisions of, or constitute (with or without notice or lapse of time
or both) a default under, or require any consent, approval or registration
under, any Requirement of Law applicable to the Servicer or any indenture,
contract, agreement, mortgage, deed of trust or other instrument to which
the Servicer is a party or by which it is bound.
(f) No Proceeding. There are no proceedings or
investigations pending or, to the best knowledge of the Servicer,
threatened against the Servicer before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality (i)
seeking to prevent the issuance of the Certificates or the consummation of
any of the transactions contemplated by this Agreement or any Supplement,
(ii) seeking any determination or ruling that, in the reasonable judgment
of the Servicer, would materially and adversely affect the performance by
the Servicer of its obligations under this Agreement or any Supplement, or
(iii) seeking any determination or ruling that would materially and
adversely affect the validity or enforceability of this Agreement or any
Supplement.
(g) Compliance with Requirements of Law. The Servicer shall
duly satisfy all obligations on its part to be fulfilled under or in
connection with the Receivables and the Related Security, will maintain in
effect all qualifications required under Requirements of Law in order to
service properly the Receivables and the Related Security and will comply
in all material respects with all Requirements of Law in connection with
servicing the Receivables and the Related Security the failure to comply
with which would have a material adverse effect on Certificateholders.
(h) No Rescission or Cancellation. The Servicer shall not
permit any rescission or cancellation of a Receivable or a Contract except
(i) as ordered by a court of competent jurisdiction or other Governmental
Authority or (ii) in the ordinary course of its business and in accordance
with the Credit and Collection Policy.
(i) Protection of Certificateholders' Rights. Except as
contemplated by Section 3.01(d), the Servicer shall take no action which, nor
omit to take any action the omission of which, would substantially impair the
rights of Certificateholders in any Receivable or the Related Security.
(j) All Consents Required. All approvals, authorizations,
consents, orders or other actions of any Person or of any Governmental
Authority required in connection with the execution and delivery by the
Servicer of this Agreement and any Supplement, the performance by the
Servicer of the transactions contemplated by this Agreement and any
Supplement and the fulfillment by the Servicer of the terms hereof and
thereof, have been obtained; provided, however, that the Servicer makes no
representation or warranty regarding state securities or "blue sky" laws in
connection with the distribution of the Certificates.
(k) Credit and Collection Policy. The Servicer, (i) except as
otherwise permitted in Section 3.01(d), shall not extend, amend or otherwise
modify the terms of any Receivable, or amend, modify or waive any term or
condition of any Contract related thereto, in any manner which would have a
material adverse effect on the interests of the Certificateholders or the
Trust, including, but not limited to, extending the due dates, or impairing
the collectibility of the Receivables, (ii) if Xxxxxx, shall comply in all
material respects with the Credit and Collection Policy in regard to each
Receivable and the related Contract, and (iii) if Xxxxxx, shall not without
the prior consent of the Required Banks make any change in the Credit and
Collection Policy that could reasonably be expected to have a material
adverse effect on the collectibility of the Receivables taken as a whole,
or the ability of the Servicer to perform its obligations hereunder.
(1) No Change in Ability to Service. With respect to the initial
Servicer only, since September 30, 1992, there has been no material adverse
change in the ability of the Servicer to service and collect the
Receivables and the Related Security.
(m) Modification of Systems. The Servicer agrees, promptly
after the replacement or any material modification of any computer,
automation or other operating systems (in respect of hardware or software)
used to provide the Servicer's services as Servicer or to make any
calculations or reports hereunder, to give notice of any such replacement
or modification to the Trustee.
(n) Business Days. No later than December 1 of each year, the
Servicer shall furnish the Trustee with a list of days other than Saturday and
Sunday, on which the Servicer shall be closed during the immediately
succeeding year, except that with respect to the calendar year 1993, the
Servicer shall furnish such list to the Trustee on or before the Initial
Closing Date.
(o) Payments from Lock-Box Accounts. The Servicer or, if Xxxxxx
is no longer the Servicer, Xxxxxx, shall (i) on or prior to the Initial
Closing Date, cause each party to a Lock-Box Agreement (other than the
Lock-Box Banks parties to such agreements) to direct each Lock-Box Bank to
make payments to Lock-Box Accounts maintained in the name of, and under the
sole control, dominion and ownership of the Transferor; and (ii) within 30
days after the Initial Closing Date, cause each party to a Lock-Box
Agreement, to amend each such Lock-Box Agreement to substitute Funding as
the party thereto.
(p) Keeping of Records and Books of Account. The Servicer shall
maintain and implement administrative and operating procedures (including,
without limitation, the ability to recreate records evidencing the
Receivables in the event of the destruction of the originals thereof), and
keep and maintain all documents, books, microfiche, computer records and
other information reasonably necessary or advisable for the collection of
all the Receivables and the Related Security. Such books, microfiche, and
computer records shall reflect all facts giving rise to the Receivables and
the Related Security, all payments and credits with respect thereto, and
the computer records shall be clearly marked to show the interests of the
Trust in the Receivables.
(q) Performance and Compliance with Xxxxxx'x Contracts. The
Servicer shall or, if Xxxxxx is no longer the Servicer, Xxxxxx shall timely
and fully perform and comply with all material provisions, cove
nants and other promises required to be observed by it under the Contracts
related to the Receivables.
(r) No Servicer Default. No Servicer Default has occurred or is
continuing.
(s) No Event of Termination. No Event of Termination has
occurred or is continuing.
(t) Change in Separate Receivables System. The Servicer, or if
Xxxxxx is no longer the Servicer, Xxxxxx, shall maintain separate books and
computer coding systems with respect to Receivables generated by the Xxxxxx
Book Company division of Xxxxxx and receivables generated by any other
division of Xxxxxx.
In the event there is any breach of any of the representations,
warranties or covenants of the Servicer contained in Section 3.03(g), (h), (i)
or (o) with respect to any Receivable and as a result thereof the rights of
the Trust in, to or under any such Receivable or its proceeds are impaired or
the proceeds of any such Receivable are not available to the Trust, then upon
the expiration of 30 days from the earlier to occur of the discovery of any
such event by the Servicer, or receipt by the Servicer of written notice of
such event given by the Trustee (such notice to be given within three Business
Days of the discovery thereof by a Responsible Officer of the Trustee), the
Servicer shall accept the trans fer of all the Receivables as to which such
event relates on the terms and conditions set forth below; provided,
however, that proceeds shall not be deemed to be impaired hereunder for the
sole reason that the proceeds are held by the Servicer for more than the
applicable period under Section 9-306(3) of the UCC; provided, further,
that no such removal shall be required to be made with respect to a
Receivable if, within such 30-day period, such representations, warranties
or covenants with respect to such Receivable shall be true and correct or
shall have been complied with, in all material respects; and provided,
further, that no Successor Servicer shall have any obligation to repurchase
any Receivable as a result of any breach of the representations, warranties
or covenants set forth in Section 3.03(o). The Servicer or, with respect
to Section 3.03(o), if Xxxxxx is not the Servicer, Xxxxxx shall accept the
transfer of a Receivable and the Related Security and Collections with
respect thereto by making or causing to be made a deposit into the
Collection Account in immediately available funds on or prior to the
Transfer Date following the expiration of the 30-day period set-forth in
this Section in an amount equal to the Transfer Deposit Amount for such
Receivables, which deposit shall be allocated in accordance with Section
4.03. Upon each such transfer of a Receivable to the Servicer, the Trustee
shall automatically and without further action be deemed to transfer,
assign, and set over, and otherwise convey to or upon the order of the
Servicer, without recourse, representation or warranty, all right, title
and interest of the Trust in and to such Receivable, the Related Security
and Collections with respect thereto and all proceeds thereof; and such
Receivable shall be treated by the Trustee as collected in full as of the
Settlement Period to which such Transfer Deposit Amount relates. The
Trustee shall execute such documents and instruments of transfer or
assignment as shall be prepared by the Servicer, and shall take such other
actions as shall be reasonably requested by the Servicer, to effect the
.onveyance of any Receivable pursuant to this Section. The obligation of
the Servicer to accept the transfer of any such Receivables, the Related
Security and Collections shall constitute the sole remedy respecting any
breach of the representations, warranties and covenants set forth in
Section 3.03(g), (h), (i) or (o) with respect to such Receivables, the
Related Security and Collections available to Certificateholders or the
Trustee on behalf of Certificateholders.
Section 3.04 Reports and Records for the Trustee. Bank Account
Statements.
(a) Daily Records. Upon reasonable prior notice by the Trustee,
the Servicer shall make available at an office of the Servicer selected by the
Servicer for inspection by the Trustee or its agent on a Business Day during
the Servicer's normal business hours a record setting forth (i) the
Collections on each Receivable and (ii) the amount of Receivables for the
Business Day preceding the date of the inspection. The Servicer shall, at all
times, maintain its computer files with respect to the Receivables in such a
manner so that the Receivables may be specifically identified and, upon
reasonable prior request of the Trustee, shall make available to the Trustee,
at an office of the Servicer selected by the Servicer, on any Business Day
during the Servicer's normal business hours any computer programs necessary to
make such identification.
(b) Daily Report.
(i) On each Business Day, the Servicer shall prepare, or, if
Xxxxxx is not the Servicer, Xxxxxx shall prepare on behalf of the Successor
Servicer, a completed Daily Report.
(ii) The Servicer (or if Xxxxxx is not the Servicer, Xxxxxx)
shall deliver to the Trustee (with copies to the Depositary and the Collateral
Agent if either of such Persons is not also the Trustee) the Daily Report by
10:00 a.m. (New York City time) on each Business Day with respect to activity
in the Receivables for the prior Business Day (or, in the case of a Daily
Report delivered on the second Business Day following a Saturday, Sunday or
other non-Business Day, the aggregate activity for the preceding Business Day
and such non-Business Days).
(iii) Upon discovery of any error or receipt of notice of any
error in any Daily Report, the Servicer, Xxxxxx (if not the Servicer), the
Transferor and the Trustee shall arrange to confer and shall agree upon any
adjustments necessary to correct any such errors. Until correction of such
error, the Servicer or the Trustee, as the case may be, shall retain all
Collections (or such lesser amount as the Trustee and the Servicer shall
agree to be necessary to cover any error) in the Collection Account.
Unless the Trustee has received written notice of any discrepancy, the
Trustee may rely on each Daily Report delivered to it for all purposes
hereunder.
(c) Settlement Statement. On each Determination Date, the
Servicer shall, or if Xxxxxx is not the Servicer, the Successor Servicer shall
with information provided by Xxxxxx, perform the calculations to be made on
such Determination Date and reported on the related Settlement Statement
and, prior to 10:00 a.m. (New York City time) on the Settlement Date,
deliver to the Trustee (with copies to the Depositary and the Collateral
Agent if either of such Persons is not also the Trustee), the Rating
Agencies and Xxxxxx (if prepared by a Successor Servicer), the Settlement
Statement for the related Settlement Period.
Section 3.05 Annual Servicer's Certificate. The Servicer will deliver to
the Trustee and the Rating Agencies on or before April 30 of each calendar
year, beginning with April 30, 1994, an Officers' Certificate substantially in
the form of Exhibit F stating that (a) a review of the activities of the
Servicer during the preceding fiscal year of the Servicer (or shorter period
from the Initial Closing Date) and of its performance under this Agreement and
any Supplement was made under the supervision of the officers signing such
certificate and (b) to the best of such officers' knowledge, based on such
review, the Servicer has fully performed or has caused to be fully performed
all of its obligations under this Agreement and any Supplement throughout such
year, or, if there has been a default in the performance of any such
obligation, specifying each such default known to such officer and the nature
and status thereof. A copy of such certificate may be obtained by any
Certificateholder by a request in writing to the Trustee addressed to the
Corporate Trust Office.
Section 3.06 Annual Independent Public Accoun-tants' Servicing Report.
(a) On or before April 30 of each calendar year, beginning
with April 30, 1994, the Servicer shall cause a firm of nationally
recognized independent public accountants (who may also render other
services to the Servicer or the Transferor) to furnish a report (which
report shall cover the period from January 1 of the prior calendar year to
and including December 31 of such calendar year or such shorter period as
may have elapsed since the Initial Closing Date to and including December
31, 1993) addressed to the Board of Directors of the Transferor, providing
that such report also may be delivered to the Trustee and each Rating
Agency, to the effect that they have applied certain procedures agreed upon
with the Servicer and examined certain documents and records relating to
the servicing of Receivables under this Agreement, and that, based upon
such agreed-upon procedures, nothing has come to the attention of such
accountants that caused them to believe that the servicing (including,
without limitation, the allocation of Collections) has not been conducted
in compliance with the terms and conditions set forth in Sections 3.04,
4.02, 4.03, 4.04, 4.06, 4.07 and 12.01 of this Agreement and in compliance
with any Supplement, except for such exceptions as they believe to be
immaterial and such other exceptions as shall be set forth in such
statement. In addition, prior to the delivery of each such report, such
accountants shall set forth proposed procedures, subject to the reasonable
consent of the Liquidity Agent and the Trustee. A copy of such report may
be obtained by any Certificateholder by a request in writing to the Trustee
addressed to the Corporate Trust Office.
(b) On or before April 30 of each calendar year, beginning
with April 30, 1994, the Servicer shall cause a firm of nationally
recognized independent public accountants (who may also render other
services to the Servicer or the Transferor) to furnish a report to the
Trustee to the effect that they have compared the mathematical calculations
of each amount set forth in the Settlement Statements forwarded by the
Servicer pursuant to Section 3.04(c) during the period covered by such
report (which shall be the period from January 1 of the prior calendar year
to and including December 31 of such calendar year or such shorter period
as may have elapsed from the Initial Closing Date to and including December
31, 1993) with the Servicer's computer reports which were the source of
such amounts and that on the basis of such comparison, such accountants
have found that such amounts are in agreement, except for such exceptions
as they believe to be immaterial and such other exceptions as shall be set
forth in such statement. The Servicer shall promptly forward a copy of
such report to each Rating Agency. A copy of such report may be obtained
by any Certificateholder by a request in writing to the Trustee addressed
to the Corporate Trust Office.
Section 3.07 [Reserved].
Section 3.08 Notices to the Transferor. The Servicer shall deliver or
make available to the Transferor each certificate and report required to be
prepared, forwarded or delivered pursuant to Sections 3.04, 3.05 and 3.06.
Section 3.09 Credits. If the Unpaid Balance of any Receivable is adjusted
by the Servicer for any Credit, the Transferor Amount with respect to the
Business Day following the Business Day on which such adjustment takes
place will be reduced by the amount of the adjustment allocable to
Principal Receivables. In connection with such reduction, the amount of
Principal Receivables used in the denominator in the calculation of the
Invested Percentage with respect to any Series and the Issuer Percentage
for the Business Day following the Business Day on which such adjustment
occurs shall also be reduced. In the event that such adjustment would
cause the Transferor Eligible Amount to be less than the Transferor Minimum
Amount or would not be permitted by any Requirement of Law, the Transferor
shall make or cause to be made by the close of business on the Business Day
following the Business Day on which such adjustment occurs a deposit in the
Transferor Account in immediately available funds in the Transferor Account
Deposit Amount.
Section 3.10 Covenant to Maintain Privileges. The Servicer shall maintain
all of its rights, powers and privileges material to the collectibility of the
Receivables.
[END OF ARTICLE III]
ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND ALLOCATION
AND APPLICATION OF COLLECTIONS
Section 4.01 Rights of Certificateholders. Each Series shall
represent an Undivided Interest in the Trust, and the right to receive
Collections and other amounts at the times and in the amounts specified in
this Article IV to be deposited in the Collection Account or paid to or on
behalf of the Investor Certificateholders (the "Investor Interest"). The
Variable Funding Certificate shall represent an Undivided Interest in the
Trust and the right to receive Collections and other amounts at the times
and in the amounts specified in this Article IV to be deposited in the
Collection Account or paid to or on behalf of the Holder of the Variable
Funding Certifi cate (the "Issuer Interest"). The Transferor Certificate
shall represent the remaining interest in the Trust, including the right to
receive Collections and other amounts at the times and in the amounts
specified in this Article IV to be paid to or on behalf of the Holder of
the Transferor Certificate (the "Transferor Interest"); provided, however,
that such certificate shall not represent any interest in the Collection
Account (except to the extent provided in this Agreement) and neither the
Transferor nor the Servicer shall have the right to withdraw funds from the
Collection Account or to receive funds on deposit therein except as and
when provided by this Agreement.
Section 4.02 Establishment of Collection Account and Transferor
Account.
(a) The Collection Account. The Trustee, for the benefit
of Certificateholders, including the Holder of the Variable Funding
Certificate, shall establish or shall cause to be established and
maintained with an Eligible Institution (which may be the Trustee) in the
name of the Trustee, on behalf of the Trust, a fully segregated trust
account which may be a sub-account of the Collateral Account with the trust
department of such institution (the "Collection Account"), bearing a
designation clearly indicating that the funds deposited therein are held
for the benefit of the Certificateholders. Except as provided in this
Agreement, the Collection Account shall be under the sole dominion and
control of the Trustee for the benefit of the Certificateholders.
If, at any time, the institution holding the Collection Account ceases to be
an Eligible Institution, the Trustee shall within 30 days of a Responsible
Officer learning of such event establish a new Collection Account meeting the
conditions specified above with an Eligible Institution, transfer any cash
and/or any investments to such new Collection Account and from the date such
new Collection Account is established, it shall be the "Collection Account".
Neither the Transferor nor the Servicer, nor any Person claiming by, through
or under the Transferor or Servicer, shall have any right, title or interest
in, or any right to withdraw any amount from, the Collection Account except
to the extent provided in this Agreement. Pursuant to the authority granted to
the the Servicer pursuant to Section 3.01(a), the Servicer shall have the
revocable power to instruct the Trustee to make withdrawals and payments from
the Collection Account for the purposes of carrying out the Servicer's duties
hereunder.
