EXHIBIT 10.7
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AFG CREDIT CORPORATION,
Transferor,
AMERICAN FINANCE GROUP, INC.
Servicer,
FIRST UNION NATIONAL BANK OF NORTH CAROLINA,
Administrative Agent,
THE INITIAL PURCHASERS NAMED HEREIN
and
BANKERS TRUST COMPANY,
Trustee and Collateral Trustee
on behalf of the Series 1995-1 Noteholders
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SERIES 1995-1 SUPPLEMENTAL INDENTURE
Dated as of July 1, 1995
to
POOLING AND SERVICING AGREEMENT AND INDENTURE OF TRUST
Dated as of July 1, 1995
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$80,000,000
AFG MASTER TRUST
Series 1995-1
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TABLE OF CONTENTS
Page
SECTION 1. Designation..................................................1
SECTION 2. Definitions..................................................1
SECTION 3. The Notes....................................................11
SECTION 4. Purchases of Class A Notes...................................12
SECTION 5. Purchase of Class B Notes....................................12
SECTION 6. Delivery.....................................................13
SECTION 7. Procedure for Increasing the Principal Amount................13
SECTION 8. Procedure for Decreasing the Principal Amount................15
SECTION 9. Allocation of Available Pricing Amount.......................15
SECTION 10. Reductions of the Commitments................................16
SECTION 11. Interest;....................................................17
SECTION 12. Indemnification by Transferor................................18
SECTION 13. Article IV of Agreement......................................19
SECTION 14. Article V of the Agreement...................................24
SECTION 15. Accelerated Payment Events; Series 1995-1 Pay
Out Events...........................................26
SECTION 16. Funding Costs................................................27
SECTION 17. Conditions Precedent to Effectiveness of
Supplement...........................................32
SECTION 18. Representations and Warranties of the
Transferor and the Servicer........................36
SECTION 19. Covenants of the Transferor..................................37
SECTION 20. Covenants of the Servicer....................................38
SECTION 21. Covenants of the Trustee.....................................39
SECTION 22. Obligations Unaffected.......................................39
SECTION 23. Administrative Agent.........................................39
SECTION 24. Payments.....................................................42
SECTION 25. Costs and Expenses...........................................43
SECTION 26. Amendments...................................................43
SECTION 27. Successors and Assigns.......................................44
SECTION 28. Reserved. ...................................................47
SECTION 29. Repurchase by Servicer.......................................47
SECTION 30. Repurchase by Transferor.....................................47
SECTION 31. Permitted Successor Servicer.................................47
SECTION 32. Option to Repurchase.........................................47
SECTION 33. Final Distribution...........................................47
SECTION 34. Representations of Class B Purchasers........................48
SECTION 36. Counterparts.................................................48
SECTION 37. GOVERNING LAW................................................48
SECTION 38. The Trustee..................................................48
SECTION 39. Instructions in Writing......................................48
-ii-
EXHIBITS
Exhibit A: Form of Class A Note
Exhibit B: Form of Class B Note
Exhibit C: Form of Monthly Noteholder's Statement
Exhibit D: Form of Purchaser's Certification
Exhibit E: Form of Seller's Certification
Exhibit F: Form of Commitment Transfer Supplement
SCHEDULES
Schedule 1 Schedule of Purchasers' Commitments
EXHIBIT 10.7
SERIES 1995-1 SUPPLEMENTAL INDENTURE, dated as of July 1, 1995
(this "Supplement") among AFG Credit Corporation, a Delaware corporation, as
Transferor, American Finance Group, Inc., a Delaware corporation, as Servicer,
the several banks parties hereto as of the Closing Date (collectively, the
"Initial Purchasers" and individually, an "Initial Purchaser"), the other
financial institutions from time to time parties hereto as purchasers pursuant
to Section 27, First Union National Bank of North Carolina, as Administrative
Agent (in such capacity, the "Administrative Agent") and Bankers Trust Company,
as Trustee (in such capacity, the "Trustee") and as Collateral Trustee (in such
capacity, the "Collateral Trustee") under the AFG Master Trust Pooling and
Servicing Agreement and Indenture of Trust dated as of July 1, 1995 among the
Transferor, the Servicer, and the Trustee and Collateral Trustee (as amended,
supplemented or otherwise modified from time to time, the "Agreement").
Section 6.12 of the Agreement provides, among other things,
that the Transferor and the Trustee may at any time and from time to time enter
into a supplement to the Agreement for the purpose of authorizing the delivery
by the Transferor to the Trustee for execution and authentication of one or more
Series of Notes.
Pursuant to this Supplement, the Transferor shall create a new
Series of Notes and shall specify the principal terms thereof.
SECTION 1. Designation. There is hereby created a Series of
Notes to be issued pursuant to the Agreement and this Supplement to be known as
the "Series 1995-1 Notes". The Series 1995-1 Notes shall be issued in two
Classes, which shall respectively be known as the "Series 1995-1 Class A Notes
(the "Class A Notes") and the "Series 1995-1 Class B Notes" (the "Class B
Notes"). Series 1995-1 shall be a Variable Funding Series. The Series 1995-1
Notes shall be issued in definitive form.
SECTION 2. Definitions.
In the event that any term or provision contained herein shall
conflict with or be inconsistent with any provision contained in the Agreement,
the terms and provisions of this Supplement shall govern. All Article, Section
or subsection references herein shall mean Articles, Sections or subsections of
the Agreement, as amended or supplemented by this Supplement, except as
otherwise provided herein. All capitalized terms not otherwise defined herein
are used herein as defined in the Agreement. Each capitalized term defined
herein shall relate only to the Series 1995-1 Notes and no other Series of Notes
issued by the Trust.
"Accelerated Funding Requirement" shall mean, on any
Distribution Date after an Accelerated Payment Event has occurred, the
Principal Amount, after giving effect to the
application of any amounts allocated under the Target Repayment
Amount.
"Accelerated Payment Date" shall mean the date on which an
Accelerated Payment Event is deemed to occur pursuant to Section 15(a)
of this Supplement.
"Accelerated Payment Event" shall have the meaning set forth
in Section 15(a) of this Supplement.
"Acquiring Purchaser" shall have the meaning set forth
in Section 27(d).
"Adjusted Class A Principal Amount" shall mean, on any date of
determination, the excess of the Aggregate Class A Principal Amount
over the Distribution Account Balance allocable to the Aggregate Class
A Principal Amount at the
end of such date of determination.
"Adjusted Principal Amount" shall mean, on any date of
determination, the excess of the Principal Amount over the Distribution
Account Balance at the end of such date of determination.
"Administrative Agent" shall have the meaning assigned
in the preamble.
"Administrative Fee" shall have the meaning specified
in Section 11(c).
"Aggregate Class A Commitment Amount" shall mean, as of any
date, the sum of the Commitments of all Class A Purchasers on such
date.
"Aggregate Class A Principal Amount" shall mean, as of any
date, the sum of the Class A Principal Amounts of all Class A
Purchasers on such date.
"Aggregate Class B Commitment Amount" shall mean, as of any
date, the sum of the Commitments of all Class B Purchasers on such
date.
"Aggregate Class B Principal Amount" shall mean, as of any
date, the sum of the Class B Principal Amounts of all Class B
Purchasers on such date.
"Aggregate Commitment Amount" shall mean, as of any date, the
sum of the Commitments of all Purchasers on such date.
"Alternate Base Rate" means, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the
greatest of (i) the rate of interest publicly announced by the
Administrative Agent from time to
time as its prime rate in effect at its principal office or (ii) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%.
"Arranger" shall mean First Union National Bank of
North Carolina.
"Available Class A Pricing Amount" shall mean, on any
Distribution Date, the sum of (i) the Unallocated Class A Balance plus
(ii) the Class A Increase on such date.
"Available Class B Pricing Amount" shall mean, on any
Distribution Date, the sum of (i) the Unallocated Class B Balance plus
(ii) the Class B Increase on such date.
"Average Principal Amount" shall mean for any period the sum
of the Principal Amounts on each day of such period divided by the
number of days in such period.
"Change in Law" shall have the meaning specified in
Section 16(e)(i).
"Class A Average Principal Amount" shall mean, for any period
the sum of the Class A Principal Amount for each day of such period
divided by the number of days in such period.
"Class A Noteholder" shall mean the holder of record of any
Class A Note.
"Class A Note Interest" shall have the meaning specified in
Section 4.4A(a)(ii).
"Class A Notes" shall have the meaning assigned in the
preamble.
"Class A Commitment" shall mean, as to any Purchaser, its
obligation to maintain and, subject to the conditions set forth in
Section 7, increase its Class A Principal Amount, in an aggregate
amount not to exceed at any one time outstanding the amount set forth
opposite such Purchaser's name in Schedule 1 under the caption "Class A
Commitment", as such amount may be reduced from time to time as
provided herein; collectively, as to all such Purchasers, the "Class A
Commitments".
"Class A Commitment Percentage" shall mean, as to any
Purchaser and as of any date, the percentage equivalent of a fraction,
the numerator of which is such Purchaser's Class A Commitment and the
denominator of which is the Aggregate Class A Commitment Amount as of
such date.
"Class A Decrease" shall have the meaning assigned in
Section 8.
"Class A Increase" shall have the meaning assigned in
Section 7.
"Class A Increase Amount" shall have the meaning assigned in
Section 7.
"Class A Increase Date" shall have the meaning assigned in
Section 7.
"Class A Principal Amount" shall mean, with respect to any
Purchaser and as of any date, an amount equal to (a) such Purchaser's
Class A Principal Amount on the immediately preceding Weekly Sale Date
(or, with respect to the date as of which such Purchaser becomes a
party to this Supplement, whether by executing a counterpart hereof, a
Commitment Transfer Supplement or otherwise, (i) the product of such
Purchaser's Commitment Percentage and the Class A Principal Amount on
the immediately preceding Weekly Sale Date or (ii) the portion of the
transferor's Class A Principal Amount being purchased, in the case of
an Acquiring Purchaser), plus (b) the amount of any increases in such
Purchaser's Class A Principal Amount pursuant to Section 7 made on the
preceding Weekly Sale Date, minus (c) the amount of any distributions
to such Purchaser pursuant to Section 8 or 5.1A prior to such date of
determination.
"Class A LIBOR Rate" shall mean, with respect to each day
during a LIBOR Period pertaining to the Class A LIBOR Tranche, a rate
per annum equal to LIBOR plus 0.85%.
"Class A LIBOR Tranche" shall mean each portion of the Class A
Principal Amount for which Class A Note Interest is calculated by
reference to LIBOR with reference to a
particular LIBOR Period.
"Class A Percentage" shall mean 85%.
"Class A Purchaser" shall mean each purchaser of the Class A
Notes, including each Acquiring Purchaser; collectively, the "Class A
Purchasers."
"Class A Voting Percentage" shall mean with respect to any
Class A Purchaser, during the Revolving Period, the percentage
equivalent of a fraction the numerator of which equals such Purchaser's
Class A Commitment and the denominator of which equals the Aggregate
Class A Commitment Amount and thereafter, the percentage equivalent of
a fraction the numerator of which equals such Purchaser's Class A
Principal Amount and the denominator of which equals the Aggregate
Class A Principal Amount.
"Class B Average Principal Amount" shall mean, for any period
the sum of the Class B Principal Amount for each day of such period
divided by the number of days in such period.
"Class B Noteholder" shall mean the holder of record of any
Class B Note.
"Class B Note Interest" shall have the meaning specified in
Section 4.4A(iii).
"Class B Notes" shall have the meaning assigned in the
preamble.
"Class B Commitment" shall mean, as to any Purchaser, its
obligation to maintain and, subject to the conditions set forth in
Section 7, increase its Class B Principal Amount, in an aggregate
amount not to exceed at any one time outstanding the amount set forth
opposite such Purchaser's name in Schedule 1 under the caption "Class B
Commitment", as such amount may be reduced from time to time as
provided herein; collectively, as to all such Purchasers, the "Class B
Commitments".
"Class B Commitment Percentage" shall mean, as to any
Purchaser and as of any date, the percentage equivalent of a fraction,
the numerator of which is such Purchaser's Class B Commitment and the
denominator of which is the Aggregate Class B Commitment Amount as of
such date.
"Class B Decrease" shall have the meaning assigned in
Section 8.
"Class B Increase" shall have the meaning assigned in
Section 7.
"Class B Increase Amount" shall have the meaning assigned in
Section 7.
"Class B Increase Date" shall have the meaning assigned in
Section 7.
"Class B Principal Amount" shall mean, as of any date, an
amount equal to (a) the Class B Principal Amount on the immediately
preceding Weekly Sale Date (or, with respect to the date as of which
the Class B Notes are issued, the Initial Class B Principal Amount),
plus (b) the amount of any increases in the Class B Principal Amount
pursuant to Section 7 made on the preceding Weekly Sale Date, minus (c)
the amount of any distributions to the Class B Noteholders pursuant to
Section 5.1A prior to such date of determination.
"Class B LIBOR Rate" shall mean, with respect to each day
during a LIBOR Period pertaining to the Class B LIBOR Tranche, a rate
per annum equal to LIBOR plus 1.85%.
"Class B LIBOR Tranche" shall mean each portion of the Class B
Principal Amount for which Class B Note Interest is calculated by
reference to LIBOR with reference to a
particular LIBOR Period.
"Class B Purchaser" shall mean each purchaser of the Class B
Notes, including each Acquiring Purchaser; collectively, the "Class B
Purchasers."
"Class B Voting Percentage" shall mean with respect to any
Class B Purchaser, during the Revolving Period, the percentage
equivalent of a fraction the numerator of which equals such Purchaser's
Class B Commitment and the denominator of which equals, the Aggregate
Class B Commitment Amount and thereafter, the percentage equivalent of
a fraction the numerator of which equals such Purchaser's Class B
Principal Amount and the denominator of which equals the Aggregate
Class B Principal Amount.
"Closing Date" shall mean the date on which the Principal
Amount is first increased to above zero.
"Commitments" shall mean, collectively the Class A Commitments
and the Class B Commitments.
"Commitment Percentage" shall mean, as to any Purchaser and as
of any date, the percentage equivalent of a fraction, the numerator of
which is such Purchaser's Commitment as set forth on Schedule 1 and the
denominator of which is the Aggregate Commitment Amount as of such
date.
"Commitment Reduction" shall have the meaning assigned
in subsection 10(a).
"Commitment Transfer Supplement" shall have the meaning
assigned in Section 27(d).
"Decrease" shall mean a Class A Decrease or a Class B
Decrease.
"Distribution Account" shall have the meaning specified
in Section 4.2B.
"Distribution Account Balance" shall mean, on any date of
determination, the amount on deposit in the Distribution Account on
such date (excluding investment income for the Monthly Period which
includes such date of determination and amounts designated to pay Note
Interest).
"Effective Date" shall have the meaning specified in
Section 17.
"Federal Funds Effective Rate" shall mean, for any day, the
weighted average of the rates on overnight funds transactions with
members of the Federal Reserve System arranged by federal funds
brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for
the day of such transactions received by the Administrative Agent from
three federal funds brokers of recognized standing selected by it.
"Increase Amount" shall mean, on any date, the aggregate
amount of the Class A Increase Amount and the Class B Increase Amount
on such date.
"Increase Date" shall mean any Class A Increase Date or
Class B Increase Date.
"Increased Costs" shall mean any amounts owing to the
Purchasers pursuant to Section 16(d).
"Initial Class A Principal Amount" shall mean
$10,033,365.05.
"Initial Class B Principal Amount" shall mean
$1,770,593.83.
"Initial Principal Amount" shall mean the sum of the
Initial Class A Principal Amount and the Initial Class B
Principal Amount.
"LIBOR" means with respect to each day during each LIBOR
Period with respect to a LIBOR Tranche, the rate per annum equal to the
average (rounded upwards to the nearest 1/16 of 1%) of the rates of the
Reference Banks quoted on page 3750 of the Telerate Screen for deposits
in United States dollars for a period of one month as of 10:00 A.M.,
New York City time, two Business Days prior to the beginning of such
LIBOR Period for delivery on the first day of such LIBOR Period;
provided that if only one rate appears on such page of the Telerate
Screen, LIBOR for such LIBOR Period shall mean such quoted rate;
provided, further, that if it is not possible to obtain or determine
the average of the rates of the Reference Banks as provided above,
"LIBOR" shall mean, with respect to each day during each LIBOR Period
pertaining to a LIBOR Tranche, the rate per annum equal to the average
(rounded upward to the nearest 1/16th of 1%) of the respective rates
notified to the Administrative Agent by each of the Reference Banks as
the rate at which such Reference Bank offers dollar deposits to prime
banks at or about 10:00 A.M., New York City time, two
Business Days prior to the beginning of such LIBOR Period in the
interbank eurodollar market for delivery on the first day of such LIBOR
Period for the number of days comprised therein and in an amount of
$5,000,000.
"LIBOR Period" shall mean, with respect to any LIBOR Tranche,
a period commencing on and including the applicable Distribution Date
and ending on but excluding the Distribution Date.
"LIBOR Tranche" shall mean either the Class A LIBOR Tranche or
the Class B LIBOR Tranche.
"Minimum Class B Percentage" shall mean 15%.
