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EXHIBIT 10.10
EXECUTION COPY
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AMENDED AND RESTATED
POOLING AND SERVICING AGREEMENT
dated as of July 28, 1998
among
AMERISERVE FUNDING CORPORATION,
as Transferor,
AMERISERVE FOOD DISTRIBUTION, INC.,
as the initial Servicer,
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as Trustee
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS
SECTION 1.1 Definitions.....................................................1
ARTICLE II CONVEYANCE OF ASSETS
SECTION 2. Creation of the Trust; Conveyance of Certain Assets.............1
SECTION 2.2 Acceptance by Trustee...........................................4
SECTION 2.3 Representations and Warranties of Transferor
Relating to the Transferred Assets..............................4
SECTION 2.4 No Assumption of Obligations Relating to Receivables,
Related Transferred Assets or Contracts.........................5
SECTION 2.5 Conveyance of Purchased Interests...............................6
ARTICLE III ADMINISTRATION AND SERVICING
SECTION 3.1 Acceptance of Appointment; Other Matters........................6
SECTION 3.2 Duties of Servicer and Transferor...............................7
SECTION 3.3 Lockbox Accounts; Blocked Accounts.............................10
SECTION 3.4 Servicing Compensation.........................................12
SECTION 3.5 Records of Servicer and Reports to be
Prepared by Servicer...........................................13
SECTION 3.6 Monthly Servicer's Certificate.................................15
SECTION 3.7 Servicing Report of Independent Public
Accountants; Forms 10Q and 10K.................................15
SECTION 3.8 Rights of Trustee..............................................16
SECTION 3.9 Ongoing Responsibilities of AmeriServe.........................18
SECTION 3.10 Further Action Evidencing Transfers............................19
ARTICLE IV RIGHTS OF CERTIFICATEHOLDERS; ALLOCATIONS
SECTION 4.1 Rights of Certificateholders...................................20
SECTION 4.2 Establishment of Transaction Accounts..........................20
SECTION 4.3 TrustLevel Calculations and Funds Allocations..................22
SECTION 4.4 Investment of Funds in Transaction Accounts....................23
SECTION 4.5 Attachment of Transaction Accounts.............................23
ARTICLE V DISTRIBUTIONS AND REPORTS..........................................................24
ARTICLE VI THE CERTIFICATES
SECTION 6.1 The Certificates...............................................24
SECTION 6.2 Authentication of Certificates.................................25
SECTION 6.3 Registration of Transfer and Exchange
of Certificates................................................25
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SECTION 6.4 Mutilated, Destroyed, Lost or Stolen Certificates..............27
SECTION 6.5 Persons Deemed Owners..........................................28
SECTION 6.6 Appointment of Paying Agent....................................28
SECTION 6.7 Access to List of Certificateholders'
Names and Addresses............................................29
SECTION 6.8 Authenticating Agent...........................................30
SECTION 6.9 Tax Treatment..................................................31
SECTION 6.10 Issuance of Additional Series of Certificates and
Sales of Purchased Interests...................................32
SECTION 6.11 BookEntry Certificates.........................................36
SECTION 6.12 Notices to Clearing Agency.....................................41
SECTION 6.13 Definitive Certificates........................................41
SECTION 6.14 Letter of Representations......................................42
ARTICLE VII TRANSFEROR
SECTION 7.1 Representations and Warranties of
Transferor Relating to Transferor and the
Transaction Documents..........................................42
SECTION 7.2 Covenants of Transferor........................................46
SECTION 7.3 Indemnification by Transferor..................................55
ARTICLE VIII SERVICER
SECTION 8.1 Representations and Warranties of Servicer.....................57
SECTION 8.2 Covenants of Servicer..........................................59
SECTION 8.3 Merger or Consolidation of, or Assumption of the
Obligations of, Servicer.......................................60
SECTION 8.4 Indemnification by Servicer....................................60
SECTION 8.5 Servicer Liability.............................................61
SECTION 8.6 Servicing in Florida...........................................61
ARTICLE IX EARLY AMORTIZATION EVENTS;
TERMINATION BY SELLERS
SECTION 9.1 Early Amortization Events......................................61
SECTION 9.2 Remedies.......................................................61
SECTION 9.3 Termination By Sellers.........................................62
SECTION 9.4 Additional Rights Upon the Occurrence
of Certain Events..............................................62
ARTICLE X SERVICER DEFAULTS
SECTION 10.1 Servicer Defaults..............................................63
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SECTION 10.2 Trustee to Act; Appointment of Successor.......................65
SECTION 10.3 Notification of Servicer Default; Notification
of Termination of Servicer and Appointment
of Successor Servicer..........................................67
SECTION 10.4 Waiver of Servicer Defaults....................................68
ARTICLE XI TRUSTEE
SECTION 11.1 Duties of Trustee..............................................68
SECTION 11.2 Certain Matters Affecting Trustee..............................72
SECTION 11.3 Limitation on Liability of Trustee.............................74
SECTION 11.4 Trustee May Deal with Other Parties............................75
SECTION 11.5 Servicer To Pay Trustee's Fees and Expenses....................75
SECTION 11.6 Eligibility Requirements for Trustee...........................76
SECTION 11.7 Resignation or Removal of Trustee..............................76
SECTION 11.8 Successor Trustee..............................................77
SECTION 11.9 Merger or Consolidation of Trustee.............................78
SECTION 11.10 Appointment of CoTrustee or Separate Trustee...................78
SECTION 11.11 Tax Returns....................................................79
SECTION 11.12 Trustee May Enforce Claims Without
Possession of Certificates.....................................80
SECTION 11.13 Suits for Enforcement..........................................80
SECTION 11.14 Rights of Required Investors To Direct Trustee.................80
SECTION 11.15 Representations and Warranties of Trustee......................81
SECTION 11.16 Maintenance of Office or Agency................................81
SECTION 11.17 Conduct of Business, Office, Place of Business,
Agents or Employees Relating to Florida........................82
SECTION 11.18 Trust Not to Become a Limited Liability
Company or Corporation.........................................82
ARTICLE XII TERMINATION
SECTION 12.1 Termination of Trust...........................................82
SECTION 12.2 Final Distribution.............................................83
SECTION 12.3 Rights Upon Termination of the Trust...........................84
SECTION 12.4 Optional Repurchase of Investor Interests......................85
ARTICLE XIII MISCELLANEOUS PROVISIONS
SECTION 13.1 Amendment, Waiver, Etc.........................................85
SECTION 13.2 Actions by Certificateholders and Purchasers...................88
SECTION 13.3 Limitation on Rights of Certificateholders.....................89
SECTION 13.4 Limitation on Rights of Purchasers.............................90
SECTION 13.5 Governing Law..................................................91
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SECTION 13.6 Notices........................................................91
SECTION 13.7 Severability of Provisions.....................................92
SECTION 13.8 Certificates Nonassessable and Fully Paid......................92
SECTION 13.9 Nonpetition Covenant...........................................92
SECTION 13.10 No Waiver; Cumulative Remedies.................................93
SECTION 13.11 Counterparts...................................................93
SECTION 13.12 ThirdParty Beneficiaries.......................................93
SECTION 13.13 Integration....................................................93
SECTION 13.14 Binding Effect; Assignability; Survival of Provisions .........94
SECTION 13.15 Recourse to Transferor.........................................94
SECTION 13.16 Recourse to Transferred Assets.................................94
SECTION 13.17 Submission to Jurisdiction.....................................94
SECTION 13.18 Waiver of Jury Trial...........................................95
SECTION 13.19 Certain Partial Releases.......................................95
SECTION 13.20 Effect on Existing Pooling Agreement...........................96
SECTION 13.20 Effect on Existing Pooling Agreement...........................95
EXHIBITS
EXHIBIT A Form of Lockbox Agreement (Section 3.3(a))
EXHIBIT B Form of Blocked Account Agreement (Section 3.3(b))
EXHIBIT C Form of Monthly Servicer's Certificate (Section 3.6)
EXHIBIT D Annual Agreed-Upon Procedures (Section 3.7)
EXHIBIT E Form of Transferor Certificate (Section 3.8)
EXHIBIT F Form of Certificate to be Given by Certificate Owner
(Section 6.11(d))
EXHIBIT G Form of Certificate to be Given by Euroclear or Cedel
(Section 6.11(d))
EXHIBIT H Form of Certificate to be Given by Transferee of
Beneficial Interest in a Regulation S Temporary
Book-Entry Certificate (Section 6.11(e)(ii))
EXHIBIT I Form of Transfer Certificate for Exchange or Transfer from 144A
Book-Entry Certificate to Regulation S Book-Entry Certificate
(Section 6.11(e)(ii))
EXHIBIT J Form of Placement Agent Exchange Instructions
(Section 6.11(e)(iv))
EXHIBIT K Form of Annual Servicer Certificate (Section 3.2(j))
EXHIBIT L Data Fields (Section 3.5)
APPENDIX
APPENDIX A Definitions
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THIS AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT, dated as of
July 28, 1998 (this "Agreement"), is made among AMERISERVE FUNDING CORPORATION,
a Delaware corporation ("Transferor"), AMERISERVE FOOD DISTRIBUTION, INC., a
Delaware corporation ("AmeriServe"), as the initial Servicer, and NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION, as Trustee. This Agreement amends and restates
the Pooling and Servicing Agreement dated as of July 1, 1997 among the parties
hereto (the "Existing Pooling Agreement").
ARTICLE I DEFINITIONS
SECTION 1.1 Definitions. Capitalized terms used in this Agreement have
the meanings that Appendix A assigns to them, and this Agreement shall be
interpreted in accordance with Part B of Appendix A.
ARTICLE II CONVEYANCE OF ASSETS
SECTION 2.1 Creation of the Trust; Conveyance of Certain Assets. (a)
Transferor hereby transfers, assigns, sets over, grants and otherwise conveys to
Trustee, in its capacity as representative of the Certificateholders and the
Purchasers, without recourse (except as expressly provided herein), all of its
right, title and interest in, to and under, (i) all Receivables that have been
or are hereafter transferred (whether by sale or contribution) by the Sellers to
Transferor, (ii) all Related Assets, (iii) all of Transferor's rights, remedies,
powers and privileges, and all claims of Transferor against any Person under and
with respect to the Seller Transaction Documents (the property described in
clauses (ii) and (iii) being called the "Related Transferred Assets"), (iv) all
funds from time to time on deposit in each of the Transaction Accounts
(including funds deposited in a Transaction Account in connection with the
issuance of any prefunded Series) and all certificates and instruments, if any,
from time to time evidencing such funds, all investments made with such funds,
all claims thereunder or in connection therewith and all interest, dividends,
monies, instruments, securities and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
of the foregoing, (v) any Enhancement obtained for the benefit of any Series or
Purchased Interest and (vi) all moneys due or to become due and all amounts
received or receivable with respect to any of the foregoing and all proceeds of
the foregoing. Such property, whether now existing or hereafter acquired, shall
constitute the assets of the Trust (collectively, the "Transferred Assets"). The
foregoing transfer, assignment, setover, grant and conveyance shall be made to
Trustee, on behalf of the Trust, and each reference in this Agreement to such
transfer, assignment, setover, grant and conveyance shall be construed
accordingly.
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(b) In connection with the transfer described in subsection (a),
Transferor and Servicer shall record and file or cause to be recorded and filed,
as an expense of Servicer paid out of the Servicing Fee, UCC financing
statements with respect to the Transferred Assets meeting the requirements of
applicable state law in such manner and in such jurisdictions as are necessary
to perfect the transfer and assignment of the Transferred Assets to the Trustee.
In connection with the transfer described in subsection (a), Transferor and
Servicer further agree to deliver immediately to Trustee, as an expense of
Servicer paid out of the Servicing Fee, each Transferred Asset (including any
original documents or instruments included in the Transferred Assets as are
necessary to effect such transfer) in which the transfer of an interest is
perfected under the UCC or otherwise by possession.
(c) In connection with the transfer described above in subsection (a),
Servicer shall, on behalf of Transferor, as an expense of Servicer paid out of
the Servicing Fee, on or prior to the date of this Agreement, xxxx the master
data processing records evidencing the Receivables with the following legend:
"THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD TO AMERISERVE FUNDING
CORPORATION PURSUANT TO A SECOND AMENDED AND RESTATED RECEIVABLES
PURCHASE AGREEMENT, AMONG AMERISERVE FOOD DISTRIBUTION, INC.
("AMERISERVE") AS INITIAL SERVICER, AMERISERVE AND CERTAIN OF ITS
SUBSIDIARIES, AS SELLERS, AND AMERISERVE FUNDING CORPORATION, AS BUYER;
AND SUCH RECEIVABLES HAVE BEEN TRANSFERRED TO THE AMERISERVE
RECEIVABLES MASTER TRUST PURSUANT TO AN AMENDED AND RESTATED POOLING
AND SERVICING AGREEMENT, AMONG AMERISERVE FUNDING CORPORATION, AS
TRANSFEROR, AMERISERVE, AS INITIAL SERVICER, AND NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION, AS TRUSTEE."
(d) Upon the written request of Transferor, Trustee will cause
Certificates in authorized denominations evidencing the entire interest in the
Trust to be duly authenticated and delivered to or upon the order of Transferor
pursuant to Section 6.2. Pursuant to the Transferor Certificate, Transferor
shall be entitled to receive current and deferred transfer payments at the times
and in the amounts specified in the various Supplements and PI Agreements
executed from time to time.
(e) The parties hereto intend the transfers of Tricon Assets hereunder
to be true sales by the Transferor to the Trust that are absolute and
irrevocable and that provide the Trust and the Trustee with the full benefits of
ownership of the Tricon Assets, and none of the parties hereto intends the sale
of the Tricon Assets hereunder to be, or for any purpose to be characterized as,
loans from the Trust to
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the Transferor. It is, further, not the intention of any party hereto that the
conveyance of the Tricon Assets by Transferor be deemed a grant of a
security interest in the Tricon Assets by Transferor to Trustee to secure a debt
or other obligation of Transferor. However, in the event that, notwithstanding
the intent of the parties, any Tricon Assets are property of Transferor's
estate, then (i) this Agreement also shall be deemed to be and hereby is a
security agreement within the meaning of the UCC, and (ii) the conveyance by
Transferor provided for in this Agreement shall be deemed to be a grant by
Transferor to the Trustee, for the benefit of the Trustee, the
Certificateholders and the Purchasers, of a security interest in all of
Transferor's right, title and interest in, to and under the Tricon Assets,
whether now or hereafter owned, existing or arising and wherever located (which
shall be deemed to be a first priority perfected security interest and which
shall secure Transferor's obligations (monetary or otherwise) under the
Transaction Documents, the Certificates and the Purchased Interests).
(f) The parties hereto intend that this Agreement constitute a security
agreement under applicable law. Transferor hereby grants to the Trustee, for the
benefit of the Trustee, the Certificateholders and the Purchasers, a security
interest in all of Transferor's right, title and interest in, to and under the
Receivables and other Transferred Assets, whether now or hereafter owned,
existing or arising and wherever located (which shall be deemed to be a first
priority perfected security interest and which shall secure Transferor's
obligations (monetary or otherwise) under the Transaction Documents, the
Certificates and the Purchased Interests); provided, however, with respect to
Tricon Assets, this paragraph (f) is subject to paragraph (e) above.
(g) On the terms and subject to the conditions set forth herein, the
Trust agrees to pay to the Transferor on any date (each, a "Transfer Date") on
which Tricon Assets are sold by the Transferor to the Trust a purchase price as
follows: a cash payment to the Transferor to the extent that (x) funds are made
available from an increase in the Invested Amounts of the Series 1998-1
Certificateholders (as defined in the Series 1998-1 Supplement) and (y) Tricon
Collections are available for such purpose pursuant to the Series 1998-1
Supplement.
(h) Except as specifically provided in this Agreement, and subject to
the terms and conditions of the Series 1998-1 Supplement, the sale and purchase
of Tricon Assets under this Agreement shall be without recourse to Transferor;
it being understood that the Transferor shall be liable to the Trust for all
representations, warranties, covenants and indemnities made by the Transferor
pursuant to the terms of this Agreement, all of which obligations are limited so
as not to constitute recourse to the Transferor for the credit risk of Tricon.
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(i) If at any time the Servicer or the Trustee shall determine that any
of the representations and warranties made by the Transferor in Section 2.3 with
respect to any Tricon Asset was not true on the date of the purchase thereof by
the Trust or when otherwise made or deemed certified, Transferor shall be
required to repurchase such nonconforming Tricon Asset for an amount equal to
the Unpaid Balance of the related Tricon Receivable.
(j) The Trust shall have the sole right to retain any gains or profits
created by buying, selling or holding the Tricon Assets and shall have the sole
risk of and responsibility for losses or damages created by such buying, selling
or holding.
SECTION 2.2 Acceptance by Trustee. Trustee hereby acknowledges its
acceptance on behalf of the Trust of all right, title and interest to the
Transferred Assets and declares that it shall maintain such right, title and
interest, upon the trust herein set forth, for the benefit of all
Certificateholders and Purchasers, on the terms and subject to the conditions
hereinafter set forth.
SECTION 2.3 Representations and Warranties of Transferor Relating to
the Transferred Assets.
(a) Representations and Warranties. At the time that any Receivable or
Related Asset is transferred by Transferor to the Trustee, Transferor hereby
represents and warrants that:
(i) Quality of Title. (A) Immediately before each transfer to
be made by Transferor hereunder, each Receivable and Related
Transferred Asset that was then to be transferred to the Trustee
hereunder was owned by Transferor free and clear of any Adverse Claim
(other than any Permitted Adverse Claim); and on or prior to the First
Issuance Date, Transferor and Servicer made, or caused to be made, all
filings and took all other action under applicable law in each relevant
jurisdiction in order to protect and perfect the Trustee's interest in
such Receivables, such Related Transferred Assets and the funds in the
Transaction Accounts against all creditors of, and purchasers from,
Transferor and the Sellers.
(B) Each transfer of Receivables and other Transferred Assets
by Transferor to the Trustee pursuant to this Agreement constitutes a
valid transfer and assignment to the Trustee of all right, title and
interest of Transferor in the Receivables and the Related Transferred
Assets, free and clear of any Adverse Claim (other than any Permitted
Adverse Claim), and constitutes either an absolute transfer of such
property to the Trustee or a grant of a first priority perfected
security interest in such property to the Trustee.
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(C) No effective UCC financing statement or other instrument
similar in effect that covers all or part of any Transferred Asset or
any interest in any proceeds thereof is on file in any recording office
except any filings relating to any Permitted Adverse Claim.
(D) No acquisition of any Receivable or Related Transferred
Asset by Transferor or the Trustee constitutes a fraudulent transfer or
fraudulent conveyance under the United States Bankruptcy Code or
applicable state bankruptcy or insolvency laws or is otherwise void or
voidable or subject to subordination under similar laws or principles
or for any other reason.
(ii) Governmental Approvals. With respect to each Receivable
and Related Transferred Asset, all consents, licenses, approvals or
authorizations of, or notices to or registrations, declarations or
filings with, any Governmental Authority required to be obtained,
effected or made by the Sellers, Servicer or Transferor in connection
with the conveyance of the Receivable and Related Transferred Asset by
the Sellers to Transferor, or by Transferor to the Trustee, have been
duly obtained, effected or given and are in full force and effect.
(iii) Eligible Receivables. (A) On the date on which the
applicable Seller transfers a Receivable to Transferor, and Transferor
transfers such Receivable to the Trustee, unless otherwise identified
by Servicer in the Daily Report for such date, such Receivable is an
Eligible Receivable, and (B) on the date of each Daily Report or
Monthly Report that identifies a Receivable as an Eligible Receivable,
such Receivable exists and is an Eligible Receivable.
(b) Notice of Breach. The representations and warranties set forth in
subsection (a) shall survive the transfer of the Receivables and the Related
Transferred Assets to the Trustee. Upon discovery by Transferor, Servicer or
Trustee of a breach of any of the representations and warranties set forth in
subsection (a), the party discovering the breach shall give written notice to
the others within two Business Days following the discovery; provided, however,
that if such breach arises from a Seller's failure to perform its obligations
under the Purchase Agreement and such failure is of the type that may be cured
by settlement of a Seller Non-Complying Receivables Adjustment or Seller
Dilution Adjustment under Sections 3.1 and 3.5 of the Purchase Agreement, and
such settlement shall have (in fact) been made, then no breach shall be deemed
to have occurred under this Agreement. Trustee's obligations in respect of
discovering any breach are limited as provided in Section 11.2(g).
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SECTION 2.4 No Assumption of Obligations Relating to Receivables,
Related Transferred Assets or Contracts. The transfer, assignment, set over,
grant and conveyance described in Section 2.1 does not constitute and is not
intended to result in a creation or an assumption by the Trust, Trustee or any
Purchaser or Investor Certificateholder of any obligation of Servicer,
Transferor, the applicable Seller or any other Person in connection with the
Receivables or the Related Transferred Assets or under the related contracts or
any other agreement or instrument relating thereto. None of Trustee, the Trust
or any Purchaser or Investor Certificateholder shall have any obligation or
liability to any Obligor or other customer or client of a Seller.
SECTION 2.5 Conveyance of Purchased Interests. Pursuant to the terms of
a PI Agreement, Trustee, on behalf of the Trust, from time to time may sell,
transfer, assign, set over and otherwise convey Purchased Interests to a
Purchaser or an Agent for the account of a Purchaser; and Trustee, on behalf of
the Trust, is authorized and directed (subject to the applicable terms of
Section 6.10), upon the written request of Transferor, to enter into one or more
PI Agreements in the form annexed to each such written request. Pursuant to a PI
Agreement, Collections allocated to Purchased Interests may be reinvested and
such Purchased Interests may be recomputed, each from time to time as provided
therein.
ARTICLE III ADMINISTRATION AND SERVICING
SECTION 3.1 Acceptance of Appointment; Other Matters.
(a) Designation of Servicer. The servicing, administering and
collection of the Receivables and the Related Transferred Assets shall be
conducted by the Person designated as Servicer hereunder from time to time in
accordance with this section. Subject to Section 3.1(d), AmeriServe is
designated (and agrees to act) as Servicer.
(b) Delegation of Certain Servicing Activities. In the ordinary course
of business, Servicer may at any time delegate its duties hereunder with respect
to the Receivables and the Related Transferred Assets to any Person. Each Person
to whom any such duties are delegated in accordance with this Section is called
a "Sub-Servicer". Notwithstanding any such delegation, Servicer shall remain
liable for the performance of all duties and obligations of Servicer pursuant to
the terms of this Agreement and the other Transaction Documents. The fees and
expenses of any Sub-Servicers shall be as agreed between Servicer and the
Sub-Servicers from time to time and none of the Trust, Trustee or the
Certificateholders or Purchasers shall have any responsibility therefor. Upon
any termination of a Servicer pursuant to Section 10.1, all Sub-Servicers
designated pursuant to this subsection by such Servicer shall automatically also
be terminated.
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(c) Termination. The designation of Servicer (and each Sub-Servicer)
under this Agreement shall automatically terminate upon termination of the Trust
pursuant to Section 12.1. AmeriServe shall not be removed as Servicer except
upon the delivery of a Termination Notice pursuant to Section 10.1.
(d) Resignation of Servicer. AmeriServe shall not resign as Servicer
unless it determines that (i) the performance of its duties is no longer
permissible under applicable law and (ii) there is no reasonable action that it
could take to make the performance of its duties permissible under applicable
law. If AmeriServe determines that it must resign for the reasons stated above,
it shall, prior to the tendering of its resignation, deliver to Trustee an
Opinion of Counsel confirming the satisfaction of the conditions set forth in
clause (i) of the preceding sentence. Notwithstanding any other provision of
this Agreement, no resignation by AmeriServe shall become effective until
Trustee or another Successor Servicer shall have assumed the responsibilities
and obligations of Servicer in accordance with Section 10.2. Trustee shall give
prompt notice to the Rating Agencies of the appointment of any Successor
Servicer.
SECTION 3.2 Duties of Servicer and Transferor.
(a) Duties of Servicer in General. Servicer shall service the
Receivables and the Related Transferred Assets and, subject to the terms and
provisions of this Agreement, shall have full power and authority, acting alone
or through any Sub- Servicer, to do any and all things in connection with such
servicing that it may deem necessary or appropriate. Trustee shall execute and
deliver to Servicer any powers of attorney or other instruments or documents
that are prepared by Servicer and stated in an Officer's Certificate to be, and
shall furnish Servicer with any documents in its possession, necessary or
appropriate to enable Servicer to carry out its servicing duties. Servicer shall
exercise the same care and apply the same policies with respect to the
collection and servicing of the Receivables and the Related Transferred Assets
that it would exercise and apply if it owned such Receivables and the Related
Transferred Assets, all in substantial compliance with applicable law and in
accordance with the Credit and Collection Policy.
Servicer shall take or cause to be taken (and shall cause each
Sub-Servicer (if any) to take or cause to be taken) all such actions as Servicer
deems necessary or appropriate to collect each Receivable and Related
Transferred Asset, all in accordance with applicable law and the Credit and
Collection Policy.
Without limiting the generality of the foregoing and subject to the
preceding paragraph and Article X, Servicer or its designee is hereby authorized
and empowered, unless such power and authority is revoked by Trustee on account
of the occurrence of a Servicer Default, (i) to instruct Trustee to make
withdrawals
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and payments from the Transaction Accounts as set forth in this Agreement (and
any Supplement and PI Agreement), (ii) to execute and deliver, on behalf of the
Trust for the benefit of the Certificateholders and Purchasers, 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 the Related Transferred Assets, (iii) to make any filings, reports, notices,
applications and registrations with, and to seek any consents or authorizations
from, the Securities and Exchange Commission and any state securities authority
on behalf of the Trust as may be necessary or appropriate to comply with any
federal or state securities laws or reporting requirements or other laws or
regulations, and (iv) to the extent permitted under and in compliance with the
Credit and Collection Policy and with all applicable laws, rules, regulations,
judgments, orders and decrees of courts and other Governmental Authorities
(whether federal, state, local or foreign) and all other tribunals, to commence
or settle collection proceedings with respect to the Receivables and otherwise
to enforce the rights and interests of the Trust and the Certificateholders and
Purchasers in, to and under the Receivables or Related Transferred Assets (as
applicable).
(b) Identification and Transfer of Collections. Servicer shall cause
Collections and all other Transferred Assets that consist of cash or cash
equivalents to be deposited into the Bank Accounts and the Transaction Accounts
pursuant to the terms and provisions of Section 3.3 and Article IV.
Following notification from an Account Bank that any item has been
returned or is uncollected and that such Account Bank has not been otherwise
reimbursed pursuant to the terms of the applicable Account Agreement for any
amounts it credited to the relevant Bank Account (and then transferred to the
Master Collection Account), Servicer shall instruct Trustee in writing to, and
Trustee shall, turn over to such Account Bank Collections in such amount from
Collections on deposit in the Master Collection Account.
(c) Modification of Receivables, Etc. So long as no Servicer Default
shall have occurred and be continuing, Servicer may adjust, and may permit each
Sub- Servicer to adjust, in accordance with Section 3.2(a) and the Credit and
Collection Policy, the Unpaid Balance of any Receivable, or otherwise amend,
modify or waive the terms of any Receivable or any contract related thereto,
provided, however, that in each case Servicer shall have determined that such
adjustment, amendment, modification and waiver is appropriate to maximize
collection of such Receivable. Servicer shall, or shall cause the applicable
Sub-Servicer to, write off Receivables from time to time in accordance with the
Credit and Collection Policy.
(d) Documents and Records. At any time when (i) an Early Amortization
Event shall have occurred and be continuing or (ii) AmeriServe is not Servicer,
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Transferor, to the extent that it is entitled to do so under the Purchase
Agreement, shall, upon the request of the then-acting Servicer, cause the
applicable Seller to deliver to Servicer, and Servicer shall hold in trust for
Transferor and Trustee in accordance with their respective interests, all
Records that evidence or relate to the Receivables and Related Transferred
Assets originated by such Seller and the contracts related to the Receivables,
or that are otherwise necessary or desirable to collect the Receivables or
Related Transferred Assets of the applicable Seller, and Servicer shall make the
same available to Trustee at one or more places selected by Trustee or its
designee.
(e) Certain Duties to the Sellers. Servicer, if other than AmeriServe,
shall, as soon as practicable after a demand by any Seller, deliver to the
Seller all documents, instruments and records in its possession that evidence or
relate to accounts receivable of AmeriServe Persons that are not Receivables or
Related Transferred Assets, and copies of all documents, instruments and records
in its possession that evidence or relate to Receivables and Related Transferred
Assets.
(f) Identification of Eligible Receivables. The initial Servicer will
(i) establish and maintain such procedures as are necessary for determining no
less frequently than each Business Day whether each Receivable qualifies as an
Eligible Receivable, and for identifying, on any Business Day, all Receivables
that are not Eligible Receivables, and (ii) include in each Daily Report
information that shows whether, and to what extent, the Receivables described in
such Daily Report are Eligible Receivables.
(g) Authorization to Act as Transferor's Agent. Without limiting the
generality of subsection (a), Transferor hereby appoints Servicer as its agent
for the following purposes: (i) specifying deposit accounts to which payments to
Transferor are to be made, (ii) making transfers among, and deposits to and
withdrawals from, all deposit accounts of Transferor for the purposes described
in the Transaction Documents, and (iii) arranging payment by Transferor of all
fees, expenses and other amounts payable by Transferor pursuant to the
Transaction Documents. Transferor irrevocably agrees that (A) it shall be bound
by all actions taken by Servicer pursuant to the preceding sentence, and (B)
Trustee and the banks holding all deposit accounts of Transferor are entitled to
accept submissions, determinations, selections, specifications, transfers,
deposits and withdrawal requests, and payments from Servicer on behalf of
Transferor.
(h) Grant of Power of Attorney. Transferor and Trustee hereby each
grant to Servicer a power of attorney, with full power of substitution, to take
in the name of Transferor and Trustee all steps that are necessary or
appropriate to endorse, negotiate, deposit or otherwise realize on any writing
of any kind held or transmitted by Transferor or transmitted or received by
Trustee (whether or not
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from Transferor) in connection with any Receivable or Related Transferred Asset.
The power of attorney that Transferor and Trustee have granted to Servicer may
be revoked by Trustee, and shall be deemed to have been revoked by Transferor,
on the date on which Trustee shall be entitled to exercise the powers granted to
Trustee pursuant to Section 3.8(b). In exercising its power granted
hereby,Servicer shall take directions from Trustee, if any, arising out of the
exercise of the rights granted under Section 11.14.
(i) Turnover of Collections. If Servicer, Transferor or any of their
respective agents or representatives shall at any time receive any cash, checks
or other instruments constituting Collections, such recipient shall segregate
such payments and hold such payments in trust for Trustee and shall, promptly
upon receipt (and in any event within one Business Day following receipt), remit
all such cash, checks and instruments, duly endorsed or with duly executed
instruments of transfer, to a Bank Account or the Master Collection Account.
(j) Annual Statement as to Compliance. Servicer will deliver to Trustee
and each Rating Agency on or before March 31 of each year, beginning with March
31, 1998 an Officer's Certificate, in substantially the form of Exhibit K,
stating, as to each signer thereof, that (i) a review of the activities of
Servicer during the preceding calendar year and of the performance by Servicer
under this Agreement (and each Supplement) during such calendar year has been
made under such officer's supervision and (ii) to the best of such officer's
knowledge, based on such review, Servicer has fulfilled all its obligations
under this Agreement (and each Supplement) throughout such year, or, if there
has been a default in the fulfillment of any such obligation, specifying each
such default known to such officer and the nature and status thereof and
remedies therefor being pursued.
(k) Intercreditor Agreements. The Servicer shall comply with the terms
of each Intercreditor Agreement as if it were the Trustee party thereto.
SECTION 3.3 Lockbox Accounts; Blocked Accounts. (a) Each Bank Account
shall be subject to an Account Agreement and maintained in the name of the
Trustee. Unless instructed otherwise (after the occurrence and continuance of an
Early Amortization Event) by Trustee, each Lockbox Bank shall be instructed by
Servicer to transfer to the related Lockbox Account, on a daily basis, all items
in the applicable Lockbox and to remit, on a daily basis (but subject to the
Lockbox Bank's customary funds availability schedule), all amounts deposited in
the Lockbox Accounts maintained with it to the Master Collection Account. Unless
instructed otherwise (after the occurrence and continuance of an Early
Amortization Event) by the Trustee, each Blocked Account Bank shall be
instructed by Servicer to remit, on a daily basis (but subject to the Blocked
Account Bank's customary funds availability schedule), all amounts on deposit in
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the Blocked Account maintained with it to the Master Collection Account. Except
as provided in this Agreement and the applicable Account Agreements, none of any
Seller, Transferor, Servicer, or any Person claiming by, through or under any
Seller, Transferor or Servicer shall have any control over the use of, or any
right to withdraw any item or amount from, any Lockbox, Lockbox Account or
Blocked Account. Servicer and Trustee are each hereby irrevocably authorized and
empowered, as Transferor's attorney-in-fact, to endorse any item deposited in a
lockbox or presented for deposit in any Lockbox Account or Blocked Account
requiring the endorsement of Transferor, which authorization is coupled with an
interest and is irrevocable. Each Bank Account shall be an Eligible Deposit
Account.