(b) The Transferor Account. The Trustee, for the benefit
of Certificateholders, including the Holder of the Variable Funding
Certificate, shall establish or shall cause to be established and
maintained with the same Eligible Institution maintaining the Collection
Account in accordance with subparagraph (a), in the name of the Trustee, on
behalf of the Trust, a fully segregated trust account (which may be a sub-
account of the Collateral Account) with the trust department of such
institution (the "Transferor Account"), bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Certificateholders. Except as provided in this Agreement, the Transferor
Account shall be under the sole dominion and control of the Trustee for the
benefit of the Certificateholders. If, at any time, the institution
holding the Transferor Account ceases to be an Eligible Institution, the
Trustee shall, concurrently with the establishment of a new Collection
Account in accordance with subparagraph (a), establish a new Transferor
Account meeting the conditions specified above with the same Eligible
Institution, transfer any cash and/or any investments to such new
Transferor Account and from the date such new Transferor Account is
established, it shall be the "Transferor Account". Neither the Transferor
nor the Servicer, nor any Person claiming by, through or under the
Transferor or the Servicer, shall have any right, title or interest in, or
any right to withdraw any amount from, the Transferor Account except to the
extent provided in this Agreement. Pursuant to the authority granted to
the Servicer pursuant to Section 3.01(a), the Servicer shall have the
revocable power to instruct the Trustee to make withdrawals and payments
from the Transferor Account for the purposes of carrying out the Servicer's
duties hereunder. The amount to be deposited in the Transferor Account on
any day shall equal the Transferor Account Deposit Amount. All amounts
from time to time held in the Transferor Account (other than investment
earnings) shall constitute Trust Assets.
(c) Administration of the Collection Account and the
Transferor Account. Funds on deposit in the Collection Account (other than
investment earnings and amounts deposited pursuant to Sections 2.04(c),
3.03, 9.03 or Article XII) shall at the direction of the Servicer be
invested by the Trustee in Permitted Investments that will mature so that
such funds will be available prior to the Payment Date following such
investment, except that in the case of funds representing Collections with
respect to any Settlement Period, such Permitted Investments may mature so
that such funds will be available no later than the Business Day prior to
the Payment Date for such Settlement Period. Funds on deposit in the
Transferor Account shall at the direction of the Servicer be invested by
the Trustee in Permitted Investments that will mature so that such funds
will be available prior to the date on which the Transferor is expected to
be entitled to the release of such amounts in accordance with Section
4.03(b)(vii), provided, that once invested, such amounts may not be
released pursuant to Section 4.03(b)(vii) or otherwise until such Permitted
Invest ments mature. Any funds on deposit in the Collection Account or the
Transferor Account to be so invested shall be invested solely in Permitted
Investments. Any request by the Servicer to invest funds on deposit in the
Collection Account or the Transferor Account shall be in writing and shall
certify that the funds requested to be invested may be so invested pursuant
to the terms hereof, and that the requested investment is a Permitted
Investment which matures at or prior to the time required hereby. The
Trustee shall maintain possession of the negotiable instruments or
securities, if any, evidencing the Permitted Investments described in
clause (a) of the definition thereof from the time of purchase thereof
until maturity. All interest and earnings (net of losses and investment
expenses) on funds on deposit in the Collection Account or the Transferor
Account shall be paid by the Trustee to the Transferor on each Payment
Date. Neither the Transferor nor the Servicer shall deposit any of their
funds in the Collection Account at any time except for funds
unconditionally required to be paid on account of the purchase price of
Certificates or the Transfer Deposit Amount of Reconveyed Receivables
pursuant to this Agreement; provided, however that the Transferor shall be
permitted to make a cash contribution to the Trust to repay the Variable
Funding Certificate or any Series to the extent permitted by the terms of
the related Supplement, including under Section 12.02, in connection with
which the Issuer Amount or applicable Invested Amount, as the case may be,
shall be reduced and the Transferor Amount shall be increased accordingly.
(d) Identification of Collection Account and Transferor
Account. Schedule 1, which is hereby incorporated into and made part of
this Agreement, identifies the Collection Account and the Transferor
Account by setting forth the account number of each such account, the
account designation of each such account and the name and location of the
institution with which each such account has been established.
Section 4.03 Collections and Allocations.
(a) Collections. The Servicer will allocate, pay or deposit
all Collections with respect to the Receivables (all of which Collections,
subject to Section 4.09, shall be deemed to relate to, and to be received
with respect to, Adjusted Eligible Receivables) for each Business Day as
described in this Article IV. No later than the second Business Day
following the receipt of any Collections in a Lock Box Account, the
Servicer shall deposit such Collections into the Collection Account and
shall allocate or pay such Collections as indicated in Section 4.03(b).
(b) Payments and Allocations. On each Business Day, the
Servicer shall allocate the aggregate amount of Collections available in
the Collection Account on such Business Day and not previously allocated
hereunder (x) to the extent of the product of the total amount of such
Collections and the Discount Factor on such Business Day to Imputed Yield
(the "Imputed Yield Collections") and (y) to the extent of the total amount
of such Collections minus the amount described in clause (x) to Principal
Receivables (the "Principal Collections"). On each Business Day, the
Servicer shall determine with respect to each Series and the Variable
Funding Certificate whether an Amortization Period has commenced on or
prior to such Business Day, and based upon such determination, shall
determine the amounts or percentages of the Collections to be withdrawn
from the Collection Account on such Business Day and shall pay or allocate
such Collections to or among each Series, the Variable Funding Certificate
and the Transferor Certificate as provided below.
(i) For any Series in its Non-Amortization Period:
(A) Allocate to each such Series an amount equal to the
product of (1) the Invested Percentage for such Series and (2) the
Imputed Yield Collections for such Business Day.
(B) Allocate and pay to the Holder of the Transferor
Certificate an amount equal to the product of (1) the Invested
Percentage for such Series and (2) the Principal Collections for such
Business Day.
(ii) For any Series in its Amortization Period:
(A) Allocate to each such Series an amount equal to the
product of (1) the Invested Percentage for such Series and (2) the
Imputed Yield Collections for such Business Day.
(B) Allocate to each such Series an amount equal to the
product of (1) the Invested Percentage for such Series and (2) the
Principal Collections for such Business Day.
(iii) For the Variable Funding Certificate in its
Non-Amortization Period:
(A) Allocate to the Variable Funding Certificate an amount
equal to the product of (1) the Issuer Percentage and (2)
the Imputed Yield Collections for such Business Day.
(B) Allocate the product of (1) the Issuer Percentage and (2)
the Principal Collections for such Business Day to the Variable
Funding Certificate and apply such product in the manner set forth in
the Variable Funding Supplement.
(iv) For the Variable Funding Certificate in its Amortization
Period:
(A) Allocate to the Variable Funding Certificate an amount
equal to the product of (1) the Issuer Percentage and (2) the aggregate
amount of Imputed Yield Collections for such Business Day.
(B) Allocate to the Variable Funding Certificate the product
of (1) the Issuer Percentage and (2) the Principal Collections for
such Business Day.
(v) For the Transferor Certificate throughout the existence of
the Trust: allocate and pay to the Holder of the Transferor Certificate an
amount equal to the product of (A) the Transferor Percentage on such
Business Day and (B) the aggregate amount of Imputed Yield Collections and
Principal Collections for such Business Day; provided, however, that the
Servicer shall retain from such amounts on each Business Day an amount
equal to the portion of the Servicing Fee to be paid by the Transferor
accrued to such Business Day and not previously paid to or retained by the
Servicer.
(vi) Unallocated Collections: If, as of any day on which
Collections are allocated, paid or deposited:
(A) pursuant to Section 4.03(b)(ii)(B), the payment or
allocation of Principal Collections with respect to any Series would cause
such Series (a "Retired Series") to be paid in full, or
(B) pursuant to Sections 4.03(b)(ili)(B), 4.03(b)(v) or
4.03(b)(iv)(B), the allocation of Principal Collections to the Holder
of the Transferor Certificate or the Holder of the Variable Funding
Certificate, respectively, would cause the Transferor Eligible Amount
to be less than the Transferor Minimum Amount or the Issuer Amount to
be less than zero, after taking into account the increase in the
Transferor Amount or the Issuer Amount resulting from the transfer of
any new Receivables to the Trust as of such day (any such Collections
to the extent applied to reduce any Invested Amount or the Issuer
Amount to zero or the Transferor Eligible Amount to the Transferor
Minimum Amount being referred to as "Allocated Collections"), then any
Imputed Yield Collections or Principal Collections allocated to a
Retired Series or to the Holder of the Transferor Certificate or the
Holder of the Variable Funding Certificate in excess of Allocated
Collections ("Unallocated Collections") shall be reallocated among all
Series, other than the Retired Series, if any, unless only one Series
would be affected thereby and then only to that Series (pursuant to
Section 4.03(b)(ii)), and the Variable Funding Certificate if the
Issuer Amount is greater than zero (pursuant to Sections 4.03(b)(iii)
and (iv)) (any such reallocation, an "Excess Amount Allocation," and
any such Series or the Variable Funding Certificate, for this purpose
only, an "Outstanding Series"); provided, however, that such
reallocation of Unallocated Collections may only be made to the extent
permitted under the related Supplement, and, to the extent not
permitted under the related Supplement, shall be held in the
Transferor Account in an amount not in excess of the Transferor
Account Deposit Amount. Any Excess Amount Allocation shall be
performed assuming that (a) the characterization of Unallocated
Collections as either Principal Collections or Imputed Yield
Collections shall not be altered, (b) the Invested Percentages with
respect to any Outstanding Series and the Issuer Percentage shall be
recalculated assuming that the Retired Series has been retired and
that only the Outstanding Series are outstanding, (c) Allocated
Collections have been paid to the Holders of the Retired Series, the
Holder of the Transferor Certificate or the Holder of the Variable
Funding Certificate, as the case may be, and (d) if Allocated
Collections cause an Event of Termination to occur, Unallocated
Collections shall be allocated as if such Event of Termination has
occurred.
(vii) Transferor Account: Allocate and pay, with respect to each
Series, the Variable Funding Certificate and the Transferor Certificate
in accordance with subsection (b) of this Section 4.03, as Principal
Collections or Imputed Yield Collections, as applicable, amounts held in
the Transferor Account to the extent the Transferor Eligible Amount
exceeds the Transferor Minimum Amount.
Section 4.04 Payments of Imputed Yield Collections to Investor
Certificateholders. Payments of Imputed Yield Collections to Investor
Certificateholders shall be made in the manner set forth in the related
Supplement.
Section 4.05 Payments of Imputed Yield Collections with Respect to the
Variable Funding Certificate. Payments of Imputed Yield Collections with
respect to the Variable Funding Certificate shall be made in the manner set
forth in the Variable Funding Supplement.
Section 4.06 Payment of Principal Collections. With respect to each
Series, unless otherwise specified in the related Supplement:
(a) Commencing on the Determination Date for the Payment Date
relating to the Settlement Period in which the Amortization Period with
respect to such Series of Investor Certificates begins, and on each
Determination Date with respect to such Series thereafter until the end of
such Amortization Period, the Servicer shall instruct the Trustee in
writing to withdraw, and on each related Transfer Date the Trustee shall in
accordance with such instructions withdraw, from the Collection Account the
amount allocated to such Series pursuant to Section 4.03(b)(ii)(B) in
respect of the preceding Settlement Period and on the related Transfer Date
the Trustee shall pay such amounts to the Paying Agent. On each Payment
Date, the Paying Agent shall distribute such amount to the
Certificateholders of such Series (referred to herein as "Amortization").
(b) Payments of Principal Collections with respect to the
Variable Funding Certificate shall be made in the manner set forth in the
Variable Funding Supplement.
Section 4.07 Defaulted Receivables. (a) On each day specified in the
Supplement related to any Series, the Servicer shall calculate the Investor
Default Amount and Investor Charge-Offs with respect to the related
Series, and the Invested Amount of such Series shall be reduced by the
applicable Investor Charge-Offs.
(b) On each day specified in the Variable Funding
Supplement, the Servicer shall calculate the Issuer Default Amount, Issuer
Charge-Offs, Defaulted Amount and Issuer Default Deficiency Amount, and the
Issuer Amount shall be reduced by the Issuer Charge-Offs.
Section 4.08 [Reserved].
Section 4.09 Removal of Funds from Lock-Box Accounts. In the event that
the Trustee shall have received amounts in respect of payments made by any
Person on an account receivable or other obligation which has not been
transferred to the Trust or has been reconveyed therefrom to the
Transferor, the Trustee shall, as soon as practicable and as instructed in
the most recently delivered Daily Report or Settlement Statement, forward
such amounts, in the manner specified in writing by Xxxxxx, to Xxxxxx or
such other Person as Xxxxxx designates and, pending the forwarding of such
amounts, hold such amounts in trust for Xxxxxx or such other Person
designated by Xxxxxx. The Trustee will, if requested in writing by Xxxxxx,
acknowledge and confirm the foregoing to any Person designated by Xxxxxx.
In the absence of such instructions, all Collections shall be deemed to
relate to, and be received with respect to, Adjusted Eligible Receivables.
If, at any time, the Servicer has the ability to identify and segregate
Collections relating to Receivables other than Adjusted Eligible
Receivables, the Servicer shall have the right to withhold or withdraw such
Collections from the Collection Account; provided that each Rating Agency
confirms in writing that the adoption of such servicing procedures will not
result in such Rating Agency reducing or withdrawing its rating on any
outstanding Series or the Commercial Paper.
[END OF ARTICLE IV]
ARTICLE V
DISTRIBUTIONS AND REPORTS TO
CERTIFICATEHOLDERS
Section 5.01 Distributions. On each Payment Date, the Paying Agent shall
distribute (in accordance with the Settlement Statement delivered by the
Servicer to the Trustee on the preceding Determination Date pursuant to
Section 3.04(c)) (i) to the Holder of the Variable Funding Certificate the
amount on deposit in the Collection Account and payable to the Holder of the
Variable Funding Certificate pursuant to Sections 4.05 and 4.06(b), and (ii)
to each Investor Certificateholder of record of any Series on the preceding
Record Date (other than as provided in Section 2.04(d) or in Section
12.03(b) hereof respecting a final distribution) such Certificateholder's
pro rata share (based on the aggregate Undivided Interests represented by
Investor Certificates of such Series held by such Certificateholders of
amounts on deposit in the Collection Account as are payable to the Investor
Certificateholders of such Series pursuant to Sections 4.04 and 4.06(a).
Such distribution shall be made by check mailed to each Certificateholder
or, if so stated in any Supplement, by wire transfer to each
Certificateholder so qualified as stated therein, except that if all
Investor Certificates are registered in the name of CEDE & Co., the nominee
registrar for The Depository Trust Company, such distribution to Investor
Certificateholders shall be made in immediately available funds to The
Depository Trust Company. All payments on account of principal and
interest to Certificateholders shall be made from amounts on deposit in the
Collection Account.
Section 5.02 Monthly Investor Certificateholders' Statement; Annual
Tax Statement.
(a) On the day of each calendar month specified in the related
Supplement, the Paying Agent shall forward to each Investor Certificateholder
of each Series a statement relating to such Series prepared by the Servicer
substantially in the form of the "Monthly Investor Certificateholder's
Statement" attached to the applicable Supplement.
(b) Annual Certificateholders' Tax Statement. On or before
April 30 of each calendar year, beginning with calendar year 1994, the
Servicer shall deliver to the Paying Agent, which shall thereupon furnish
to each Person who at any time during the preceding calendar year was a
Certificateholder, a statement prepared by the Servicer containing the
information which is required to be contained in the regular monthly report
to Investor Certificateholders or the Holder of the Variable Funding
Certificate, as the case may be, as set forth in Section 5.02(a),
aggregated for such calendar year or the applicable portion thereof during
which such Person was a Certificateholder, together with such other
information as is required to be provided by an issuer of indebted ness
under the Code and such other customary information as the Servicer deems
necessary or desirable to enable the Certificateholders to prepare their
tax returns. Such obligation of the Paying Agent shall be deemed to have
been satisfied to the extent that substantially comparable information
shall be provided by the Paying Agent pursuant to this Agreement or to any
requirements of the Code as from time to time in effect.
[END OF ARTICLE V]
ARTICLE VI
THE CERTIFICATES
Section 6.01 The Certificates. The Investor Certificates of each Series,
the Variable Funding Certificate and the Transferor Certificate shall be
substantially in the form of Exhibits A, B and C, respectively, hereto (with
such changes as may be specified in the relevant Supplement) and shall, upon
issuance pursuant hereto or to Section 6.09, be executed and delivered by the
Transferor to the Trustee for authentication and redelivery as provided in
Section 6.02. Investor Certificates shall be issued in the minimum
denominations indicated in the related Supplement; provided that unless and
until the Transferor delivers to the Trustee an Opinion of Counsel addressed
to the Trustee to the effect that the Trust is not an "investment company" as
defined in the Investment Company Act of 1940, as amended, no Series of
Certificates shall be issued and no Certificate of a Series shall be sold or
transferred, unless at the time of such issuance, sale or transfer the
Transferor shall deliver to the Trustee an Officer's Certificate certifying to
the Trustee that such issuance, sale or transfer will not cause the aggregate
number of "beneficial owners" (as defined in Section 3 of the Investment
Company Act of 1940, as amended) of the Certificates of such Series and all
outstanding Series to exceed 97 or such lower number as the Transferor may
determine (and shall notify the Trustee in writing with respect thereto). For
purposes of this Section 6.01, the Transferor shall determine the number of
"beneficial owners" of a Series and of all outstanding Series by dividing the
Initial Invested Amount of such Series by the minimum denomination with
respect to such Series and adding the results of each such calculation. The
Variable Funding Certificate and the Transferor Certificate shall each
initially be issued in one certificate to the CP Issuer and to the Transferor,
respectively. Each Certificate shall be executed by manual or facsimile
signature on behalf of the Transferor by any of its Chairman of the Board, its
Vice Chairman of the Board, its President or any Vice President. 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
Transferor or the Trustee shall not be rendered invalid, notwithstanding that
such individual has ceased to be so authorized prior to the authentication and
delivery of such Certificates or does not hold such office at the date of
such Certificates. No Certificate shall be entitled to any benefit under
this Agreement or any applicable Supplement, or be valid for any purpose,
unless there appears on such Certificate a certificate of authentication
substantially in the form provided for herein executed by or on behalf of
the Trustee by the manual signature of a duly authorized signatory, and
such certificate upon any Certificate shall be conclusive evidence, and the
only evidence, that such Certificate has been duly authenticated and
delivered hereunder. All Certificates shall be dated the date of their
authentication.
