EXECUTION COPY
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USS RECEIVABLES COMPANY, LTD.,
as Company,
UNITED STATIONERS SUPPLY CO.,
as Servicer,
and
THE CHASE MANHATTAN BANK,
as Trustee
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SERVICING AGREEMENT
Dated as of April 3, 1998
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2. Other Definitional Provisions . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
ADMINISTRATION AND SERVICING
OF RECEIVABLES
2.1. Appointment of Servicer and Sub-Servicers . . . . . . . . . . . . . 2
2.2. Servicing Procedures. . . . . . . . . . . . . . . . . . . . . . . . 3
2.3. Collections . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.4. [Reserved]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.5. Servicing Compensation. . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
THE SERVICER AND THE SUB-SERVICERS
3.1. Corporate Existence, Compliance with Law. . . . . . . . . . . . . . 8
3.2. Corporate Power; Authorization. . . . . . . . . . . . . . . . . . . 8
3.3. Enforceability. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.4. No Legal Bar. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.5. No Material Litigation. . . . . . . . . . . . . . . . . . . . . . . 9
3.6. No Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.7. Servicing Ability . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.8. Location of Records . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE IV
COVENANTS OF THE SERVICER AND THE SUB-SERVICERS
4.1. Delivery of Required Reports. . . . . . . . . . . . . . . . . . . . 10
4.2. Delivery of Monthly Settlement Statement. . . . . . . . . . . . . . 10
4.3. Delivery of Quarterly Servicer's Certificate. . . . . . . . . . . . 11
4.4. Delivery of Independent Public Accountants' Servicing Reports . . . 11
4.5. No Guarantee or Assumption of Company's Liabilities . . . . . . . . 11
4.6. Extension, Amendment and Adjustment of Receivables, Amendment
of and Compliance with Policies . . . . . . . . . . . . . . . . . . 12
4.7. Protection of Investor Certificateholders' Rights . . . . . . . . . 12
4.8. Security Interest . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.9. Location of Records . . . . . . . . . . . . . . . . . . . . . . . . 13
4.10 Visitation Rights . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.11 Lockbox Agreement; Lockbox Accounts . . . . . . . . . . . . . . . . 13
4.12 Delivery of Financial Statements. . . . . . . . . . . . . . . . . . 14
4.13 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.14 Application of Proceeds . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE V
OTHER MATTERS RELATING TO THE SERVICER AND THE SUB-SERVICERS
5.1. Merger, Consolidation, etc. . . . . . . . . . . . . . . . . . . . . 15
5.2. Indemnification of the Trust and the Trustee. . . . . . . . . . . . 15
5.3. Servicer Not to Resign. . . . . . . . . . . . . . . . . . . . . . . 17
5.4. Access to Certain Documentation and Information Regarding the
Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE VI
SERVICER DEFAULTS
6.1. Servicer Default. . . . . . . . . . . . . . . . . . . . . . . . . . 17
6.2. Trustee to Act; Appointment of Successor. . . . . . . . . . . . . . 21
6.3. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE VII
MISCELLANEOUS PROVISIONS
7.1. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
7.2. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
7.3. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
7.4. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
7.5. Third-Party Beneficiaries . . . . . . . . . . . . . . . . . . . . . 23
7.6. Xxxxxx and Integration. . . . . . . . . . . . . . . . . . . . . . . 23
7.7. Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
7.8. No Set-Off. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
7.9. No Bankruptcy Petition. . . . . . . . . . . . . . . . . . . . . . . 23
7.10 Consequential Damages . . . . . . . . . . . . . . . . . . . . . . . 23
7.11 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
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EXHIBITS
Exhibit A Form of Quarterly Servicer's Certificate
Exhibit B Form of Agreed Upon Procedures
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SERVICING AGREEMENT, dated as of April 3, 1998 among USS RECEIVABLES
COMPANY, LTD., a Cayman Islands limited liability company (the "COMPANY");
United Stationers Supply Co., an Illinois corporation ("USSC"), as servicer (in
such capacity, the "SERVICER"); any other subsidiary of United Stationers Inc.
that may from time to time be added as a party hereto as a Sub-Servicer, a
"SUB-SERVICER"), and The Chase Manhattan Bank, a New York banking corporation,
not in its individual capacity, but solely as trustee (in such capacity, the
"TRUSTEE").
W I T N E S S E T H:
WHEREAS, the Company and the Sellers (as defined in the Pooling
Agreement referred to below) have entered into a Receivables Sale Agreement,
dated as of the date hereof (as amended, supplemented or otherwise modified from
time to time, the "RECEIVABLES SALE AGREEMENT");
WHEREAS, pursuant to the Receivables Sale Agreement, the Sellers sell
to the Company, and the Company purchases from the Sellers, all of the Sellers'
right, title and interest in, to and under the Receivables (as defined in the
Pooling Agreement referred to below) now existing or hereafter created and in
the rights of the Seller in, to and under all Related Property related thereto;
WHEREAS, the Company in turn has transferred the Receivables now
existing or hereafter created and the rights of the Company in, to and under all
Related Property related thereto to a master trust pursuant to a Pooling
Agreement, dated as of the date hereof (as amended, supplemented or otherwise
modified from time to time, the "POOLING AGREEMENT"), among the Company, the
Servicer and the Trustee; and
WHEREAS, the parties hereto wish to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1. DEFINITIONS. Unless otherwise defined herein, capitalized terms
which are used herein shall have the meanings assigned to such terms in Section
1.1 of the Pooling Agreement, dated as of the date hereof, among the Company,
the Servicer and the Trustee, and each Supplement thereto, including, without
limitation, the Series 1998-1 Supplement.
1.2. OTHER DEFINITIONAL PROVISIONS. (a) All terms defined herein or
in the Pooling Agreement shall have their defined meanings when used in any
certificate or other document made or delivered pursuant hereto unless otherwise
defined therein.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in Section
1.1 of the Pooling Agreement, and accounting terms partly defined in Section 1.1
of the Pooling Agreement 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 in Section 1.1 of the Agreement 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 or the Pooling
Agreement to the principal amount of Receivables, such reference shall, unless
explicitly stated otherwise, be deemed a reference to the Principal Amount (as
such term is defined in Section 1.1 of the Pooling Agreement) of such
Receivables.
(f) Any reference herein or in any other Transaction Document to a
provision of the Internal Revenue Code or ERISA shall be deemed a reference to
any successor provision thereto.
(g) All references herein to any agreement or instrument shall be
deemed references to such agreement or instrument as amended, supplemented or
otherwise modified from time to time unless there are any restrictions herein on
the amendment, supplementation or modification of such agreement or instrument.
ARTICLE II
ADMINISTRATION AND SERVICING
OF RECEIVABLES
2.1. APPOINTMENT OF SERVICER AND SUB-SERVICERS. USSC hereby agrees
to act as the Servicer under the Pooling Agreement and the Servicing Agreement,
the Company and the Trustee hereby consent to USSC acting as the Servicer, and
the Investor Certificateholders by their acceptance of the Certificates consent
to USSC acting as the Servicer. In addition, USSC hereby agrees to act as, and
the Company and the Trustee hereby consent to the appointment of USSC as, and
the Investor Certificateholders by their acceptance of the Certificates consent
to the appointment of USSC as, such parties' agent to coordinate the servicing
of the Receivables by the Sub-Servicers. In such agency capacities, the
Servicer will have responsibility for the management of the servicing and
receipt of Collections in respect of the Receivables and will have the authority
to make any
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management decisions relating to the Receivables to the extent such authority is
necessary or desirable and not inconsistent with the authority granted to the
Servicer under any Pooling and Servicing Agreement. The Company, the Trustee
and the Investor Certificateholders shall treat USSC as the Servicer and may
conclusively rely on the instructions, notices and reports of USSC as Servicer
for so long as USSC is the Servicer. In addition, (x) each Sub-Servicer agrees
to act as a Sub-Servicer under each Pooling Agreement and Servicing Agreement,
(y) the Company and the Trustee hereby consent to such Sub-Servicer's acting as
a Sub-Servicer and being appointed their agent to service and administer the
Receivables originated by it, and (z) the Investor Certificateholders by their
acceptance of the Certificates consent to such Sub-Servicer's acting as a
Sub-Servicer and being appointed their agent to service and administer the
Receivables originated by it. Each Sub-Servicer will be responsible, as
directed by the Servicer, for the servicing and administration of the
Receivables originated by such Sub-Servicer.