"Noteholder" shall mean the holder of record of any
Note.
"Notes" shall mean the Class A Notes and the Class B
Notes.
"Optional Series 1995-1 Pay Down Amount" shall mean on a
Distribution Date, the amount designated by the Servicer and available
pursuant to Section 4.3(g)(i) in respect of such Distribution Date.
"Paired Series" shall mean any series of Notes that is paired
with Series 1995-1 in the related Supplement.
"Participants" shall have the meaning specified in
Section 27(b).
"Pay Out Commencement Date" shall mean the date on which a
Trust Pay Out Event is deemed to occur pursuant to Section 9.1 of the
Agreement or a Series 1995-1 Pay Out Event is deemed to occur pursuant
to this Supplement.
"Principal Amount" shall mean, on any date of determination,
the sum of the Aggregate Class A Principal Amount and the Aggregate
Class B Principal Amount on such date of determination.
"Program Agreements" shall have the meaning specified
in Section 17(a).
"Purchaser" shall mean each purchaser of the Series
1995-1 Notes.
"Rating Agencies" shall mean, collectively, each nationally
recognized statistical rating agency which, at the request of the
Transferor or the Servicer, has assigned a rating to one or more
classes of the Series 1995-1 Notes; provided that so long as no such
agency is currently rating a particular Class of Series 1995-1, the
requirement to
satisfy the Rating Agency Condition with respect to such Class shall be
deemed to be a requirement to obtain the consent of the Required
Purchasers of such Class.
"Record Date" shall mean, with respect to any Distribution
Date, the close of business on the last Business Day of the preceding
month.
"Reference Banks" shall mean First Union National Bank
of North Carolina.
"Register" shall mean a register maintained by the
Administrative Agent for recording transfers of interests in the Class
A Notes and the Class B Notes.
"Required Class A Purchasers" shall mean, on any day,
Purchasers having, in the aggregate, Class A Voting Percentages of at
least 66-2/3%.
"Required Series Subordinated Amount" shall mean on any date
of determination, the product of the Adjusted Principal Amount on such
date (after giving effect to any increase or decrease therein to occur
on such date) times the Minimum Class B Percentage.
"Required Class B Purchasers" shall mean, on any day,
Purchasers having, in the aggregate, Class B Voting Percentages of at
least 66-2/3%.
"Required Purchasers" shall mean, on any day, Purchasers
having, in the aggregate, Voting Percentages of at least 66-2/3%.
"Revolving Noteholder's Interest" shall have the
meaning specified in Section 3.
"Revolving Period" shall mean the period from and including
the Closing Date to and including the earlier of (i) the latest
Distribution Date that falls within 364 days after the Closing Date,
(ii) the Pay Out Commencement Date and (iii) the Accelerated Payment
Date.
"Scheduled Series 1995-1 Termination Date" shall mean the
Distribution Date which occurs 12 months after the last Scheduled
Payment under any Included Lease in the Amortizing Pool related to
Series 1995-1.
"Series Accounts" shall mean the Distribution Account with
respect to Series 1995-1.
"Series Available Amount" shall mean on any Distribution Date
the amount allocable to Series 1995-1 in accordance with Section 4.3(e)
or (f) and Section 4.3(g) or (h) of the Agreement, as the case may be.
"Series Asset Base" shall mean, on any date of determination,
the Series Percentage of the Asset Base on such date.
"Series Percentage" shall mean, on any date of
determination:
(a) prior to a Pay Out Event, the percentage
equivalent of a fraction the numerator of which shall be the
Adjusted Principal Amount on the preceding Business Day and
the denominator of which shall be the Aggregate Adjusted
Principal Amount on such day;
(b) after a Pay Out Event, the percentage equivalent
of a fraction the numerator of which shall be the Adjusted
Principal Amount as of the end of the day on the last day of
the Revolving Period and the denominator of which shall be the
Aggregate Adjusted Principal Amount on such day.
"Series 1995-1" shall mean the Series of the AFG Master Trust
represented by the Series 1995-1 Notes.
"Series 1995-1 Pay Out Event" shall have the meaning
prescribed in Section 15(b) of this Supplement.
"Series Subordinated Amount" shall mean, on any date of
determination, the excess, if any, of (i) the Series Percentage of the
Asset Base on such date over (ii) the Adjusted Class A Principal Amount
on such date.
"Series Termination Date" shall mean the earlier to occur of
(i) the day after the Distribution Date on which the Series 1995-1
Notes are repaid in full, or (ii) the Scheduled Series 1995-1
Termination Date.
"Target Repayment Percentage" shall mean 100%.
"Taxes" shall have the meaning specified in Section
16(f).
"Telerate Page 3750" means the display page currently so
designated on the Dow Xxxxx Telerate Service (or such other page as may
replace that page on that service for the purpose of displaying
comparable rates or prices).
"Transferee" shall have the meaning specified in
Section 27(g).
"Transfer Issuance Date" shall mean the date on which a
Commitment Transfer Supplement becomes effective pursuant to the terms
of such Commitment Transfer Supplement.
"Unallocated Class A Balance" shall mean, as of any
Distribution Date, the sum of (i) the portion of the Aggregate Class A
Principal Amount for which the Class A Note Interest is then being
calculated by reference to the Alternate Base Rate and (ii) the portion
of the Aggregate Class A Principal Amount that is allocated to any
Class A LIBOR Tranche which expires on such Distribution Date (in each
case after giving effect to any reduction thereof in accordance with
Section 8).
"Unallocated Class B Balance" shall mean, as of any
Distribution Date, the sum of (i) the portion of the Aggregate Class B
Principal Amount for which the Class B Note Interest is then being
calculated by reference to the Alternate Base Rate and (ii) the portion
of the Aggregate Class B Principal Amount that is allocated to any
Class B LIBOR Tranche which expires on such Distribution Date (in each
case after giving effect to any reduction thereof in accordance with
Section 8).
"Unpaid Class A Note Interest" shall have the meaning
specified in Section 11(a).
"Unpaid Class B Note Interest" shall have the meaning
specified in Section 11(b).
"Voting Percentage" shall mean with respect to any Purchaser,
during the Revolving Period, the percentage equivalent of a fraction
the numerator of which equals such Purchaser's Commitment and the
denominator of which equals, the Aggregate Commitment Amount and
thereafter, the percentage equivalent of a fraction the numerator of
which equals such Purchaser's Principal Amount and the denominator of
which equals the Principal Amount.
"Weekly Sale Date" shall mean (i) the third Business Day of
each calendar week, except for any calendar week in which a
Distribution Date occurs and (ii) each Distribution Date.
"Working Day" shall mean any Business Day on which dealings in
foreign currencies and exchanges between banks may be carried on in
London, England.
SECTION 3. The Notes. (a) The Notes shall represent
indebtedness secured by the Trust Assets and an obligation to pay the
Noteholders Note Interest and Note Principal out of the Trust Assets, consisting
of the right of the Noteholders to receive (i) the applicable share of
Collections and (ii) all other funds on deposit in the Collection Account
allocable to the holders of the Series 1995-1 Notes and (iii) all funds on
deposit in the Distribution Account (the "Revolving Noteholders' Interest"). The
Transferor Interest and any other Series of Notes outstanding shall represent
the interest in the remainder of the Trust Assets
not allocated pursuant hereto to the Revolving Noteholders' Interest.
(b) The Series 1995-1 Notes shall consist of the Class A Notes
and the Class B Notes, substantially in the forms of Exhibits A and B,
respectively, and shall, upon issue, be executed by the Trust and delivered to
the Trustee for authentication and redelivery as provided in Section 6 hereof
and Section 6.3 of the Agreement.
(c) The Class B Notes shall be issuable in a minimum
denomination of $20,000 principal amount and integral multiples thereof, and
shall not be subdivided.
(d) The Series 1995-1 Notes have not been registered under the
United States Securities Act of 1933, as amended (the Securities Act"). By
accepting its Note, each Purchaser shall be deemed to acknowledge that it is
purchasing the Notes for investment purposes and is not acquiring the Notes with
a view to, or for offer or sale in connection with, any distribution in
violation of the Securities Act.
SECTION 4. Purchases of Class A Notes. (a) Initial Purchase.
Subject to the terms and conditions of this Supplement, each Initial Purchaser
with a Class A Commitment hereby severally agrees (i) to purchase from the Trust
on the Closing Date a principal amount of the Class A Notes equal to such
Initial Purchaser's Class A Commitment Percentage of the Initial Class A
Principal Amount and (ii) to maintain such interest in the Class A Notes,
subject to increase or decrease during the Revolving Period, in accordance with
the provisions of this Supplement.
(b) Subsequent Purchasers. Subject to the terms and conditions
of this Supplement, each Class A Acquiring Purchaser hereby severally agrees to
maintain its interest in the Class A Notes, subject to increase or decrease
during the Revolving Period, in accordance with the provisions of this
Supplement.
(c) Maximum Purchaser Amount. Notwithstanding anything to the
contrary contained in this Supplement, at no time shall the Class A Principal
Amount of any Purchaser exceed such Purchaser's Class A Commitment at such time.
SECTION 5. Purchase of Class B Notes. (a) Initial Purchase.
Subject to the terms and conditions of this Supplement, each Initial Purchaser
with a Class B Commitment hereby severally agrees (i) to purchase from the Trust
on the Closing Date a principal amount of the Class B Notes equal to such
Initial Purchaser's Class B Commitment Percentage of the Initial Class B
Principal Amount and (ii) to maintain such interest in the Class B Notes,
subject to increase or decrease during the Revolving Period, in accordance with
the provisions of this Supplement.
(b) Subsequent Purchasers. Subject to the terms and conditions
of this Supplement, each Class B Acquiring Purchaser hereby severally agrees to
maintain its interest in the Class B Notes subject to increase or decrease
during the Revolving Period, in accordance with the provisions of this
Supplement.
(c) Maximum Purchaser Amount. Notwithstanding anything to the
contrary contained in this Supplement, at no time shall the Class B Principal
Amount of any Purchaser exceed such Purchaser's Class B Commitment at such time.
SECTION 6. Delivery. (a) On the Closing Date, the Trust shall
execute and the Trustee shall duly authenticate (i) Class A Notes in an
aggregate denomination equal to the Initial Class A Principal Amount and (ii)
Class B Notes in an aggregate denomination equal to the Initial Class B
Principal Amount.
(b) The Trustee shall deliver the Series 1995-1 Notes when
authenticated in accordance with Section 6.2 of the Agreement.
(c) Enhancement for the Class A Notes shall consist of the
subordination of the Class B Notes.
SECTION 7. Procedure for Increasing the Principal Amount. (a)
Subject to subsection 7(c), on any Weekly Sale Date during the Revolving Period,
the Principal Amount may be increased by increasing each Class A Purchaser's
Class A Principal Amount (a "Class A Increase"), up to an amount not exceeding
each Purchaser's Class A Commitment upon the request of the Servicer, on behalf
of the Trust, (each date on which an increase in the Class A Principal Amount
occurs hereunder being herein referred to as the "Class A Increase Date");
provided that the Servicer shall have given the Administrative Agent irrevocable
written notice (effective upon receipt) of such request (i) if the Increase on
such date is to be priced solely with reference to the Alternate Base Rate,
prior to 12:00 Noon (New York City time) one Business Day prior to such Class A
Increase Date or (ii) if all or a portion of such Class A Increase on such date
is to be allocated to any Class A LIBOR Tranche, prior to 12:00 Noon (New York
City time) three Working Days prior to such Class A Increase Date. Such notice
shall state the Class A Increase Date, the proposed amount of such Class A
Increase (the "Class A Increase Amount"), and, if all or a portion of such Class
A Increase is to be allocated to the Class A LIBOR Tranche, the LIBOR Period
with respect to each such Class A LIBOR Tranche; provided, that (i) prior to the
increase in the Class A Principal Amount, the Class B Purchasers shall pay to
the Trust an amount sufficient to increase the Class B Principal Amount to an
amount equal to the Required Series Subordinated Amount calculated after taking
into consideration the Increase on such Increase Date, (ii) a Class A Increase
allocated to the Class A LIBOR Tranche shall only occur on a
Distribution Date and (iii) an allocation to the Class A LIBOR Tranche shall be
subject to the provisions of Section 9.
(b) Subject to subsection 7(c), on any Weekly Sale Date during
the Revolving Period, the Principal Amount may be increased by increasing each
Class B Purchaser's Class B Principal Amount (a "Class B Increase"), up to an
amount not exceeding each Class B Purchaser's Class B Commitment upon the
request of the Servicer on behalf of the Trust (each date on which an increase
in the Class B Principal Amount occurs hereunder being herein referred to as a
"Class B Increase Date"); provided that the Servicer shall have given the
Administrative Agent irrevocable written notice (effective upon receipt) of such
request (i) if the Class B Increase on such date is to be priced solely with
reference to the Alternate Base Rate, prior to 12:00 Noon (New York City time)
one Business Day prior to such Class B Increase Date or (ii) if all or a portion
of such Class B Increase on such date is to be allocated to any Class B LIBOR
Tranche, prior to 12:00 Noon (New York City time) three Working Days prior to
such Class B Increase Date. Such notice shall state the Increase Date, the
proposed amount of such Class B Increase (the "Class B Increase Amount") and, if
all or a portion of such Increase is to be allocated to the Class B LIBOR
Tranche, the LIBOR Period with respect to each such Class B LIBOR Tranche;
provided, that (i) an Increase allocated to the Class B LIBOR Tranche shall only
occur on a Distribution Date and (iii) an allocation to the Class B LIBOR
Tranche shall be subject to the provisions of Section 9.
(c) The Purchasers shall not be obligated to increase their
respective Principal Amounts on any Increase Date hereunder if:
(i) the related Increase Amount is less than $250,000;
(ii) after giving effect to the Increase, the Class A
Principal Amount of any Class A Purchaser would exceed its Class A
Commitment or if the Class B Principal Amount of any Class B Purchaser
would exceed its Class B Commitment (in each case determined as of the
date the notice of such Increase is given);
(iii) a Pay Out Event or an event which, with the passage of
time or the giving of notice, or both, would be a Pay Out Event has
occurred;
(iv) the Series Subordinated Amount does not equal or
exceed the Required Series Subordinated Amount;
(v) the Administrative Agent has not received a fee in the
amount of $1,000 relating to such increase;
(vi) an Accelerated Payment Event, or an event which, with
the passage of time or the giving of notice, would be
an Accelerated Payment Event, has occurred and is continuing; and
(vii) the representations and warranties set forth in the
Agreement, this Supplement and the Asset Purchase Agreement are not
true and correct in all material respects on the Increase Date.
(d) After receipt by the Administrative Agent of the notice
required by subsection 7(a) or (b) from the Servicer on behalf of the Trust, the
Administrative Agent shall promptly provide telephonic notice to each relevant
Purchaser of the Increase Date and of the portion of the Class A Increase Amount
or Class B Increase Amount allocable to such Purchaser (which shall equal such
Purchaser's Class A Commitment Percentage or Class B Commitment Percentage of
the related Increase Amount). Payments by the Purchasers in respect of any
Increase shall be made in immediately available funds on the related Increase
Date to the Administrative Agent for payment to the Transferor.
SECTION 8. Procedure for Decreasing the Principal Amount. On
any one or more Weekly Sale Dates during the Revolving Period, upon request of
the Servicer on behalf of the Trust, the Aggregate Class A Principal Amount may
be reduced (a "Class A Decrease") by (A)(i) a deposit by the Transferor to the
Distribution Account of the amount of such reduction or (ii) the allocation to
the Distribution Account of any amounts available pursuant to Section 4.3(g) of
the Agreement or (iii) any combination of (i) and (ii). On any one or more
Weekly Sale Dates during the Revolving Period, upon request of the Servicer on
behalf of the Trust, the Aggregate Class B Principal Amount may be reduced (a
"Class B Decrease") by (A)(i) a deposit by the Transferor to the Distribution
Account of the amount of such reduction or (ii) the allocation to the
Distribution Account of any amounts available pursuant to Section 4.3(g) or
(iii) any combination of (i) and (ii); provided that, after giving effect to
such Class B Decrease, the Series Subordinated Amount shall not be less than the
Required Series Subordinated Amount and the amount of the Class B Decrease shall
not exceed the amount that when subtracted from the Aggregate Class B Principal
Amount (after giving effect to amounts previously allocated to thereto pursuant
to this Section 8) will cause the Aggregate Class B Principal Amount to equal
the Required Subordinated Amount (after giving effect to such Class B Decrease).
The Servicer shall give the Administrative Agent written notice (effective upon
receipt) prior to 12:00 Noon (New York City time) three Business Days prior to
the date of any Decrease stating the amount of such Decrease, the portion
thereof to be allocated to the Class A Decrease and the portion thereof to be
allocated to the Class B Decrease; provided that each such Decrease shall be in
an amount equal to or greater than $250,000.
