Exhibit 99.1
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FORM OF
EAGLEMARK TRUST [___]
______________________________
AGREEMENT TO DEPOSIT CONTRACTS
Between
EAGLEMARK CUSTOMER FUNDING CORPORATION-[ ]
AS TRUST DEPOSITOR
AND
XXXXXX TRUST AND SAVINGS BANK
As Trustee for Eaglemark Trust [ ]
dated as of
[_____]
______________________________
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AGREEMENT TO DEPOSIT CONTRACTS
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
AGREEMENT TO DEPOSIT CONTRACTS. . . . . . . . . . . . . . . . . . 2
Section 2.01. Deposit of Contracts.. . . . . . . . . . . . . . . 2
Section 2.02. Remedy for Breach. . . . . . . . . . . . . . . . . 2
ARTICLE III
CARRYING CHARGES. . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 3.01. Payment of Carrying Charges. . . . . . . . . . . . 2
Section 3.02. Demand on Collateral Agent . . . . . . . . . . . . 3
ARTICLE IV
MISCELLANEOUS PROVISIONS. . . . . . . . . . . . . . . . . . . . . 3
Section 4.01. Amendments; Waivers. . . . . . . . . . . . . . . . 3
Section 4.02. Severability.. . . . . . . . . . . . . . . . . . . 3
Section 4.03. Nonpetition Covenant.. . . . . . . . . . . . . . . 3
Section 4.04. Notices. . . . . . . . . . . . . . . . . . . . . . 3
Section 4.05. Governing Law. . . . . . . . . . . . . . . . . . . 5
Section 4.06. Limitation of Trustee Responsibility.. . . . . . . 5
Section 4.07. Counterparts . . . . . . . . . . . . . . . . . . . . 5
Section 4.08. Headings.. . . . . . . . . . . . . . . . . . . . . 5
__________________________
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AGREEMENT TO DEPOSIT CONTRACTS dated as of [_____], between EAGLEMARK
CUSTOMER FUNDING CORPORATION-III, as Trust Depositor (the "TRUST DEPOSITOR"),
and XXXXXX TRUST AND SAVINGS BANK, as Trustee (the "TRUSTEE").
WITNESSETH that:
WHEREAS, the Trust Depositor has acquired and, concurrently with the
execution and delivery hereof and pursuant to a Pooling and Servicing Agreement,
dated as of [_____] (the "POOLING AND SERVICING AGREEMENT"), has deposited,
transferred, assigned and set over in trust to the Trustee certain Contract
Assets in partial consideration of the Trust's issuance of the Certificates,
which the Trust Depositor has sold to investor(s); and
WHEREAS, the Trust Depositor has applied certain of the proceeds of such
sale to pay for its purchase of Contract Assets on the Closing Date from the
Seller, but will retain the remainder of the proceeds pending their application
for the purchase of Subsequent Contracts from the Seller; and
WHEREAS, the Trustee for the benefit of the Trust and the
Certificateholders has issued the Certificates to or upon the order of the Trust
Depositor, in consideration of the Trust Depositor's conveyance pursuant to the
Pooling and Servicing Agreement of the Contract Assets and in consideration of
the Trust Depositor's agreement hereunder to purchase and transfer the
Subsequent Contracts and related assets to the Trust, and to pay certain
Carrying Charges (as defined below); and
WHEREAS, the Trust Depositor has agreed pursuant to the Security Agreement
to secure the payment and performance of its obligations hereunder in accordance
with the terms thereof;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the Trust Depositor and the Trustee agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Capitalized terms used in this Agreement (including in the
recitals above) and not specifically defined shall have the meaning given such
terms in the Pooling and Servicing Agreement. Whenever used in this Agreement,
the following words and phrases shall have the following meanings:
"CARRYING CHARGES" means the amount which the Trust Depositor is obligated
to pay to the Trust hereunder in accordance with Section 3.01 below.