2.2. SERVICING PROCEDURES. (a) The Servicer shall, subject to the
directions, if any, of the Company, manage the servicing and administration of
the Receivables, the collection of payments due under the Receivables and the
charging off of any Receivables as uncollectible, all in accordance with all
Requirements of Law, the Policies and all the terms and provisions of the
Pooling and Servicing Agreements. The 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 which it may deem necessary or desirable, but at all times
subject to the terms of this Agreement and the other Transaction Documents. The
Servicer shall exercise the same care and apply the same policies with respect
to the collection of the Receivables that it would exercise and apply if it
owned such Receivables, all with reasonable care and diligence and otherwise in
accordance with the foregoing requirements. Without limiting the generality of
the foregoing and subject to Section 6.1, the Servicer or its designee is hereby
authorized and empowered (i) to give direction to the Trustee with respect to
withdrawals from, and payments to, the Collection Account and/or the Collection
Concentration Account in accordance with the Required Reports and as otherwise
specified in the Pooling and Servicing Agreements, (ii) to execute and deliver,
on behalf of the Trust for the benefit of the Investor Certificateholders, any
and all instruments of satisfaction or cancellation, or of partial or full
release or discharge, and all other comparable instruments, with respect to the
Receivables and, after the delinquency of any Receivable and to the extent
permitted under and in compliance with applicable Requirements of Law, to
commence enforcement proceedings with respect to such Receivables and (iii) to
make any filings, refilings, reports, notices, applications and registrations
with, and to seek any consents or authorizations from, the SEC 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) Each Servicing Party will, at its cost and expense and as agent
for the Company, the Trust and the Investor Certificateholders, use its best
efforts to collect, consistent with its past practices and in accordance with
all Requirements of Law and Policies, as and when the same becomes due, the
amount owing on each Receivable with respect to which it is the Servicing Party.
No Servicing Party will make any material changes that deviate from the Policies
in its administrative, servicing and collection systems except (i) as expressly
permitted by the terms of any Pooling and Servicing Agreement and
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(ii) after giving written notice to the Trustee and the Rating Agencies of any
such material change and receiving such parties' written consent thereto. In
the event of default under any Receivable, the responsible Servicing Party shall
have the power and authority, on behalf of the Company and the Trust for the
benefit of the Investor Certificateholders, to take such action in respect of
such Receivable as such Servicing Party may deem advisable. In the enforcement
or collection of any Receivable, the relevant Servicing Party shall be entitled
to sue thereon (i) in 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 any Servicing Party be entitled to take any action
which would make the Company, the Trustee or the Investor Certificateholders a
party to any litigation without the express prior written consent of such
Person.
(c) Without limiting the generality of the foregoing and subject to
Section 6.2, each Servicing Party 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. Such Servicing Party shall notify the
Company, the Trustee and any Rating Agency of the appointment of a designee as
provided for herein; PROVIDED, HOWEVER, that, in the event that such delegation
would reasonably be expected to adversely affect the ability of such Trustee,
Servicing Party or the Servicer to perform its obligations in the manner
contemplated by any Pooling and Servicing Agreement, or otherwise to have a
material adverse effect upon the Receivables taken as a whole, such Servicing
Party shall give prior written notice to the Company, the Trustee, each Agent
and the Rating Agencies of any such delegation, and prior to such delegation's
being effective, such Servicing Party and the Servicer shall have received
notice that the Rating Agency Condition shall be satisfied after giving effect
to such delegation and shall have obtained the consent of the Company and each
Agent to such delegation. No delegation of duties by a Servicing Party
permitted hereunder will relieve such Servicing Party or the Servicer of its
liability and responsibility with respect to such duties. Any agreement for the
delegation of such duties shall be deemed to be between the parties to such
agreement alone and the Trustee and holders of Investor Certificates shall not
be deemed parties thereto and shall have no obligations, duties or liabilities
with respect to any party to whom such duties are delegated.
(d) Except as provided in any Pooling and Servicing Agreement,
neither any Servicing Party nor any Successor Servicer shall be obligated to use
servicing procedures, offices, employees or accounts for servicing the
Receivables transferred to the Company and, subsequently, to the Trust, which
are separate from the procedures, offices, employees and accounts used by such
Servicing Party or such Successor Servicer, as the case may be, in connection
with servicing other receivables.
(e) Each Servicing Party shall maintain reasonable and customary
fidelity bond coverage insuring against losses through wrongdoing of its
officers and employees who are involved in the servicing of the Receivables,
including, without limitation, depositor's forgery.
(f) Each Servicing Party shall comply with and perform its servicing
obligations with respect to the Receivables in accordance with the contracts, if
any, relating
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to the Receivables and the Policies, except insofar as any failure to so comply
or perform would not reasonably be expected to have a Material Adverse Effect
with respect to the Servicer.
(g) No Servicing Party shall take any action to cause any Receivable
to be evidenced by any "instrument" (other than an instrument which constitutes
or together with a security agreement constitutes "chattel paper" (each as
defined in the UCC as in effect in any state in which the Company's or the
applicable Seller's chief executive office or books and records relating to such
Receivable are located)) or any title in bearer form except in connection with
its enforcement or collection of a Defaulted Receivable, in which event such
Servicing Party shall deliver such instrument to the Trustee as soon as
reasonably practicable but in no event more than 5 days after the execution
thereof. Each Servicing Party shall hold any chattel paper evidencing a
Receivable as custodian for the Trustee.
2.3. COLLECTIONS. (a) As of the Initial Closing Date, the
Sub-Servicers, or the Servicer on their behalf, shall have (i) established and
shall maintain (or shall cause to be established and maintained), in the name of
the Trustee and for the benefit of the Investor Certificateholders, a Lockbox, a
Lockbox Account and a Collection Account, and (ii) instructed all Obligors to
make all payments in respect of the Receivables to a Lockbox (except to the
extent that any Servicing Party, as of such date, in the normal course of its
business and consistent with past practices has permitted Obligors to remit
payments to a Collector), and such instructions thereafter shall continue to be
in full force and effect. Each Servicing Party is hereby authorized to collect
payments in accordance with the foregoing sentence. Any payments collected by a
Collector shall be deposited into a Lockbox Account within one Business Day
following receipt thereof; PROVIDED that on any business day all Collectors may
hold in the aggregate up to $150,000, provided that in all events such payments
shall be deposited within three business days following receipt thereof. All
Collections received in a Lockbox shall, within one Business Day of receipt
thereof, be deposited in a Lockbox Account. All immediately available funds
deposited in a Lockbox Account shall be transferred by the relevant Lockbox
Processor within one Business Day of receipt thereof to the Collection
Concentration Account or, in the event of an Potential Early Amortization Event
or Early Amortization Event, to the Collection Account. Except as permitted in
the first sentence of this subsection 2.3(a), in the event that any payments in
respect of the Receivables are made directly to any Servicing Party (including,
without limitation, any employees thereof or independent contractors employed
thereby), such Servicing Party shall, within one Business Day of receipt
thereof, forward such amounts to a Lockbox (including by depositing instruments
evidencing any such amounts into any such account) and, prior to forwarding such
amounts, such Servicing Party shall hold such payments in trust as custodian for
the Trustee. Each of the Company and each Servicing Party 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.
(b) Each Lockbox Agreement shall provide that the Lockbox Processor
thereunder is irrevocably directed, and such Lockbox Processor irrevocably
agrees, to (i) deposit funds received in the Lockbox directly into the Lockbox
Account and (ii) transfer immediately available funds on deposit in the Lockbox
Account within one Business Day of
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receipt thereof to the Trustee for deposit in the Collection Concentration
Account or, in the event of an Potential Early Amortization Event or Early
Amortization Event, to the Collection Account. Each Lockbox Agreement shall be
substantially in the form of Exhibit A to the Pooling Agreement or in such form
as the Lockbox Processor party thereto employs in the ordinary course of its
business for transactions of a type similar to the one contemplated by this
Agreement, and which form shall be reasonably acceptable to the Trustee. A new
Lockbox Account may be designated from time to time by the Company and the
Servicer; PROVIDED that the Lockbox Processor chosen to maintain such new
Lockbox Account shall have entered into a Lockbox Agreement with the Company,
the Servicer and the Trustee prior to any funds being deposited into such
Lockbox Account. The Company or the Servicer shall notify each Rating Agency of
the designation of a new Lockbox Account. Prior to any resignation of the
Lockbox Processor or termination of the Lockbox Processor by the Company or the
Trustee, the Servicer hereby agrees to obtain a replacement Lockbox Processor,
the unsecured and uncollateralized obligations of which (or of its holding
company parent) are rated in one of the three highest long-term or short-term
rating categories by each Rating Agency rating such replacement Lockbox
Processor, to serve under a Lockbox Agreement which is reasonably acceptable to
the Trustee.