SECTION 9. Allocation of Available Pricing Amount. (a) On
each Distribution Date the Transferor may, subject to
paragraph (c), elect to allocate all or any part of the Available Class A
Pricing Amount or the Available Class B Pricing Amount to the Class A LIBOR
Tranche or the Class B LIBOR Tranche, as applicable, with a LIBOR Period
commencing on such Distribution Date by giving the Administrative Agent
irrevocable written or telephonic (confirmed in writing) notice thereof, which
notice must be received by the Administrative Agent prior to 12:00 Noon (New
York City time) three Working Days prior to such Distribution Date. Such notice
shall specify (i) the applicable Distribution Date, (ii) the portion of the
Available Class A Pricing Amount being allocated to the Class A LIBOR Tranche
and (iii) the portion of the Available Class B Pricing Amount being allocated to
the Class B LIBOR Tranche. Promptly upon receipt of each such notice the
Administrative Agent shall notify each Purchaser of the contents thereof. If the
Administrative Agent shall not have received timely notice as aforesaid with
respect to all or any portion of the Available Class A Pricing Amount or the
Available Class B Pricing Amount, Note Interest on the amount for which no such
timely notice has been received shall be calculated by reference to the
Alternate Base Rate.
(b) Any reduction in the Aggregate Class A Principal Amount or
the Aggregate Class B Principal Amount on any Weekly Sale Date shall be
allocated in the following order of priority:
First, to reduce the Available Class A Pricing Amount or the
Available Class B Pricing Amount, as appropriate; and
Second, to reduce the portion of the Aggregate Class A
Principal Amount or Aggregate Class B Principal Amount allocated to the
Class A LIBOR Tranche or the Class B LIBOR
Tranche.
(c) Anything contained in this Section 9 to the contrary
notwithstanding, the portion of the Aggregate Class A Principal Amount allocable
to the Class A LIBOR Tranche must be an amount equal to at least $1,000,000.
SECTION 10. Reductions of the Commitments. (a) On
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any Weekly Sale Date during the Revolving Period, the Servicer, on behalf of
the Trust, may, upon three Working Days' prior written notice to the
Administrative Agent (effective upon receipt) reduce or terminate the Class A
Commitments or the Class B Commitments (a "Commitment Reduction") in an
aggregate amount equal to $5,000,000 or a whole multiple of $1,000,000 in
excess thereof, provided that no such termination or reduction shall be
permitted if, after giving effect thereto and to any reduction in the
Aggregate Class A Principal Amount and the Aggregate Class B Principal Amount
on such date, the Aggregate Class A Principal Amount would exceed the
Aggregate Class A Commitment Amount then in effect or the Aggregate Class B
Principal Amount would exceed the Aggregate Class B Commitment Amount then in
effect. Each Purchaser's Commitment shall be reduced by such Purchaser's Class
A Commitment Percentage or Class B Commitment Percentage, as applicable, of the
amount of such Commitment Reduction.
(b) Once reduced, the Commitments may not be subsequently
reinstated. Upon effectiveness of any such reduction, the Administrative Agent
shall prepare a revised Schedule 1 to reflect the reduced Commitment of each
Purchaser and Schedule 1 of this Supplement shall be deemed to be automatically
superseded by such revised Schedule 1. The Administrative Agent shall distribute
such revised Schedule 1 to the Transferor, the Servicer, the Trustee and each
Purchaser.
SECTION 11. Interest; Administrative Fee. (a) Interest shall
accrue in respect of each day in each Accrual Period for the Class A Notes, with
respect to the portion of the Aggregate Class A Principal Amount allocated to
the Class A LIBOR Tranche during such period, at the Class A LIBOR Rate for such
period and, with respect to the portion thereof not allocated to the Class A
LIBOR Tranche on any day during such period, at the Alternate Base Rate
applicable to such day. Interest accrued during each Accrual Period on the Class
A Notes shall be payable on the Distribution Date immediately following the last
day of such Accrual Period. If any interest that accrues on the Class A Notes
during an Accrual Period is not paid on the related Distribution Date in
accordance with the preceding sentence ("Unpaid Class A Note Interest"), such
Unpaid Class A Note Interest shall be payable on the immediately following
Distribution Date, plus interest thereon for the additional Accrual Period
calculated at the Alternate Base Rate.
(b) Interest shall accrue in respect of each day in each
Accrual Period for the Class B Notes, with respect to the portion of the
Aggregate Class B Principal Amount allocated to the Class B LIBOR Tranche during
such period, at the Class B LIBOR Rate for such period and, with respect to the
portion thereof not allocated to the Class B LIBOR Tranche on any day during
such period, at the Alternate Base Rate applicable to such day, plus .35%.
Interest accrued during each Accrual Period on the Class B Notes shall be
payable on the Distribution Date coinciding with the last day of such Accrual
Period. If any interest that accrues on the Class B Notes during an Accrual
Period is not paid on the related Distribution Date in accordance with the
preceding sentence ("Unpaid Class B Note Interest"), such Unpaid Class B
Interest shall be payable on the immediately following Distribution Date, plus
interest thereon for the additional Accrual Period calculated at the Alternate
Base Rate.
(c) The Servicer shall pay to the Administrative Agent for its
own account, on each Distribution Date, an administrative fee with respect to
each Accrual Period or portion thereof ending on such date (the "Administrative
Fee") at a rate equal to .10% per annum of the average daily Principal Amount
during such Accrual Period. The Administrative Fee shall be payable in arrears
(a) for each Accrual Period on the Distribution Date
coinciding with the last day of such period and (b) on the Series Termination
Date.
(d) Calculations of per annum rates and fees under this
Supplement shall be made on the basis of (i) a 360-day year for actual days
elapsed with respect to interest calculated with reference to the LIBOR Rate and
(ii) a 365- (or 366-, as the case may be) day year with respect to interest
calculated with reference to the Alternate Base Rate and other per annum fees.
Each determination of the LIBOR Rate hereunder by the Administrative Agent shall
be conclusive and binding upon each of the parties hereto in the absence of
manifest error. Any change in interest payable hereunder resulting from a change
in the Alternate Base Rate shall become effective as of the opening of business
on the day on which such change is announced. For the purposes of paying Note
Interest on any Distribution Date, if there shall be a change in the Alternate
Base Rate between a Determination Date and the end of the related Accrual
Period, the Alternate Base Rate in effect on such Determination Date shall be
deemed to be in effect for the remainder of the related Accrual Period and an
appropriate adjustment will be made on the next succeeding Distribution Date.
SECTION 12. Indemnification by Transferor. The Transferor
hereby agrees to pay, and to indemnify and hold harmless, the Administrative
Agent, each Purchaser, the Arranger, the Trustee and the Collateral Trustee and
each officer, director, employee and agent thereof from (a) all claims,
disputes, damages, penalties and losses arising from the entering into or
management of Leases or the acquisition, management or operation of the related
Equipment (including any product warranty-related claims, but excluding losses
arising out of a lessee's failure to make timely lease payments or other credit
losses) or the transactions contemplated by this Supplement or the subject
matter thereof, (b) any taxes which may at any time be asserted in respect of
this transaction or the subject matter thereof (including, without limitation,
any sales, gross receipts, general corporation, personal property, privilege or
license taxes, but not including taxes imposed upon the Administrative Agent,
any such Purchaser, the Arranger, the Trustee or the Collateral Trustee with
respect to its income arising out of this transaction and imposed in any
jurisdiction) and (c) costs, expenses and reasonable counsel fees in defending
against the same, whether arising by reason of the acts to be performed by the
Transferor or the Servicer hereunder or imposed against the Administrative
Agent, any Purchaser, the Arranger, the Trustee, the Collateral Trustee or any
officer, director, employee or agent thereof, or the Transferor, the property
involved or otherwise (regardless of whether the Administrative Agent, the
Trustee, any Purchaser, the Arranger or any officer, employee or director
thereof is a party thereto); provided, however, that the Transferor shall not be
liable to or indemnify or hold harmless the Administrative Agent, each
Purchaser, the Arranger, the Trustee or the Collateral Trustee and each officer,
director and employee or agent thereof as to any claims, disputes, damages,
penalties and losses suffered or sustained by reason of gross negligence or
willful misconduct on the part of the Administrative Agent, each Purchaser, the
Arranger, the Trustee or the Collateral Trustee, as the case may be, or any of
their respective officers, directors, employees or agents.
SECTION 13. Article IV of Agreement. Sections 4.1 through 4.5,
inclusive, of the Agreement shall read in their entirety as provided in the
Agreement and Sections 4.1B, 4.2B and Section 4.4A shall read in their entirety
as provided in this Series 1995-1 Supplement to the Agreement. The remainder of
Article IV of the Agreement shall read in its entirety as follows and shall be
applicable only to the Series 1995-1 Notes:
ARTICLE IV
RIGHTS OF NOTEHOLDERS AND
ALLOCATION AND APPLICATION OF COLLECTIONS
Section 4.1B [Reserved]
Section 4.2B The Series 1995-1 Distribution Account. The
Servicer, for the benefit of the Series 1995-1 Noteholders, shall cause to be
established and maintained in the name of the Collateral Trustee, on behalf of
the Trust, with an office or branch of a Qualified Institution a non-interest
bearing segregated demand deposit account maintained in the corporate trust
department of such Qualified Institution, and held in trust by such Qualified
Institution (the "Distribution Account") bearing a designation clearly
indicating that the funds deposited therein are held in trust for the benefit of
the Series 1995-1 Noteholders. The Paying Agent shall have the revocable
authority to make withdrawals from the Distribution Account. Funds on deposit in
the Distribution Account shall at all times be invested by the Collateral
Trustee, at the written direction of the Servicer, in Permitted Investments. Any
such investments shall mature and such funds shall be available for withdrawal
on the Transfer Date preceding the Distribution Date on which such funds are to
be distributed hereunder; provided, however, that any Permitted Investment in
short-term U.S. treasury securities may mature one day after such Transfer Date
and may be sold on such Transfer Date.
Section 4.4A Allocations.
(a) Allocations During the Revolving Period. On each
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Determination Date during the Revolving Period, the Servicer shall instruct
the Collateral Trustee to deposit, and on the succeeding Distribution Date the
Collateral Trustee acting in accordance with such instructions shall deposit
to the Distribution Account, the amounts required to be deposited pursuant to
this Section in order to make the following payments from the Series Available
Amount for the related Distribution
Date (in each case, such deposit or payment to be made only to the extent funds
remain available therefor after all prior payments and deposits for such
Distribution Date have been made), in the following order of priority:
(i) pay to the Administrative Agent the Administrative
Fee for the preceding Accrual Period, together with any amounts in
respect of the Administrative Fee that were due in respect of prior
Accrual Periods that remain unpaid;
(ii) allocate to the Distribution Account for the
benefit of the Class A Noteholders an amount equal to Note Interest
accrued in respect of the Class A Notes ("Class A Note Interest") for
the Accrual Period ending on such Distribution Date, together with any
such amounts that accrued in respect of prior Accrual Periods for which
no allocation was previously made, plus interest on any such amounts
calculated at the Alternate Base Rate;
(iii) allocate to the Distribution Account for the
benefit of the Class B Noteholders an amount equal to Note Interest
accrued in respect of the Class B Notes ("Class B Note Interest") for
the Accrual Period ending on such Distribution Date, together with any
such amounts that accrued in respect of prior Accrual Periods for which
no allocation was previously made;
(iv) allocate to the Distribution Account for the
benefit of the Class A Noteholders an amount equal to the Class A
Percentage of the Optional Series 1995-1 Pay Down
Amount for such Distribution Date;
(v) allocate to the Distribution Account for the
benefit of the Class B Noteholders an amount equal to the remaining
Optional Series 1995-1 Pay Down Amount for such
Distribution Date;
(vi) allocate to the Distribution Account for the
benefit of the Class A Noteholders an amount equal to any amounts then
due and payable in respect of Increased Costs in respect of the Class A
Notes accrued during the Accrual Period ending on such Distribution
Date; provided that such amount shall not, after giving effect to the
application thereof, cause the Series Subordinated Amount to be less
than the Required Series Subordinated Amount;
(vii) allocate to the Distribution Account for the
benefit of the Class B Noteholders an amount equal to any amounts then
due and payable in respect of Increased Costs in respect of the Class B
Notes accrued during the Accrual Period ending on such Distribution
Date; provided that such amount shall not, after giving effect to the
application thereof, cause the Series Subordinated Amount to be less
than the Required Series Subordinated Amount;
(viii) pay to the appropriate parties an amount equal to
any amounts then due and payable in respect of other fees and expenses
owing thereto in respect of Series 1995-1; provided that such amount
shall not, after giving effect to the application thereof, cause the
Series Subordinated Amount to be less than the Required Series
Subordinated Amount;
(ix) allocate to the Distribution Account for the
benefit of the Class B Noteholders an amount equal to interest payable
with respect to any Class B Note Interest that accrued in respect of
prior Accrual Periods for which no allocation was previously made,
calculated at the Alternate Base Rate;
(x) allocate any remaining Series Available Amount to
the Excess Funding Account.
(b) Allocations During the Amortization Period and Prior to
the Pay Out Commencement Date or Accelerated Payment Date. On each Determination
Date during the Amortization Period and prior to the Pay Out Commencement Date
or the Accelerated Payment Date, the Servicer shall instruct the Trustee to
deposit, and on the succeeding Distribution Date the Trustee acting in
accordance with such instructions shall deposit to the Distribution Account, the
amounts required to be deposited pursuant to this Section in order to make the
following payments from the Series Available Amount for the related Distribution
Date (in each case, such deposit or payment to be made only to the extent funds
remain available therefor after all prior payments and deposits for such
Distribution Date have been made), in the following order of priority:
(i) pay to the Administrative Agent the Administrative
Fee for the preceding Accrual Period, together with any amounts in
respect of the Administrative Fee that were due in respect of prior
Accrual Periods that remain unpaid;
(ii) allocate to the Distribution Account for the
benefit of the Class A Noteholders an amount equal to Note Interest
accrued in respect of the Class A Notes for the Accrual Period ending
on such Distribution Date, together with any such amounts that accrued
in respect of prior Accrual Periods for which no allocation was
previously made, plus interest on any such amounts calculated at the
Alternate Base Rate;
(iii) allocate to the Distribution Account for the
benefit of the Class B Noteholders an amount equal to Note Interest
accrued in respect of the Class B Notes for the Accrual Period ending
on such Distribution Date, together with any such amounts that accrued
in respect of prior Accrual Periods for which no allocation was
previously made;
(iv) allocate to the Distribution Account for the
benefit of the Class A Noteholders an amount equal to the Class A
Percentage of the Target Repayment Amount for Series 1995-1 for such
Distribution Date, together with any such amounts that were due on
prior Distribution Dates for which no deposit was previously made;
(v) allocate to the Distribution Account for the
benefit of the Class B Noteholders an amount equal to the remaining
Target Repayment Amount for Series 1995-1 for such Distribution Date,
together with any such amounts that were due on prior Distribution
Dates for which no deposit was previously made;
(vi) allocate to the Distribution Account for the
benefit of the Class A Noteholders an amount equal to any amounts then
due and payable in respect of Increased Costs in respect of the Class A
Notes accrued during the Accrual Period ending on such Distribution
Date; provided that such amount shall not, after giving effect to the
application thereof, cause the Series Subordinated Amount to be less
than the Required Series Subordinated Amount;
(vii) allocate to the Distribution Account for the
benefit of the Class B Noteholders an amount equal to any amounts then
due and payable in respect of Increased Costs in respect of the Class B
Notes accrued during the Accrual Period ending on such Distribution
Date; provided that such amount shall not, after giving effect to the
application thereof, cause the Series Subordinated Amount to be less
than the Required Series Subordinated Amount;
(viii) pay to the appropriate parties an amount equal to
any amounts then due and payable in respect of other fees and expenses
owing thereto in respect of Series 1995-1; provided that such amount
shall not, after giving effect to the application thereof, cause the
Series Subordinated Amount to be less than the Required Series
Subordinated Amount.
(ix) allocate to the Distribution Account for the
benefit of the Class B Noteholders an amount equal to interest payable
with respect to any Class B Note Interest that accrued in respect of
prior Accrual Periods for which no allocation was previously made,
calculated at the Alternate Base Rate;
(x) allocate any remaining Series Available Amount to the
Excess Funding Account.
