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EXHIBIT 10.58
EXECUTION COPY
AMENDED AND RESTATED
SERVICING AGREEMENT
Among
XXXXXX FUNDING INC.,
XXXXXX MICRO INC.,
as Master Servicer and Servicer,
and
THE CHASE MANHATTAN BANK,
as Trustee
Dated as of March 8, 2000
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TABLE OF CONTENTS
ARTICLE I Definitions........................................................1
SECTION 1.01. Definitions...............................................1
SECTION 1.02. Other Definitional Provisions.............................1
ARTICLE II Administration and Servicing of Receivables.......................2
SECTION 2.01. Appointment of Servicer...................................2
SECTION 2.02. Servicing Procedures......................................3
SECTION 2.03. Collections...............................................5
SECTION 2.04. Reconciliation of Deposits................................6
SECTION 2.05. Servicing Compensation....................................6
ARTICLE III Representations and Warranties of the Master Servicer
and each Servicer................................................7
SECTION 3.01. Representations and Warranties............................7
ARTICLE IV Covenants of the Master Servicer and each Servicer................9
SECTION 4.01. Delivery of Daily Reports.................................9
SECTION 4.02. Delivery of Monthly Settlement Statement..................9
SECTION 4.03. Delivery of Annual Master Servicer's Certificates........10
SECTION 4.04. Delivery of Independent Public Accountants'
Servicing Reports........................................10
SECTION 4.05. Extension, Amendment and Adjustment of Receivables;
Amendment of Policies....................................10
SECTION 4.06. Protection of Holders' Rights............................11
SECTION 4.07. Security Interest........................................11
SECTION 4.08. Location of Records......................................11
SECTION 4.09. Visitation Rights........................................12
SECTION 4.10. Lockbox Agreement; Lockbox Accounts......................12
SECTION 4.11. Delivery of Financial Statements.........................13
SECTION 4.12. Notices..................................................14
ARTICLE V Other Matters Relating to the Master Servicer and Each Servicer...14
SECTION 5.01. Merger, Consolidation etc................................14
SECTION 5.02. Indemnification of the Trust and the Trustee.............14
SECTION 5.03. Resignation by Master Servicer or Any Servicer...........15
SECTION 5.04. Access to Certain Documentation and Information
Regarding the Receivables................................16
ARTICLE VI Servicer Defaults; Servicer Termination..........................16
SECTION 6.01. Servicer Defaults........................................16
SECTION 6.02. Trustee To Act; Appointment of Successor.................20
SECTION 6.03. Waiver of Past Defaults..................................21
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ARTICLE VII Miscellaneous Provisions........................................21
SECTION 7.01. Amendment................................................21
SECTION 7.02. Termination..............................................22
SECTION 7.03. Governing Law............................................22
SECTION 7.04. Addition of Servicers....................................22
SECTION 7.05. Notices..................................................22
SECTION 7.06. Counterparts.............................................23
SECTION 7.07. Third-Party Beneficiaries................................23
SECTION 7.08. Merger and Integration...................................23
SECTION 7.09. Headings.................................................23
SECTION 7.10. No Set-Off...............................................23
SECTION 7.11. No Bankruptcy Petition...................................23
Exhibit A Form of Annual Master Servicer's Certificate
Exhibit B Form of Agreed Upon Procedures
Exhibit C Insurance Requirements
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AMENDED AND RESTATED SERVICING AGREEMENT, dated as of March 8, 2000
(this "Agreement") among the Xxxxxx Funding Inc. (the "Company"), the Master
Servicer, each Servicer and the Trustee.
W I T N E S S E T H:
WHEREAS, the Company, the Seller, and each Servicer have entered into an
Amended and Restated Receivables Sale Agreement, dated as of the date hereof (as
in effect on the date hereof and as hereafter amended, restated, supplemented or
otherwise modified from time to time, the "Receivables Sale Agreement");
WHEREAS, pursuant to the Receivables Sale Agreement, the Seller sells to
the Company, and the Company purchases from the Seller, all of the Seller's,
right, title and interest in, to and under the Receivables and other Receivable
Assets (as defined in the Receivables Sale Agreement);
WHEREAS, on November 6, 1996 the Company, the Master Servicer and the
Trustee, along with Xxxxxx Industries Inc. entered into Amendment No. 2 to the
Pooling and Servicing Agreement dated as of February 10, 1993, which had been
previously amended by amendment No. 1 on January 31, 1994 (as so amended, the
"Original Agreement") and by further amendment and restatement on the date
hereof the Original Agreement (as in effect on the date hereof and as hereafter
amended, supplemented or otherwise modified from time to time, the "Pooling
Agreement") no longer provides for the servicing of the Receivables and
Receivables Assets; and
WHEREAS, the parties hereto are entering into this Agreement to provide
for the servicing of the Receivables and Receivables Assets.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Definitions. Unless otherwise defined herein, capitalized
terms that are used herein shall have the meanings assigned to such terms in the
Pooling Agreement and each Supplement thereto.
SECTION 1.02. Other Definitional Provisions.
(a) All terms defined in this Agreement (directly or by incorporation by
reference pursuant to Section 1.01) shall have the defined meanings when used in
any certificates or other document made or delivered pursuant hereto unless
otherwise defined therein.
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(b) As used herein and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined herein
(directly or by incorporation by reference pursuant to Section 1.01) and
accounting terms partly defined herein (directly or by incorporation by
reference pursuant to Section 1.01), to the extent not defined, shall have the
respective meanings given to them under GAAP. To the extent that the definitions
of accounting terms herein are inconsistent with the meanings of such terms
under GAAP, the definitions contained herein shall control.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, subsection,
Schedule and Exhibit references contained in this Agreement are references to
Sections, subsections, Schedules and Exhibits in or to this Agreement unless
otherwise specified.
(d) The definitions contained herein are applicable to the singular as
well as the plural forms of such terms and to the masculine, the feminine and
the neuter genders of such terms.
(e) Where reference is made in this Agreement to the principal amount of
Receivables, such reference shall, unless explicitly stated otherwise, be deemed
a reference to the Principal Amount of such Receivables.
(f) Any reference herein or in any other Transaction Document to a
provision of the Internal Revenue Code, the 1940 Act or ERISA shall be deemed to
be also a reference to any successor provision thereto.
(g) Any reference herein to a Schedule or Exhibit to this Agreement
shall be deemed to be a reference to such Schedule or Exhibit as it may be
amended, modified or supplemented from time to time to the extent that such
Schedule or Exhibit may be amended, modified or supplemented (or any term or
provision of any Transaction Document may be amended that would have the effect
of amending, modifying or supplementing information contained in such Schedule
or Exhibit) in compliance with the terms of the Transaction Documents.
(h) Any reference in this Agreement to any representation, warranty or
covenant "deemed" to have been made is intended to encompass only
representations, warranties or covenants that are expressly stated to be
repeated on or as of dates following the execution and delivery of this
Agreement, and no such reference shall be interpreted as a reference to any
implicit, inferred, tacit or otherwise unexpressed representation, warranty or
covenant.
(i) The words "include", "includes" or "including" shall be interpreted
as if followed, in each case, by the phrase "without limitation".
ARTICLE II
Administration and Servicing of Receivables
SECTION 2.01. Appointment of Servicer. The Company hereby appoints
Xxxxxx Micro Inc. to act as, and Xxxxxx Micro Inc. hereby accepts its
appointment and agrees to act as
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Master Servicer and as a Servicer under the Pooling and Servicing Agreements and
the Investor Certificateholders, by their acceptance of the Investor
Certificates, consent to Xxxxxx Micro Inc. acting as Master Servicer and a
Servicer. Each Servicer shall have responsibility for the management of the
servicing and receipt of Collections in respect of the Receivables originated by
itself as a Seller and/or by one or more of its Affiliates, as may be determined
from time to time by the Servicer and identified on Schedule 1 or a revision
thereof to the Receivables Sale Agreement. (Such Servicer is sometimes referred
to as the "Responsible Servicer" with respect to any Receivable that it is
responsible to service hereunder and such Receivable is sometimes referred to
herein as a "Serviced Receivable" with respect to the Servicer that is
responsible to service such Receivable hereunder). Each Servicer shall have the
authority to make any management decisions relating to each Serviced Receivable
to the extent such authority is granted to the Servicer under any Pooling and
Servicing Agreement. Xxxxxx Micro Inc., in its capacity as Master Servicer,
shall remain obligated for the supervision of each Servicer and the compliance
by each Servicer with the terms and conditions of the Policies and the Pooling
and Servicing Agreements and shall coordinate the servicing of all Receivables.
The Company, the Trustee and the Holders shall treat Xxxxxx Micro Inc. as Master
Servicer and Servicer and may conclusively rely on the instructions, notices and
reports of Xxxxxx Micro Inc. as the Master Servicer and Servicer for so long as
Xxxxxx Micro Inc. continues in its appointments as Master Servicer and Servicer.
SECTION 2.02. Servicing Procedures.