(b) Servicer shall instruct (or shall cause the applicable Seller to
instruct) all Obligors to make all payments due to Transferor or the applicable
Seller relating to or constituting Collections (or any proceeds thereof) (i) to
the Lockboxes for deposit in a Lockbox Account or (ii) directly to a Bank
Account. If Transferor or the applicable Seller receives any Collections,
Servicer shall cause such recipient to (x) segregate such payment and hold it in
trust for the benefit of Trustee, and (y) as soon as practicable, but no later
than the first Business Day following receipt of such item by such Person,
deposit such payment in a Bank Account or the Master Collection Account.
Servicer shall, and shall cause Transferor and the applicable Seller to, use
reasonable efforts to prevent the deposit of any amounts other than Collections
in any Bank Account or the Master Collection Account. If Servicer is notified by
the applicable Seller that any amount other than Collections has been deposited
in any Bank Account or the Master Collection Account (other than in accordance
with the terms of a Transaction Document), Servicer shall cause such amount to
be segregated, apart and in a different account, from the Bank Accounts and the
Transaction Accounts. After such misapplied amount has been reasonably
identified by Servicer to the appropriate Account Bank or Trustee, as the case
may be, Servicer shall promptly instruct such Account Bank or Trustee, as
applicable, to segregate such amount, and shall direct such Account Bank or
Trustee (as appropriate) to turn over such amounts to a Person designated in
such instruction (which Person shall be the applicable Seller or other
AmeriServe Person (or their designees) to whom such amounts are owed unless the
terms of a Transaction Document provide for a different result).
(c)(i) Servicer may, from time to time after the First Issuance Date,
designate a new account as a Lockbox Account (and a new lockbox or post office
box relating thereto) or a Blocked Account, and such account shall become a
Lockbox Account or a Blocked Account (and the bank at which such account is
maintained shall become a Lockbox Bank or a Blocked Account Bank, and such
lockbox or post office box shall become a Lockbox, for purposes of this
Agreement); provided that Trustee shall have received not less than 15 Business
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Days' (or such shorter number of days as is acceptable to Trustee) prior written
notice of the account (and related lockbox or post office box) and/or the bank
that are proposed to be added as a Bank Account (or Lockbox) or an Account Bank
(as applicable) and, not less than ten Business Days (or such shorter number of
days as is acceptable to Trustee) prior to the effective date of any such
proposed addition, Trustee shall have received (x) counterparts of an Account
Agreement, with each new Account Bank, duly executed by such new Account Bank
and all other parties thereto, which Account Agreement shall cover such Lockbox
and Bank Account, and (y) copies of all other agreements and documents signed by
the new Account Bank or such other parties with respect to such Lockbox and Bank
Account.
(ii) Servicer may, from time to time after the First Issuance Date,
terminate an account as a Lockbox Account or a Blocked Account or a bank as an
Account Bank; provided that no such termination shall occur unless Trustee shall
have received not less than ten Business Days' (or such shorter number of days
as is acceptable to Trustee) prior written notice of the account and/or the bank
that are proposed to be terminated as a Bank Account or an Account Bank (as
applicable) and, not less than ten Business Days (or such shorter number of days
as is acceptable to Trustee) prior to the effective date of any such proposed
termination, Trustee shall have received counterparts of an agreement, duly
executed by the applicable Account Bank and reasonably satisfactory in form and
substance to Trustee, pursuant to which such Account Bank agrees that, if it
receives any funds or items that constitute Collections on or after the
effective date of the termination of the applicable Bank Account or the
effective date of its termination as an Account Bank (as the case may be), such
Account Bank or former Account Bank (as applicable) shall cause such funds and
items to be delivered in the form received to the Master Collection Account (or
to the Trustee) promptly after such Account Bank or former Account Bank (as
applicable) discovers that it has received any such funds or items.
(iii) Notwithstanding any other provision of this Agreement, Transferor
and Servicer may at any time establish alternative collection procedures that do
not require the use of Lockbox Accounts with the consent of each Agent and any
Enhancement Provider and upon satisfaction of the Modification Condition.
SECTION 3.4 Servicing Compensation. As full compensation for its
servicing activities hereunder and under the other Transaction Documents, and as
reimbursement for any expense incurred by it in connection herewith and there
with, Servicer shall be entitled to receive a monthly servicing fee (the
"Servicing Fee") in respect of each Series and Purchased Interest, payable in
arrears on each Distribution Date in respect of each Distribution Period (or
portion thereof) during which that Series or Purchased Interest is outstanding.
The Servicing Fee in respect
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of any Series or Purchased Interest shall be payable solely as provided in the
related Supplement or PI Agreement.
Unless otherwise provided in the applicable Supplement or PI Agreement,
the Servicing Fee payable with respect to any Series or Purchased Interest shall
be calculated as follows. At any time when AmeriServe or any of its Affiliates
is Servicer, the Servicing Fee for any Distribution Period shall be equal to
one-twelfth of the product of (a) 2%, multiplied by (b) the aggregate Unpaid
Balance of the Receivables as measured on the first Business Day of that
Distribution Period, multiplied by (c) the applicable Series Collection
Allocation Percentage. If AmeriServe ceases to be Servicer, the Servicing Fee
for a Successor Servicer that is not an AmeriServe Person shall be an amount
equal to the greater of (i) the amount calculated pursuant to the preceding
sentence and (ii) an alternative amount specified by such Servicer not exceeding
the sum of (x) 110% of the aggregate reasonable costs and expenses incurred by
such Servicer during such Distribution Period in connection with the performance
of its obligations under this Agreement and the other Transaction Documents, and
(y) the other costs and expenses that are to be paid out of the Servicing Fee,
as described in the next sentence; provided that the amount provided for in
clause (x) shall not exceed one-twelfth of 2% of the aggregate Unpaid Balance of
the Receivables as measured on the first Business Day of the Distribution
Period. The fees, costs and expenses of Trustee, the Paying Agent, any
Authenticating Agent, the Lockbox Banks, the Blocked Account Banks and the
Transfer Agent and Registrar, and certain other costs and expenses payable from
the Servicing Fee pursuant to other provisions of this Agreement, and all other
fees and expenses that are not expressly stated in this Agreement, any
Supplement or any PI Agreement to be payable by the Trust or Transferor, other
than Federal, state, local and foreign income and franchise taxes, if any, or
any interest or penalties with respect thereto, of the Trust, shall be paid out
of the Servicing Fee and shall be paid by Servicer from the funds that
constitute the Servicing Fee.
SECTION 3.5 Records of Servicer and Reports to be Prepared by Servicer.
(a) Keeping of Records and Books of Account. Servicer shall maintain at
all times accurate and complete books, records and accounts relating to the
Receivables, Related Transferred Assets and related contracts of each Seller and
all Collections thereon in which timely entries shall be made. Servicer shall
maintain and implement administrative and operating procedures (including an
ability to generate duplicates of Records evidencing Receivables and the Related
Transferred Assets in the event of the destruction of the originals thereof),
and shall keep and maintain all documents, books, records and other information
that Servicer deems
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reasonably necessary for the collection of all Receivables and Related
Transferred Assets.
(b) Receivables Reviews. Servicer shall provide Trustee access to the
documentation regarding the Receivables when Trustee is required, in connection
with the enforcement of the rights of Certificateholders or the Purchasers or by
applicable statutes or regulations, to review such documentation, such access
being afforded without charge but only (i) upon reasonable request, (ii) during
normal business hours, (iii) subject to Servicer's normal security and
confidentiality procedures, (iv) at reasonably accessible offices in the
continental United States of America designated by Servicer and (v) upon five
Business Days' prior notice; provided that no notice shall be required if an
Early Amortization Event shall have occurred and be continuing.
(c) Daily Reports. Prior to noon, New York City time, on each Business
Day, Servicer shall prepare and deliver to Trustee and any Agent a report
relating to each outstanding Series and Purchased Interest, substantially in the
form specified by the applicable Supplement or PI Agreement or in such other
form as is reasonably acceptable to Trustee and Servicer (each such report being
a "Daily Report") setting out, among other things, the Base Amount and Series
Collection Allocation Percentage for that Series or Purchased Interest as of the
end of business on the preceding Business Day; provided that if, on any Business
Day, Servicer is unable to prepare and deliver a Daily Report to Trustee because
of acts of God or the public enemy, riots, acts of war, acts of terrorism,
epidemics, fire, failure of communication lines, equipment or power failure,
computer systems failure, flood, embargoes, weather, earthquakes or other
unanticipated disruptions of Servicer's ability to monitor the origination
and/or preparation of Receivables, then (x) the Base Amount for purposes of each
outstanding Series and Purchased Interest shall be the lowest Base Amount shown
in the related Daily Reports delivered during the immediately preceding month
(such amount, an "Estimated Base Amount") and (y) the Series Collection
Allocation Percentage for that Series or Purchased Interest shall be the one
shown in the Daily Report most recently delivered. Servicer may use an Estimated
Base Amount and the most recently reported Series Collection Allocation
Percentage to prepare the Daily Report until the earlier to occur of (i) the day
upon which disruption no longer prevents Servicer from preparing the Daily
Report using the actual data required by the Daily Report and delivering it to
Trustee, and (ii) the sixth Business Day following the commencement of such
disruption. Servicer shall notify each Rating Agency promptly following its use
of an Estimated Base Amount in any Daily Report.
On the second Business Day of each week, Servicer shall prepare and
deliver to Trustee, no later than 1:00 New York City time on such Business Day,
a computer tape or disk in form and substance satisfactory to Trustee,
containing the
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information (and the data fields contained in Exhibit L) that Servicer used to
prepare the last Daily Report during the immediately preceding week. The Trustee
shall have no obligation to verify whether the information contained in the
weekly tape is true and correct. Section 11.1(b) sets forth obligations of
Trustee in respect of the Daily Reports.
(d) Monthly Report. On each Report Date, Servicer shall prepare and
deliver to (i) Trustee and the Rating Agencies a report relating to each
outstanding Series and Purchased Interest, substantially in the form specified
by the applicable Supplement or PI Agreement or in such other form as is
reasonably acceptable to Trustee and Servicer (each such report being a "Monthly
Report") and (ii) Trustee a computer tape or disk in form and substance
satisfactory to Trustee, containing the information (and the data fields
contained in Exhibit L) that Servicer used to prepare such Monthly Report (each
such tape or disk being a "Monthly Tape"). Section 11.1(b) sets forth
obligations of Trustee in respect of the Monthly Reports and Monthly Tapes.
(e) Notice of Seller Change Events; Supplements to Monthly Reports.
Sections 1.7 and 1.8 of the Purchase Agreement describe circumstances under
which (i) additional Sellers may be added to the Purchase Agreement and (ii) a
Seller may terminate its status as Seller under the Purchase Agreement (each
such event being a "Seller Change Event"). Those Sections of the Purchase
Agreement require AmeriServe to give prior written notice to Transferor of the
occurrence of a Seller Change Event, and Transferor hereby agrees to give prompt
written notice of its receipt of any such notice to Trustee and the Rating
Agencies. If the notice is given to Trustee, then, within five Business Days
after the receipt of the notice by Trustee (or such later date, as specified in
the notice, on which the applicable Seller Change Event shall become effective),
Servicer shall deliver to Trustee and the Rating Agencies a supplement to the
Monthly Report then in effect for each outstanding Series or Purchased Interest,
which supplement shall show the calculation (complete with the historical and/or
pro forma receivables data necessary to perform such calculation) of (A) the
Required Receivables and the applicable reserve ratios (as described in each
Supplement or PI Agreement) to reflect the addition of accounts receivable
originated by any Person that is being added to the Purchase Agreement as a
Seller, and the exclusion of any Receivables originated by any Person that is
terminating its status as a Seller (as applicable), and (B) the Loss Discount
and the Purchase Discount Reserve Ratio for any such Person that is being added
to the Purchase Agreement as a Seller. For purposes of all calculations
hereunder and under the Purchase Agreement, the Required Receivables, such
reserve ratios and (if applicable) the Loss Discount and the Purchase Discount
Reserve Ratio for the relevant Person shown in such supplement shall supersede
and/or supplement the calculation of such items in the then outstanding Monthly
Report, effective as of the fifth Business Day following
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Trustee's receipt of such notice (or such later date, as specified in such
notice, on which the applicable Seller Change Event shall become effective).
SECTION 3.6 Monthly Servicer's Certificate. On each Report Date,
Servicer shall deliver to Trustee, the Paying Agent, Transferor and the Rating
Agencies a certificate of an Authorized Officer of Servicer substantially in the
form of Exhibit C, with such additions as may be required by any Supplement.
SECTION 3.7 Servicing Report of Independent Public Accountants; Forms
10-Q and 10-K. (a)(i) On or before 120 days after the end of each fiscal year of
Transferor beginning with the end of Transferor's fiscal year 1997, Servicer
shall, as an expense of Servicer paid out of the Servicing Fee, cause Ernst &
Young or another firm of recognized independent public accountants that is
generally recognized as being among the "big six" (which may also render other
services to Servicer, the Sellers or Transferor) to furnish a report to Trustee,
Servicer, the Rating Agencies and Transferor (which report shall be addressed to
Trustee and shall relate to Transferor's most recently ended fiscal year). The
accountants' report shall set forth the results of their performance of the
procedures described in Exhibit D with respect to the Monthly Reports and Daily
Reports delivered to Trustee pursuant to Section 3.5 during the prior fiscal
year.
(ii) Each accountants' report shall state that the accountants have
compared the amounts contained in the Monthly Reports and Daily Reports
contemplated by Exhibit D and delivered to Trustee during the period covered by
the report with the documents and records (including computer records) from
which the amounts were derived and that, on the basis of such comparison, the
amounts are in agreement with the documents and records, except for such
exceptions as they believe to be immaterial and such other exceptions as shall
be set forth in the report. Except as provided otherwise in a Supplement or PI
Agreement, as the case may be, a copy of the report may be obtained by any
Investor Certificateholder or Purchaser, as the case may be, by a request in
writing to Trustee addressed to the Corporate Trust Office.
(b) Promptly after the filing of any such reports, if applicable, with
the Securities and Exchange Commission, Servicer shall provide each of the
Rating Agencies and the Trustee with copies of each Quarterly Report on Form
10-Q and each Annual Report on Form 10-K of Servicer.
SECTION 3.8 Rights of Trustee.
(a) Trustee has the exclusive dominion and control over the Bank
Accounts, and, until such time as the Trust shall have been terminated pursuant
to Section 12.1 and all amounts owed under the Transaction Documents have been
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paid in full, Transferor shall take any action that Trustee may reasonably
request to effect or evidence such dominion and control. At any time following
the occurrence of a Servicer Default, Trustee is hereby authorized to give
notice to the Account Banks, as provided in the Account Agreements, of the
revocation of Servicer's authority to give instructions or take any other
actions with respect to the Bank Accounts that Servicer would otherwise be
authorized to give or to take.
(b) At any time following the designation of a Servicer other than
AmeriServe until a Successor Servicer (if other than Trustee) has been
appointed:
(i) Trustee may direct any Obligors of Receivables to pay all
amounts payable under any Receivable or any Related Transferred Assets
directly to Trustee or its designee; provided that Trustee shall
provide the applicable Seller with a copy of such notice at least one
Business Day prior to sending it to any Obligor and consult in good
faith with the applicable Seller as to the text of the notice.
(ii) Trustee may direct any Seller to make payment of all
amounts payable to Transferor under any Transaction Document to which
the Seller is a party directly to Trustee or its designee.
(iii) Transferor and Servicer shall, at Trustee's request and
as an expense of Servicer paid out of the Servicing Fee, give notice of
the Trustee's ownership of the Receivables and the Related Transferred
Assets to each Obligor and direct that payments be made directly to
Trustee or its designee.
(iv) Transferor shall, and shall cause (in accordance with
the Purchase Agreement) the Sellers to, at Trustee's request, (A)
assemble all of the Records that evidence or relate to the Receivables
and Related Transferred Assets originated by each Seller and the
contracts related to the Receivables, or that are otherwise necessary
or desirable to collect the Receivables and Related Transferred Assets,
and shall make the same available to Trustee at one or more places
selected by Trustee or its designee, (B) segregate all cash, checks and
other instruments received by it from time to time constituting
Collections in a manner acceptable to Trustee and shall, promptly upon
receipt (and, subject to Section 3.2(i), in no event later than the
first Business Day following receipt), remit all such cash, checks and
instruments, duly endorsed or with duly executed instruments of
transfer, to a Bank Account or the Master Collection Account and (C)
permit, upon not less than two Business Days' prior written notice, any
Successor Servicer and its agents, employees and assignees access to
their respective facilities and their respective Records.
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(c) Each of Transferor and Servicer hereby authorizes Trustee, from
time to time after the designation of a Servicer other than AmeriServe, to take
any and all steps in Transferor's name and on behalf of Transferor and Servicer
that are necessary or appropriate, in the reasonable determination of Trustee,
to collect all amounts due under any and all Receivables or Related Transferred
Assets, including endorsing the name of Transferor or the applicable Seller on
checks and other instruments representing Collections and enforcing such
Receivables and the Related Transferred Assets.
(d) Transferor hereby irrevocably appoints Trustee to act as
Transferor's attorney-in-fact, with full authority in the place and stead of
Transferor and in the name of Transferor or otherwise, from time to time after
the designation of a Servicer other than AmeriServe, to take (subject to Section
11.14) any action and to execute any instrument or document that Trustee, in its
reasonable determination, may deem necessary to accomplish the purposes of this
Agreement, including:
(i) to ask, demand, collect, xxx for, recover, compromise,
receive and give acquittance and receipts for moneys due and to become
due under or in respect of any Receivable or any Related Transferred
Asset;
(ii) to receive, endorse, and collect any drafts or other
instruments, documents and chattel paper, in connection with clause
(i);
(iii) to file any claims or take any action or institute any
proceedings that Trustee in its reasonable determination may deem
necessary or appropriate for the collection of any of the Receivables
or any Related Transferred Asset or otherwise to enforce the rights of
Trustee and the Certificateholders and the Purchasers with respect to
any of the Receivables or any Related Transferred Asset; and
(iv) to perform the affirmative obligations of Transferor
under any Transaction Document.
Transferor hereby acknowledges, consents and agrees that the power of attorney
granted pursuant to this Section is irrevocable and coupled with an interest.
SECTION 3.9 Ongoing Responsibilities of AmeriServe. Anything herein to
the contrary notwithstanding:
(a) If at any time AmeriServe shall not be Servicer, it shall
deliver all Collections received or deemed received by it or its
Subsidiaries to Trustee no later than one Business Day after receipt
or deemed receipt
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thereof and Trustee shall distribute such Collections to the same
extent as if such Collections had actually been received from the
related Obligor on the applicable dates. So long as AmeriServe or any
of its Subsidiaries shall hold any Collections or deemed Collections
required to be paid to Trustee, each of them shall hold such amounts
in trust (and separate and apart from its own funds) and shall clearly
xxxx its records to reflect such trust. AmeriServe hereby grants to
Trustee an irrevocable power of attorney, with full power of
substitution, coupled with an interest, upon the occurrence of a
Servicer Default, to take in the name of AmeriServe all steps
necessary or appropriate to endorse, negotiate or otherwise realize on
any writing or other right of any kind held or transmitted by
AmeriServe or transmitted and received by Trustee (whether or not from
AmeriServe) in connection with any Receivable or Related Transferred
Asset.
(b) In addition, if at any time AmeriServe shall not be
Servicer, it shall act (if the Successor Servicer so requests) as the
data processing agent of Servicer and, in such capacity, AmeriServe
shall conduct (and shall cause any other necessary Persons to conduct)
the data processing functions of the administration of the
Receivables, the Related Transferred Assets and the Collections
thereon in substantially the same way that AmeriServe (or its
Sub-Servicers) conducted such data processing functions while
AmeriServe acted as Servicer. AmeriServe and each such other Person
shall be entitled to reasonable compensation for such service to be
paid from the Servicing Fee.
(c) Notwithstanding any termination of AmeriServe as Servicer
hereunder, AmeriServe shall continue to indemnify Trustee on the terms
set out in Section 11.5 with respect to circumstances existing, or
actions taken or omitted, prior to such termination.
SECTION 3.10 Further Action Evidencing Transfers. Servicer shall cause
all UCC financing statements and continuation statements and any other necessary
documents relating to the right, title and interest of Trustee in and to the
Transferred Assets to be promptly recorded, registered and filed, and at all
times to be kept recorded, registered and filed, all in such manner and in such
places as may be required by law fully to preserve, maintain and protect the
right, title and interest of Trustee hereunder in and to all property comprising
the Transferred Assets. Servicer shall deliver to Trustee file-stamped copies
of, or filing receipts for, any document recorded, registered or filed as
provided above, as soon as available following such recording, registration or
filing. Transferor shall cooperate fully with Servicer in connection with the
obligations set forth above and will execute any and all documents that are
reasonably required to fulfill the intent of this section.
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If Transferor or Servicer fails to perform any of its agreements or
obligations under any Transaction Document and does not remedy such failure
within the applicable cure period, if any, then Trustee or its designee may (but
shall not be required to) itself perform, or cause performance of, such
agreement or obligation, and the reasonable expenses of Trustee or its designee
incurred in connection therewith shall be payable by Servicer as provided in
Section 11.5 and (if applicable) by Transferor as provided in Section 7.3.
ARTICLE IV RIGHTS OF CERTIFICATEHOLDERS; ALLOCATIONS
SECTION 4.1 Rights of Certificateholders. Each Series of Investor
Certificates shall collectively represent a fractional undivided beneficial
interest (as to any Series, the "Series Interest") in the Trust, and the amount
of that undivided beneficial interest shall equal the Series Collection
Allocation Percentage for that Series from time to time, provided that so long
as Series 1998-1 is outstanding, only Series 1998-1 shall represent a fractional
undivided interest in the Tricon Assets. Each Certificate within a Series shall
represent a partial ownership interest in the related Series Interest,
representing the right to receive, to the extent necessary to make the required
payments with respect to that Certificate at the times and in the amounts
specified in this Article IV and in the related Supplement, the portion of
Collections allocable to Investor Certificateholders of such Series pursuant to
this Agreement and such Supplement, funds on deposit in the Transaction Accounts
allocable to Investor Certificateholders of such Series and funds available
pursuant to any related Enhancement. Unless the applicable Supplement or PI
Agreement provides otherwise, the Investor Certificates of any Series or class
shall not represent any interest in any funds allocable to, or Enhancement for
the benefit of, any other Series or Purchased Interest. The Transferor
Certificate shall represent an interest in the Trust (the "Transferor Interest")
consisting of the right to receive current and deferred transfer payments in
respect of the various Series and Purchased Interests outstanding from time to
time at the times and in the amounts specified in the related Supplements and PI
Agreements.
SECTION 4.2 Establishment of Transaction Accounts. (a) On or prior to
the date of this Agreement, Trustee has established, and until the Trust is
terminated Trustee shall (except as expressly permitted or required below)
maintain, in the name of Trustee and for the benefit of the Certificateholders
and Purchasers, the following accounts:
(i) an account which shall be called the "Master Collection
Account" and into which all Collections and all other Transferred
Assets consisting of cash or cash equivalents shall be transferred on
a daily basis from the Bank Accounts;
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(ii) an account which shall be called the "Carrying Cost
Account" and into which funds allocated to a particular Series or
Purchased Interest shall be allocated from time to time to cover
carrying costs allocable to that Series or Purchased Interest
(including interest payable on, and the Servicing Fee allocated to,
that Series or Purchased Interest);
(iii) an account which shall be called the "Equalization
Account" and into which funds will from time to time be transferred
from the Master Collection Account to compensate for fluctuations in
the Base Amounts for the various outstanding Series and Purchased
Interests; and
(iv) an account which shall be called the "Principal Funding
Account" and into which funds will from time to time be transferred in
anticipation of distributions to the Holders of Investor Certificates
or Purchasers on account of their respective principal investments.
(b) In addition, if an Early Amortization Period occurs with respect to
any Series or Purchased Interest, and if the related Supplement or PI Agreement
so provides, Trustee shall establish an additional account which shall be called
the "Holdback Account" and into which funds that would otherwise be remitted by
Trustee to the Transferor in respect of the Transferor Certificate will be
deposited to the extent so provided in the related Supplement or PI Agreement.
(c) The Master Collection Account, the Carrying Cost Account, the
Equalization Account, the Principal Funding Account, any Holdback Account and
any additional accounts required by any Supplement or PI Agreement to be
established (unless otherwise indicated in such Supplement or PI Agreement) are
collectively called the "Transaction Accounts." Each of the Transaction Accounts
shall be established and maintained as an Eligible Deposit Account and shall
bear a designation clearly indicating that funds deposited therein are held for
the benefit of the Certificateholders and the Purchasers. If any Transaction
Account ceases to be an Eligible Deposit Account, Servicer shall cause Trustee
to open a substitute Transaction Account that is an Eligible Deposit Account and
transfer the funds in the existing Transaction Account to the substitute
Transaction Account, and thereafter all references in any Transaction Document
to the original Transaction Account shall be deemed instead to refer to the
substitute Transaction Account.
(d) The Master Collection Account, the Carrying Cost Account, the
Equalization Account, the Principal Funding Account and any Holdback Account
shall be held by Trustee for the benefit of all Certificateholders and
Purchasers. However, there shall be established within each of the Carrying Cost
Account, the Equalization Account, the Principal Funding Account and any
Holdback Account an administrative sub-account for each outstanding Series and
Purchased Interest
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and, if so provided in the applicable Supplement, there may be established
within the Master Collection Account an administrative sub-account; provided,
that any administrative sub-account can be held by the Trustee as a separate
account, subject in each case to clause (c) above. Funds allocated to the
Carrying Cost Account, the Equalization Account, the Principal Funding Account
and any Holdback Account pursuant to any Supplement or PI Agreement shall be
allocated to the applicable Series' or Purchased Interest's sub-account and
shall be available solely to the Holders of the Certificates in that Series or
the Purchaser of that Purchased Interest, as applicable, except to the extent
that such funds are subsequently reallocated to another Series or Purchased
Interest, or the Transferor, in accordance with the terms of the applicable
Supplement or Purchase Agreement and this Agreement. Any additional Transaction
Accounts established pursuant to any Supplement or PI Agreement shall be held by
Trustee for the benefit of only the related Series or Purchased Interest.
(e) Trustee shall possess (for its benefit and for the benefit of the
Certificateholders and the Purchasers) all right, title and interest in and to
all funds on deposit from time to time in each of the Transaction Accounts and
in all proceeds thereof. The Transaction Accounts shall be under the sole
dominion and control of Trustee for the benefit of the applicable
Certificateholders and/or Purchasers. Each of Servicer and Trustee agrees that
it shall have no right of setoff against, and no right otherwise to deduct from,
any funds held in any of the Transaction Accounts or the Bank Accounts for any
amount owed to it by the Trust, any party hereto or any Certificateholder or
Purchaser.
(f) The Trustee shall provide the Servicer with monthly statements with
respect to activity in the Transaction Accounts, in a form that the Trustee
customarily provides in its capacity as a trustee in connection with
securitization transactions of the type contemplated hereby.
SECTION 4.3 Trust-Level Calculations and Funds Allocations.
(a) Allocation of Daily Collections. On each Business Day, Servicer
shall determine the amount of collected funds received in the Master Collection
Account (other than (i) funds that are required to be returned to AmeriServe
Persons (or their designees) pursuant to Section 3.3(b) and (ii) funds that
represent Tricon Collections) since the preceding Business Day and shall
allocate to each outstanding Series (other than Series 1998-1) and Purchased
Interest a share of such funds in an amount equal to the product of the
applicable Series Collection Allocation Percentage and the amount of such funds.
In addition, the Servicer shall on each Business Day, so long as Series 1998-1
is outstanding, determine the amount of Tricon Collections since the preceding
Business Day and shall allocate such amounts to Series 1998-1. The portion of
such funds allocated to any Series
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or Purchased Interest shall be further allocated and otherwise dealt with in
accordance with the terms of the related Supplement or PI Agreement. In
addition, funds initially allocated to a Series or Purchased Interest on any
Business Day that are designated as Shared Investor Collections shall be
reallocated to other Series or Purchased Interests pro rata based upon the
respective Shortfalls (if any) of the other Series and Purchased Interests.
(b) Allocation of Write-Offs and Dilution. In each Monthly Report
relating to a Series or Purchased Interest that is in an Early Amortization
Period, Servicer shall calculate the amount of (i) Write-Offs (net of
Recoveries) and (ii) Dilutions as to which no settlement payment has been made
pursuant to Section 3.1 and 3.5 of the Purchase Agreement, in each case during
the related Calculation Period (or the portion of that Calculation Period
falling in the Early Amortization Period) and shall allocate to such Series or
Purchased Interest a portion of the amounts referred to in clauses (i) and (ii)
equal to the product of each such amount and the related Series Loss Allocation
Percentage.
SECTION 4.4 Investment of Funds in Transaction Accounts. On any day
when there are any funds on deposit in any Transaction Account (after giving
effect to the allocations of such funds required by this Article IV and the
various Supplements and PI Agreements), Trustee, at the written direction of
Transferor (or Servicer, on its behalf) shall invest and reinvest monies on
deposit in such Transaction Account (in the name of Trustee) in such Eligible
Investments as are specified in a notice from Servicer, subject to the
restrictions set forth hereinafter; provided, however, that whenever an Early
Amortization Event shall be existing, such investments shall be made at the
written direction of the Servicer. Money in any Transaction Account shall be
invested in Eligible Investments that mature no later than one Business Day
prior to the next Distribution Date. All Eligible Investments made from funds in
any Transaction Account, and the interest, dividends and income received thereon
and therefrom and the net proceeds realized on the sale thereof, shall be
deposited in such Transaction Account. Trustee may liquidate an Eligible
Investment prior to maturity if such liquidation would not result in a loss of
all or part of the principal portion of such Eligible Investment or if, prior to
the maturity of such Eligible Investment, a default occurs in the payment of
principal, interest or any other amount with respect to such Eligible
Investment. In the absence of written direction, the Trustee shall invest funds
in any Transaction Account in Eligible Investments described in clause (h)
thereof. Trustee shall have no liability in connection with investment losses
incurred on Eligible Investments. It is intended for income tax purposes that
the income earned through investment of funds in the Transaction Accounts shall
be treated as income of Transferor.
SECTION 4.5 Attachment of Transaction Accounts. If Trustee receives
written notice that any Transaction Account has or will become subject to any
writ,
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judgment, warrant of attachment, execution or similar process, Trustee shall
(notwithstanding any other provision of the Transaction Documents) promptly
notify Transferor, Servicer, the Certificateholders and the Agents thereof, and
shall not deposit or transfer funds into such Transaction Account but shall
cause funds otherwise required to be deposited into such Transaction Account to
be held in another account pending distribution of such funds in the manner
required by the Transaction Documents.
ARTICLE V DISTRIBUTIONS AND REPORTS
DISTRIBUTIONS SHALL BE MADE, AND REPORTS SHALL BE PROVIDED, TO
CERTIFICATEHOLDERS AND PURCHASERS AS SET FORTH IN THE APPLICABLE SUPPLEMENT OR
PI AGREEMENT.
ARTICLE VI THE CERTIFICATES
SECTION 6.1 The Certificates. The Investor Certificates in each Series
shall be substantially in the forms contemplated by the Supplements pursuant to
which the Investor Certificates are issued, and the Transferor Certificate shall
be substantially in the form of Exhibit E. Upon issuance, all Certificates shall
be executed and delivered by Transferor to Trustee for authentication and
redelivery as provided in Sections 6.2 and 6.10. Except to the extent provided
otherwise in an applicable Supplement, Investor Certificates shall be issued in
minimum denominations of $1,000,000 and in integral multiples of $100,000 and
shall not be subdivided for resale into Certificates smaller than a Certificate,
the initial offering price for which would have been at least $1,000,000.
Each Certificate issued as a Definitive Certificate shall be executed
by manual or facsimile signature on behalf of Transferor by its President or any
Vice President or by any attorney-in-fact duly authorized to execute the
Definitive Certificate on behalf of any such officer. The Definitive
Certificates shall be authenticated on behalf of the Trustee by manual signature
of a duly authorized signatory of Trustee. Definitive Certificates bearing the
manual or facsimile signature of the individual who was, at the time when the
signature was affixed, authorized to sign on behalf of Transferor or the Trustee
(as applicable) shall be valid and binding, notwithstanding that the individuals
or any of them ceased to be so authorized prior to the authentication and
delivery of the Definitive Certificates or does not hold such office on the date
of issuance of such Definitive Certificates. No Definitive Certificates shall be
entitled to any benefit under this Agreement, or be valid for any purpose,
unless there appears on the Definitive Certificate a certificate of
authentication executed by or on behalf of Trustee by the manual signature of a
duly authorized signatory, and the certificate of authentication upon any
Definitive Certificate shall be conclusive evidence, and the only evidence, that
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the Definitive Certificate has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Agreement. Except as otherwise provided
in the applicable Supplement, all Definitive Certificates shall be dated the
date of their authentication.
As provided in any Supplement, Investor Certificates of any Series may
be offered and sold pursuant to an offering registered under the Securities Act
or issued and sold pursuant to an exemption from the Securities Act. Any Series
sold pursuant to a public offering registered under the Securities Act, or
pursuant to Rule 144A, Regulation S or another exemption under the Securities
Act, may be delivered in book-entry form as provided in Section 6.11.