(c) Allocations After Pay Out Commencement Date or Accelerated
Payment Date. On each Determination Date occurring after the Pay Out
Commencement Date or the Accelerated Payment Date, the Servicer shall instruct
the Trustee to deposit, and on
the succeeding Distribution Date the Trustee acting in accordance with such
instructions shall deposit to the Distribution Account, the amounts required to
be deposited pursuant to this Section in order to make the following payments
from the Series Available Amount for the related Distribution Date (in each
case, such deposit or payment to be made only to the extent funds remain
available therefor after all prior payments and deposits for such Distribution
Date have been made), in the following order of priority:
(i) pay to the Administrative Agent the Administrative
Fee for the preceding Accrual Period, together with any amounts in
respect of the Administrative Fee that were due in respect of prior
Accrual Periods that remain unpaid;
(ii) allocate to the Distribution Account for the
benefit of the Class A Noteholders an amount equal to Note Interest
accrued in respect of the Class A Notes for the Accrual Period ending
on such Distribution Date, together with any such amounts that accrued
in respect of prior Accrual Periods for which no allocation was
previously made, plus interest on any such amounts calculated at the
Alternate Base Rate;
(iii) allocate to the Distribution Account for the
benefit of the Class B Noteholders an amount equal to Note Interest
accrued in respect of the Class B Notes for the Accrual Period ending
on such Distribution Date, together with any such amounts that accrued
in respect of prior Accrual Periods for which no allocation was
previously made;
(iv) allocate to the Distribution Account for the
benefit of the Class A Noteholders an amount equal to the remaining
Aggregate Class A Principal Amount;
(v) allocate to the Distribution Account for the
benefit of the Class B Noteholders an amount equal to the remaining
Aggregate Class B Principal Amount;
(vi) allocate to the Distribution Account for the
benefit of the Class A Noteholders an amount equal to any amounts then
due and payable in respect of Increased Costs in respect of the Class A
Notes accrued during the Accrual Period ending on such Distribution
Date; provided that such amount shall not, after giving effect to the
application thereof, cause the Series Subordinated Amount to be less
than the Required Series Subordinated Amount;
(vii) allocate to the Distribution Account for the
benefit of the Class B Noteholders an amount equal to any amounts then
due and payable in respect of Increased Costs in respect of the Class B
Notes accrued during the Accrual Period ending on such Distribution
Date; provided that such amount shall not, after giving effect to the
application
thereof, cause the Series Subordinated Amount to be less than the
Required Series Subordinated Amount;
(viii) pay to the appropriate parties an amount equal to
any amounts then due and payable in respect of other fees and expenses
owing thereto in respect of Series 1995-1; provided that such amount
shall not, after giving effect to the application thereof, cause the
Series Subordinated Amount to be less than the Required Series
Subordinated Amount.
(ix) allocate to the Distribution Account for the
benefit of the Class B Noteholders an amount equal to interest payable
with respect to any Class B Note Interest that accrued in respect of
prior Accrual Periods for which no allocation was previously made,
calculated at the Alternate Base Rate;
(x) allocate any remaining Series Available Amount to
the Excess Funding Account.
SECTION 14. Article V of the Agreement. Article V of the
Agreement shall read in its entirety as follows and shall be applicable only to
the Series 1995-1 Notes:
ARTICLE V
DISTRIBUTIONS AND REPORTS TO
NOTEHOLDERS
Section 5.1A Distributions.
(a) On each Distribution Date, the Paying Agent shall
distribute to the Administrative Agent on behalf of the Class A Purchasers (in
accordance with the certificate delivered by the Servicer to the Trustee
pursuant to Section 5.2A(a) and promptly thereafter the Administrative Agent
shall make available to each Class A Purchaser (other than as provided in
Section 12.3 of the Agreement respecting a final distribution) such Purchaser's
pro rata share (based on its Class A Commitment Percentage) of amounts on
deposit in the Distribution Account as are payable with respect to the Class A
Notes pursuant to Section 4.4A on such Distribution Date.
(b) On each Distribution Date, the Paying Agent shall
distribute to the Administrative Agent on behalf of the Class B Purchasers (in
accordance with the certificate delivered by the Servicer to the Trustee
pursuant to Section 5.2A(a) and promptly thereafter the Administrative Agent
shall make available to each Class B Purchaser (other than as provided in
Section 12.3 of the Agreement respecting a final distribution) such Purchaser's
pro rata share (based on its Class B Commitment Percentage) of amounts on
deposit in the Distribution Account as are payable
with respect to the Class B Notes pursuant to Section 4.4A on such Distribution
Date.
Section 5.2A Noteholders' Statements.
(a) Monthly Noteholders' Statement. On or before each
Distribution Date, the Paying Agent shall forward to each Series 1995-1
Noteholder and each Rating Agency a statement substantially in the form of
Exhibit C to this Supplement prepared by the Servicer setting forth among other
things the following information with respect to such Distribution Date (which,
in the case of subclauses (i), (ii) and (iii) below, shall be stated on the
basis of an original principal amount of $1,000 per Series 1995-1 Note and, in
the case of subclause (v) shall be stated on an aggregate basis and on the basis
of an original principal amount of $1,000 per Series 1995-1 Note):
(i) the total amount distributed;
(ii) the amount of such distribution allocable to Note
Principal;
(iii) the amount of such distribution allocable to Note
Interest;
(iv) the Aggregate Commitment Amount, the Class A
Principal Amount, the Class B Principal Amount, the
Principal Amount, the Class A Average Principal Amount and
the Class B Average Principal Amount; and
(v) the Adjusted Principal Amount, the Series Asset Base,
the Aggregate Adjusted Principal Amount, the Asset Base, the Series
Subordinated Amount, the Required Series Subordinated Amount, the
Discounted Lease Balances of Included Leases that were classified as
Delinquent Leases during each of the three preceding Monthly Periods,
the Aggregate Pool Balance on the last day of the three preceding
Monthly Periods and the Discounted Lease Balances of Included Leases
that became Defaulted Leases during each of the three preceding Monthly
Periods.
(b) Annual Noteholders' Tax Statement. On or before January 31
of each calendar year, beginning with calendar year 1996, the Paying Agent shall
distribute on behalf of the Transferor, to each Person who at any time during
the preceding calendar year was a Series 1995-1 Noteholder, a statement prepared
by the Servicer and delivered to the Trustee on or before January 31 of each
calendar year containing the information required to be contained in the regular
monthly report to Series 1995-1 Noteholders, as set forth in subclauses (i),
(ii), (iii) and (iv) above, aggregated for such calendar year or the applicable
portion thereof during which such Person was a Series 1995-1 Noteholder,
together with such other customary information (consistent with the treatment of
the
Series 1995-1 Notes as debt) as the Servicer deems necessary or desirable to
enable the Series 1995-1 Noteholders to prepare their tax returns consistent
with the treatment of the Series 1995-1 Notes as debt instruments. Such
obligations of the Transferor and the Paying Agent shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Trustee pursuant to any requirements of the Internal Revenue
Code of 1986, as amended (the "Code") as from time to time in effect.
(c) Monthly Statement. With respect to each Distribution Date
and the related Monthly Period, the Servicer shall provide to the Administrative
Agent a copy of the Monthly Statement, and the Servicer shall, upon request,
provide a copy of the most current Monthly Statement to any Noteholder.
SECTION 15. Accelerated Payment Events; Series 1995-1
Pay Out Events.
(a) Accelerated Payment Events. If any one of the
following events shall occur with respect to the Series 1995-1
Notes:
(i) on any two consecutive Distribution Dates after giving
effect to all transactions and distributions to occur hereunder on such
dates, the Adjusted Principal Amount on each such date shall be less
than the Series Asset Base on each such date; or
(ii) on any two consecutive Distribution Dates after giving
effect to all transactions and distributions to occur hereunder on such
dates, the Aggregate Adjusted Principal Amount on each such date shall
exceed the Asset Base on each such date; or
(iii) on any two consecutive Distribution Dates after giving
effect to all transactions and distributions to occur hereunder on such
dates, the Series Subordinated Amount on each such date shall be less
than the Required Series Subordinated Amount on each such date; or
(iv) on any two consecutive Distribution Dates after giving
effect to all transactions and distributions to occur hereunder on such
dates, the product of (A) the average of the Discounted Lease Balances
of Included Leases that were classified as Delinquent Leases on the
last day of each of the three preceding Monthly Periods, and (B)
twelve, exceeds 5% of the average Aggregate Pool Balance on the last
day of such three preceding Monthly Periods; or
(v) on any two consecutive Distribution Dates after giving
effect to all transactions and distributions to occur hereunder on such
dates, the product of (A) the Discounted Lease Balances of Included
Leases that became Defaulted
Leases during the three preceding Monthly Periods, and (B) four,
exceeds 4% of the average Aggregate Pool Balance on the last day of
such three preceding Monthly Periods; or
(vi) on any six consecutive Distribution Dates, Note Interest
shall not have been paid with respect to the Class A Notes or the Class
B Notes; or
(vii) an Accelerated Payment Event, as defined in the related
Supplement, has occurred with respect to any other Series;
then, and in any such event after the applicable grace period set forth in such
subparagraphs, either the Administrative Agent or the Required Purchasers or the
Required Class B Purchasers, by notice then given in writing to the Transferor
and the Servicer (and to the Trustee if given by the Noteholders) may declare
that a payment event (an "Accelerated Payment Event") has occurred as of the
date of such notice.
(b) Series 1995-1 Pay Out Events. If the following event shall
occur with respect to the Series 1995-1 Notes:
(i) on any twelve consecutive Distribution Dates, Note
Interest shall not have been paid with respect to the Class A Notes or
the Class B Notes;
then, and in any such event after the applicable grace period set forth in such
subparagraphs, either the Administrative Agent or the Required Purchasers or the
Required Class B Purchasers, by notice then given in writing to the Transferor
and the Servicer (and to the Trustee if given by the Noteholders) may declare
that an event of default (a "Series 1995-1 Pay Out Event") has occurred as of
the date of such notice.
SECTION 16. Funding Costs. (a) Breakage. The Transferor agrees
to indemnify each Purchaser and to hold each Purchaser harmless from any loss or
expense arising from interest or fees payable by such Purchaser to lenders of
funds obtained by it to purchase or maintain that portion of its Commitment
hereunder with respect to which Note Interest is determined by reference to the
LIBOR Rate as a consequence of (i) default by the Transferor in the performance
of its obligations hereunder or under the Agreement, (ii) the occurrence of a
Servicer Default or an event which would, with the giving of notice or the
passage of time, constitute a Servicer Default, (iii) default by the Transferor
in effecting an increase in the Aggregate Principal Amount on an Increase Date
after having given notice of such Increase, or (iv) any reduction of a LIBOR
Tranche prior to the termination of the LIBOR Period for such LIBOR Tranche. A
certificate as to any additional amounts payable pursuant to the foregoing
sentence submitted by any Purchaser to the Servicer shall show the additional
amounts payable in reasonable detail and shall be conclusive absent manifest
error.
(b) Market Disruption. If on or prior to the first day of any
LIBOR Period, the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Transferor) that (i)
deposits in Dollars are not being offered to the Administrative Agent in the
London interbank market, (ii) the rate per annum referred to in the definition
of "LIBOR" as the basis upon which the LIBOR Rate is to be determined does not
accurately reflect the costs to the Required Purchasers of maintaining their
investment in the Series 1995-1 Notes at such time as Note Interest is based, in
whole or in part, upon the LIBOR Rate or (iii) adequate and reasonable means do
not otherwise exist for ascertaining the LIBOR Rate, the Administrative Agent
shall forthwith give telex or telecopy notice thereof, confirmed in writing, to
the Transferor and the Trustee, whereupon until the Administrative Agent
notifies the Transferor and the Trustee that the circumstances giving rise to
such notice no longer exist, the Available Pricing Amount shall not be allocated
to any LIBOR Tranche.
(c) Illegality. Notwithstanding any other provision herein to
the contrary, if, after the Closing Date, the adoption of any applicable law,
rule or regulation, or any change therein, or any change in the interpretation
or administration thereof by any Governmental Authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any Purchaser with any request or directive (whether or not having
the force of law) of any such authority, central bank or comparable agency shall
make it unlawful for such Purchaser to maintain its interest in the Series
1995-1 Notes in any LIBOR Tranche and such Purchaser so notifies the
Administrative Agent, the Trustee and the Transferor, then the portion of each
LIBOR Tranche applicable to such Purchaser shall thereafter be calculated by
reference to the Alternate Base Rate. If any such change in the method of
calculating interest occurs on a day which is not the last day of the LIBOR
Period with respect to any LIBOR Tranche, the Transferor shall pay to the
Administrative Agent for the account of such Purchaser the amounts, if any, as
may be required pursuant to Section 16(a).
(d) Increased Costs. If, after the Closing Date, the adoption
of any applicable law, treaty or governmental regulation, or any change therein
or in the interpretation or application thereof or compliance by any Purchaser
with any request or directive (whether or not having the force of law) from any
central bank or nation or government (or any state or political subdivision
thereof) or any entity exercising executive, legislative, regulatory or
administrative functions of or pertaining to government:
(i) does or shall subject any Purchaser to any tax of any
kind whatsoever with respect to this Supplement or such Purchaser's
Commitment hereunder, or change the basis of taxation of payments to
any Purchaser in respect of such Purchaser's portion of the amounts
payable hereunder (except
for changes in the rate of tax on the overall net income of such
Purchaser imposed in the United States of America or in the country
from which such Purchaser is then funding its interest in the Series
1995-1 Notes);
(ii) does or shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirements
against assets held by, or deposits or other liabilities in or for the
account of, advances or loans by, or other credit extended by, or any
other acquisition of funds by, any office of any Purchaser except as
provided in clause (iii) below; or
(iii) does or shall impose, modify or hold applicable any
reserves against "Eurocurrency liabilities" (including, without
limitation, basic, supplemental, marginal or emergency reserves) under
Regulation D of the Board of Governors of The Federal Reserve System
(or so long as such Purchaser may be required by such Board of
Governors or by any other Governmental Authority having jurisdiction
with respect thereto to maintain reserves (including, without
limitation, basic, supplemental, marginal or emergency reserves) with
respect to eurocurrency funding) in excess of the amount thereof on the
Closing Date; or
(iv) does or shall impose on any Purchaser any other
condition;
and the result of any of the foregoing is to increase the cost to such Purchaser
of purchasing or maintaining its portion of the Purchasers' Commitment by an
amount which such Purchaser deems to be material or to reduce the amount of any
payment by an amount which such Purchaser deems to be material, then, in any
such case, such Purchaser shall notify the Administrative Agent, who will in
turn notify the Servicer and the Transferor, of such Increased Costs and the
event giving rise to such Increased Costs. Each Purchaser shall certify such
Increased Costs to the Servicer and the Transferor and such certification shall
show the calculations thereof in reasonable detail and shall be conclusive
absent manifest error.
(e)(i) Changes in Capital Requirements. In the event that any
Purchaser shall have determined that any change in any Requirement of Law
regarding capital adequacy or in the interpretation or application thereof or
compliance by such Purchaser with any request or directive regarding capital
adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof (a "Change in Law") does or shall
have the effect of reducing the rate of return on such Purchaser's or such
corporation's capital as a consequence of its obligations hereunder to a level
below that which such Purchaser or such corporation could have achieved but for
such change or compliance (taking into consideration such Purchaser's or such
corporation's policies with respect to
capital adequacy) by an amount deemed by such Purchaser to be material, then
from time to time, after submission by such Purchaser to the Transferor (with a
copy to the Administrative Agent) of a written request therefor, the Transferor
shall indemnify such Purchaser such additional amount or amounts as will
compensate such for such reduction.
(ii) Upon the occurrence of any Change in Law, each Purchaser
whose Commitment hereunder is affected by such Change in Law shall transfer its
Commitment to another branch office (or, if such Purchaser so elects, to an
Affiliate) of such Purchaser, provided that such transfer shall be made only if
such Purchaser shall have determined in good faith (which determination shall,
absent manifest error, be final, conclusive and binding upon all parties) that,
(A) on the basis of existing circumstances, such transfer will avoid or reduce
the additional payments resulting from such Change in Law and will not result in
any additional costs, liabilities or expenses to such Purchaser (unless the
Transferor agrees to pay such additional costs, liabilities or expenses of such
Purchaser) and (B) such transfer is otherwise consistent with the interests of
such Purchaser.
(f) Taxes on Payments. (i) All payments made under this
Supplement shall be made free and clear of, and without reduction for or on
account of, any present or future taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, excluding, in the case of
the Administrative Agent and each Purchaser, income and franchise taxes imposed
on the Administrative Agent or such Purchaser (other than such income and
franchise taxes imposed by a jurisdiction other than the United States or a
subdivision thereof solely by reason of the location of the Equipment in such
jurisdiction) (such non-excluded taxes being called "Taxes"). If any Taxes are
required to be withheld from any amounts payable to the Administrative Agent or
any Purchaser hereunder, the amounts so payable to the Administrative Agent or
such Purchaser shall be increased to the extent necessary to yield to the
Administrative Agent or such Purchaser (after payment of all Taxes) interest or
any such other amounts payable hereunder at the rates or in the amounts
specified in this Supplement. Whenever any Taxes are payable by the Transferor,
as promptly as possible thereafter, the Transferor shall send to the
Administrative Agent for its own account or for the account of such Purchaser,
as the case may be, a certified copy of an original official receipt showing
payment thereof. If the Transferor fails to remit to the Administrative Agent
the required receipts or other required documentary evidence, the Transferor
shall indemnify the Administrative Agent and the Purchasers for any incremental
taxes, interest or penalties that may become payable by the Administrative Agent
or any Purchaser as a result of any such failure.