(a) Each Servicer shall manage the servicing and administration of the
Serviced Receivables, the collection of payments due under such Serviced
Receivables and charging off of any such Serviced Receivables as uncollectible,
all in accordance with the Policies and the terms of the Pooling and Servicing
Agreements; provided, however, if Xxxxxx Micro Inc. is no longer the Master
Servicer, the Master Servicer shall service the Receivables in accordance with
the standards that would be employed by a prudent institution in servicing
comparable receivables for its own account. Each Servicer shall have full power
and authority, acting alone or through any party properly designated by it
hereunder, to do any and all things in connection with such servicing and
administration that it may deem necessary or desirable, but subject to the terms
of this Agreement and the other Transaction Documents. Without limiting the
generality of the foregoing and subject to Section 6.01 hereof, each Servicer or
its designee with respect to its Serviced Receivables and the Master Servicer or
its designee with respect to all Receivables is hereby authorized and empowered
to (i) execute and deliver, on behalf of the Trustee for the benefit of the
Holders, any and all instruments of satisfaction or cancellation, or of partial
or full release or discharge, and all other comparable instruments, and, after
the delinquency of any Receivable and to the extent permitted under and in
compliance with applicable Requirements of Law, to commence enforcement
proceedings with respect to Receivables and (ii) make any filings, reports,
notices, applications, registrations with, and to seek any consents or
authorizations from, the Securities and Exchange Commission and any state
securities authority on behalf of the Trust as may be necessary or advisable to
comply with any Federal or state securities or reporting requirements or laws.
(b) Without limiting the generality of the foregoing and subject to
Section 6.01 hereof, the Master Servicer or its designee is hereby authorized
and empowered to give written
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direction to the Trustee with respect to withdrawals from, and payments to, the
Collection Account in accordance with the Daily Report and as otherwise
specified in the Pooling and Servicing Agreements.
(c) Each Servicer shall, at its cost and expense and as agent for the
Company and the Trustee, collect, consistent with its past practices, as and
when the same becomes due, all amounts owing on each Receivable. The Servicer
shall not make any material change in its administrative, servicing and
collection systems that deviates from its Policies, except as expressly
permitted by the terms of the Pooling and Servicing Agreements and after giving
written notice to the Trustee. In the event of a default under any Receivable,
the Servicer shall have the power and authority, on behalf of the Company and
the Trust, for the benefit of the Holders, to take such action in respect of
such Receivable as the Servicer may deem advisable. In the enforcement or
collection of any Receivable, the Servicer shall be entitled, but not required,
to xxx thereon in (i) its own name or (ii) if, but only if, the Company consents
in writing (which consent shall not be unreasonably withheld), as agent for the
Company. In no event shall the Servicer be entitled to take any action that
would make the Company, the Trustee, any Agent or any Holder a party to any
litigation without the express prior written consent of such Person.
(d) Without limiting the generality of the foregoing and subject to
Section 6.01 hereof, each Servicer is hereby authorized and empowered to
delegate any or all of its servicing, collection, enforcement and administrative
duties hereunder with respect to the Receivables to a Person who agrees to
conduct such duties in accordance with the Policies; provided, however, that
such Servicer shall give prior written notice to the Company, the Trustee, each
Agent and the Rating Agencies of any such delegation relating to a material duty
prior to such delegation being effective, such Servicer shall have received
notice that the Rating Agency Condition shall be satisfied after giving effect
to such delegation and the consent of the Company, the Trustee and each Agent to
such delegation shall have been obtained. No delegation of duties by a Servicer
permitted hereunder shall relieve such Servicer of its liability and
responsibility with respect to such duties.
(e) Except as provided in the Pooling and Servicing Agreements, no
Servicer nor any Successor Servicer shall be obligated to use separate servicing
procedures, offices, employees or accounts for servicing the Serviced
Receivables transferred to the Company (and, subsequently, to the Trust) from
the procedures, offices, employees and accounts used by such Servicer or such
Successor Servicer, as the case may be, in connection with servicing other
receivables.
(f) Each Servicer shall comply with and perform its servicing
obligations with respect to the Serviced Receivables in accordance with the
contracts, if any, relating to the Serviced Receivables and the Policies.
(g) No Servicer shall take any action to cause any Serviced Receivable
not evidenced by any "instrument" (as defined in the UCC as in effect in the
State of New York) upon origination to become evidenced by an instrument and no
Servicer shall take any action to cause any interest in any Serviced Receivable
to be evidenced by any title documents in bearer form, except in connection with
its enforcement or collection of a Serviced Receivable, in which event
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such Servicer shall deliver such instrument or title documents to the Trustee as
soon as reasonably practicable, but in no event more than five days after
execution thereof; provided that any origination of Receivables by any Servicer,
in its capacity as a Seller, in compliance with the Pooling and Servicing
Agreements shall not constitute a breach of this Section 2.02(g).
SECTION 2.03. Collections.
(a) Each Servicer shall have instructed all Obligors to make all
payments in respect of the Receivables to a Lockbox or a Lockbox Account. Each
of the Company and each Servicer represents, warrants and agrees that all
Collections shall be collected, processed and deposited by it pursuant to, and
in accordance with the terms of, the Pooling and Servicing Agreements. Without
limiting the generality of the foregoing, the Master Servicer shall comply with
the provisions of subsection 3.01(d) of the Pooling Agreement as to remittance
of funds available in any Lockbox Account. In the event that any payments in
respect of any Receivable are made directly to a Servicer (including any
employees thereof or independent contractors employed thereby), such Servicer
shall, within two Business Days of receipt thereof, deliver (which may be via
regular mail) or deposit such amounts to a Lockbox, a Lockbox Account or the
Collection Account and, prior to forwarding such amounts, such Servicer shall
hold such payments in trust as custodian for the Company and the Trustee.
(b) Each Lockbox Agreement shall provide that the Lockbox Processor
thereunder is irrevocably directed, and such Lockbox Processor irrevocably
agrees, (i) to deposit funds received in the Lockbox directly into the Lockbox
Account and (ii) to transfer all available funds on deposit in the Lockbox
Account within one Business Day of the Business Day Received to the Trustee for
deposit in the Collection Account. Each Lockbox Agreement shall be substantially
in the form specified in the Pooling Agreement, subject to modifications thereof
as provided in the Pooling Agreement and applicable Supplements. Prior to any
resignation of the Lockbox Processor or termination of the Lockbox Processor by
the Company or the Trustee with respect to any Receivables, each Servicer hereby
agrees (to the extent that it is a Responsible Servicer with respect to such
Receivables) to obtain a replacement Lockbox Processor. Upon satisfaction of the
Rating Agency Condition, a Servicer may enter into any amendments or
modifications of a Lockbox Agreement that such Servicer reasonably deems
necessary to conform such Lockbox Agreement to the cash management system of the
Company or the Responsible Servicer.
(c) The Trustee shall administer amounts on deposit in the Collection
Account in accordance with the terms of the Pooling and Servicing Agreements.
Each of the Company, the Master Servicer and each Servicer acknowledges and
agrees that (i) it shall not have any right to withdraw any funds on deposit in
the Collection Account or any Lockbox Account and (ii) all amounts deposited in
the Collection Account or any Lockbox Account shall be under the sole dominion
and control of the Trustee (subject to the Master Servicer's or Servicer's
rights to direct the application of any such amounts as provided by the terms of
the Pooling and Servicing Agreements).
(d) As soon as practicable, but in any event not later than the Business
Day following the date that a Servicer identifies any of the collected funds
received in the Collection Account as
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funds that do not constitute Collections on account of the Receivables, such
moneys that do not constitute such Collections shall be remitted to the Master
Servicer and then by the Master Servicer to the appropriate Seller.
(e) Unless otherwise required by law or unless an Obligor designates
that a payment be applied to a specific Receivable, all Collections received
from an Obligor shall be applied to the oldest Receivables of such Obligor.
SECTION 2.04. Reconciliation of Deposits. If in respect of Collections
on account of a Receivable, the Responsible Servicer deposits into the
Collection Account an amount that is less than or more than the actual amount of
such Collections, such Servicer shall, in lieu of making a reconciling
withdrawal or deposit, as the case may be, adjust the amount subsequently
deposited into such Collection Account to reflect such mistake.
SECTION 2.05. Servicing Compensation.
(a) As full compensation for each Servicer's servicing activities
hereunder and reimbursement for its expenses as set forth in Section 2.05(b)
below, the Master Servicer, on behalf of the Servicers, shall be entitled to
receive on each Distribution Date, for the preceding Settlement Period prior to
the termination of the Trust pursuant to Section 9.01 of the Pooling Agreement,
a servicing fee (the "Servicing Fee"). The Servicing Fee shall be an amount
equal to (i) the product of (A) the Servicing Fee Percentage and (B) the average
aggregate Principal Amount of the Receivables in the Trust for such Settlement
Period and (C) the number of days in such Settlement Period, divided by (ii)
360. Except as otherwise set forth in the related Supplement, the share of the
Servicing Fee allocable to each Outstanding Series for any Settlement Period
shall be an amount equal to the product of (i) the Servicing Fee for such
Settlement Period and (ii) the Invested Percentage for such Series (with respect
to any such Series, the "Monthly Servicing Fee"); provided, however, that if on
any day a Seller or any Affiliate thereof is acting as a Servicer and an Early
Amortization Event has occurred and is continuing with respect to any
Outstanding Series, the portion of the Monthly Servicing Fee payable to such
Seller or an Affiliate thereof with respect to such Outstanding Series shall be
deferred until all amounts due under the Investor Certificates of such
Outstanding Series have been paid in full. The Servicing Fee shall be payable to
the Master Servicer, solely pursuant to the terms of, and to the extent amounts
are available for payment under, Article III of the Pooling Agreement.