Section 6.02 Authentication of Certificates. Contemporaneously with the
assignment and transfer of the Receivables, whether now existing or hereafter
created, and the other Trust Assets to the Trust, the Trustee shall
authenticate and deliver the Transferor Certificate to the Transferor and,
upon the execution of any Supplement and the satisfaction of the conditions
provided in Section 6.09, shall authenticate and deliver the Series of
Investor Certificates or the Variable Funding Certificate to be issued
thereunder as provided in Section 6.09. The Certificates of each Series shall
be duly authenticated by or on behalf of the Trustee as provided for herein
and in the applicable Supplement, in authorized denominations equal to (in the
aggregate) the Initial Invested Amount of such Series specified in such
Supplement. As provided in any Supplement, Investor Certificates of any Series
may be issued and sold pursuant to an effective registration statement under
the Securities Act, or pursuant to an exemption therefrom. In such former
case, such Series of Certificates may be delivered in book-entry form as
provided in Sections 6.11 through 6.13 and, in the latter case, may not be so
delivered. Further, if any such Series is sold pursuant to an exemption from
registration under the Securities Act pursuant to Section 4(2) of the
Securities Act or its substantial equivalent (the "Private Placement
Exemption") as stated in the applicable Supplement, the Certificates of such
Series may only be transferred as provided in Section 6.03(e).
Section 6.03 Registration of Transfer and Exchange of 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
subsection 6.03(c) a register (the "Certificate Register") in which, subject
to such reasonable regulations as it may prescribe, the Transfer Agent and
Registrar shall provide for the registration of each Series of the Investor
Certificates, the Transferor Certificate and the Variable Funding Certificate
and of transfers and exchanges of such Certificates as herein provided. The
Trustee is hereby initially appointed Transfer Agent and Registrar for the
purpose of registering each Series of Investor Certificates, the Transferor
Certificate and the Variable Funding Certificate and of registering transfers
and exchanges of the Investor Certificates, the Transferor Certificate and the
Variable Funding Certificate as herein provided. The Trustee shall be
permitted to resign as Transfer Agent and Registrar upon 30 days' written
notice to the Transferor and the 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 Servicer has appointed a
successor Transfer Agent and Registrar acceptable to the Transferor. The
Trustee shall initially register the Transferor Certificate in the name of the
Transferor and the Variable Funding Certificate in the name of the CP Issuer.
Upon surrender for registration of transfer of any Investor
Certificate of a Series at any office or agency of the Transfer Agent and
Registrar maintained for such purpose, the Transferor shall execute,
and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Investor Certificates of
such Series in authorized denominations of like aggregate Undivided Interests
in the Trust; provided, however, that any Investor Certificate of any Series
sold pursuant to the Private Placement Exemption shall satisfy the conditions
provided in Section 6.03(e) prior to such registration of transfer.
At the option of an Investor Certificateholder, Investor
Certificates of a Series may be exchanged for other Investor Certificates
of such Series of authorized denominations of like aggregate Undivided
Interests in the Trust, upon surrender of the Investor Certificates to be
exchanged at any office or agency of the Transfer Agent and Registrar
maintained for such purpose. Whenever any Investor Certificates are so
surrendered for exchange, the Transferor shall execute, and the Trustee
shall authenticate and deliver, the Investor Certificates 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 in a form satisfactory to the Trustee and the Transfer Agent and
Registrar duly executed by the Certificateholder thereof or his attorney
duly authorized in writing.
No service charge shall be made for any registration of transfer
or exchange of Investor Certificates, but the Transfer Agent and Registrar may
require payment of 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 or exchange shall be cancelled by the Transfer Agent and
Registrar and disposed of in a manner satisfactory to the Trustee.
(b) It is the understanding of the parties to this Agreement
that Xxxxxx has particular expertise in performing the functions given by this
Agreement to the Servicer and that the Certificateholders will be purchasing
the Certificates relying on Xxxxxx'x exercising such expertise in performing
such functions. Except as provided in Sections 6.09, 6.10 and 7.02 hereof,
neither the Transferor Certificate nor any interest represented thereby shall
be sold, transferred, assigned, exchanged, participated, pledged or otherwise
conveyed unless such sale, transfer, assignment, exchange, participation,
pledge or conveyance would not reduce the Transferor Eligible Amount below the
Transferor Minimum Amount and the Trustee shall have received (i) an Opinion
of Counsel addressed to the Trustee to the effect that such transfer will not
adversely affect the status of any Series of Investor Certificates or the
Variable Funding Certificate as debt for Federal and applicable state income
tax purposes and (ii) the written consent of (A) the Holder of the Variable
Funding Certificate and (B) Investor Certificateholders having Undivided
Interests aggregating more than 50% of the Aggregate Invested Amount.
(c) Notwithstanding anything herein to the contrary, except for
a pledge to one or more financial institutions (or a collateral agent
acting on their behalf) providing liquidity or credit support for the
Commercial Paper as described in the Variable Funding Supplement (which
pledge, or the exercise by the xxxxxxx of its remedies pursuant thereto,
shall not be required to meet the conditions set forth in clauses (i) or
(ii) below), the Variable Funding Certificate may not be transferred,
assigned, exchanged, pledged or otherwise conveyed unless (i) the Trustee
shall have received an Opinion of Counsel addressed to the Trustee to the
effect that the Certificates and the Commercial Paper shall continue to be
treated as debt for Federal income tax purposes, (ii) the Transferor has
given its written consent to such transfer, assignment, exchange, pledge or
other conveyance and (iii) each Rating Agency confirms that such transfer,
assignment, exchange, pledge or other conveyance will not result in such
Rating Agency reducing or withdrawing its rating on the Commercial Paper.
Notwithstanding anything herein to the contrary, the Trustee shall not
exchange the Variable Funding Certificate for another Variable Funding
Certificate of like aggregate Undivided Interest in the Trust or register
any transfer of the Variable Funding Certificate except upon receipt of
written instructions from the Transferor to effect such exchange or
registration of transfer upon receipt by the Transferor of reasonable
assurances that such proposed exchange or transfer complies with the
provisions of the Securities Act.
(d) The Transfer Agent and Registrar will maintain at its
expense in the Borough of Manhattan, the City of New York, an office or
offices or agency or agencies where Certificates may be surrendered for
registration of transfer or exchange.
(e) Until such time as the Trustee shall receive an Officer's
Certificate of the Transferor certifying that a Series of Investor
Certificates has been registered under the Securities Act and qualified
under all applicable state securities laws, neither the Trustee nor the
Transfer Agent and Registrar shall register a transfer of any Investor
Certificates of such Series or any interest therein unless such transfer is
to be made in a transaction that does not require such registration or
qualification. Until such time as such Series of Investor Certificates
shall be registered pursuant to a registration statement filed under the
Securities Act, such Series of Investor Certificates shall bear a legend to
the effect set forth in the preceding sentence. In the event that
registration of a transfer is to be made in reliance upon an exemption of
the transfer from the Securities Act, the Trustee shall require, in order
to assure compliance with the Securities Act and the Investment Company Act
of 1940, as amended, the transferee to deliver to the Trustee and the
Transferor an Opinion of Counsel reasonably satisfactory to the Transferor
and the Trustee that such transfer may be made pursuant to an exemption
from the Securities Act and applicable state securities laws and would not
subject the Trust to the registration requirements of the Investment
Company Act of 1940, as amended. Any such Opinion of Counsel shall be
obtained at the expense of the prospective transferor or transferee, and
not at the expense of the Trustee or the Transferor, and shall be delivered
to the Trustee and the Transferor prior to or contemporaneously with any
such transfer. Neither the Transferor nor the Trustee shall be obligated
to register any Series of Investor Certificates under any state securities
laws or under the Securities Act or to take any other action not otherwise
required under this Agreement to permit the transfer of such Series without
registration. -
Notwithstanding anything to the contrary contained herein, in no
event shall an Investor Certificate of any Series which is either (a) not sold
pursuant to an effective registration statement under the Securities Act or
(b) so sold but not intended to be sold to more than 100 Persons, as evidenced
by disclosure in the disclosure document with respect thereto or any interest
therein, be transferred to an employee benefit plan, trust or account subject
to ERISA, or described in Section 4975(e)(1) of the Code. Each Holder of an
Investor Certificate of any such Series, by its acceptance thereof, represents
and warrants that it is not (i) an employee benefit plan (as defined in
Section 3(3) of ERISA) that is subject to the provisions of Title I of ERISA,
(ii) a plan described in Section 4975(e)(1) of the Code or (iii) an entity
which is using assets to purchase such Investor Certificate which
constitute plan assets by reason of a plan's investment in such Holder.
Section 6.04 Mutilated, Destroyed, Lost or Stolen Certificates. If (a)
any mutilated 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 such Certificate and (b) there is
delivered to the Transfer Agent and Registrar, the Trustee and the Transferor
such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Trustee that such Certificate
has been acquired by a bona fide purchaser, the Transferor shall execute and
the Trustee shall authenticate and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Certificate, a new Certificate of
like tenor and aggregate Undivided Interest, if applicable. In connection with
the issuance of any new Certificate under this Section 6.04, the Trustee or
the Transfer Agent and Registrar may require the payment by the
Certificateholder of a sum sufficient to cover any tax or other expenses
(including the fees and expenses of the Trustee and Transfer Agent and
Registrar) connected therewith. Any duplicate Certificate issued pursuant to
this Section 6.04 shall constitute complete and indefeasible evidence of
ownership in the Trust, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time.
Section 6.05 Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Trustee, the Paying Agent, the
Transfer Agent and Registrar and any agent of any of them may treat the Person
in whose name any Certificate is registered as the owner of such Certificate
for the purpose of receiving distributions pursuant to Section 5.01 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; provided, however, that in determining
whether the Holders of the requisite Undivided Interests have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, Certificates owned by the Transferor, the Servicer or any affiliate
(as defined in Rule 405 under the Securities Act) thereof, shall be
disregarded and deemed not to be outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only
Certificates which a Responsible Officer of the Trustee knows to be so
owned shall be so disregarded. Certificates so owned which have been
pledged in good faith shall not be disregarded and may be regarded as
outstanding if the pledgee establishes to the satisfaction of the Trustee
the pledgee's right so to act with respect to such Certificates and that
the pledgee is not the Transferor, the Servicer or an affiliate (as defined
above) thereof.
Section 6.06 Appointment of Paying Agent. The Paying Agent shall (i) have
a rating of at least A by Fitch and (ii) have a rating of at least A by
Standard & Poor's or, (iii) if not so rated in (i) and/or (ii), Fitch and/or
S&P, as applicable, shall confirm in writing that the lack of such rating(s)
will not result in such Rating Agency reducing or withdrawing its respective
rating on any outstanding Series or on the Commercial Paper, and, in any case,
shall be a depositary institution organized under the laws of the United
States or any one of the states thereof, including the District of Columbia.
The Paying Agent shall make distributions to Certificateholders from the
Collection Account pursuant to Section 5.01. Any Paying Agent shall have the
revocable power to withdraw funds from the Collection Account for the purpose
of making distributions referred to above. The Trustee may revoke such power
and remove any 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. The Paying Agent shall initially be the
Trustee. The Paying Agent shall be permitted to resign as Paying Agent upon 30
days' written notice to the Trustee, the Servicer and the Transferor;
provided, however, that such resignation shall not be effective and the Paying
Agent shall continue to perform its duties until the Trustee has appointed,
and such appointment has been accepted by, a successor Paying Agent. The
Trustee shall cause the resigning Paying Agent and each successor Paying Agent
to execute and deliver to the Trustee an instrument in which such resigning or
successor Paying Agent or additional Paying Agent shall agree with the Trustee
that, as Paying Agent, such resigning or successor Paying Agent or additional
Paying Agent will hold all sums, if any, held by it for payment to the
Certificateholders in trust for the benefit of the Certificateholders
entitled thereto until such sums shall be paid to such Certificateholders.
The Paying Agent shall return all unclaimed funds to the Trustee and upon
removal shall also return all funds in its possession to the Trustee. The
provisions of Sections 11.01, 11.02 and 11.03 shall apply to the Trustee in
its role as Paying Agent.
Section 6.07 Access to List of Certificateholders' Names and Addresses.
The Trustee shall furnish or instruct the Transfer Agent and Registrar to
furnish to the Servicer or the Paying Agent, within five Business Days
after receipt by the Trustee of a request therefor from the Servicer or the
Paying Agent, respectively, in writing, a list in such form as the Servicer
or the Paying Agent may reasonably require, of the names and addresses of
the Certificateholders. If three or more Holders of Investor Certificates
of any Series or holders representing Undivided Interests in the Trust
aggregating not less than 5% of the Invested Amount of the Investor
Certificates of any 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
indemnified to its satisfaction by such Applicants for its costs and
expenses, shall afford or shall instruct the Transfer Agent and Registrar
to afford such Applicants access during normal business hours to the most
recent list of Certificateholders held by the Trustee, within five Business
Days after the receipt of such application. Such list shall be as of a
date no more than 30 days prior to the date of receipt of such Applicants'
request. Every Certificateholder agrees with the Trustee that neither the
Trustee, the Transfer Agent and Registrar, nor any of their respective
agents shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Certificateholders
hereunder, regardless of the sources from which such information was
derived.
Section 6.08 Authenticating Agent.
(a) The Trustee may appoint one or more authenticating agents
with respect to the Certificates which shall be authorized to act on behalf of
the Trustee in authenticating the Certificates in connection with the
issuance, delivery, registration of transfer, exchange or repayment of the
Certificates. Whenever reference is made in this Agreement to the
authentication of 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. Each authenticating agent must be acceptable to the Transferor.
(b) Any institution succeeding to all or substantially all of
the corporate agency 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 and to the Transferor. The
Trustee may at any time terminate the agency of an authenticating agent by
giving notice of termination to such authenticating agent and to the
Transferor. 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 or the Transferor, 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 shall be appointed unless acceptable to the Trustee
and the Transferor.
(d) The Servicer agrees to pay, on behalf of the Trust, to each
authenticating agent from time to time reasonable compensation for its services
under this Section 6.08.
(e) The provisions of Sections 11.01, 11.02 and 11.03 shall be
applicable to any authenticating agent.
(f) Pursuant to an appointment made under this Section 6.08, the
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 Certificates described in the Pooling and Servicing
Agreement.
Chemical Bank, as Trustee
by
_____________________________________
as Authenticating Agent
for the Trustee,
by
_____________________________________
Authorized Officer
Section 6.09 Delivery of Additional Series of Investor Certificates or
the Variable Funding Certificate.
(a) Upon delivery to the Trustee of an Officer's Certificate of
the Transferor (a) requesting the authentication of a new Series of Investor
Certificates or requesting the authentication of the Variable Funding
Certificate and (b) stating the date upon which such Series or the Variable
Funding Certificate is to be issued (such date, the "Issuance Date" and
such notice, the "Issuance Notice") and certifying the satisfaction of the
conditions stated in this Section and Section 6.01, the Trustee shall,
subject to Section 6.09(b), authenticate pursuant to Section 6.02 and
deliver to or upon the order of the Transferor on such Issuance Date such
new Series of Investor Certificates or the Variable Funding Certificate;
provided, however, that each Rating Agency shall have confirmed in writing
that the issuance of such new Series of Investor Certificates will not
result in such Rating Agency reducing or withdrawing its rating on any
outstanding Series or on the Commercial Paper. Any such Series of Investor
Certificates shall be substantially in the form of Exhibit A hereto and
shall bear, upon its face, the designation for such Series to which
it belongs so selected by the Transferor and set forth in the related
Supplement. The Variable Funding Certificate shall be in substantially the
form of Exhibit B hereto. Unless otherwise specified in the related
Supplement, the Investor Certificates of any Series and the Variable Funding
Certificate shall be issued in definitive physical form (and not as Book-
Entry Certificates). All Investor Certificates of any Series shall be
identical in all respects except for the denominations thereof and shall be
equally and ratably entitled among themselves and with the Variable Funding
Certificate as provided herein to the benefits of this Agreement and any
Supplement thereof without preference, priority or distinction on account of
the actual time or times of authentication and delivery, all in accordance
with the terms and provisions of this Agreement and such Supplement. No new
Series of Investor Certificates issued pursuant to the provisions of this
Section shall adversely affect the method of allocating Imputed Yield
Collections or Principal Collections of any other Series of Certificates or
the Variable Funding Certificate for any period over which such Series or the
Variable Funding Certificate shall be outstanding.
(b) On the Issuance Date, the Trustee shall authenticate and
deliver any such new Series or the Variable Funding Certificate upon delivery
to it of the following: (i) a Supplement substantially in the form of Exhibit
D and in form reasonably satisfactory to the Trustee executed by the
Transferor and the Servicer and specifying the items provided in Section
6.09(c) (the "Principal Terms"), (ii) an Opinion of Counsel to the effect that
the newly issued Series or the Variable Funding Certificate, as the case may
be, will be treated as debt or as a partnership interest for Federal and
applicable state income tax purposes under existing law and will not adversely
affect the status of any Series of Investor Certificates or the Variable
Funding Certificate as debt for Federal and applicable state income tax
purposes, (iii) written confirmation from each Rating Agency that the issuance
of such new Series or the Variable Funding Certificate, as the case may be,
will not result in the Rating Agency's reducing or withdrawing its rating on
any then outstanding Series rated by it or would result in the Rating Agency's
reducing or withdrawing its rating on the Commercial Paper, and (iv) such
other closing documents, certificates and Opinions of Counsel as may be
required by the applicable Supplement. Notwithstanding the foregoing, the
Trustee shall not authenticate and deliver any new Series hereunder unless
it also receives on or prior to the Issuance Date, an Officer's Certificate
of the Transferor stating: (a) the size of the Transferor Amount prior to
such issuance, (b) the Initial Invested Amount of the new Series or Initial
Issuer Amount in the case of the issuance of the Variable Funding
Certificate, which shall be less than the amount given in clause (a), and
(c) the size of the Transferor Amount after giving effect to such issuance.
(c) The Principal Terms of any Series or the Variable Funding
Certificate shall consist of: (i) with respect to any Series, the name or
designation of the Series, (ii) the Initial Invested Amount thereof or the
Initial Issuer Amount, in the case of the issuance of the Variable Funding
Certificate, (iii) the Certificate Rate of such Series (or the formula for the
determination thereof, which may provide that such rate is a floating rate) in
the case of the issuance of a Series of Investor Certificates, (iv) the method
of allocating Collections with respect to Principal Receivables for such
Series or the Variable Funding Certificate, as the case may be, (v) the
Servicing Fee Percentage for such Series or the Variable Funding Certificate,
as the case may be, (vi) the Series Termination Date, (vii) the Repurchase
Terms, if any, and (viii) with respect to any Series or the Variable Funding
Certificate, the scheduled Amortization Period Commencement Date.