SECTION 6.2 Authentication of Certificates. Contemporaneously with the
initial assignment and transfer of Receivables and other Transferred Assets to
the Trustee, Trustee shall authenticate and deliver the Transferor Certificate
to Transferor. On each Issuance Date, upon the order of Transferor, Trustee
shall authenticate and deliver to Transferor (or to such other Person or Persons
as the Transferor shall designate) the Series of Certificates that are to be
issued originally on such Issuance Date pursuant to the applicable Supplement.
SECTION 6.3 Registration of Transfer and Exchange of Certificates. (a)
Trustee, as agent for Transferor, shall keep, or shall cause to be kept, at the
office or agency to be maintained in accordance with the provisions of Section
11.16, a register in written form or capable of being converted into written
form within a reasonable time (the "Certificate Register") in which, subject to
such reasonable regulations as it may prescribe, a transfer agent and registrar
(which may be Trustee) (the "Transfer Agent and Registrar") shall provide for
the registration of the Certificates and of transfers and exchanges of the
Certificates as herein provided. Transferor hereby appoints Trustee as the
initial Transfer Agent and Registrar and Trustee hereby accepts such
appointment.
Transferor, or Trustee as agent for Transferor, may revoke the
appointment as Transfer Agent and Registrar and remove the then-acting Transfer
Agent and Registrar if Trustee or Transferor (as applicable) determines in its
sole discretion that the then-acting Transfer Agent and Registrar has failed to
perform its obligations under this Agreement in any material respect. The
then-acting Transfer Agent and Registrar shall be permitted to resign as
Transfer Agent and Registrar upon 30 days' prior written notice to Trustee,
Transferor and Servicer; provided that such resignation shall not be effective
and the then-acting Transfer Agent and Registrar shall continue to perform its
duties as Transfer Agent and Registrar until Trustee has appointed a successor
Transfer Agent and Registrar reasonably acceptable to Transferor and the Person
so appointed has given Trustee written notice that it accepts the appointment.
The provisions of Sections 11.1 through
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11.5 shall apply to the Transfer Agent and Registrar as if all references to
"Trustee" in the applicable provisions of Sections 11.1 through 11.5 were
references to the Transfer Agent and Registrar.
It is intended that the registration of Certificates that is described
in this Section comply with the registration requirements contained in Section
163 of the Internal Revenue Code.
(b) No transfer of all or any part of the Transferor Certificate shall
be made unless (i) Transferor shall have given the Rating Agencies and Trustee
prior written notice of the proposed transfer, (ii) the Modification Condition
shall have been satisfied in connection with the proposed transfer and (iii)
Transferor shall have delivered to Trustee, the Rating Agencies, each Purchaser
and each Enhancement Provider a Tax Opinion for each outstanding Series of
Investor Certificates, Purchased Interest and Enhancement (provided that such
opinion in respect of each Series or Purchased Interest shall be limited to the
Tax Opinion required by the related Supplement or PI Agreement). To the extent
any interest in the Transferor Certificate is transferred pursuant to this
Section 6.3(b), all payments to Transferor in respect of the Transferor Interest
or the Transferor Certificate thereafter shall be made pro rata to all Persons
owning any portion of the Transferor Certificate according to such percentages
as are set forth in the notice delivered pursuant to clause (i) above.
The portion of the Transferor Interest relating to the Tricon Assets
shall be referred to herein as the "Tricon Transferor Interest" and as of any
date of determination shall be equal to the excess of (x) the Unpaid Balance of
the Tricon Receivables then owned by the Trust, over (y) the Aggregate Invested
Amount (as defined in the Series 1998-1 Supplement) of the Series 1998-1
Investor Certificates. Subject to compliance with the first sentence of this
clause (b), the Transferor may transfer to AmeriServe a portion (but only a
portion) of the Tricon Transferor Interest. Such portion shall be calculated at
all times in a manner so that the Transferor retains an interest in the Tricon
Transferor Interest (the "Retained Tricon Transferor Interest") equal to the
lesser of (x) ten percent (10%) of the Aggregate Invested Amount (as defined in
the Series 1998-1 Supplement) of the Series 1998-1 Investor Certificates and (y)
the outstanding amount of the Tricon Transferor Interest. Any Tricon Write-Offs
shall be allocated first to the then outstanding Retained Tricon Transferor
Interest and then to the remaining portion of the Tricon Transferor Interest.
"Tricon Write-Off" means, with respect to a Tricon Receivable, that, as the
result of the financial inability to pay of Tricon, such Tricon Receivable has
been written off in accordance with the Credit and Collection Policy.
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Any attempted transfer of all or any part of the Transferor Certificate
other than as provided above shall be void and of no effect.
(c) Subject to the requirements of subsection (e), if applicable,
having been fulfilled, upon surrender for registration of transfer of any
Certificate, and, in the case of Investor Certificates, at any office or agency
of the Transfer Agent and Registrar maintained for such purpose, Transferor
shall execute, and Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of the
appropriate class and Series that are in authorized denominations of like
aggregate fractional interest in the related Series Interest that bear numbers
that are not contemporaneously outstanding.
At the option of an Investor Certificateholder, its Investor
Certificates may be exchanged for other Investor Certificates of the same class
and Series (and bearing the same interest rate as the Investor Certificate
surrendered for registration of exchange) of authorized denominations of like
aggregate fractional interests in the related Series Interest and bearing
numbers that are not contemporaneously outstanding, upon surrender of the
Investor Certificates to be exchanged at any such office or agency. Whenever any
Investor Certificates are so surrendered for exchange, Transferor shall execute,
and Trustee shall authenticate and deliver, the appropriate number of Investor
Certificates of the class and Series that the Investor Certificateholder making
the exchange is entitled to receive. Every Investor Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied by a
written instrument of transfer in a form satisfactory to Trustee or the Transfer
Agent and Registrar duly executed by the Certificateholder thereof or his
attorney-in-fact duly authorized in a writing delivered to the Transfer Agent
and Registrar.
No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Transfer Agent and Registrar may require the
Certificateholder to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Investor Certificates.
All Certificates surrendered for registration of transfer and exchange
shall be cancelled and disposed of in a manner satisfactory to Trustee.
(d) Certificates may be surrendered for registration of transfer or
exchange at the office of the Transfer Agent and Registrar designated in Section
13.6.
(e) Certificateholders holding Definitive Certificates shall not sell,
transfer or otherwise dispose of the Certificates unless the sale, transfer or
disposition is being made pursuant to an exemption from the registration
requirements of the Securities Act and applicable state securities laws. If the
applicable Supplement so
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provides, prior to the proposed sale, transfer or disposition, the
Certificateholder and the proposed transferee each provide Trustee and
Transferor with representations set forth in such Supplement, and, if requested
by Trustee or Transferor, an Opinion of Counsel in form and substance
acceptable to Trustee and Transferor, concerning the proposed sale, transfer or
disposition and the availability of the exemption.
(f) The Investor Certificates shall bear such restrictive legends as
shall be set forth in the applicable Supplements.
SECTION 6.4 Mutilated, Destroyed, Lost or Stolen Certificates. If (a)
any mutilated Certificate is surrendered to the Transfer Agent and Registrar, or
the Transfer Agent, and Registrar receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there is delivered to the
Transfer Agent and Registrar, Trustee and Transferor such security or indemnity
as may be required by them to hold each of them and the Trust harmless, then, in
the absence of notice to Trustee that such Certificate has been acquired by a
bona fide purchaser, Transferor shall execute and, upon the request of
Transferor, Trustee shall authenticate and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate
of like class, Series, tenor, terms and principal amount and bearing a number
that is not contemporaneously outstanding. In connection with the issuance of
any new Certificate under this section, Trustee or the Transfer Agent and
Registrar may require the payment by the Certificateholder of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the reasonable fees and expenses of
Trustee and Transfer Agent and Registrar) connected therewith. Any duplicate
Certificate issued pursuant to this section shall constitute conclusive and
indefeasible evidence of ownership of an interest in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Certificate shall be
enforceable by anyone, and shall be entitled to all the benefits of this
Agreement equally and proportionately with any and all Certificates of the same
class and Series that are duly issued hereunder.
SECTION 6.5 Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, Transferor, Trustee, the Paying Agent,
the Transfer Agent and Registrar and any agent of any of them may treat the
Person in whose name any Certificate is registered in the Certificate Register
as the owner of such Certificate for the purpose of receiving distributions
pursuant to Article V and for all other purposes whatsoever, and none of
Transferor, Trustee, the Paying Agent, the Transfer Agent and Registrar or any
agent of any of them shall be affected by any notice to the contrary; provided
that, in determining whether the required number or type of Holders or other
Persons have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Certificates
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and Purchased Interests owned by Transferor, Servicer or any Affiliate thereof
shall be disregarded and deemed not to be outstanding, except that, in
determining whether Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Certificates
and Purchased Interests that Trustee knows to be so owned shall be so
disregarded. Certificates and Purchased Interests so owned that have been
pledged in good faith shall not be disregarded and may be regarded as
outstanding if the pledgee establishes to the satisfaction of Trustee the
pledgee's right so to act with respect to such Certificates or Purchased
Interests and that the pledgee is not Transferor, Servicer or an Affiliate
thereof.
SECTION 6.6 Appointment of Paying Agent. The Paying Agent initially
shall be Trustee. Transferor hereby appoints the Paying Agent as its agent to
make distributions to Certificateholders and Purchasers pursuant to the
applicable Supplements or PI Agreements and to report the amounts of the
distributions to Trustee, and the Paying Agent hereby accepts such appointment.
Any Paying Agent shall have the revocable power to withdraw funds from the
Master Collection Account for the purpose of making such distributions. Trustee
or, at any time when Trustee is also the Paying Agent, Transferor may revoke
such power of the Paying Agent and remove the Paying Agent if Trustee or
Transferor (as applicable) determines in its sole discretion that the Paying
Agent shall have failed to perform its obligations under this Agreement in any
material respect. The Paying Agent shall be permitted to resign as Paying Agent
upon 30 days' prior written notice to Trustee, Transferor, Servicer and the
Rating Agencies. Any resignation or removal of the Paying Agent, and appointment
of a successor Paying Agent, shall not become effective until the appointment
has been accepted by the successor Paying Agent. If no successor Paying Agent
shall have been appointed and shall have accepted appointment within 30 days
after the giving of the notice of resignation, the resigning Paying Agent may
petition any court of competent jurisdiction to appoint a successor Paying
Agent. In the event that Trustee shall no longer be the Paying Agent, Trustee
shall appoint a successor Paying Agent (which shall be a bank or trust company)
reasonably acceptable to Transferor, which appointment shall be effective on the
date on which the Person so appointed gives Trustee written notice that it
accepts the appointment. Trustee shall cause the successor Paying Agent or any
additional Paying Agent appointed by Trustee to execute and deliver to Trustee
an instrument in which it shall agree with Trustee that, as Paying Agent, it
will hold all sums, if any, held for payment to the Certificateholders and
Purchasers in trust for the benefit of the Certificateholders and Purchasers
entitled thereto until the sums shall be paid to the Certificateholders and
Purchasers. The Paying Agent shall return all unclaimed funds to Trustee, and
upon removal of a Paying Agent such Paying Agent shall also return all funds in
its possession to Trustee. The provisions of Sections 11.1 through 11.5 shall
apply to the Paying
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Agent as if all references in the applicable provisions thereof to "Trustee"
were references to the Paying Agent.
SECTION 6.7 Access to List of Certificateholders' Names and Addresses.
Trustee will furnish or cause to be furnished by the Transfer Agent and
Registrar to Transferor, Servicer, any Seller or the Paying Agent, within two
Business Days after receipt by Trustee of a written request therefor from
Servicer or the Paying Agent, a list in the form Servicer or the Paying Agent
may reasonably require of the names and addresses of the Certificateholders or
Purchasers as of the most recent Distribution Date. If (x) any Holder or group
of Holders of Investor Certificates in any Series evidencing not less than 10%
of the aggregate unpaid principal amount of the Series or (y) any Purchaser or
group of Purchasers of Purchased Interests under any PI Agreement holding not
less than 10% of the Purchased Interests then outstanding under such PI
Agreement (in either case, the "Applicant") applies in writing to Trustee, and
the application states that the Applicant desires to communicate with other
Certificateholders or Purchasers, as applicable, with respect to their rights
under this Agreement, any Supplement, the Certificates or any PI Agreement and
is accompanied by a copy of the communication that the Applicant proposes to
transmit, then Trustee, after having been adequately indemnified by the
Applicant for its costs and expenses, shall afford or shall cause the Transfer
Agent and Registrar to afford the Applicant access during normal business hours
to the most recent list of Certificateholders or Purchasers, as applicable, held
by Trustee, within five Business Days after the receipt of the application and
indemnification. The list shall be as of a date no more than 45 days prior to
the date of receipt of the Applicant's request.
Every Certificateholder, by receiving and holding a Certificate, agrees
with Trustee that neither Trustee, the Transfer Agent and Registrar, Transferor,
Servicer, any Seller nor any of their respective agents shall be held
accountable by reason of the disclosure of any information as to the names and
addresses of the Certificateholders hereunder, regardless of the sources from
which the information was derived.
SECTION 6.8 Authenticating Agent. (a) Trustee may appoint one or more
authenticating agents (each an "Authenticating Agent") with respect to the
Certificates that shall be authorized to act on behalf of Trustee in
authenticating the Certificates in connection with the issuance, delivery,
registration of transfer, exchange or repayment of the Certificates. Either
Trustee or the Authenticating Agent, if any, then appointed and acting on behalf
of Trustee shall authenticate the Certificates. Whenever reference is made in
this Agreement to the authentication of Certificates by Trustee or Trustee's
certificate of authentication, such reference shall be deemed to include
authentication on behalf of Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of Trustee by an
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Authenticating Agent. Each Authenticating Agent must be acceptable to
Transferor.
(b) Any institution succeeding to the corporate agency business of an
Authenticating Agent shall continue to be an Authenticating Agent without the
execution or filing of any document or any further act on the part of Trustee,
the Authenticating Agent or any other Person.
(c) An Authenticating Agent may at any time resign by giving written
notice of resignation to Trustee and Transferor. Trustee may at any time
terminate the agency of an Authenticating Agent by giving notice of termination
to the Authenticating Agent and Transferor. Upon receiving a notice of
resignation or upon a termination, or in case at any time an Authenticating
Agent shall cease to be acceptable to Trustee or Transferor, Trustee may
promptly appoint a successor Authenticating Agent. Any successor Authenticating
Agent, upon acceptance of its appointment, shall become vested with all the
rights, powers and duties of its predecessor, with like effect as if originally
named as an Authenticating Agent. No successor Authenticating Agent shall be
appointed unless acceptable to Trustee and Transferor.
(d) Servicer agrees to pay to each Authenticating Agent (if any), as an
expense of Servicer paid out of the Servicing Fee, reasonable compensation from
time to time for services performed under this section.
(e) The provisions of Sections 11.1, 11.2 and 11.3 shall be applicable
to any Authenticating Agent as if the references in the applicable provisions
thereof to "Trustee" were references to the Authenticating Agent.
(f) Pursuant to an appointment made under this section, the
Certificates may have endorsed thereon, in lieu of Trustee's certificate of
authentication, an alternate certificate of authentication in substantially the
following form:
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"This is one of the Certificates described in the
Supplement dated as of __________ ___, 199_.
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, as Trustee
By:
-----------------------------
as Authenticating Agent
for Trustee,
By:
-----------------------------
Authorized Officer."
SECTION 6.9 Tax Treatment. It is the intent of Transferor and the
Investor Certificateholders and the Purchasers that, for purposes of Federal,
state and local income and franchise taxes and any other taxes measured by or
imposed on income, the Investor Certificates and the Purchased Interests will be
treated as evidence of indebtedness secured by the Transferred Assets and the
Trust will not be characterized as an association taxable as a corporation.
Transferor, by entering into this Agreement, and each Investor Certificateholder
and Purchaser, by its acceptance of its Investor Certificate or Purchased
Interest, agree to treat the Investor Certificates as indebtedness (or, if so
provided in the applicable Supplement, an interest in a partnership) for
purposes of Federal, state and local income and franchise taxes and any other
taxes measured by or imposed on income. The provisions of this Agreement and all
related Transaction Documents shall be construed to further these intentions of
the parties. In accordance with the foregoing, Transferor agrees that it will
report its income for purposes of Federal, state and local income or franchise
taxes, and any other taxes measured by or imposed on income, on the basis that
it is the owner of the Receivables. Except to the extent otherwise required by
applicable law or any Governmental Authority, Trustee hereby agrees to treat the
Trust as a security device only, and shall not file tax returns or obtain an
employer identification number on behalf of the Trust.
SECTION 6.10 Issuance of Additional Series of Certificates and Sales of
Purchased Interests. (a) Transferor may from time to time direct Trustee in
writing to issue and authenticate one or more classes of any newly issued Series
of Investor Certificates (a "New Issuance"). In addition, to the extent
permitted for any Series of Investor Certificates as specified in the related
Supplement, the Investor Certificateholders of the Series may tender their
Investor Certificates to Trustee, and Transferor may allocate a portion of the
Transferor Interest pursuant to the
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terms and conditions set forth in the Supplement, in exchange for one or more
newly issued Series of Investor Certificates (an "Investor Exchange"). New
Issuances and Investor Exchanges collectively are referred to as "Issuances".
(b) Transferor may direct Trustee to authenticate an Issuance by
notifying Trustee, in writing, at least five Business Days (or such shorter
period as shall be acceptable to Trustee) in advance (an "Issuance Notice") of
the date upon which the Issuance is to occur (an "Issuance Date"). Any Issuance
Notice shall state the designation of any Series to be issued on the Issuance
Date and, with respect to each class or Series: (i) its initial invested amount
(or the method for calculating the initial invested amount), (ii) its interest
rate (or the method for allocating interest payments or other cash flows to the
Series), if any, and (iii) the Enhancement Provider, if any, with respect to the
Series.
(c) On the Issuance Date, Transferor shall deliver to Trustee for
authentication under Section 6.2, and Trustee shall authenticate and deliver any
such class or classes of Series of Investor Certificates only upon delivery to
it (and, in the case of item (iv) below, each Rating Agency, Purchaser and any
Enhancement Provider) of the following:
(i) a Supplement satisfying the criteria set forth in
subsection (d) and in form reasonably satisfactory to Trustee executed
by Transferor and Servicer and specifying the principal terms of the
Series;
(ii) the applicable Enhancement, if any;
(iii) the agreement, if any, pursuant to which the
Enhancement Provider agrees to provide the Enhancement, if any;
(iv) a Tax Opinion for each outstanding Series of Investor
Certificates, Purchased Interest and Enhancement with respect to such
Issuance (provided that such opinion with respect to any Series or
Purchased Interest shall be limited to the Tax Opinion required by the
related Supplement or PI Agreement);
(v) evidence that the Modification Condition has been
satisfied with respect to such Issuance (unless such Issuance occurs
on the First Issuance Date);
(vi) for any Issuance other than an Issuance occurring on the
First Issuance Date, an Officer's Certificate of Transferor that on
the Issuance Date, after giving effect to the Issuance (and the
repayment, on the date of the Issuance, of any existing Investor
Certificates with funds (including
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proceeds of sale of the new Series) on deposit in the Principal
Funding Account), any requirements set out in the Supplement with
respect to any then-outstanding Series with respect to the amount of
Certificates that may not, by their terms, be transferred has been
satisfied;
(vii) an Officer's Certificate of Servicer stating that no
Early Amortization Event or Unmatured Early Amortization Event has
occurred and is continuing and that there is not a substantial
likelihood that the Issuance would result in an Early Amortization
Event or an Unmatured Early Amortization Event at any time in the
future;
(viii) in the case of an Investor Exchange, any Investor
Certificates that are being exchanged in connection therewith;
(ix) any other documents, certificates and Opinions of
Counsel as may be required by the applicable Supplement; and
(x) an Officer's Certificate of Servicer to the effect that
all conditions specified in clauses (i) through (ix) have been
satisfied.
Upon satisfaction of the conditions, Trustee shall cancel any applicable
Investor Certificates and issue, as provided above, the new Series of Investor
Certificates dated the Issuance Date. Any such Series of Investor Certificates
shall be substantially in the form specified in the related Supplement and shall
bear, upon its face, the designation for the Series to which it belongs, as
selected by Transferor. There is no limit to the number of Issuances (or PI
Issuances) that may be made under this Agreement.
(d) In conjunction with an Issuance, the parties hereto shall execute a
Supplement, which shall specify the relevant terms with respect to any newly
issued Series of Investor Certificates, which may include: (i) its name or
designation, (ii) the initial invested amount or the method of calculating the
initial invested amount, (iii) the applicable interest rate (or formula for the
determination thereof), (iv) the Issuance Date, (v) the rating agency or
agencies rating the Series, if any, (vi) the name of the Clearing Agency, if
any, (vii) the interest payment date or dates and the date or dates from which
interest shall accrue, (viii) the method of allocating Collections with respect
to Receivables for the Series and, if applicable, with respect to any paired
Series and the method by which the principal amount of Investor Certificates of
the Series shall amortize or accrete, (ix) the names of any accounts to be used
by the Series and the terms governing the operation of any such account, (x) the
terms of any Enhancement with respect to the Series, (xi) the Enhancement
Provider, if applicable, (xii) the Base Amount applicable to the Series, (xiii)
the terms on which the Certificates of the Series may be repurchased
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or remarketed to other investors, (xiv) any deposit into any account provided
for the Series, (xv) the number of classes of the Series, and if more than one
class, the rights and priorities of each class, (xvi) whether any fees, breakage
payments or early termination payments will be included in the funds available
to be paid for the Series, (xvii) the subordination of the Series to any other
Series, (xviii) whether the Series will be a part of a group or subject to being
paired with any other Series, (xix) whether the Series will be prefunded and
(xx) any other relevant terms of the Series. The terms of the Supplement may
modify or amend the terms of this Agreement or the Purchase Agreement (including
the related definitions) solely as applied to the new Series.
(e) Except as specified in any Supplement for the related Series, all
Investor Certificates of any Series shall rank pari passu and be equally and
ratably entitled as provided herein to the benefits hereof (except that the
Enhancement provided for any Series shall not be available for any other Series)
without preference, priority or distinction on account of the actual time or
times of authentication and delivery, all in accordance with the terms and
provisions of this Agreement and the related Supplement.
(f) Transferor may from time to time direct Trustee in writing, on
behalf of the Trust, to sell one or more Purchased Interests pursuant to, and
direct Trustee in writing to enter into, a PI Agreement (such sale being
referred to as a "PI Issuance" and the date of such PI Issuance being referring
to as a "PI Issuance Date"). No Purchased Interest shall represent any interest
in any Enhancement for the benefit of any Series, any class of Investor
Certificates or any other Purchased Interest, any Transaction Account
established pursuant to any Supplement or the PI Agreement relating to any other
Purchased Interest except to the extent set forth in the PI Agreement with
respect to such other Purchased Interest. Each PI Agreement may provide that no
Investor Certificateholder, Purchaser under any other PI Agreement or
Enhancement Provider shall be a third-party beneficiary thereof or have any
benefit or any legal or equitable right, remedy or claim under the PI Agreement.
(g) On or before the date of the initial sale of a Purchased Interest
pursuant to a particular PI Agreement, the parties hereto and the related
Purchaser will execute and deliver a PI Agreement that will specify the terms of
the Purchased Interest. The obligation of Trustee to execute and deliver the
related PI Agreement is subject to the satisfaction of the following conditions:
(i) on or before the tenth Business Day (or a shorter period
as shall be acceptable to the Trustee) immediately preceding the
related PI Issuance Date, Transferor shall have given Trustee,
Servicer, each Rating Agency (unless such PI Issuance occurs on the
First Issuance Date), each Purchaser
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and each Enhancement Provider (if any) written notice of the sale of
the Purchased Interest and the PI Issuance Date;
(ii) Transferor shall have delivered to Trustee the related
PI Agreement, in form satisfactory to Trustee, each executed by each
party thereto other than Trustee;
(iii) the Modification Condition shall have been satisfied
with respect to the sale (unless such PI Issuance occurs on the First
Issuance Date);
(iv) the sale will not (A) contravene any provision of this
Agreement, any Supplement, any agreement pursuant to which any
Enhancement is provided or any PI Agreement (or any agreement related
thereto) or (B) constitute, or result in (or have a substantial
likelihood that it will result, at any time in the future, in) the
occurrence of, an Early Amortization Event or an Unmatured Early
Amortization Event;
(v) Transferor shall have delivered to Trustee, each Rating
Agency, each Purchaser and any Enhancement Provider, a Tax Opinion for
each outstanding Series of Investor Certificates, Purchased Interest
and Enhancement (provided that such opinion with respect to any Series
or Purchased Interest shall be limited to the Tax Opinion required by
the related Supplement or PI Agreement), dated the PI Issuance Date,
with respect to the sale; and
(vi) Transferor shall have delivered to Trustee an Officer's
Certificate, dated the PI Issuance Date for such Purchased Interest,
to the effect that all conditions set forth in clauses (i) through (v)
of this Section for the sale of the Purchased Interest and the
execution and delivery of the related PI Agreement has been satisfied.
Upon satisfaction of the above conditions, Trustee shall execute and, at the
written direction of Transferor, deliver the related PI Agreement and any
related documents that Transferor shall reasonably request. The terms of the PI
Agreement may modify or amend the terms of this Agreement or the Purchase
Agreement (including the related definitions) solely as applied to the new
Purchased Interest.
(h) Transferor may from time to time direct Trustee to extend any PI
Agreement, subject to the satisfaction of the following conditions:
(i) on or before the tenth Business Day (or a shorter period
as shall be acceptable to the Trustee) immediately preceding the date
of the
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extension, Transferor shall have given Trustee, Servicer, the Rating
Agency and any Enhancement Provider written notice of the extension
and the date on which the extension shall occur;
(ii) Transferor shall have delivered to Trustee the related
document(s) effecting such extension, in form satisfactory to Trustee,
executed by each party thereto other than Trustee;
(iii) the extension will not (A) contravene any provision of
this Agreement, any Supplement, any agreement pursuant to which any
Enhancement is provided or any PI Agreement (or any agreement related
thereto) or (B) constitute, or result in the occurrence of, an Early
Amortization Event or an Unmatured Early Amortization;
(iv) Transferor shall have delivered to Trustee, the Rating
Agency, each Purchaser and any Enhancement Provider a Tax Opinion for
each outstanding Series of Investor Certificates, Purchased Interest
and Enhancement (provided that such opinion with respect to any Series
or Purchased Interest shall be limited to the Tax Opinion required by
the related Supplement or PI Agreement), dated the date of the
extension, with respect to the extension;
(v) Transferor shall have delivered to Trustee an Officer's
Certificate, dated the date of the extension, to the effect that all
conditions set forth in clauses (i) through (iv) of this Section for
the extension of such PI Agreement and the execution and delivery of
the related document(s) has been satisfied; and
(vi) the Modification Condition shall have been satisfied.
SECTION 6.11 Book-Entry Certificates. (a) If provided in any
Supplement, the Investor Certificates of any Series, upon original issuance,
will be issued in the form of one or more Book-Entry Certificates, to be
delivered to the applicable Clearing Agency by, or on behalf of, Transferor. The
Investor Certificates of the Series initially shall be registered on the
Certificate Register in the name of the nominee of the Clearing Agency, and no
Certificate Owner will receive a Definitive Certificate representing such
Certificate Owner's interest in the Investor Certificates, except as provided in
Section 6.13. To the extent a Supplement provides that the Investor Certificates
of a Series will originally be issued in the form of one or more Book-Entry
Certificates, then unless and until Definitive Certificates have been issued to
Certificate Owners pursuant to Section 6.13:
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(i) the provisions of this section shall be in full force
and effect in respect of such Series;
(ii) Transferor, Servicer, the Paying Agent, the Transfer
Agent and Registrar and Trustee may deal with the Clearing Agency and
the Clearing Agency Participants for all purposes (including the
making of distributions on the Investor Certificates) as the
authorized representatives of the Certificate Owners;
(iii) to the extent that the provisions of this section
conflict with any other provisions of this Agreement, the provisions
of this section shall control; and
(iv) the rights of Certificate Owners shall be exercised only
through the Clearing Agency and the Clearing Agency Participants and
shall be limited to those established by law and agreements between
the Certificate Owners and the Clearing Agency and/or the Clearing
Agency Participants. Unless and until Definitive Certificates are
issued pursuant to Section 6.13, the initial Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and
receive and transmit distributions of principal and interest on the
Investor Certificates to the Clearing Agency Participants.
(b) Certificates sold to "qualified institutional buyers" as defined in
and in reliance on Rule 144A under the Securities Act shall be represented by
one or more Book-Entry Certificates (the "144A Book-Entry Certificates"), in
registered form, without coupons, which will be deposited upon the order of
Transferor on the Issuance Date with Trustee as custodian for and registered in
the name of Cede & Co., as nominee of the Clearing Agency.
(c) Certificates of a Series sold in offshore transactions in reliance
on Regulation S under the Securities Act shall be represented initially by
temporary Book-Entry Certificates (the "Regulation S Temporary Book-Entry
Certificates"). The Regulation S Temporary Book-Entry Certificates shall be
exchanged on the later of (i) 40 days after the later of (A) the Issuance Date
and (B) the completion of the distribution of the Certificates of such Series,
as certified by the Lead Placement Agent and (ii) the date on which the
requisite certifications are due to and provided to Trustee (the later of
clauses (i) and (ii) is referred to as the "Exchange Date") for permanent
Book-Entry Certificates (the "Unrestricted Book-Entry Certificates," and
together with the Regulation S Temporary Book- Entry Certificates, the
"Regulation S Book-Entry Certificates"). The Regulation S Book-Entry
Certificates shall be issued in registered form, without coupons, and deposited
upon the order of Transferor with Trustee as custodian for and registered
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in the name of a nominee of the Clearing Agency for credit to the account of the
depositaries for Euroclear and Cedel, which depositaries shall, on behalf of
Euroclear and Cedel, hold the interests on behalf of account holders (each a
"Member Organization"), which have rights in respect of the Certificates
credited to their securities accounts with Euroclear or Cedel from time to time.
(d) A Certificate Owner holding an interest in a Regulation S Temporary
Book-Entry Certificate may receive payments in respect of the Certificates on
the Regulation S Temporary Book-Entry Certificate only after delivery to
Euroclear or Cedel, as the case may be, of a written certification substantially
in the form set forth in Exhibit F, and upon delivery by Euroclear or Cedel, as
the case may be, to the Transfer Agent and Registrar of a certification or
certifications substantially in the form set forth in Exhibit G. The delivery by
a Certificate Owner of the certification referred to above shall constitute its
irrevocable instruction to Euroclear or Cedel, as the case may be, to arrange
for the exchange of the Certificate Owner's interest in the Regulation S
Temporary Book-Entry Certificate for a beneficial interest in the Unrestricted
Book-Entry Certificate after the Exchange Date in accordance with the paragraph
below.
After (i) the Exchange Date and (ii) receipt by the Transfer Agent and
Registrar of written instructions from Euroclear or Cedel, as the case may be,
directing the Transfer Agent and Registrar to credit or cause to be credited to
either Euroclear's or Cedel's, as the case may be, depositary's account a
beneficial interest in the Unrestricted Book-Entry Certificate in a principal
amount not greater than that of the beneficial interest in the Regulation S
Temporary Book- Entry Certificate, the Transfer Agent and Registrar shall
instruct the Clearing Agency to reduce the principal amount of the Regulation S
Temporary Book- Entry Certificate and increase the principal amount of the
Unrestricted Book-Entry Certificate, by the principal amount of the beneficial
interest in the Regulation S Temporary Book-Entry Certificate to be so
transferred, and to credit or cause to be credited to the account of Euroclear,
Cedel or a Person who has an account with the Clearing Agency (a "Clearing
Agency Participant"), as the case may be, a beneficial interest in the
Unrestricted Book-Entry Certificate having a principal amount of the Regulation
S Temporary Book-Entry Certificate that was reduced upon the transfer.
Upon return of the entire principal amount of the Regulation S
Temporary Book-Entry Certificate to Trustee in exchange for beneficial interests
in the Unrestricted Book-Entry Certificate, Trustee shall cancel the Regulation
S Temporary Book-Entry Certificate by perforation and shall forthwith destroy
it.
(e) Transfers within a single Series between different Book-Entry
Certificates shall be made in accordance with this Section.
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(i) For transfer of an interest in an Unrestricted Book-Entry
Certificate for an interest in the 144A Book-Entry Certificate, if the
Certificateholder of a beneficial interest in an Unrestricted
Book-Entry Certificate deposited with the Clearing Agency wishes at
any time to exchange its interest in the Unrestricted Book-Entry
Certificate, or to transfer its interest in the Unrestricted
Book-Entry Certificate to a Person who wishes to take delivery thereof
in the form of an interest in the 144A Book-Entry Certificate, the
Certificateholder may, subject to the rules and procedures of
Euroclear or Cedel and the Clearing Agency, as the case may be, give
directions for the Transfer Agent and Registrar to exchange or cause
the exchange or transfer or cause the transfer of the interest for an
equivalent beneficial interest in the 144A Book-Entry Certificate.