(b) The Company hereby directs the Master Servicer to pay amounts due to
the Trustee pursuant to Section 8.05 of the Pooling Agreement and the reasonable
fees and disbursements of independent accountants, and all other reasonable fees
and expenses of the Trust (including counsel fees, if any) not expressly stated
herein to be for the account of the Holders; provided, however, that in no event
shall the Master Servicer, any Servicer or the Trustee be liable for any
Federal, state or local income or franchise tax, or any interest or penalties
with respect thereto, assessed on the Trust or the Holders except in accordance
with Section 5.02 hereof and as otherwise expressly provided herein. Each
Servicer shall be required to pay expenses for its own account, and shall not be
entitled to any payment therefor other than its portion of the Servicing Fee.
Nothing contained herein shall be construed to limit the
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obligation of the Master Servicer or the Company to pay any amounts due the
Trustee pursuant to Section 8.05 of the Pooling Agreement.
ARTICLE III
Representations and Warranties of the Master Servicer and each Servicer
SECTION 3.01. Representations and Warranties. As of (i) the date hereof
and (ii) each Issuance Date, the Master Servicer and each Servicer hereby make
the following representations and warranties as to itself (and in the case of
Xxxxxx Micro Inc. as to its Significant Subsidiaries) to each of the parties
hereto:
(a) Organization; Powers. It (i) is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, (ii) has all requisite power and authority to own its property and
assets and to carry on its business as now conducted and as proposed to be
conducted, (iii) is qualified to do business in, and is in good standing in,
every jurisdiction where the nature of its business so requires, except where
the failure so to qualify could not reasonably be expected to result in a
Servicer Material Adverse Effect and (iv) has the corporate power and authority
to execute, deliver and perform its obligations under each of the Transaction
Documents and each other agreement or instrument contemplated hereby to which it
is or will be a party.
(b) Authorization; No Conflict. The execution, delivery and performance
by it of each of the Transaction Documents to which it is a party and
performance of the transactions contemplated hereby and thereby (collectively,
the "Transactions") (i) have been duly authorized by all requisite corporate
and, if required, stockholder action and (ii) will not (A) violate (1) any
Requirement of Law or (2) any provision of any Transaction Document or other
material Contractual Obligation to which it or any Significant Subsidiary is a
party or by which any of them or any of their property is or may be bound, (B)
be in conflict with, result in a breach of or constitute (alone or with notice
or lapse of time or both) a default under, or give rise to any right to
accelerate or to require the prepayment, repurchase or redemption of any
obligation under any Transaction Document or any other material Contractual
Obligation, except where any such conflict, violation, breach or default
referred to in clause (A) or (B), individually or in the aggregate, could not
reasonably be expected to have a Servicer Material Adverse Effect, or (C) result
in the creation or imposition of any Lien upon the Receivables (other than
Permitted Liens and any Lien created hereunder or contemplated or permitted
hereby).
(c) Enforceability. This Agreement has been duly executed and delivered
by it and constitutes, and each other Transaction Document to which it is a
party when executed and delivered by it will constitute, its legal, valid and
binding obligation enforceable against it in accordance with such document's
terms, subject to (a) applicable bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting the enforcement of creditors' rights
generally, from time to time in effect and (b) general principals of equity
(whether enforcement is sought by a proceeding in equity or at law).
(d) Governmental Approvals. No action, consent or approval of,
registration or filing with or any other action by any Governmental Authority is
or will be required in connection with
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the Transactions, except for (i) the filing of UCC financing statements and (ii)
such as have been made or obtained and are in full force and effect.
(e) Litigation; Compliance with Laws.
(i) There are no actions, suits or proceedings at law or in
equity or by or before any Governmental Authority now pending or, to its
knowledge, threatened against it or any Significant Subsidiary (A) that
involve any Transaction Document or the Transactions or (B) as to which
there is a reasonable possibility of an adverse determination and that,
if adversely determined, could reasonably be expected, individually or
in the aggregate, to result in a Servicer Material Adverse Effect.
(ii) Neither it nor any Significant Subsidiary is in default
with respect to any judgment, writ, injunction, decree or order of any
Governmental Authority, where such violation or default could reasonably
be expected to result in a Servicer Material Adverse Effect.
(f) Agreements.
(i) Neither it nor any Significant Subsidiary is a party to any
agreement or instrument or subject to any corporate restriction that has
resulted or could reasonably be expected to result in a Servicer
Material Adverse Effect.
(ii) Neither it nor any Significant Subsidiary is in default in
any manner under any provision of any Contractual Obligation to which it
is a party or by which it or any of its properties or assets are bound,
where such default could reasonably be expected to result in a Servicer
Material Adverse Effect.
(g) No Servicer Default. No Servicer Default or Potential Servicer
Default has occurred and is continuing.
(h) Servicing Ability. As of the related Issuance Date, there has not
been since the date of this Agreement any adverse change in its ability to
perform its obligations as Servicer under any Transaction Document to which it
is a party.
(i) Location of Records. The office at which it keeps its records
concerning any Receivables is either (i) located at the address set forth for it
on Schedule 1 to the Receivables Sale Agreement or (ii) at a location as to
which the Company and the Trustee have been notified in accordance with the
provisions of Section 4.08 hereof. Its chief executive office is located at such
location and such office is the place where it is "located" for the purposes of
Section 9-103(3)(d) of the UCC as in effect in the State of New York.
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ARTICLE IV
Covenants of the Master Servicer and each Servicer
SECTION 4.01. Delivery of Daily Reports. Unless otherwise specified in
the Supplement with respect to any Series, for each Business Day (the "Reported
Day") and with respect to each Outstanding Series, the Master Servicer shall
submit to the Company, the Trustee and the relevant Agent no later than 3:30
p.m., New York City time, on the next Business Day following each Reported Day,
a written report substantially in the form attached to the related Supplement
for each such Series (the "Daily Report") setting forth for the Reported Day
total Collections on the Receivables, the amount of Collections attributable to
previously identified Ineligible Receivables for which an Adjustment Payment and
a Seller Adjustment Payment have been made pursuant to the Pooling Agreement and
the Receivables Sale Agreement, respectively (which are payable to the Seller in
accordance with Section 2.06(a) of the Receivables Sale Agreement), the amount
of Receivables originated, the amount of Ineligible Receivables (if any)
identified on the Reported Day, and such other information as the Company, the
Trustee or such Agent may reasonably request. The Daily Report may be delivered
in an electronic format mutually agreed upon by the Master Servicer and the
Trustee, or pending such agreement, by facsimile. By delivery of a Daily Report,
the Master Servicer shall be deemed to have made a representation and warranty
that all information set forth therein is true and correct in all material
respects.
SECTION 4.02. Delivery of Monthly Settlement Statement. Unless otherwise
specified in the Supplement with respect to any Outstanding Series, the Master
Servicer hereby covenants and agrees that it shall deliver to the Company, the
Trustee, the relevant Agent and each Rating Agency by 5:00 p.m., New York City
time, on each Settlement Report Date, a certificate of a Responsible Officer of
the Master Servicer substantially in the form attached to the related Supplement
for each such Outstanding Series (a "Monthly Settlement Statement") setting
forth, as of the last day of the Settlement Period most recently ended and for
such Settlement Period, (a) the information described in the form of such
Monthly Settlement Statement with such changes as may be agreed to by the Master
Servicer, the Company, the Trustee and the relevant Agent (if any) and subject
to satisfaction of the Rating Agency Condition and (b) such other information as
the Trustee or the relevant Agent may reasonably request. Such certificate shall
include a certification by a Responsible Officer of the Master Servicer that, to
such Responsible Officer's knowledge, the information contained therein is true
and correct in all material respects and the related Servicer has performed all
of its obligations in all material respects under each Transaction Document to
which it is a party throughout such preceding Settlement Period (or, if there
has been a default in the performance of any such obligation, specifying each
such default known to such Responsible Officer and the nature and status
thereof). A copy of each Monthly Settlement Statement may be obtained by any
Holder by a request in writing to the Trustee addressed to the Corporate Trust
Office.
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SECTION 4.03. Delivery of Annual Master Servicer's Certificates. The
Master Servicer shall deliver to the Company, the Trustee, each Agent and each
Rating Agency, an Officer's Certificate substantially in the form of Exhibit A
hereto, certifying that:
(a) a review of its activities during the preceding calendar year, and
of its performance under each Transaction Document was made under the
supervision of such Responsible Officer;
(b) to such Responsible Officer's knowledge, based on such review, the
Master Servicer and each Servicer have performed their respective obligations
under each Transaction Document throughout the period covered by such
certificate (or, if there has been a default in the performance of any such
obligation, specifying each such default known to such Responsible Officer and
the nature and status thereof); and
(c) each Daily Report and Monthly Settlement Statement was correct in
all material respects.
Such certificate shall be delivered by the Master Servicer within 120 days after
the end of each calendar year commencing with the year ending December 31, 2000.
A copy of each such certificate may be obtained by any Holder by a request in
writing to the Trustee addressed to the Corporate Trust Office.