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"LIQUIDATED DAMAGES" means the amount which is payable as liquidated
damages to the Trust hereunder in the event of the Trust Depositor's failure to
timely transfer Subsequent Contracts to the Trust in accordance with Section
2.02 below.
ARTICLE II
AGREEMENT TO DEPOSIT CONTRACTS
SECTION 2.01. DEPOSIT OF CONTRACTS. The Trust Depositor hereby undertakes
and agrees, not later than the end of the Funding Period, to acquire from the
Seller by purchase for cash pursuant to one or more Subsequent Purchase
Agreements, and thereupon transfer to the Trust pursuant to one or more
Subsequent Transfer Agreements, Subsequent Contracts in an aggregate Principal
Balance, as of the respective Subsequent Cutoff Dates, equal to $[____] which is
equal to the amount deposited with the Collateral Agent on the Closing Date in
respect of the Pre-Funded Amount. The Trust Depositor shall effect such
purchases from the Seller using the funds on deposit in the Pre-Funding Account
in accordance with the terms of the Security Agreement.
SECTION 2.02. REMEDY FOR BREACH. If the Trust Depositor fails to perform
the obligation described in Section 2.01 in its entirety by the end of the
Funding Period, the Trustee shall take remedial action upon the expiration of
the Funding Period by giving written notice of non-performance to the Trust
Depositor, accompanied by written demand upon the Trust Depositor for the
payment of liquidated damages ("LIQUIDATED DAMAGES") hereunder in respect of
such non-performance. Such Liquidated Damages shall be payable immediately upon
demand. Liquidated Damages shall in all events equal the amount then on deposit
in the Pre-Funding Account, and such written demand shall concurrently be made
upon the Collateral Agent as provided in Section 3.03 of the Security Agreement.
The Trustee shall deposit all amounts received from the Collateral Agent in
respect of Liquidated Damages into the Special Distribution Subaccount
established under the Pooling and Servicing Agreement. The right to payment of
Liquidated Damages from the Pre-Funding Account shall be the sole remedy of the
Trustee for the Trust Depositor's failure to perform its obligations as
described above.
ARTICLE III
CARRYING CHARGES
SECTION 3.01. PAYMENT OF CARRYING CHARGES. The Trust Depositor hereby
agrees to pay to the Trustee for the benefit of the Trust, immediately upon
demand, Carrying Charges to the extent that the Trustee demands payment of such
Carrying Charges in accordance with, and subject to the limitations of, Section
8.03(b) of the Pooling and Servicing Agreement. No such Carrying Charges shall
be payable on or after the second Payment Date succeeding the date on which the
Pre-Funded Amount shall be zero.
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SECTION 3.02. DEMAND ON COLLATERAL AGENT. The Trust Depositor agrees that
the Trustee may effect demand for payment of Carrying Charges by making demand
directly upon the Collateral Agent instead of the Trust Depositor, and consents
to the Collateral Agent's payment of such Carrying Charges from amounts on
deposit in the Interest Reserve Account.
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 4.01. AMENDMENTS; WAIVERS. No amendment, modification, waiver or
supplement to this Agreement or any provision of this Agreement shall in any
event be effective unless the same shall have been made or consented to in
writing by each of the parties hereto and the Rating Agencies shall have
received written notification of such amendment modification, waiver or
supplement.
SECTION 4.02. SEVERABILITY. In the event that any provision of this
Agreement or the application thereof to any party hereto or to any circumstance
or in any jurisdiction governing this Agreement shall, to any extent, be invalid
or unenforceable under any applicable statute, regulation or rule of law, then
such provision shall be deemed inoperative to the extent that it is invalid or
unenforceable and the remainder of this Agreement, and the application of any
such invalid or unenforceable provision to the parties, jurisdictions or
circumstances other than to whom or to which it is held invalid or
unenforceable, shall not be affected thereby nor shall the same affect the
validity or enforceability of any other provision of this Agreement.