Upon receipt by the Transfer Agent and Registrar of instructions from
Euroclear or Cedel (based on instructions from a Member Organization)
or from a Clearing Agency Participant, as applicable, or the Clearing
Agency, as the case may be, directing the Transfer Agent and Registrar
to credit or cause to be credited a beneficial interest in the 144A
Book-Entry Certificate equal to the beneficial interest in the
Unrestricted Book-Entry Certificate to be exchanged or transferred
(such instructions to contain information regarding the Clearing
Agency Participant account to be credited with the increase, and, with
respect to an exchange or transfer of an interest in the Unrestricted
Book-Entry Certificate, information regarding the Clearing Agency
Participant account to be debited with the decrease), the Transfer
Agent and Registrar shall instruct the Clearing Agency to reduce the
Unrestricted Book-Entry Certificate by the aggregate principal amount
of the beneficial interest in the Unrestricted Book-Entry Certificate
to be exchanged or transferred, and the Transfer Agent shall instruct
the Clearing Agency, concurrently with the reduction, to increase the
principal amount of the 144A Book-Entry Certificate by the aggregate
principal amount of the beneficial interest in the Unrestricted
Book-Entry Certificate to be so exchanged or transferred, and to
credit or cause to be credited to the account of the Person specified
in the instructions a beneficial interest in the 144A Book-Entry
Certificate equal to the reduction in the principal amount of the
Unrestricted Book-Entry Certificate.
(ii) For transfers of an interest in the 144A Book-Entry
Certificate for an interest in a Regulation S Book-Entry Certificate,
if a Certificate Owner holding a beneficial interest in the 144A
Book-Entry Certificate wishes at any time to exchange its interest in
the 144A Book-Entry Certificate for an interest in a Regulation S
Book-Entry Certificate, or to transfer its interest in the 144A
Book-Entry Certificate to a Person who wishes to take delivery thereof
in the form of an interest in the Regulation S Book-Entry Certificate,
the Certificateholder may, subject to the rules and
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procedures of the Clearing Agency, give directions for the Transfer
Agent and Registrar to exchange or cause the exchange or transfer or
cause the transfer of the interest for an equivalent beneficial
interest in the Regulation S Book-Entry Certificate. Upon receipt by
the Transfer Agent and Registrar of (A) instructions given in
accordance with the Clearing Agency's procedures from a Clearing
Agency Participant directing the Transfer Agent and Registrar to
credit or cause to be credited a beneficial interest in the Regulation
S Book-Entry Certificate in an amount equal to the beneficial interest
in the 144A Book-Entry Certificate to be exchanged or transferred, (B)
a written order given in accordance with the Clearing Agency's
procedures containing information regarding the account of the
depositaries for Euroclear or Cedel or another Clearing Agency
Participant, as the case may be, to be credited with the increase and
the name of the account and (C) certificates in the forms of Exhibits
H and I, respectively, given by the Certificate Owner and the proposed
transferee of the interest, the Transfer Agent and Registrar shall
instruct the Clearing Agency to reduce the 144A Book-Entry Certificate
by the aggregate principal amount of the beneficial interest in the
144A Book-Entry Certificate to be so exchanged or transferred and the
Transfer Agent and Registrar shall instruct the Clearing Agency,
concurrently with the reduction, to increase the principal amount of
the Regulation S Book-Entry Certificate by the aggregate principal
amount of the beneficial interest in the 144A Book- Entry Certificate
to be so exchanged or transferred, and to credit or cause to be
credited to the account of the Person specified in the instructions a
beneficial interest in the Regulation S Book-Entry Certificate equal
to the reduction in the principal amount of the 144A Book-Entry
Certificate.
(iii) Notwithstanding any other provisions of this section, a
placement agent for the Investor Certificates may exchange beneficial
interests in the Regulation S Temporary Book-Entry Certificate held by
it for interests in the 144A Book-Entry Certificate only after
delivery by the placement agent of instructions for the exchange
substantially in the form of Exhibit J. Upon receipt of the
instructions provided in the preceding sentence, the Transfer Agent
and Registrar shall instruct the Clearing Agency to reduce the
principal amount of the Regulation S Temporary Book-Entry Certificate
to be so transferred and shall instruct the Clearing Agency to
increase the principal amount of the 144A Book-Entry Certificate and
credit or cause to be credited to the account of the placement agent a
beneficial interest in the 144A Book-Entry Certificate having a
principal amount equal to the amount by which the principal amount of
the Regulation S Temporary Book-Entry Certificate was reduced upon the
transfer pursuant to the instructions provided in the first sentence
of this subclause.
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(iv) If Book-Entry Certificate is exchanged for a Definitive
Certificate, the Certificates may be exchanged or transferred for one
another only in accordance with such procedures as are substantially
consistent with the provisions of clauses (i) through (iii) above
(including the certification requirements intended to ensure that the
exchanges or transfers comply with Rule 144 or Regulation S under the
Securities Act, as the case may be) and as may be from time to time
adopted by Trustee.
SECTION 6.12 Notices to Clearing Agency. Whenever notice or other
communication to the Investor Certificateholders of any Series represented by
Book-Entry Certificates is required under this Agreement, unless and until
Definitive Certificates shall have been issued to Certificate Owners pursuant to
Section 6.13, Trustee, Servicer and the Paying Agent shall give all such notices
and communications specified herein to be given to the Investor
Certificateholders of the Series to the Clearing Agency.
SECTION 6.13 Definitive Certificates. If (a)(i) Transferor advises
Trustee in writing that the Clearing Agency is no longer willing or able to
discharge its responsibilities under any Letter of Representations properly, and
(ii) Transferor is unable to locate a qualified successor, (b) Transferor, at
its option, advises Trustee in writing that, with respect to any Series, it
elects to terminate the book-entry system through the Clearing Agency or (c)
after the occurrence of a Servicer Default, Certificate Owners representing
beneficial interests aggregating not less than 50% of the Invested Amount of the
Series advise Trustee and the Clearing Agency through the Clearing Agency
Participants in writing that the continuation of a book-entry system through the
Clearing Agency is no longer in the best interests of the Certificate Owners of
the Series, Trustee shall notify the Clearing Agency of the occurrence of any
such event and of the availability of Definitive Certificates of the Series to
Certificate Owners of the Series requesting the same. Upon surrender to Trustee
of the Investor Certificates of the Series by the Clearing Agency accompanied by
registration instructions from the Clearing Agency for registration, Trustee
shall authenticate and deliver Definitive Certificates of the Series. Neither
Transferor, the Transfer Agent and Registrar nor Trustee shall be liable for any
delay in delivery of the instructions and may conclusively rely on, and shall be
protected in relying on, the instructions. Upon the issuance of Definitive
Certificates of any Series, all references herein to obligations with respect to
the Series imposed upon or to be performed by the Clearing Agency shall be
deemed to be imposed upon and performed by Trustee, to the extent applicable
with respect to the Definitive Certificates and Trustee shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder.
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SECTION 6.14 Letter of Representations. Notwithstanding anything to the
contrary in this Agreement or any Supplement, the parties hereto shall comply
with the terms of each Letter of Representations.
ARTICLE VII TRANSFEROR
SECTION 7.1 Representations and Warranties of Transferor Relating to
Transferor and the Transaction Documents. On the date hereof and on each
Issuance Date, Transferor hereby represents and warrants that:
(a) Organization and Good Standing. Transferor is a
corporation duly organized and validly existing and in good standing
under the laws of its jurisdiction of incorporation and has all
necessary corporate power and authority to acquire, own and transfer
the Receivables and the Related Transferred Assets.
(b) Due Qualification. Transferor is duly qualified to do
business and is in good standing as a foreign corporation (or is
exempt from such requirements), and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or
lease of property or the conduct of its business requires
qualification, licenses or approvals and where the failure so to
qualify, to be in good standing, to obtain the licenses and approvals
or to preserve and maintain such qualification, licenses or approvals
would have a substantial likelihood of having a Material Adverse
Effect.
(c) Power and Authority. Transferor has all necessary
corporate power and authority to execute, deliver and perform its
obligations under this Agreement and the other Transaction Documents
to which it is a party.
(d) Valid Sale, Binding Obligations. Each sale of Receivables
and Related Assets made by Transferor pursuant to this Agreement
constitutes a valid sale, transfer, and assignment of all of
Transferor's right, title and interest in, to and under such
Receivables and the Related Assets of Transferor to the Trust that is
perfected and of first priority under the UCC and otherwise,
enforceable against creditors of, and purchasers from, Transferor and
free and clear of any Adverse Claim (other than any Permitted Adverse
Claim or any Adverse Claim arising solely as a result of any action
taken by Trustee hereunder). This Agreement constitutes, and each
other Transaction Document to which Transferor is a party when
executed and delivered will constitute, a legal, valid and binding
obligation of Transferor, enforceable against it in accordance with
its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization or
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other similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity, regardless of whether
enforceability is considered in a proceeding in equity or at law.
(e) Authorization; No Conflict or Violation. The execution,
delivery and performance of, and the consummation of the transactions
contemplated by, this Agreement and the other Transaction Documents
and the fulfillment of the terms hereof and thereof have been duly
authorized by all necessary action and will not (i) conflict with,
violate, result in any breach of any of the terms and provisions of,
or constitute (with or without notice or lapse of time or both) a
default under, (A) its certificate of incorporation or bylaws or (B)
any contract, indenture, loan agreement, mortgage, deed of trust or
other material agreement or instrument to which Transferor is a party
or by which it or any of its properties is bound, (ii) result in the
creation or imposition of any Adverse Claim upon any of its properties
other than pursuant to this Agreement and the other Transaction
Documents, or (iii) conflict with or violate any federal, state, local
or foreign law or any decision, decree, order, rule or regulation
applicable to it or any of its properties of any court or of any
federal, state, local or foreign regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over
it or any of its properties, which conflict, violation, breach,
default or Adverse Claim, individually or in the aggregate, would have
a substantial likelihood of having a Material Adverse Effect.
(f) Litigation and Other Proceedings. (i) There is no action,
suit, proceeding or investigation pending or, to the best knowledge of
Transferor, threatened against it before any court, regulatory body,
arbitrator, administrative agency or other tribunal or governmental
instrumentality and (ii) it is not subject to any order, judgment,
decree, injunction, stipulation or consent order of or with any court
or other government authority that, in the case of clauses (i) and
(ii), (A) asserts the invalidity of this Agreement or any other
Transaction Document, (B) seeks to prevent the transfer of any
Receivables or Related Transferred Assets to the Trustee, the issuance
of the Certificates or any Purchased Interest or the consummation of
any of the transactions contemplated by this Agreement or any other
Transaction Document, (C) seeks any determination or ruling that would
adversely affect the performance by Transferor of its obligations
under this Agreement or any other Transaction Document or the validity
or enforceability of this Agreement or any other Transaction Document,
(D) seeks to affect adversely the income tax attributes of the
transfers hereunder or the Trust under the United States Federal
income tax system or any state income tax system or (E) individually
or in the aggregate for all such
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actions, suits, proceedings, investigations, orders, judgments,
decrees, injunctions, stipulations or consent orders would have a
substantial likelihood of having a Material Adverse Effect.
(g) Approvals. All authorizations, consents, orders and
approvals of, or other action by, any Governmental Authority or other
Person that are required to be obtained by Transferor, and all notices
to and filings with any Governmental Authority or other Person, that
are required to be made by it, in the case of each of the foregoing in
connection with the transfer of Receivables and Related Transferred
Assets to the Trustee or the execution, delivery and performance by it
of this Agreement and any other Transaction Documents to which it is a
party and the consummation of the transactions contemplated by this
Agreement, have been obtained or made and are in full force and
effect, except where the failure to obtain or make any such
authorization, consent, order, approval, action, notice or filing,
individually or in the aggregate for all such failures, would not
reasonably be expected to have a Material Adverse Effect.
(h) Offices. Transferor's principal place of business and
chief executive office is, and since the date of its incorporation has
been, located at the address set forth under Transferor's signature
hereto (or at such other locations, notified to Servicer and Trustee
in accordance with Section 7.2(c), in jurisdictions where all action
required by Section 7.2(c) has been taken and completed).
(i) Account Banks. The names and addresses of all the banks,
together with the account numbers of the accounts at such banks (and
all related lockboxes and post office boxes), into which Collections
are paid as of the First Issuance Date have been accurately identified
to Trustee in the letter dated the First Issuance Date from the
Sellers to Buyer and the Trustee delivered pursuant to Section 5.1(o)
of the Purchase Agreement, and such banks, accounts, lockboxes and
post office boxes constitute all of the Account Banks, Bank Accounts
and Lockboxes as of the First Issuance Date. Any changes in the
information set forth in such letter after the First Issuance Date,
have been provided by Servicer to Trustee pursuant to Section 3.3(c).
The Account Agreements to which Transferor is a party constitute the
legal, valid and binding obligations of the parties thereto
enforceable against such parties in accordance with their respective
terms subject to applicable bankruptcy, reorganization, insolvency,
moratorium and other laws affecting creditors' rights generally and
general equitable principles.
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(j) Investment Company Act. Transferor is not, and is not
controlled by, an "investment company" registered or required to be
registered under the Investment Company Act of 1940, as amended.
(k) Bulk Sales Act. No transaction contemplated by this
Agreement or any other Transaction Document requires compliance with,
or will be subject to avoidance under, any bulk sales act or similar
law.
(l) Margin Regulations. No use of any funds obtained by
Transferor under this Agreement will conflict with or contravene any
of Regulations G, T, U and X promulgated by the Federal Reserve Board
from time to time.
(m) Compliance with Applicable Laws. Transferor is in
compliance with the requirements of all applicable laws, rules,
regulations and orders of all Governmental Authorities (federal,
state, local or foreign, and including environmental laws), a
violation of any of which, individually or in the aggregate for all
such violations, would have a substantial likelihood of having a
Material Adverse Effect.
(n) Taxes. Transferor has filed or caused to be filed all tax
returns and reports required by law to have been filed by it and has
paid all taxes, assessments and governmental charges thereby shown to
be owing, except any such taxes, assessments or charges (i) that are
being contested in good faith, (ii) for which adequate reserves in
accordance with GAAP shall have been set aside on its books and (iii)
with respect to which no Adverse Claim, except Permitted Adverse
Claims, has been imposed upon any Receivables or Transferred Assets.
(o) Accuracy of Information. All written information
furnished by or on behalf of Transferor to the Servicer or the Trustee
pursuant to or in connection with any Transaction Document or any
transaction contemplated herein or therein does not and shall not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made not misleading, in
each case on the date the statement was made and in light of the
circumstances under which the statements were made or the information
was furnished.
(p) Legal Names. Since the date of its incorporation,
Transferor has not been known by any legal name other than its
corporate name as of the date hereof (which corporate name is set
forth on its signature page hereto), except to the extent permitted
otherwise pursuant to Section 7.2(h), and (ii) Transferor has not been
the subject of any merger or
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other corporate reorganization that resulted in a change of name,
identity or corporate structure. Transferor uses no trade names other
than its actual corporate name.
(q) Ordinary Course; No Insolvency. The transfer of the
Tricon Assets contemplated by this Agreement is being consummated by
the Transferor in furtherance of the Transferor's ordinary business
purposes and constitutes a practical and reasonable course of action
by the Transferor, designed to improve the financial position of the
Transferor, with no contemplation of insolvency and with no intent to
hinder, delay or defraud any of its present or future creditors.
Neither as a result of the transactions contemplated by this
Agreement, nor immediately before or after such transactions, will the
Transferor be insolvent or have an unreasonably small capital for the
conduct of its business and the payment of anticipated obligations.
(r) Fair Consideration. The consideration received and to be
received by the Transferor in exchange for the transfer of each Tricon
Asset pursuant to this Agreement is fair consideration.
The representations and warranties set forth in this section shall
survive the transfer and assignment of the Receivables and the other Transferred
Assets to the Trustee. Upon discovery by Transferor, Servicer or Trustee of a
breach of any of the foregoing representations and warranties, the party
discovering the breach shall give written notice to the other parties to this
Agreement within three Business Days following the discovery; provided, however,
that if such breach arises from a Seller's failure to perform its obligations
under the Purchase Agreement and such failure is of the type that may be cured
by settlement of a Seller Non-Complying Receivables Adjustment or Seller
Dilution Adjustment under Sections 3.1 and 3.5 of the Purchase Agreement, and
such settlement shall have (in fact) been made, then no breach shall be deemed
to have occurred under this Agreement. Trustee's obligations in respect of
discovering any breach are limited as provided in Section 11.2(g).
SECTION 7.2 Covenants of Transferor. So long as any Investor
Certificates or Purchased Interests remain outstanding Transferor shall:
(a) Compliance with Laws, Etc. Comply in all material
respects with all applicable laws, rules, regulations, judgments,
decrees and orders (including those relating to the Receivables, the
Related Transferred Assets, the funds in the Transaction Accounts and
the related contracts and any other agreements related thereto), in
each case to the extent the failure to comply, individually or in the
aggregate for all such
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failures, would have a substantial likelihood of having a Material
Adverse Effect.
(b) Preservation of Corporate Existence. Preserve and
maintain its corporate existence, rights, franchises and privileges in
the jurisdiction of its incorporation, and qualify and remain
qualified in good standing as a foreign corporation in each
jurisdiction where the failure to preserve and maintain such
existence, rights, franchises, privileges and qualifications would
have a substantial likelihood of having a Material Adverse Effect.
(c) Location of Offices. Keep its principal place of business
and chief executive office at the address referred to in Section
7.1(h) or, upon not less than 30 days' (or such shorter number of days
as is acceptable to the Servicer and Trustee) prior written notice
given by Transferor to Servicer and Trustee, at such other location in
a jurisdiction where all action required pursuant to Section 3.10
shall have been taken and completed. Transferor will at all times
maintain its chief executive offices within the United States of
America.
(d) Reporting Requirements of Transferor. Unless Trustee and
the Required Investors shall otherwise consent in writing, furnish to
Trustee, the Investor Certificateholders and the Rating Agencies:
(i) Early Amortization Events. As soon as possible,
and in any event within three Business Days after an
Authorized Officer of Transferor has obtained knowledge of
the occurrence of any Early Amortization Event or any
Unmatured Early Amortization Event, a written statement of an
Authorized Officer of Transferor describing the event and the
action that Transferor proposes to take with respect thereto,
in each case in reasonable detail,
(ii) Material Adverse Effect. As soon as possible
and in any event within three Business Days after an
Authorized Officer of Transferor has knowledge thereof,
written notice that describes in reasonable detail any
Adverse Claim, other than any Permitted Adverse Claim,
against the Transferred Assets or any other event or
occurrence that, individually or in the aggregate for all
such events or occurrences, has had, or would have a
substantial likelihood of having, in the reasonable, good
faith judgment of Transferor, a Material Adverse Effect,
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(iii) Proceedings. As soon as possible and in any
event within three Business Days after an Authorized Officer
of Transferor has knowledge thereof, written notice of (A)
any action, suit, investigation or proceeding of the type
described in Section 7.1(f) not previously disclosed to
Trustee and (B) any material adverse development that has
occurred with respect to any such previously disclosed
action, suit, investigation or proceeding,
(iv) Other. Promptly, from time to time, any other
information, documents, records or reports respecting the
Receivables or the Related Transferred Assets or any other
information respecting the condition or operations, financial
or otherwise, of Transferor, in each case as Trustee may from
time to time reasonably request in order to protect the
interests of Trustee, the Trust, the Investor
Certificateholders or the Purchasers under or as contemplated
by this Agreement.
(e) Adverse Claims. Except as otherwise provided herein,
Transferor will not (i)(A) sell, assign (by operation of law or
otherwise) or otherwise transfer to any Person, (B) pledge any
interest in, (C) grant, create, incur, assume or permit to exist any
Adverse Claim (other than Permitted Adverse Claims) to or in favor of
any Person upon or with respect to, or (D) cause to be filed any UCC
financing statement or equivalent document relating to perfection with
respect to any Transferred Asset or any contract related to any
Receivable, or upon or with respect to any lockbox or account to which
any Collections of any such Receivable or any other Transferred Assets
are sent or any interest therein, or (ii) assign to any Person any
right to receive income from or in respect of any of the foregoing.
Transferor shall defend the right, title and interest of the Trustee
in, to and under the Transferred Assets, whether now existing or
hereafter created, against all claims of third parties claiming
through or under Transferor.
(f) Extension or Amendment of Receivables; Change in Credit
and Collection Policy or Contracts. Not (and not permit any Seller to)
(i) extend, amend or otherwise modify the terms of any Receivable or
related contract with an Obligor, except as permitted by Section
3.2(c); or (ii) change (or permit any Seller to change) the terms and
provisions of the Credit and Collection Policy in any material respect
(unless (x) with respect to collection policies, the change is made
with the prior written approval of the Trustee and each Agent and the
Modification Condition is satisfied with respect thereto, (y) with
respect to collection
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procedures, the change is made with prior written notice to the
Trustee and each Agent, if any, and no Material Adverse Effect would
result and (z) with respect to accounting policies relating to
Receivables that have become Write-Offs, the change is made in
accordance with GAAP).
(g) Mergers, Acquisitions, Sales, Etc. Not:
(i) except pursuant to the Transaction Documents (A)
be a party to any merger or consolidation, or directly or
indirectly purchase or otherwise acquire all or substantially
all of the assets or any stock of any class of, or any
partnership or joint venture interest in, any other Person,
or (B) directly or indirectly, sell, transfer, assign, convey
or lease, whether in one transaction or in a series of
transactions, all or substantially all of its assets, or sell
or assign with or without recourse any Receivables or Related
Transferred Assets (other than pursuant hereto) unless:
(x)(1) the Person formed by the consolidation or
into which Transferor is merged or the Person that
acquires by sale, assignment, lease, conveyance or
transfer all or substantially all of the assets of
Transferor shall be, if Transferor is not the
surviving entity, organized and existing under the
laws of the United States of America or any state
thereof or the District of Columbia, and shall
expressly assume, by an agreement supplemental
hereto, executed and delivered to Trustee, in form
satisfactory to Trustee and each Agent, the
performance of every covenant and obligation of
Transferor hereunder, including its obligations
under Section 7.3, under each Supplement and under
each PI Agreement, and (2) Transferor has delivered
to Trustee an Officer's Certificate stating that the
consolidation, merger, sale, assignment, lease,
conveyance or transfer and the supplemental
agreement comply with this section and an Opinion of
Counsel stating that the supplemental agreement is a
valid and binding obligation of the surviving entity
enforceable against it in accordance with its terms,
except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting
creditors' rights generally from time to time in
effect and except as such enforceability may be
limited by general principles of equity (whether
considered in a suit at law or in equity), and
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(y) the Modification Condition shall have been
satisfied with respect to the consolidation,
merger, sale, assignment, lease, conveyance or
transfer, and the Transferor's independent directors
shall have approved such consolidation, merger,
sale, assignment, lease, conveyance or transfer, and
(z) Transferor shall have delivered to Trustee, each
Rating Agency, each Purchaser and each Enhancement
Provider a Tax Opinion for each outstanding Series
of Investor Certificates, Purchased Interest and
Enhancement (provided that such opinion with respect
to any Series or PI Interest shall be limited to the
Tax Opinion required by the related Supplement or PI
Agreement), dated the date of the consolidation,
merger, sale, assignment, lease, conveyance or
transfer, with respect thereto; or
(ii) except as contemplated in the Purchase
Agreement in connection with Transferor's purchases of
Receivables and Related Assets from the Sellers, (A) make,
incur or suffer to exist an investment in, equity
contribution to, or payment obligation in respect of the
deferred purchase price of property or services from, any
Person, or (B) declare or pay any dividends on its capital
stock or make any loan or advance to any Person other than
for reasonable and customary operating expenses, provided
that notwithstanding clauses (A) or (B) above, (I) Transferor
may make payments in respect of its obligations under the
Buyer Notes in accordance with their terms and (II) at any
time when Transferor shall be in compliance with its covenant
under Section 7.2(o), but subject to Section 7.2(m),
Transferor shall be permitted to declare and pay dividends on
its capital stock and make loans and/or suffer to exist an
investment in AmeriServe pursuant to the Transaction
Documents.
(h) Change in Name. Not change its corporate name or the name
under or by which it does business, or permit any Seller to change its
corporate name or the name under or by which it does business, unless
prior to the change in name, Transferor shall have filed (or shall have
caused to be filed) any UCC financing statements or amendments as
Servicer or Trustee determines may be necessary to continue the
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perfection of the Trustee's interest in the Receivables, the Related
Transferred Assets and the proceeds thereof.
(i) Amendment of Certificate of Incorporation; Change in
Business. Not amend its Certificate of Incorporation, or engage in any
business other than as contemplated by the Transaction Documents,
unless the Modification Condition has been satisfied in connection
with the amendment or change in Transferor's business.
(j) Amendments to Purchase Agreement or Buyer Notes . Except
as expressly provided otherwise in this Agreement, not make or suffer
to exist any amendment or modification to or waiver of or consent to
departure from the Purchase Agreement or any Buyer Note that could
adversely affect the interests of the Investor Certificateholders, the
Purchasers or any Enhancement Provider.
(k) Enforcement of Purchase Agreement. Perform all its
obligations under and otherwise comply with the Purchase Agreement in
all material respects and, if requested by Trustee, enforce, for the
benefit of the Trust, the covenants and agreements of each Seller in
the Purchase Agreement.
(l) Other Indebtedness. Not (i) create, incur or permit to
exist any Indebtedness, Guaranty or liability or (ii) cause or permit
to be issued for its account any letters of credit or bankers'
acceptances, except for (A) Indebtedness incurred pursuant to the
Buyer Notes, (B) other liabilities specifically permitted to be
created, incurred or owed by Transferor pursuant to or in connection
with the Transaction Documents, (C) liabilities for reasonable and
customary operating expenses in an aggregate amount that do not exceed
$50,000 in any calendar year, (D) other liabilities for expenses that
are owed to an AmeriServe Person, the payment of which are subordinate
to obligations of Transferor under the Transaction Documents and which
subordination is evidenced by a written agreement containing
provisions substantially similar to the provisions of the Buyer Notes,
(E) liabilities under a tax sharing agreement among AmeriServe and its
Subsidiaries, provided that such agreement is in substantially the
form disclosed to the Trustee prior to the date hereof (or in a form
otherwise acceptable to the Trustee), and (F) liabilities for taxes
not yet due and taxes contested in good faith by proper proceedings,
provided that Transferor has maintained adequate reserves with respect
thereto in accordance with GAAP.
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(m) Separate Corporate Existence. Take all reasonable steps
to maintain its existence as a corporation separate and apart from
Servicer, each Seller and any other Person, and Transferor hereby
acknowledges that Trustee and the Investor Certificateholders and the
Purchasers are, and will be, entering into the transactions
contemplated by the Transaction Documents in reliance upon
Transferor's identity as a legal entity separate from any Seller,
Servicer and any other Person. Without limiting the generality of the
foregoing, Transferor shall take such actions as shall be reasonably
required in order that:
(i) Transferor will not incur any material indirect
or overhead expenses for items shared between Transferor and
any AmeriServe Person that are not reflected in the Servicing
Fee, other than shared items of expenses not reflected in the
Servicing Fee, such as legal, auditing and other professional
services, that will be allocated to the extent practical on
the basis of actual use or the value of services rendered,
and otherwise on a basis reasonably related to the actual use
or the value of services rendered, it being understood that
AmeriServe will pay all expenses owing by Transferor or any
AmeriServe Person relating to the preparation, negotiation,
execution and delivery of the Transaction Documents,
including, without limitation, legal, commitment, agency and
other fees.
(ii) Transferor will account for and manage its
liabilities separately from those of every other AmeriServe
Person, including payment of all payroll and administrative
expenses and taxes (other than taxes that are determined or
required to be determined on a consolidated or combined
basis) from its own assets.
(iii) Transferor will conduct its business at an
office segregated from the offices of each AmeriServe Person,
which office of Transferor may consist of office space shared
with an AmeriServe Person, a portion of which is allocated
solely to Transferor.
(iv) Transferor will maintain corporate records,
books of account and stationery separate from those of every
AmeriServe Person.
(v) Any financial statements of any AmeriServe
Person and which are consolidated to include Transferor will
contain
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footnotes stating that AmeriServe and certain of its
Subsidiaries have sold or contributed Receivables to
Transferor and indicating that the assets of Transferor will
not be available to AmeriServe or such Subsidiaries unless
Transferor's liabilities have been paid in full.
(vi) Transferor's assets will be maintained in a
manner that facilitates their identification and segregation
from those of any AmeriServe Person.
(vii) Transferor shall not, directly or indirectly,
be named and shall not enter into an agreement to be named as
a direct or contingent beneficiary or loss payee on any
insurance policy with respect to any loss relating to the
property of an AmeriServe Person.
(viii) Any transaction between Transferor and any
AmeriServe Person will be the type of transaction which would
be entered into by a prudent Person in the position of
Transferor with an AmeriServe Person, and will be on terms
that are at least as favorable as may be obtained from a
Person that is not an AmeriServe Person (it being understood
and agreed that the transactions contemplated in the
Transaction Documents meet the requirements of this clause).
(ix) Neither Transferor nor any AmeriServe Person
will be or will hold itself out to be responsible for the
debts of the other.
(x) Transferor shall not declare any dividend or
make any other distribution in respect of its capital stock
except in accordance with applicable law.
(xi) Transferor will operate, conduct its business
and otherwise act in a manner which is consistent with the
factual assumptions in the opinion of Xxxxxxx Xxxxxxx & Xxxx
dated the First Issuance Date regarding certain substantive
consolidation and true sale issues.
(n) Taxes. File or cause to be filed, and cause each Person
with whom it shares consolidated tax liability to file, all Federal,
state and local tax returns that are required to be filed by it, except
where the failure to file such returns would not have a substantial
likelihood of
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having a Material Adverse Effect, and pay or cause to be paid all taxes
shown to be due and payable on such returns or on any assessments
received by it, other than any taxes or assessments, the validity of
which are being contested in good faith by appropriate proceedings and
with respect to which Transferor shall have set aside adequate reserves
on its books in accordance with GAAP and which proceedings would not
have a substantial likelihood of having a Material Adverse Effect.
(o) Net Worth. Not permit the Transferor Net Worth to be less
than the greater of (i) 10% of the aggregate Unpaid Balance of the
Receivables held by the Transferor and the Trust and (ii) $25,000,000,
and in either case such condition shall continue for more than five
consecutive Business Days.
(p) Use of Funds. Apply all cash payments made to it hereunder
to make payments in the order of priority set out in Section 3.3 of the
Purchase Agreement.
(q) Change in Payment Instructions to Obligors. Not (i) add or
terminate any bank as an Account Bank from those listed in the letter
referred to in Section 5.1(o) of the Purchase Agreement unless, prior
to any such addition or termination, Trustee and the Rating Agencies
shall have received not less than ten Business Days' prior written
notice of the addition or termination and, not less than ten Business
Days prior to the effective date of any such proposed addition or
termination, Trustee shall have received (a) counterparts of the
applicable type of Account Agreement with each new Account Bank, duly
executed by such new Account Bank and all other parties thereto and (b)
copies of all other agreements and documents signed by the Account Bank
and such other parties with respect to any new Bank Account, all of
which agreements and documents shall be reasonably satisfactory in form
and substance to Trustee, or (ii) make any change in the instructions
to Obligors, given in accordance with Section 5.1(o) of the Purchase
Agreement, regarding payments to be made by Obligors, other than
changes in the instructions that direct Obligors to make payments to
another Bank Account at such Account Bank or another Account Bank or to
the Master Collection Account.
(r) Receivables Reviews. Transferor shall, during regular
business hours permit the Servicer, each Agent, and their respective
agents or representatives, at the expense of Transferor, (i) to examine
and make copies of and abstracts from, and to conduct accounting
reviews of, all Records in the possession or under the control of
Transferor relating to the
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Receivables or Transferred Assets, and (ii) to visit the offices and
properties of Transferor for the purpose of examining the materials
described in clause (i) above, and to discuss matters relating to any
Receivables or any Transferred Assets or such Transferor's performance
hereunder with any of the Authorized Officers of Transferor or, with
the prior consent of an Authorized Officer of Transferor, with
employees of Transferor having knowledge of such matters (the
examinations set forth in the foregoing clauses (i) and (ii) being
herein called a "Transferor Receivables Review"). The Servicer, each
Agent and their respective agents or representatives shall be entitled
to conduct Transferor Receivables Reviews whenever Servicer or such
Agent, in its reasonable judgment deems it appropriate; provided that
prior to the occurrence and continuance of an Early Amortization Event,
Servicer or such Agent (or its agent or representative) shall give
Transferor at least two Business Days' prior written notice of any
Transferor Receivables Review; provided further that no such notice
shall be required if an Early Amortization Event shall have occurred
and be continuing .
(s) Accounting for Purchases of Tricon Assets. Transferor
shall prepare its financial information stating that Transferor has
sold the Tricon Assets to the Trust. Transferor shall not prepare any
financial information that accounts for the transactions contemplated
in this Agreement in any manner other than as a sale of the Tricon
Assets by Transferor to the Trust, or in any other respect account for
or treat the transactions contemplated in this Agreement (including but
not limited to accounting and, where taxes are not consolidated, for
tax reporting purposes) in any manner other than as a sale of the
Tricon Assets by the Transferor to the Trust.
The covenants set forth in this section shall survive the transfer and
assignment of the Receivables and the other Transferred Assets to the Trustee.