SECTION 4.04. Delivery of Independent Public Accountants' Servicing
Reports. The Master Servicer shall cause Independent Public Accountants to
furnish to the Company, and upon execution of an acknowledgment letter with such
Independent Public Accountants as they may reasonably require, the Trustee and
each Agent within 120 days following the last day of its fiscal year a letter to
the effect that such firm has performed certain agreed-upon procedures
(substantially in the form of Exhibit B hereto) relating to the Master Servicer
and its performance hereunder during the preceding fiscal year and describing
such accountant's findings with respect to such procedures. A copy of such
report may be obtained by any Holder by a request in writing to the Trustee
addressed to the Corporate Trust Office; provided, that reliance by such Holder
may be conditioned upon its execution of an acknowledgment letter with such
Independent Public Accountants.
SECTION 4.05. Extension, Amendment and Adjustment of Receivables;
Amendment of Policies.
(a) Each Servicer hereby covenants and agrees with the Company and the
Trustee that it shall not extend, rescind, cancel, amend or otherwise modify, or
attempt or purport to extend, rescind, cancel, amend or otherwise modify, the
terms of, or grant any Dilution Adjustment to, any Serviced Receivable, or
otherwise take any action that is intended to cause or permit a Serviced
Receivable that is an Eligible Receivable to cease to be an Eligible Receivable,
except in any such case (i) in accordance with the terms of its Policies, (ii)
as required by any Requirement of Law or (iii) in the case of any Dilution
Adjustments, upon the payment by or on behalf of the appropriate Seller of a
Seller Dilution Adjustment Payment pursuant to Section 2.05 of the Receivables
Sale Agreement. Any Dilution Adjustment authorized to be made
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pursuant to the preceding sentence shall result in the reduction, on the
Business Day on which such Dilution Adjustment arises or is identified, in the
aggregate Principal Amount of Receivables and if as a result of such a reduction
the Aggregate Target Receivables Amount exceeds the Aggregate Receivables
Amount, the Company (in addition to the obligations of the Seller under the
Receivables Sale Agreement in respect of such Dilution Adjustment) shall be
required to pay into the Series Principal Collection Sub-subaccount with respect
to each Outstanding Series in immediately available funds, within one Business
Day of such determination, the pro rata share for such Series of the amount (the
"Cash Dilution Payment") by which the Aggregate Target Receivables Amount
exceeds the Aggregate Receivables Amount.
(b) No Servicer shall change or modify its Policies in any material
respect, except (i) if such change or modification is necessary under any
Requirement of Law (which for the purposes of this Section shall not include the
certificate of incorporation or by-laws or other organizational or governing
documents of the Master Servicer) or (ii) if the Rating Agency Condition is
satisfied with respect thereto and the Agents have consented thereto (which
consent shall not be unreasonably withheld). Each Servicer shall provide notice
to the Company, the Trustee, each Agent and each Rating Agency of any change or
modification of its Policies; provided, however, that if any change or
modification, other than a change or modification permitted pursuant to clause
(i) above, would reasonably be expected to have a Material Adverse Effect, a
Seller Material Adverse Effect, a Servicer Material Adverse Effect or a Company
Material Adverse Effect with respect to a Series that is not rated by a Rating
Agency, then the consent of Investor Certificateholders representing Investor
Certificateholders' Interest aggregating not less than 50% of the Adjusted
Invested Amount of such Series (or, as otherwise specified in the related
Supplement) shall be required to effect such change or modification.
SECTION 4.06. Protection of Holders' Rights. Each of the Master Servicer
and each Servicer hereby agrees with the Company and the Trustee that it shall
take no action, nor intentionally omit to take any action, that would reasonably
be expected to adversely impair the rights, remedies or interests of the Holders
under the Transaction Documents in respect of the Receivables or any Related
Property nor shall it reschedule, revise or defer payments due on any Receivable
except in accordance with its Policies or Section 4.05 above.
SECTION 4.07. Security Interest. Each of the Master Servicer and each
Servicer hereby covenants and agrees that it shall not sell, pledge, assign or
transfer to any other Person, or grant, create, incur, assume or suffer to exist
any Lien (other than Permitted Liens) on, any Receivable or any Receivable
Assets (as defined in the Receivables Sale Agreement), whether now existing or
hereafter created, or any interest therein, and each of the Master Servicer and
each Servicer shall defend the right, title and interest of the Company and the
Trust in, to and under any Receivable and any Receivable Assets, whether now
existing or hereafter created, against all claims of third parties claiming
through or under the Master Servicer, the Servicer or the Company; provided,
however, that nothing in this Section 4.07 shall prevent or be deemed to
prohibit the Servicer from suffering to exist upon any of the Receivables any
Permitted Liens.
SECTION 4.08. Location of Records. Each Servicer hereby covenants and
agrees that it (a) shall not move its chief executive office or any of the
offices where it keeps its records with respect to any Receivables outside of
the location specified in respect thereof on Schedule 4 to
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the Receivables Sale Agreement, in any such case, without giving 30 days prior
written notice to the Company, the Trustee, each Agent and the Rating Agencies
and (b) shall promptly take all actions (including any filings under the UCC)
required or reasonably necessary in order to continue the valid and enforceable
interest of the Company and the Trust in all Receivables and Receivable Assets.
SECTION 4.09. Visitation Rights.
(a) Each Servicer shall, at any reasonable time during normal business
hours on any Business Day, and from time to time, upon reasonable prior notice,
and as often as may reasonably be requested, and at any time after the
occurrence of a Servicer Default, and in any case subject to its security and
confidentiality requirements, (i) permit the Company, the Trustee, any Agent or
any of their respective agents or representatives (who may be accompanied by
agents or representatives of any Insurer), (A) to examine and make copies of and
abstracts from its records, books of account and documents (including computer
tapes and disks) relating to the Receivables and (B) following the termination
of its appointment as Servicer to be present at its offices and properties to
administer and control the Collection of the Receivables and to allow the
Trustee access to documents, instruments and other records (including the
documents, instruments and other records required to be transferred to a
successor pursuant to Section 6.01 hereof upon a Servicer Transfer), equipment
and personnel that are necessary to enable a Successor Servicer to continue
servicing operations in accordance with the terms of the Transaction Documents
and (ii) permit the Company, the Trustee, any Agent or any of their respective
agents or representatives (who may be accompanied by agents or representatives
of any Insurer) to visit its properties to discuss its affairs, finances and
accounts relating to the Receivables or its performance hereunder or under any
of the other Transaction Documents to which it is a party with any of its
officers or directors; provided that, except as otherwise provided in Section
8.05(b) of the Pooling Agreement, any such examination or visit shall be at the
cost and expense of the party or parties making such examination or visit.
(b) Each Servicer shall provide the Trustee with such other information
as the Trustee may reasonably request in connection with the fulfillment of the
Trustee's obligations under the Pooling and Servicing Agreements.
SECTION 4.10. Lockbox Agreement; Lockbox Accounts. Each Servicer shall
(a) maintain, and keep in full force and effect, each Lockbox Agreement to which
it is a party, except to the extent otherwise permitted under the terms of the
Transaction Documents, and (b) take all reasonable actions necessary to ensure
that each Lockbox Account shall be free and clear of, and defend each Lockbox
Account against, any writ, order, stay, judgment, warrant of attachment or
execution or similar process; provided, however, that upon satisfaction of the
Rating Agency Condition, the Company may enter into any amendments to or
modifications of a Lockbox Agreement that the Company reasonably deems necessary
to conform such Lockbox Agreement to the cash management system of the Company
or the Servicer.
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SECTION 4.11. Delivery of Financial Statements. For so long as it is the
Master Servicer or a Servicer, Xxxxxx Micro Inc. shall furnish to the Company,
the Trustee, any Insurer, each Agent and the Rating Agencies:
(a) promptly after filing, copies of each Form 10-K, Form 10-Q and Form
8K (or any respective successor forms) filed with the Securities and Exchange
Commission (or any successor authority) or any national securities exchange
(including, in each case, any exhibits thereto if requested);
(b) to the extent not disclosed in such Forms 10-K, Forms 10-Q and Forms
8-K for the applicable period, copies of the following financial statements,
reports, notices and information:
(i) within 120 days after the end of each fiscal year of Xxxxxx
Micro Inc., Xxxxxx Micro Inc.'s consolidated balance sheet and related
statements of income, stockholders' equity and cash flows showing the
consolidated financial condition of Xxxxxx Micro Inc. and its
consolidated subsidiaries as of the close of such fiscal year and the
consolidated results of its operations and the operations of such
subsidiaries during such year (and showing, on a comparative basis, the
figures for the previous year), all audited by Price Waterhouse or other
independent public accountants of recognized national standing and
accompanied by an opinion of such accountants (which shall not be
qualified in any material respect except that qualifications relating to
(i) preacquisition balance sheet accounts of Persons acquired by Xxxxxx
Micro Inc. or any of its Subsidiaries and (ii) statements in reliance on
another accounting firm shall be permitted) to the effect that such
consolidated financial statements fairly present in all material
respects the financial condition and results of operations of Xxxxxx
Micro Inc. and its consolidated subsidiaries on a consolidated basis in
accordance with GAAP consistently applied;
(ii) within 60 days after the end of each of the first three
fiscal quarters of each fiscal year of Xxxxxx Micro Inc., Xxxxxx Micro
Inc.'s unaudited consolidated balance sheet and related statements of
income, stockholders' equity and cash flows showing the consolidated
financial condition of Xxxxxx Micro Inc. and its consolidated
subsidiaries as of the close of such fiscal quarter and the consolidated
results of its operations and the operations of such subsidiaries during
such fiscal quarter and the then elapsed portion of the fiscal year (and
showing, on a comparative basis, such information as of and for the
corresponding dates and periods of the preceding fiscal year), all
certified by a Responsible Officer of Xxxxxx Micro Inc. as fairly
presenting in all material respects the consolidated financial condition
and results of operations of Xxxxxx Micro Inc. and its consolidated
subsidiaries on a consolidated basis in accordance with GAAP (except for
the absence of footnote disclosure) consistently applied, subject to
year-end audit adjustments;
(c) concurrently with any delivery of financial statements under
subsection (b)(i) above, a certificate of the Responsible Officer certifying
such statements;
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(d) promptly after the filing thereof copies of any registration
statement (other than the exhibits thereto and excluding any registration
statements on Form S-8 and any other registration statement relating exclusively
to stock, bonus, option, 401(k) and other similar plans for officers, directors
and employees of Xxxxxx Micro Inc., Xxxxxx Industries Inc., Xxxxxx Entertainment
Inc. or any of their respective Subsidiaries or Affiliates); and
(e) promptly, from time to time, such other information regarding the
operations, business affairs and financial condition of Xxxxxx Micro Inc., any
Significant Subsidiary, or compliance with the terms of any Transaction
Document, in each case as the Trustee, any Agent or any Holder may reasonably
request.