(c) The Trustee shall administer amounts on deposit in the Collection
Account, and the Servicer, on behalf of the Trust, shall administer amounts on
deposit in the Lockbox Accounts, in each case in accordance with the terms of
the Pooling and Servicing Agreements. Each of the Company and each Servicing
Party 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, (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 Servicer's
right to direct the application of such amounts as provided by the terms of any
Pooling and Servicing Agreement), (iii) with respect to the Eligible
Investments, the Trustee shall be entitled to exercise the rights that comprise
such financial assets and to exercise the ordinary rights of an entitlement
holder, and (iv) the securities account into which Eligible Investments may be
held or credited shall be an account of the Trustee and not the Company or the
Servicer, but if, despite such intent, the securities account is determined to
be an account of the Company or the Servicer than the securities intermediary
shall comply with entitlement orders originated by the Trustee without further
consent by the Company or the Servicer.
(d) As soon as practicable but in any event not later than the
Business Day following the date that the Servicer or a Sub-Servicer determines,
identifies and certifies in writing to the Trustee that any of the collected
funds received in any of the Lockboxes, the Lockbox Accounts, the Collection
Concentration Account or the Collection Account do not constitute Collections on
account of the Receivables, such monies which do not constitute such Collections
shall be remitted to the applicable Seller to the extent such determination and
identification is reasonably satisfactory to the Trustee.
(e) All collections received or deposited in the Collection Account
as "Collections" shall be deemed, for purposes of the Transaction Documents, to
have been received or deposited as of the Business Day Received (as defined in
the immediately succeeding sentence). As used herein, the term "BUSINESS DAY
RECEIVED" shall mean (i) if
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funds are deposited in the Collection Account by 3:00 p.m., New York City time,
such day of deposit and (ii) if funds are deposited in the Collection Account
after 3:00 p.m., New York City time, the Business Day next following such day of
deposit.
(f) 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.
(g) The Servicer or Sub-Servicer, following notification that
collections of any receivable or other intangible owed to any Seller which is
not a Receivable have been deposited in error into any Lockbox Account, shall
segregate all such collections or, if such collections have been deposited into
the Collection Concentration Account or the Collection Account, shall segregate
such collections for transfer to such Seller. Promptly after such misapplied
collections have been identified in writing to the Trustee, the Trustee shall
transfer and turn over all such collections to such Seller.
2.4. [Reserved]
2.5. SERVICING COMPENSATION. (a) As full compensation for its
servicing activities hereunder and reimbursement for its expenses as set forth
in subsection 2.5(b), the Servicer shall be entitled to receive on each
Distribution Date for the preceding Settlement Period prior to the termination
of the Trust pursuant to Section 9.1 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 the Settlement Period
immediately preceding such Settlement Period (or, if such later Settlement
Period is the initial Settlement Period, the aggregate Principal Amount of the
Receivables at February 28, 1998) and (C) the number of days in such Settlement
Period, DIVIDED BY (ii) 360 (or, with respect to a particular Outstanding
Series, as shall be provided in the related Supplement). 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) a
fraction (expressed as a percentage) (A) the numerator of which is the daily
average Invested Amount for such Settlement Period with respect to such Series
and (B) the denominator of which is the daily average Aggregate Invested Amount
for such Settlement Period (with respect to any such Series, the "MONTHLY
SERVICING FEE"); PROVIDED, HOWEVER, that if on any day USSC or any Affiliate
thereof is acting as the Servicer and an Early Amortization Event has occurred
and is continuing with respect to any Outstanding Series, payment of the Monthly
Servicing Fee with respect to such Series shall be deferred until all amounts
due under the Investor Certificates of such Series have been paid in full. The
Servicing Fee shall be payable to the 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 Servicer, and the Servicer hereby
agrees, to pay amounts due to the Trustee pursuant to Section 8.5 of the Pooling
Agreement and the reasonable fees and disbursements of independent accountants
and counsel, including the Trustee's reasonable out-of-pocket expenses relating
to the Trustee's inspections, if any, of
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the Servicer's servicing facility in connection with the Trustee's role as
potential Successor Servicer, which inspections shall occur not more frequently
than once per calendar year, and all other out-of-pocket fees and expenses of
the Trust (including reasonable counsel fees, if any) not expressly stated
herein to be for the account of the Investor Certificateholders; PROVIDED,
HOWEVER, that in no event shall the Servicer be liable for any federal, state or
local income or franchise tax, or any interest or penalties with respect
thereto, assessed on the Trust, the Trustee or the Investor Certificateholders
except in accordance with Section 5.2 and as otherwise expressly provided
herein. Notwithstanding anything to the contrary herein or in any other Pooling
and Servicing Agreement, in the event that the Servicer fails to pay any amount
due to the Trustee pursuant to Section 8.5 of the Pooling Agreement, or
following the commencement and continuance of an Early Amortization Period, the
Trustee shall be entitled, in addition to any other rights it may have under law
and under the Pooling Agreement, to receive directly such amounts owing to it
under the Pooling and Servicing Agreements from, and in the same order of
priority as, the Servicing Fee before payment to the Servicer of any portion
thereof, PROVIDED, that in the event the Servicer shall have elected to waive
its rights to payment of the Servicing Fee or the Servicing Fee is deferred
pursuant to subsection 2.5(a), the Trustee shall nonetheless be entitled to
receive such amounts from payments which would ordinarily be applied to the
payment of the Servicing Fee, in the same order of priority as though such
Servicing Fee were payable. The Servicer shall be required to pay expenses for
its own account, and shall not be entitled to any payment therefor other than
the Servicing Fee. Nothing contained herein shall be construed to limit the
obligation of the Servicer or the Company to pay any amounts due the Trustee
pursuant to Section 8.5 of the Pooling Agreement or pursuant to the terms of any
applicable Supplement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
THE SERVICER AND THE SUB-SERVICERS
As of (a) the Initial Closing Date and (b) each Issuance Date, each
Servicing Party hereby makes the following representations and warranties to
each of the other parties hereto:
3.1. CORPORATE EXISTENCE, COMPLIANCE WITH LAW. Such Servicing Party
(i) is a corporation duly incorporated, validly existing and in good standing
under the laws of the jurisdiction of its organization, (ii) has all requisite
corporate power and authority, and all legal right, to own and operate its
properties, to lease the properties it operates as lessee and to conduct its
business as now conducted, (iii) is duly qualified as a foreign corporation to
do business and in good standing (or is exempt from such requirements) under the
laws of each jurisdiction in which the ownership or its assets or the conduct of
its business, including without limitation the servicing of Receivables as
required by this Agreement requires such qualification, or in which the failure
to so qualify would reasonably be expected to have a Material Adverse Effect,
and (iv) is in compliance with all Requirements of Law.
3.2. CORPORATE POWER; AUTHORIZATION. Such Servicing Party has the
corporate power and authority, and the legal right, to execute, deliver and
perform this
8
Agreement and the other Transaction Documents to which it is a party and has
taken all necessary corporate action to authorize the execution, delivery and
performance of this Agreement and the other Transaction Documents to which it is
a party. No consent or authorization of, filing with, notice to or other act by
or in respect of, any Governmental Authority or any other Person is required in
connection with the execution, delivery, performance, validity or enforceability
of this Agreement and the other Transaction Documents to which it is a party by
or against such Servicing Party other than (i) those consents which have duly
been obtained or made and are in full force and effect on the Initial Closing
Date or the relevant Issuance Date, as the case may be, (ii) any filings of
UCC-1 financing statements necessary to perfect the Company's or the Trust's
interest in the Receivables and the Related Property, (iii) those that may be
required under state securities or "blue sky" laws in connection with the
offering or sale of Certificates and (iv) any such consent, authorization,
filing, notice or other act, the absence of which would not be reasonably likely
to have a Material Adverse Effect with respect to such Servicing Party or the
Servicer. This Agreement and each other Transaction Document to which it is a
party have been duly executed and delivered on behalf of such Servicing Party.