Upon discovery by Transferor, Servicer or Trustee of a breach of any of the
foregoing covenants, the party discovering the breach shall give written notice
to the other parties to this Agreement within three Business Days following such
discovery; provided, however that if such breach arises from a Seller's failure
to perform its obligations under the Purchase Agreement and such failure is of
the type that may be cured by settlement of a Seller Non-Complying Receivables
Adjustment or Seller Dilution Adjustment under Sections 3.1 and 3.5 of the
Purchase Agreement, and such settlement shall have (in fact) been made, then no
breach shall be deemed to have occurred under this Agreement. Trustee's
obligations in respect of discovering any such breach are limited as provided in
Section 11.2(g).
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SECTION 7.3 Indemnification by Transferor. (a) Transferor hereby agrees
to indemnify the Trust, Trustee and each other Indemnified Party, forthwith on
demand, from and against any and all Indemnified Losses awarded against or
incurred by any of them that arise out of or relate to Transferor's performance
of, or failure to perform, any of its obligations under or in connection with
any Transaction Document.
Notwithstanding the foregoing, in no event shall any Indemnified Party
be indemnified against any Indemnified Losses (a) resulting from gross
negligence or willful misconduct on the part of such Indemnified Party (or the
gross negligence or willful misconduct on the part of any of its officers,
directors, employees, affiliates or agents), (b) to the extent they include
Indemnified Losses in respect of Receivables and reimbursement therefor that
would constitute credit recourse to Transferor for the amount of any Receivable
or Related Transferred Asset not paid by the related Obligor, (c) to the extent
they are or result from lost profits, (d) to the extent they are or result from
taxes (including interest and penalties thereon) asserted with respect to (i)
distributions on the Investor Certificates, (ii) franchise or withholding taxes
imposed on any Indemnified Party other than the Trust or Trustee in its capacity
as Trustee or (iii) federal or other income taxes on or measured by the net
income of the Indemnified Party and costs and expenses in defending against the
same, or (e) to the extent that they constitute consequential, special or
punitive damages.
If for any reason the indemnification provided in this Section is
unavailable to an Indemnified Party or is insufficient to hold it harmless, then
Transferor shall contribute to the amount paid by the Indemnified Party as a
result of any loss, claim, damage, judgment, cost, expense or liability in such
proportion as is appropriate to reflect not only the relative benefits received
by the Indemnified Party on the one hand and Transferor on the other hand, but
also the relative fault of the Indemnified Party (if any) and Transferor and any
other relevant equitable consideration.
Notwithstanding any provisions contained in any Transaction Document to
the contrary, Transferor shall not, and shall not be obligated to, pay any
amount pursuant to this Section unless funds are allocated for such payment
pursuant to the provisions of a Supplement or PI Agreement governing the
allocation of funds in the Master Collection Account. Any amount which
Transferor does not pay pursuant to the operation of the preceding sentence
shall not constitute a claim (as defined in Section 101 of the Bankruptcy Code)
against or corporate obligation of Transferor for any such insufficiency.
(b) Transferor shall be liable to all creditors of the Trust (but not
to the Trust, Trustee, Investor Certificateholders or Purchasers) for all
liabilities of the
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Trust to the same extent as it would be if the Trust constituted a partnership
under Delaware law and Transferor were a general partner thereof (to the extent
Transferred Assets remaining after Investor Certificateholders and Purchasers
have been paid in full are insufficient to pay such losses, claims, damages or
liabilities). Notwithstanding anything to the contrary herein, any such creditor
shall be a third party beneficiary of this Section 7.3. Nothing in this
provision shall be construed as waiving any rights or claims (including rights
of recoupment or subrogation) which the Transferor may have against any third
party under this Agreement or applicable laws.
ARTICLE VIII SERVICER
SECTION 8.1 Representations and Warranties of Servicer. On the date
hereof and on each Issuance Date, Servicer hereby makes, and any Successor
Servicer also shall be deemed to make by its acceptance of its appointment
hereunder, the following representations and warranties for the benefit of
Trustee and the Certificateholders and the Purchasers:
(a) Organization and Good Standing. Servicer is a corporation
duly organized and validly existing and in good standing under the laws
of its jurisdiction of incorporation and has all necessary corporate
power and authority to own its properties and to conduct its business
as the properties presently are owned and as the business presently is
conducted.
(b) Due Qualification. Servicer is duly qualified to do
business and is in good standing as a foreign corporation (or is exempt
from such requirements), and has obtained all necessary licenses and
approvals, in all jurisdictions in which the servicing of the
Receivables and the Related Transferred Assets as required by this
Agreement requires qualification, licenses or approvals and where the
failure so to qualify, to be in good standing, to obtain the licenses
and approvals or to preserve and maintain the qualification, licenses
or approvals would have a substantial likelihood of having a material
adverse effect on its ability to perform its obligations as Servicer
under this Agreement or a Material Adverse Effect.
(c) Power and Authority. Servicer has all necessary corporate
power and authority to execute, deliver and perform its obligations
under this Agreement and the other Transaction Documents to which it is
a party.
(d) Binding Obligations. This Agreement constitutes, and each
other Transaction Document to which Servicer is a party when executed
and delivered will constitute, a legal, valid and binding obligation of
Servicer, enforceable against it in accordance with its terms, except
as
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enforceability may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity, regardless of whether
enforceability is considered in a proceeding in equity or at law.
(e) Authorization; No Conflict or Violation. The execution and
delivery by Servicer of this Agreement and the other Transaction
Documents to which it is a party, the performance by it of its
obligations hereunder and thereunder and the fulfillment by it of the
terms hereof and thereof that are applicable to it have been duly
authorized by all necessary action and will not (i) conflict with,
violate, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time or both) a default
under, (A) its certificate of incorporation or bylaws or (B) any
indenture, loan agreement, mortgage, deed of trust, or other material
agreement or instrument to which it is a party or by which it or any of
its properties is bound or (ii) conflict with or violate any federal,
state, local or foreign law or any decision, decree, order, rule or
regulation applicable to it or any of its properties of any court or of
any federal, state, local or foreign regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over
it or any of its properties, which conflict, violation, breach or
default described, individually or in the aggregate, would have a
substantial likelihood of having a Material Adverse Effect.
(f) Approvals. All authorizations, consents, orders and
approvals of, or other action by, any Governmental Authority or other
Person that are required to be obtained by Servicer, and all notices to
and filings with any Governmental Authority or other Person that are
required to be made by it, in the case of each of the foregoing in
connection with the execution, delivery and performance by it of this
Agreement and any other Transaction Documents to which it is a party
and the consummation of the transactions contemplated by this
Agreement, have been obtained or made and are in full force and effect
except where the failure to obtain or make such authorization, consent,
order, approval, action, notice or filing, individually or in the
aggregate for all such failures, would not reasonably be expected to
have a Material Adverse Effect.
(g) Litigation and Other Proceedings. (i) There is no action,
suit, proceeding or investigation pending or, to the best knowledge of
Servicer, threatened against it before any court, regulatory body,
arbitrator, administrative agency or other tribunal or governmental
instrumentality and (ii) it is not subject to any order, judgment,
decree, injunction, stipulation or consent order of or with any court
or other Government Authority that, in
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the case of clauses (i) and (ii), (A) seeks to affect adversely the
income tax attributes of the transfers hereunder or the Trust under the
United States federal income tax system or any state income tax system
or (B) individually or in the aggregate for all such actions, suits,
proceedings, investigations, orders, judgments, decrees, injunctions,
stipulations or consent orders would have a substantial likelihood of
having a Material Adverse Effect.
(h) Year 2000 Problem. On the basis of a comprehensive review
and assessment undertaken by Servicer of Servicer's computer
applications and inquiry made of Servicer's material suppliers, vendors
and customers, Servicer reasonably believes that the "Year 2000
problem" (that is, the risk that computer applications used by any
Person may be unable to recognize and perform properly date-sensitive
functions involving certain dates prior to and any date after December
31, 1999) shall not result in a material adverse change in the
operations, business, properties, or condition (financial or otherwise)
of Servicer or in Servicer's ability to carry out any of its
obligations under the Transaction Documents.
The representations and warranties set forth in this section shall survive the
transfer and assignment of the Receivables and the other Transferred Assets to
the Trust. Upon discovery by Transferor, Servicer or Trustee of a breach of any
of the foregoing representations and warranties, the party discovering the
breach shall give written notice to the other parties to this Agreement within
three Business Days following the discovery. Trustee's obligations in respect of
discovering any breach are limited as provided in Section 11.2(g).
SECTION 8.2 Covenants of Servicer. So long as any Investor Certificates
or Purchased Interests remain outstanding Servicer shall:
(a) Compliance with Laws, Etc. Maintain in effect all
qualifications required under applicable law in order to service
properly the Receivables and shall comply in all material respects with
all applicable laws, rules, regulations, judgments, decrees and orders,
in each case to the extent the failure to comply, individually or in
the aggregate for all such failures, would have a substantial
likelihood of having a Material Adverse Effect.
(b) Preservation of Corporate Existence. Preserve and maintain
its corporate existence, rights, franchises and privileges in the
jurisdiction of its incorporation, and qualify and remain qualified in
good standing as a foreign corporation in each jurisdiction where the
failure to preserve and maintain such existence, rights, franchises,
privileges and
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qualification would have a substantial likelihood of having a Material
Adverse Effect.
(c) Notice. As soon as possible (and in any event within five
Business Days after an Authorized Officer of Servicer has knowledge
thereof), furnish to Transferor, Trustee, the Investor
Certificateholders, the Purchasers and the Rating Agencies notice of
(x) any of the events described in clauses (i), (ii) and (iii) of
Section 7.2(d) and (y) any "Default" or "Event of Default" (as such
terms are defined in the AmeriServe Credit Agreement).
(d) Location of Offices. Maintain at all times its chief
executive offices within the United States of America.
The covenants set forth in this section shall survive the transfer and
assignment of the Transferred Assets to the Trustee. Upon discovery by
Transferor, Servicer or Trustee of a breach of any of the foregoing covenants,
the party discovering the breach shall give written notice to the other parties
to this Agreement within three Business Days following the discovery. Trustee's
obligations in respect of discovering any breach are limited as provided in
Section 11.2(g).
SECTION 8.3 Merger or Consolidation of, or Assumption of the
Obligations of, Servicer. Servicer shall not consolidate with or merge into any
other Person or convey, transfer or sell all or substantially all of its
properties and assets to any Person, unless (a) Servicer is the surviving entity
or, if it is not the surviving entity, the Person formed by the consolidation or
into which Servicer is merged or the Person that acquires by conveyance,
transfer or sale all or substantially all of the properties and assets of
Servicer 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
such corporation shall expressly assume, by an agreement supplemental hereto,
executed and delivered to Trustee and in form and substance satisfactory to
Trustee, the performance of every covenant and obligation of Servicer hereunder
and under the other Transaction Documents to which Servicer is a party, and (b)
Servicer shall have delivered to Trustee an Officer's Certificate stating that
the consolidation, merger, conveyance, transfer or sale and the supplemental
agreement comply with this Section and an Opinion of Counsel stating that the
supplemental agreement is a valid and binding obligation of the surviving entity
enforceable against it in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally and by general principles of equity.
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SECTION 8.4 Indemnification by Servicer. Servicer hereby agrees to
indemnify each Indemnified Party forthwith on demand, from and against any and
all Indemnified Losses awarded against or incurred by any of them that arise out
of or relate to Servicer's performance of, or failure to perform, any of its
obligations under or in connection with any Transaction Document.
Notwithstanding the foregoing, in no event shall any Indemnified Party
be indemnified against any Indemnified Losses (a) resulting from gross
negligence or willful misconduct on the part of such Indemnified Party (or the
gross negligence or willful misconduct on the part of any of its officers,
directors, employees, affiliates or agents), (b) to the extent they include
Indemnified Losses in respect of Receivables and reimbursement therefor that
would constitute credit recourse to Servicer for the amount of any Receivable or
Related Transferred Asset not paid by the related Obligor, or (c) to the extent
they are or result from taxes (including interest and penalties thereon)
asserted with respect to (i) distributions on the Investor Certificates, (ii)
franchise or withholding taxes imposed on any Indemnified Party other than the
Trust or Trustee in its capacity as Trustee or (iii) federal or other income
taxes on or measured by the net income of the Indemnified Party and costs and
expenses in defending against the same.
If for any reason the indemnification provided in this section is
unavailable to an Indemnified Party or is insufficient to hold it harmless, then
Servicer shall contribute to the amount paid by the Indemnified Party as a
result of any loss, claim, damage, judgment, cost, expense or liability in such
proportion as is appropriate to reflect not only the relative benefits received
by the Indemnified Party on the one hand and Servicer on the other hand, but
also the relative fault of the Indemnified Party (if any) and Servicer and any
other relevant equitable consideration.
SECTION 8.5 Servicer Liability. Servicer shall be liable in accordance
with this Agreement only to the extent of the obligations specifically
undertaken by Servicer in such capacity herein and as set forth herein.
SECTION 8.6 Servicing in Florida. No Florida Servicer shall have any
duties or perform any services as a Servicer or Sub-Servicer with respect to any
Receivables if such duties or services would subject such Receivables or the
Trust to any intangibles tax under Florida law. AmeriServe represents, warrants
and covenants that (i) it is not and shall not become a Florida Servicer; and
(ii) no Person other than ProSource shall be a Sub-Servicer of ProSource
Receivables. Without limiting the generality of the foregoing, AmeriServe shall
cause ProSource from time to time to cease to act as Sub-Servicer for any period
of time required by applicable law in order to avoid subjecting Receivables or
the Trust to any intangibles tax under Florida law.
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ARTICLE IX
EARLY AMORTIZATION EVENTS; TERMINATION BY SELLERS
SECTION 9.1 Early Amortization Events. The Early Amortization Events
with respect to each Series and Purchased Interest shall be specified in the
related Supplement or PI Agreement.
SECTION 9.2 Remedies. Upon the occurrence of an Early Amortization
Event, Trustee shall have, in addition to all other rights and remedies
available to Trustee under this Agreement or otherwise, (a) the right to apply
Collections to the payment of the obligations of Transferor and Servicer under
the Transaction Documents, as provided herein, and (b) all rights and remedies
provided under all other applicable laws, which rights, in the case of each and
all of the foregoing, shall be cumulative. Trustee shall exercise the rights at
the direction of the Required Investors pursuant to (and subject to the
limitations specified in) Section 11.14.
SECTION 9.3 Termination By Sellers. If the Sellers have notified the
Trustee in writing of their election to terminate their agreements to sell
Receivables under the Purchase Agreement (as provided in Section 8.1 of the
Purchase Agreement), (i) the Trustee shall notify the Certificateholders of all
Series and all Purchasers within five Business Days of its receipt of such
notice and (ii) Transferor shall cause each Series of Certificates and Purchased
Interest to be repaid out of Collections as early as is practicable in
accordance with the applicable Supplement or PI Agreement.
SECTION 9.4 Additional Rights Upon the Occurrence of Certain Events.
(a) If a Bankruptcy Event shall occur with respect to Transferor, this Agreement
(other than this Section 9.4) and the Trust shall be deemed to have terminated
on the day of the Bankruptcy Event. Within seven Business Days of the date of
written notice to Trustee of the Bankruptcy Event, Trustee shall:
(i) publish a notice in a newspaper of general circulation in
the Borough of Manhattan, The City of New York printed in the English
language and customarily published on each Business Day, whether or
not published on Saturdays, Sundays and holidays (an "Authorized
Newspaper"), that a Bankruptcy Event has occurred with respect to
Transferor, that the Trust has terminated, and that Trustee intends to
(A) if all amounts owed in respect of all Investor Certificates and
Purchased Interests shall have been paid in full or if sufficient
funds are on deposit in the Transaction Accounts for such purpose,
transfer the Transferred Assets to Transferor or (B) in any other
event, instruct Servicer to sell, dispose of or otherwise liquidate
the Transferred Assets pursuant to this
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Agreement in a commercially reasonable manner and on commercially
reasonable terms, which shall include the solicitation of competitive
bids (a "Disposition"), and
(ii) send written notice to the Investor Certificateholders
and Purchasers describing the provisions of this section and requesting
each Investor Certificateholder and Purchaser to advise Trustee in
writing whether (A) it wishes Trustee to instruct Servicer not to
effectuate a Disposition, (B) it refuses to advise Trustee as to the
specific action Trustee shall instruct Servicer to take or (C) it
wishes Servicer to effect a Disposition.
If, after 60 days from the day notice pursuant to subsection (a)(i) is
first published (the "Publication Date"), Trustee shall not have received the
written instruction described in subsection (a)(ii)(A) from Holders representing
(based on an Opinion of Counsel provided by Transferor) at least a majority in
interest within the meaning of Internal Revenue Service Revenue Procedure 94-46
(or subsequent authority promulgated by the Internal Revenue Service),
determined as if the Trust were classified as a partnership for Federal income
tax purposes (a "majority in interest"), of all Series of Investor Certificates
and Purchased Interests, Trustee shall instruct Servicer to effectuate a
Disposition, and Servicer shall proceed to consummate a Disposition. If,
however, Holders representing at least a majority in interest of all Series of
Investor Certificates and Purchased Interests instruct Trustee not to effectuate
a Disposition, the Trust shall be reconstituted and continue pursuant to the
terms of this Agreement.
(b) Notwithstanding the termination of this Agreement and the Trust
pursuant to subsection (a), the proceeds from any Disposition of the Transferred
Assets pursuant to subsection (a) shall be treated as Collections and shall be
allocated and deposited in accordance with the provisions of Article IV.
(c) Servicer may appoint an agent or agents to assist with its
responsibilities pursuant to this section with respect to competitive bids.
(d) Transferor or any of its Affiliates shall be permitted to bid for
the Transferred Assets. Trustee may obtain a prior determination from any
bankruptcy trustee, receiver or liquidator that the terms and manner of any
proposed Disposition are commercially reasonable.
(e) Notwithstanding the termination of this Agreement and the Trust
pursuant to subsection (a), Trustee shall continue to have the rights described
in Section 9.2 and Article XI, and be subject to direction on terms consistent
with
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those set out in Section 11.14, pending the completion of any Disposition and/or
the reconstitution of the Trust.
ARTICLE X SERVICER DEFAULTS
SECTION 10.1 Servicer Defaults. Any of the following events shall
constitute a "Servicer Default":
(a) any failure by Servicer in its capacity as Servicer to
make any payment, transfer or deposit required by any Transaction
Document to be made by it or to give instructions or to give notice to
Trustee to make such payment, transfer or deposit, which failure
continues unremedied for one Business Day,
(b) failure on the part of Servicer in its capacity as
Servicer duly to observe or perform in any material respect any other
covenants or agreements of Servicer set forth in this Agreement or any
other Transaction Document, which failure has a material adverse effect
on the Holders of any Series or Purchased Interest and continues
unremedied for a period of 30 days after the earlier of (i) the date on
which written notice of the failure, requiring the same to be remedied,
shall have been given to Servicer by Trustee, or to Servicer and
Trustee by any Investor Certificateholder or Purchaser and (ii) the
date on which Servicer became aware of such failure,
(c) Servicer shall assign its duties under this Agreement,
except as permitted by Sections 3.1(b) and 8.3,
(d) any Daily Report or Monthly Report shall fail to have been
correct in any material respect when made or delivered, or shall not
have been delivered when required under the terms hereof, and in either
case such condition continues unremedied for a period of three Business
Days,
(e) any other representation, warranty or certification made
by Servicer in any Transaction Document or in any certificate or other
document or instrument delivered pursuant to any Transaction Document
shall fail to have been correct in any material respect when made or
delivered, which failure has a materially adverse effect on the
Certificateholders or any Purchased Interest and which materially
adverse effect continues unremedied for a period of 15 days after the
earlier of (i) the date on which written notice of failure, requiring
the same to be remedied, shall have been given to Servicer by Trustee
or to Servicer and Trustee by any Investor Certificateholder or
Purchaser and (ii) the date on which Servicer became aware of such
failure, or
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(f) any Bankruptcy Event shall occur with respect to
Servicer.
In the event of any Servicer Default, so long as such Servicer Default shall not
have been remedied, Trustee may (and, at the direction of the Required
Investors, shall), by notice then given in writing to Servicer (a "Termination
Notice"), terminate all (but not less than all) the rights and obligations of
Servicer as Servicer under this Agreement and in and to the Receivables, the
Related Transferred Assets and the proceeds thereof.
Servicer shall provide notice of a Servicer Default in accordance with Section
10.3.
Notwithstanding the foregoing, a delay in or failure in performance
referred to in subsection (a) for a period of ten Business Days after the
applicable grace period, or in subsection (b) or (d) for a period of 30 days
after the applicable grace period, shall not constitute a Servicer Default if
the delay or failure could not have been prevented by the exercise of reasonable
diligence by Servicer and the delay or failure was caused by an act of God or
the public enemy, riots, acts of war, acts of terrorism, epidemics, flood,
embargoes, weather, landslides, fire, earthquakes or similar causes. The
preceding sentence shall not relieve Servicer from using its best efforts to
perform its obligations in a timely manner in accordance with the terms of the
Transaction Documents, and Servicer shall promptly give Trustee, each Agent and
Transferor an Officer's Certificate notifying them of its failure or delay.
SECTION 10.2 Trustee to Act; Appointment of Successor. (a) On and after
Servicer's receipt of a Termination Notice pursuant to Section 10.1, Servicer
shall continue to perform all servicing functions under this Agreement until the
date specified in the Termination Notice or otherwise specified by Trustee in
writing or, if no such date is specified in the Termination Notice, or otherwise
specified by Trustee, until a date mutually agreed upon by Servicer and Trustee.
Trustee shall, as promptly as possible after the giving of a Termination Notice,
nominate an Eligible Servicer as successor servicer (the "Successor Servicer");
provided that (a) in so appointing any Successor Servicer, Trustee shall give
due consideration to any Successor Servicer proposed by any Agent and (b) the
Successor Servicer shall accept its appointment by a written assumption in a
form acceptable to Trustee and each Agent. Any Person who is nominated to be a
Successor Servicer shall accept its appointment by a written assumption in form
and substance acceptable to Trustee. In the event that a Successor Servicer has
not been appointed or has not accepted its appointment at the time when Servicer
ceases to act as Servicer, Trustee without further action shall automatically be
appointed the Successor Servicer. Trustee may delegate any of its servicing
obligations to an affiliate or agent of Trustee in accordance with Section
3.1(b). If Trustee is prohibited by applicable law from performing the duties of
Servicer hereunder, Trustee may appoint, or may petition a court of competent
jurisdiction to appoint, a Successor
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Servicer hereunder. Trustee shall give notice of the appointment of a Successor
Servicer in accordance with Section 10.3.
(b) After Servicer's receipt of a Termination Notice, and on the date
that a Successor Servicer shall have been appointed by Trustee and shall have
accepted the appointment pursuant to subsection (a), all authority and power of
Servicer under this Agreement shall pass to and be vested in the Successor
Servicer (a "Service Transfer"); and, without limitation, Trustee is hereby
authorized and empowered to execute and deliver, on behalf of Servicer, as
attorney-in-fact or otherwise, all documents and instruments, and to do and
accomplish all other acts or things, that Trustee reasonably determines are
necessary or appropriate to effect the purposes of the Service Transfer. Upon
the appointment of the Successor Servicer and its acceptance thereof, Servicer
agrees that it will terminate its activities as Servicer hereunder in a manner
that Trustee indicates will facilitate the transition of the performance of such
activities to the Successor Servicer. Servicer agrees that it shall use
reasonable efforts to assist the Successor Servicer in assuming the obligations
to service and administer the Receivables and the Related Transferred Assets, on
the terms and subject to the conditions set forth herein, and to effect the
termination of the responsibilities and rights of Servicer to conduct servicing
hereunder, including the transfer to such Successor Servicer of all authority of
Servicer to service the Receivables and Related Transferred Assets provided for
under this Agreement and all authority over all cash amounts that shall
thereafter be received with respect to the Receivables or the Related
Transferred Assets. Servicer shall, within five Business Days after the
designation of a Successor Servicer, transfer its electronic records (and any
related software and software licenses, appropriately assigned and prepaid)
relating to the Receivables, the related contracts and the Related Transferred
Assets to the Successor Servicer in such electronic form as the Successor
Servicer may reasonably request and shall promptly transfer to the Successor
Servicer all other records, correspondence and documents necessary for the
continued servicing of the Receivables and the Related Transferred Assets in the
manner and at such times as the Successor Servicer shall request. The Successor
Servicer shall request all such items described above in this clause (b) as are
necessary or appropriate for it to carry out its obligations under or in
connection with the Transaction Documents. To the extent that compliance with
this Section shall require Servicer to disclose to the Successor Servicer
information of any kind that Servicer reasonably deems to be confidential, prior
to the transfer contemplated by the preceding sentence the Successor Servicer
shall be required to enter into such licensing and confidentiality agreements as
Servicer shall reasonably deem necessary to protect its interest. All reasonable
costs and expenses (including attorneys' fees and disbursements) incurred in
connection with transferring the Receivables, the Related Transferred Assets and
all related Records (including the related contracts) to the Successor Servicer
and amending this Agreement and the other Transaction Documents to reflect the
succession as Servicer pursuant to this
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Section shall be paid by the predecessor Servicer (or, if Trustee serves as
Successor Servicer on an interim basis, the initial Servicer) within 15 days
after presentation of reasonable documentation of the costs and expenses. Such
costs and expenses shall be designated as "Transition Costs."
(c) Upon its appointment and acceptance thereof, the Successor
Servicer shall be the successor in all respects to Servicer with respect to
servicing functions under this Agreement and shall be subject to all the
responsibilities and duties relating thereto placed on Servicer by the terms
and provisions hereof (and shall carry out such responsibilities and duties in
accordance with standards of reasonable commercial prudence subject in each
case to the terms of this Agreement), and all references in this Agreement to
Servicer shall be deemed to refer to the Successor Servicer. The Successor
Servicer shall not be liable for any acts, omissions or errors of the
predecessor Servicer.
(d) All authority and power granted to Servicer or the Successor
Servicer under this Agreement shall automatically cease and terminate upon
termination of the Trust pursuant to Section 12.1, and shall pass to and be
vested in Transferor and, without limitation, Transferor is hereby authorized
and empowered, on and after the effective date of such termination, to execute
and deliver, on behalf of the Servicer or the Successor Servicer, as
attorney-in-fact or otherwise, all documents and other instruments and to do and
accomplish all other acts or things that Transferor reasonably determines are
necessary or appropriate to effect the purposes of such transfer of servicing
rights. The Servicer or Successor Servicer agrees to cooperate with Transferor
in effecting the termination of the responsibilities and rights of the Servicer
or Successor Servicer to conduct servicing of the Receivables and the Related
Transferred Assets. The Successor Servicer shall, within five Business Days
after such termination, transfer its electronic records relating to the
Receivables and the Related Transferred Assets to Transferor in such electronic
form as Transferor may reasonably request and shall transfer all other records,
correspondence and documents relating to the Receivables and the Related
Transferred Assets to Transferor in the manner and at such times as Transferor
shall reasonably request. To the extent that compliance with this Section shall
require the Successor Servicer to disclose to Transferor information of any kind
that the Successor Servicer deems to be confidential, Transferor shall be
required to enter into such customary licensing and confidentiality agreements
as the Successor Servicer shall reasonably deem necessary to protect its
interests.
Notwithstanding any provisions contained in any Transaction Document to
the contrary, Transferor shall not, and shall not be obligated to, pay any
amount pursuant to this Section unless funds are allocated for such payment
pursuant to the provisions of a Supplement or PI Agreement governing the
allocation of funds in
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the Master Collection Account. Any amount which Transferor does not pay
pursuant to the operation of the preceding sentence shall not constitute a
claim (as defined in Section 101 of the Bankruptcy Code) against or corporate
obligation of Transferor for any such insufficiency.
SECTION 10.3 Notification of Servicer Default; Notification of
Termination of Servicer and Appointment of Successor Servicer. Within three
Business Days after an Authorized Officer of Servicer becomes aware of any
Servicer Default, Servicer shall give written notice thereof to Trustee and the
Rating Agencies, and Trustee shall, promptly upon receipt of the written notice,
give notice to the Investor Certificateholders at their respective addresses
appearing in the Certificate Register and to the Purchasers. Upon any
termination of a Servicer or appointment of a Successor Servicer pursuant to
this Article X, Trustee shall give prompt written notice thereof to each Agent,
to the Investor Certificateholders at their respective addresses appearing in
the Certificate Register and to the Purchasers and the Rating Agencies.
SECTION 10.4 Waiver of Servicer Defaults. The Required Investors may,
on behalf of all Holders, waive in writing any Servicer Default hereunder and
its consequences. Upon any such waiver of a Servicer Default, such Servicer
Default shall cease to exist and shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other Servicer Default or impair any right consequent thereon except to the
extent expressly so waived.
ARTICLE XI TRUSTEE
SECTION 11.1 Duties of Trustee. (a) Trustee undertakes to perform the
duties and only the duties as are specifically set forth in this Agreement. The
provisions of this Article XI shall apply to Trustee solely in its capacity as
Trustee, and not to Trustee in its capacity as Servicer if it is acting as
Servicer. Following the occurrence of a Servicer Default of which a Responsible
Officer has actual knowledge, Trustee shall exercise such of the rights and
powers vested in it by this Agreement and use the same degree of care and skill
in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs; provided that if Trustee
shall assume the duties of Servicer pursuant to Section 10.2, Trustee in
performing such duties shall, subject to the terms of Article III, use the
degree of skill and attention customarily exercised by a servicer with respect
to trade receivables that it services for itself or others. Trustee shall have
no power to create, assume or incur indebtedness or other liabilities in the
name of the Trust other than as contemplated in, or incidental to the
performance of its duties under, the Transaction Documents.
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(b) Trustee, upon receipt of any certificates, opinions, reports,
documents, orders or other instruments furnished to Trustee that are (i)
specifically required to be furnished pursuant to any provision of this
Agreement and (ii) based on a form attached hereto as an Exhibit, shall examine
them to determine whether they are substantially in the form required by this
Agreement. Trustee shall give prompt written notice to the Investor
Certificateholders and each Agent of any lack of substantial conformity of any
item of the type listed in the preceding sentence to the applicable requirements
of this Agreement discovered by Trustee that would entitle a specified
percentage of the Investor Certificateholders or the Holders of any Series of
Certificates or Purchasers or Agents to take any action pursuant to this
Agreement.
Within one Business Day of its receipt of any Daily Report, Trustee
shall (i) compare the beginning balance of the Transaction Accounts reported in
such Daily Report to the balances thereof set forth on the records of the
Trustee; (ii) examine the section of such Daily Report pertaining to Early
Amortization Events, Unmatured Early Amortization Events and Servicer Defaults
and determine whether the Servicer has indicated that an Early Amortization
Event, Unmatured Early Amortization Event or Servicer Default has occurred and
is continuing; and (iii) verify the mathematical computations set forth therein
based on the face of such Daily Report. By the close of business on such
Business Day, Trustee shall (i) notify Servicer, the Agent and each of the
Rating Agencies of any inaccuracy of such computations or of any discrepancies
in such computations or comparison (provided that the rounding of numbers will
not constitute a discrepancy), whereupon Servicer shall deliver to Trustee, the
Agents and the Rating Agencies within five Business Days thereafter a
certificate describing the nature and cause of such inaccuracies or
discrepancies and the action that Servicer proposes to take with respect
thereto; and (ii) notify the Agents and the Rating Agencies in the event that
the Servicer has so indicated that an Early Amortization Event, Unmatured Early
Amortization Event or Servicer Default has occurred and is continuing.
Within two Business Days of its receipt of any Monthly Report, Trustee
shall (i) verify the mathematical computations set forth therein (based on (x)
the face of such Monthly Report and (y) so long as such computations include
information contemplated by any of the data fields contained in Exhibit L, a
comparison of such Monthly Report to the Monthly Tape referred to in Section
3.5(d)); (ii) compare the beginning and ending balances of the Transaction
Accounts as reported in the related Monthly Report against such balances as set
forth in the records of Trustee (and by the close of business on such Business
Day Trustee shall notify Servicer, the Agent and each of the Rating Agencies of
any inaccuracy of such computations or comparisons contemplated by clause (i) or
(ii) or of any discrepancies therein (provided that the rounding of numbers will
not constitute a discrepancy), whereupon Servicer shall deliver to Trustee, the
Agents
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and the Rating Agencies within five Business Days thereafter a certificate
describing the nature and cause of such inaccuracies or discrepancies and the
action that Servicer proposes to take with respect thereto); (iii) examine the
section of such Monthly Report pertaining to Early Amortization Events,
Unmatured Early Amortization Events and Servicer Defaults and determine whether
the Servicer has indicated that an Early Amortization Event, Early Amortization
Event or Servicer Default has occurred and is continuing (and thereupon Trustee
shall notify the Agents and the Rating Agencies in the event that the Servicer
has so indicated that an Early Amortization Event, Unmatured Early Amortization
Event or Servicer Default has occurred and is continuing); and (iv) load the
Monthly Tape into the system of the Trustee and ensure that there are no
malfunctions (and if any such malfunctions occur, then Servicer and Trustee
shall work together in good faith to eliminate such malfunctions promptly and,
if such malfunctions are not eliminated within ten Business Days, notify the
Agents and Rating Agencies thereof).