(ii) Each Purchaser agrees that prior to the Closing Date (or
if such Purchaser is not an Initial Purchaser, prior to
or at the time such Purchaser becomes a "Purchaser" hereunder) it will deliver
to the Transferor and the Administrative Agent (A) either (1) a statement that
it is incorporated under the laws of the United States of America or a state
thereof or, (2) if its is not so incorporated, two duly completed copies of
United States Internal Revenue Service Form 1001 or 4224 or successor applicable
form, as the case may be, certifying in each case that such Purchaser is
entitled to receive payments under this Supplement in respect of its interest in
the Class A Notes purchased hereunder, without deduction or withholding of any
United States federal income taxes and (B) an Internal Revenue Service Form W-8
or W-9 or successor applicable form, as the case may be, to establish an
exemption from United States backup withholding tax. Each such Purchaser which
delivers to the Transferor and the Administrative Agent any such Form 1001 or
4224 and Form W-8 or W-9 further undertakes to deliver to the Transferor and the
Administrative Agent two further copies of Form 1001 or 4224 and Form W-8 or
W-9, or successor applicable forms, or other manner of certification, as the
case may be, on or before the date that any such form expires or becomes
obsolete or after the occurrence of any event requiring a change in the most
recent form previously delivered by it to the Transferor and the Administrative
Agent and such extensions or renewals thereof as may reasonably be requested by
the Transferor, certifying in the case of a Form 1001 or 4224 that such
Purchaser is entitled to receive payments under this Agreement without deduction
or withholding of any United States federal income taxes, unless in any such
case an event (including, without limitation, any change in treaty, law or
regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which would
prevent such Purchaser from duly completing and delivering any such form with
respect to it and such Purchaser advises the Transferor that it is not capable
of receiving payments without any deduction or withholding of United States
federal income tax, and in the case of a Form W-8 or W-9, establishing an
exemption from United States backup withholding tax.
(iii) The agreements in this Section 16(f) shall survive the
termination of this Supplement and the payment of all amounts payable hereunder.
(iv) No increased amount on account of Taxes shall be payable
pursuant to this Section 16(f) to any Purchaser to the extent such Taxes would
not have been payable if such Purchaser had furnished a form (properly and
accurately completed in all material respects) which it was otherwise required
to furnish in accordance with clause (ii) of this Section 16(f).
(v) Each Purchaser shall furnish the Administrative Agent, and
the Administrative Agent shall furnish the Transferor (to the extent received
from the Purchasers), with information necessary to enable the Transferor to
comply with United States federal income tax information reporting requirements
regarding
payments of interest received by Purchasers under this Supplement.
(g) Notwithstanding anything to the contrary set forth in this
Section 16, the payment to the Purchasers for any amounts payable under this
Section 16, including Increased Costs, shall be limited to amounts available
pursuant to Section 4.4A and the Purchasers shall have no other recourse to the
assets of the Transferor, the Servicer, the Trust, the Trustee or the Collateral
Trustee.
(h) Upon the occurrence of any event requiring Taxes to be
withheld from any amounts payable to any Purchaser hereunder, or which otherwise
results in a Purchaser claiming any costs under this Section 16, each Purchaser
whose Commitment hereunder is affected by such event shall transfer its
Commitment to another branch office (or, if such Purchaser so elects, to an
Affiliate) of such Purchaser, provided that such transfer shall be made only if
such Purchaser shall have determined in good faith (which determination shall,
absent manifest error, be final, conclusive and binding upon all parties) that,
(A) on the basis of existing circumstances, such transfer will avoid or reduce
the amount of Taxes withheld or other costs under this Section 16 incurred
resulting from such event and will not result in any additional costs,
liabilities or expenses to such Purchaser (unless the Transferor agrees to pay
such additional costs, liabilities or expenses of such Purchaser) and (B) such
transfer is otherwise consistent with the interests of such Purchaser. If any
Purchaser claims any costs under this Section 16, such Purchaser, will, at the
direction of the Transferor, pursuant to Section 27, assign its interest in the
Series 1995-1 Notes and its rights hereunder pursuant to documentation in form
and substance satisfactory to such Purchaser, for a purchase price equal to such
Purchaser's interest in its Series 1995-1 Note, together with accrued interest
thereon to the date of transfer.
SECTION 17. Conditions Precedent to Effectiveness of
Supplement. This Supplement will become effective on the date (the "Effective
Date") on which the following conditions precedent have been satisfied:
(a) Documents. The Administrative Agent shall have received an
original executed copy for each Purchaser, each executed and delivered
in form and substance satisfactory to the Administrative Agent, of (i)
the Agreement executed by a duly authorized officer of each of the
Transferor, the Servicer and the Trustee and (ii) this Supplement
executed by a duly authorized officer of each of the Transferor, the
Servicer, the Trustee and the Purchasers. Each of the Agreement, the
Asset Purchase Agreement and this Supplement (collectively, the
"Program Agreements") shall be in full force and effect.
(b) Corporate Proceedings of the Transferor and Servicer. The
Administrative Agent shall have received, with a counterpart for each
Purchaser, a copy of the resolutions in form and substance reasonably
satisfactory to the Administrative Agent, of the Board of Directors of
each of the Transferor and of the Servicer authorizing the execution,
delivery and performance of each of the Program Agreements, certified
by the Secretary or an Assistant Secretary of the Transferor or the
Servicer, as the case may be, as of the date hereof, which certificate
shall state that the resolutions thereby certified have not been
amended, modified, revoked or rescinded as of the date of such
certificate. All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the Notes
and the other Program Agreements and all other legal matters relating
to such agreements and the transactions contemplated hereby and thereby
shall be reasonably satisfactory in all material respects to counsel
for the Administrative Agent.
(c) Corporate Documents. The Administrative Agent shall have
received, with a counterpart for each Purchaser, true and complete
copies of the certificate of incorporation and by-laws of the
Transferor and of the Servicer, certified as of the date hereof as
true, complete and correct copies thereof by the Secretary or an
Assistant Secretary of the Transferor or the Servicer, as the case may
be.
(d) Good Standing Certificates. The Administrative Agent shall
have received, with a counterpart for each Purchaser, copies of
certificates dated as of a recent date from the Secretary of State or
other appropriate authority of such jurisdiction, evidencing the good
standing of the Transferor and the Servicer in each State where the
ownership, lease or operation of property or the conduct of business
requires it to qualify as a foreign corporation, except where the
failure to so qualify would not have a material adverse effect on the
business, operations, properties, condition (financial or otherwise) or
prospects of the Transferor or the Servicer, as the case may be.
(e) Consents, Licenses, Approvals, Etc. The Administrative
Agent shall have received, with a counterpart for each Purchaser,
certificates dated the date hereof of the President, Vice Chairman,
Chief Financial Officer or any Vice President of the Transferor and of
the Servicer either (i) attaching copies of all material consents,
licenses and approvals required in connection with the execution,
delivery and performance by the Transferor or the Servicer, as the case
may be, of this Supplement and the validity and enforceability against
the Transferor and the Servicer of this Supplement and the Agreement,
and such consents, licenses and approvals shall be in full force and
effect or
(ii) stating that no such consents, licenses or approvals are so
required.
(f) Filings, Registrations and Recordings. Any documents
(including, without limitation, financing statements) required to be
filed in order (i) to perfect the sale of the Original Leases and the
related Equipment by each Originator to the Transferor pursuant to the
Asset Purchase Agreement and (ii) to create, in favor of the Trustee on
behalf of the Trust, a perfected first priority interest in the Trust
Assets under the Agreement with respect to which an interest may be
perfected by a filing under the UCC and which shall, in each case, have
been properly filed in each office in each jurisdiction listed in the
Agreement or the Asset Purchase Agreement, as the case may be, and such
filings are the only ones required in order to perfect the sale of the
Original Leases and the related Equipment to the Transferor under the
Asset Purchase Agreement and the transfer of such assets to the Trust,
under the Agreement, as the case may be, in the jurisdictions listed
therein. The Administrative Agent shall have received evidence
reasonably satisfactory to it of each such filing, registration or
recordation and satisfactory evidence of the payment of any necessary
fee, tax or expense relating thereto.
(g) Lien Searches. The Administrative Agent shall have
received the results of a recent search by a Person satisfactory to the
Administrative Agent, of UCC and other filings with respect to the
Transferor, each Originator and such other parties as it deems
necessary.
(h) Legal Opinions. The Administrative Agent shall have
received, with a counterpart for each Purchaser, (i) a legal opinion of
Xxxxxxx Xxxxx & Xxxxxx, counsel to the Transferor and the Servicer,
dated the date hereof, to the effect that (A) the sales of the Original
Leases and the related Equipment by each Originator to the Transferor
pursuant to the Asset Purchase Agreement are "true sales," (B) the
Transferor has a perfected first priority interest in the Original
Leases and the related Equipment and the Trustee has a perfected first
priority interest in the Trust Assets and (C) addressing other
customary matters in form and substance satisfactory to the
Administrative Agent; (ii) a legal opinion of Xxxxxxx Xxxxxxx &
Xxxxxxxx, counsel to the Administrative Agent, dated the date hereof,
to the effect that a court would not order the substantive
consolidation of the assets and liabilities of the Transferor with
those of the Servicer or any of its Affiliates; (iii) a legal opinion
of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel to the Administrative Agent,
dated the date hereof, with respect to certain tax matters, in form and
substance satisfactory to the Administrative Agent, (iv) a legal
opinion of Xxxxxxx Xxxxx, special Massachusetts
counsel to the Transferor and the Servicer, dated the date hereof, with
respect to certain Massachusetts tax matters, in form and substance
satisfactory to the Administrative Agent, and (v) a legal opinion of
Xxxxxx & Xxxxxx, counsel to the Trustee, dated the date hereof in form
and substance satisfactory to the Administrative Agent.
(i) Certificates. The Administrative Agent shall have received
certificates of each of the Transferor and the Servicer, dated the
Closing Date, of any two of the Chairman of the Board, the President,
any Vice President, the chief financial officer and the Treasurer of
the Transferor or the Servicer, as the case may be, stating that (i)
the representations and warranties of the Transferor or the Servicer,
as the case may be, contained in the Program Agreements, are true and
correct on and as of the Closing Date, (ii) the Transferor or the
Servicer, as the case may be, has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder and under such agreements at or prior to the Closing Date,
(iii) the absence of any Pay Out Event on the Closing Date or the
occurrence of any event that, with the passage of time, could be a Pay
Out Event and (iv) since December 6, 1995, there has been no material
adverse change in the financial position of the Transferor or the
Servicer, as the case may be, or the Trust or any change, or any
development including a prospective change, in or affecting the
condition (financial or otherwise), results of operations, business or
prospects of the Transferor or the Servicer, as the case may be, or the
Trust except as described therein. Any officer making such
certification may rely upon his or her knowledge as to the proceedings
pending or threatened.
(j) Series Accounts. The Administrative Agent shall have
received evidence satisfactory to it that the Series Accounts shall
have been established.
(k) Structuring Fee. The Administrative Agent shall have
received from the Servicer a structuring fee in the amount of $680,000.
(l) Custodian Agreement. The Servicer and Trustee shall have
entered into a Custodian Agreement, in substantially the form of
Exhibit A to the Agreement, with a custodian and on terms reasonably
acceptable to the Administrative Agent.
(m) Fees and Expenses. All fees and expenses to be paid on the
Closing Date shall have been received by the appropriate Persons,
provided that the Servicer shall have received an invoice setting forth
such fees and expenses in reasonable detail.
SECTION 18. Representations and Warranties of the Transferor
and the Servicer. The Transferor and Servicer severally represent and warrant to
and agree with the Administrative Agent that:
(i) Each of the representations and warranties included in
the Agreement, this Supplement and the Asset Purchase Agreement shall
be true and correct in all material respects as of the Closing Date.
(ii) Each of the Transferor and the Servicer has the power
and authority to execute and deliver this Supplement, the Agreement and
the Notes and to perform their respective obligations hereunder and
thereunder; and all corporate action required to be taken for the due
and proper authorization, execution and delivery of this Supplement,
the Agreement and the Notes and the consummation of the transactions
contemplated by this Supplement, the Agreement and the Notes have been
duly and validly taken.
(iii) The Supplement constitutes the legal, valid and
binding obligations of the Servicer and the Transferor, enforceable in
accordance with its terms against each of them, except as such
enforceability may be limited by Debtor Relief Laws and except as such
enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity).
(iv) When authenticated by the Trustee in accordance with
the Agreement and delivered and paid for pursuant to this Supplement,
the Notes will be duly issued and entitled to the benefits afforded by
the Agreement and the Supplement.
(v) The execution, delivery and performance of this
Supplement and the consummation by the Transferor and the Servicer of
the transactions contemplated hereby shall not conflict with, result in
any breach of any of the terms and provisions of or constitute (with or
without notice or lapse of time) a default under, the certificate of
incorporation or by-laws of the Transferor or the Servicer, or any
indenture, agreement or other instrument to which the Transferor or the
Servicer is a party or by which it is bound, or violate any law or, to
either the Transferor's or Servicer's knowledge, any order, rule or
regulation applicable to such party of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over such party or any of its
properties; and no permit, consent, approval of, or declaration to or
filing with, any governmental authority is required in connection with
the execution, delivery and performance of this Supplement or the
consummation of the transactions contemplated hereby.
(vi) Neither the Transferor nor the Servicer (i) is in
violation of its certificate of incorporation or by-laws, (ii) is in
default, in any material respect, and no event has occurred which, with
notice or lapse of time or both, would constitute such a default, in
the due performance or observance of any term, covenant or condition
contained in any indenture, agreement, mortgage, deed of trust or other
instrument to which the Transferor or the Servicer is a party or by
which the Transferor or the Servicer is bound or to which any of the
Transferor's or the Servicer's property or assets is subject or (iii)
is in violation in any respect of any law, order, rule or regulation
applicable to the Transferor or the Servicer or any of the Transferor's
or the Servicer's property of any court or of any federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over it or any of its property,
except any violation or default that would not have a material adverse
effect on the condition (financial or otherwise), results of
operations, business or prospects of the Transferor or the Servicer.
(vii) Neither the Trust nor the Transferor is an "investment
company" or under the "control" of an "investment company" within the
meaning thereof as defined in the Investment Company Act of 1940, as
amended.
(viii) Any taxes, fees and other governmental charges imposed
upon the Transferor or the Servicer or on the assets of the Trust in
connection with the execution, delivery and issuance by the Transferor
or the Servicer of this Supplement, the Agreement, the Asset Purchase
Agreement and the Notes and which are due at or prior to the Closing
Date have been or will have been paid by the Transferor at or prior to
the Closing Date.
(ix) Each of the Transferor and the Servicer possesses all
material licenses, certificates, authorizations and permits issued by,
and has made all declarations and filings with, the appropriate state,
federal or foreign regulatory agencies or bodies which are necessary or
desirable for the ownership of its respective properties or the conduct
of its respective businesses, except where the failure to possess or
make the same would not have, singularly or in the aggregate, a
material adverse effect on its condition (financial or otherwise),
results of operations, business or prospects.
SECTION 19. Covenants of the Transferor. The Transferor
hereby agrees that:
(i) it shall observe each and every of its respective
covenants (both affirmative and negative) contained in the Agreement
and this Supplement in all material respects;
(ii) it shall not amend, supplement or otherwise modify or
terminate the Agreement, unless in strict compliance with the terms
thereof;
(iii) it shall not change in any material respect its
current policies, practices or guidelines relating to the extension of
credit to Lessees or the terms or provisions of the Leases so as to
adversely effect the general quality of the Included Leases without the
prior written consent of the Required Purchasers; and
(iv) to the extent, if any, that the rating provided with
respect to the Class A Notes by a Rating Agency is conditional upon the
furnishing of documents or the taking of any other actions by the
Transferor, to furnish such documents and take such other actions.
SECTION 20. Covenants of the Servicer. The Servicer
hereby agrees that:
(i) it shall observe each and every of its covenants (both
affirmative and negative) contained in the Agreement and this
Supplement in all material respects;
(ii) it shall not amend, supplement or otherwise modify or
terminate the Agreement or this Supplement, unless in strict compliance
with the terms thereof;
(iii) it shall give prior notice to the Administrative Agent
of the delegation of any of its servicing, collection, enforcement or
administrative duties with respect to the Accounts and the Receivables;
(iv) it shall not change in any material respect its
current policies, practices or guidelines relating to the extension of
credit to Lessees or the terms or provisions of the Leases so as to
adversely effect the general quality of the Included Leases without the
prior written consent of the Required Purchasers;
(v) it shall provide to the Administrative Agent,
simultaneously with delivery to the Trustee, all reports, certificates,
statements and other documents required to be delivered to the Trustee
pursuant to the Agreement;
(vi) it shall provide at any time and from time to time to
the Administrative Agent access to documentation regarding the Included
Leases, including the Lease Files, such access being afforded without
charge but only (a) upon reasonable request, (b) during normal business
hours, (c) subject to the Servicer's normal security and
confidentiality procedures and (iv) at offices designated by the
Servicer;
(vii) it shall provide notice to the Administrative Agent of
the appointment of a Successor Servicer pursuant to Section 10.2 of the
Agreement or Section 31 of this Supplement; and
(viii) to the extent, if any, that the rating provided with
respect to the Class A Notes by a Rating Agency is conditioned upon the
furnishing of documents or the taking of actions by the Servicer, to
furnish such documents and take any such other actions.
SECTION 21. Covenants of the Trustee. The Trustee hereby
agrees that it shall provide at any time and from time to time to the
Administrative Agent access to documentation regarding the Included Leases, such
access being afforded without charge but only (a) upon reasonable request, (b)
during normal business hours, (c) subject to the Servicer's normal security and
confidentiality procedures and (d) at offices designated by the Custodian or the
Trustee.