(d) Any Supplement relating to an additional Series or the
Variable Funding Certificate may define or make provision with respect to
the Series or the Variable Funding Certificate to be issued pursuant
thereto for: (i) a new Applicable Minimum Percentage, (ii) a new Minimum
Aggregate Principal Receivables, (iii) the establishment of one or more
accounts held at an Eligible Institution for holding Collections on the
Receivables as specified in the Supplement or for other purposes specified
therein, (iv) the deposit of funds into any such accounts, (v) the use of a
guaranteed in vestment contract, surety bond, interest rate protection,
swap or other similar agreement with respect to the Series, (vi) any
extension or other evergreen feature with respect to the Series, (vii) any
amendments or modifications of any Events of Termination relating to such
Series or the Variable Funding Certificate, as the case may be, and (viii)
such other provisions which the Transferor may, in its sole discretion,
wish to incorporate and which shall be acceptable to the Trustee insofar as
they affect the rights, duties and obligations of the Trustee hereunder or
under any Supplement.
Section 6.10 Issuer Additional Amounts.
(a) The CP Issuer agrees, by acceptance of the Variable Funding
Certificate, that the Transferor may from time to time prior to the
commencement of the Amortization Period for the Variable Funding Certificate
require that the CP Issuer acquire as of any Business Day an additional
undivided interest in the Trust in a specified amount (the "Issuer Additional
Amount") not to exceed, after giving effect thereto, an amount equal to the
Aggregate Eligible Principal Receivables minus the greater of (a) the sum of
(i) the Aggregate Invested Amount as of such day and (ii) the Issuer Amount as
of such day and (iii) the Transferor Minimum Amount as of such day or (b) the
Minimum Adjusted Eligible Principal Receivables. The CP Issuer's obligation to
acquire any such Issuer Additional Amount shall be conditioned on the CP
Issuer's ability to obtain funds to acquire such interest. If such Issuer
Additional Amount, together with the existing Issuer Amount, shall exceed the
Maximum Program Amount, the CP Issuer and the Transferor shall comply with the
provisions of Section 6.10(b) hereof. If the CP Issuer acquires such
additional interest, then in consideration of the CP Issuer's payment of
the Issuer Additional Amount, the Servicer shall appropriately note such
Issuer Additional Amount on the related Daily Report or Settlement
Statement and direct the Trustee to pay to the Transferor such Issuer
Additional Amounts and the Issuer Amount will be equal to the Issuer Amount
stated in such Daily Report or Settlement Statement, as the case may be.
(b) In addition to the conditions specified in subsection
(a) above, if the Issuer Amount is to be increased on any day by an Issuer
Additional Amount in accordance with subsection (a) above resulting in the
Issuer Amount exceeding the Maximum Program Amount, then the addition of
such interest in the Trust shall be subject to the following additional
conditions:
(i) as of such day, there shall exist no Issuer Default
Deficiency Amounts under Section 4.05(g) as set forth in the Variable Funding
Supplement or Issuer Charge-Offs;
(ii) such increase in the Issuer Amount shall be covered by the
Available Liquidity Commitment and the Available LOC Amount;
(iii) the CP Issuer shall have received written confirmation of
the then existing ratings of the Commercial Paper, if any, from each Rating
Agency after giving effect to such increase in the Issuer Amount, and any
other changes required pursuant to the applicable Supplement, and the CP
Issuer shall have provided copies thereof to the Transferor, the Servicer, the
Trustee, and any other parties as may be required by the Variable Funding
Supplement;
(iv) the Transferor shall have obtained written confirmation
from each Rating Agency that such increase in the Issuer Amount will not
result in the Rating Agency's reducing or withdrawing its rating on any
outstanding Series rated by it;
(v) the CP Issuer and the Transferor shall have satisfied
such additional conditions as may be specified in the Variable Funding
Supplement; and
(vi) the Trustee shall have received an Opinion of Counsel to
the effect that the increase in the Issuer Amount in excess of the Maximum
Program Amount will be treated as debt for Federal and applicable state
income tax purposes under existing law and will not adversely affect the
status of any Series of Investor Certificates or the Variable Funding
Certificate as debt for Federal and applicable state income tax purposes.
Section 6.11 Book-Entry Certificates. If provided in any Supplement, the
Investor Certificates of any Series, upon original issuance, will be issued in
the form of one or more typewritten Certificates representing the Book-Entry
Certificates, to be delivered to The Depository Trust Company, the initial
Clearing Agency, by, or on behalf of, the Transferor. The Investor
Certificates of such Series shall initially be registered on the Certificate
Register in the name of CEDE & Co., the nominee of The Depository Trust
Company, which shall be the initial Clearing Agency, and no Certificate Owner
will receive a definitive certificate representing such Certificate Owners
interest in the Investor Certificates, except as provided in Section 6.13.
Unless and until definitive, fully registered Investor Certificates (the
"Definitive Certificates") have been issued to Certificate Owners pursuant to
Section 6.13:
(i) the provision of this Section 6.11 shall be in full force
and effect;
(ii) the Transferor, the Servicer, the Paying Agent, the
Transfer Agent and Registrar and the Trustee may deal with the Clearing
Agency and the Clearing Agency Participants for all purposes (including the
making of distributions on the Investor Certificates) as the authorized
representatives of the Certificate Owners;
(iii) to the extent that the provisions of this Section 6.11
conflict with any other provisions of this Agreement, the provisions of this
Section 6.11 shall control; and
(iv) the rights of Certificate Owners shall be exercised only
through the Clearing Agency and the Clearing Agency Participants and shall be
limited to those established by law and agreements between such Certificate
Owners and the Clearing Agency and/or the Clearing Agency Participants.
Pursuant to the Letter of Representations, unless and until Definitive
Certificates are issued pursuant to Section 6.13, 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.
Section 6.12 Notices to Clearing Agency. Whenever notice or other
communication to the Investor Certificateholders of any Series delivered as
provided in Section 6.11 is required under this Agreement, unless and until
Definitive Certificates shall have been issued to Certificate Owners pursuant
to Section 6.13, the Trustee, the Servicer and the Paying Agent shall give all
such notices and communications specified herein to be given to Holders of the
Investor Certificates of such Series to the Clearing Agency.
Section 6.13 Definitive Certificates. If (i)(A) the Transferor advises
the Trustee in writing that the Clearing Agency is no longer willing or able
to properly discharge its responsibilities under any Letter of
Representations, and (B) the Transferor is unable to locate a qualified
successor, (ii) the Transferor, at its option, advises the Trustee in writing
that, with respect to any Series, it elects to terminate the book-entry system
through the Clearing Agency or (iii) after the occurrence of a Servicer
Default of any Series, Certificate Owners representing beneficial interests
aggregating not less than 50% of the Invested Amount of such Series advise the
Trustee and the Clearing Agency through the Clearing Agency Participants in
writing that the continuation of a book-entry system through the Clearing
Agency is no longer in the best interests of the Certificate Owners of such
Series, the Trustee shall notify the Clearing Agency of the occurrence of any
such event and of the availability of Definitive Certificates of such Series
to Certificate Owners of such Series requesting the same. Upon surrender to
the Trustee of the Investor Certificates of such Series by the Clearing
Agency, accompanied by registration instructions from such Clearing Agency for
registration, the Trustee shall authenticate and deliver Definitive
Certificates of such Series. Neither the Transferor, the Transfer Agent and
Registrar 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. Upon the issuance of Definitive Certificates of any
Series, all references herein to obligations with respect to such Series
imposed upon or to be performed by the Clearing Agency shall be deemed to be
imposed upon and performed by the Trustee, to the extent applicable with
respect to such Definitive Certificates and the Trustee shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder.
[END OF ARTICLE VI]
ARTICLE VII
OTHER MATTERS RELATING
TO THE TRANSFEROR
Section 7.01 Liability of the Transferor. The Transferor shall be liable
for each obligation, covenant, representation and warranty of the Transferor
arising under or related to this Agreement or any Supplement and shall be
liable only to such extent.
Section 7.02 Merger or Consolidation of, or Assumption of the Obligations
of, the Transferor.
(a) The Transferor shall not consolidate with or merge into any other
corporation or convey or transfer its properties and assets substantially as
an entirety to any Person unless:
(i) the corporation formed by such consolidation or into which
the Transferor is merged or the Person which acquires by conveyance or
transfer the properties and assets of the Transferor substantially as an
entirety shall be, if the Transferor is not the surviving entity, organized
and existing under the laws of the United States of America or any state or
the District of Columbia, and, if the Transferor is not the surviving entity,
shall expressly assume, by an agreement supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the performance
of every covenant and obligation of the Transferor hereunder and under the
other Facilities Documents;
(ii) the Transferor shall have delivered to the Trustee an
Officers' Certificate of the Transferor and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance or transfer and such
supplemental agreement comply with this Section 7.02 and that all
conditions precedent herein provided for relating to such transaction have
been complied with and, in the case of the Opinion of Counsel, that such
supplemental agreement is legal, valid and binding; and
(iii) each Rating Agency shall have confirmed in writing that
the rating of any outstanding Series or on the Commercial Paper will not be
reduced or withdrawn.
(b) The obligations of the Transferor hereunder shall not be
assignable nor shall any Person succeed to the obligations of the Transferor
hereunder except in each case in accordance with the provisions of Section
7.02(a).
Section 7.03 Limitation on Liability of the Transferor. Subject to
Sections 7.01 and 7.04 with respect to the Transferor, except as
specifically provided herein or in any Supplement, neither the Transferor
nor any of the directors or officers or employees or agents of the
Transferor in its capacity as Transferor shall be under any liability to
the Trust, the Trustee, the Certificateholders or any other Person for any
action taken or for refraining from the taking of any action in the
capacity as Transferor pursuant to this Agreement whether arising from
express or implied duties under this Agreement or any Supplement or
otherwise; provided, however, that this provision shall not protect the
Transferor or any such person against any liability which would otherwise
be imposed by reason of willful misfeasance, bad faith or gross negligence
in the performance of duties or by reason of reckless disregard of
obligations and duties hereunder. The Transferor and any director or
officer or employee or agent of the Transferor may rely in good faith on
any document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder. Each of the Trustee and
the Servicer agrees that the obligations of the Transferor to the Trustee,
the Servicer, the Certificateholders and the Trust hereunder, including
without limitation the obligation of the Transferor in respect of
indemnities pursuant to Section 7.04 hereof, shall be payable from the
Trust Assets (and, solely with respect to the payment of interest and
repayment of principal under the Certificates, solely from the Trust
Assets) in accordance with the provisions of this Agreement and any
Supplement or such other assets of the Transferor as may be available;
provided that such obligations (other than in respect of principal and
interest on the Certificates) shall be suspended at any time solely to the
extent that, and for so long as, the Transferor's assets are insufficient
to pay in full such obligations; and provided, further, that such
obligations (other than in respect of principal and interest on the
Certificates) are fully subordinated to the Transferor's obligations with
respect to the payment of interest and principal under the Certificates,
and the security interest of the Trustee in the Trust Assets with respect
to such interest and principal obligations.
Section 7.04 Liabilities. By entering into this Agreement, the Transferor
agrees to pay, directly to the injured party, the entire amount of any losses,
claims, damages or liabilities (other than those incurred by a
Certificateholder in the Investor Certificates of any Series or, in the case
of the CP Issuer, the Variable Funding Certificate, as a result of defaults or
other losses (including, without limitation, Issuer Charge-Offs and Investor
charge-offs) with respect to the Receivables) arising out of or based on the
arrangements created by this Agreement or any Supplement as though this
Agreement and each Supplement created a partnership among the Transferor and
the Certificateholders under the Uniform Partnership Act in effect in the
State of New York in which the Transferor is a general partner; provided, that
in such capacity the Transferor shall be entitled to the rights of
contribution and indemnification under the Uniform Partnership Act as in
effect in the State of New York. The Transferor agrees to pay, indemnify and
hold harmless (and, solely with respect to the payment of interest and the
repayment of principal under the Certificates, solely from the Trust Assets)
in accordance with the provisions of this Agreement and any Supplement or from
such other assets of the Transferor as may be available each Investor
Certificateholder of any Series and the Holder of the Variable Funding
Certificate against and from any and all such losses, claims, damages and
liabilities except to the extent that they arise from any action by such
Investor Certificateholder or the Holder of the Variable Funding Certificate
causing such losses, claims, damages or liabilities; provided, however, that
such obligations shall be suspended at any time solely to the extent that, and
for so long as, the Transferor's assets are insufficient to pay in full such
obligations; and provided, further, that such obligations under this Section
7.04 other than in respect of principal and interest on the Certificates are
fully subordinated to the Transferor's obligations with respect to the payment
of interest and principal under the Certificates, and the security interest of
the Trustee in the Trust Assets with respect to such interest and principal
obligations.
[END OF ARTICLE VII]
ARTICLE VIII
OTHER MATTERS RELATING
TO THE SERVICER
Section 8.01 Liability of the Servicer. The Servicer shall be liable
under this Agreement only to the extent of the obligations specifically
undertaken by the Servicer in its capacity as Servicer.
Section 8.02 Merger or Consolidation of, or Assumption of the Obligations
of, the Servicer.
(a) The Servicer shall not consolidate with or merge into any
other corporation or convey or transfer its properties and assets
substantially as an entirety to any Person, unless:
(i) the corporation formed by such consolidation or into which
the Servicer is merged or the Person which acquires by conveyance or transfer
the properties and assets of the Servicer substantially as an entirety shall
be a corporation organized and existing under the laws of the United States of
America or any State or the District of Columbia, and, if the Servicer is not
the surviving entity, such corporation shall qualify as an Eligible Servicer
and shall expressly assume, by an agreement supplemental hereto executed and
delivered to the Trustee in a form satisfactory to the Trustee, the
performance of every covenant and obligation of the Servicer hereunder and
under the other Facilities Documents;
(ii) the Servicer has delivered to the Trustee an Officer's
Certificate of the Servicer and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental agreement
comply with this Section 8.02 and that all conditions precedent herein
provided for relating to such transaction have been complied with and, in the
case of the Opinion of Counsel, that such supplemental agreement is legal,
valid and binding; and
(iii) each Rating Agency shall have confirmed in writing that
the rating of any outstanding Series or on the Commercial Paper will not be
reduced or withdrawn.
Section 8.03 Limitation on Liability of the Servicer and Others. Subject
to Section 8.04 with respect to the Servicer, except as otherwise
specifically provided herein or in any Supplement, neither the Servicer nor
any of the directors or officers or employees or agents of the Servicer
shall be under any liability to the Trust, the Trustee, the
Certificateholders or any other Person for any action taken or for
refraining from the taking of any action in its capacity as Servicer,
whether arising from express or implied duties under this Agreement or any
Supplement or otherwise; provided, however, that this provision shall not
protect the Servicer or any such Person against any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or gross
negligence in the performance of duties or by reason of reckless disregard
of obligations and duties hereunder. The Servicer and any director or
officer or employee or agent of the Servicer may rely in good faith on any
document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder. The Servicer shall not be
under any obligation to appear in, prosecute or defend any legal action
which is not incidental to its duties to service the Receivables in
accordance with this Agreement or any Supplement which in its reasonable
opinion may involve it in any expense or liability.
Section 8.04 Servicer Indemnification of the Trust and the Trustee. The
Servicer shall indemnify and hold harmless the Trustee (and each of its
directors, officers, employees and agents) and the Trust, individually
and for the benefit of the Certificateholders and the CP Issuer, 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 activities of the Trustee or the Trust pursuant to this
Agreement or any Supplement, including those arising from acts or omissions of
the Servicer pursuant to this Agreement or any Supplement, or otherwise
arising out of this Agreement or any Supplement, including but not limited to
any judgment, award, settlement, reasonable attorneys' fees and other costs or
expenses incurred in connection with the defense of any actual or threatened
action, proceeding or claim; provided, however, that the Servicer shall not
indemnify the Trustee or the Trust if such acts, omissions or alleged acts
or omissions constitute fraud, negligence, breach of fiduciary duty or
willful misconduct by the Trustee; and provided, further, that the Servicer
shall not indemnify the Trust, the Investor Certificateholders or the CP
Issuer (x) for any liabilities, costs or expenses of the Trust with respect
to any action taken by the Trustee at the request of any Investor
Certificateholder or the Holder of the Variable Funding Certificate or (y)
with respect to any federal, state or local income or franchise taxes or
any other taxes imposed on or measured by income (or any interest or
penalties or additions with respect thereto) required to be paid by the
Trust or the Investor Certificateholders or the Holder of the Variable
Funding Certificate in connection herewith to any taxing authority, or (z)
with respect to any liabilities, losses, costs or expenses incurred by any
Certificateholder in the Investor Certificates of any Series or, in the
case of the CP Issuer, the Variable Funding Certificate as a result of
defaults or other losses (including, without limitation, Investor
Charge-Offs and Issuer Charge-Offs) with respect to the Receivables not
specifically indemnified or represented to hereunder arising out of or
based on the arrangement created by this Agreement or any Supplement.
Subject to Sections 7.01 and 10.02(b), any indemnification pursuant to this
Section shall only be from the assets of the Servicer. The provisions of
such indemnity shall run directly to and be enforceable by an injured party
subject to the limitations hereof. The provisions of this Section shall
survive the resignation or removal of the Trustee and the termination of
the Trust. The Servicer shall indemnify, defend and hold harmless the
Trustee (and each of its directors, officers, employees and agents) from
and against all costs, expenses, losses, claims, damages and liabilities
(including but not limited to any judgment, award, settlement, reasonable
attorneys' fees and other costs or expenses incurred in connection with
the defense of any actual or threatened action, proceeding or claim)
arising out of or incurred in connection with the acceptance or performance
of their respective duties contained in this Agreement, except to the
extent that such cost, expense, loss, claim, damage or liability: (a) is
due to the willful misconduct, breach of fiduciary duties, acts or
omissions which constitute constructive fraud, or negligence of the Person
indemnified, (b) arises from the Trustee's breach of any of its
representations and warranties set forth in Section 11.15 of this
Agreement, or (c) shall arise out of or be incurred in connection with the
performance by the Trustee of the duties of the Successor Servicer
hereunder.