3.3. ENFORCEABILITY. This Agreement and each other Transaction
Document to which it is a party constitute the legal, valid and binding
obligation of such Servicing Party enforceable against it in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other similar
laws now or hereafter in effect affecting the enforcement of creditors' rights
generally and except as such enforceability may be limited by general principles
of equity (whether considered in a proceeding at law or in equity).
3.4. NO LEGAL BAR. The execution, delivery and performance of this
Agreement and each other Transaction Document to which it is a party will not
violate any Requirement of Law or Contractual Obligation of such Servicing Party
(other than any violation which would not be reasonably likely to have a
Material Adverse Effect with respect to such Servicing Party or the Servicer),
and will not result in, or require, the creation or imposition of any Lien
(other than Permitted Liens) on any of its properties or revenues pursuant to
any such Requirement of Law or Contractual Obligation.
3.5. NO MATERIAL LITIGATION. (a) There are no actions, suits,
investigations or proceedings at law or in equity or by or before any
arbitrator, court or Governmental Authority now pending or, to the knowledge of
such Servicing Party, threatened against or affecting it or any of its
properties, revenues or rights which (i) involve this Agreement, any of the
other Transaction Documents to which such Servicing Party is a party or any of
the transactions contemplated hereby or thereby or (ii) if adversely determined,
could individually or in the aggregate, result in a Material Adverse Effect with
respect to such Servicing Party or the Servicer.
(b) Such Servicing Party is not in default under or with respect to
any Requirement of Law where such default would be reasonably likely to have a
Material Adverse Effect with respect to such Servicing Party or the Servicer.
9
3.6. NO DEFAULT. Such Servicing Party is not in default under or
with respect to any of its Contractual Obligations in any respect which would be
reasonably likely to have a Material Adverse Effect with respect to such
Servicing Party or the Servicer. No Servicer Default or Potential Servicer
Default has occurred and is continuing.
3.7. SERVICING ABILITY. As of the related Issuance Date, there has
not been since the date of this Agreement any material adverse change in the
ability of such Servicing Party to perform its obligations as Servicer under any
Transaction Document.
3.8. LOCATION OF RECORDS. The offices at which such Servicing Party
keeps its records concerning the Receivables serviced by it either (i) are
located at the addresses set forth on Schedule II to the Receivables Sale
Agreement or (ii) have been notified to the Company and the Trustee in
accordance with the provisions of Section 4.9. Such Servicing Party's place of
business or chief executive office if such servicing party has more than one
place of business is located at one of such locations.
ARTICLE IV
COVENANTS OF THE SERVICER AND THE SUB-SERVICERS
4.1. DELIVERY OF REQUIRED REPORTS. Unless otherwise specified in the
Supplement with respect to any Series, for each Business Day or other specified
period (a "REPORTED PERIOD") and with respect to each Outstanding Series, the
Servicer shall submit to the Trustee and the relevant Agent, if any, no later
than 1:00 p.m., New York City time, on the second Business Day following the end
of each Reported Period, a written report substantially in the form attached to
the related Supplement of each such Series (the "REQUIRED REPORT") setting forth
for the Reported Period total Collections, Receivables and Eligible Receivables
created, and such other information as the Trustee or such Agent may reasonably
request. The Required Report may be delivered in an electronic format mutually
agreed upon by the Servicer and the Trustee, or pending such agreement, by
facsimile. By delivery of a Required Report, the Servicer shall be deemed to
have made a representation and warranty that all information set forth therein
is true and correct.
4.2. DELIVERY OF MONTHLY SETTLEMENT STATEMENT. Unless otherwise
specified in the Supplement with respect to any Outstanding Series, the Servicer
hereby covenants and agrees that it shall deliver to the Trustee, each Agent and
each Rating Agency by 11:00 a.m., New York City time, on each Settlement Report
Date, a certificate of a Responsible Officer of the Servicer substantially in
the form attached to the related Supplement of each such 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 Servicer and the Trustee, subject to satisfaction of the
Rating Agency Condition (unless a Responsible Officer of the Servicer certifies
that such changes could not reasonably be expected to have a materially adverse
effect on the interests of the Trust or the Investor Certificateholders for the
applicable Series under the Transaction Documents). The delivery of such
certificate shall constitute a certification by the Servicer that, to the best
10
knowledge of such Responsible Officer of the Servicer, the information contained
therein is true and correct in all material respects and the Servicer has
performed in all material respects all of its obligations under each Transaction
Document throughout such preceding Settlement Period (or, if there has been a
material default in the performance of any such obligation, specifying each such
default known to such officer and the nature and status thereof). A copy of
each Monthly Settlement Statement may be obtained by any Investor
Certificateholder upon a request in writing to the Trustee addressed to the
Corporate Trust Office.
4.3. DELIVERY OF QUARTERLY SERVICER'S CERTIFICATE. The Servicer
agrees that it shall deliver to the Trustee, each Agent and each Rating Agency,
a certificate of a Responsible Officer of the Servicer, substantially in the
form of Exhibit A hereto, stating that:
(a) a review of the activities of each of the Company and the
Servicer during the preceding calendar quarter (or in the case of the first
such certificate issued after the Initial Closing Date, during the period
from the Initial Closing Date) and of its performance under each
Transaction Document was made under the supervision of such Responsible
Officer; and
(b) to the best of such Responsible Officer's knowledge, based on
such review, (i) each of the Company and the Servicer has performed in all
material respects its obligations under each Transaction Document
throughout the period covered by such certificate (or, if there has been a
material default in the performance of any such obligation, specifying each
such default known to such Responsible Officer and the nature and status
thereof) and (ii) each Required Report and Monthly Settlement Statement
delivered during such period was accurate and correct in all material
respects, except as specified in such certificate.
Such certificate shall be delivered by the Servicer within 45 days after the end
of each calendar quarter commencing with the quarter ending on or about June 30,
1998. A copy of such certificate may be obtained by any Investor
Certificateholder by a request in writing to the Trustee addressed to the
Corporate Trust Office.
4.4. DELIVERY OF INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING REPORTS.
The Servicer shall cause Independent Public Accountants to furnish to the
Company, the Trustee and each Rating Agency within 90 days following the last
day of each fiscal year of the Servicer (commencing with the fiscal year ending
on or about December 31, 1998) a letter to the effect that such firm has
performed certain agreed upon procedures (as set forth in Exhibit B hereto)
relating to the Servicer and each Sub-Servicer with respect to the Receivables
and each such Person's performance hereunder during the preceding fiscal year
and describing such firm's findings with respect to such procedures. A copy of
such report may be obtained by any Investor Certificateholder upon a request in
writing to the Trustee addressed to the Corporate Trust Office.
4.5. NO GUARANTEE OR ASSUMPTION OF COMPANY'S LIABILITIES. Each
Servicing Party hereby covenants and agrees that it will not guarantee or assume
the obligations or
11
liabilities of the Company under the Pooling and Servicing Agreements, or any
other obligations or liabilities of the Company, in an aggregate amount
exceeding $25,000 at any one time outstanding, it being understood that a
shareholder's capital contribution is not such a guarantee or assumption.
4.6. EXTENSION, AMENDMENT AND ADJUSTMENT OF RECEIVABLES, AMENDMENT OF
AND COMPLIANCE WITH POLICIES. (a) Each Servicing Party hereby covenants and
agrees with 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
Receivable, or otherwise take any action which is intended to cause or permit an
Eligible Receivable to cease to be an Eligible Receivable, except in any such
case (i) in accordance with the terms of the Policies, (ii) as required by any
Requirement of Law or (iii) in the case of any Dilution Adjustments (whether or
not permitted by any other clause of this sentence), upon the payment by or on
behalf of the applicable Seller of a Seller Adjustment Payment pursuant to
Section 2.05 of the Receivables Sale Agreement. Any Dilution Adjustment
authorized to be made 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 used to calculate
the Aggregate Receivables Amount. If, as a result of such a reduction, the
Aggregate Receivables Amount is less than the Aggregate Target Receivables
Amount, the Company (in addition to the obligation of the applicable 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 such Series PRO RATA share of the amount
(the "CASH DILUTION PAYMENT") by which the Aggregate Target Receivables Amount
exceeds the Aggregate Receivables Amount.