SECTION 4.03. NONPETITION COVENANT. Notwithstanding any prior termination
of this Agreement, each of the parties hereto agrees that it shall not, prior to
one year and one day after the Payment Date first occurring following the final
disbursement of funds under the Security Agreement, acquiesce, petition or
otherwise invoke or cause the Trust Depositor to invoke the process of the
United States of America, any State or other political subdivision thereof or
any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government for the purpose of
commencing or sustaining a case by or against the Trust Depositor or the Trust
under a Federal or state bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Trust Depositor or the Trust or all or any part of its
property or assets or ordering the winding up or liquidation of the affairs of
the Trust Depositor or the Trust. The parties agree that damages will be an
inadequate remedy for breach of this covenant and that this covenant may be
specifically enforced.
SECTION 4.04. NOTICES. All notices, demands, certificates, requests and
communications hereunder ("NOTICES") shall be in writing and shall be effective
(a) upon receipt when sent through the U.S. mails, registered or certified mail,
return receipt requested, postage prepaid, with such receipt to be effective the
date of delivery indicated on the return receipt, or (b) one Business Day after
delivery to an overnight courier, or (c) on the date personally delivered to the
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party to which sent, or (d) on the date transmitted by legible telecopier
transmission with a confirmation of receipt, in all cases addressed to the
recipient as follows:
(i) If to the Trust Depositor:
Eaglemark Customer Funding Corporation-[ ]
0000 Xxxxxxxxxx Xxx
Xxxxxx Xxxx, Xxxxxx 00000
Attention: President
Telecopier No.: (000) 000-0000
(ii) If to the Trustee:
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Indenture Trust Administration
Telecopier No.: (000) 000-0000
(iii) If to the Collateral Agent:
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Indenture Trust Administration
Telecopier No.: (000) 000-0000
(iv) If to Moody's:
Moody's Investor's Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx Xxx Xxxx 00000
Attention: ABS Monitoring Department
Telecopier No.: (000) 000-0000
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(v) If to Standard & Poor's:
Standard & Poor's Ratings Group, a
division of The McGraw Hill Companies
00 Xxxxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset-Backed Securities Surveillance
Telecopier No.: (000) 000-0000
A copy of each notice given hereunder to any party hereto shall also be given to
(without duplication), the Trust Depositor, the Trustee and the Collateral
Agent. Each party hereto may, by notice given in accordance herewith to each of
the other parties hereto, designate any further or different address to which
subsequent notices shall be sent.
SECTION 4.05. GOVERNING LAW. This Agreement shall be governed by and
construed, and the obligations, rights and remedies of the parties hereunder
shall be determined, in accordance with, the laws of the State of Illinois.
SECTION 4.06. LIMITATION OF TRUSTEE RESPONSIBILITY. It is expressly
understood and agreed by the parties hereto that (a) Xxxxxx Trust and Savings
Bank is executing this Agreement not in its individual capacity but solely in
its capacity as Trustee of the Trust pursuant to the Pooling and Servicing
Agreement, and (b) in no case whatsoever shall Xxxxxx Trust and Savings Bank be
personally liable on, or for any loss in respect of, any of the statements,
representations, warranties, covenants, agreements or obligations of the Trust
(if any) hereunder, all such liability, if any, being expressly waived by the
parties hereto, except and to the extent such loss is caused by gross
negligence, bad faith or willful misconduct of the Trustee.
SECTION 4.07. COUNTERPARTS. This Agreement may be executed in two or more
counterparts by the parties hereto, and each such counterpart shall be
considered an original and all such counterparts shall constitute one and the
same instrument.
SECTION 4.08. HEADINGS. The headings of sections and paragraphs and the
Table of Contents contained in this Agreement are provided for convenience only.
They form no part of this Agreement and shall not affect its construction or
interpretation.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth on the first page hereof.
EAGLEMARK CUSTOMER FUNDING
CORPORATION-[ ]
By _____________________________
Printed Name:
Title:
XXXXXX TRUST AND SAVINGS BANK, as Trustee
By _____________________________
Printed Name: ____________________
Title: ___________________________
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