Section 8.05 The Servicer Not to Resign. The Servicer shall not resign
from the obligations and duties hereby imposed on it except upon determination
that (i) the performance of its duties hereunder is no longer permissible
under applicable law and (ii) there is no reasonable action which the Servicer
could take to make the performance of its duties hereunder permissible under
applicable law. Any such determination permitting the resignation of the
Servicer shall be evidenced as to clause (i) above by an Opinion of Counsel to
such effect delivered to the Trustee. No such resignation shall become
effective until the Trustee or a Successor Servicer shall have assumed the
responsibilities and obligations of the Servicer in accordance with Section
10.02 hereof; provided, that if within one hundred twenty (120) days of the
date that the Servicer notifies the Trustee of its resignation in accordance
with this Section 8.05 and delivers to the Trustee the Opinion of Counsel
referred to above the Trustee does not receive any bids from Eligible
Servicers in accordance with Section 10.02(c) to act as Successor Servicer,
then the Trustee shall automatically be appointed Successor Servicer in
accordance with Section 10.02 (but shall have the continued authority to
appoint another Person as Successor Servicer).
Section 8.06 Access to Certain Documentation and Information Regarding
the Receivables. The Servicer shall provide to the Trustee and the Collateral
Agent and their respective representatives access to the documents, books,
microfiche, computer records and other information regarding the Receivables
and the other Trust Assets in such cases where the Trustee is required in
connection with the enforcement of the rights of the Certificateholders, or by
applicable statutes or regulations, to review such documentation, such access
being afforded without charge but only (i) upon reasonable request, (ii)
during normal business hours and (iii) subject to the Servicer's normal
security and confidentiality procedures. Nothing in this Section 8.06 shall
derogate from the obligation of the Transferor, the Trustee or the Servicer to
observe any applicable law prohibiting disclosure of information regarding the
Obligors and the failure of the Servicer to provide access as provided in
this Section 8.06 as a result of such obligation shall not constitute a breach
of this Section 8.06.
Section 8.07 Delegation of Duties. In the ordinary course of business,
the Servicer may at any time delegate any duties hereunder to any Person who
agrees to conduct such duties in accordance with the Credit and Collection
Policy and this Agreement or any Supplement; provided, however, if any
significant delegation is to a Person other than Xxxxxx, a Lock-Box Bank or
other Affiliate of the Transferor and is not in the ordinary course of the
Servicer's business, written notice shall be given to each Rating Agency, the
Trustee and the Liquidity Agent of such delegation. Any delegation shall not
relleve the Servicer of its liability and responsibility with respect to such
duties and shall not constitute a resignation within the meaning of Section
8.05 hereof.
Section 8.08 Examination of Records. The Transferor and the Servicer
shall, prior to the sale or transfer to a third party of any receivable,
contract or invoice held in its custody, examine its computer and other
records to determine that such receivable, contract or invoice is not part of
the Trust Assets.
Section 8.09 Successor Servicer Indemnification of Transferor. In the
event of a Service Transfer, the Successor Servicer will indemnify and hold
harmless the Transferor for any losses, claims, damages and liabilities of
the Transferor arising from the fraud, gross negligence, breach of
fiduciary duty or willful misconduct of such Successor Servicer.
[END OF ARTICLE VIII]
ARTICLE IX
EVENTS OF TERMINATION
Section 9.01 Events of Termination with Respect to any Series. If any
one of the following events shall occur at such time as there shall be at
least one outstanding Investor Certificate:
(i) failure (A) on the part of the Transferor or the Servicer to
make any payment or deposit required by the terms of this Agreement or any
Supplement on or before five Business Days after the date such payment or
deposit is required to be made herein; or (B) on the part of the Transferor
to duly observe or perform in any material respect the covenant of the
Transferor set forth in Section 2.06(b), or (C) on the part of the
Transferor to duly observe or perform in any material respect any other
covenants or agreements of the Transferor set forth in this Agreement or
any Supplement, which, in the case of clause (C), continues unremedied for
a period of 30 days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Transferor
by the Trustee, or to the Transferor and the Trustee by the Holders of
Investor Certificates evidencing Undivided Interests aggregating not less
than 10% of the Invested Amount of the applicable Series;
(ii) any representation or warranty made by the Transferor in
this Agreement or any Supplement or any information contained in a computer
file, microfiche list or hard copy list required to be delivered by the
Transferor pursuant to Section 2.01 shall prove to have been incorrect in any
material respect when made or when delivered, which continues to be incorrect
in any material respect for a period of 60 days after the date on which
written notice of such failure, requiring the same to be remedied, shall have
been given to the Transferor by the Trustee, or to the Transferor and the
Trustee by the Holders of Investor Certificates evidencing Undivided Interests
aggregating not less than 10% of the Invested Amount of the related Series and
as a result of which the interests of the Certificateholders of such Series
are materially and adversely affected; provided, however, that an Event
of Termination pursuant to this Section 9.01(a)(ii) shall not be deemed to
have occurred hereunder with respect to any such Series if the Transferor has
accepted the transfer of the related Receivable, or all of such Receivables,
if applicable, in accordance with Section 2.04(c) during such 60-day period
(or such longer period as the Trustee may specify) in accordance with the
provisions hereof;
(iii) Xxxxxx or the Transferor voluntarily seeks, consents to or
acquiesces in the benefit or benefits of any Debtor Relief Law or becomes a
party to (or is made the subject of) any proceeding provided for by any Debtor
Relief Law, other than as creditor or claimant, and in the event such
proceeding is involuntary, the petition instituting same is not dismissed
within 60 days of its filing; or the Transferor shall become unable for any
reason to transfer Receivables to the Trust in accordance with the provisions
of this Agreement, or Xxxxxx shall become unable for any reason to sell
Receivables to the Transferor in accordance with the provisions of the
Purchase Agreement;
(iv) the Discount Factor shall exceed 501;
(v) the Trust shall become an "investment company" within the
meaning of the Investment Company Act of 1940, as amended;
(vi) the Trustee has not accepted a bid from an Eligible
Servicer within 60 days after any Servicer Default with respect to which a
Termination Notice has been issued;
(vii) the Default Ratio shall exceed 5%;
(viii) the Transferor Eligible Amount shall be less than the
Transferor Minimum Amount or Adjusted Eligible Principal Receivables shall be
less than Minimum Adjusted Eligible Principal Receivables for five consecutive
days;
(ix) the Transferor Eligible Receivables Amount shall be less
than the Transferor Minimum Receivables Amount for five consecutive days; or
(x) the Purchase Agreement shall terminate in accordance with
its terms;
then, (a) in the case of any event described in subparagraph (i) (other than
clause (B) thereof), (ii), (vi) and (viii) after any applicable grace period
set forth in such subparagraphs, either the Trustee or the Holders of Investor
Certificates of the related Series evidencing Undivided Interests aggregating
more than 65% of the related Invested Amount of such Series by notice then
given in writing to the Transferor and the Servicer (and to the Trustee if
given by the Certificateholders) may declare that an Event of Termination has
occurred (A) with respect to all Series of Certificates (in the case of notice
given by the Trustee) or (B) such Series (in the case of notice given by
Investor Certificateholders) as of the date of such notice, or (b) in the case
of any event described in clause (B) of subparagraph (i) or in subparagraphs
(iii), (iv), (v), (vii), or (ix) an Event of Termination with respect to all
Series shall occur without any notice or other action on the part of the
Trustee or any Certificateholder immediately upon the occurrence of such
event.
Section 9.02 Events of Termination with Respect to the Variable
Funding Certificate. If any one of the following events shall occur during
the NonAmortization Period with respect to the Variable Funding
Certificate:
(i) failure (A) on the part of the Transferor or the Servicer to
make any payment or deposit required by the terms of this Agreement or the
related Supplement on or before five Business Days after the date such payment
or deposit is required to be made herein or in such Supplement; or (B) on the
part of the Transferor to duly observe or perform in any material respect the
covenant of the Transferor set forth in Section 2.06(b), or (C) on the part of
the Transferor to duly observe or perform in any material respect any other
covenants or agreements of the Transferor set forth in this Agreement or the
related Supplement, which, in the case of clause (C), continues unremedied for
a period of 30 days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Transferor
by the Trustee, or to the Transferor and the Trustee by the CP Issuer, the
Controlling Party or the Collateral Agent;
(ii) any representation or warranty made by the Transferor in
this Agreement or the related Supplement or any information contained in a
computer file, microfiche list or hard copy list required to be delivered
by the Transferor pursuant to Section 2.01 shall prove to have been
incorrect in any material respect when made or when delivered, which
continues to be incorrect in any material respect for a period of 60 days
after the date on which written notice of such failure, requiring the same
to be remedied, shall have been given to the Transferor by the Trustee, or
to the Transferor and the Trustee by the CP Issuer, the Controlling Party
or the Collateral Agent and as a result of which the interests of such
Person giving such notice are materially and adversely affected;
(iii) Xxxxxx or the Transferor voluntarily seeks, consents to or
acquiesces in the benefit or benefits of any Debtor Relief Law or becomes a
party to (or is made the subject of) any proceeding provided for by any Debtor
Relief Law, other than as creditor or claimant, and in the event such
proceeding is involuntary, the petition instituting same is not dismissed
within 60 days of its filing; or the Transferor shall become unable for any
reason to transfer Receivables to the Trust in accordance with the provisions
of this Agreement, or Xxxxxx shall become unable for any reason to sell
Receivables to the Transferor in accordance with the provisions of the
Purchase Agreement;
(iv) the CP Issuer, the Transferor or the Trust shall become an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended;
(v) the Trustee has not accepted a bid from an Eligible Servicer
within 60 days after any Servicer Default with respect to which a Termination
Notice has been issued;
(vi) Xxxxxx shall fail to make any payment or deposit required
to be made pursuant to the terms of the Purchase Agreement on or before three
Business Days after the date such payment or deposit is required to be made
thereunder;
(vii) the Discount Factor shall equal or exceed 50%;
(viii) the Lien created in favor of the Trust on all the Trust
Assets shall cease to be a perfected, first priority enforceable Lien thereon,
or the Transferor, the CP Issuer or Xxxxxx shall so assert in writing (and
such Receivables are not repurchased pursuant to Section 2.04(c));
(ix) the Servicer shall fail to deliver the Daily Report or
Settlement Statement to the Trustee and such failure continues for a period of
three Business Days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Servicer by
the Trustee or the Controlling Party; Provided, however that a delay in or
failure to deliver any such Daily Report or Settlement Statement for a period
of five Business Days shall not constitute an Event of Termination until the
expiration of such five Business Days if such delay or failure could not be
prevented by the exercise of reasonable diligence by the Servicer and such
delay or failure was caused by an Act of God, the public enemy, acts of
declared or undeclared war, public disorder, rebellion or sabotage, epidemics,
landslides, lightning, fire, hurricane, earthquakes, floods or similar causes;
(x) a Material Subsidiary shall voluntarily seek, consent to or
acquiesce in the benefit or benefits of any Debtor Relief Law or becomes a
party to (or is made the subject of) any proceeding provided for by any Debtor
Relief Law, other than as creditor or claimant, and in the event such
proceeding is involuntary, the petition instituting same is not dismissed
within 60 days of its filing; or a Material Subsidiary shall become unable for
any reason to sell Receivables to Xxxxxx in accordance with the provisions of
the applicable Subsidiary Purchase Agreement;
(xi) the Default Ratio shall exceed 5%;
(xii) the Transferor Eligible Amount shall be less than the
Transferor Minimum Amount or Adjusted Eligible Principal Receivables shall be
less than Minimum Adjusted Eligible Principal Receivables for five consecutive
days;
(xiii) an "Event of Default" shall have occurred and shall be
continuing under the Liquidity Agreement and/or the LOC Reimbursement
Agreement;
(xiv) the Transferor Eligible Receivables Amount shall be less
than the Transferor Minimum Receivables Amount for five consecutive days; or
(xv) the Purchase Agreement shall terminate in accordance with
its terms;
then, (y) after any applicable grace period, in the case of any event
described in subparagraph (i) (other than clause (B) thereof), (ii), (v),
(vi), (ix), (x), (xii), or (xiii), any of the Trustee or the Holder of the
Variable Funding Certificate by notice then given in writing to the
Transferor and the Servicer (and to the Trustee if given by the Holder of
the Variable Funding Certificate) may declare that an Event of Termination
has occurred as of the next succeeding Payment Date with respect to the
Variable Funding Certificate, or (z) in the case of any event described in
clause (B) of subparagraph (i) or in subparagraphs (iii), (iv), (vii),
(viii), (xi), (xiv) or (xv), an Event of Termination with respect to the
Variable Funding Certificate shall occur as of the next succeeding Payment
Date without any notice or other action on the part of the Trustee or any
other Person, immediately upon the occurrence of such event. Notice of any
Event of Termination with respect to the Variable Funding Certificate known
to a Responsible Officer of the Trustee shall be given by the Trustee to
the Persons specified in the applicable Supplement.
Section 9.03 Additional Rights Upon the Occurrence of Certain Events.
(a) If the Transferor voluntarily (i) seeks, consents to or
acquiesces in the benefit or benefits of any Debtor Relief Law or becomes a
party to (or is made the subject of) any proceeding provided for by any Debtor
Relief Law, other than as creditor or claimant, and in the event such
proceeding is involuntary, the petition instituting the same is not dismissed
within 60 days of its filing or (ii) goes into liquidation or any other Person
shall be appointed as a bankruptcy trustee or receiver or conservator of the
Transferor, the Transferor shall on the day of such event (the "Appointment
Date") immediately cease to transfer Receivables to the Trust and shall
promptly give notice to the Trustee of such event. Notwithstanding any
cessation of the transfer to the Trust of additional Receivables, Receivables
transferred to the Trust prior to the occurrence of such voluntary or
involuntary event and Collections in respect of such Receivables whenever
created, accrued in respect of such Receivables, shall continue to be a part
of the Trust. Within 15 days of the day on which a Responsible Officer of the
Trustee first receives written notice of the occurrence of the Appointment
Date, the Trustee shall (i) publish a notice in Authorized Newspapers that a
receiver or conservator of the Transferor has been appointed or that a
voluntary liquidation of the Transferor has occurred and that the Trustee
intends to sell, dispose of or otherwise liquidate the Receivables on
commercially reasonable terms and in a commercially reasonable manner and (ii)
send written notice to the Holder of the Variable Funding Certificate and the
Investor Certificateholders describing the provisions of this Section 9.03 and
requesting instructions from such Holders. Unless within 60 days from the day
written notice pursuant to clause (ii) above is first sent the Trustee shall
have received written instructions of the Holder of the Variable Funding
Certificate and Holders of Investor Certificates representing Undivided
Interests aggregating more than 50% of the Invested Amount of each Series and
in the case of a Series having more than one Class, more than 50` of the
Invested Amount of each Class of such Series, to the effect that such
Certificateholders disapprove of the liquidation of the Receivables and wish
to continue receiving Receivables under the Trust as before such appointment,
or unless the Trustee shall have received an Opinion of Counsel addressed to
the Trustee to the effect that any such sale, disposition or liquidation is
prohibited by law, the Trustee shall proceed to sell, dispose of, or
otherwise liquidate the Receivables in a commercially reasonable manner
and, to the best of its ability, on commercially reasonable terms, which
shall include the solicitation of competitive bids. The Trustee may
obtain, and shall be fully protected in relying on, a prior determination
from such bankruptcy trustee or receiver that the terms and manner of any
proposed sale, disposition or liquidation hereunder are commercially
reasonable. The provisions of Section 9.01, 9.02 and 9.03 shall not be
deemed to be mutually exclusive.
(b) The proceeds from the sale, disposition or liquidation of
the Receivables pursuant to subsection (a) above, net of all reasonable
expenses incurred by the Trustee in connection with such sale, liquidation
or other disposition, which shall be paid to the Trustee from such process,
shall be treated as Collections of the Receivables and shall be allocated
in accordance with the provisions of Section 4.03. On the day following
the Payment Date on which such proceeds are distributed to the Holder of
the Variable Funding Certificate and the Investor Certificateholders, the
Trust shall terminate.
(c) Upon the occurrence of an event specified in Section
9.03(a), if the Trustee has not sold the Receivables as provided therein
within 120 days after the Appointment Date, the Trustee, upon the written
instructions of the Holder of the Variable Funding Certificate or all of the
Holders of Investor Certificates of any Series shall sell, dispose of or
otherwise liquidate Receivables on a best efforts basis, selected on a random
basis from all Receivables in the Trust, in an amount equal to (i) in the case
of any such Series of Investor Certificates, the product of the Aggregate
Principal Receivables and the aggregate percentage Undivided Interest in the
Trust represented by all Series so instructing the Trustee and (ii) in the
case of the Variable Funding Certificate, the product of the Aggregate
Principal Receivables and the Undivided Interest in the Trust represented by
the Variable Funding Certificate; provided that the Rating Agency has advised
the Transferor and the Trustee in writing that such sale shall not adversely
affect the then existing rating of any such Series or, if the Holder of the
Variable Funding Certificate has not so instructed the Transferor, the
Commercial Paper. The proceeds from such sale, net of all reasonable
expenses incurred by the Trustee in connection with such sale, liquidation
or other disposition, which shall be paid to the Trustee, shall be
deposited in the Collection Account by the Trustee and shall be treated as
Collections of Receivables allocable to the Series or to the Variable
Funding Certificate so instructing the Transferor and shall be allocated in
accordance with Section 4.03. Upon distribution of such proceeds in
accordance with Article IV, such Series or the Variable Funding
Certificate, as the case may be, shall be deemed paid in full and no
further amounts shall be allocated thereto under Section 4.03.