(b) No Servicing Party shall make or permit to be made any change or
modification to the Policies in any material respect, except (i) if such changes
or modifications are necessary under any Requirement of Law, (ii) if such
changes or modifications would not reasonably be expected to have a Material
Adverse Effect with respect to the Servicer or (iii) if the Rating Agency
Condition is satisfied with respect thereto. The Servicer shall provide notice
to the Company, the Trustee and each Rating Agency of any modification of the
Policies.
(c) Each Servicing Party shall perform its obligations in accordance
with and comply in all material respects with the Policies.
4.7. PROTECTION OF INVESTOR CERTIFICATEHOLDERS' RIGHTS. Each
Servicing Party hereby agrees with the Trustee that it shall take no action, nor
intentionally omit to take any action, which could reasonably be expected to
materially adversely impair the rights, remedies or interests of the Investor
Certificateholders under the Transaction Documents in respect of the
Receivables, nor shall it reschedule, revise or defer payments due on any
Receivable except in accordance with the Policies or Section 4.6 above.
4.8. SECURITY INTEREST. Each Servicing Party hereby covenants and
agrees that it shall not sell, pledge, assign or transfer to any other Person,
or grant, create, incur,
12
assume or suffer to exist any Lien on, any Receivable sold and assigned to the
Company or the Trust, whether now existing or hereafter created, or any interest
therein, and such Servicing Party shall defend the right, title and interest of
the Company and the Trust in, to and under any Receivable sold and assigned to
the Company or the Trust, whether now existing or hereafter created, against all
claims of third parties claiming through or under such Servicing Party or the
Company; PROVIDED, HOWEVER, that nothing in this Section 4.8 shall prevent or be
deemed to prohibit any Servicing Party from suffering to exist upon any of the
Receivables any Permitted Liens.
4.9. LOCATION OF RECORDS. Each Servicing Party 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 the Receivables outside of
the location specified in respect thereof on Schedule II to the Receivables Sale
Agreement, in any such case, without giving 15 days' prior written notice to the
Company, the Trustee and the Rating Agencies and (b) shall promptly take all
actions reasonably required (including but not limited to all filings and other
acts necessary or reasonably requested by the Trustee as being advisable under
the UCC) in order to continue the valid and enforceable interest of the Trust in
all Receivables now owned or hereafter created.
4.10. VISITATION RIGHTS. (a) Each Servicing Party shall, at any
reasonable time during normal business hours on any Business Day and from time
to time, upon reasonable prior notice, according to such Servicing Party's
normal security and confidentiality requirements, permit (i) the Company, the
Trustee, any Agent or any of their respective agents or representatives (A) to
examine and make copies of and abstracts from the records, books of account and
documents (including computer tapes and disks) of such Servicing Party relating
to the Receivables and (B) following the termination of the appointment of such
Servicing Party, to be present at the offices and properties of such Servicing
Party to administer and control the collection of the Receivables and (ii) the
Company, the Trustee, any Agent or any of their respective agents or
representatives to visit the properties of such Servicing Party to discuss the
affairs, finances and accounts of such Servicing Party relating to the
Receivables or such Servicing Party's performance hereunder or under any of the
other Transaction Documents to which it is a party with any of its officers or
directors and with its independent certified public accountants; PROVIDED that
the Company, the Trustee or such Agent, as the case may be, shall notify such
Servicing Party prior to any contact with such accountants and shall give such
Servicing Party the opportunity to participate in such discussions.
(b) Each Servicing Party 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 any Pooling and Servicing
Agreement.
4.11. LOCKBOX AGREEMENT; LOCKBOX ACCOUNTS. The Servicer shall (a)
maintain, and keep in full force and effect, each Lockbox Agreement, except to
the extent otherwise permitted under the terms of the Transaction Documents, and
(b) ensure that each related Lockbox Account shall be free and clear of, and
defend each such Lockbox Account against, any writ, order, stay, judgment,
warrant of attachment or execution or similar process.
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4.12. DELIVERY OF FINANCIAL STATEMENTS. The Servicer shall furnish to
the Trustee and the Rating Agencies:
(a) as soon as available, but in any event not later than 125 days
after the end of each fiscal year of United Stationers Inc., and so long as USSC
is the Servicer, a copy of the audited consolidated balance sheets of United
Stationers Inc. as at the end of such fiscal year and the related consolidated
statements of operations, shareholders' equity and cash flows of United
Stationers Inc. for such fiscal year, setting forth in each case in comparative
form the figures for the previous fiscal year (except, in the case of the
audited financial statements for the 1997 fiscal year, such financial statements
will include a footnote describing revenues and operating income for the
preceding fiscal year (which shall reflect any significant acquisitions
occurring during such year)), and accompanied by the opinion of Xxxxx & Young
LLP or another nationally-recognized independent public accounting firm, which
report shall state that such consolidated financial statements present fairly
the financial position and results of operations and changes in cash flow for
the periods indicated in conformity with GAAP applied on a basis consistent with
prior years. Such opinion shall not be qualified or limited because of a
restricted or limited examination by such accountant of any material portion of
United Stationers Inc. or any of its Subsidiaries' records; and
(b) as soon as practicable, but in any event not later than 50 days
after the end of each fiscal quarter, a copy of the unaudited consolidated
balance sheets of United Stationers Inc. and the Sellers as at the end of such
quarter and the related consolidated statements of operations, shareholders'
equity and cash flows of United Stationers Inc. and the Sellers for such fiscal
quarter, and for the elapsed portion of the fiscal year then ended, certified by
an appropriate Responsible Officer as being complete and correct in all material
respects and fairly presenting the financial position and the results of
operations of United Stationers Inc. and the Sellers, setting forth in each case
in comparative form the figures as of and for the corresponding dates and
periods in the previous fiscal year.
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
4.13. NOTICES. The Servicer shall furnish to the Company, the Trustee
and each Rating Agency, promptly upon a Responsible Officer of the Servicer
obtaining knowledge of the occurrence of any Purchase Termination Event,
Potential Purchase Termination Event (each as defined in the Receivables Sale
Agreement), Early Amortization Event, Potential Early Amortization Event,
Servicer Default or Potential Servicer Default, written notice thereof.
4.14. APPLICATION OF PROCEEDS. So long as Section 2.10 of that
certain Second Amended and Restated Credit Agreement dated as of April 3, 1998
(the "CREDIT AGREEMENT"), by and among USSC, as borrower, United Stationers
Inc., as guarantor, The Chase Manhattan Bank, as administrative agent, and Chase
Securities Inc., as arranger, shall be in effect and shall not have been waived
in writing pursuant to the applicable waiver provisions of such Credit
Agreement, and so long as Section 1016 of that certain Indenture
14
dated as of May 3, 1995 (the "INDENTURE"), among USSC, United Stationers Inc.,
and The Bank of New York, as trustee, shall be in effect and shall not have been
waived in writing pursuant to the applicable waiver provisions of such
Indenture, the Servicer shall comply in all respects with the requirements of
such Section 2.10 and Section 1016.
ARTICLE V
OTHER MATTERS RELATING TO THE SERVICER AND THE SUB-SERVICERS
5.1. MERGER, CONSOLIDATION, ETC. No Servicing Party shall
consolidate with or merge into any other corporation or convey or transfer its
properties and assets substantially as an entirety to any Person (other than the
Servicer or another Servicing Party), unless:
(a) the corporation formed by such consolidation or into which such
Servicing Party is merged or the Person which acquires by conveyance or transfer
the properties and assets of such Servicing Party substantially as an entirety
shall be a corporation organized and existing under the laws of the United
States of America or any State thereof or the District of Columbia, and, if such
Servicing Party is not the surviving entity, such corporation shall assume,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto (except as may be required in the context of an
acquisition by conveyance or transfer of the properties and assets of such
Servicing Party substantially as an entirety to such other Person), the
performance of every covenant and obligation of such Servicing Party hereunder;
and
(b) such Servicing Party has delivered to the Trustee an officer's
certificate executed by a Vice President or more senior officer and an Opinion
of Counsel addressed to the Trust and the Trustee, each stating (i) that such
consolidation, merger, conveyance or transfer complies with this Section 5.1 and
(ii) that all conditions precedent herein provided for relating to such
transaction have been complied with; PROVIDED that such Opinion of Counsel, in
the case of clause (ii) above, may, to the extent that such opinion concerns
questions of fact, rely on such officer's certificate with respect to such
questions of fact.