SECTION 22. Obligations Unaffected. The obligations of the
Transferor and the Servicer to the Administrative Agent, the Trustee and the
Purchasers under this Supplement shall not be affected by reason of any
invalidity, illegality or irregularity of any of the Included Leases or the
related Equipment or any sale of any of the Included Leases or the related
Equipment.
SECTION 23. Administrative Agent. (a) Each Purchaser hereby
irrevocably designates and appoints the Administrative Agent as the agent of
such Purchaser under this Supplement and each such Purchaser hereby irrevocably
authorizes the Administrative Agent, as the agent for such Purchaser, to take
such action on its behalf under the provisions of this Supplement and to
exercise such powers and perform such duties as are expressly delegated to such
Administrative Agent by the terms of this Supplement, together with such other
powers as are reasonably incidental thereto. Notwithstanding any provision to
the contrary in this Supplement, the Administrative Agent shall not have any
duties or responsibilities, except those expressly set forth in this Supplement,
nor any fiduciary relationship with any Purchaser (except as Administrative
Agent), the Transferor or the Servicer, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Supplement or otherwise be deemed to exist against the Administrative Agent.
(b) Consultation with Experts. The Administrative Agent may
consult with legal counsel (who may be counsel for the Transferor or Servicer),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken by it in good faith in
accordance with the advice of such counsel, accountants or experts.
(c) Liability of the Administrative Agent. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or not taken by it in connection herewith
(i) with the consent or at the request of the Required Purchasers or (ii) in the
absence of its own gross negligence or willful misconduct. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into or verify
(i) any statement, warranty or representation made in connection with this
Supplement; (ii) the performance or observance of any of the covenants or
agreements of the Transferor or the Servicer; (iii) the satisfaction of any
condition specified in Section 17, except receipt of items required to be
delivered to the Administrative Agent; or (iv) the validity, effectiveness or
genuineness of this Supplement, the Agreement or any other instrument or writing
furnished in connection herewith. The Administrative Agent shall not incur any
liability by acting in reliance upon any notice, consent, certificate,
statement, or other writing (which may be a bank wire, telex or similar writing)
believed by it to be genuine or to be signed by the proper party or parties.
(d) Indemnification. Each Purchaser shall, ratably in
accordance with its Principal Amount, indemnify the Administrative Agent (to the
extent not reimbursed by the Transferor) against any cost, expense (including
counsel fees and disbursements), claim, demand, action, loss or liability
(except such as result from the Administrative Agent's gross negligence or
willful misconduct) that the Administrative Agent may suffer or incur in
connection with this Supplement or any action taken or omitted by the
Administrative Agent hereunder.
(e) Credit Decision. Each Purchaser acknowledges that it has,
independently and without reliance upon the Administrative Agent, and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Supplement. Each Purchaser also
acknowledges that it will, independently and without reliance upon the
Administrative Agent, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking any action under this Supplement.
(f) Reliance by the Administrative Agent. The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon advice
and statements of legal counsel (including, without limitation, counsel to any
of the Purchasers and counsel to the Transferor or the Servicer), independent
accountants and other experts selected by such Administrative
Agent, as the case may be. The obligations of the Administrative Agent are only
those expressly set forth herein. The Administrative Agent shall be fully
justified in failing or refusing to take any action under this Supplement unless
it shall first receive such advice or concurrence of the Required Purchasers as
it deems appropriate or it shall first be indemnified to its satisfaction by the
Purchasers against any and all liability and expense (other than such liability
or expense arising from such Administrative Agent's own gross negligence or
willful misconduct) which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this Agreement
in accordance with a request of the Required Purchasers, and such request and
any action taken or failure to act pursuant thereto shall be binding upon all
the Purchasers and all successors and assigns of the Purchasers.
(g) Notice of Default or Accelerated Payment Event. The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Servicer Default, Accelerated Payment Event or Pay Out Event
unless the Administrative Agent has received notice from a Purchaser, the
Transferor or the Servicer referring to the Agreement or this Supplement,
describing such Servicer Default, Accelerated Payment Event or Pay Out Event and
stating that such notice is a "notice of a Servicer Default" or a "notice of a
Pay Out Event" or a "notice of an Accelerated Payment Event", as the case may
be. In the event that the Administrative Agent receives such a notice, the
Administrative Agent shall give notice thereof to the Purchasers, the Trustee
and the Servicer. The Administrative Agent shall take such action with respect
to such Servicer Default, Accelerated Payment Event or Pay Out Event as shall be
reasonably directed by the Required Purchasers, provided that unless and until
the Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Servicer Default, Accelerated Payment
Event or Pay Out Event as it shall deem advisable in the best interests of the
Purchasers.
(h) The Administrative Agent in its Individual Capacity. The
Administrative Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Transferor, the Servicer
or any of their Affiliates as though such Administrative Agent were not an
Administrative Agent. With respect to any interest the Administrative Agent may
from time to time hold in any Series 1995-1 Note, the Administrative Agent shall
have the same rights and powers under this Supplement as any Purchaser and may
exercise the same as if it were not an Administrative Agent, and the term
"Purchaser" and "Purchasers" shall include the Administrative Agent in its
individual capacity.
(i) Successor Administrative Agent. (i) First Union National
Bank of North Carolina may assign all or a portion of its rights and obligations
as Administrative Agent at any time to its Affiliate or a Qualified Institution
acceptable to the Servicer and the Trustee. Any such assignee shall be entitled
to all the benefits and protections afforded the Administrative Agent pursuant
to this Section 23. Any such assignment shall become effective upon First Union
National Bank of North Carolina's giving notice of such assignment to the
Transferor, the Trustee, the Collateral Trustee, the Servicer and the
Purchasers.
(ii) The Administrative Agent may resign as Administrative
Agent upon 10 days' notice to the Purchasers and the Trustee and pursuant to the
following sentence. The Administrative Agent's resignation shall not become
effective until a successor is approved pursuant hereto. If the Administrative
Agent shall give notice to the Purchasers of its intention to resign as
Administrative Agent under this Agreement, then the Required Purchasers shall
appoint a successor agent for the Purchasers which successor agent shall be
approved by the Transferor and the Servicer, which approval shall not be
unreasonably withheld; provided that if the Required Purchasers shall not have
appointed, or the Required Purchasers shall have appointed but the Transferor
and the Servicer shall not have approved, any such successor agent within 60
days of the original notice given by the Administrative Agent of its intention
to resign, then the Administrative Agent may appoint a successor agent for the
Purchasers, subject to the approval of the Required Purchasers and, provided
that no Pay Out Event has occurred and is continuing, the Transferor and the
Servicer shall have approved such successor agent, which approval shall not be
unreasonably withheld. Notwithstanding the foregoing, if the Required
Purchasers, the Transferor and the Servicer determine in good faith that the
Administrative Agent has carried out its duties in a manner characterized by
gross negligence or willful misconduct, then the Required Purchasers, the
Transferor and the Servicer may appoint a successor agent. Upon any appointment
pursuant to the two preceding sentences, such successor agent shall succeed to
the rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon its
appointment, and the former Administrative Agent's rights, powers and duties as
Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Supplement or any of their successors and assigns. After any retiring
Administrative Agent's resignation or dismissal hereunder as Administrative
Agent, the provisions of this Section 23 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Administrative Agent
under this Supplement.
SECTION 24. Payments. Each payment to be made hereunder
shall be made on the required payment date in lawful
money of the United States and in immediately available funds, for the account
of the Purchasers at the office of the Administrative Agent set forth below its
signature hereto. On each Distribution Date, the Administrative Agent shall
remit in like funds to each Purchaser its applicable pro rata share (based on
each such Purchaser's applicable Class A Commitment Percentage or Class B
Commitment Percentage) of each such payment received by the Administrative Agent
for the account of the Purchasers.
SECTION 25. Costs and Expenses. The Transferor agrees to pay
all out-of-pocket costs and expenses of the Administrative Agent (including,
without limitation, in all of the following cases, reasonable fees and
disbursements of one counsel to the Administrative Agent) in connection with (a)
due diligence with respect to the Transferor, the Servicer, the Trust, the
Leases and the related Equipment, (b) the preparation, execution, delivery,
administration, waiver, amendment and modification of this Supplement, the
Agreement and the Notes and the syndication of the Class A Notes to Purchasers,
(c) the sale of Series 1995-1 Notes hereunder, (d) the perfection as against all
third parties whatsoever of the Series 1995-1 Noteholders' right, title and
interest in, to and under the Series 1995-1 Notes and the Trust Assets and (e)
the enforcement by the Purchasers of the obligations and liabilities of the
Transferor and the Servicer under the Agreement, this Supplement or any related
document.
SECTION 26. Amendments. (a) Notwithstanding the provisions of
Section 13.1 of the Agreement, this Supplement may be modified, amended, waived,
supplemented or terminated in writing by the Transferor, the Servicer, the
Trustee, the Collateral Trustee and the Required Class A Purchasers and the
Required Class B Purchasers; provided that no such amendment or waiver shall,
unless signed by all Purchasers, (i) reduce in any manner the amount of or delay
the timing of distributions for the account of any Purchaser under any provision
of this Supplement, (ii) subject any Purchaser to any additional obligation
(including, without limitation, any change in the determination of any amount
payable by any Purchaser), (iii) change the Aggregate Commitment Amount or the
number of Purchasers which shall be required for any action under this
subsection or any other provision of this Supplement or (iv) change the
definition of or the manner of calculating the Required Purchasers, Required
Class A Purchasers, Required Class B Purchasers, Principal Amount, Class A
Principal Amount, Class B Principal Amount, Aggregate Class A Principal Amount,
Aggregate Class B Principal Amount, Average Principal Amount, Class A Average
Principal Amount, Class B Average Principal Amount, or the Series Percentage.
(b) This Supplement may be amended from time to time by the
Servicer, the Transferor, the Trustee and the Collateral Trustee, without the
consent of the Required Class A Purchasers or the Required Class B Purchasers,
(i) to cure any ambiguity, to revise any Exhibits or Schedules, to correct or
supplement any
provisions herein or thereon or (ii) to add any other provisions with respect to
matters or questions raised under this Supplement which shall not be
inconsistent with the provisions of this Supplement; provided, however, that
such action shall not, as evidenced by an Opinion of Counsel, adversely affect
in any material respect the interests of any of the Noteholders.
(c) Any amendment hereof can be effected without the
Administrative Agent being a party thereto.
(d) With respect to any amendments to, or consents or waivers
sought under, the Pooling and Servicing Agreement and Indenture of Trust, unless
the Required Class A Purchasers and the Required Class B Purchasers shall
approve such amendment, consent, or waiver, as the case may be, then 100% of the
Principal Amount of Series 1995-1 will be deemed to have voted in the negative
with respect to such amendment, consent or waiver, as the case may be. With
respect to any such amendments, consents or waivers, if the Required Class A
Purchasers and the Required Class B Purchasers shall approve such amendment,
consent, or waiver, as the case may be, then 100% of the Principal Amount of
Series 1995-1 will be deemed to have voted in the affirmative with respect to
such amendment, consent or waiver, as the case may be.
(e) Notwithstanding anything in this Section 26 to the
contrary, no amendment may be made to this Supplement without satisfaction of
the Rating Agency Condition.
SECTION 27. Successors and Assigns. (a) This Supplement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Transferor may not assign or
transfer any of its rights under this Supplement without the prior written
consent of the Purchasers.
(b) Subject to Section 27(c), any Purchaser may, in the
ordinary course of its business and in accordance with applicable law, at any
time sell to one or more financial institutions or other entities
("Participants") participations in its interest in the Series 1995-1 Notes and
its rights hereunder (with the consent of the Transferor (not to be unreasonably
withheld)) pursuant to documentation in form and substance satisfactory to such
Purchaser and the Participant. In the event of any such sale by a Purchaser to a
Participant, such Purchaser's obligations under this Supplement shall remain
unchanged and such Purchaser shall remain solely responsible for the performance
thereof. The Transferor agrees that each Purchaser is entitled, in its own name,
to enforce for the benefit of, or as agent for, any Participant any and all
rights, claims and interest of such Participant in respect of the Trust and the
Transferor's obligations under this Supplement. Such Purchaser shall not grant
to any Participant voting rights in any
participation agreement, except with respect to matters that require the consent
of each of the Purchasers.
(c) In addition to any requirements or restrictions set forth
herein, the Class B Notes, including participations therein, shall be subject to
the Note transfer restrictions set forth in Section 6.13 of the Agreement,
provided, however, that 20% of the principal amount of the Class B Notes are
Restricted Subclass Notes; therefore, 80% of the Class B Notes may be
transferred free of the note transfer restrictions set forth in Section 6.13(b)
of the Agreement. In connection with any purchases of Class B Notes pursuant to
this Section 27, the purchaser thereof will deliver to the seller thereof a
Certification substantially in the form of Exhibit D, and the seller thereof
will deliver to the purchaser thereof a certification substantially in the form
of Exhibit E, in each case on the date of such purchase and sale.
(d) Any Purchaser may, in the ordinary course of its business
and in accordance with applicable law, at any time sell all or any part of its
rights and obligations under this Supplement and the Series 1995-1 Notes to (i)
its Affiliates and to any other Purchaser and (ii) with the consent of the
Transferor (not to be unreasonably withheld) and upon prior written notice to
the Administrative Agent, one or more banks or other entities (an "Acquiring
Purchaser"), in each case pursuant to a commitment transfer supplement,
substantially in the form of Exhibit F, (the "Commitment Transfer Supplement"),
executed by such Acquiring Purchaser, such assigning Purchaser and the
Administrative Agent (and, in the case of an Acquiring Purchaser that is not
then an existing Purchaser or an Affiliate thereof, by the Transferor and the
Servicer), and delivered to the Administrative Agent for its acceptance and
recording in the Register. Upon such execution, delivery, acceptance and
recording, from and after the Transfer Issuance Date determined pursuant to such
Commitment Transfer Supplement, (x) the Acquiring Purchaser thereunder shall be
a party hereto and, to the extent provided in such Commitment Transfer
Supplement, have the rights and obligations of a Purchaser hereunder with a
Commitment as set forth therein and (y) the transferor Purchaser thereunder
shall, to the extent provided in such Commitment Transfer Supplement, be
released from its obligations under this Supplement. Such Commitment Transfer
Supplement shall be deemed to amend this Supplement (including the Schedules
attached hereto) to the extent, and only to the extent, necessary to reflect the
addition of such Acquiring Purchaser as a "Purchaser" and the resulting
adjustment of Commitment Percentages arising from the purchase by such Acquiring
Purchaser of all or a portion of the rights and obligations of such transferor
Purchaser under this Supplement and the Class A Notes and/or the Class B Notes.
The minimum Commitment that may be transferred pursuant to a Commitment Transfer
Supplement shall be the lesser of (i) $10,000,000 and (ii) the Commitment of
such Purchaser.
(e) The Administrative Agent shall maintain a copy of each
Commitment Transfer Supplement delivered to it.
(f) Upon its receipt of a Commitment Transfer Supplement
executed by a transferor Purchaser and an Acquiring Purchaser (and, in the case
of a Transferee that is not then an existing Purchaser or an affiliate thereof,
by the Transferor and the Servicer), together with payment to the Administrative
Agent of a registration and processing fee of $3,000, the Administrative Agent
shall (i) promptly accept such Commitment Transfer Supplement and (ii) on the
Transfer Issuance Date determined pursuant thereto record the information
contained therein in the Register and give notice of such acceptance and
recordation to the Purchasers, the Servicer and the Transferor.
(g) The Transferor and the Servicer each authorizes each
Purchaser to disclose to any Participant or Acquiring Purchaser (each, a
"Transferee") and any prospective Transferee any and all financial information
in such Purchaser's possession concerning the Transferor or the Servicer which
has been delivered to such Purchaser by the Transferor or the Servicer pursuant
to this Supplement or which has been delivered to such Purchaser by or on behalf
of the Transferor in connection with such Purchaser's credit evaluation of the
Transferor, the Servicer, the Trust and the Trust Assets prior to becoming a
party to this Supplement; provided, however, if any such information is subject
to a confidentiality agreement between such Purchaser and the Transferor or the
Servicer, the Transferee or prospective Transferee shall have agreed to be bound
by the terms and conditions of such confidentiality agreement.
(h) If, pursuant to this subsection, any interest in this
Supplement or any Series 1995-1 Note is transferred to any Transferee which is
organized under the laws of any jurisdiction other than the United States or any
State thereof, the transferor Purchaser shall cause such Transferee,
concurrently with the effectiveness of such transfer, (i) to represent to the
transferor Purchaser (for the benefit of the transferor Purchaser, the
Administrative Agent, the Transferor and the Servicer) that under applicable law
and treaties no taxes will be required to be withheld by the Administrative
Agent, the Transferor, the Servicer or the transferor Purchaser with respect to
any payments to be made to such Transferee in respect of such Series 1995-1
Note, (ii) to furnish to the transferor Purchaser (and, in the case of any
Acquiring Purchaser not registered in the Register, the Administrative Agent and
the Transferor) either U.S. Internal Revenue Service Form 4224 or U.S. Internal
Revenue Service Form 1001 (wherein such Transferee claims entitlement to
complete exemption from U.S. federal withholding tax on all interest payments
hereunder) and (iii) to agree (for the benefit of the transferor Purchaser, the
Administrative Agent, the Transferor and the Servicer) to provide the transferor
Purchaser (and, in the case of any Acquiring Purchaser not registered in the
Register, the Administrative Agent, the Transferor and the
Servicer) a new Form 4224 or Form 1001 upon the expiration or obsolescence of
any previously delivered form and comparable statements in accordance with
applicable U.S. laws and regulations and amendments duly executed and completed
by such Transferee, and to comply from time to time with all applicable U.S.
laws and regulations with regard to such withholding tax exemption.