[END OF ARTICLE IX]
ARTICLE X
SERVICER DEFAULTS
Section 10.01 Servicer Defaults. If any one of the following events (a
"Servicer Default") shall occur and be continuing:
(a) failure by the Servicer to make any payment, transfer or
deposit or to give instructions or to give notice to the Trustee to make such
payment, transfer or deposit on or before the date occurring three Business
Days after the date such payment, transfer or deposit or such instruction or
notice is required to be made or given, as the case may be, under the terms of
this Agreement or any Supplement;
(b) failure on the part of the Servicer duly to observe or
perform any other covenants or agreements of the Servicer set forth in this
Agreement or any Supplement which has a material adverse effect on the
Certificateholders, which continues unremedied for a period of 30 days after
the date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Servicer by the Trustee, or to the
Servicer and the Trustee by the CP Issuer if the Holder of the Variable
Funding Certificate is adversely affected thereby, or by the Holders of
Investor Certificates evidencing Undivided Interests in the Trust aggregating
not less than 50% of the Invested Amount of any Series adversely affected
thereby; or the Servicer shall assign its duties under this Agreement, except
as permitted by Sections 8.02, 8.05 and 8.07;
(c) any representation, warranty or certification made by the
Servicer in this Agreement, any Supplement or in any certificate or report
delivered pursuant to this Agreement or any Supplement shall prove to have
been incorrect when made, which has a material adverse effect on the rights of
the Certificateholders and which material adverse effect continues for a
period of 30 days after the date on which written notice thereof, requiring
the same to be remedied, shall have been given to the Servicer by the Trustee,
or to the Servicer and the Trustee by the CP Issuer or by the Holders of
Investor Certificates evidencing Undivided Interests in the Trust aggregating
not less than 50% of the Invested Amount of any Series adversely affected
thereby; or
(d) the Servicer shall voluntarily seek, consent to or acquiesce
in the benefit or benefits of any Debtor Relief Law or becomes a party to (or
be made the subject of) any proceeding provided for under any Debtor Relief
Law, other than as creditor or claimant, and in the event such proceeding is
involuntary, the petition instituting same is not dismissed within 60 days of
its filing;
then, in the event of any Servicer Default, so long as the Servicer Default
shall not have been remedied, either (i) the Trustee, (ii) the CP Issuer
(but not if the CP Issuer is a subsidiary or other Affiliate of the
Servicer) or the Collateral Agent or (iii) the Holders of Investor
Certificates evidencing Undivided Interests aggregating more than 50% of
the Invested Amount of any Series materially and adversely affected
thereby, by notice then given in writing to the Servicer and the Transferor
(with a copy thereof to each Rating Agency) and to the Trustee if given by
a Person other than the Trustee (a "Termination Notice"), may terminate
the rights and obligations of the Servicer as Servicer under this Agreement
and in and to the Receivables and the proceeds thereof.
After receipt by the Servicer of a Termination Notice, and on the date
that a Successor Servicer shall have been appointed pursuant to Section 10.02,
all authority and power of the Servicer under this Agreement and each
Supplement shall pass to and be vested in a Successor Servicer (a "Service
Transfer"); and, without limitation, the Trustee is hereby authorized
and empowered (upon the failure of the Servicer to cooperate) to execute
and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise,
all documents and other instruments upon the failure of the Servicer to
execute or deliver such documents or instruments, and to do and accomplish
all other acts or things necessary or appropriate to effect the purposes
of such Service Transfer. The Servicer agrees to cooperate with the
Trustee, the Transferor and such Successor Servicer in effecting the
termination of the responsibilities and rights of the Servicer to conduct
servicing hereunder, including, without limitation, the transfer to such
Successor Servicer of all authority of the Servicer to service the
Receivables and the Related Security provided for under this Agreement,
including, without limitation, all authority over all Collections which
shall on the date of transfer be held by the Servicer for deposit, or which
have been deposited by the Servicer in the Collection Account, or which
shall thereafter be received with respect to the Receivables and the
Related Security, and in assisting the Successor Servicer. The Servicer
shall promptly transfer, to the extent it is permitted by applicable law to
do so, its electronic records relating to the Receivables and the Related
Security to the Successor Servicer in such electronic form as the Successor
Servicer may reasonably request and shall promptly transfer, to the extent
it is permitted by applicable law to do so, to the Successor Servicer all
other records, correspondence and documents necessary for the continued
servicing of the Receivables and the Related Security in the manner and at
such times as the Successor Servicer shall reasonably request and shall, to
the extent not prohibited by licensing restrictions, provide access to or
copies of computer software, including by means of sublicensing
arrangements if applicable, to the extent necessary for the continued
servicing of the Receivables and the Related Security; provided, however,
that the Servicer shall not be required, to the extent it has an ownership
interest in any electronic records, computer software or licenses, to
transfer, assign, set-over or otherwise convey such ownership interest(s)
to the Successor Servicer. The Servicer shall provide the Successor
Servicer with access to any computer hardware in its possession for a
reasonable time after the Servicer's termination to the extent necessary
for the uninterrupted servicing of the Receivables. Notwithstanding the
foregoing, the Servicer shall not be required to provide such access,
whether with respect to computer hardware or software, if to provide such
access would violate applicable contractual restrictions (including
pursuant to any licensing arrangements to which Xxxxxx or any Designated
Subsidiary is a party); Provided, however, that Xxxxxx shall use all
reasonable efforts and act in good faith in seeking consents or waivers
necessary to permit the Successor Servicer to have such access. To the
extent that compliance with this Section 10.01 shall require the Servicer
to disclose to the Successor Servicer information of any kind which the
Servicer reasonably deems to be confidential, the Successor Servicer shall
be required to enter into such customary licensing and confidentiality
agreements as the Servicer shall deem necessary to protect its interest.
Notwithstanding the foregoing, a delay in or failure of performance under
Section l0.0l(a) shall not constitute a Servicer Default if such delay or
failure could not be prevented by the exercise of reasonable diligence by
the Servicer and such delay or failure was caused by an Act of God, the
public enemy, acts of declared or undeclared war, public disorder,
rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes,
earthquakes, floods or similar causes and no funds have been remitted
to Xxxxxx or the Transferor. The preceding sentence shall not relieve the
Servicer from using reasonable efforts to perform its obligations in a timely
manner in accordance with the terms of this Agreement and each Supplement, and
the Servicer shall provide the Trustee, the Rating Agencies, the Transferor,
the CP Issuer and the Investor Certificateholders with an Officer's
Certificate giving prompt notice of such failure or delay by it, together with
a description of its efforts to so perform its obligations. The Servicer shall
immediately notify the Trustee in writing of any Servicer Default. In
connection with any Service Transfer, all reasonable costs and expenses
(including attorneys' fees) incurred in connection with transferring the
Receivables and the Related Security to the Successor Servicer and amending
this Agreement to reflect such succession as Successor Servicer pursuant to
this Section 10.01 and Section 10.02 shall be paid by the Servicer upon
presentation of reasonable documentation of such costs and expenses.
Section 10.02 Trustee to Act; Appointment of Successor.
(a) On and after the receipt by the Servicer of a Termination
Notice pursuant to Section 10.01, the Servicer shall continue to perform all
servicing functions under this Agreement and any Supplement until the date
specified in the Termination Notice or as otherwise specified by the
Trustee in writing or, if no such date is specified in such Termination
Notice, or as otherwise specified by the Trustee, until a date mutually
agreed upon by the Servicer and Trustee. The Trustee shall as promptly as
possible after the giving of a Termination Notice appoint an Eligible
Servicer as a successor servicer (the "Successor Servicer") and such
Successor Servicer shall have obtained written confirmation from each
Rating Agency that the then current rating on the Commercial Paper or on
any outstanding Series will not be reduced or withdrawn and shall accept
its appointment by a written assumption and agreement to perform all of the
duties, obligations and liabilities of the Servicer hereunder in a form
acceptable to the Trustee. In the event that a Successor Servicer has not
been appointed or has not accepted its appointment at the time when the
Servicer ceases to act as Servicer, or upon the occurrence of the events
specified in Section 8.05, the Trustee without further action shall
automatically be appointed the Successor Servicer. The Trustee may
delegate any of its servicing obligations to an affiliate or agent of the
Servicer or the Trustee in accordance with Section 3.01(a).
Notwithstanding the above, the Trustee shall, if it is legally unable so to
act, petition a court of competent jurisdiction to appoint any established
institution having a net worth of not less than $50,000,000. The Trustee
shall promptly give notice to each Rating Agency of the appointment of a
Successor Servicer upon such appointment.
(b) Upon its appointment, the Successor Servicer shall be the
successor in all respects to the Servicer with respect to servicing functions
under this Agreement and shall be subject to all the responsibilities,
duties and liabilities relating thereto placed on the Servicer by the
terms and provisions hereof, and all references in this Agreement and any
Supplement to the Servicer shall be deemed to refer to the Successor Servicer
except for the references in Sections 3.03, 8.04 and ll.O5 and the last
sentence of Section 10.01 which shall continue to refer to Xxxxxx.
(c) In connection with any Termination Notice, the Trustee will
review any bids which it obtains from Eligible Servicers and shall be permitted
to appoint any Eligible Servicer submitting such a bid as a Successor Servicer
for servicing compensation not in excess of the Servicing Fee permitted for a
Successor Servicer pursuant to Section 3.02; provided, however, that Xxxxxx
shall be responsible for payment of all servicing compensation in excess of the
Servicing Fee, and that no such monthly compensation paid out of Collections
shall be in excess of the Servicing Fee permitted to a Successor Servicer
pursuant to Section 3.02.
(d) All authority and power granted to the Successor Servicer
under this Agreement shall automatically cease and terminate upon
termination of the Trust pursuant to Section 12.01, and shall pass to and
be vested in the Transferor and, without limitation, the Transferor is
hereby authorized and empowered to execute and deliver, on behalf of the
Successor Servicer, as attorney-in-fact or otherwise, all documents and
other instruments, and to do and accomplish all other acts or things
necessary or appropriate to effect the purposes of such transfer of
servicing rights. The Successor Servicer agrees to cooperate with the
Transferor in effecting the termination of the responsibilities and rights
of the Successor Servicer to conduct servicing of the Receivables and the
Related Security, including, without limitation, all authority over
Collections then held by the Successor Servicer or which shall thereafter
be received by the Successor Servicer. The Successor Servicer shall
promptly transfer its electronic records relating to the Receivables to the
Transferor in such electronic form as the Transferor may reasonably request
and shall promptly transfer all other records, correspondence and documents
to the Transferor in the manner and at such times as the Transferor shall
reasonably request. To the extent that compliance with this Section 10.02
shall require the Successor Servicer to disclose to the Transferor
information of any kind which the Successor Servicer deems to be
confidential, the Transferor shall be required to enter into such customary
licensing and confidentiality agreements as the Successor Servicer shall
deem necessary to protect its interests.
Section 10.03 Notification to Certificateholders. Upon the occurrence of
any Servicer Default, the Servicer shall give prompt written notice thereof
to the Trustee and, upon receipt of such written notice, the Trustee shall
give notice to the CP Issuer, each Rating Agency and the Investor
Certificateholders at their respective addresses appearing in the
Certificate Register. Upon any termination or appointment of a Successor
Servicer pursuant to this Article X, the Trustee shall give prompt written
notice thereof to the CP Issuer and the Investor Certificateholders at
their respective addresses appearing in the Certificate Register.
Section 10.04 Waiver of Past Defaults. The CP Issuer may, on behalf of
itself if it is adversely affected by any default by the Servicer or the
Transferor, and the Holders of Investor Certificates evidencing Undivided
Interests aggregating more than 65% of the Invested Amount of any Series
materially adversely affected by any default by the Servicer or Transferor
may, on behalf of all Certificateholders of such affected Series,
respectively waive any default by the Servicer or the Transferor in the
performance of their obligations hereunder and its consequences, except a
default in the failure to make any required deposits or payments of
interest or principal with respect to any Series of Certificates. Upon any
such waiver of a past default, such default shall cease to exist, and any
default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent
or other default or impair any right consequent thereon except to the
extent expressly so waived. Upon the waiver by the CP Issuer of any
default, the CP Issuer shall provide notice of such waiver, except waivers
with respect to the timely delivery of reports and notices and the
performance of ministerial functions hereunder.
[END OF ARTICLE X]
ARTICLE XI
THE TRUSTEE
Section 11.01 Duties of Trustee. (a) The Trustee, prior to the occurrence
of a Servicer Default of which a Responsible Officer of the Trustee has
knowledge and after the curing of all Servicer Defaults which may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement. If to the knowledge of a Responsible
Officer of the Trustee a Servicer Default has occurred (which has not been
cured or waived), the Trustee shall exercise such of the rights and powers
vested in it by this Agreement or any Supplement, as the case may be, and use
the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of such prudent
person's own affairs.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Trustee which are specifically required to be furnished
pursuant to any provision of this Agreement or any Supplement, shall examine
them to determine whether they substantially conform to the requirements of
this Agreement or any Supplement. The Trustee shall give prompt written notice
to the Certificateholders of any material lack of conformity of any such
instrument to the applicable requirements of this Agreement or any Supplement
discovered by the Trustee which would entitle a specified percentage of the
Certificateholders to take any action pursuant to this Agreement or any
Supplement.
(c) Subject to Section ll.0l(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:
(i) The Trustee shall not be personally liable for an
error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(ii) The Trustee shall not be personally liable with respect to
any action taken, suffered or omitted to be taken by it in good faith in
accordance with, unless otherwise specified herein, the direction of the CP
Issuer (if it is adversely affected thereby) or the Holders of Investor
Certificates evidencing Undivided Interests in the Trust aggregating more than
50% of the Invested Amount of any Series relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Agreement
or any Supplement;
(iii) The Trustee shall not be charged with knowledge of any
failure by the Servicer to comply with the obligations of the Servicer
referred to in clauses (a), (b) or (c) of Section 10.01, or of the occurrence
of any Event of Termination, unless a Responsible Officer of the Trustee
obtains actual knowledge of such failure or the Trustee receives written
notice of such failure from the Servicer, the CP Issuer or any Holders of
Investor Certificates evidencing Undivided Interests aggregating not less than
10% of the Invested Amount of any Series adversely affected thereby; and
(iv) Prior to the occurrence of a Servicer Default of which a
Responsible Officer has knowledge, and after the curing or waiver of such
Servicer Defaults that may have occurred, the duties and obligations of the
Trustee shall be determined solely by the express provisions of this Agreement
and any Supplements, the Trustee shall not be liable except for the
performance of such duties and obligations as shall be specifically set forth
in this Agreement and any Supplement, no implied covenants or obligations
shall be read into this Agreement or any Supplement against the Trustee and,
in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished to
the Trustee and, if specifically required to be furnished pursuant to any
provision of this Agreement or any Supplement, conforming to the requirements
of this Agreement or such Supplement.
(d) The Trustee shall not be required to expend or risk its own
funds or otherwise incur financial liability in the performance of any of its
duties hereunder, or in 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 this Agreement or any Supplement shall in
any event require the Trustee to perform, or be responsible for the manner of
performance of, any obligations of the Servicer under this Agreement or any
Supplement except during such time, if any, as the 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 this Agreement or any Supplement.
(e) Except for actions expressly authorized by this Agreement
or any Supplement, the Trustee shall take no action reasonably likely to
impair the interests of the Trust in any Receivable now existing or
hereafter created or to impair the value of any Receivable now existing or
hereafter created.
(f) Except as specifically provided in this Agreement or any
Supplement, the Trustee shall have no power to vary the corpus of the Trust.
(g) If, to the knowledge of a Responsible Officer of the
Trustee, the Paying Agent or the Transfer Agent and Registrar shall fail to
perform any obligation, duty or agreement in the manner or on the day
required to be performed by the Paying Agent or the Transfer Agent and
Registrar, as the case may be, under this Agreement, the Trustee shall be
obligated as soon as possible after such Responsible Officer obtains
knowledge thereof and receives appropriate records, if any, to perform such
obligation, duty or agreement in the manner so required.
(h) If the Transferor has agreed to transfer any of its
receivables (other than the Receivables) to another Person, upon the written
request of the Transferor, the Trustee will enter into such intercreditor
agreements with the transferee of such receivables as are customary and
necessary to identify separately the rights of the Trust and such other
Person in the Transferor's receivables; provided that the Trustee shall not
be required to enter into any intercreditor agreement which could adversely
affect the interests of the Certificateholders or the Trustee and, upon the
request of the Trustee, the Transferor will deliver an Opinion of Counsel
on any matters relating to such intercreditor agreement, reasonably
requested by the Trustee.
(i) Except as specifically otherwise provided in this Agreement,
any action, suit or proceeding brought in respect of one or more particular
Series or the Variable Funding Certificate shall have no effect on the
Trustee's rights, duties and obligations hereunder with respect to any one or
more Series or the Variable Funding Certificate not the subject of such
action, suit or proceeding.
Section 11.02 Certain Matters Affecting the Trustee. Except as otherwise
provided in Section 11.01:
(a) The Trustee may rely on and shall be protected in acting on,
or in refraining from acting in accordance with, any resolution, Officers'
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal,
bond or other paper or document believed by it to be genuine and to have
been signed or presented to it pursuant to this Agreement or any Supplement
by the proper party or parties;
(b) The Trustee may consult with counsel and any advice or
Opinion of 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 this Agreement or any Supplement, or to
institute, conduct or defend any litigation hereunder or in relation hereto or
any Supplement, at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement or any
Supplement, unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses
and liabilities which may be incurred therein or thereby; nothing
contained herein shall, however, relieve the Trustee of the obligation, upon
the occurrence of a Servicer Default (which has not been cured) of which a
Responsible Officer has knowledge, to exercise such of the rights and
powers vested in it by this Agreement or any Supplement, 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 prudent
person's own affairs;
(d) Except as provided in Section 11.01(c)(3), 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 this Agreement or any Supplement;
(e) 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, order, approval,
bond or other paper or document, unless requested in writing so to do by
the CP Issuer if it could be adversely affected if the Trustee does not
perform such acts, or by Holders of Investor Certificates evidencing
Undivided Interests aggregating more than 10% of the Invested Amount of any
Series which could be adversely affected if the Trustee does not perform
such acts; provided, however, that if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be incurred
by it in the making of such investigation shall be, in the opinion of the
Trustee, not reasonably - assured to the Trustee by the security afforded
to it by the terms of this Agreement, the Trustee may require reasonable
indemnity against such cost, expense or liability as a condition to so
proceeding. The reasonable expense of every such examination shall be paid
by the Servicer (or, if Xxxxxx is no longer the Servicer, by Xxxxxx) or, if
paid by the Trustee, shall be reimbursed by the Servicer (or if Xxxxxx is
no longer the Servicer, by Xxxxxx) upon demand;
(f) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or custodians, and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent, attorney or
custodian appointed with due care by it hereunder;
(g) Except as may be required by Section ll.0l(a) hereof, the
Trustee shall not be required to make any initial or periodic examination of
any documents or records related to the Receivables for the purpose of
establishing the presence or absence of defects, the compliance by the
Transferor or the Servicer with their representations and warranties or for
any other purpose; and
(h) The right of the Trustee to perform any discretionary act
enumerated in this Agreement or any Supplement 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.