SECTION 4.12. Notices. The Master Servicer and each Servicer, as
applicable, shall furnish to the Company, the Trustee, each Agent, any Insurer
and each Rating Agency, promptly upon obtaining knowledge of the occurrence of
any Purchase Termination Event, Potential Purchase Termination Event, Early
Amortization Event, Potential Early Amortization Event or Servicer Default,
written notice thereof.
ARTICLE V
Other Matters Relating to the Master Servicer and Each Servicer
SECTION 5.01. Merger, Consolidation etc. The Master Servicer shall not
enter into any merger, consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), or convey, sell,
transfer, lease, assign or otherwise dispose of, all or substantially all of its
assets and its consolidated subsidiaries (taken as a whole) other than the
assignments and transfers contemplated hereby to another Person or liquidate or
dissolve unless:
(i) either the Master Servicer is the surviving entity or the
surviving Person (A) is organized and in good standing under a State of
the United States or the District of Columbia and is an Eligible
Successor Master Servicer and (B) assumes, by execution of a
supplemental agreement (a "Supplemental Agreement") the performance of
each of the Master Servicer's covenants and obligations hereunder;
(ii) it has delivered to the Trustee an Officer's Certificate
executed by a Vice President or other senior officer of the Master
Servicer and an Opinion of Counsel addressed to the Trust and the
Trustee (A) each stating that such consolidation, merger, conveyance or
transfer complies with this Section 5.01 and (B) further stating in the
Officer's Certificate that all conditions precedent herein provided for
relating to such transaction have been complied with and in the case of
the Opinion of Counsel, that such Supplemental Agreement is legally
valid and binding; and
(iii) the Rating Agency Condition shall have been satisfied.
SECTION 5.02. Indemnification of the Trust and the Trustee.
(a) The Master Servicer and each Servicer hereby agree to indemnify and
hold harmless the Company, the Trustee for the benefit of the Holders and the
Trustee and their
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respective directors, officers, agents and employees and the Trust (each, an
"Indemnified Person") from and against any loss, liability, expense, damage or
injury suffered or sustained by reason of any acts, omissions or alleged acts or
omissions arising out of, or relating to, its activities pursuant to any Pooling
and Servicing Agreement including but not limited to any judgment, award,
settlement, reasonable attorneys fees and other reasonable costs or expenses
incurred in connection therewith; provided that neither the Master Servicer nor
any Servicer shall indemnify any Indemnified Person for any liability, cost or
expense of such Indemnified Person (i) arising from a default by an Obligor with
respect to any Receivable (except that indemnification shall be made to the
extent that such default arises out of the Master Servicer's or any Servicer's
failure to perform its duties or obligations under this Agreement), (ii) to the
extent that such liability, cost or expense arises from the gross negligence,
bad faith or willful misconduct of such Indemnified Person (or any of its
respective directors, officers, agents or employees), (iii) with respect to any
federal, state or local income or franchise taxes or any other taxes imposed on
or measured by income (or any interest or penalties or additions with respect
thereto) required to be paid by the Trust, any Holder or any other Person in
connection herewith to any taxing authority or (iv) with respect to any action
taken by the Trustee at the request of any Investor Certificateholder or holder
of a VFC Beneficial Interest. The provisions of this indemnity shall run
directly to, and be enforceable by, any injured party and shall survive the
termination of the Agreement or the resignation of the Master Servicer or any
Servicer as the case may be.
(b) In addition to subsection (a) above, the Master Servicer and each
Servicer shall indemnify and hold harmless each Indemnified Person from and
against any loss, liability, expense, damage or injury suffered or sustained by
reason of a breach by the Master Servicer or any Servicer of any covenant
contained in Sections 2.02(g), 4.05, 4.06 or 4.07 that materially adversely
affects the interest of the Company or the Holders under the Transaction
Documents with respect to any Receivable (an "Indemnification Event"), in an
amount equal to the outstanding Principal Amount at such time of such
Receivable. Payment shall occur on or prior to the 30th Business Day after the
day such Indemnification Event becomes known to the Master Servicer or Servicer
unless such Indemnification Event shall have been cured on or before such day.
SECTION 5.03. Resignation by Master Servicer or Any Servicer. Neither
the Master Servicer nor any Servicer shall resign from the obligations and
duties hereby imposed on it except (i) upon determination that (A) the
performance of its duties hereunder is no longer permissible under applicable
law, and (B) there is no reasonable course of action that it could take to make
the performance of its duties hereunder permissible under applicable law or (ii)
such Servicer is terminated as a Seller in accordance with the Receivables Sale
Agreement. Any such determination pursuant to clause (i) above permitting the
resignation of the Master Servicer or a Servicer shall be evidenced as to clause
(i)(a) above by an Opinion of Counsel to such effect delivered to the Company,
the Trustee and each Agent. No such resignation shall become effective until a
Successor Servicer or the Trustee shall have assumed the responsibilities and
obligations of the Master Servicer or such Servicer, as applicable, in
accordance with Section 6.02 hereof. The Trustee, the Company, each Agent, any
Insurer and each Rating Agency shall be notified of such resignation by the
Master Servicer or such Servicer.
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SECTION 5.04. Access to Certain Documentation and Information Regarding
the Receivables. Each Servicer shall hold in trust for the Company and the
Trustee and shall provide access to, at the office of such Servicer such
documents, computer programs, books of account and other records as are
reasonably necessary to enable the Trustee to determine at any time the status
of the Serviced Receivables and all collections and payments in respect thereof
(including, without limitation, an ability to recreate records evidencing the
Serviced Receivables in the event of the destruction of the originals thereof or
otherwise in connection with the enforcement of the rights of
Certificateholders; provided that such access is afforded only (i) upon such
reasonable request, (ii) during normal business hours and (iii) subject to such
Servicer's normal security and confidentiality procedures).