(i) Notwithstanding anything contained in this Supplement to
the contrary, unless an Opinion of Counsel is delivered that the Class B Notes
will be treated as debt for federal income tax purposes, the Class B Notes may
only be held by U.S. Persons.
SECTION 28. Reserved.
SECTION 29. Repurchase by Servicer. Upon any repurchase of the
Notes by the Servicer pursuant to Section 10.1 of the Agreement, the Servicer
shall pay, in addition to the amounts set forth in Section 10.1 of the Agreement
and any accrued and unpaid Increased Costs.
SECTION 30. Repurchase by Transferor. Upon any repurchase of
the Notes by the Transferor pursuant to Section 2.6 or Section 12.2(a), as the
case may be, of the Agreement, the Transferor shall pay, in addition to the
amounts set forth in Section 2.6 or Section 12.2(a), as the case may be, of the
Agreement and any accrued and unpaid costs under 16.
SECTION 31. Permitted Successor Servicer. With respect to
Series 1995-1, any financial institution which does not qualify as a permitted
Successor Servicer under Section 10.2 of the Agreement shall qualify as a
permitted Successor Servicer if approved by the Required Purchasers.
SECTION 32. Option to Repurchase. Subject to the conditions
set forth in Section 12.2 of the Agreement, the Transferor may, but shall not be
obligated to, on any Distribution Date on or after the Distribution Date on
which the Principal Amount is reduced to an amount less than or equal to 10% of
the highest Principal Amount outstanding during the Revolving Period repurchase
the Notes; provided that such option shall not be exercisable upon the happening
of an Insolvency Event with respect to the Servicer or the Transferor. The
deposit required in connection with any such repurchase shall be equal to (a)
the Adjusted Principal Amount, plus (b) the accrued and unpaid interest on the
Series 1995-1 Notes through and including the day preceding the day on which
such repurchase occurs which will be transferred to the Distribution Account.
SECTION 33. Final Distribution. Written notice of any
termination, specifying the Distribution Date upon which the Series 1995-1
Noteholders may surrender their Series 1995-1 Notes for payment of the final
distribution and cancellation shall be
given by the Trustee, at the written request of the Servicer, not later than the
60th day immediately preceding the Distribution Date on which final payment of
the Series 1995-1 Notes shall be made.
SECTION 34. Representations of Class B Purchasers. Unless an
Opinion of Counsel is delivered that the Class B Notes will be treated as debt
for federal income tax purposes, each Class B Purchaser represents that it has
neither acquired nor will it sell, trade, assign or otherwise dispose of the
Class B Notes (or any interest therein) or cause the Class B Notes (or any
interest therein) to be marketed on or through (i) an "established securities
market" within the meaning of section 7704(b)(1) of the Code, including, without
limitation, an over-the-counter market or an interdealer quotation system that
regularly disseminates firm buy or sell quotations or (ii) a "secondary market"
within the meaning of section 7704(b)(2) of the Code, including a market wherein
the Class B Notes (or any interests therein) are regularly quoted by any person
making a market in such interests and a market wherein any person regularly
makes available bid or offer quotes with respect to the Class B Notes (or any
interest therein) and stands ready to effect buy or sell transactions at the
quoted prices for itself or on behalf of others. In addition, each Class B
Purchaser acknowledges that the Class B Notes shall be subject to the Note
transfer restrictions set forth in Section 6.13 of the Agreement.
SECTION 35. Ratification of Agreement. As supplemented by this
Supplement, the Agreement is in all respects ratified and confirmed and the
Agreement as so supplemented by this Supplement shall be read, taken and
construed as one and the same instrument.
SECTION 36. Counterparts. This Supplement may be executed
in any number of counterparts, each of which so executed shall be deemed to be
an original, but all of such counterparts shall together constitute but one
and the same instrument.
SECTION 37. GOVERNING LAW. THIS SUPPLEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS, PROVIDED, HOWEVER, THAT THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE TRUSTEE AND THE COLLATERAL TRUSTEE SHALL BE DETERMINED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
SECTION 38. The Trustee. The Trustee shall not be responsible
in any manner whatsoever for or in respect of the validity or sufficiency of
this Supplement or for or in respect of the recitals contained herein, all of
which recitals are made solely by the Transferor.
SECTION 39. Instructions in Writing. All instructions given by
the Servicer to the Trustee pursuant to this Supplement shall be in writing, and
may be included in a certificate delivered pursuant to Section 3.4(b) of the
Agreement.
IN WITNESS WHEREOF, the parties have caused this Series 1995-1
Supplement to be duly executed by their respective officers as of the day and
year first above written.
AFG CREDIT CORPORATION,
as Transferor
By:___________________________
Title:________________________
AMERICAN FINANCE GROUP, INC.,
as Servicer
By:__________________________
Title:_______________________
BANKERS TRUST COMPANY, as Trustee
By:__________________________
Title:_______________________
BANKERS TRUST COMPANY,
as Collateral Trustee
By:__________________________
Title:_______________________
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA, as
Administrative Agent
By:__________________________
Title:_______________________
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA, as
Initial Purchaser
By:__________________________
Title:_______________________
SCHEDULE 1
to
SERIES 1995-1 SUPPLEMENTAL INDENTURE
PURCHASERS' COMMITMENTS
Class A Class B Total
Purchaser Commitment Commitment Commitment
First Union $68,000,000 $12,000,000 $80,000,000
National Bank of
North Carolina
EXHIBIT A
to
SERIES 1995-1 SUPPLEMENTAL INDENTURE
FORM OF SERIES 1995-1 CLASS A NOTE
$____________ [New York, New York]
December __, 1995
THIS CLASS A NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED. NEITHER THIS CLASS A NOTE NOR ANY PORTION HEREOF MAY BE
OFFERED OR SOLD EXCEPT IN COMPLIANCE WITH THE REGISTRATION PROVISIONS OF SUCH
ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION PROVISIONS.
THIS CLASS A NOTE IS NOT PERMITTED TO BE TRANSFERRED, ASSIGNED, EXCHANGED OR
OTHERWISE PLEDGED OR CONVEYED EXCEPT IN COMPLIANCE WITH THE TERMS OF THE
INDENTURE REFERRED TO HEREIN.
AFG MASTER TRUST
SERIES 1995-1 CLASS A NOTE
FOR VALUE RECEIVED, the undersigned, the AFG Master Trust (the
"Trust"), hereby promises to pay on December 31, 2003, to the order of
___________________ at the office of [ ], located at [ ], in lawful money of the
United States of America and in immediately available funds, the aggregate
unpaid principal amount of the Note. The principal amount shall be prepayable
based on a schedule determined by amortizing pools of leases as described in the
Indenture.
The undersigned further agrees to pay interest in like money
at such office on the unpaid principal amount hereof from time to time at the
applicable rate per annum as specified in the Indenture until any such amount
shall become due and payable (whether at the stated maturity, by acceleration or
otherwise), and thereafter on such overdue amount at the rate per annum set
forth in the Indenture until paid in full.
This evidences that ______________ (the "Class A Noteholder")
is the holder of this Class A Note secured by the assets of the Trust, which
include a portfolio of leases (the "Leases"), the related Equipment, all monies
due or to become due with respect thereto, and the other assets and interest
constituting the Trust Assets as defined in the AFG Master Trust Pooling and
Servicing Agreement and Indenture of Trust, dated as
of July 1, 1995, as supplemented by the Series 1995-1 Supplemental Indenture
thereto (collectively, the "Indenture"), by and among, American Finance Group,
Inc. ("AFG"), AFG Credit Corporation, First Union Bank of North Carolina, as
administrative agent, and Bankers Trust Company, as trustee and as collateral
trustee.
THIS CLASS A NOTE IS AN OBLIGATION OF THE TRUST AND DOES NOT
REPRESENT AN OBLIGATION OF, OR AN INTEREST IN, AFG, THE TRUSTEE OR THE
COLLATERAL TRUSTEE. NONE OF THIS NOTE, THE LEASES, THE RELATED EQUIPMENT OR THE
OTHER TRUST ASSETS IS INSURED OR GUARANTEED BY THE FDIC OR ANY OTHER
GOVERNMENTAL AGENCY. THIS CLASS A NOTE IS LIMITED IN RIGHT OF PAYMENT SOLELY TO
CERTAIN COLLECTIONS RESPECTING THE LEASES AND TO THE OTHER TRUST ASSETS, ALL AS
MORE SPECIFICALLY SET FORTH IN THE INDENTURE WITHOUT RECOURSE TO ANY OTHER
ASSETS OR TO ANY OTHER PARTY, INCLUDING, WITHOUT LIMITATION, AFG CREDIT
CORPORATION.
AFG Credit Corporation has structured the Indenture and the
Series 1995-1 Notes with the intention that the Series 1995-1 Class A Notes will
qualify under applicable tax law as indebtedness, and each Series 1995-1 Class A
Noteholder by acceptance of its Series 1995-1 Note agrees to treat and to take
no action inconsistent with the treatment of the Class A Notes for purposes of
federal, state and local income or franchise taxes and any other tax imposed on
or measured by income, as indebtedness.
To the extent not defined herein, capitalized terms used
herein have the meanings assigned in the Indenture, which more specifically sets
forth the rights of the Noteholders. This Class A Note is issued under and is
subject to the terms, provisions and conditions of the Indenture, and the terms
set forth herein are qualified thereby. The Class A Noteholder by virtue of its
acceptance hereof assents to and is bound by the Indenture, as amended from time
to time.
This Note is one of a series of Notes entitled "AFG Master
Trust Series 1995-1 Notes" (the "Series 1995-1 Notes"), consisting of two
classes, the Series 1995-1 Class A Notes, (the "Class A Notes") and the Series
1995-1 Class B Notes, (the "Class B Notes"), each of which represents the right
to receive interest payments and a return of principal as described herein and
in the Indenture, including the right to receive the Collections and other
amounts at the times and in the amounts specified in the Indenture to be
deposited in the Series Accounts maintained for the benefit of such Notes or
paid to the Series 1995-1 Noteholders. This Note is one of the Class A Notes.
The Class B Notes are subordinated in right of payment to the Class A Notes.
Note Interest will be distributed monthly on the fifteenth
Business Day of each calendar month, or if such fifteenth day is not a Business
Day, the next succeeding Business Day (a "Distribution Date"). In the case of
the first interest payment, interest will accrue from the date of issuance and
in
the case of subsequent interest payments, interest will accrue from the
preceding Distribution Date in each case to but excluding the date of payment
thereof (an "Accrual Period"). On each Distribution Date, the Paying Agent shall
pay to the Class A Noteholder of record its pro rata share of the amount
deposited into the Distribution Account pursuant to the Indenture on the related
Transfer Date. On each Distribution Date occurring during the Amortization
Period, the Paying Agent shall pay to the Class A Noteholder its pro rata share
of the Class A Percentage of the Target Repayment Amount for Series 1995-1 for
such Distribution Date.
No recourse may be taken, directly or indirectly, with respect
to the obligations of the Transferor, the Trustee or the Collateral Trustee in
connection herewith, against: (i) the Trustee or the Collateral Trustee in its
individual capacity; (ii) any owner of a beneficial interest in the Transferor;
or (iii) any partner, owner, beneficiary, agent, officer, director, employee or
agent of the Trustee or the Collateral Trustee in their individual capacities,
any holder of a beneficial interest in the Transferor, the Trustee or the
Collateral Trustee or of any successor or assign of the Trustee or the
Collateral Trustee in their individual capacities (or any of their successors or
assigns), except as any such Person may have expressly agreed (it being
understood that the Trustee and the Collateral Trustee have no such obligations
in their individual capacities) and except that any such partner, owner or
beneficiary shall be fully liable, to the extent provided by applicable law, for
any unpaid consideration for stock, unpaid capital contribution or failure to
pay any instalment or call owing to such entity.
Subject to the limitations set forth herein, the transfer of
this Class A Note shall be registered in the Register upon surrender of this
Class A Note for registration of transfer at any office or agency maintained by
the Transfer Agent and Registrar accompanied by a written instrument of transfer
in a form satisfactory to the Trustee and the Transfer Agent and Registrar duly
executed by the Class A Noteholder or such Class A Noteholder's attorney duly
authorized in writing, and thereupon one or more new Class A Notes of authorized
denominations and for the same aggregate principal amount will be issued to the
designated transferee or transferees.
The Trustee, the Paying Agent and the Transfer Agent and
Registrar, and any agent of any of them, may treat the Person in whose name this
Class A Note is registered as the owner hereof for all purposes, and neither the
Trustee, the Paying Agent, the Transfer Agent and Registrar nor any agent of any
of them shall be affected by notice to the contrary except in certain
circumstances described in the Indenture.
The rights evidenced by this Class A Note created by the
Indenture and the Trust shall terminate on the earlier of (i) the day, if any,
designated by AFG Credit Corporation after the Distribution Date following the
date on which funds shall have
been deposited in the Distribution Account sufficient to pay the aggregate Class
A principal amount plus Note Interest accrued through such Distribution Date in
full and (ii) the day on which final payment is made under the Class A Notes,
but in no event later than December 31, 2003.
Upon the occurrence of any one or more of the Pay Out Events
specified in the Indenture all amounts then remaining unpaid on this Class A
Note shall become, or may be declared to be, immediately due and payable all as
provided therein.
THIS CLASS A NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS, PROVIDED, HOWEVER, THAT THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE TRUSTEE SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
Unless the note of authentication hereon has been executed by
or on behalf of the Trustee, by manual or facsimile signature of a duly
authorized signatory, this Class A Note shall not be entitled to any benefit
under the Indenture, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee on behalf of the Trust has
caused this Class A Note to be duly executed.
AFG MASTER TRUST
By: BANKERS TRUST COMPANY,
not in its individual
capacity but solely as
Trustee on behalf of the
Trust
By:__________________________
Title:
Trustee's Certificate of Authentication
This is one of the Series 1995-1 Class A Notes referred to in
the within-mentioned Indenture.
BANKERS TRUST COMPANY,
as Trustee
By:
EXHIBIT B
to
SERIES 1995-1 SUPPLEMENTAL INDENTURE
FORM OF SERIES 1995-1 CLASS B NOTE
$__________ [New York, New York]
December __, 1995
THIS CLASS B NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED. NEITHER THIS CLASS B NOTE NOR ANY PORTION HEREOF MAY BE
OFFERED OR SOLD EXCEPT IN COMPLIANCE WITH THE REGISTRATION PROVISIONS OF SUCH
ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION PROVISIONS.
THIS CLASS B NOTE IS NOT PERMITTED TO BE TRANSFERRED, ASSIGNED, EXCHANGED OR
OTHERWISE PLEDGED OR CONVEYED EXCEPT IN COMPLIANCE WITH THE TERMS OF THE
INDENTURE REFERRED TO HEREIN.
AFG MASTER TRUST
SERIES 1995-1 CLASS B NOTE
FOR VALUE RECEIVED, the undersigned, the AFG Master Trust (the
"Trust"), hereby promises to pay on December 31, 2003, to the order of
________________ at the office of [ ], located at [ ], in lawful money of the
United States of America and in immediately available funds, the principal
amount equal to the aggregate unpaid principal amount of the Note. The principal
amount shall be prepayable based on a schedule determined by amortizing pools of
leases pursuant to of the Indenture.
The undersigned further agrees to pay interest in like money
at such office on the unpaid principal amount hereof from time to time at the
applicable rate per annum as specified in the Indenture until any such amount
shall become due and payable (whether at the stated maturity, by acceleration or
otherwise), and thereafter on such overdue amount at the rate per annum set
forth in the Indenture until paid in full.
This evidences that _________________ (the "Class B
Noteholder") is the holder of this Class B Note secured by the assets of a the
Trust, which include a portfolio of leases (the "Leases"), the related
Equipment, all monies due or to become due with respect thereto, and the other
assets and interest
constituting the Trust Assets as defined in the AFG Master Trust Pooling and
Servicing Agreement and Indenture of Trust, dated as of July 1, 1995, as
supplemented by the Series 1995-1 Supplemental Indenture thereto (collectively,
the "Indenture"), by and among, American Finance Group, Inc. ("AFG"), AFG Credit
Corporation, First Union Bank of North Carolina, as administrative agent, and
Bankers Trust Company, as trustee and collateral trustee.
THIS CLASS B NOTE IS AN OBLIGATION OF THE TRUST AND DOES NOT
REPRESENT AN OBLIGATION OF, OR AN INTEREST IN, AFG, THE TRUSTEE OR THE
COLLATERAL TRUSTEE. NONE OF THIS NOTE, THE LEASES, THE RELATED EQUIPMENT OR THE
OTHER TRUST ASSETS IS INSURED OR GUARANTEED BY THE FDIC OR ANY OTHER
GOVERNMENTAL AGENCY. THIS CLASS B NOTE IS LIMITED IN RIGHT OF PAYMENT SOLELY TO
CERTAIN COLLECTIONS RESPECTING THE LEASES AND TO THE OTHER TRUST ASSETS, ALL AS
MORE SPECIFICALLY SET FORTH IN THE INDENTURE WITHOUT RECOURSE TO ANY OTHER
ASSETS OR TO ANY OTHER PARTY, INCLUDING, WITHOUT LIMITATION, AFG CREDIT
CORPORATION.