Section 11.03 Trustee Not Liable for Recitals in Certificates. The
Trustee assumes no responsibility for the correctness of the recitals
contained herein and in the Certificates (other than the certificate of
authentication on the Certificates). Except as set forth in Section 11.15, the
Trustee makes no representations as to the validity or sufficiency of this
Agreement or any Supplement or of the Certificates (other than the certificate
of authentication on the Certificates) or of any Receivable or related
document. The Trustee shall not be accountable for the use or application by
the Transferor of any of the Certificates or of the proceeds of such
Certificates, or for the use or application of any funds paid to the
Transferor in respect of the Receivables or deposited in the Collection
Account or other accounts now or hereafter established to effectuate the
transactions contemplated herein and in accordance with the terms hereof.
The Trustee shall have no duty to conduct any affirmative investigation
as to the occurrence of any condition requiring the repurchase of any
Receivable by the Transferor or the Servicer pursuant to this Agreement or any
Supplement or the eligibility of any Receivable for purposes of this Agreement
or any Supplement. The Trustee shall have no responsibility for filing any
financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder (unless the Trustee shall have become the Successor
servicer) or to prepare or file any Securities and Exchange Commission
filing for the Trust or to record this Agreement or any Supplement.
Section 11.04 Trustee May Own Certificates. The Trustee in its individual
or any other capacity may become the owner or pledgee of Investor Certificates
and may deal with the Transferor and the Servicer in banking transactions with
the same rights as it would have if it were not the Trustee.
Section 11.05 The Servicer to Pay Trustee's Fees and Expenses. The
Servicer covenants and agrees to pay to the Trustee from time to time, and the
Trustee shall be entitled to receive, reasonable compensation (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 or under any Supplement of the Trustee, and, subject to
Section 8.04, the Servicer will pay or reimburse the Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or made by
the Trustee in accordance with any of the provisions of this Agreement or any
Supplement (including the reasonable fees and expenses of its agents and
counsel) except any such expense, disbursement or advance as may arise from
its negligence or bad faith and except as provided in the following sentence.
If the Trustee is appointed Successor Servicer pursuant to Section 10.02, the
provisions of this Section 11.05 shall not apply to expenses, disbursements
and advances made or incurred by the Trustee in its capacity as Successor
Servicer, which shall be covered out of the Servicing Fee. The provisions of
this paragraph and Sections 8.04 and 8.09 shall survive the termination of the
Trust and the resignation or removal of the Trustee.
Section 11.06 Eligibility Requirements for Trustee. The Trustee hereunder
shall at all times be a corporation organized and doing business under the laws
of the United States or any state thereof, including the District of Columbia,
authorized under such laws to exercise corporate trust powers, having 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 11.06, 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 11.06, the Trustee shall resign immediately in the manner and
with the effect specified in Section 11.07.
Section 11.07 Resignation or Removal of Trustee.
(a) The Trustee may at any time resign and be discharged from
the trust hereby created by giving written notice thereof to the Transferor,
the Servicer, CP Issuer and the Rating Agencies. Upon receiving such notice of
resignation, the Servicer shall promptly appoint a successor trustee by
written instrument, copies of which instrument shall be delivered to the
resigning Trustee, the successor trustee, the Transferor and the Rating
Agencies. If no successor trustee shall have been so appointed and have
accepted 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.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 11.06 hereof and shall fail to
resign after written request therefor by the 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 Servicer 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 pursuant to any of
the provisions of this Section 11.07 shall not become effective until either
(i) the Trust has been completely liquidated in accordance with Article XII of
this Agreement and all proceeds of such liquidation have been distributed
pursuant to the terms of this Agreement or (ii) acceptance of appointment
by a successor trustee having the qualifications set forth in Section
26(a)(1) of the Investment Company Act of 1940 and Section 11.06 as
provided in Section 11.08 hereof.
Section 11.08 Successor Trustee.
(a) Any successor trustee appointed as provided in Section
11.07 hereof shall execute, acknowledge and deliver to the Transferor 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 and
under any Supplement 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 Servicer, and statements
held by it hereunder; and the Transferor 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, powers, duties and obligations. The
Servicer shall immediately give notice to the Rating Agency upon the
appointment of a successor trustee.
(b) No successor trustee shall accept appointment as provided in
this Section 11.08 unless at the time of such acceptance such successor
trustee shall be eligible under the provisions of Section 11.06 hereof.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 11.08 hereof, such successor trustee shall mail
notice of such succession hereunder to all Certificateholders at their
addresses as shown in the Certificate Register.
Section 11.09 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 11.06 hereof, 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.
Section 11.10 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Agreement or
any Supplement, 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, with the prior written consent of the Servicer, 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
Certificateholders, such title to the Trust, or any part thereof, and,
subject to the other provisions of this Section 11.10, such powers, duties,
obligations, rights and trusts as the Trustee may consider necessary or
desirable. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 11.06
and no notice to Certificateholders of the appointment of any co-trustee or
separate trustee shall be required under Section 11.08 hereof. Any such
appointment of a co-trustee shall not relieve the Trustee of its
obligations under this Agreement.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) All rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is not authorized to
act separately without the Trustee joining in such act), except to the extent
that under any law of any jurisdiction in which any particular act or acts are
to be performed (whether as Trustee hereunder or as successor to the 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 Assets or any portion thereof
in any such jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the Trustee;
(ii) No trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder; and
(iii) The Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to
this Agreement and the conditions of this Article XI. Each separate
trustee and co-trustee, upon its acceptance of the trusts conferred, shall
be vested with the estates or property specified in its instrument of
appointment, either jointly with the Trustee or separately, as may be
provided therein, subject to all the provisions of this Agreement or any
Supplement, specifically including every provision of this Agreement or any
Supplement 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 Servicer.
(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 this Agreement or any Supplement 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 11.11 Tax Returns. No federal income tax return shall be filed on
behalf of the Trust unless either (i) the Trustee or the Servicer shall
receive an Opinion of Counsel that the Code requires such a filing or (ii) the
Internal Revenue Service shall determine that the Trust is required to file
such a return. In the event the Trust shall be required to file tax returns,
the Servicer shall prepare or shall cause to be prepared any tax returns
required to be filed by the Trust and shall remit such returns to the Trustee
for signature at least five days before such returns are due to be filed; the
Trustee shall promptly sign such returns and deliver such returns after
signature to the Servicer and such returns shall be filed by the Servicer. The
Servicer in accordance with Section 5.02(b) shall also prepare or shall cause
to be prepared all tax information required by law to be distributed to
Investor Certificateholders and the CP Issuer. The Trustee, upon request, will
furnish the Servicer with all such information known to the Trustee as may be
reasonably required in connection with the preparation of all tax returns of
the Trust, and shall, upon request, execute such returns. In no event shall
the Trustee, the Servicer or the Transferor be liable for any liabilities,
costs or expenses of the Trust, the CP Issuer, the Investor Certificateholders
or the Certificate Owners arising out of the application of any tax law,
including without limitation federal, state or local income or excise taxes or
any other tax imposed on or measured by income (or any interest, penalty or
addition with respect thereto or arising from a failure to comply therewith).
Section 11.12 Trustee May Enforce Claims Without Possession of
Certificates. All rights of action and claims under this Agreement or any
Supplement or the Certificates may be prosecuted and enforced by the Trustee
without the possession of any of the 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 Certificateholders in respect of which such
judgment has been obtained.
Section 11.13 Suits for Enforcement. If a Servicer Default of which a
Responsible Officer has knowledge shall occur and be continuing, the Trustee in
its discretion may, subject to the provisions of Section 10.01, proceed to
protect and enforce its rights and the rights of the Certificateholders under
this Agreement or any Supplement by suit, action or proceeding in equity or at
law or otherwise, whether for the specific performance of any covenant or
agreement contained in this Agreement or any Supplement or in aid of the
execution of any power granted in this Agreement or any Supplement or for the
enforcement of any other legal, equitable or other remedy as the Trustee,
being advised by counsel, shall deem most effectual to protect and enforce any
of the rights of the Trustee or the Certificateholders. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Certificateholder any plan of
reorganization, arrangement, adjustment or composition affecting the
Certificates or the rights of any holder thereof, or authorize the Trustee to
vote in respect of the claim of any Certificateholder in any such proceeding.
Section 11.14 Rights of Certificateholders to Direct Trustee. The CP
Issuer with respect to matters affecting the Variable Funding Certificate,
Holders of Investor Certificates evidencing Undivided Interests aggregating
more than 50% of the Invested Amount of any Series with respect to matters
affecting the related Series, or both the CP Issuer and the Holders of
Certificates aggregating together more than 50% of the affected Undivided
Interests with respect to matters affecting more than one Series or one or
more Series and the Variable Funding Certificate, shall have the right to
direct the time, method and place at or by which the Trustee conducts any
proceeding for any remedy available to the Trustee, or exercises any such
trust or power conferred upon the Trustee; provided, however, that, subject to
Section 11.01, the Trustee shall have the right to decline to follow any such
direction if the Trustee being advised by counsel determines that the action
so directed may not lawfully be taken, or if the Trustee in good faith shall,
by a Responsible Officer or Responsible Officers of the Trustee, determine
that the proceedings so directed would be illegal or involve it in personal
liability or be unduly prejudicial to the rights of Certificateholders not
parties to such direction; and provided further that nothing in this Agreement
or any Supplement shall impair the right of the Trustee to take any action
deemed proper by the Trustee and which is not inconsistent with such
direction of the Certificateholders.
Section 11.15 Representations and Warranties of Trustee. The Trustee
represents and warrants, as of the Initial Closing Date and, with respect to
any Series, as of the related Closing Date, that:
(i) The Trustee is a banking corporation organized, existing
and in good standing under the laws of the State of New York;
(ii) The Trustee has full power, authority and right to
execute, deliver and perform this Agreement, and has taken all necessary
action to authorize the execution, delivery and performance by it of this
Agreement;
(iii) This Agreement has been duly executed and delivered by the
Trustee;
(iv) The Trustee is not required to obtain, other than those
that have already been obtained, any authorization, consent, approval,
exemption or license from, or to file any registration with, any Governmental
Authority having jurisdiction over the trust powers of the Trustee, as a
condition to the validity of, or for the execution and delivery of, this
Agreement, or to the performance by the Trustee of its obligations under this
Agreement; and
(v) This Agreement constitutes the legal, valid and binding
obligation of the Trustee, enforceable in accordance with its terms
(subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors' rights
generally).
Section 11.16 Maintenance of Office or Agency. The Trustee will
maintain at its expense in the Borough of Manhattan, 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 Certificates and this Agreement may be
served. The Trustee initially appoints the Corporate Trust Office as its
office for such purposes in New York. The Trustee will give prompt written
notice to the Servicer and to Certificateholders of any change in the
location of the Certificate Register or any such office or agency.
Section 11.17 Notices. The Trustee shall promptly deliver to the
Transferor and the Servicer any notices it receives in connection with the
Facilities Documents which are not otherwise delivered to such parties
unless a Responsible Officer of the Trustee reason ably believes that a
copy of such notice has previously been so delivered.
[END OF ARTICLE XI]
ARTICLE XI I
TERMINATION
Section 12.01 Termination of Trust. (a) The respective obligations and
responsibilities of the Seller, the Servicer and the Trustee created hereby
(other than the obligation of the Trustee to make payments to
Certificateholders as hereafter set forth) shall terminate, except with
respect to the duties described in Sections 8.04, 11.05 and 12.03(b), on the
Business Day after the day on which funds shall have been deposited in the
Collection Account at the times and in the amounts provided for in this
Agreement (including, without limitation, Sections 2.04, 12.01(b), 12.02 and
Article IV hereof) sufficient to pay the Aggregate Invested Amount plus the
Issuer Amount plus interest accrued at the applicable Certificate Rates or
Issuer's Interest Rate through the last day of the month preceding the next
Payment Date in full with respect to each Series of Certificates and the
Variable Funding Certificate; provided, however, that in no event shall the
trust created by this Agreement continue beyond the expiration of 21 years
from the death of the last survivor of the descendants, living on the date of
this Agreement, of Xxxxxx Xxxxxxx Xxxxxx Xxxx, former President of the United
States of America (the "Final Trust Termination Date"). The Servicer shall
promptly notify the Trustee of any prospective termination pursuant to this
Section 12.01(a) ten days in advance.
(b) If on the Transfer Date in the month immediately preceding
the month in which the Final 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 the Variable Funding Certificate or any
Series of Investor Certificates to be made on the related Payment Date
pursuant to Section 4.06) the sum of the Issuer Amount and Invested Amount of
any Series would be greater than zero, the Servicer on behalf of the Trust
shall sell in a commercially reasonable manner within 30 days of such Transfer
Date all of the Receivables and the Related Security. The proceeds of such
sale, net of all reasonable expenses of the Trustee incurred in connection
with such sale, which shall be paid to the Trustee from such proceeds, shall
be treated as Collections of the Receivables and shall be allocated in
accordance with Section 4.03. During such 30-day period, the Servicer
shall continue to collect Collections on the Receivables and allocate such
payments in accordance with the provisions of Section 4.03.
Section 12.02 Optional Purchase and Series Termination Date of Investor
Certificates of any Series or the Variable Funding Certificate.
(a) If provided in any Supplement, on a Payment Date the
Transferor may, but shall not be obligated to, purchase any Series of
Investor Certificates or the Variable Funding Certificate by depositing
into the Collection Account, on the preceding Transfer Date, an amount
equal to the Invested Amount thereof or the Issuer Amount, as the case may
be, plus interest accrued and unpaid thereon at the applicable Certificate
Rate or Issuer's Interest Rate, as applicable through the Record Date
preceding the Payment Date on which the purchase will be made; provided,
however that no such purchase of any Certificates shall occur unless the
Transferor shall deliver to the Trustee an Opinion of Counsel reasonably
acceptable to the Trustee to the effect that such purchase of any
Certificates would not constitute a fraudulent conveyance of the
Transferor.
(b) The amount deposited pursuant to Section 12.02(a) shall be
paid to the Investor Certificateholders of the related Series or the Holder
of the Variable Funding Certificate, as applicable, pursuant to Sections
4.04, 4.05 and 4.06 on the Payment Date following the date of such deposit.
All Certificates which are purchased by the Transferor pursuant to Section
12.02(a) shall be delivered by the Transferor upon such purchase to, and be
cancelled by, the Transfer Agent and Registrar and be disposed of in a
manner satisfactory to the Trustee and the Transferor. The Variable
Funding Certificate once retired may be reissued under Section 6.09 hereof
as if it had never been issued prior to its reissuance.
(c) All principal or interest with respect to any Series of
Investor Certificates and the Variable Funding Certificate shall be due and
payable no later than the Series Termination Date with respect to such Series
or the Variable Funding Certificate. Unless otherwise provided in a
Supplement, in the event that (i) the Invested Amount of any Series of
Certificates or (ii) the Issuer Amount is greater than zero on its Series
Termination Date, the Trustee will use its best efforts to sell or cause to be
sold in a commercially reasonable manner, and pay the proceeds (net of all
reasonable expenses of the Trustee incurred in connection with such sale,
which shall be paid to the Trustee from such proceeds), to the extent
necessary, to all Certificateholders of such Series pro rata or to the Holder
of the Variable Funding Certificate, as applicable, in final payment of all
principal of and accrued interest on such Series of Certificates or the
Variable Funding Certificate, an amount of Receivables and Related Security up
to 110% of (i) the Invested Amount of such Series or (ii) the Issuer
Amount, as applicable, at the close of business on such date; provided,
however, that no selection procedures believed to be adverse to
Certificateholders shall be used in selecting such Receivables and in no
event shall the amount of Receivables and Related Security sold cause the
Transferor Amount to be less than or equal to zero. Any proceeds of such
sale in excess of such principal and interest paid and the expenses of the
Trustee shall be paid to the Transferor. Upon payment of the proceeds of
such sale as provided in this Section 12.02(c), all principal of and
accrued interest on such Series or the Variable Funding Certificate shall
be deemed for all purposes to have been paid in full. Upon such Series
Termination Date, or (if applicable) on the first Payment Date following
the sale of Receivables and Related Security called for above in this
Section 12.02(c), with respect to the applicable Series of Certificates or
the Variable Funding Certificate, final payment of all amounts allocable to
any Investor Certificates of such Series or the Variable Funding
Certificate, as applicable, shall be made in the manner provided in Section
12.03.
Section 12.03 Final Payment.
(a) Written notice of any termination, specifying the
Payment Date upon which the Holder of the Variable Funding Certificate or
the Investor Certificateholders of any Series may surrender their
Certificates for payment of the final distribution with respect to the
Variable Funding Certificate or such Series and cancellation, shall be
given (subject to at least ten days' prior notice from the Servicer to the
Trustee) by the Trustee to the CP Issuer or the Investor Certificateholders
of such Series mailed not later than the fifth day of the month of such
final distribution specifying (i) the Payment Date (which shall be the
Payment Date in the month in which the deposit is made pursuant to Section
2.04 or 12.02(a)) upon which final payment of the Variable Funding
Certificate or such Investor Certificates will be made upon presentation
and surrender of such 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 Payment Date is not applicable,
payments being made only upon presentation and surrender of the Investor
Certificates at the office or offices therein specified. The Servicer's
notice to the Trustee in accordance with the preceding sentence shall be
accompanied by an Officers' Certificate setting forth the information
specified in Section 5.02(a), as applicable, covering the period during the
then current calendar year through the date of such notice and setting
forth the date of such final distribution. 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 Certificateholders. Any final payment of the
Variable Funding Certificate shall be made upon presentation thereof by
wire transfer in immediately available funds.
(b) Notwithstanding the termination of the Trust pursuant to
Section 12.01(a) or the occurrence of the Series Termination Date with respect
to any Series pursuant to Section 12.02, all funds then on deposit in the
Collection Account shall continue to be held in trust for the benefit of the
Certificateholders and the Paying Agent or the Trustee shall pay such funds to
the Certificateholders upon surrender of their Certificates. In the event that
all of the Investor Certificateholders of all, or the applicable, Series,
shall not surrender their 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, upon
receipt of the appropriate records from the Transfer Agent and Registrar to
surrender their Certificates for cancellation and receive the final
distribution with respect thereto. If within one year after the second notice
all, or the applicable 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 concerning surrender of their Certificates, and the
cost thereof shall be paid out of the funds in the Collection Account held
for the benefit of such Investor Certificateholders.
(c) All Certificates surrendered for payment of the final
distribution with respect to such Certificates and cancellation, shall be
cancelled by the Transfer Agent and Registrar and be disposed of in a manner
satisfactory to the Trustee. Upon the termination of the Trust, the Transferor
shall return the Transferor Certificate to the Trustee, and the Trustee shall
dispose of such Certificates in a manner satisfactory to the Trustee.