ARTICLE VI
Servicer Defaults; Servicer Termination
SECTION 6.01. Servicer Defaults. If any one of the following events
(each, a "Servicer Default") shall occur and be continuing:
(a) failure by the Master Servicer to deliver (i) any Daily Report
within two Business Days of the date due or, if such failure arises from a
failure of the Master Servicer's management information system and the Agent has
been notified of the occurrence of such management information system failure,
within three Business Days of the date due or (ii) any Monthly Settlement
Statement within three Business Days of the date due, conforming in all material
respects to the requirement of Section 4.01 or 4.02, as the case may be;
(b) failure by the Master Servicer or any Servicer to (i) make any
payment required to be paid by it under Section 2.03 or any other fixed
principal, interest or fees payable under any Pooling and Servicing Agreement
(it being acknowledged that for such purpose the responsibility of the Master
Servicer or such Servicer is limited to payment of amounts actually received)
and such failure shall remain unremedied for more than five Business Days or
(ii) pay all amounts required to be paid in respect of those payments described
in the foregoing clause (i) and pay any other amounts required to be paid by it
under any Pooling and Servicing Agreement (it being acknowledged that for such
purpose the responsibility of the Master Servicer or such Servicer is limited to
payment of amounts actually received) and such failure continues for five
Business Days after the earlier to occur of (x) the date upon which a
Responsible Officer of the Master Servicer or such Servicer obtains knowledge of
such failure or (y) the date on which written notice of such failure, requiring
the same to be remedied, shall have been given (1) to the Master Servicer or
such Servicer by the Company or the Trustee, or (2) to the Company, the Trustee,
the Master Servicer and such Servicer by Holders of Investor Certificates
evidencing 25% or more of the Aggregate Invested Amount;
(c) failure on the part of the Master Servicer or any Servicer duly to
observe or to perform in any material respect any other of its covenants or
agreements set forth in any Pooling and Servicing Agreement and that, with
respect to any covenants or agreements not contained in Section 4.07 or 4.08,
continues unremedied for more than 30 days after the earlier of (i) the date on
which the Master Servicer has actual knowledge of such failure and (ii) the date
on which written notice of such failure, requiring the same to be remedied,
shall have been given to the
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Master Servicer by the Company or the Trustee, or to the Company, to the
Trustee, to the Master Servicer and to the Servicer by any Holder of Investor
Certificates or any Agent; provided, that no Servicer Default shall be deemed to
occur under this subsection with respect to a failure on the part of the Master
Servicer or a Servicer if the Master Servicer or the Servicer, as the case may
be, shall have complied with the provisions of Section 5.02(b) with respect
thereto;
(d) any representation, warranty or certification made by the Master
Servicer or a Servicer in the Pooling and Servicing Agreements or in any
certificate delivered pursuant thereto shall prove to have been incorrect in any
material respect when made or deemed made; provided, that no Servicer Default
shall be deemed to occur under this Section 6.01(d)(i) with respect to a failure
on the part of the Master Servicer or the Servicer if the Servicer shall have
complied with the provisions of Section 5.02(b) with respect thereto;
(e) (i) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Master Servicer or a Servicer in an
involuntary case under any Applicable Insolvency Law, which decree or order is
not stayed, or any other similar relief shall be granted under any applicable
Federal or state law and shall not be stayed; (ii) an involuntary case is
commenced against the Master Servicer or a Servicer under any Applicable
Insolvency Law, a decree or order of a court having jurisdiction in the premises
for the appointment of a receiver, liquidator, sequestrator, trustee, custodian
or other officer having similar powers over the Master Servicer or a Servicer or
over all or a substantial part of the property of the Master Servicer or a
Servicer shall have been entered, an interim receiver, trustee or other
custodian of the Master Servicer or a Servicer for all or a substantial part of
the property of the Master Servicer or a Servicer is involuntarily appointed or
a warrant of attachment, execution or similar process is issued against any
substantial part of the property of the Master Servicer or a Servicer and the
continuance of any such events in this clause (ii) for 60 days unless dismissed,
bonded or discharged; (iii) the Master Servicer or a Servicer shall at its
request have a decree or an order for relief entered with respect to it,
commence a voluntary case under the Bankruptcy Code or any Applicable Insolvency
Law, consent to the entry of a decree or an order for relief in an involuntary
case, or to the conversion of an involuntary case to a voluntary case, under any
such law, or consent to the appointment of or taking possession by a receiver,
trustee or other custodian of all or a substantial part of its property; (iv)
the making by the Master Servicer or a Servicer of any general assignment for
the benefit of creditors; (v) the inability or failure of the Master Servicer or
a Servicer generally to pay its debts as such debts become due; or (vi) the
Board of Directors of the Master Servicer or a Servicer adopts any resolution or
otherwise authorizes action to approve any of the foregoing; or
(f) there shall have occurred and be continuing (i) a Purchase
Termination Event under the Receivables Sale Agreement or (ii) an Early
Amortization Event (other than Early Amortization Events set forth in Xxxxxxx
0.00(x), (x), (x), (x), (x), (x), (x), (x), (x), (x), and (s) of the Series
2000-1 Supplement);
(g) the Servicing Agreement shall cease, for any reason, to be in full
force and effect or the Master Servicer or any Servicer or any Affiliate of the
foregoing shall so assert in writing;
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(h) (i) a default in the payment when due (subject to any applicable
grace period), whether by acceleration or otherwise, of any Indebtedness of the
Master Servicer or a Servicer or any of their respective Subsidiaries having an
outstanding aggregate principal amount in excess of the lesser of (A) (1) 5% of
Consolidated Tangible Net Worth for the then most recently ended Fiscal Period,
individually or (2) 10% of Consolidated Tangible Net Worth for the then most
recently ended Fiscal Period, in the aggregate and (B) $75,000,000, or a default
shall occur in the performance or observance of any obligation or condition with
respect to such Indebtedness and (ii) in either case, the holder or holders of
such Indebtedness, or any trustee or agent for such holders, has caused the
maturity of such Indebtedness to be accelerated or such Indebtedness is thereby
required to be repaid, redeemed, purchased, defeased or is otherwise due and
payable prior to its expressed maturity (for purposes of this subsection, the
terms Consolidated Tangible Net Worth and Fiscal Period shall have the meanings
set forth in Section 8.03 of the Series 2000-1 Supplement);
then, in the event of any Servicer Default, so long as the Servicer
Default shall not have been remedied or waived, the Company (with the consent of
the Trustee) may, the Company at the direction of the Trustee shall, and the
Company and the Trustee shall, at the written direction of the Holders of
Investor Certificates evidencing more than 50% of the Aggregate Invested Amount
voting as a single class, by notice then given in writing to the Master Servicer
and the Servicers and to each Rating Agency (a "Termination Notice"), terminate
all or any part of the rights and obligations of the Master Servicer or any
Servicer, as applicable, under the Pooling and Servicing Agreements.
Notwithstanding anything to the contrary in this Section 6.01, a delay in or
failure of performance referred to under clause (b) above for so long as no
funds have been remitted to the Master Servicer, a Servicer or the Company or a
delay in or failure of performance referred to under clause (a) above for a
period of 5 Business Days after the applicable grace period shall not constitute
a Servicer Default, if such delay or failure could not have been prevented by
the exercise of reasonable diligence by the applicable Servicer and such delay
or failure was caused by a Force Majeure Delay. After receipt by the Master
Servicer or a Servicer of a Termination Notice, and on the date that a Successor
Master Servicer or Successor Servicer, as the case may be, shall have been
appointed by the Company and the Trustee pursuant to Section 6.02 hereof, all
authority and power of the Master Servicer or such Servicer, as the case may be,
under any Pooling and Servicing Agreement to the extent specified in such
Termination Notice shall pass to and be vested in the Successor Master Servicer
(a "Master Servicer Transfer") or Successor Servicer (a "Service Transfer"), as
the case may be, and, without limitation, such Successor Master Servicer or such
Successor Servicer, as the case may be, is hereby directed, authorized and
empowered (upon the refusal of the Master Servicer or the Servicer to cooperate)
to execute and deliver, on behalf of the Master Servicer or such Servicer, as
attorney-in-fact or otherwise, all documents and other instruments upon the
refusal of the Master Servicer or such Servicer to execute or to deliver such
documents or instruments, and to do and to accomplish all other acts or things
necessary or appropriate to effect the purposes of such Master Servicer Transfer
or Service Transfer, as the case may be, and the Successor Master Servicer or
Successor Servicer shall incur no liability in connection with effecting such
Master Servicer Transfer or Service Transfer. Each of the Master Servicer and
the Servicer agrees to cooperate with the Company and the Trustee and such
Successor Master Servicer or Successor Servicer in effecting the termination of
the responsibilities and rights of the Master Servicer or the Servicer to
conduct its duties hereunder, including, without limitation, the transfer to the
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Successor Master Servicer or Successor Servicer, as the case may be, of all
authority of the Master Servicer to coordinate the Servicing of all Receivables
or all authority of such Servicer to service the Serviced Receivables, as the
case may be, provided for under the Pooling and Servicing Agreements (including,
in the case of such Servicer, without limitation, all authority over all
Collections that shall on the date of transfer be held by the Servicer for
deposit, or that have been deposited by such Servicer, in the Collection
Account, or that shall thereafter be received with respect to the Serviced
Receivables), and in assisting the Successor Master Servicer or Successor
Servicer. Upon a Master Servicer Transfer or Service Transfer, the terminated
Master Servicer or Servicer shall promptly (x) assemble all of its documents,
instruments and other records (including credit files, licenses (to the extent
transferable), rights, copies of all relevant computer programs and any
necessary licenses (to the extent transferable) for the use thereof, related
material, computer tapes, disks, cassettes and data) that (i) evidence or record
Receivables sold and assigned to the Trust and (ii) are otherwise necessary to
enable a Successor Master Servicer or Successor Servicer, as the case may be, to
coordinate servicing of all such Receivables and to, in the case of a Successor
Master Servicer, prepare and deliver Daily Reports and Monthly Settlement
Statements, (iii) are otherwise necessary to enable a Successor Master Servicer
or Successor Servicer to effect the immediate Collection of such Receivables,
with or without the participation of the Seller, Master Servicer or Servicer and
(y) deliver to the extent permitted by law or license (to the extent
transferable) the use of all of the foregoing documents, instruments and other
records to such Successor Master Servicer or Successor Servicer at a place
designated by such Successor Master Servicer or Successor Servicer; provided,
however, that neither the Master Servicer nor such Servicer shall be required,
to the extent it has an ownership interest in any electronic records, computer
software or licenses, to transfer, assign, set-over or otherwise convey such
ownership interests to the Successor Master Servicer or Successor Servicer. In
recognition of the terminated Master Servicer's or Servicer's need to have
access to any such documents, instruments and other records that may be
transferred to a Successor Master Servicer or Successor Servicer hereunder,
whether as a result of its continuing responsibility as a Servicer of accounts
receivable that are not sold and assigned to the Trust or otherwise, such
Successor Master Servicer or Successor Servicer shall provide to such terminated
Master Servicer or Servicer reasonable access to such documents, instruments and
other records transferred by such terminated Master Servicer or Servicer to it
in connection with any activity arising in the ordinary course of the terminated
Master Servicer's or Servicer's business; provided that the terminated Master
Servicer or Servicer shall not disrupt or otherwise interfere with the Successor
Master Servicer or Successor Servicer's use of and access to such documents,
instruments and other records. To the extent that compliance with this Section
6.01 shall require the terminated Master Servicer or Servicer to disclose to the
Successor Master Servicer or Successor Servicer information of any kind that the
terminated Master Servicer or Servicer reasonably deems to be confidential, the
Successor Master Servicer or Successor Servicer shall be required to enter into
such customary licensing and confidentiality agreements as the terminated Master
Servicer or Servicer shall reasonably deem necessary to protect its interests.