AFG Credit Corporation has structured the Indenture and the
Series 1995-1 Notes with the intention that the Series 1995-1 Class B Notes will
qualify under applicable tax law as indebtedness, and each Series 1995-1 Class B
Noteholder by acceptance of its Series 1995-1 Note agrees to treat and to take
no action inconsistent with the treatment of the Class B Notes for purposes of
federal, state and local income or franchise taxes and any other tax imposed on
or measured by income, as indebtedness.
To the extent not defined herein, capitalized terms used
herein have the meanings assigned in the Indenture, which more specifically sets
forth the rights of the Noteholders. This Class B Note is issued under and is
subject to the terms, provisions and conditions of the Indenture, and the terms
set forth herein are qualified thereby. The Class B Noteholder by virtue of its
acceptance hereof assents to and is bound by the Indenture, as amended from time
to time.
This Note is one of a series of Notes entitled "AFG Master
Trust Series 1995-1 Notes" (the "Series 1995-1 Notes"), consisting of two
classes, the Series 1995-1 Class A Notes, (the "Class A Notes") and the Series
1995-1 Class B Notes, (the "Class B Notes"), each of which represents the right
to receive interest payments and a return of principal as described herein and
in the Indenture, a including the right to receive the Collections and other
amounts at the times and in the amounts specified in the Indenture to be
deposited in the Series Accounts maintained for the benefit of such Notes or
paid to the Series 1995-1 Noteholders. This Note is one of the Class B Notes.
The Class B Notes are subordinated in right of payment to the Class A Notes.
Note Interest will be distributed monthly on the fifteenth
Business Day of each calendar month, or if such fifteenth day is not a Business
Day, the next succeeding Business
Day (a "Distribution Date"). In the case of the first interest payment, interest
will accrue from the date of issuance and in the case of subsequent interest
payments, interest will accrue from the preceding Distribution Date in each case
to but excluding the date of payment thereof (an "Accrual Period"). On each
Distribution Date, the Paying Agent shall pay to the Class B Noteholder of
record the amount deposited into the Distribution Account pursuant to the
Indenture on the related Transfer Date. On each Distribution Date occurring
during the Amortization Period, the Paying Agent shall pay to the Class B
Noteholder its pro rata share of the Class B Percentage of the Target Repayment
Amount for Series 1995-1 for such Distribution Date.
No recourse may be taken, directly or indirectly, with respect
to the obligations of the Transferor, the Trustee or the Collateral Trustee in
connection herewith, against: (i) the Trustee or the Collateral Trustee in its
individual capacity; (ii) any owner of a beneficial interest in the Transferor;
or (iii) any partner, owner, beneficiary, agent, officer, director, employee or
agent of the Trustee or the Collateral Trustee in their individual capacities,
any holder of a beneficial interest in the Transferor, the Trustee or the
Collateral Trustee or of any successor or assign of the Trustee or the
Collateral Trustee in their individual capacities (or any of their successors or
assigns), except as any such Person may have expressly agreed (it being
understood that the Trustee and the Collateral Trustee have no such obligations
in their individual capacities) and except that any such partner, owner or
beneficiary shall be fully liable, to the extent provided by applicable law, for
any unpaid consideration for stock, unpaid capital contribution or failure to
pay any instalment or call owing to such entity.
Subject to the limitations set forth herein and to the
restrictions on transfer set forth in the Indenture, the transfer of this Class
B Note shall be registered in the Register upon surrender of this Class B Note
for registration of transfer at any office or agency maintained by the Transfer
Agent and Registrar accompanied by a written instrument of transfer in a form
satisfactory to the Trustee and the Transfer Agent and Registrar duly executed
by the Class B Noteholder or such Class B Noteholder's attorney duly authorized
in writing, and thereupon one or more new Class B Notes of authorized
denominations and for the same aggregate principal amount will be issued to the
designated transferee or transferees.
The Trustee, the Paying Agent and the Transfer Agent and
Registrar, and any agent of any of them, may treat the Person in whose name this
Class B Note is registered as the owner hereof for all purposes, and neither the
Trustee, the Paying Agent, the Transfer Agent and Registrar nor any agent of any
of them shall be affected by notice to the contrary except in certain
circumstances described in the Indenture.
The rights evidenced by this Class B Note created by the
Indenture and the Trust shall terminate on the earlier of (i)
the day, if any, designated by AFG Credit Corporation after the Distribution
Date following the date on which funds shall have been deposited in the
Distribution Account sufficient to pay the aggregate Class B principal amount
plus Note Interest accrued through such Distribution Date in full and (ii) the
day on which final payment is made under the Class B Notes, but in no event
later than December 31, 2003.
Upon the occurrence of any one or more of the Pay Out Events
specified in the Indenture all amounts then remaining unpaid on this Class B
Note shall become, or may be declared to be, immediately due and payable all as
provided therein.
THIS CLASS B NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS, PROVIDED, HOWEVER, THAT THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE TRUSTEE SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
Unless the certificate of authentication hereon has been
executed by or on behalf of the Trustee, by manual or facsimile signature of a
duly authorized signatory, this Class B Note shall not be entitled to any
benefit under the Indenture, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee on behalf of the Trust has
caused this Class B Note to be duly executed.
AFG MASTER TRUST
By: BANKERS TRUST COMPANY,
not in its individual
capacity but solely as
Trustee on behalf of the
Trust
By:__________________________
Title:
Trustee's Certificate of Authentication
This is one of the Series 1995-1 Class B Notes referred to in
the within-mentioned Indenture.
BANKERS TRUST COMPANY,
as Trustee
By:
EXHIBIT D
to
SERIES 1995-1 SUPPLEMENT
FORM OF CERTIFICATION OF PURCHASER OF CLASS B NOTES
[Name of Purchaser] ("Purchaser"), hereby represents
and warrants that:
(i) Purchaser has purchased [number of Class B Notes]
from [Name of Seller] ("Seller") on this [date] for its own account and
Purchaser is the sole beneficial owner of the Class B Notes described
above;
(ii) Purchaser is not a trust, estate, partnership, or
"S Corporation" (within the meaning of Section 1361(a) of the Internal
Revenue Code of 1986, as amended (the "Code")) for United States
("U.S.") federal income tax purposes;
(iii) Purchaser did not purchase the Class B Notes
through (x) PORTAL or (y) the "over-the-counter" market;
(iv) Purchaser does not make a market in the Class B
Notes by regularly quoting, or otherwise making available, prices at
which it will purchase (or sell) the Class B Notes, and it did not
purchase the Class B Notes described above from or through any person,
including any brokers or dealers, who makes a market in the Class B
Notes by regularly quoting or otherwise making available any such price
quotations; and
(v) Purchaser will not transfer its beneficial
ownership of the Class B Notes described herein to any person, except
as permitted under the legend set forth on each Class B Note.
In addition, by signing this certification, Purchaser hereby
acknowledges that the Registrar (as defined in the Pooling Agreement) may refuse
to register Seller's sale of the Class B Notes described herein to Purchaser
and, consequently, such sale shall not be effective, if (x) any of the
representations set forth in (i)-(v) above, or any of the representations set
forth in (i)-(iv) of the Seller's Certification, are untrue or inaccurate as of
the date of either such Certification, (y) the Registrar either knows, or has a
reasonable, good-faith belief, that any such representations are untrue or
inaccurate as of such
date (or dates), and (z) the Registrar properly notifies Purchaser and Seller of
its refusal to record such sale of the Class B Notes within the time allowed for
providing such notification.
[Name of Purchaser]
By:_______________________
Name:
Title:
EXHIBIT E
to
SERIES 1995-1 SUPPLEMENT
FORM OF CERTIFICATION OF SELLER OF CLASS B NOTES
[Name of Seller] ("Seller"), hereby represents and
warrants that:
(i) Seller has sold or transferred its beneficial
ownership of [number of Class B Notes] to [Name of Purchaser]
("Purchaser") on this [date];
(ii) Seller did not sell the Class B Notes through (x)
PORTAL or (y) the "over-the-counter" market;
(iii) Seller does not make a market in the Class B Notes
by regularly quoting, or otherwise making available, prices at which it
will sell (or purchase) the Class B Notes, and
(iv) Seller did not sell or transfer the Class B Notes
described above to or through any person, including any brokers or
dealers, who makes a market in the Class B Notes by regularly quoting
or otherwise making available such price quotations.
In addition, by signing this certification, Seller hereby
acknowledges that the Registrar (as defined in the Pooling Agreement) may refuse
to register its sale of the Class B Notes described herein to Purchaser and,
consequently, such sale shall not be effective, if (x) any of the
representations set forth in (i)-(iv) above, or any of the representations set
forth in (i)- (v) of the Purchaser's Certification, are untrue or inaccurate as
of the date of either such Certification, (y) the Registrar either knows, or has
a reasonable, good-faith belief, that any such representations are untrue or
inaccurate as of such date (or dates), and (z) the Registrar properly notifies
Seller and Purchaser of its refusal to record such sale of the Class B Notes
within the time allowed for providing such notification.
[Name of Seller]
By:_______________________
Name:
Title:
EXHIBIT F
to
SERIES 1995-1 SUPPLEMENT
FORM OF COMMITMENT TRANSFER SUPPLEMENT
COMMITMENT TRANSFER SUPPLEMENT, dated as of , , among [NAME OF PURCHASER] (the
"Transferor"), each purchaser listed as an Acquiring Purchaser on the signature
pages hereof (each, an "Acquiring Purchaser"), [IF ANY ACQUIRING PURCHASER IS
NOT A PURCHASER OR AN AFFILIATE OF A PURCHASER: AFG Credit Corporation, a
Delaware corporation ("AFG Credit"), American Finance Group, Inc. ("AFG"), a
Delaware corporation (the "Servicer")] and First Union National Bank of North
Carolina, as Administrative Agent for the Purchasers under the Series 1995-1
Supplement to the Pooling and Servicing Agreement described below (in such
capacity, the "Administrative Agent").
W I T N E S S E T H :
WHEREAS, this Commitment Transfer Supplement is being executed
and delivered in accordance with subsection 27(d) of the Series 1995-1
Supplemental Indenture, dated as of July 1, 1995 (as from time to time amended,
supplemented or otherwise modified in accordance with the terms thereof, the
"Supplement"; terms defined therein being used herein as therein defined), among
AFG Credit, the Servicer, the Transferor, the other Purchasers from time to time
parties thereto, Bankers Trust Company, as trustee and as collateral trustee
(the "Trustee") and the Administrative Agent, to the Pooling and Servicing
Agreement and Indenture of Trust, dated as of July 1, 1995 (as from time to time
amended, supplemented or otherwise modified, the "Pooling and Servicing
Agreement"), among AFG Credit, the Servicer and the Trustee;
WHEREAS, each Acquiring Purchaser (if it is not already a
Purchaser party to the Supplement) wishes to become a Purchaser party to the
Supplement; and
WHEREAS, the Transferor is selling and assigning to each
Acquiring Purchaser, rights, obligations and commitments under the Supplement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Upon the execution and delivery of this Commitment Transfer
Supplement by each Acquiring Purchaser, [IF ANY ACQUIRING PURCHASER IS NOT A
PURCHASER OR AN AFFILIATE OF A PURCHASER, AFG Credit, the Servicer] the
Transferor and the Administrative Agent, (the date of such execution and
delivery, the "Transfer Issuance Date"), each Acquiring Purchaser shall be a
Purchaser party to the Supplement for all purposes thereof.
2. The Transferor acknowledges receipt from each Acquiring
Purchaser of an amount equal to the purchase price, as agreed between the
Transferor and such Acquiring Purchaser (the "Purchase Price"), of the portion
being purchased by such Acquiring Purchaser (such Acquiring Purchaser's
"Purchased Percentage") of the undivided interest in the Class A Note and/or
Class B Note, as the case may be, owned by, and other amounts owing to, the
Transferor under the Supplement. The Transferor hereby irrevocably sells,
assigns and transfers to each Acquiring Purchaser, without recourse,
representation or warranty, and each Acquiring Purchaser hereby irrevocably
purchases, takes and assumes from the Transferor, such Acquiring Purchaser's
Purchased Percentage of the commitment of the Transferor to increase its Class A
Principal Amount and/or Class B Principal Amount, under, and the portion of the
undivided interest in, the Class A Note and/or the Class B Note, as the case may
be owned by, and other amounts owing to, the Transferor, in each case under the
Supplement together with all instruments, documents and collateral security
pertaining thereto.
3. The minimum Commitment that may be transferred pursuant to
this Commitment Transfer Supplement is the lesser of $10,000,000 and the
Transferor's Commitment.
4. The Transferor has made arrangements with each Acquiring
Purchaser with respect to (i) the portion, if any, to be paid, and the date or
dates for payment, by the Transferor to such Acquiring Purchaser of any
Commitment Fees heretofore received by the Transferor pursuant to the Supplement
prior to the Transfer Issuance Date and (ii) the portion, if any, to be paid,
and the date or dates for payment, by such Acquiring Purchaser to the Transferor
of Commitment Fees or Class A Note Interest and/or Class B Note Interest, as the
case may be received by such Acquiring Purchaser pursuant to the Supplement from
and after the Transfer Issuance Date.
5. From and after the Transfer Issuance Date, amounts that
would otherwise be payable to or for the account of the Transferor pursuant to
the Supplement shall, instead, be payable to or for the account of the
Transferor and the Acquiring Purchasers, as the case may be, in accordance with
their respective interests as reflected in this Commitment Transfer Supplement,
whether such amounts have accrued prior to the Transfer Issuance Date or accrue
subsequent to the Transfer Issuance Date.
6. Prior to or concurrently with the execution and delivery
hereof, the Administrative Agent will, at the expense of the Transferor, provide
to each Acquiring Purchaser (if it is not already a Purchaser party to the
Supplement or an Affiliate thereof) photocopies of all documents delivered to
the Administrative Agent on the Issuance Date in satisfaction of the conditions
precedent set forth in the Supplement.
7. Each of the parties to this Commitment Transfer Supplement
agrees that at any time and from time to time upon the written request of any
other party, it will execute and deliver such further documents and do such
further acts and things as such other party may reasonably request in order to
effect the purposes of this Commitment Transfer Supplement.
8. By executing and delivering this Commitment Transfer
Supplement, the Transferor and each Acquiring Purchaser confirm to and agree
with each other and the Purchasers as follows: (i) other than the representation
and warranty that it is the legal and beneficial owner of the interest being
assigned hereby free and clear of any adverse claim, the Transferor makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Supplement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Supplement, the Pooling and Servicing Agreement, the
Class A Note and/or the Class B Note, as the case may be, or any instrument or
document furnished pursuant thereto; (ii) the Transferor makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of AFG Credit or the Servicer or the performance or observance by AFG
Credit or the Servicer of any of their obligations under the Supplement, the
Pooling and Servicing Agreement or any other instrument or document furnished
pursuant hereto; (iii) each Acquiring Purchaser confirms that it has received a
copy of the Supplement, the Pooling and Servicing Agreement and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Commitment Transfer Supplement; (iv)
each Acquiring Purchaser will, independently and without reliance upon the
Administrative Agent, the Transferor or any other Purchaser and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the
Supplement and the Pooling and Servicing Agreement; (v) each Acquiring Purchaser
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under the Supplement as are delegated to
the Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto, all in accordance with Section 23 of the
Supplement; and (vi) each Acquiring Purchaser agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Supplement are required to be performed by it as a Purchaser.
9. Schedule I hereto sets forth the revised Commitment
Percentages of the Transferor and each Acquiring Purchaser as well as
administrative information with respect to each Acquiring Purchaser.
10. This Commitment Transfer Supplement shall be governed by,
and construed in accordance with, the laws of the State of California.
IN WITNESS WHEREOF, the parties hereto have caused this
Commitment Transfer Supplement to be executed by their respective duly
authorized officers as of the date first set forth above.
[NAME OF SELLING PURCHASER], as Transferor
By:
Title:
[NAME OF PURCHASING PURCHASER], as
Acquiring Purchaser
By:
Title:
as Administrative Agent
By: _____________________________
Title:
[IF NECESSARY:
CONSENTED AND ACKNOWLEDGED:
AMERICAN FINANCE GROUP, INC.
By:
Title:
AFG CREDIT CORPORATION
By:
Title:]
SCHEDULE I
LIST OF ADDRESSES FOR NOTICES
AND OF COMMITMENT PERCENTAGES
, as Administrative Agent
Address:
[TRANSFEROR]
Address:
Prior [Class A] [Class B] Commitment Percentage:
Revised [Class A] [Class B] Commitment Percentage:
[ACQUIRING PURCHASER]
Address:
[Prior] [Class A] [Class B] Commitment Percentage:
[Revised [Class A] [Class B] Commitment Percentage:]