Section 12.04 Transferor's Termination Rights. Upon the termination of
the Trust pursuant to Section 12.01 and the surrender of the Transferor
Certificate, the Trustee shall return to the Transferor (without recourse,
representation or warranty) all right, title and interest of the Trust in
the Receivables and the other Trust Assets, whether then existing or
thereafter created, all moneys due or to become due with respect thereto,
and all proceeds thereof except for amounts held by the Trustee pursuant to
Section 12.03(b). The Trustee shall execute and deliver such instruments
of transfer and assignment, in each case prepared by the Transferor and
without recourse, representation or warranty, as shall be reasonably
requested by the Transferor to vest in the Transferor all right, title and
interest which the Trust had in the Receivables and other Trust Assets.
[END OF ARTICLE XII]
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.01 Amendment.
(a) This Agreement or any Supplement may be amended from
time to time by the Servicer, the Transferor and the Trustee, without the
consent of any of the Certificateholders, to cure any ambiguity, to correct
or supplement any provisions herein which may be inconsistent with any
other provisions herein or to add any other provisions with respect to
matters or questions raised under this Agreement which shall not be
inconsistent with the provisions of this Agreement; provided, however, that
such action shall not, as evidenced by an Opinion of Counsel delivered to
the Trustee, adversely affect in any material respect the interests of the
CP Issuer or the Investor Certificateholders.
(b) This Agreement and any Supplement may also be amended from
time to time by the Servicer, the Transferor and the Trustee with the prior
consent of (i) the Holder of the Variable Funding Certificate, if it would be
adversely affected by such amendment and (ii) the Holders of Investor
Certificates evidencing Undivided Interests aggregating not less than 65% of
the Invested Amount of all Series materially adversely affected thereby, for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Variable Funding Certificate or the Investor
Certificateholders of any Series then issued and outstanding; provided,
however, that no such amendment under this subsection shall (i) reduce in any
manner the amount of, or delay the timing of, distributions which are required
to be made (x) on the Variable Funding Certificate or (y) any Investor
Certificate of such Series without the consent of the Holder of the Variable
Funding Certificate or the related Investor Certificateholder, respectively;
(ii) change the definition of or the manner of calculating the interest of (x)
the Variable Funding Certificate or (y) any Investor Certificate without the
consent of the Holder of the Variable Funding Certificate or the related
Investor Certificateholders, respectively; (iii) reduce the aforesaid
percentage required to consent to any such amendment by the Investor
Certificateholders, in each case without the consent of all such Investor
Certificateholders; (iv) without the consent of the Required Banks and the
Required LOC Issuers, amend (A) Article IV as it relates to the Variable
Funding Supplement (including such portions of Article IV which may be
restated in the Variable Funding Supplement) or any definition to the extent
used therein, (B) the definition of Discount Factor in a manner which shall
cause a reduction thereof, or (C) Section 9.02 or (v) be effective unless each
Rating Agency first shall have confirmed in writing that such amendment will
not result in such Rating Agency reducing or withdrawing its rating on any
outstanding Series or on the Commercial Paper.
(c) Promptly after the execution of any such amendment or
consent the Trustee shall furnish written notification of the substance of
such amendment to the Holder of the Variable Funding Certificate and each
Investor Certificateholder, and the Servicer shall furnish written
notification of the substance of such amendment to any Rating Agency.
(d) It shall not be necessary for the consent of the Investor
Certificateholders under this Section 13.01 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 the Persons required
to consent under Section 13.01 shall be subject to such reasonable
requirements as the Trustee may prescribe.
(e) [Reserved].
(f) Prior to the execution of any amendment to this Agreement or
any Supplement, the Trustee shall be entitled to receive and rely upon an
Opinion of Counsel stating that the execution of such amendment is authorized
or permitted by this Agreement and that all conditions precedent to the
execution and delivery of such amendment have been satisfied and, if
applicable, the Opinion of Counsel required by Section 13.02(c). The Trustee
may, but shall not be obligated to, enter into any such amendment which
affects the Trustee's own rights, duties or immunities under this Agreement,
any Supplement or otherwise.
Section 13.02 Protection of Right, Title and Interest of Trust.
(a) The Servicer shall cause this Agreement, any
Supplement, all amendments hereto or thereto and/or all financing
statements and continuation statements and any other necessary documents
covering the Certificateholders and the Trustee's right, title and interest
to the Trust Assets 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 Assets. The Servicer shall deliver to the Trustee
file-stamped 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. The Transferor shall cooperate fully
with the Servicer in connection with the obligations set forth above and
will execute any and all documents reasonably required to fulfill the
intent of this Section 13.02(a).
(b) The Servicer will give the Trustee prompt written notice of
any relocation of any office from which it services Receivables or keeps
records concerning the Receivables or of its principal place of business or
chief executive office and whether, as a result of such relocation, the
applicable provisions of the UCC would require the filing of any amendment of
any previously filed financing or continuation statement or of any new
financing statement and shall file such financing statements or amendments as
may be necessary to perfect or to continue the perfection of the Trust's
ownership or security interest in the Receivables and the other Trust Assets.
The Servicer will at all times maintain each office from which it services
Receivables and the Related Security and its principal executive office within
the United States of America.
(c) The Servicer will deliver to the Trustee: (i) upon the
execution and delivery of each amendment of Articles I, II, III or IV hereof
other than amendments pursuant to Section 13.01(a), and (ii) on or before
April 30 of each year, beginning with 1994, an Opinion of Counsel (which may
be in-house counsel), substantially in the form of Exhibit M hereto, dated as
of a date between January 1 and April 30 of such year.
(d) If at any time the Servicer is no longer Ingram, the
Transferor shall deliver to the Successor Servicer powers-of-attorney such
that such Successor Servicer may perform the obligations set forth in
Sections 13.02(a), 13.02(b) and 13.02(c).
Section 13.03 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall
not operate to terminate this Agreement or the Trust, nor shall such death
or incapacity entitle such Certificateholders' 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) No Certificateholder shall have any right to vote
(except as specifically provided in this Agreement or any Supplement) or in
any manner otherwise control the operation and management of the Trust, or
the obligations of the parties hereto, nor shall anything herein set forth,
or contained in the terms of the Certificates, be construed so as to
constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder 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 Certificateholder shall have any right by virtue of
any provisions of this Agreement or any Supplement to institute any suit,
action or proceeding in equity or at law upon or under or with respect to
this Agreement, unless the Holder of the Variable Funding Certificate (if
it may be adversely affected but for the institution of such suit, action
or proceeding), or the Holders of Investor Certificates evidencing
Undivided Interests in the Trust aggregating more than 50% of the Invested
Amount of any Series which may be materially adversely affected but for the
institution of such suit, action or proceeding shall have made written
request upon the Trustee 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 institute any such action, suit or proceeding;
it being understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that
no one or more Certificateholders shall have any right in any manner
whatever by virtue or by availing itself or themselves of any provisions of
this Agreement or any Supplement to affect, disturb or prejudice the rights
of the Certificateholders of any other of the Certificates, or to obtain or
seek to obtain priority over or preference to any other such
Certificateholder, or to enforce any right under this Agreement or any
Supplement, except in the manner herein provided and for the equal, ratable
and common benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section 13.03, each and every
Certificateholder and the Trustee shall be entitled to such relief as can
be given either at law or in equity.
Section 13.04 Governing Law. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS.
Section 13.05 Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given
if personally delivered at or five days after mailing by certified or
registered mail, return receipt requested, (a) in the case of Ingram to One
Belle Xxxxx Place, 0000 Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx 00000,
Attention: Treasurer; (b) in the case of the Trustee, to the Corporate
Trust Office; (c) in the case of the Transferor to 0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President; (d) in the case
of the Holder of the Variable Funding Certificate to c/o Merrill Xxxxx,
World Financial Center, South Tower, 000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000-0000 Attention: Xxxx Xxxxxx, Treasurer; or, as to
each party, at such other address as shall be designated by such party in a
written notice to each other party. Any notice required or permitted to be
mailed to a Certificateholder shall be given by first class mail, postage
prepaid, at the address of such Certificateholder as shown in the
Certificate Register. Notwithstanding any other provision hereof, any
notice or consent hereunder to be given or made by the Holder of or with
respect to the Variable Funding Certificate shall be effective if made by
or to the Collateral Agent. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been
duly given, whether or not the Certificateholder receives such notice.
Copies of all notices, reports, certificates and amendments
required to be delivered to the Rating Agencies hereunder shall be mailed
to the Rating Agencies as follows: Fitch Investors Service, Inc., Xxx
Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, XX 00000, Attention: Asset-Backed
Surveillance Group and Standard & Poor's Corporation, 00 Xxxxxxxx, 00xx
Xxxxx, Xxx Xxxx, XX 00000, Attention: Asset-Backed Surveillance Group.
Section 13.06 Severability of Provisions. If any one or more
of the covenants, agreements, provisions or terms of this Agreement 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 this Agreement and shall in no way
affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or rights of the Certificateholders
thereof.
Section 13.07 Assignment. Notwithstanding anything to the
contrary contained herein, except as provided in Sections 8.02 or 8.05,
this Agreement, including any Supplement, may not be assigned by the
Servicer without the prior consent of the Holder of the Variable Funding
Certificate, and the Holders of Investor Certificates evidencing Undivided
Interests aggregating not less than 65% of the Invested Amount of the
Investor Certificates of each Series.
Section 13.08 Certificates Nonassessable and Fully Paid. It is
the intention of the parties to this Agreement that the Certificateholders
shall not be personally liable for obligations of the Trust, that the
interests in the Trust represented by the Certificates shall be
nonassessable for any losses or expenses of the Trust or for any reason
whatsoever, and that Certificates upon authentication thereof by the
Trustee pursuant to Sections 2.07 and 6.02 are and shall be deemed fully
paid.
Section 13.09 Further Assurances. The Transferor and the
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 this Agreement,
including, without limitation, the execution of any financing statements or
continuation statements relating to the Receivables and the other Trust
Assets for filing under the provisions of the UCC of any applicable
jurisdiction.
Section 13.10 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Trustee or the
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 13.11 Counterparts. This Agreement and any
Supplement may be executed in two or more counterparts (and by different
parties on separate counter parts), each of which shall be an original, but
all of which together shall constitute one and the same instrument.
Section 13.12 Third-Party Beneficiaries. This Agreement and any
Supplement will inure to the benefit of and be binding upon the parties
hereto, and, in addition, shall inure to the benefit of the Certificateholders
and their respective successors and permitted assigns. Except as otherwise
provided in this Article XIII or Section 7.04, no other Person will have any
right or obligation hereunder.
Section 13.13 Actions by Certificateholders.
(a) Wherever in this Agreement or any Supplement, 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 Certificate holder of any
Series, unless such provision requires a specific percentage of Investor
Certificateholders of a certain Series or all Series.
(b) Any request, demand, authorization, direction, notice,
consent, waiver or other act by a Certificateholder shall bind such
Certificateholder and every subsequent holder of such 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 or
the Servicer in reliance thereon, whether or not notation of such action is
made upon such Certificate.
(c) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Agreement or any
Supplement to be given or taken by Certificateholders may be embodied in
and evidenced by one or more instruments of substantially similar tenor
signed by such Certificateholders in person or by agent duly appointed in
writing; and except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to
the Trustee and, when required, to the Transferor or the Servicer. Proof
of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Agreement or any
Supplement and conclusive in favor of the Trustee, the Transferor and the
Servicer, if made in the manner provided in this Section.
(d) The fact and date of the execution by any
Certificateholder of any such instrument or writing may be proved in any
reasonable manner which the Trustee deems sufficient.
(e) The Trustee may require such additional proof of any
matter referred to in this Section as it shall deem necessary.
Section 13.14 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. This
Agreement may not be modified, amended, waived or supplemented except as
provided herein.
Section 13.15 Headings. The headings herein are for purposes
of reference only and shall not otherwise affect the meaning or
interpretation of any provision hereof.
Section 13.16 No Bankruptcy Petition Against the Transferor.
The Trustee (solely as Trustee, Paying Agent and successor Servicer, if
applicable), any Paying Agent other than the Trustee, the Servicer and by
its acceptance of its Certificate, the Holder of the Variable Funding
Certificate and each Holder of an Investor Certificate, severally and not
jointly, each hereby covenants and agrees that, prior to the date which is
one year and one day after the payment in full of the Issuer Amount and all
Invested Amounts, it will not institute against, or join any other Person
in instituting against, the Transferor any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other similar
proceeding under the laws of the United States or any state of the United
States.
[END OF ARTICLE XIII]
IN WITNESS WHEREOF, Xxxxxx Funding Inc., Xxxxxx Industries Inc.
and the Trustee have caused this Agreement to be duly executed by their
respective officers as of the day and year first above written.
XXXXXX FUNDING INC.,
as Transferor
/s/
By _______________________________
Name:
Title:
XXXXXX INDUSTRIES INC.
as Servicer
/s/
By _______________________________
Name:
Title:
CHEMICAL BANK,
as Trustee
/s/
By _______________________________
Name:
Title:
EXHIBIT E
[CHART TO BE INSERTED HERE]
EXHIBIT F
FORM OF ANNUAL SERVICER'S CERTIFICATE
XXXXXX FUNDING MASTER TRUST
The undersigned, a duly authorized representative of Xxxxxx Industries,
Inc. ("Ingram"), as Servicer pursuant to the Pooling and Servicing
Agreement dated as of February 10, 1993 (the "Pooling and Servicing
Agreement") by and among Xxxxxx Funding Inc. (the "Transferor"), Ingram as
Servicer and Chemical Bank, as trustee (the "Trustee") does hereby certify
that:
1. Ingram is Servicer under the Pooling and Servicing Agreement.
2. The undersigned is duly authorized pursuant to the Pooling and
Servicing Agreement to execute and deliver this Certificate to the Trustee.
3. This Certificate is delivered pursuant to Section 3.05 of the Pooling
and Servicing Agreement.
4. A review of the activities of the Servicer during (the period from the
Closing Date until) (the approximately twelve month period ended) [ ], 19_ and
of its performance under the Pooling and Servicing Agreement was conducted
under our supervision.
5 To the best of our knowledge, based on such review, the Servicer has, or
has caused to be, fully performed all its obligations under the Pooling and
Servicing Agreement throughout such period and no default in the performance
of such obligations has occurred or is continuing except as set forth in
paragraph 6 below.
6. The following is a description of each default in the performance of
the Servicer's obligations under the provisions of the Pooling and
Servicing Agreement, including any Supplement, known to us to have been
made during such period which sets forth in detail (i) the nature of each
such default, (ii) the action taken by the Servicer, if any, to remedy each
such default and (iii) the current status of each such default:
[If applicable, insert "None."]
IN WITNESS WHEREOF, the undersigned has duly executed this
certificate this _ day of _____________, _________ .
XXXXXX INDUSTRIES INC.
_______________________________
Name:
Title:
SCHEDULE I
CERTIFICATE OF TRUSTEE AS TO
COLLECTION ACCOUNT AND TRANSFEROR ACCOUNT
This Certificate is being provided pursuant to Section 6.01(n)(i) of the
Liquidity Agreement, dated as of February 10, 1993, among Distribution Funding
Corporation, Xxxxxx Funding Inc., Xxxxxx Industries Inc., the banks named
therein, and Chemical Bank, as Liquidity Agent. Capitalized terms used herein
and not otherwise defined shall have the meanings assigned to them in the
Liquidity Agreement.
I do hereby certify on behalf of Chemical Bank, as Trustee (the
"Trustee"), under the Pooling and Servicing Agreement, dated as of February
10, 1993, among the Trustee, Xxxxxx Industries Inc., and Xxxxxx Funding
Inc., that the Trustee has established the following trust accounts in
accordance with Section 4.02(a) of the Pooling and Servicing Agreement:
Collection Account, Trust Account No. 323-300065; and Transferor Account,
Trust Account NO. 323-300634.
CHEMICAL BANK,
as Trustee
/s/
By: _______________________________
Name: Xxxxxx X. Xxxxxxx
Title: Assistant Vice President
EXHIBIT K
XXXXXX FUNDING INC.
Lockbox Listing
January 11, 1993
XXXXXX FUNDING INC. - BOOK XXXXXX FUNDING INC. - MICRO
XX Xxx 00000 XX Xxx 00000
Xxxxxxxxx, XX 28265-0155 Xxxxxxx, XX 00000
(Nations Bank) (Continental Bank)
XXXXXX FUNDING INC. - BOOK XXXXXX FUNDING INC. - MICRO
XX Xxx 000000 Xxxx #00000
Xxxxxx, XX 00000 Xxx Xxxxxxx, XX 00000-0000
(NationsBank) (Bank of America)
XXXXXX FUNDING INC. - ENTERTAINMENT XXXXXX FUNDING INC. - MICRO
XX Xxx 000000 Xxxx #00000
Xxxxxxxxx, XX 00000-0000 XX Xxx 00000
(XxxxxxxXxxx) Xxx Xxxxxxxxx, XX 00000-0000
(Bank of America)
XXXXXX FUNDING INC. - ENTERTAINMENT
XX Xxx 000000
Xxxxxx, XX 00000-0000
(NationsBank)
XXXXXX FUNDING INC. - ENTERTAINMENT
XX Xxx 00000 & 91728 (UPS only)
Xxxxxxx, XX 00000-0000
(Continental Bank)
XXXXXX FUNDING INC. - MICRO
XX Xxx 0000 (UPS only)
Xxxxxxx, XX 00000
(Marine Midland)
XXXXXX FUNDING INC. - MICRO
XX Xxx 00000
Xxxxxxxxx, XX 00000
(Nations Bank)
XXXXXX FUNDING INC. - MICRO
XX Xxx 000000
Xxxxxx, XX 00000 1381
(NationsBank)
EXHIBIT M
FORM OF ANNUAL OPINION OF COUNSEL
The opinion set forth below, which is to be delivered pursuant to
subsection 13.02(c)(ii) of the Pooling and Servicing Agreement, may be
subject to certain qualifications, assumptions, limitations and exceptions
taken or made in the opinion of counsel delivered on the Initial Closing
Date with respect to similar matters.
No filing or other action, other than such filing or action described in
such opinion, is necessary from the date of such opinion through [date
between January l and April 30] of the following year to continue the
perfected status of the interest of the Trust in the collateral described
in the financing statements referred to in such opinion.