All costs and expenses incurred by the terminated Master Servicer or Servicer
and the Trustee in connection with any Master Servicer Transfer or Service
Transfer shall be for the account of the terminated Master Servicer or Servicer
and to the extent any costs or expenses incurred by the Trustee are not so paid,
the Trustee shall be entitled to be paid such items from amounts that would
otherwise be distributable to the Company under Article III of the Pooling
Agreement.
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SECTION 6.02. Trustee To Act; Appointment of Successor.
(a) On and after (i) the receipt by any Servicer of a Termination Notice
pursuant to Section 6.01 or (ii) the date on which the applicable Servicer
notifies the Trustee, the Master Servicer, the Company, each Rating Agency and
each Agent in writing of its resignation pursuant to Section 5.03 (the
"Resignation Notice"), the Servicer shall continue to perform all servicing
functions under the Pooling and Servicing Agreements until the earlier of (x)
the date on which a successor Servicer (a "Successor Servicer") accepts its
appointment and (y) 60 days after the delivery of such Termination Notice or
Resignation Notice, as the case may be. Upon the receipt by the Master Servicer
of a Termination Notice or Resignation Notice with respect to a Servicer, the
Master Servicer shall, without any action on the part of the Company, the
Trustee or any other Person, be deemed appointed as Successor Servicer with
respect to the Serviced Receivables; provided that no Successor Servicer need be
appointed if the Servicer has resigned its duties in connection with its
termination as a Seller in accordance with Section 7.04(b) hereof. The Master
Servicer shall accept its appointment as Successor Servicer by a written notice
delivered to the Trustee and the Company. In the event that the Master Servicer
is unable to accept the appointment as Successor Servicer, the Trustee shall
appoint any Eligible Successor Servicer.
(b) On and after (i) the receipt by the Master Servicer of a Termination
Notice pursuant to Section 6.01 (the "Master Servicer Termination Notice") or
(ii) the date on which the Master Servicer notifies the Trustee, the Company and
each Rating Agency in writing of its resignation pursuant to Section 5.03 (the
"Master Servicer Resignation Notice"), the Master Servicer shall continue to
perform all master servicing functions under the Pooling and Servicing
Agreements until the earlier of (x) the date on which an Eligible Successor
Master Servicer who has been appointed as successor Master Servicer (a
"Successor Master Servicer") accepts its appointment and (y) 60 days after the
delivery of such Master Servicer Termination Notice or Master Servicer
Resignation Notice, as the case may be. Upon the receipt by the Master Servicer
of a Master Servicer Termination Notice or by the Trustee of a Master Servicer
Resignation Notice with respect to the Master Servicer, the Trustee shall
appoint any Eligible Successor Master Servicer, and such Successor Master
Servicer shall accept its appointment by a written assumption in a form
acceptable to the Trustee.
(c) In the event that a Successor Servicer or Successor Master Servicer,
as the case may be, has not been appointed or has not accepted its appointment
within 60 days of delivery of the Termination Notice or Resignation Notice
referred to in subsection (a) hereof with respect to a Successor Servicer, or a
Master Servicer Termination Notice or a Master Servicer Resignation Notice
referred to in subsection (b) hereof with respect to a Successor Master
Servicer, the Trustee without further action shall be appointed Successor
Servicer or Successor Master Servicer, as the case may be; provided, that the
Trustee shall only be responsible for the duties and liabilities of Successor
Servicer or Successor Master Servicer, as the case may be, that are consistent
with an orderly collection and liquidation of the Receivables and other Trust
Assets in the manner contemplated for such liquidations in Section 7.02 of the
Pooling Agreement. The Trustee shall not be liable for any action taken or not
taken in effecting such liquidations of Receivables so long as such liquidations
are conducted in a commercially reasonable manner and on commercially reasonable
terms. The Trustee may delegate any of its master servicing or
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servicing obligations to an affiliate or agent in accordance with Section
2.02(d). Notwithstanding the above, the Trustee shall, if the Trustee is legally
unable so to act, petition a court of competent jurisdiction to appoint any
Person qualifying as an Eligible Successor Servicer or Eligible Successor Master
Servicer as the Successor Servicer or Successor Master Servicer, as the case may
be, hereunder. The Master Servicer shall immediately give notice to each Rating
Agency of the appointment of any Successor Servicer or Successor Master
Servicer.
(d) Upon its appointment, the Successor Servicer or Successor Master
Servicer shall be the successor in all respects to the Servicer or Master
Servicer with respect to servicing or master servicing functions under the
Pooling and Servicing Agreements (with such changes as are agreed to between
such Successor Servicer or Successor Master Servicer, as the case may be, and
either the Company (with the consent of the Rating Agencies) or the Company and
the Trustee) and shall be subject to all the responsibilities, duties and
liabilities relating thereto placed on the Servicer or Master Servicer by the
terms and provisions hereof, and all references in any Pooling and Servicing
Agreement to the Servicer or Master Servicer shall be deemed to refer to such
Successor Servicer or Master Servicer, as the case may be. The Successor
Servicer or Master Servicer, as the case may be, shall not be liable for, and
the replaced Master Servicer or Servicer, as the case may be, shall indemnify
the Successor Servicer against costs incurred by the Successor Servicer or
Master Servicer, as the case may be, as a result of, any acts or omissions of
such replaced Servicer or Master Servicer or any events or occurrences occurring
prior to the Successor Servicer's acceptance of its appointment as Successor
Servicer or Master Servicer, as the case may be. Any Successor Servicer or the
Successor Master Servicer, as the case may be, shall manage the servicing and
administration of the Receivables in accordance with the Policies of the
replaced Servicer or Master Servicer and the terms of the Pooling and Servicing
Agreements.
SECTION 6.03. Waiver of Past Defaults. Except as otherwise provided in
any Supplement, Holders of Investor Certificates evidencing more than 50% of the
Aggregate Invested Amount may waive any continuing default by the Master
Servicer, any Servicer or the Company in the performance of its respective
obligations hereunder and its consequences, except a default in the failure to
make any required deposits or payments in respect of any Series of Investor
Certificates, which shall require a waiver by the Holders of all of the affected
Investor Certificates. Upon any such waiver of a past default, such default
shall cease to exist, and any default arising therefrom shall be deemed to have
been remedied for every purpose of the Pooling and Servicing Agreements. No such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon except to the extent expressly so waived. Either the Company,
the Master Servicer or the Servicer shall provide notice to each Rating Agency
of any such waiver.
ARTICLE VII
Miscellaneous Provisions
SECTION 7.01. Amendment. This Agreement may only be amended,
supplemented or otherwise modified from time to time if such amendment,
supplement or modification is effected in accordance with the provisions of
Section 10.01 of the Pooling Agreement as the same may be modified by applicable
provisions of any Supplement.
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SECTION 7.02. Termination.
(a) The respective obligations and responsibilities of the parties
hereto shall terminate on the Trust Termination Date (unless such obligations or
responsibilities are expressly stated to survive the termination of this
Agreement).
(b) All authority and power granted to the Master Servicer and any
Servicer under the Pooling and Servicing Agreements shall automatically cease
and terminate on the Trust Termination Date, and shall pass to and be vested in
the Company and, without limitation, the Company is hereby authorized and
empowered to execute and deliver, on behalf of the Master Servicer or the
Servicer, as attorney-in-fact or otherwise, all documents and other instruments,
and to do and accomplish all other acts or things necessary or appropriate to
effect the purposes of such transfer of rights from and after the Trust
Termination Date. The Master Servicer and each Servicer shall cooperate with the
Company in effecting the termination of its responsibilities and rights to
conduct master servicing or servicing, as the case may be, of the Receivables.
The Master Servicer and each Servicer shall transfer all of its records relating
to the Receivables to the Company in such form as the Company may reasonably
request and shall transfer all other records, correspondence and documents to
the Company in the manner and at such times as the Company shall reasonably
request. To the extent that compliance with this Section 7.02 (b) shall require
the Master Servicer or a Servicer to disclose to the Company information of any
kind that the Master Servicer or the Servicer, as applicable, deems to be
confidential, the Company shall be required to enter into such customary
licensing and confidentiality agreements as the Master Servicer or the Servicer,
as applicable, shall reasonably deem necessary to protect its interests.
SECTION 7.03. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO ANY CONFLICTS OF LAWS PRINCIPLES.
SECTION 7.04. Addition of Servicers.
(a) Subject to the terms and conditions hereof, from time to time one or
more direct or indirect Subsidiaries of Xxxxxx Micro Inc. that have been
approved as additional Sellers pursuant to the Pooling Agreement and any
Supplement may become additional Servicers party hereto upon (i) execution by
each such Subsidiary of an Additional Seller/Servicer Supplement and (ii)
satisfaction of all conditions precedent set forth in Section 3.05 of the
Receivables Sale Agreement to such Subsidiary becoming an additional Seller.
(b) Concurrent with any termination of a Seller under Section 9.13(b) of
the Receivables Sales Agreement, the related Servicer shall be terminated as a
Servicer under the Servicing Agreement unless such Servicer is the Servicer of
the Receivables of a Seller that has not been so terminated.