5.2. INDEMNIFICATION OF THE TRUST AND THE TRUSTEE. (a) The Servicer
hereby agrees to indemnify and hold harmless the Trust and the Trustee, for the
benefit of the Investor Certificateholders and the Trustee and its directors,
officers, agents and employees (each of the foregoing, 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, activities of the Servicer pursuant to the Pooling and
Servicing Agreements, including but not limited to any judgment, award,
settlement, reasonable attorneys' fees and other reasonable costs or expenses
incurred in connection with the defense of any actual or threatened action,
proceeding or claim; PROVIDED that the Servicer shall not so indemnify any
Indemnified Person for any such loss, liability, damage, injury, cost or expense
of such Indemnified Person (i) arising solely from a default by an Obligor with
respect to any Receivable (other than arising out of (A) any discharge, claim,
offset or defense (other than discharge in bankruptcy of the Obligor) of the
Obligor to
15
the payment of any Purchased Receivable arising from the actions of the Servicer
(including, without limitation, a defense based on such Purchased Receivable's
not being a legal, valid and binding obligation of such Obligor enforceable
against it in accordance with its terms), or (B) a failure by the Servicer to
perform its duties or obligations under this Agreement), or (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 other Indemnified Person
(or any of their respective directors, officers, agents or employees); PROVIDED,
HOWEVER, that to the extent a determination of gross negligence, bad faith or
willful misconduct is made after the payment of any amounts related thereto, the
Servicer shall be repaid any amounts reimbursed under the preceding clause that,
due to such determination, it should not have paid. The provisions of this
indemnity shall run directly to, and be enforceable by, an injured party and
shall survive the termination of this Agreement and the resignation or removal
of the Servicer.
(b) In addition, the Servicer agrees to pay, indemnify and hold each
Indemnified Person harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
reasonable expenses or disbursements of any kind or nature whatsoever which may
at any time be imposed on, incurred by or asserted against such Indemnified
Person in any way relating to or arising out of any Servicing Party's breach of
any covenant contained in subsections 2.2(f), 2.2(g), 4.6, 4.7 or 4.8 with
respect to any Receivable which materially and adversely affects the interest of
the Trust, the parties hereto or the Investor Certificateholders pursuant to the
Transaction Documents in any Receivable or the collectibility of any Receivable
(an "INDEMNIFICATION EVENT").
(c) The Servicer shall indemnify the relevant Indemnified Person for
such affected Receivable pursuant to subsection 5.2(b) by depositing into the
Collection Account in immediately available funds no later than the next
Settlement Report Date occurring at least 30 days after receipt by the Servicer
of written notice of an Indemnification Event given by the applicable Seller,
the Company or the Trustee or upon a Responsible Officer of the Servicer
obtaining knowledge of an Indemnification Event, an amount equal to the
outstanding Principal Amount of such Receivable (the "SERVICER INDEMNIFICATION
AMOUNT"). Upon each such indemnification by the Servicer, the Trust shall
automatically and without further action be deemed to transfer, assign, and set
over, and otherwise convey to the Servicer, without recourse, representation or
warranty, all right, title and interest of the Trust in and to such Receivable,
all monies due or to become due with respect thereto and all proceeds thereof;
and such Receivable shall be treated by the Trust as collected in full as of the
date on which it was transferred. The Trustee shall execute such documents and
instruments of transfer or assignment and take such other actions as shall be
reasonably requested by the Servicer to effect the conveyance of any Receivable
pursuant to this subsection. The obligation of the Servicer to indemnify the
Trust for any such Receivables shall constitute the sole remedy respecting any
breach of the covenants set forth in subsections 2.2(f), 2.2(g), 4.6, 4.7 or 4.8
with respect to such Receivables available to Investor Certificateholders;
PROVIDED, HOWEVER, that the Servicer shall, in addition, indemnify each
Indemnified Person against all costs, expenses, losses, damages, claims and
liabilities, including reasonable fees and expenses of counsel, which may be
asserted against or incurred by any of them as a result of third party claims
arising out of the events or facts giving rise to such breach.
16
5.3. SERVICER NOT TO RESIGN. The Servicer shall not resign from the
obligations and duties hereby imposed on it except (a) upon determination that
(i) the performance of its duties hereunder is no longer permissible under
applicable law and (ii) there is no reasonable action which the Servicer could
take to make the performance of its duties hereunder permissible under
applicable law or (b) if the Servicer is terminated as Servicer pursuant to
Section 6.1. Any such determination permitting the resignation of the Servicer
shall be evidenced as to clause (a)(i) above by an Opinion of Counsel to such
effect delivered to the Trustee. No such resignation shall become effective
until a Successor Servicer or the Trustee shall have assumed the
responsibilities and obligations of the Servicer in accordance with Section 6.2.
The Trustee, the Company and each Rating Agency shall be notified of such
resignation in writing.
5.4. ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION REGARDING THE
RECEIVABLES. The Servicer and the other Servicing Parties will hold in trust
for the Trustee at their respective offices such 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 Receivables and all collections and
payments in respect thereof (including, without limitation, an ability to
recreate records evidencing Receivables in the event of the destruction of the
originals thereof).