During the first week of each year, Trustee shall provide the Rating
Agencies and the Agents with a certificate, signed by a Responsible Officer, to
the effect that Trustee is not aware of any Early Amortization Event (or, if it
is aware of any Early Amortization Event, specifying the nature of that event).
(c) Subject to subsection (a), no provision of this Agreement shall be
construed to relieve Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct; provided that:
(i) Trustee shall not be liable for an error of judgment
made in good faith by a Responsible Officer or Responsible Officers of
Trustee, unless it shall be proved that Trustee was negligent in
ascertaining the pertinent facts,
(ii) Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in
accordance with the direction (as applicable) of the Majority
Investors, the Required Investors, all Investors, any Agent, or the
Required Series Holders relating to the time, method and place of
conducting any proceeding for any remedy available to Trustee, or
exercising any trust or power conferred upon Trustee, under this
Agreement,
(iii) Trustee shall not be charged with knowledge of (A) any
failure by Servicer to comply with the obligations of Servicer referred
to in subsections (a), (b) or (c) of Section 10.1, (B) any breach of
the representations and warranties of Transferor set forth in Section
2.3 or 7.1 or the representations and warranties of Servicer set forth
in Section 8.1, (C) any breach of the covenants of Transferor set forth
in Section 7.2 or the
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covenants of Servicer set forth in Section 8.2 or (D) the ownership of
any Certificate or Purchased Interest for purposes of Section 6.5, in
each case unless a Responsible Officer of Trustee obtains actual
knowledge of the matter or Trustee receives written notice of the
matter from Servicer or from any Holder,
(iv) the duties and obligations of Trustee shall be determined
solely by the express provisions of this Agreement, Trustee shall not
be liable except for the performance of the duties and obligations that
specifically shall be set forth in this Agreement, no implied covenants
or obligations shall be read into this Agreement against Trustee and,
in the absence of bad faith on the part of Trustee, Trustee may
conclusively rely on the truth of the statements and the correctness of
the opinions expressed in any certificates or opinions that are
furnished to Trustee and that conform to the requirements of this
Agreement, and
(v) without limiting the generality of this section or Section
11.2, Trustee shall have no duty (A) to see to any recording, filing,
or depositing of this Agreement or any agreement referred to herein or
any financing statement evidencing a security interest in the
Receivables or the Related Transferred Assets, or to see to the
maintenance of any such recording or filing or depositing or to any
rerecording, refiling or redepositing of any thereof (except that
Trustee (x) shall note in its records the date of filing of each UCC
financing statement identified to it in writing as having been filed in
connection with the Transaction Documents, or filed in connection with
a predecessor receivables securitization and amended and/or assigned in
connection with the Transaction Documents, and naming Trustee as
secured party or assignee of the secured party and (y) shall, unless it
shall have received an Opinion of Counsel to the effect that no such
filing is necessary to continue the perfection of Transferor's or
Trustee's interests in the Receivables and the Related Assets, cause
continuation statements to be filed with respect to each such financing
statement not less than four years and six months and not more than
five years after (1) its filing date and (2) the date of filing of any
prior continuation statement), (B) to see to the payment or discharge
of any tax, assessment, or other governmental charge or any Adverse
Claim or encumbrance of any kind owing with respect to, assessed or
levied against, any part of the Trust, (C) subject to Section 11.1(b),
to confirm or verify the contents of any reports or certificates of
Servicer delivered to Trustee pursuant to this Agreement that are
believed by Trustee to be genuine and to have been signed or presented
by the proper party or parties or (D) to ascertain or inquire as to the
performance or observance of any of Transferor's or Servicer's
representations, warranties or covenants or Servicer's duties and
obligations as Servicer.
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(d) Trustee shall not be required to expend or risk its own funds or
otherwise incur financial liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or powers, if Trustee
reasonably believes that the repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it, and none of the
provisions contained in this Agreement shall in any event require Trustee to
perform, or be responsible for the manner of performance of, any obligations of
Servicer under this Agreement except during the time, if any, that Trustee shall
be the successor to, and be vested with the rights, duties, powers and
privileges of, Servicer in accordance with the terms of this Agreement.
(e) Except for actions expressly authorized by this Agreement, Trustee
shall take no action reasonably likely to impair the interests of the Trust in
any Transferred Asset now existing or hereafter created or to impair the value
of any Transferred Asset now existing or hereafter created.
(f) Except to the extent expressly provided otherwise in this
Agreement, Trustee shall have no power to vary the Transferred Assets.
(g) In the event that the Paying Agent or the Transfer Agent and
Registrar shall fail to perform any obligation, duty or agreement in the manner
or on the day on which such obligation, duty or agreement is required to be
performed by the Paying Agent or the Transfer Agent and Registrar, as the case
may be, under this Agreement, Trustee shall be obligated, promptly upon its
actual knowledge thereof, to perform the obligation, duty or agreement in the
manner so required.
SECTION 11.2 Certain Matters Affecting Trustee. Except as otherwise
provided in Section 11.1:
(a) Trustee may rely on and shall be protected in acting on,
or in refraining from acting in accordance with, any resolution,
Officer's Certificate, opinion of counsel, certificate of auditors or
any other certificate, statement, instrument, instruction, opinion,
report, notice, request, consent, order, appraisal, bond or other paper
or document and any information contained therein believed by it to be
genuine and to have been signed or presented to it pursuant to this
Agreement by the proper party or parties including, but not limited to,
reports and records required by Article III,
(b) Trustee may consult with counsel and any opinion of
counsel rendered by counsel reasonably satisfactory to Transferor shall
be full and complete authorization and protection in respect of any
action taken or
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permitted or omitted by it hereunder in good faith and in accordance
with such opinion of counsel,
(c) Trustee (including in its role as Successor Servicer, if
it ever acts in that capacity) shall be under no obligation to exercise
any of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation or other proceeding
hereunder or in relation hereto, at the request, order or direction of
any of the Certificateholders, the Purchasers or any Agent, pursuant to
the provisions of this Agreement, unless such Certificateholders, the
Purchasers or Agent shall have offered to Trustee reasonable security
or indemnity against the costs, expenses and liabilities that may be
incurred therein or thereby; provided that nothing contained herein
shall relieve Trustee of the obligations, upon the occurrence and
continuance of a Servicer Default that has not been cured, to exercise
such of the rights and powers vested in it by this Agreement and to use
the same degree of care and skill in their exercise as a prudent person
would exercise or use under the circumstances in the conduct of his or
her own affairs,
(d) Trustee shall not be personally liable for any action
taken, permitted or omitted by it in good faith and believed by it to
be authorized or within the discretion or rights or powers conferred
upon it by this Agreement,
(e) Trustee shall not be bound to make any investigation into
the facts of matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document, unless requested in writing to do so
by the Required Investors; provided that if the payment within a
reasonable time to Trustee of the costs, expenses, or liabilities
likely to be incurred by it in connection with making such
investigation shall be, in the opinion of Trustee, not reasonably
assured to Trustee by the security afforded to it by the terms of this
Agreement, Trustee may require reasonable indemnity against such cost,
expense, or liability as a condition to proceeding with the
investigation. The reasonable expense of every examination shall be
paid by Servicer or, if paid by Trustee, shall be reimbursed by
Servicer upon demand,
(f) Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through
agents, representatives, attorneys or a custodian, and Trustee shall
not be responsible for any misconduct or negligence on the part of any
agent,
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representative, attorney or custodian appointed with due care by it
hereunder,
(g) except as may be required by Section 11.1(b) hereof,
Trustee shall not be required to make any initial or periodic
examination of any documents or records related to the Transferred
Assets for the purpose of establishing the presence or absence of
defects or for any other purpose,
(h) whether or not therein expressly so provided, every
provision of this Agreement relating to the conduct or affecting the
liability of or affording protection to Trustee shall be subject to the
provisions of this section,
(i) Trustee shall have no liability with respect to the acts
or omissions of Servicer (except and to the extent Servicer is
Trustee), including, but not limited to, acts or omissions in
connection with: (A) the servicing, management or administration of the
Receivables or the Related Transferred Assets, (B) calculations made by
Servicer whether or not reported to Trustee, and (C) deposits into or
withdrawals from any Bank Accounts or Transaction Accounts established
pursuant to the terms of this Agreement, and
(j) in the event that Trustee is also acting as Paying Agent
or Transfer Agent and Registrar hereunder, the rights and protections
afforded to Trustee pursuant to this Article XI shall also be afforded
to Trustee acting as Paying Agent or as Transfer Agent and Registrar.
SECTION 11.3 Limitation on Liability of Trustee. Trustee shall at no
time have any responsibility or liability for or with respect to the correctness
of the recitals contained herein or in the Certificates (other than the
certificate of authentication on the Certificates) or the Purchased Interests.
Except as set forth in Section 11.15, Trustee makes no representations as to the
validity or sufficiency of this Agreement, any PI Agreement, any Supplement, the
Certificates (other than the certificate of authentication on the Certificates)
or the Purchased Interests, any other Transaction Document or any Transferred
Asset or related document. Trustee shall not be accountable for the use or
application (i) by Transferor of any of the Certificates or the Purchased
Interests or of the proceeds of such Certificates or the Purchased Interests, or
(ii) for the use or application of any funds paid to Transferor or to Servicer
(other than to Trustee in its capacity as Servicer) in respect of the
Transferred Assets or deposited by Servicer in or withdrawn by Servicer from the
Bank Accounts, the Transaction Accounts or any other accounts hereafter
established to effectuate the transactions contemplated herein or in the other
Transaction Documents and in accordance with the terms hereof or thereof.
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Trustee shall at no time have any responsibility or liability for or
with respect to the legality, validity, or enforceability of any ownership or
security interest in any Transferred Asset, or the perfection or priority of
such a security interest or the maintenance of any such perfection or priority,
or for the generation of the payments to be distributed to Certificateholders or
Purchasers under this Agreement, including: (a) the existence and substance of
any Transferred Asset or any related Record or any computer or other record
thereof, (b) the validity of the transfer of any Transferred Asset to the Trust
or of any preceding or intervening transfer, (c) the performance or enforcement
of any Transferred Asset, (d) the compliance by Transferor or Servicer with any
warranty or representation made under this Agreement or in any other Transaction
Document and the accuracy of any such warranty or representation prior to
Trustee's receipt of actual notice of any noncompliance therewith or any breach
thereof, (e) any investment of monies pursuant to Section 4.4 or any loss
resulting therefrom, (f) the acts or omissions of Transferor, Servicer or any
Obligor, (g) any action of Servicer taken in the name of Trustee, or (h) any
action by Trustee taken at the instruction of Servicer; provided that the
foregoing shall not relieve Trustee of its obligation to perform its duties
(including but not limited to its duties, if any, to act as Servicer in
accordance with Section 10.2) under this Agreement in accordance with the terms
hereof.
Except with respect to a claim based on the failure of Trustee to
perform its duties under this Agreement or based on Trustee's gross negligence
or willful misconduct, no recourse shall be had against Trustee in its
individual capacity for any claim based on any provision of this Agreement, any
other Transaction Document, the Certificates, the Purchased Interests, any
Transferred Asset or any assignment thereof. Trustee shall not have any personal
obligation, liability, or duty whatsoever to any Certificateholder, any
Purchaser or any other Person with respect to any such claim, and any such claim
shall be asserted solely against the Trust or any indemnitor who shall furnish
indemnity to the Trust or Trustee as provided in this Agreement.
SECTION 11.4 Trustee May Deal with Other Parties. Subject to any
restrictions that may otherwise be imposed by Section 406 of ERISA or Section
4975(e) of the Internal Revenue Code, Trustee in its individual or any other
capacity may deal with the other parties hereto (other than Transferor) and
their respective Affiliates, with the same rights as it would have if it were
not Trustee.
SECTION 11.5 Servicer To Pay Trustee's Fees and Expenses. (a) To the
extent not paid by Servicer to Trustee from funds constituting the Servicing
Fee, Servicer covenants and agrees to pay to Trustee from time to time, and
Trustee shall be entitled to receive, such reasonable compensation as is agreed
upon in writing between Trustee and Servicer (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
for all services
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rendered by it in connection with the Transaction Documents and in the exercise
and performance of any of the powers and duties hereunder of Trustee, and
Servicer will pay or reimburse Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by Trustee in accordance
with any of the provisions of the Transaction Documents to which it is a party
(including the reasonable fees and expenses of its agents, any co-Trustee and
counsel) except any expense, disbursement or advance that may arise from
Trustee's negligence or willful misconduct.
(b) In addition, Servicer agrees to indemnify Trustee from, and hold it
harmless against, any and all losses, liabilities, damages, claims or expenses
incurred by Trustee in connection with the Transaction Documents or in the
exercise or performance of any of the powers or duties of Trustee hereunder,
other than those resulting from the negligence or willful misconduct of Trustee.
(c) If Trustee is appointed Successor Servicer pursuant to Section
10.2, the provisions of this section shall not apply to expenses, disbursements
and advances made or incurred by Trustee in its capacity as Successor Servicer,
which shall be paid out of the Servicing Fee. Servicer's covenant to pay the
fees, expenses, disbursements and advances provided for in this section shall
survive the resignation or removal of Trustee and the termination of this
Agreement.
(d) Trustee shall look solely to Servicer for payment of amounts
described in this Section 11.5, and Trustee shall have no claim for payment of
such amounts against Transferor or the Transferred Assets.
SECTION 11.6 Eligibility Requirements for Trustee. Trustee hereunder
shall at all times: (a) be (i) a banking institution organized under the laws of
the United States, (ii) a member bank of the Federal Reserve System or (iii) any
other banking institution or trust company, incorporated and doing business
under the laws of any State or of the United States, a substantial portion of
the business of which consists of receiving deposits or exercising fiduciary
powers similar to those permitted to national banks under the authority of the
Comptroller of the Currency, and that is supervised and examined by a state or
federal authority having supervision over banks, (b) not be an Enhancement
Provider or an Affiliate of Bank of America National Trust and Savings
Association, (c) have, in the case of an entity that is subject to risk-based
capital adequacy requirements, risk-based capital of at least $250,000,000 or,
in the case of an entity that is not subject to risk-based capital adequacy
requirements, a combined capital and surplus of at least $250,000,000 and (d)
have an unsecured long-term debt rating of at least "A" or its equivalent from
each Rating Agency. If such corporation or association publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then, for the purpose of this
section,
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the combined capital and surplus of the corporation or association shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time Trustee shall cease to be
eligible in accordance with the provisions of this section, Trustee shall resign
immediately in the manner and with the effect specified in Section 11.7.
SECTION 11.7 Resignation or Removal of Trustee. (a) Trustee may at any
time resign and be discharged from its obligations hereunder by giving 30 days'
prior written notice thereof to Transferor, Servicer, the Rating Agencies, the
Investor Certificateholders and the Agents. Upon receiving the notice of
resignation, Transferor shall promptly appoint, subject to satisfaction of the
Modification Condition, a successor Trustee who meets the eligibility
requirements set forth in Section 11.6 by written instrument, in duplicate, one
copy of which shall be delivered to the resigning Trustee and one copy to the
successor Trustee. If no successor Trustee shall have been so appointed and
shall have accepted appointment within 30 days after the giving of the notice of
resignation, the resigning Trustee, upon notice to Transferor, Servicer, and
each Agent, may petition any court of competent jurisdiction to appoint a
successor Trustee.
(b) If at any time Trustee shall cease to be eligible to be Trustee
hereunder in accordance with the provisions of Section 11.6 hereof and shall
fail to resign promptly after its receipt of a written request therefor by
Servicer, or if at any time Trustee shall be legally unable to act, or shall be
adjudged bankrupt or insolvent, or if a receiver for Trustee or of its property
shall be appointed, or any public officer shall take charge or control of
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then Servicer may remove Trustee and, subject to
the consent of each Agent (which consent shall not be unreasonably withheld or
delayed) and satisfaction of the Modification Condition, promptly appoint a
successor Trustee by written instrument, in duplicate, one copy of which shall
be delivered to Trustee so removed and one copy to the successor Trustee.
(c) Any resignation or removal of Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this section shall not
become effective until (i) acceptance of appointment by the successor Trustee as
provided in Section 11.8 hereof, and (ii) such successor Trustee shall have
agreed in writing to be bound by any Intercreditor Agreements then in effect.
SECTION 11.8 Successor Trustee. (a) Any successor Trustee appointed as
provided in Section 11.7 shall execute, acknowledge and deliver to Transferor,
Servicer, the Investor Certificateholders, the Purchasers and the predecessor
Trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor Trustee shall, upon payment of its
fees and expenses and other amounts owed to it pursuant to Section 11.5, become
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effective and the successor Trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as Trustee herein. The predecessor Trustee shall deliver to the successor
Trustee, at the expense of Servicer, all documents or copies thereof and
statements held by it hereunder; and Transferor and the predecessor Trustee
shall execute and deliver such instruments and do such other things as may
reasonably be required for fully vesting and confirming in the successor Trustee
all such rights, powers, duties and obligations. Servicer shall promptly give
notice to the Rating Agencies upon the appointment of a successor Trustee.
(b) No successor Trustee shall accept appointment as provided in this
section unless at the time of the acceptance the successor Trustee shall be
eligible to become Trustee under the provisions of Section 11.6.
(c) Upon acceptance of appointment by a successor Trustee as provided
in this section, the successor Trustee shall mail notice of the succession
hereunder to all Investor Certificateholders at their addresses as shown in the
Certificate Register and to each Rating Agency.
SECTION 11.9 Merger or Consolidation of Trustee. Any Person into which
Trustee may be merged or converted or with which it may be consolidated, or any
Person resulting from any merger, conversion or consolidation to which Trustee
shall be a party, or any Person succeeding to all or substantially all of the
corporate trust business of Trustee, shall be the successor of Trustee
hereunder, if the Person meets the requirements of Section 11.6, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding. Servicer shall
promptly give notice to the Rating Agencies upon any merger or consolidation of
Trustee.
SECTION 11.10 Appointment of Co-Trustee or Separate Trustee. (a)
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust may at the time be located, Trustee shall have the power and may
execute and deliver all instruments to appoint one or more Persons (who may be
an employee or employees of Trustee) to act as a co-Trustee or co-Trustees, or
separate Trustee or separate Trustees, with respect to all or any part of the
Trust, and to vest in such Person or Persons, in such capacity and for the
benefit of the Certificateholders and the Purchasers, such title to the Trust,
or any part thereof, and, subject to the other provisions of this section, such
powers, duties, obligations, rights and trusts as Trustee may consider necessary
or appropriate; provided, that such appointment shall be subject to the prior
written consent of Transferor unless an Early Amortization Event or Servicer
Default is continuing; and provided
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further, that in any event Trustee will give Transferor and Servicer prior
written notice of such appointment. No co-Trustee or separate Trustee shall be
required to meet the terms of eligibility as a successor Trustee under Section
11.6 and no notice to Certificateholders, Agents or Purchasers of the
appointment of any co-Trustee or separate Trustee shall be required under
Section 11.8.
(b) Every separate Trustee and co-Trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon Trustee shall be conferred or imposed upon and exercised
or performed by Trustee and the separate Trustee or co-Trustee jointly
(it being understood that the separate Trustee or co-Trustee is not
authorized to act separately without Trustee joining in such act),
except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to Servicer hereunder), Trustee shall be
incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations (including the holding of
title to the Trust or any portion thereof in any such jurisdiction)
shall be exercised and performed singly by such separate Trustee or
co-Trustee, but solely at the direction of Trustee,
(ii) no Trustee hereunder shall be personally liable by
reason of any act or omission of any other Trustee hereunder, and
(iii) Trustee may at any time accept the resignation of or
remove any separate Trustee or co-Trustee.
(c) Any notice, request or other writing given to Trustee shall be
deemed to have been given to each of the then separate Trustees and co-Trustees,
as effectively as if given to each of them. Every instrument appointing any
separate Trustee or co-Trustee shall refer to this Agreement and the conditions
of this Article XI. Each separate Trustee and co-Trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with Trustee or separately, as may
be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection or indemnity to,
Trustee. Every such instrument shall be filed with Trustee and a copy thereof
given to Servicer.
(d) Any separate Trustee or co-Trustee may at any time constitute
Trustee, its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect to this
Agreement or any
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other Transaction Document on its behalf and in its name. If any separate
Trustee or co-Trustee shall die, become incapable of acting, resign or be
removed, all its estates, properties, rights, remedies and trusts shall vest in
and be exercised by Trustee, to the extent permitted by law, without the
appointment of a new or successor Trustee.
SECTION 11.11 Tax Returns. No Federal, state, local or foreign income
tax return shall be filed on behalf of the Trust unless either (i) Trustee or
Servicer shall receive an Opinion of Counsel that there is no substantial
authority for not filing such return, or (ii) the Internal Revenue Service or
the applicable Governmental Authority shall determine that the Trust is required
to file such a return, or (iii) the Trust is required to file such a return by
order of a court of competent jurisdiction. In the event the Trust shall be
required to file tax returns, Servicer shall prepare or shall cause to be
prepared any tax returns required to be filed by the Trust and shall remit the
returns to Trustee for signature at least five Business Days before the returns
are due to be filed. Trustee shall promptly sign and deliver the returns to
Servicer and Servicer shall promptly file the returns. Subject to the
responsibilities of Trustee set forth in any Supplement, Servicer, in accordance
with that Supplement, shall also prepare or shall cause to be prepared all tax
information required by law to be made available to Certificateholders and
Purchasers and shall deliver the information to Trustee at least five Business
Days prior to the date it is required by law to be made available to the
Certificateholders and Purchasers. Trustee, upon request, will furnish Servicer
with all the information known to Trustee as may be reasonably required in
connection with the preparation of all tax returns of the Trust and shall, upon
request, execute such returns as Trustee determines are appropriate.
SECTION 11.12 Trustee May Enforce Claims Without Possession of
Certificates. All rights of action and claims under this Agreement, the
Certificates, the Purchased Interests or the other Transaction Documents may be
prosecuted and enforced by Trustee without the possession of any of the
Certificates or Purchased Interests or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by Trustee shall be brought
in its own name as Trustee. Any recovery of judgment shall, after provision for
the payment of the reasonable compensation, expenses, disbursements and advances
of Trustee, its agents and counsel, be distributed to the Certificateholders or
Purchasers in respect of which such judgment has been obtained in accordance
with the related Supplement or PI Agreement.
SECTION 11.13 Suits for Enforcement. If an Early Amortization Event or
a Servicer Default shall occur and be continuing, Trustee, in its discretion
may, subject to the provisions of Sections 11.1 and 11.14, proceed to protect
and enforce its rights and the rights of the Certificateholders or Purchasers
under this
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Agreement by suit, action or proceeding in equity or at law or otherwise,
whether for the specific performance of any covenant or agreement contained in
this Agreement or any other Transaction Document or in aid of the execution of
any power granted in this Agreement or any other Transaction Document or for the
enforcement of any other legal, equitable or other remedy as Trustee, being
advised by counsel, shall deem most effectual to protect and enforce any of the
rights of Trustee or the Certificateholders or Purchasers. Nothing herein
contained shall be deemed to authorize Trustee to authorize or consent to or
accept or adopt on behalf of any Certificateholder or Purchaser any plan of
reorganization, arrangement, adjustment or composition affecting the Investor
Certificates or the rights of any Holder thereof, or the Purchasers, or to
authorize Trustee to vote in respect of the claim of any Investor
Certificateholder or Purchaser in any such proceeding.
SECTION 11.14 Rights of Required Investors To Direct Trustee. The
Required Investors shall have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to Trustee, or exercising any
trust or power conferred on Trustee; provided that such Required Investors
provide the Trustee with adequate indemnity, except that any institutional
investors shall be allowed to provide Trustee with an unsecured written promise
to hold Trustee harmless in lieu of any other security or indemnity, which
unsecured promise shall be in form and substance reasonably acceptable to
Trustee; provided that, subject to Section 11.1, Trustee may decline to follow
any such direction if Trustee, being advised by counsel, determines that the
action so directed may not be taken lawfully, or if a Responsible Officer or
Responsible Officers of Trustee shall determine, in good faith, that the
proceedings so directed would be illegal or involve Trustee in personal
liability or be unduly prejudicial to the rights of the Investor
Certificateholders or Purchasers not giving such direction; and provided
further, that nothing in this Agreement shall impair the right of Trustee to
take any action deemed proper by Trustee and that is not inconsistent with such
direction of the Required Investors.
SECTION 11.15 Representations and Warranties of Trustee. Trustee
represents and warrants that:
(a) it is a national banking association organized, existing
and in good standing under the laws of the United States of America,
(b) it has full power, authority and right to execute, deliver
and perform the Transaction Documents to which it is a party, and has
taken all necessary action to authorize the execution, delivery and
performance by it of the Transaction Documents, and
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(c) the Transaction Documents to which it is a party have been
duly executed and delivered by Trustee and, in the case of all such
Transaction Documents, are legal, valid and binding obligations of
Trustee, enforceable in accordance with their respective terms, except
as such enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity,
regardless of whether such enforceability is considered in a proceeding
in equity or at law.
SECTION 11.16 Maintenance of Office or Agency. Trustee will maintain,
at its address designated pursuant to Section 13.6, an office, offices, agency
or agencies where notices and demands to or upon Trustee in respect of the
Certificates, the Purchased Interests and the Transaction Documents to which it
is a party may be served. Trustee will give prompt written notice to Servicer
and to the Certificateholders and Agents of any change in the location of the
Certificate Register or any such office or agency.
SECTION 11.17 Conduct of Business, Office, Place of Business, Agents or
Employees Relating to Florida.
(a) The institution acting as Trustee will administer the Trust from
outside of the State of Florida, and the Trust will not conduct any business in
the State of Florida, except that the activities of the Servicer and any
Sub-Servicer pursuant to this Agreement, or the Purchase Agreement, are not
taken into account for this purpose.
(b) Neither the Trust nor the institution acting as Trustee will have
an office, place of business, agents or employees in the State of Florida at any
time during the existence of the Trust, except that the activities of the
Servicer and any Sub-Servicer pursuant to this Agreement, or the Purchase
Agreement, are not taken into account for this purpose. Notwithstanding the
foregoing, the institution acting as Trustee, in its individual capacity and not
in its capacity as trustee of the Trust or on behalf of the Trust, may have an
office, place of business, agents or employees in Florida while the Trust is in
existence, but in such situation the Florida office, place of business, agents
or employees, will not act for, or on behalf of, the Trust or the institution
acting as Trustee (in its capacity as trustee of the Trust) for any purpose.
SECTION 11.18 Trust Not to Become a Limited Liability Company or
Corporation. The Trustee shall not file any document in order to cause the Trust
to become a limited liability company or a corporation under any law unless the
Modification Condition shall have been satisfied.
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ARTICLE XII TERMINATION
SECTION 12.1 Termination of Trust. (a) The Trust and the respective
obligations and responsibilities of Transferor, Servicer and Trustee created
hereby (other than the obligation of Trustee to make payments to
Certificateholders or Purchasers as hereinafter set forth and the obligations of
Servicer contained in Sections 11.11) shall terminate, except with respect to
the duties and obligations described in Sections 3.9(c), 7.3, 8.4, 11.5,
12.2(b), 13.9, 13.15 and 13.16 upon the earliest to occur of (i) the day on
which the Investor Certificateholders, the Purchasers and Trustee shall have
been paid all amounts required to be paid to them pursuant to this Agreement and
Trustee has disposed of all property held hereunder (including pursuant to
Section 12.3) and (ii) the day which is 21 years less one day after the death of
the officers and the last survivor of all the lineal descendants of every
officer of the Trustee who are living on the date hereof.
(b) Notwithstanding the foregoing, the last payment of the principal of
and interest on the Investor Certificates of any Series shall be due and payable
no later than the Final Scheduled Payment Date for that Series. If, on the
Distribution Date immediately prior to the Final Scheduled Payment Date for any
Series, Servicer determines that the Invested Amount for the Series on the
applicable Final Scheduled Payment Date (after giving effect to all changes
therein on such date) will exceed zero, Servicer shall solicit bids for the sale
of interests in the Transferred Assets in an amount equal to 110% of the Base
Amount for the Series on the Final Scheduled Payment Date for the Series (after
giving effect to all distributions required to be made on the Final Scheduled
Payment Date for the Series), but in no event more than the Series Collection
Allocation Percentage for that Series of the aggregate Unpaid Balance of the
Receivables on that day. Transferor shall be entitled to participate in and to
receive notice of each bid submitted in connection with the bidding process.
Upon the expiration of the bidding period, Servicer shall determine (x) the
Highest Bid and (y) the Available Final Distribution Amount for the Series.
Servicer shall sell the interests in the Transferred Assets on the Final
Scheduled Payment Date for the applicable Series to the bidder with the Highest
Bid and shall deposit the proceeds of such sale in the Master Collection Account
for allocation (together with the Available Final Distribution Amount for such
Series) to the Certificateholders of such Series. Notwithstanding the foregoing,
so long as Series 1998-1 is outstanding, interests in Tricon Assets shall be
sold, and the proceeds thereof distributed, pursuant to this Section solely for
the benefit of Series 1998-1.
SECTION 12.2 Final Distribution. (a) Servicer shall give Trustee at
least ten days' prior written notice of the date on which the Trust is expected
to terminate in accordance with Section 12.1(a). The notice shall be
accompanied by a certificate of an Authorized Officer of Servicer setting forth
the information specified
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in Section 3.6 covering the period during the then current calendar year through
the date of the notice. Upon receiving the notification from Servicer, Trustee
shall give the Certificateholders and/or the Agents (as applicable) written
notice as soon as practicable after Trustee's receipt of notice from Servicer,
which notice shall specify (i) the Distribution Date upon which final payment
with respect to the Certificates is expected to be made, (ii) the amount of any
such final payment and (iii) that Certificateholders shall not receive such
final payment unless they surrender their Certificates in accordance with the
last sentence of this clause (a). Trustee shall give the notice to the Transfer
Agent and Registrar and the Paying Agent at the time such notice is given to
Certificateholders. On the Distribution Date specified in the notice, Trustee
shall, based upon the Daily Report relating to such Distribution Date, cause to
be distributed to the Certificateholders the amounts distributable to them on
such Distribution Date pursuant to the applicable Supplement. Each
Certificateholder shall present its Certificate to Trustee and surrender its
Certificate for cancellation at the address of Trustee set forth in Section 13.6
at least one Business Day prior to the Distribution Date upon which final
payment with respect to the Certificates is expected to be made.
(b) Notwithstanding the termination of the Trust pursuant to Section
12.1(a), all funds then on deposit in the Master Collection Account shall
continue to be held in trust for the benefit of the Certificateholders and the
Purchasers and the Paying Agent or Trustee shall pay such funds to the
Certificateholders and the Purchasers at the time set forth in Section 12.1(a).
If any Certificateholder or Purchaser does not claim the portion of such funds
to which it is entitled at such time, interest shall cease to accrue on its
Certificate or Purchased Interest (as applicable) and Trustee shall hold such
funds in trust for such Person, subject to the further provisions of this
Section. In the event that any of the Certificateholders shall not have claimed
their final payment with respect to their Certificates within six months after
the date specified in the above-mentioned written notice from Trustee, Trustee
shall give a second written notice to the remaining Certificateholders
concerning payment of the final distribution with respect thereto and surrender
of their Certificates for cancellation. If within one year after the second
notice all the Certificates shall not have been surrendered for cancellation,
Trustee may take appropriate steps, or may appoint an agent to take appropriate
steps, to contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds in the Master
Collection Account held for the benefit of such Certificateholders. Trustee and
the Paying Agent shall pay to Transferor any monies held by them for the payment
of principal of or interest on the Certificates that remains unclaimed for two
years after the termination of the Trust pursuant to Section 12.1(a). After
payment of the monies to Transferor, Certificateholders entitled to the money
must look to Transferor for payment as unsecured general creditors unless an
applicable abandoned property law designates another Person.
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SECTION 12.3 Rights Upon Termination of the Trust. Upon the termination
of the Trust pursuant to Section 12.1 and the surrender of the Transferor
Certificate by Transferor to Trustee, Trustee shall transfer, assign, set over
and otherwise convey to Transferor (without recourse, representation or
warranty), all right, title and interest of the Trust in the Receivables,
whether then existing or thereafter created, the Related Transferred Assets and
all of the other property and rights previously conveyed to Trustee hereunder,
except for amounts held by Trustee pursuant to Section 12.2(b) and except for
the rights of RPA Indemnified Parties (other than Transferor and its officers,
directors, shareholders, controlling Persons, employees and agents) to
indemnification and contribution under Section 9.1 of the Purchase Agreement.
Trustee shall execute and deliver the instruments of transfer and assignment
(including any document necessary to release the security interest in favor of
Trustee (for the benefit of the Certificateholders or the Purchasers) in such
Receivables and Related Transferred Assets, to release any filing evidencing or
perfecting such security interest and to terminate all powers of attorney
created by the Transaction Documents), in each case without recourse,
representation or warranty, that shall be reasonably requested by Transferor to
vest in Transferor all right, title and interest that Trustee had in the
Transferred Assets.