SECTION 7.05. Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by
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hand, or three days after being deposited in the mail, postage prepaid, or, in
the case of telecopy notice, when received, addressed as set forth in Section
10.05 of the Pooling Agreement or Section 9.08 of the Receivables Sale
Agreement, or to such other address as may be hereafter notified by the
respective parties hereto.
SECTION 7.06. Counterparts. This Agreement may be executed in two or
more counterparts (and by different parties on separate counterparts), each of
which shall be an original, but all of which together shall constitute one and
the same instrument. Delivery of an executed counterpart of a signature page to
this Agreement by facsimile transmission shall be effective as delivery of a
manually executed counterpart of this Agreement.
SECTION 7.07. Third-Party Beneficiaries. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and the Holders and their
respective successors and permitted assigns. Except as provided in this Article
VII, no other Person shall have any right or obligation hereunder.
SECTION 7.08. Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived, or supplemented except as provided herein.
SECTION 7.09. Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
SECTION 7.10. No Set-Off. Except as expressly provided in this
Agreement, each of the Master Servicer and the Servicers agree that it shall
have no right of set-off or banker's lien against, and no right to otherwise
deduct from, any funds held in any Lockbox Account or in the Collection Account
for any amount owed to it by the Company, the Trust, the Trustee or any Holder.
SECTION 7.11. No Bankruptcy Petition. The Master Servicer and the
Trustee each hereby covenant and agree that, prior to the date which is one year
and one day after the Trust Termination Date, it shall not institute against, or
join any other Person in instituting against, the Company any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any Federal or state bankruptcy or similar law.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers as of the day and year first above
written.
XXXXXX FUNDING INC.
By: /s/ P. Xxxx Xxxxxxxx
------------------------------------
Title: Attorney-in-Fact
XXXXXX MICRO INC., as Master Servicer
and a Servicer
By: /s/ P. Xxxx Xxxxxxxx
------------------------------------
Title: Senior Director & Worldwide
Assistant Treasurer
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as
Trustee
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Title: Vice President
Signature Page
to
Servicing Agreement
28
EXHIBIT A
TO
AMENDED AND RESTATED SERVICING AGREEMENT
FORM OF ANNUAL MASTER SERVICER'S CERTIFICATE
(As required to be delivered within 90 days after the end of each
calendar year pursuant to Section 4.03 of the Servicing
Agreement referred to below)
-------------------------------------
XXXXXX MICRO MASTER TRUST
--------------------------------------
The undersigned, a duly authorized representative of Xxxxxx Micro Inc.,
as Master Servicer pursuant to (a) the Amended and Restated Pooling Agreement,
dated as of March 8, 2000 (as amended, restated, supplemented or otherwise
modified from time to time, the "Pooling Agreement"), by and among Xxxxxx
Funding Inc. (the "Company"), Xxxxxx Micro Inc., as Master Servicer and The
Chase Manhattan Bank, as Trustee (the "Trustee") and (b) the Amended and
Restated Servicing Agreement, dated as of March 8, 2000 (as amended, restated,
supplemented or otherwise modified from time to time, the "Servicing Agreement";
the Pooling Agreement and the Servicing Agreement, collectively, the "Pooling
and Servicing Agreements"), by and among the Company, the Master Servicer, the
Servicer and the Trustee, does hereby certify that:
1. Xxxxxx Micro Inc. is, as of the date hereof, the Master Servicer
under the Pooling and Servicing Agreements.
2. The undersigned is duly authorized pursuant to the Pooling and
Servicing Agreements to execute and deliver this Certificate to the Trustee.
3. A review of the activities of the Company, the Master Servicer and
the Servicer during the calendar year ended December, 31, 20__, and of its
performance under each Transaction Document was conducted under my supervision.
4. Based on such review, to my knowledge, each of the Company, the
Master Servicer and the Servicer has performed in all material respects all of
its respective obligations under each Transaction Document and no material
default in the performance of such obligations has occurred or is continuing
except as set forth in paragraph 5 below.
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5. The following is a description of all material defaults in the
performance of the Master Servicer, each Servicer or the Company under the
provisions of the Transaction Documents known to us to have been made during the
calendar year ended December 31, 199__, which sets forth in detail (i) the
nature of each such default, (ii) the action taken by the Master Servicer, the
Servicer and /or the Company, if any, to remedy each such default and (iii) the
current status of each default:
[If applicable, insert "None."]
6. The following is a description of each material inaccuracy known to
us to exist in any Daily Report and/or Monthly Settlement Statement during the
fiscal year of Xxxxxx Micro Inc. ended _____________________.
Capitalized terms used in this certificate have the meanings ascribed to
them in the Pooling and Servicing Agreements.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate
this ___ day of _________________, 20__.
By:
---------------------------------
Name:
Title:
X-0
00
XXXXXXX X TO
AMENDED AND RESTATED SERVICING AGREEMENT
FORM OF AGREED-UPON PROCEDURES
To the Board of Directors of Xxxxxx Funding Inc., the Trustee, the
Agent, the Rating Agencies and the Certificateholders:
Independent Accountant's Report on Applying Agreed-Upon Procedures
[Date]
To the Board of Directors of Xxxxxx Micro Inc. and [list specified users]:
We have performed the procedures enumerated below, which were agreed to
by [list specified users], solely to assist you with respect to Section 4.04 of
the Amended and Restated Servicing Agreement dated as of March 8, 2000 (the
"Agreement") among Xxxxxx Funding Inc., Xxxxxx Micro Inc. (as Servicer), and The
Chase Manhattan Bank (as Trustee). This engagement to apply agreed-upon
procedures was performed in accordance with standards established by the
American Institute of Certified Public Accountants. The sufficiency of the
procedures is solely the responsibility of the specified users of the report.
Consequently, we make no representation regarding the sufficiency of the
procedures described below either for the purpose for which this report has been
requested or for any other purpose.
The procedures listed below were performed for the period _____ to _____
with respect to information on the Monthly Settlement Statements (the
"Statements") and on five Daily Reports that were selected on a random basis
from the above-referenced period (the "Daily Reports"). Capitalized terms used
herein and not defined herein shall have the meanings assigned to such terms in
the Agreement. These procedures were not designed to report immaterial items,
herein defined as differences of less than $_________.
A. We obtained all Statements for the Fiscal Period and performed the
following:
- We recalculated the mathematical accuracy of the statements.
- With respect to ending balances of Receivables, we agreed the amounts
appearing as Principal Amounts to either schedules prepared by the
Servicer or reports generated by the Servicer's systems.
B. For a selection of three Statements (one of which was the Statement for
the last Settlement Period of the Fiscal Period), we performed the
following procedures:
With respect to the amount appearing as Collections on such Statements:
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31
- Obtained a daily listing of Collections for that Settlement Period and
agreed the total on the Statements to a cumulative total of the daily
listing of Collections for that period.
- Agreed a random sample of 10% (but at least 10) of the daily
collections appearing on the daily listing of cash Collections to the
bank statements of Xxxxxx Funding Master Trust (the "Trust").
- Agreed the total amount of cash Collections allocated to the Series
Collection Subaccount of each Outstanding Series during that
Settlement Period to the Trust's bank statements.
- Agreed the total amount of cash Collections allocated to the Series
Principal Collection Sub-subaccount and Series Non-Principal
Collection Sub-subaccount of each Outstanding Series during that
Settlement Period to the Trust's bank statement.
- Agreed the aggregate amount of Recoveries received during that
Settlement Period to the Servicer's system-generated reports.
- For each Obligor listed on the applicable schedules the amount of
whose Receivables is greater than 3.0% of the aggregate amount of all
Receivables, agreed the aggregate amount of Receivables with respect
to such Obligor to the Seller's system-generated reports.
With respect to the amount appearing as Defaulted Receivables:
- Agreed the total Defaulted Receivables to the Servicer's
system-generated reports.
- From a random sample of 10% (but at least 10) of Defaulted Receivables
during the month, agreed the default amount to reports generated by
the Servicer's system.
With respect to the amount appearing as Dilution Adjustment Amounts (as
defined in the Receivables Sale Agreement):
- Agreed the Dilution Adjustment Amount to a schedule prepared by the
Servicer.
With respect to the amounts appearing as Ending Eligible Receivables:
- Recalculated the mathematical accuracy of the Company's schedule of
Eligible Receivables.
- Agreed the amounts appearing in this schedule to a report generated by
the Master Servicer's system.
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With respect to the amounts appearing as Ending Invested Percentages
applicable during that Settlement Period:
- Agreed amounts to schedules provided by the Master Servicer.
C. With respect to each of the five selected Daily Reports, agreed amounts
to the system-generated reports provided by each Originator for such day
for Beginning and Ending Receivable balances, Collections, Dilution
Adjustments, Sales, Adjustments, Net Write-Offs, Defaulted Receivables,
Ineligible Receivables and the Overconcentration Amount.
D. Agreed the calculation used in computing the aggregate Servicing Reserve
Ratio to the Agreement and agreed amounts appearing in the schedule of
Servicing Fee prepared by the Servicer to the Statements.
We were not engaged to, and did not, perform an audit, the objective of
which would be the expression of an opinion on the specified elements, accounts,
or items. Accordingly, we do not express such an opinion. Had we performed
additional procedures, other matters might have come to our attention that would
have been reported to you. This report is intended solely for the use of the
specified users listed above and should not be used by those who have not agreed
to the procedures and taken responsibility for the sufficiency of the procedures
for their purposes.
B-3