ARTICLE VI
SERVICER DEFAULTS
6.1. SERVICER DEFAULT. If, with respect to any Servicing Party, any
one of the following events (a "SERVICER DEFAULT") shall occur and be
continuing:
(a) failure by the Servicer to deliver, within two Business Days of
the earlier date set forth below in clause (i) or (ii), any Required Report
or, within three Business Days of the earlier date set forth below in
clause (i) or (ii), any Monthly Settlement Statement, in each case
conforming in all material respects to the requirements of Section 4.1 or
4.2, as the case may be, after the earlier to occur of, in each case, (i)
the date upon which a Responsible Officer of the Servicer obtains knowledge
of the Servicer's failure to deliver such a conforming Required Report or
Monthly Settlement Statement when due under Section 4.1 or 4.2 and (ii) the
date on which written notice of the Servicer's failure to deliver such a
conforming Required Report or Monthly Settlement Statement when due under
Section 4.1 or 4.2, requiring the same to be remedied, shall have been
given to the Servicer by the Company or the Trustee, or to the Company, the
Servicer and the Trustee by holders of Investor Certificates evidencing 25%
or more of the Aggregate Invested Amount or by any Agent;
(b) failure by such Servicing Party to pay any amount required to be
paid by it under the Agreement or to give any direction with respect to the
allocation or transfer of funds under any Pooling and Servicing Agreement,
in each case on or before the date occurring five Business Days after the
earlier to occur of (i) the date
17
upon which a Responsible Officer of such Servicing Party obtains 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 such Servicing
Party by the Company or the Trustee, or to the Company, the Servicer and
the Trustee by holders of Investor Certificates evidencing 25% or more of
the Aggregate Invested Amount or by any Agent;
(c) failure on the part of such Servicing Party duly to observe or
perform in any material respect any other covenants or agreements of such
Servicing Party set forth in any Pooling and Servicing Agreement, which
failure has a Material Adverse Effect on the holders of any Outstanding
Series or on the collectibility of the Receivables as a whole and which
Material Adverse Effect continues unremedied for 30 days after the earlier
to occur of (i) the date upon which a Responsible Officer of such Servicing
Party obtains knowledge of such failure or (ii) the date on which written
notice of such failure, requiring the same to be remedied, shall have been
given to the Company and the Servicer by the Trustee, or to the Company,
the Servicer and the Trustee by holders of Investor Certificates evidencing
25% or more of the Aggregate Invested Amount or by any Agent; PROVIDED that
no Servicer Default shall be deemed to occur under this subsection (c) if
any Servicing Party shall have complied with the provisions of subsections
5.2(b) and (c) with respect thereto;
(d) any representation, warranty or certification made by such
Servicing Party in any Pooling and Servicing Agreement or in any
certificate delivered pursuant thereto shall prove to have been incorrect
in any material respect when made or deemed made, which incorrectness has a
Material Adverse Effect on the holders of any Outstanding Series or on the
collectibility of the Receivables as a whole and which Material Adverse
Effect continues unremedied for 30 days after the earlier to occur of (i)
the date upon which a Responsible Officer of such Servicing Party obtains
knowledge of such failure or (ii) the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to the
Company and the Servicer by the Trustee, or to the Company, the Servicer
and the Trustee by holders of Investor Certificates evidencing 25% or more
of the Aggregate Invested Amount or by any Agent; PROVIDED that no Servicer
Default shall be deemed to occur under this subsection (d) if any Servicing
Party shall have complied with the provisions of subsections 5.2(b) and (c)
with respect thereto;
(e) (i) such Servicing Party shall commence any case, proceeding or
other action (A) under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization or
relief of debtors, seeking to have an order for relief entered with respect
to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts,
or (B) seeking appointment of a receiver, trustee, custodian or other
similar official for it or for all or any substantial part of its assets,
or such Servicing Party shall make a general assignment for the benefit of
its creditors; or (ii) there shall be commenced against such Servicing
Party any case, proceeding or other action of a nature referred to in
clause (i) above which remains undismissed, undischarged or unbonded for a
18
period of 60 days or an order for relief, decree, adjudication or
appointment shall occur; or (iii) there shall be commenced against such
Servicing Party any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against all
or any substantial part of its assets which results in the entry of an
order for any such relief which shall not have been vacated, discharged, or
stayed or bonded pending appeal within 60 such days from the entry thereof,
or (iv) such Servicing Party shall take any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the acts
set forth in clauses (i), (ii), or (iii) above; or (v) such Servicing Party
shall generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due; or
(f) there shall have occurred and be continuing a Purchase
Termination Event under the Receivables Sale Agreement, except for a
Purchase Termination Event described in Section 6.01(b) of the Receivables
Sale Agreement;
(g) there shall have occurred one of the Early Amortization Events
described in Sections 7.1(a) or 7.1(d) of the Pooling Agreement;
(h) the Servicer shall have ceased to be a directly or indirectly
wholly-owned Subsidiary of United Stationers Inc.;
(i) the Servicer shall assert in writing that any of the Agreement,
the Servicing Agreement, this Supplement, or the Receivables Sale Agreement
shall cease, for any reason, to be in full force and effect;
(j) the Servicer shall assert that the Trust ceases to have a valid
and perfected first priority undivided ownership or security interest in
the Trust Assets (subject to no other Liens other than Permitted Liens
described in clauses (i) and (iv) of the definition thereof or as otherwise
specified in the Agreement or herein);
(k) there shall have been filed against the Servicer (i) a notice of
federal tax Lien from the Internal Revenue Service, (ii) a notice of Lien
from the PBGC under Section 412(n) of the Internal Revenue Code or Section
302(f) of ERISA for a failure to make a required installment or other
payment to a plan to which either of such sections applies or (iii) a
notice of any other Lien the existence of which could reasonably be
expected to have a material adverse effect on the business, operations or
financial condition of such Person, and, in each case, 40 days shall have
elapsed without such notice having been effectively withdrawn or such Lien
having been released or discharged; or
(l) any action, suit, investigation or proceeding at law or in
equity (including, without limitation, injunctions, writs or restraining
orders) shall be brought or commenced or filed by or before any arbitrator,
court or Governmental Authority against the Servicer or any properties,
revenues or rights thereof which could reasonably be expected to have a
Material Adverse Effect with respect to the Trust or any Certificateholder;
19
then, in the event of any Servicer Default, so long as the Servicer Default
shall not have been remedied (or waived in accordance with the terms of the
Transaction Documents), the Trustee may, and at the written direction of the
holders of Investor Certificates evidencing more than 50% of the Aggregate
Invested Amount voting as a single class, the Trustee shall, by notice then
given in writing to such Servicing Party, each Agent and each Rating Agency (a
"TERMINATION NOTICE"), terminate all or any part of the rights and obligations
of such Servicing Party as Servicer or as a Sub-Servicer, as the case may be,
under the Pooling and Servicing Agreements. Notwithstanding anything to the
contrary in this Section 6.1, a delay in or failure of performance referred to
under clause (b) above for a period of 10 Business Days after the applicable
grace period or a delay in or failure of performance referred to under clauses
(a), (c) or (d) above for a period of 30 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 such
Servicing Party and such delay or failure was caused by a Force Majeure Delay.
After receipt by a Servicing Party of a Termination Notice, and on the date that
a Successor Servicer shall have been appointed by the Trustee pursuant to
Section 6.2, all authority and power of such Servicing Party under any Pooling
and Servicing Agreement to the extent specified in such Termination Notice shall
pass to and be vested in a Successor Servicer (a "SERVICE TRANSFER"); and,
without limitation, the Trustee is hereby authorized and empowered (upon the
failure of a Servicing Party to cooperate) to execute and deliver, on behalf of
such Servicing Party, as attorney-in-fact or otherwise, all documents and other
instruments upon the failure of such Servicing Party to execute or deliver such
documents or instruments, and to do and accomplish all other acts or things
necessary or appropriate to effect the purposes of such Service Transfer. Each
Servicing Party agrees to cooperate with the Trustee and such Successor Servicer
in effecting the termination of the responsibilities and rights of a Servicing
Party to conduct servicing hereunder, including, without limitation, the
transfer to such Successor Servicer of all authority of a Servicing Party to
service the Receivables provided for under the Pooling and Servicing Agreements,
including, without limitation, all authority over all Collections which shall on
the date of transfer be held by a Servicing Party for deposit, or which have
been deposited by a Servicing Party, in the Collection Account, or which shall
thereafter be received with respect to the Receivables, and in assisting the
Successor Servicer. Upon a Service Transfer, the relevant Servicing Party shall
promptly (x) assemble all of its documents, instruments and other records
(including credit files, licenses, rights, copies of all relevant computer
programs and any necessary licenses for the use thereof, related material,
computer tapes, disks, cassettes and data) that (i) evidence or will evidence or
record Receivables sold and assigned to the Trust and (ii) are otherwise
necessary or desirable to enable a Successor Servicer to effect the immediate
Collection of such Receivables, with or without the participation of the
applicable Seller and Servicing Party or the Servicer and (y) deliver or license
the use of all of the foregoing documents, instruments and other records to the
Successor Servicer at a place designated thereby. In recognition of such
Servicing Party's need to have access to any such documents, instruments and
other records which may be transferred to such Successor Servicer hereunder,
whether as a result of its continuing responsibility as a servicer of accounts
receivable which are not sold and assigned to the Trust or otherwise, such
Successor Servicer shall provide to such Servicing Party reasonable access to
such documents, instruments and other records transferred by such Servicing
Party to it in connection with any activity arising in the ordinary course of
such Servicing Party's business at any reasonable time during normal business
hours on any
20
Business Day and from time to time, upon reasonable prior notice, according to
such Successor Servicing Party's normal security and confidentiality
requirements; PROVIDED that such Servicing Party shall not disrupt or otherwise
interfere with the Successor Servicer's use of and access to such documents,
instruments and other records. To the extent that compliance with this Section
6.1 shall require a Servicing Party to disclose to the Successor Servicer
information of any kind which such Servicing Party reasonably deems to be
confidential, the Successor Servicer shall be required to enter into such
customary licensing and confidentiality agreements as such Servicing Party shall
deem necessary to protect its interest. All costs and expenses incurred by the
defaulting Servicing Party, the Successor Servicer and the Trustee in connection
with any Service Transfer shall be for the account of such defaulting Servicing
Party.