SECTION 12.4 Optional Repurchase of Investor Interests. Any Supplement
may provide that on any Distribution Date occurring on or after the date that
the aggregate Unpaid Balance of the Receivables is 10% or less of the aggregate
Unpaid Balance of the Receivables as of the commencement of any Amortization
Period, Transferor shall have the option, upon the giving of ten days' prior
written notice by Transferor to Servicer, Trustee and the Rating Agencies, to
repurchase the undivided interest of the Series in the Trust by depositing into
the Principal Funding Account, on such Distribution Date (the "Repurchase
Distribution Date"), an amount (the "Repurchase Amount") equal to the unpaid
Invested Amount of the Series plus accrued and unpaid interest on the unpaid
principal amount of the Series (and accrued and unpaid interest with respect to
interest amounts that were due but not paid on a prior Distribution Date)
through the day preceding the Distribution Date at the rates of interest then
applicable to such Series plus any "Additional Amounts" (as defined in the
Supplement for such Series) known to be payable through the day preceding the
Distribution Date for such Series. Upon tender of all outstanding Certificates
of the Series by the Certificateholders, Trustee shall then distribute such
amounts, together with all other amounts on deposit in the Principal Funding
Account with respect to that Series to the Certificateholders of the Series on
the next Distribution Date in repayment of the principal amount and all accrued
and unpaid interest owing to the Certificateholders. Following the Repurchase
Distribution Date, the Certificateholders of the Series shall have no further
rights with respect to the Receivables and at the request of Transferor, if no
other Series or Purchased Interest shall then
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be outstanding, Trustee shall execute and deliver the instruments of transfer
and assignment (including any document necessary to release the security
interest in favor of Trustee (for the benefit of the Certificateholders) in the
Receivables and Related Transferred Assets and to release any filing evidencing
or perfecting the security interest), in each case without recourse,
representation or warranty, as shall be reasonably requested by Transferor to
vest in Transferor all right, title and interest that Trustee had in the
Transferred Assets. In the event that Transferor fails for any reason to deposit
the Repurchase Amount for any Series, payments shall continue to be made to the
Certificateholders of the Series in accordance with the terms of this Agreement.
ARTICLE XIII MISCELLANEOUS PROVISIONS
SECTION 13.1 Amendment, Waiver, Etc. (a) This Agreement, any Supplement
and any Intercreditor Agreement may be amended from time to time by Servicer,
Transferor and Trustee by a written instrument signed by each of them, without
the consent of any of the Certificateholders, the Purchasers or the Agents;
provided that such action shall not adversely affect in any material respect the
interests of any Certificateholder or Purchaser, as evidenced by an Officer's
Certificate of Servicer; and provided further, that any amendment of this
Agreement to effect any modification of the Bank Account arrangements pursuant
to Section 3.3(c)(ii) shall not require the consent of any of the
Certificateholders, the Purchasers or the Agents. None of this Agreement, any
Supplement, the Purchase Agreement or any Intercreditor Agreement may be amended
unless Transferor shall have delivered the proposed amendment to each Agent and
the Rating Agencies at least ten Business Days (or such shorter period as shall
be acceptable to each of them) prior to the execution and delivery thereof and
the Modification Condition has been satisfied with respect to such amendment;
provided, however, that the Modification Condition shall not apply to proposed
amendments the purpose of which is to correct any ambiguities or inconsistencies
in this Agreement or such Supplement. Notwithstanding anything on this Section
13.1 to the contrary, the Supplement with respect to any Series may be amended
on the terms and in accordance with the procedures provided in such Supplement.
(b) Any PI Agreement with respect to a Purchased Interest may be
amended from time to time in accordance with the terms thereof without the
consent of the Investor Certificateholders; provided that any amendment will not
adversely affect in any material respect the interests of the Holders of any
Series or other Purchased Interest, as evidenced by an Officer's Certificate of
Servicer. No PI Agreement may be amended unless Transferor shall have delivered
the proposed amendment to each Agent and the Rating Agencies at least ten
Business Days (or such shorter period as shall be acceptable to each of them)
prior to the execution and delivery thereof and the Modification Condition has
been satisfied with respect
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to such amendment; provided, however, that the Modification Condition shall not
apply to proposed amendments the purpose of which is to correct any ambiguities
or inconsistencies in such PI Agreement.
(c) The provisions of this Agreement, any Supplement, any Intercreditor
Agreement and any PI Agreement may also be amended, modified or waived from time
to time by Servicer, Transferor and Trustee with the consent of: (i) in the case
of this Agreement or any Supplement, (A) the Required Series Holders of each
affected Series and (B) if any Purchased Interest shall or would be adversely
affected, each Agent of a Purchaser, for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this Agreement
or any Supplement or of modifying in any manner the rights of the
Certificateholders or the Purchasers; provided that no amendment shall (w)
reduce in any manner the amount of or delay the timing of any distributions to
be made to Investor Certificateholders or deposits of amounts to be so
distributed or the amount available under any Enhancement without the consent of
each affected Certificateholder, (x) change the definition of or the manner of
calculating the interest of any Investor Certificateholder without the consent
of each affected Investor Certificateholder, (y) reduce the aforesaid percentage
required to consent to any amendment without the consent of each Investor
Certificateholder or (z) adversely affect the rating of any Series or class by
any Rating Agency without the consent of the Holders of Investor Certificates of
the Series or class evidencing not less than 66 2/3% of the aggregate unpaid
principal amount of the Investor Certificates of the Series or class or (ii) in
the case of any PI Agreement, (A) each Agent of a Purchaser and the other
parties thereto and (B) if any Series of Investor Certificates shall or would be
adversely affected, the Required Series Holders of each such adversely affected
Series. It is understood that the consent of the Required Series Holders of any
Series or the Agent of a Purchaser shall not be required for any amendment,
modification or waiver if all amounts owed to the Holders of such Series or such
Purchaser (as the case may be) will be paid (and any commitments of such Holders
or Purchaser will terminate) prior to, or contemporaneously with, the
effectiveness of such amendment, modification or waiver; provided further, that
any amendment of this Agreement to effect any modification of the Bank Account
arrangements pursuant to Section 3.3(c)(ii) shall not require the consent of any
of the Certificateholders, the Purchasers or the Agents. No PI Agreement may be
amended unless Transferor shall have delivered the proposed amendment to each
Agent and the Rating Agencies at least ten Business Days (or such shorter period
as shall be acceptable to each of them) prior to the execution and delivery
thereof and the Modification Condition has been satisfied with respect to such
amendment; provided, however, that the Modification Condition shall not apply to
proposed amendments the purpose of which is to correct any ambiguities or
inconsistencies in such PI Agreement.
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Transferor or Trustee shall establish a record date for determining
which Certificateholders may give such waivers and consents. No waiver of any
Early Amortization Event or other default hereunder given at any time shall
apply to any other prior or subsequent Early Amortization Event or default.
(d) Promptly after the execution of any amendment, consent or waiver
described in subsection (b) or (c), Trustee shall furnish written notification
of the substance of the amendment or consent to each Investor Certificateholder,
and Servicer shall furnish written notification of the substance of the
amendment or consent to the Rating Agency and each Enhancement Provider.
(e) It shall not be necessary for any waiver or consent given by the
Certificateholders under this section to approve the particular form of any
proposed amendment, but it shall be sufficient if the consent shall approve the
substance thereof. The manner of obtaining such waivers and consents and of
evidencing the authorization of the execution thereof by the Certificateholders
shall be subject to such reasonable requirements as Trustee may prescribe.
(f) Notwithstanding anything in this section to the contrary, no
amendment may be made to this Agreement, any Supplement or any PI Agreement that
would adversely affect in any material respect the interests of any Enhancement
Provider without the consent of the Enhancement Provider (it being understood
that Trustee shall not be responsible for making a determination as to such
adverse effect).
(g) Any Supplement or PI Agreement executed in accordance with the
provisions of Section 6.10 shall not be considered an amendment to this
Agreement for the purposes of this section.
(h) Prior to the execution of any amendment to this Agreement, Trustee
shall be entitled to receive and rely upon an Opinion of Counsel stating that
the execution of the amendment is authorized or permitted by this Agreement and
that all conditions precedent to the execution and delivery have been satisfied.
Trustee may, but shall not be obligated to, enter into any amendment that
affects Trustee's own rights, duties or immunities under this Agreement.
(i) Notwithstanding anything in this Section to the contrary, no
amendment may be made to this Agreement unless Transferor shall have delivered
to Trustee, the Rating Agencies, each Purchaser and each Enhancement Provider a
Tax Opinion with respect to such amendment (provided that such opinion with
respect to any Series or Purchased Interest shall be limited to the Tax Opinion
required by the related Supplement or PI Agreement).
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SECTION 13.2 Actions by Certificateholders and Purchasers. (a) By its
acceptance of Certificates pursuant to this Agreement and the applicable
Supplement, each Certificateholder (other than Transferor and any AmeriServe
Person) acknowledges and agrees that, wherever in this Agreement a provision
states that an action may be taken or a notice, demand or instruction given by
any Series of Investor Certificateholders, any class of Investor
Certificateholders or the Investor Certificateholders, the action, notice or
instruction may be taken or given by any Holder of an Investor Certificate of
the Series or class or by any Investor Certificateholder, respectively, unless
the provision requires a specific percentage of the Series or class of Investor
Certificateholders or of all Investor Certificateholders.
(b) By its acceptance of Certificates pursuant to this Agreement and
the applicable Supplement, each Certificateholder (other than Transferor and any
AmeriServe Person) acknowledges and agrees that any request, demand,
authorization, direction, notice, consent, waiver or other act by the Holder of
a Certificate shall bind the Holder and every subsequent Holder of the
Certificate and of any Certificate issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done
or omitted to be done by Trustee or Servicer in reliance thereon, whether or not
notation of the action is made upon such Certificate.
(c) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement, any Supplement or any PI
Agreement to be given or taken by Certificateholders or any Agent for a
Purchaser may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by the Certificateholders or any Agent for a
Purchaser in person or by agent duly appointed in writing; and except as herein
otherwise expressly provided, the action shall become effective when the
instrument or instruments are delivered to Trustee and, when required, to
Servicer. Proof of execution of any such instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Agreement, any
Supplement or any PI Agreement and conclusive in favor of Trustee and Servicer,
if made in the manner provided in this section.
(d) The fact and date of the execution by any Certificateholder or any
Agent for a Purchaser of any such instrument or writing may be proved in any
reasonable manner that Trustee deems sufficient.
SECTION 13.3 Limitation on Rights of Certificateholders. (a) The death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust, nor shall the death or incapacity entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a partition or
winding up of the Trust, nor
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otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) No Certificateholder shall have any right to vote (except as
expressly provided otherwise in this Agreement) or in any manner otherwise to
control the operation and management of the Trust, or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Certificates, be construed so as to constitute the Certificateholders
from time to time as partners or members of an association, nor shall any
Certificateholder be under any liability to any third Person by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provisions of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to the Transaction Documents
(except to the extent any Supplement or related certificate purchase agreement
creates independent and non-duplicative rights), unless the Certificateholder
previously shall have given to Trustee, and unless the Required Investors shall
have made, written request upon Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and Trustee, for 30 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding; it being
understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder, every Purchaser and
Trustee, that no one or more Certificateholders or Purchasers shall have any
right in any manner whatever by virtue of, or by availing itself or themselves
of, any provisions of a Transaction Document to affect, disturb or prejudice the
rights of any other Investor Certificateholder or Purchaser, or to obtain or
seek to obtain priority over or preference to any such other Investor
Certificateholder or Purchaser, except to the extent provided in the Transaction
Documents, or to enforce any right under the Transaction Documents, except in
the manner herein provided and for the equal, ratable and common benefit of, all
Investor Certificateholders and Purchasers (subject to the priorities set forth
in the Transaction Documents). For the protection and enforcement of the
provisions of this section, each and every Certificateholder, each and every
Purchaser and Trustee shall be entitled to such relief as can be given either at
law or in equity.
(d) By their acceptance of Certificates pursuant to this Agreement and
the applicable Supplement, the Certificateholders agree to the provisions of
this section.
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SECTION 13.4 Limitation on Rights of Purchasers. (a) The death or
incapacity of any Purchaser shall not operate to terminate this Agreement or the
Trust, nor shall the death or incapacity entitle such Purchaser's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the Trust,
nor otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
(b) Except as expressly provided in this Agreement or a PI Agreement,
neither any Purchaser nor any Agent for a Purchaser shall have any right to
vote, or in any manner otherwise to control the operation and management of the
Trust, or the obligations of the parties hereto, nor shall anything herein set
forth, or contained in the terms of the Purchased Interests, be construed so as
to constitute the Purchasers from time to time as partners or members of an
association, nor shall any Purchaser be under any liability to any third Person
by reason of any action taken by the parties to this Agreement pursuant to any
provision hereof.
(c) Neither any Purchaser nor any Agent for a Purchaser shall have any
right by virtue of any provisions of this Agreement to institute any suit,
action or proceeding in equity or at law upon or under or with respect to any
Transaction Document (except to the extent a PI Agreement creates independent
and non- duplicative rights), unless such Purchaser or such Agent previously
shall have (i) made a written request upon Trustee to institute such action,
suit or proceeding and (ii) offered to Trustee such reasonable security or
indemnity as Trustee may require against the costs, expenses and liabilities to
be incurred by Trustee in compliance with such request, and Trustee, for 30 days
after its receipt of such request and offer of security or indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. It is
understood and intended, and, upon the purchase of each Purchased Interest the
related Agent and Purchaser shall be deemed to have expressly covenanted and
agreed with every other Purchaser, Investor Certificateholder and Trustee, that
no one or more Purchasers or Certificateholders shall have any right in any
manner whatever by virtue of, or by availing itself or themselves of, any
provisions of a Transaction Document to affect, disturb or prejudice the rights
of any other Investor Certificateholder or Purchaser, or to obtain or seek to
obtain priority over or preference to any such other Investor Certificateholder
or Purchaser, except to the extent provided in the Transaction Documents, or to
enforce any right under the Transaction Documents, except in the manner herein
provided and for the equal, ratable and common benefit of all Investor
Certificateholders or Purchasers (subject to the priorities set forth in the
Transaction Documents). For the protection and enforcement of the provisions of
this section, each and every Certificateholder, each and every Purchaser and
Trustee shall be entitled to such relief as can be given either at law or in
equity.
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SECTION 13.5 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO CONFLICT OF
LAWS PRINCIPLES, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE.
SECTION 13.6 Notices. All demands, notices, instructions and other
communications provided for hereunder shall, unless otherwise stated herein, be
in writing (including facsimile communication) and shall be personally delivered
or sent by certified mail, postage prepaid, by facsimile or by overnight
courier, to the intended party (a) in the case of Transferor, to its address set
forth below its signature hereto, (b) in the case of AmeriServe, to its address
set forth below its signature hereto, and (c) in the case of Trustee, the Paying
Agent or the Transfer Agent and Registrar, to the address of Trustee set forth
on the signature pages hereof; or, as to each party, at such other address or
facsimile number as shall be designated by it in a written notice to each other
party given in accordance with this section. Such demands, notices, instructions
and other communications provided for hereunder shall be effective, (a) if
personally delivered, when received, (b) if sent by certified mail, four
Business Days after having been deposited in the mail, postage prepaid and
properly addressed, (c) if transmitted by facsimile, when sent, receipt
confirmed by telephone or electronic means and (d) if sent by overnight courier,
two Business Days after having been given to the courier unless sooner received
by the addressee. Except to the extent expressly provided otherwise in an
applicable Supplement, any notice required or permitted to be mailed to a
Certificateholder shall be sent by first-class mail, postage prepaid, to the
address of the Certificateholder as shown in the Certificate Register. Except to
the extent expressly provided otherwise in an applicable Supplement, any notice
so mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given on the fourth Business Day after the notice is
so mailed, whether or not the Certificateholder receives the notice. Servicer
shall deliver or make available to the Rating Agencies each certificate and
report required to be prepared, forwarded or delivered pursuant to Section 3.5
(excluding the Daily Reports) or 3.6 and a copy of any amendment, consent or
waiver to this Agreement, at such address as shall be designated by the Rating
Agency in a written notice from time to time to Servicer.
SECTION 13.7 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement or any of the other
Transaction Documents shall for any reason whatsoever be held invalid, then the
unenforceable covenants, agreements, provisions or terms shall be deemed
severable from the remaining covenants, agreements, provisions or terms of this
Agreement or the other Transaction Documents (as applicable) and shall in no way
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affect the validity or enforceability of the other provisions of this Agreement,
the Certificates, the Purchased Interests or any of the other Transaction
Documents or the rights of the Certificateholders or the Purchasers.
SECTION 13.8 Certificates Nonassessable and Fully Paid. Except to the
extent otherwise expressly provided in Section 7.3 with respect to Transferor,
it is the intention of the parties to this Agreement that the Certificateholders
and Purchasers shall not be personally liable for obligations of the Trust, that
the interests in the Trust represented by the Certificates or the Purchased
Interests shall be nonassessable for any losses or expenses of the Trust or for
any reason whatsoever and that Certificates upon authentication thereof by
Trustee pursuant to Section 6.2 are and shall be deemed fully paid.
SECTION 13.9 Nonpetition Covenant. Notwithstanding any prior
termination of this Agreement, each of Trustee, Servicer, Transferor, the Paying
Agent, each Authenticating Agent and the Transfer Agent and Registrar (and each
Investor Certificateholder or Purchaser by its acceptance of a Certificate or
Purchased Interest) agrees that it shall not, with respect to the Trust or
Transferor, institute or join any other Person in instituting any proceeding of
the type referred to in the definition of "Bankruptcy Event" against or with
respect to the Trust or the Transferor so long as any Certificates or Purchased
Interests issued by the Trust shall be outstanding or there shall not have
elapsed one year plus one day since the last day on which any such Certificates
or Purchased Interests shall have been outstanding. The foregoing shall not
limit the right of any such Person to file any claim in or otherwise take any
action with respect to any such proceeding that was instituted against
Transferor or the Trust by any Person other than Trustee, Servicer, Transferor,
the Paying Agent, an Authenticating Agent or the Transfer Agent and Registrar.
In addition, each of Servicer, the Paying Agent, each Authenticating Agent, the
Transfer Agent and Registrar (and each Investor Certificateholder or Purchaser
by its acceptance of a Certificate or Purchased Interest) and (as to the Trust)
Transferor agree that all amounts owed to them by the Trust or Transferor shall
be payable solely from amounts that become available for such payment pursuant
to this Agreement and the Purchase Agreement, and no such amounts shall
constitute a claim against the Trust or Transferor to the extent that they are
in excess of the amounts available for their payment.
SECTION 13.10 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of Trustee, the Investor
Certificateholders, or the Purchasers or any Agent, any right, remedy, power or
privilege hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights,
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remedies, powers and privileges herein provided are cumulative and are not
exhaustive of any rights, remedies, powers and privileges provided by law.
SECTION 13.11 Counterparts. This Agreement may be executed in any
number of counterparts (which may include facsimile) and by the different
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original, and all of which together shall constitute one and the
same instrument.
SECTION 13.12 Third-Party Beneficiaries. This Agreement will inure to
the benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. The Certificateholders, the Purchasers, the
Agents, the Affected Parties, the Enhancement Providers and their respective
successors and assigns are intended third party beneficiaries of this Agreement.
Except as otherwise expressly provided in this Agreement, nothing contained in
this Agreement shall confer any rights upon any Person that is not a party to,
or a permitted assignee of a party to, this Agreement.
SECTION 13.13 Integration. This Agreement and the other Transaction
Documents contain a final and complete integration of all prior expressions by
the parties hereto with respect to the subject matter hereof and thereof and
shall together constitute the entire agreement among the parties hereto with
respect to the subject matter hereof and thereof, superseding all prior oral or
written understandings.
SECTION 13.14 Binding Effect; Assignability; Survival of Provisions.
This Agreement shall be binding upon and inure to the benefit of Transferor,
Servicer and Trustee and their respective successors and permitted assigns;
provided, that Transferor shall not delegate any of its obligations hereunder.
This Agreement shall create and constitute the continuing obligations of the
parties hereto in accordance with its terms, and shall remain in full force and
effect until the termination of the Trust pursuant to Section 12.1. The rights
and remedies with respect to (a) any breach of any representation and warranty
made by Transferor in Section 2.3 or Section 7.1, (b) any breach of any
representation and warranty made by Servicer in Section 8.1 and (c) the
indemnification and payment provisions in Sections 3.9, 7.3, 8.4, 11.5 and
12.2(b) shall be continuing and shall survive the termination of this Agreement.
This Section 13.14 and Sections 13.5, 13.9, 13.12, 13.15, 13.17 and 13.18 also
shall survive the termination of this Agreement.
SECTION 13.15 Recourse to Transferor. Except to the extent expressly
provided otherwise in the Transaction Documents, the obligations of Transferor
under the Transaction Documents to which it is a party are solely the
obligations of Transferor, and no recourse shall be had for payment of any fee
payable by or other
page 95
101
obligation of or claim against Transferor that arises out of any Transaction
Document to which Transferor is a party against any director, officer or
employee of Transferor. Payments to be made by Transferor pursuant to this
Agreement shall be paid to the extent that funds are available to make the
payments after all amounts to be paid to the Certificateholders and the
Purchasers pursuant to the applicable Supplement and PI Agreement shall have
been paid, and there shall be no recourse to Transferor for all or any part of
any amounts payable pursuant to any Transaction Document if the funds are at any
time insufficient to make all or part of any such payments. The provisions of
this section shall survive the termination of this Agreement.
SECTION 13.16 Recourse to Transferred Assets. The Certificates do not
represent an obligation of, or an interest in, Transferor, any Seller, Servicer,
Trustee or any Affiliate of any of them. Except as expressly provided otherwise
in this Agreement, the Certificates and Purchased Interests are limited in right
of payment to the Transferred Assets.
SECTION 13.17 Submission to Jurisdiction. EACH PARTY HERETO HEREBY (a)
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE OR
FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK, NEW
YORK OVER ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE TRANSACTION
DOCUMENTS, (b) IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF THE ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE OR FEDERAL COURT, (c)
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE
OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING, AND
(d) IN THE CASE OF TRANSFEROR AND AMERISERVE, IRREVOCABLY APPOINTS THE PROCESS
AGENT AS ITS AGENT TO RECEIVE ON BEHALF OF IT AND ITS PROPERTY SERVICE OF COPIES
OF THE SUMMONS AND COMPLAINT AND ANY OTHER PROCESS THAT MAY BE SERVED IN SUCH
ACTION OR PROCEEDING. THE SERVICE MAY BE MADE BY MAILING OR DELIVERING A COPY OF
THE PROCESS TO TRANSFEROR OR AMERISERVE IN CARE OF THE PROCESS AGENT AT THE
PROCESS AGENT'S ADDRESS, AND EACH OF TRANSFEROR AND AMERISERVE HEREBY
IRREVOCABLY AUTHORIZES AND DIRECTS THE PROCESS AGENT TO ACCEPT THE SERVICE ON
ITS BEHALF. AS AN ALTERNATIVE METHOD OF SERVICE, EACH OF TRANSFEROR AND SERVICER
ALSO IRREVOCABLY CONSENTS TO THE SERVICE OF ANY AND ALL PROCESS IN SUCH ACTION
OR PROCEEDING BY THE MAILING OF COPIES OF THE PROCESS TO TRANSFEROR OR SERVICER
(AS APPLICABLE) AT ITS ADDRESS SPECIFIED HEREIN. NOTHING IN THIS SECTION SHALL
AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR AFFECT THE RIGHT OF ANY PARTY HERETO TO BRING ANY ACTION OR
PROCEEDING AGAINST ANY OR ALL OF THE OTHER PARTIES HERETO OR ANY OF THEIR
RESPECTIVE PROPERTIES IN THE COURTS OF ANY OTHER JURISDICTION.
page 96
102
SECTION 13.18 Waiver of Jury Trial. EACH PARTY HERETO WAIVES ANY RIGHT
TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS
UNDER OR RELATING TO THE TRANSACTION DOCUMENTS OR ANY AMENDMENT, INSTRUMENT,
DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN THE FUTURE BE DELIVERED IN
CONNECTION THEREWITH OR ARISING FROM ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN), ACTIONS OF ANY OF THE PARTIES HERETO OR
ANY OTHER RELATIONSHIP EXISTING IN CONNECTION WITH THE TRANSACTION DOCUMENTS,
AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND
NOT BEFORE A JURY.
SECTION 13.19 Certain Partial Releases. If any Seller is discontinued
as a Seller pursuant to Section 1.8(a) or 1.8(c) of the Purchase Agreement,
Trustee shall, upon the request (and at the expense) of AmeriServe, execute and
deliver to AmeriServe such statements of termination, partial release and/or
amendment relating to the UCC-1 financing statements filed against such Seller
pursuant to the Purchase Agreement as shall be prepared by AmeriServe and
provided to Trustee to evidence such termination; provided that Trustee shall
have received (i) an Officer's Certificate of Servicer to the effect that all
conditions to such termination specified in such Section 1.8(a) have been
satisfied (and shall not have received notice from any Investor
Certificateholder or Agent to the contrary) and (ii) in the case of any such
partial release and/or amendment, an Opinion of Counsel to the effect that the
filing of such statements of partial release and/or amendment will not impair
the validity, perfection or priority of Transferor's or Trustee's rights in and
to any Receivables or Related Assets that remain in the Trust after giving
effect to any related conveyance of Receivables and Related Assets, and/or (iii)
in the case of any termination of filings against a Seller, an Officer's
Certificate of Servicer to the effect that Trustee no longer holds any right,
title or interest in the Receivables generated by such Seller. In connection
with a termination described in Section 1.8(c) of the Purchase Agreement,
Trustee shall, if demanded by Transferor, convey all of its right, title and
interest in all (but not less than all) of the Receivables (and Related Assets
with respect thereto) originated by the Terminating Seller to a Person
designated by the Terminating Seller, provided that such conveyance by Trustee
shall be made only against receipt by Trustee from the purchaser, in cash, of a
release price negotiated in good faith by the Terminating Seller (but in no
event shall such release price be less than the lesser of (i) 102% of the price
Transferor paid for such Receivables and Related Assets with respect thereto and
(ii) the Unpaid Balance of such Receivables, provided further that Trustee shall
have received an Officer's Certificate to the effect that such conveyance does
not violate the last sentence of this Section). No such release and conveyance
by Trustee shall, however, be permitted if as a result thereof any AmeriServe
Person would acquire the released Receivables.
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103
SECTION 13.20 Effect on Existing Pooling Agreement. This Agreement
amends and restates the Existing Pooling Agreement effective as of the date of
this Agreement. This Agreement shall not effect a novation of the obligations of
the parties to the Existing Pooling Agreement, but instead shall be merely a
restatement and, where applicable, an amendment of the terms governing such
obligations. The parties hereto hereby affirm, ratify and confirm all transfers
of Receivables and other Transferred Assets pursuant to the Existing Pooling
Agreement. The parties hereto agree that the existing Transferor Certificate
shall be deemed to have been amended and restated in the form of Exhibit E
hereto.
[SIGNATURES FOLLOW]
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104
IN WITNESS WHEREOF, Transferor, Servicer and Trustee have caused this
Agreement to be executed by their respective officers thereunto duly authorized
as of the day and year first above written.
AMERISERVE FUNDING CORPORATION,
as Transferor
By:
---------------------------------------
Name:
---------------------------------
Title:
--------------------------------
Address: 00000 Xxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attention: President
AMERISERVE FOOD DISTRIBUTION, INC.,
as initial Servicer
By:
---------------------------------------
Name:
---------------------------------
Title:
--------------------------------
Address: 00000 Xxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
Telephone: 972/000-0000
Facsimile: 972/338-6947
000
XXXXXXX XXXX XXXXXXXXX, NATIONAL
ASSOCIATION, as Trustee
By:
---------------------------------------
Name:
---------------------------------
Title:
--------------------------------
Address: Xxxxx & Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services/
Asset-Backed Administration
Facsimile: 612/667-3539
106
EXHIBIT A
to Pooling Agreement
FORM OF
LOCKBOX AGREEMENT
, 199
------- --
[Full Name and Address Lockbox Bank]
Attention:
----------------------
Ladies and Gentlemen:
Please be advised that (a) [name of Seller] ("Company") has irrevocably
transferred, assigned, set over and conveyed exclusive ownership and control of
its lockbox numbered P.O. Box __________ of the post office located at
__________, __ _____ (the "Lockbox") and the corresponding demand deposit
account numbered ____________ (the "Lockbox Account") maintained with you to
AmeriServe Funding Corporation ("Transferor"), and (b) Transferor has
irrevocably transferred, assigned, set over and conveyed all of its rights and
title to and interest in the Lockbox and the Lockbox Account to Norwest Bank
Minnesota, National Association, as trustee (the "Trustee") for the benefit of
certain holders of certificates and purchased interests (collectively, the
"Holders") issued from time to time under an Amended and Restated Pooling and
Servicing Agreement, dated as of July 28, 1998, among Transferor, AmeriServe
Food Distribution, Inc., as initial Servicer, and the Trustee, as the same may
be amended, amended and restated, supplemented or otherwise modified from time
to time.
By executing this lockbox agreement, you (i) acknowledge and agree to
the transfers, assignments, setting overs and conveyances of the Lockboxes and
Lockbox Accounts described above; (ii) acknowledge and agree to the existence of
the Trustee's right to dominion and control over the Lockbox and the Lockbox
Account and its ownership of and security interest in the Lockbox and the
Lockbox Account, all moneys and instruments delivered to the Lockbox, the
Lockbox Account and the amounts from time to time on deposit therein; and (iii)
agree that, from and after the date hereof, you shall maintain the Lockbox and
the Lockbox Account and shall hold all such moneys and instruments and such
amounts for the benefit and subject to the interests of the Trustee (for the
benefit of itself and the Holders). You also acknowledge that your execution of
this lockbox agreement is a condition precedent to continued maintenance of the
Lockbox Account with you.
107
The Lockbox Account is to be maintained in the name of "Norwest Bank Minnesota,
National Association, as Trustee."
Company and Transferor hereby irrevocably instruct you, and the
Trustee, by its acknowledgment hereof, hereby instructs you, at all times from
and after the date hereof until your receipt of contrary and/or terminating
instructions from the Trustee, to remit, on a daily basis, in immediately
available funds, all available amounts deposited in the Lockbox Account to the
following account (the "Master Collection Account") or such other account as the
Trustee or the Servicer may specify:
Norwest Bank Minnesota, National Association
Xxxxx & Xxxxxxxxx
Xxxxxxxxxxx, XX 00000-0000
ABA #000000000
Account #00-00-000
N/O: Corporate Trust Clearing Account
For further credit: AmeriServe Receivables Master Trust/
Master Collection Account #00000000
By executing this lockbox agreement, you irrevocably waive and agree
not to assert any right to setoff against, or otherwise deduct from, any items
collected from the Lockbox, the Lockbox Account or any funds from time to time
therein or in transit thereto; provided, however, that you may (i) debit the
Lockbox Account for any items deposited in the Lockbox Account that are returned
or otherwise not collected in accordance with your customary practices for the
chargeback of returned items, (ii) charge the Lockbox Account for any erroneous
crediting of funds by you to such Lockbox Account and (iii) apply funds in the
Lockbox Account for reimbursement of any fees and expenses owed to you under the
terms of this lockbox agreement, to the extent that such fees and expenses are
not paid or reimbursed by Company.
All transfers referred to above shall be made by you irrespective of,
and without deduction for, any counterclaim, defense, recoupment or set-off
(except as expressly permitted otherwise by this lockbox agreement) and shall be
final, and you agree that you will not seek to recover any amount from the
Trustee, Transferor, or the Servicer for any reason once any payment or transfer
has been made.
Company shall pay, or reimburse you for, customary and reasonable fees
and expenses incurred by you in the maintenance and operation of the Lockbox
Account in accordance with this lockbox agreement. The Trustee and Transferor
will have no liability to you or the Servicer for any costs, fees or charges
under
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108
your usual and customary procedures or this lockbox agreement. You hereby agree
to promptly notify the Trustee of your failure to receive timely payment of any
fee under this lockbox agreement.
The Trustee's instructions with respect to the Lockbox and the Lockbox
Account may be given through a "Servicer" that the Trustee may appoint from time
to time and will notify you thereof in writing, and you agree to follow the
instructions of such Servicer with the same effect as if such instructions were
given by the Trustee directly (subject to any limitations on such appointment
imposed by the Trustee that are communicated in writing to you) until such time
as the Trustee notifies you of the revocation of the Servicer's authority to act
for the Trustee. The initial Servicer is AmeriServe Food Distribution, Inc. The
Trustee and the Servicer shall each provide to you a list of their respective
employees authorized to issue instructions and give notices with respect to the
Lockbox and the Lockbox Account, which lists may be revised from time to time,
and you shall be entitled to rely on (and to assume) the authority of any
employee of the Trustee or the Servicer identified on such lists, and are hereby
authorized to act on any notice given on behalf of the Trustee or the Servicer
by any such employee, subject to any limitations on the appointment of the
Servicer and the revocation of the Servicer's authority as provided above.
Company and Transferor also hereby irrevocably notify you that, at all
times from and after the date hereof until your receipt of contrary and/or
terminating instructions from the Trustee, the Trustee shall be entitled
(subject to your rights set forth herein) to exercise in the place and stead of
Company and Transferor (or either of them) any and all rights of Company and
Transferor in respect of or in connection with the Lockbox, this lockbox
agreement and the Lockbox Account, including, without limitation (i) the right
to specify that payments are to be made out of or in connection with the Lockbox
Account to different accounts or at different times than those specified above
(subject to your customary and then-current procedures for lockbox processing)
and (ii) the right to require preparation of duplicate monthly bank statements
on the Lockbox Account for mailing directly to an address specified by the
Trustee.