6.2. TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR. (a) On and after (i)
the receipt by a Servicing Party of a Termination Notice pursuant to Section 6.1
or (ii) the date on which such Servicing Party notifies the Trustee, the
Company, each Agent and each Rating Agency in writing of its resignation
pursuant to Section 5.3 (the "RESIGNATION NOTICE"), such Servicing Party 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 is
appointed and (y) 60 days after the delivery of such Termination Notice or
Resignation Notice, as the case may be. The Trustee shall, as promptly as
reasonably possible after the giving of or receipt of a Termination Notice or
Resignation Notice, as the case may be, appoint an Eligible Successor Servicer
as successor servicer (the "SUCCESSOR SERVICER"); PROVIDED that in the event
that any Sub-Servicer shall cease to be a Servicing Party for any reason, the
Servicer shall be the Successor Servicer with respect to such terminated
Sub-Servicer for so long as the Servicer shall continue to serve in its capacity
as Servicer under the Pooling and Servicing Agreements. The Successor Servicer
shall accept its appointment by a written assumption in a form acceptable to the
Trustee.
(b) Reserved.
(c) Upon its appointment, the Successor Servicer shall be the
successor in all respects to the Servicing Party to which it is successor with
respect to servicing functions under the Pooling and Servicing Agreements (with
such changes as are agreed to between such Successor Servicer and the Trustee)
and shall be subject to all the responsibilities, duties and liabilities
relating thereto placed on such Servicing Party by the terms and provisions
hereof, and all references in any Pooling and Servicing Agreement to the
Servicer or the Sub-Servicer, as the case may be, shall be deemed to refer to
the Successor Servicer. The Successor Servicer shall manage the servicing and
administration of the Receivables, the collection of payments due under the
Receivables and the charging off of any Receivables as uncollectible, with
reasonable care, using that degree of skill and attention that is the customary
and usual standard of practice of prudent receivables servicers with respect to
all comparable receivables serviced for itself or others. The Successor
Servicer shall not be liable for, and the Servicer shall indemnify the Successor
Servicer against costs incurred by the Successor Servicer as a result of, any
acts or omissions of any Servicing Party or any events or occurrences occurring
prior to the Successor Servicer's acceptance of its appointment as Successor
Servicer.
21
(d) The Company and the Trustee will review any bids obtained from
Eligible Successor Servicers and the Company and the Trustee, or the Company
(with the consent of the Trustee), may appoint any Eligible Successor Servicer
submitting such a bid as a Successor Servicer for servicing compensation not in
excess of the Servicing Fee.
(e) All authority and power granted to the Successor Servicer under
any Pooling and Servicing Agreement 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 Successor Servicer, as attorney-in-fact or
otherwise, all documents and other instruments, and to do and accomplish all
other acts or things necessary or appropriate to effect the purposes of such
transfer of servicing rights from and after the Trust Termination Date. The
Successor Servicer agrees to cooperate with the Company in effecting the
termination of the responsibilities and rights of the Successor Servicer to
conduct servicing on the Receivables. The Successor 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 6.2 shall require the Successor Servicer to disclose to the Company
information of any kind which the Successor Servicer deems to be confidential,
the Company shall be required to enter into such customary licensing and
confidentiality agreements as the Successor Servicer and the Company shall
reasonably agree are reasonable and necessary to protect the Successor
Servicer's interests.
6.3. WAIVER OF PAST DEFAULTS. Holders of Investor Certificates
evidencing more than 50% of the Aggregate Invested Amount may waive any
continuing default by any Servicing Party or the Company in the performance of
their 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 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 or the Servicer shall provide notice to each Rating Agency of any such
waiver.
ARTICLE VII
MISCELLANEOUS PROVISIONS
7.1. AMENDMENT. (a) 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 10.1 of
the Pooling Agreement.
22
7.2. TERMINATION. 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).
7.3. NOTICES. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or three days after being
deposited in the mail, postage prepaid, or, in the case of facsimile notice,
when received, addressed as set forth in Section 10.5 of the Pooling Agreement,
or to such other address as may be hereafter notified by the respective parties
hereto.
7.4. 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.
7.5. THIRD-PARTY BENEFICIARIES. This Agreement will inure to the
benefit of and be binding upon the parties hereto and the Investor
Certificateholders and their respective successors and permitted assigns.
Except as otherwise provided in this Article VII, no other person will have any
right or obligation hereunder.
7.6. MERGER AND INTEGRATION. Except as specifically stated otherwise
herein, this Agreement and the other Transaction Documents set 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 and the
other Transaction Documents. This Agreement may not be modified, amended,
waived, or supplemented except as provided herein.
7.7. HEADINGS. The headings herein are for purposes of reference
only and shall not otherwise affect the meaning or interpretation of any
provision hereof.
7.8. NO SET-OFF. Except as expressly provided in this Agreement or
any other Transaction Document, each Servicing Party agrees 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 the Collection Account for any amount owed to it by the
Company, the Trust, the Trustee or any Investor Certificateholder.
7.9. NO BANKRUPTCY PETITION. Each Servicing Party hereby covenants
and agrees that, prior to the date which is one year and one day after the Trust
Termination Date, it will 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.
7.10. CONSEQUENTIAL DAMAGES. In no event shall The Chase Manhattan
Bank, in its capacity as Successor Servicer (if applicable), be liable for
special, indirect or consequential loss or damage of any kind whatsoever
(including, but not limited to, lost
23
profits), even if it has been advised of the likelihood of such loss or damage
and regardless of the form of action.
7.11. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK AND THE RIGHTS,
OBLIGATIONS AND REMEDIES OF EACH OF THE PARTIES HERETO SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
24
IN WITNESS WHEREOF, the Company, the Servicer, the Sub-Servicers and the
Trustee have caused this Agreement to be duly executed by their respective
officers as of the day and year first above written.
USS RECEIVABLES COMPANY, LTD.
By:
-------------------------------------
Name:
Title:
UNITED STATIONERS SUPPLY CO.,
as Servicer
By:
-------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
not in its individual
capacity, but solely as
Trustee
By:
-------------------------------------
Name:
Title:
EXHIBIT A
TO SERVICING AGREEMENT
FORM OF QUARTERLY SERVICER'S CERTIFICATE
(As required to be delivered within 45 days after
the end of each calendar quarter of the Servicer
pursuant to Section 4.3 of the
Servicing Agreement referred to below)
UNITED STATIONERS SUPPLY CO.
------------------------------------------
UNITED STATIONERS RECEIVABLES MASTER TRUST
------------------------------------------
The undersigned, a duly authorized representative of UNITED STATIONERS
SUPPLY CO., as Servicer (the "SERVICER") pursuant to (a) the Pooling Agreement,
dated as of April 3, 1998 (as amended, supplemented or otherwise modified from
time to time, the "POOLING AGREEMENT"), by and among USS RECEIVABLES COMPANY,
LTD., (the "COMPANY"), the Servicer and The Chase Manhattan Bank, as Trustee and
as Securities Intermediary (the "TRUSTEE") and (b) the Servicing Agreement,
dated as of April 3, 1998 (as amended, supplemented or otherwise modified from
time to time, the "SERVICING AGREEMENT"); by and among the Company, the Servicer
and the Trustee, does hereby certify, on behalf of the Servicer and the Company
and not individually, that:
1. United Stationers Supply Co. is, as of the date hereof, the Servicer
under the Pooling Agreement and Servicing Agreement.
2. The undersigned is duly authorized pursuant to the Pooling Agreement
and Servicing Agreement to execute and deliver this Certificate to the Trustee.
3. A review of the activities of the Company and the Servicer during the
calendar quarter ended ___________, ____ and of its performance under each
Transaction Document was conducted under my supervision.
4. Based on such review, to the best of my knowledge, each of the Company
and the Servicer has performed in all material respects all of its 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.
5. The following is a description of all material defaults in the
performance of the Servicer or the Company under the provisions of the
Transaction Documents known to us to have been made during the calendar quarter
ended ___________, _____, which sets forth in detail (i) the nature of each such
default, (ii) the action taken by 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 Required Report and/or Monthly Settlement Statement during the
calendar quarter ended ______________, _____________:
[If applicable, insert "None."]
Capitalized terms used in this certificate have the meanings ascribed to
them in the Pooling Agreement(s) and Servicing Agreement(s).
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate this
___ day of ___________________, ______________.
By:
------------------------
Name:
Title:
EXHIBIT B TO
SERVICING AGREEMENT
FORM OF AGREED UPON PROCEDURES