By executing this lockbox agreement you acknowledge that you have not
heretofore received a notice, writ, order or any form of legal process from any
other person asserting, claiming or exercising, any right of set-off, banker's
lien or other purported form of claim with respect to the items collected from
the Lockbox, the Lockbox Account or any funds from time to time therein or in
transit thereto, and agree to promptly inform the Trustee in writing of any such
action in the future.
Except as otherwise provided herein, the Lockbox and the Lockbox
Account shall be subject to the customary terms and conditions adopted by you
page 3
109
from time to time and generally applicable to lockboxes and lockbox accounts;
provided, however, that you shall remove all items from the Lockbox not less
than once each business day and deposit such items into the Lockbox Account on
such business day. Your duties and functions under this lockbox agreement shall
continue to be that of a debtor/creditor and you shall not by reason of this
lockbox agreement be deemed to have a fiduciary obligation or relationship of
trust in respect of Transferor or the Trustee. You shall not be deemed to have
knowledge of or liability under any agreements among the parties to this lockbox
agreement to which you are not a party.
You may terminate this lockbox agreement by canceling the Lockbox
Account and Lockbox, which cancellation and termination shall become effective
only upon sixty days' prior written notice thereof from you to the Trustee. Upon
the termination of this lockbox agreement, you will close the Lockbox Account
and, subject to your rights to charge the Lockbox Account as set forth herein,
transfer any monies remaining therein to the Master Collection Account. You
agree that you shall forward all incoming mail addressed to the Lockbox or the
Lockbox Account and all wire transfers and deposits to the Lockbox Account that
you receive after such cancellation in the form received to another lockbox or
to another lockbox account or the Master Collection Account or to such other
address or account as the Trustee (or the Servicer on behalf of the Trustee)
shall specify, promptly after you discover that you have received any such mail
or transfers. This lockbox agreement may also be terminated upon written notice
to you by the Trustee. Except as expressly set forth in this paragraph, this
lockbox agreement may not be terminated or amended without the prior written
consent of the Trustee.
You will use due care in performing your duties and responsibilities
and shall only be responsible for any liability, loss, cost or expense which
Company, Transferor or the Trustee sustains to the extent that (i) such loss is
a direct result of your mishandling of a deposit or (ii) such loss is
proximately caused by your negligence or wilful misconduct. In no event shall
you be liable to Company, Transferor or the Trustee for liabilities, losses,
costs or expenses resulting from actions beyond your control or for any
consequential or special damages. Except to the extent of the liability assumed
by you, Company hereby agrees to indemnify and hold you harmless against any and
all reasonable costs, losses, liabilities or expenses including attorneys' fees
and disbursements, which may be imposed upon you in connection with your duties
hereunder. This paragraph shall survive termination of the Lockbox, the Lockbox
Account, or this lockbox agreement.
All notices and other communications provided for hereunder shall,
unless otherwise stated herein, be in writing (including facsimile
communication) and shall be personally delivered or sent by certified mail,
postage prepaid, by
page 4
110
facsimile or by overnight courier, to the intended person at the address or
facsimile number of such person set forth under its name on the signature pages
hereof or at such other address or facsimile number as shall be designated by
such person in a written notice to the other parties hereto given in accordance
with the requirements of this paragraph. All notices and other communications
hereunder shall also be provided to the Trustee and shall be addressed as
follows until you receive written notice from the Trustee to the contrary:
Norwest Bank Minnesota, National Association
Xxxxx & Xxxxxxxxx
Xxxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Services -
Asset Backed Administration
Telephone: 612/000-0000
Facsimile: 612/667-3539
All notices and communications provided for hereunder shall be
effective, (i) if personally delivered, when received, (ii) if sent by certified
mail, four business days after having been deposited in the mail, postage
prepaid and properly addressed, (iii) if transmitted by facsimile, when sent,
receipt confirmed by telephone or electronic means and (iv) if sent by overnight
courier, two business days after having been given to such courier unless sooner
received by the addressee.
This lockbox agreement shall be binding upon you and your successors
and assigns and shall inure to the benefit of Company, Transferor, and the
Trustee and their respective successors, transferees and assigns; provided,
however, that you may not assign your rights and duties under this lockbox
agreement without the prior written consent of the Trustee.
THIS LOCKBOX AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF [________], NOT INCLUDING THE CHOICE OF LAW RULES
THEREOF.
This lockbox agreement may be executed in any number of counterparts
(which may include facsimile) and by the different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original,
and all of which together shall constitute one and the same instrument.
[SIGNATURE PAGES FOLLOW]
page 5
111
Please acknowledge your agreement to the terms set forth in this
lockbox agreement by signing five (5) copies of this lockbox agreement in the
space provided below and returning such copies to us at the address indicated
below for Company.
Very truly yours,
[NAME OF SELLER]
By:
-----------------------------------
Title:
-----------------------------
Address:
Attention:
Telephone:
Facsimile:
AMERISERVE FUNDING CORPORATION
By:
-----------------------------------
Title:
-----------------------------
Address: 00000 Xxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attention: President
page 6
112
The undersigned hereby acknowledges and agrees to the foregoing lockbox
agreement as of the date of the lockbox agreement.
[Name of Lockbox Bank]
By:
-----------------------------------
Title:
-----------------------------
Address:
Attention
Telephone:
Facsimile:
page 7
113
The undersigned hereby acknowledges and agrees to the foregoing lockbox
agreement as of the date of the lockbox agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Trustee
By:
--------------------------------
Title:
-------------------------
page 8
114
EXHIBIT B
to Pooling Agreement
FORM OF
BLOCKED ACCOUNT AGREEMENT
, 199
---------- ---
[Full Name and Address of Blocked Account Bank]
Attention:
Ladies and Gentlemen:
Please be advised that (a) [name of Seller] ("Company") has irrevocably
transferred, assigned, set over and conveyed exclusive ownership and control of
its demand deposit account numbered [ ] (the "Blocked Account") maintained with
you to AmeriServe Funding Corporation ("Transferor"), and (b) Transferor has
irrevocably transferred, assigned, set over and conveyed all of its rights and
title to and interest in the Blocked Account to Norwest Bank Minnesota, National
Association, as trustee (the "Trustee") for the benefit of certain holders of
certificates and purchased interests (collectively, the "Holders") from time to
time issued under an Amended and Restated Pooling and Servicing Agreement, dated
as of July 28, 1998, among Transferor, AmeriServe Food Distribution, Inc., as
initial Servicer (together with any successor Servicer), and the Trustee, as the
same may be amended, amended and restated, supplemented or otherwise modified
from time to time.
By executing this letter agreement, you: (i) acknowledge and agree to
the transfers, assignments, setting overs and conveyances of the Blocked Account
described above; (ii) acknowledge and agree to the existence of the Trustee's
right to dominion and control over the Blocked Account and its ownership of and
security interest in the Blocked Account, all moneys and instruments delivered
to the Blocked Account and the amounts from time to time on deposit therein; and
(iii) agree that, from and after the date hereof, you shall maintain the Blocked
Account and shall hold all such moneys and instruments and such amounts for the
benefit and subject to the interests of the Trustee (for the benefit of itself
and the Holders). You also acknowledge that your execution of this letter
agreement is a condition precedent to continued maintenance of the Blocked
Account with you. The Blocked Account is to be maintained in the name of
"Norwest Bank Minnesota, National Association, as Trustee."
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115
Company and Transferor hereby irrevocably instruct you, and the
Trustee, by its acknowledgment hereof, hereby instructs you, at all times from
and after the date hereof until your receipt of contrary and/or terminating
instructions from the Trustee, to remit, on a daily basis, in immediately
available funds, all available amounts deposited in the Blocked Account to the
following account (the "Master Collection Account") or such other account as the
Trustee or the Servicer may specify:
Norwest Bank Minnesota, National Association
Xxxxx & Xxxxxxxxx
Xxxxxxxxxxx, XX 00000-0000
ABA #000000000
Account #00-00-000
N/O: Corporate Trust Clearing Account
For further credit: AmeriServe Receivables Master Trust/
Master Collection Account #00000000
By executing this letter agreement, you irrevocably waive and agree not
to assert any right to setoff against, or otherwise deduct from, any items
collected from the Blocked Account or any funds from time to time therein or in
transit thereto; provided, however, that you may (i) debit the Blocked Account
for any items deposited in the Blocked Account that are returned or otherwise
not collected in accordance with your customary practices for the chargeback of
returned items, (ii) charge the Blocked Account for any erroneous crediting of
funds by you to such Blocked Account and (iii) apply funds in the Blocked
Account for reimbursement of any fees and expenses owed to you under the terms
of this letter agreement, to the extent that such fees and expenses are not paid
or reimbursed by Company.
All transfers referred to above shall be made by you irrespective of,
and without deduction for, any counterclaim, defense, recoupment or set-off
(except as expressly permitted otherwise by this letter agreement) and shall be
final, and you agree that you will not seek to recover any amount from the
Trustee, Transferor, or the Servicer for any reason once any payment or transfer
has been made.
Company shall pay, or reimburse you for, customary and reasonable fees
and expenses incurred by you in the maintenance and operation of the Blocked
Account in accordance with this letter agreement. The Trustee and Transferor
will have no liability to you or the Servicer for any costs, fees or charges
under your usual and customary procedures or this letter agreement. You hereby
agree
page 2
116
to promptly notify the Trustee of your failure to receive timely payment of any
fee under this letter agreement.
The Trustee's instructions with respect to the Blocked Account may be
given through a "Servicer" that the Trustee may appoint from time to time and
will notify you thereof in writing, and you agree to follow the instructions of
such Servicer with the same effect as if such instructions were given by the
Trustee directly (subject to any limitations on such appointment imposed by the
Trustee that are communicated in writing to you) until such time as the Trustee
notifies you of the revocation of the Servicer's authority to act for the
Trustee. The initial Servicer is AmeriServe Food Distribution, Inc. The Trustee
and the Servicer shall each provide to you a list of their respective employees
authorized to issue instructions and give notices with respect to the Blocked
Account, which lists may be revised from time to time, and you shall be entitled
to rely on (and to assume) the authority of any employee of the Trustee or the
Servicer identified on such lists, and are hereby authorized to act on any
notice given on behalf of the Trustee or the Servicer by any such employee,
subject to any limitations on the appointment of the Servicer and the revocation
of the Servicer's authority as provided above.
Company and Transferor also hereby irrevocably notify you that, at all
times from and after the date hereof until your receipt of contrary and/or
terminating instructions from the Trustee, the Trustee shall be entitled
(subject to your rights set forth herein) to exercise in the place and stead of
Company and Transferor (or either of them) any and all rights of Company and
Transferor in respect of or in connection with this letter agreement and the
Blocked Account, including, without limitation (i) the right to specify that
payments are to be made out of or in connection with the Blocked Account to
different accounts or at different times than those specified above and (ii) the
right to require preparation of duplicate monthly bank statements on the Blocked
Account for mailing directly to an address specified by the Trustee.
By executing this letter agreement you acknowledge that you have not
heretofore received a notice, writ, order or any form of legal process from any
other person asserting, claiming or exercising, any right of set-off, banker's
lien or other purported form of claim with respect to the items collected from
the Blocked Account or any funds from time to time therein or in transit
thereto, and agree to promptly inform the Trustee in writing of any such action
in the future.
Except as otherwise provided herein, the Blocked Account shall be
subject to the customary terms and conditions adopted by you from time to time
and generally applicable to deposit accounts. Your duties and functions under
this letter agreement shall continue to be that of a debtor/creditor and you
shall not by reason of this letter agreement be deemed to have a fiduciary
obligation
page 3
117
or relationship of trust in respect of Transferor or the Trustee. You shall not
be deemed to have knowledge of or liability under any agreements among the
parties to this letter agreement to which you are not a party.
You may terminate this letter agreement by canceling the Blocked
Account, which cancellation and termination shall become effective only upon
sixty days' prior written notice thereof from you to the Trustee. Upon the
termination of this letter agreement, you will close the Blocked Account and,
subject to your rights to charge the Blocked Account as set forth herein,
transfer any monies remaining therein to the Master Collection Account. You
agree that you shall forward all incoming mail addressed to the Blocked Account
and all wire transfers and deposits to the Blocked Account that you receive
after such cancellation in the form received to the Master Collection Account or
to such other address or account as the Trustee (or the Servicer on behalf of
the Trustee) shall specify, promptly after you discover that you have received
any such mail or transfers. This letter agreement may also be terminated upon
written notice to you by the Trustee. Except as expressly set forth in this
paragraph, this letter agreement may not be terminated or amended without the
prior written consent of the Trustee.
You will use due care in performing your duties and responsibilities
and shall only be responsible for any liability, loss, cost or expense which
Company, Transferor or the Trustee sustains to the extent that (i) such loss is
a direct result of your mishandling of a deposit or (ii) such loss is
proximately caused by your negligence or wilful misconduct. In no event shall
you be liable to Company, Transferor or the Trustee for liabilities, losses,
costs or expenses resulting from actions beyond your control or for any
consequential or special damages. Except to the extent of the liability assumed
by you, Company hereby agrees to indemnify and hold you harmless against any and
all reasonable costs, losses, liabilities or expenses including attorneys' fees
and disbursements, which may be imposed upon you in connection with your duties
hereunder. This paragraph shall survive termination of the Blocked Account, or
this letter agreement.
All notices and other communications provided for hereunder shall,
unless otherwise stated herein, be in writing (including facsimile
communication) and shall be personally delivered or sent by certified mail,
postage prepaid, by facsimile or by overnight courier, to the intended person at
the address or facsimile number of such person set forth under its name on the
signature pages hereof or at such other address or facsimile number as shall be
designated by such person in a written notice to the other parties hereto given
in accordance
page 4
118
with the requirements of this paragraph. All notices and other communications
hereunder shall also be provided to the Trustee and shall be addressed as
follows until you receive written notice from the Trustee to the contrary:
Norwest Bank Minnesota, National Association
Xxxxx & Xxxxxxxxx
Xxxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Services -
Asset Backed Administration
Telephone: 612/000-0000
Facsimile: 612/667-3539
All notices and communications provided for hereunder shall be
effective, (i) if personally delivered, when received, (ii) if sent by certified
mail, four business days after having been deposited in the mail, postage
prepaid and properly addressed, (iii) if transmitted by facsimile, when sent,
receipt confirmed by telephone or electronic means and (iv) if sent by overnight
courier, two business days after having been given to such courier unless sooner
received by the addressee.
This letter agreement shall be binding upon you and your successors and
assigns and shall inure to the benefit of Company, Transferor, and the Trustee
and their respective successors, transferees and assigns; provided, however,
that you may not assign your rights and duties under this letter agreement
without the prior written consent of the Trustee.
THIS LETTER AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF [________], NOT INCLUDING THE CHOICE OF LAW RULES
THEREOF.
This letter agreement may be executed in any number of counterparts
(which may include facsimile) and by the different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original,
and all of which together shall constitute one and the same instrument.
[SIGNATURE PAGES FOLLOW]
page 5
119
Please acknowledge your agreement to the terms set forth in this letter
agreement by signing five (5) copies of this letter agreement in the space
provided below and returning such copies to us at the address indicated below
for Company.
Very truly yours,
[NAME OF SELLER]
By:
-----------------------------------
Title:
-----------------------------
Address:
Attention:
Telephone:
Facsimile:
AMERISERVE FUNDING CORPORATION
By:
-----------------------------------
Title:
-----------------------------
Address: 00000 Xxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attention: President
page 6
120
The undersigned hereby acknowledges and agrees to the foregoing letter
agreement as of the date of the letter agreement.
[NAME OF BLOCKED ACCOUNT BANK]
By:
-----------------------------------
Title:
-----------------------------
Address:
Attention
----------------------------
Telephone:
----------------------------
Facsimile:
----------------------------
page 7
121
The undersigned hereby acknowledges and agrees to the foregoing letter
agreement as of the date of the letter agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Trustee
By:
-----------------------------------
Title:
----------------------------
page 8
122
EXHIBIT C
to Pooling Agreement
FORM OF
MONTHLY SERVICER'S CERTIFICATE
TO: NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, as Trustee
[Paying Agent]
AMERISERVE FUNDING CORPORATION
[Names of Rating Agencies]
AMERISERVE FOOD DISTRIBUTION, INC. (the "Servicer") hereby certifies
that:
(A) This Certificate is being delivered pursuant to Section 3.6 of the
Amended and Restated Pooling and Servicing Agreement, dated as of July 28, 1998
(as the same may be amended, amended and restated, supplemented or otherwise
modified from time to time, the "Pooling Agreement"), among Servicer, AMERISERVE
FUNDING CORPORATION, as Transferor, and NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION, as Trustee.
(B) As of the date of this Certificate, the Authorized Officer (as
defined in the Pooling Agreement) that is executing this Certificate is not
aware of the occurrence and continuance of any Early Amortization Event or
Unmatured Early Amortization Event (each as defined in the Pooling Agreement).
[If an Early Amortization Event or Unmatured Early Amortization Event has
occurred and is continuing, specify each such Early Amortization Event or
Unmatured Early Amortization Event (as applicable) of which the Authorized
Officer executing this Certificate is aware and the nature and status thereof
and further certify that such information is true and accurate in all material
respects.]
IN WITNESS WHEREOF, Servicer has caused this Certificate to be executed
by its duly authorized officer this __ day of _______________, 19__.
AMERISERVE FOOD DISTRIBUTION, INC.
By:
------------------------------------
Name:
----------------------------
Title:
----------------------------
123
EXHIBIT D
to Pooling Agreement
ANNUAL AGREED UPON PROCEDURES
MONTHLY REPORTS
Select at random four Monthly Reports prepared during the fiscal year and:
1. Compare/reconcile the Monthly Report items specified in item 2
below with the Servicer's original source documents noted below
for five selected operating units, including PFS:
A. Monthly Sales Journal (or appropriate compilation thereof);
B. Cash Application Journal (or appropriate compilation
thereof);
C. Aged Trial Balance;
D. Journal entries and related support affecting cash
application or receivables;
E. Receivable Write-off Approval List (or comparable list);
F. Account Bank Statements and PC generated Account Bank
Reports; and
G. Credit Memo Report (or appropriate compilation thereof)
2. Recalculate and/or verify the following items on each Monthly
Report:
A. Net Eligible Receivables including estimates (if any);
B. Adjusted Eligible Receivables;
C. Excess Concentration Balances (if applicable);
D. Concentration Adjusted Eligible Receivables;
E. Carrying Cost Receivables Reserve:
1. Interest Payable
2. Servicing Fee
3. Accrued/Unpaid Expenses;
124
F. Applicable Reserve Ratio:
1. Loss Reserve Ratio
2. Concentration Factor
3. Dilution Reserve Ratio;
G. Average Aged Receivables Ratio; and
H. Turnover Days.
3. Randomly select a total of five Write-Offs greater than $1000 and
obtain the Write-Off documentation and verify that each Write-Off
had been approved and each Write-Off was deleted from the Aged
Trial Balance Report.
DAILY REPORTS
Select at random ten Daily Reports prepared during the fiscal year (of which not
more than two shall relate to any single fiscal month) and:
1. Compare/reconcile the Daily Report items specified in item 2
below with the Servicer's original source documents noted below
for five selected operating units:
A. Monthly Sales Journal (or appropriate compilation thereof);
B. Cash Application Journal (or appropriate compilation
thereof);
C. Aged Trial Balance;
D. Journal entries and related support affecting cash
application or receivables;
E. Receivable Write-off Approval List (or comparable list);
F. Account Bank Statements and PC generated Account Bank
Reports; and
G. Credit Memo Report (or appropriate compilation thereof)
2. Recalculate and/or verify the following items on each Daily
Report.
A. Net Eligible Receivables including estimates (if any);
B. Adjusted Eligible Receivables;
-2-
125
C. Excess Concentration Balances (if applicable);
D. Concentration Adjusted Eligible Receivables;
E. Carrying Cost Receivables Reserve:
1. Interest Payable
2. Servicing Fee
3. Accrued/Unpaid Expenses;
F. Applicable Reserve Ratio:
1. Loss Reserve Ratio
2. Concentration Factor
3. Dilution Reserve Ratio;
G. Average Aged Receivables Ratio; and
H. Turnover Days.
3. Randomly select a total of five Write-Offs greater than $1000 and
obtain the Write-Off documentation and verify that each Write-Off
had been approved and each Write-Off was deleted from the Aged
Trial Balance Report.
4. For each of the ten Daily Reports selected:
A. Invoices: Obtain the detail Aged Trial Balance Report for
five selected operating units and randomly select a total of
15 different invoices and verify the invoice date, amount
and customer name with a system generated copy of the
invoice;
B. Dilutions and Credits: Obtain the detail Aged Trial Balance
Report for five selected operating units and randomly select
a total of 15 different credit names and verify the credit
memo date, amount and customer name with a system generated
copy of the credit memo;
C. Cash Application: Randomly select a total of 15 individual
cash receipts comprising the cash collection amount and
verify the bank receipt date with the receipt date and
application amount on the Daily Report, adjusted for
available balances;
D. Ineligible Receivables: Obtain the Aged Trial Balance for
five selected operating units and randomly select a total of
ten customers that have balances over 120 days past original
invoice
-3-
126
date and calculate the customer balances over 120 days past
original invoice date as a percentage of the customer's
total balance. If this calculated percentage is more than
25%, determine if any Receivables of the customer are
classified as part of the Eligible Receivables;
E. Aging Reports: Using the 15 invoices selected in paragraph A
above, find that the invoice is in the appropriate aging
category on the Aged Trial Balance; and
CREDIT DOCUMENTATION
Select at random two fiscal month ends during the fiscal year and:
1. Direct the Servicer to prepare a Credit File Contents Schedule
(the "Credit Schedule") that summarizes the contents of the
credit files for each customer the accountants select for
testing. The Credit Schedule will include the following
information as of the cut-off date selected: customer name,
customer account number, customer statement, approved credit
limit (if applicable), name and title of highest authority that
approved the credit limit, other supporting documentation in
support of extension of the credit limit (e.g., Dun & Bradstreet
report, customer financial statement and bank or trade
references), sales tax exemption and resale certificate; and
2. For each customer selected:
A. Compare the customer's account receivables balance with the
approved credit limit to verify that the balance is less
than or equal to the approved limit,
B. Compare the customer's account balance per the Credit
Schedule with the balance per the Account Receivable Aged
Trial Balance,
C. Note that at least one of the following items is included
with the credit documentation: Dun & Bradstreet Credit
Report or other credit report, bank or trade reference,
financial statements or a memorandum or workpapers regarding
credit evaluation/ justification.
-4-
127
EXHIBIT E
to Pooling Agreement
FORM OF TRANSFEROR CERTIFICATE
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), THE SECURITIES OR "BLUE SKY" LAWS OF ANY STATE
OR THE LAWS OF ANY FOREIGN COUNTRY. THIS CERTIFICATE MAY NOT BE RESOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS SUCH RESALE, TRANSFER OR DISPOSITION
IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS AND FOREIGN LAWS. IN ADDITION TO THE
RESTRICTIONS SET FORTH ABOVE, RESALE, TRANSFER OR DISPOSITION OF THIS
CERTIFICATE IS PROHIBITED TO THE EXTENT SET FORTH IN THE POOLING AGREEMENT (AS
DEFINED BELOW).
AMERISERVE RECEIVABLES MASTER TRUST
TRANSFEROR CERTIFICATE
THIS CERTIFIES THAT AMERISERVE FUNDING CORPORATION is the registered
owner of an interest in the AmeriServe Receivables Master Trust (the "Trust"),
which was created pursuant to the Pooling and Servicing Agreement, dated as of
July 1, 1997 (as amended and restated as of July 28, 1998, and as the same may
be amended, amended and restated, supplemented or otherwise modified from time
to time, the "Pooling Agreement"), by and among AMERISERVE FUNDING CORPORATION,
a Delaware corporation, as Transferor ("Transferor"), AMERISERVE FOOD
DISTRIBUTION, INC., as initial Servicer (in such capacity, the "Servicer"), and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, as Trustee (in such capacity,
together with its successors and assigns in such capacity, the "Trustee"). This
Certificate is the duly authorized Transferor Certificate designated and issued
under the Pooling Agreement. To the extent not otherwise defined herein,
capitalized terms have the meanings assigned to them in Appendix A to the
Pooling Agreement. This Certificate is subject to the terms, provisions and
conditions of, and is entitled to the benefits afforded by, the Pooling
Agreement, to which terms, provisions and conditions the holder of this
Certificate by virtue of the acceptance hereof assents and by which the holder
is bound.
This Certificate shall not bear interest.
128
The Pooling Agreement may be amended and the rights and obligations of
the parties thereto and of the holder of this Certificate modified as set forth
in the Pooling Agreement.
Unless the certificate of authentication hereon shall have been
executed by or on behalf of Trustee by the manual signature of a duly authorized
signatory, this Certificate shall not entitle the holder hereof to any benefit
under the Pooling Agreement or under any other Transaction Document or be valid
for any purpose.
This Certificate is limited in right of payment to the Transferred
Assets.
Transferor may not transfer, assign, exchange or otherwise convey or
pledge, hypothecate or otherwise grant a security interest in this Certificate
or any interest represented hereby except in compliance with the terms,
conditions and restrictions set forth in the Pooling Agreement. Any attempted
transfer of all or any part of this Certificate other than as permitted in the
Pooling Agreement shall be void and of no effect.
This Certificate shall be construed in accordance with the laws of the
State of Delaware, without reference to its conflict of laws principles, and all
obligations, rights and remedies under, or arising in connection with, this
Certificate shall be determined in accordance with the laws of the State of
Delaware.
-2-
129
IN WITNESS WHEREOF, Transferor has caused this Certificate to be
executed by its officer thereunto duly authorized.
AMERISERVE FUNDING CORPORATION
By:
------------------------------------
Name:
----------------------------
Title:
----------------------------
-3-
130
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Transferor Certificate referred to in the Pooling
Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Trustee
By:
------------------------------------
Title:
----------------------------
Dated: July 11, 1997
-4-
131
EXHIBIT F
to Pooling Agreement
FORM OF CERTIFICATE TO BE GIVEN BY CERTIFICATE OWNER
[Euroclear [Cedel, societe anonyme
000 Xxxxxxxxx Xxxxxxxx 00 Xxxxxxxxx Xxxxx-Xxxxxxxx Xxxxxxxxx
X-0000 Brussels, Belgium] X-0000 Xxxxxxxxxx]
Re: [Description of Certificates] issued pursuant to the Amended
and Restated Pooling and Servicing Agreement dated as of
July 28, 1998, among AMERISERVE FUNDING CORPORATION,
AMERISERVE FOOD DISTRIBUTION, INC. and NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee, (the "Certificates").
This is to certify that as of the date hereof, and except as set
forth below, the beneficial interest in the Certificates held by you for our
account is owned by persons that are not U.S. persons (as defined in Rule 901
under the Securities Act of 1933, as amended).
The undersigned undertakes to advise you promptly by tested telex on
or prior to the date on which you intend to submit your certification relating
to the Certificates held by you in which the undersigned has acquired, or
intends to acquire, a beneficial interest in accordance with your operating
procedures if any applicable statement herein is not correct on such date. In
the absence of any such notification, it may be assumed that this certification
applies as of such date.
[This certification excepts beneficial interests in and does not
relate to U.S. $_________ principal amount of the Certificates appearing in your
books as being held for our account but that we have sold or as to which we are
not yet able to certify.]
We understand that this certification is required in connection with
certain securities laws in the United States of America. If administrative or
legal proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification or a copy thereof to any interested party in such
proceedings.
Dated: ,* By: ,
------------------ ------------------------------
Account Holder
--------
* Certification must be dated on or after the 15th day before the date
of the Euroclear or Cedel certificate to which this certification
relates.
132
EXHIBIT G
to Pooling Agreement
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR OR CEDEL
[Trustee and Transfer Agent and Registrar]
Re: [Description of Certificates] issued pursuant to the Amended
and Restated Pooling and Servicing Agreement dated as of
July 28, 1998 among AMERISERVE FUNDING CORPORATION, AMERISERVE
FOOD DISTRIBUTION, INC. and NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee (the "Certificates").
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "Member Organizations") as of the date
hereof, $__________ principal amount of the Certificates is owned by persons (a)
that are not U.S. persons (as defined in Rule 901 under the Securities Act of
1933, as amended (the "Securities Act")) or (b) who purchased their Certificates
(or interests therein) in a transaction or transactions that did not require
registration under the Securities Act.
We further certify (a) that we are not making available herewith for
exchange any portion of the related Regulation S Temporary Book-Entry
Certificate excepted in such certifications and (b) that as of the date hereof
we have not received any notification from any of our Member Organizations to
the effect that the statements made by them with respect to any portion of the
part submitted herewith for exchange are no longer true and cannot be relied
upon as of the date hereof.
133
We understand that this certification is required in connection with
certain securities laws of the United States of America. If administrative or
legal proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification or a copy hereof to any interested party in such proceedings.
Date: * Yours faithfully,
--------------
By:
----------------------------------
* To be dated no earlier [Xxxxxx Guaranty Trust Company of
than the Effective Date. New York, Brussels Office, as
Operator of the Euroclear Clearance
System] [Cedel, societe anonyme]
-2-
134
EXHIBIT H
to Pooling Agreement
FORM OF
CERTIFICATE TO BE GIVEN BY TRANSFEREE
OF BENEFICIAL INTEREST IN A REGULATION S
TEMPORARY BOOK-ENTRY CERTIFICATE
[Euroclear [Cedel, societe anonyme
000 Xxxxxxxxx Xxxxxxxx 00 Xxxxxxxxx Xxxxx-Xxxxxxxx Xxxxxxxxx
X-0000 Brussels, Belgium] X-0000 Xxxxxxxxxx]
Re: [Description of Certificates] issued pursuant to the Amended
and Restated Pooling and Servicing Agreement dated as of
July 28, 1998 among AMERISERVE FUNDING CORPORATION, AMERISERVE
FOOD DISTRIBUTION, INC. and NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee (the "Certificates").
This is to certify that as of the date hereof, and except as set
forth below, for purposes of acquiring a beneficial interest in the
Certificates, the undersigned certifies that it is not a U.S. person (as defined
in Rule 901 under the Securities Act of 1933, as amended).
The undersigned undertakes to advise you promptly by tested telex on
or prior to the date on which you intend to submit your certification relating
to the Certificates held by you in which the undersigned intends to acquire a
beneficial interest in accordance with your operating procedures if any
applicable statement herein is not correct on such date. In the absence of any
such notification, it may be assumed that this certification applies as of such
date.
We understand that this certification is required in connection with
certain securities laws in the United States of America. If administrative or
legal proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification or a copy thereof to any interested party in such
proceedings.
Dated: , By:
-------------- ----------------------------
135
EXHIBIT I
to Pooling Agreement
FORM OF
TRANSFER CERTIFICATE FOR EXCHANGE OR
TRANSFER FROM 144A BOOK-ENTRY CERTIFICATE
TO REGULATION S BOOK-ENTRY CERTIFICATE
[Trustee and Transfer Agent and Registrar]
Re: [Description of Certificates] issued pursuant to the Amended
and Restated Pooling and Servicing Agreement dated as of
July 28, 1998 (the "Agreement"), among AMERISERVE FUNDING
CORPORATION, AMERISERVE FOOD DISTRIBUTION, INC. and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, as Trustee
(the "Certificates").
Capitalized terms used but not defined herein shall have the meanings
given to them in the Agreement.
This letter relates to U.S. $___________ principal amount of
Certificates that are held as a beneficial interest in the 144A Book-Entry
Certificate (CUSIP No. _______) with DTC in the name of [insert name of
transferor] (the "Transferor"). The Transferor has requested an exchange or
transfer of the beneficial interest for an interest in the Regulation S
Book-Entry Certificate (CUSIP No. _______) to be held with [Euroclear] [Cedel]
through DTC.
In connection with the request and in receipt of the Certificates,
the Transferor does hereby certify that the exchange or transfer has been
effected in accordance with the transfer restrictions set forth in the Agreement
and the Certificates and:
(a) pursuant to and in accordance with Regulation S under the
Securities Act of 1933, as amended (the "Securities Act"), and
accordingly the Transferor does hereby certify that:
(i) the offer of the Certificates was not made to a
person in the United States of America,
[(ii) at the time the buy order was originated, the
transferee was outside the United States of America or the
Transferor and any person acting on its behalf reasonably
believed that the transferee was outside the United States of
America,
136
(ii) the transaction was executed in, on or through
the facilities of a designated offshore securities market and
neither the Transferor nor any person acting on its behalf
knows that the transaction was pre-arranged with a buyer in
the United States of America,]*
(iii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904(b) of
Regulation S, as applicable,
(iv) the transaction is not part of a plan or scheme
to evade the registration requirements of the Securities Act,
and
(b) with respect to transfers made in reliance on Rule 144
under the Securities Act, the Transferor does hereby certify that the
Certificates are being transferred in a transaction permitted by Rule
144 under the Securities Act.
This certification and the statements contained herein are made for
your benefit and the benefit of the issuer and the [placement agent].
[Insert name of Transferor]
Dated: , By:
------------------ ------------------------------
Title:
-----------------------
-------------
* Insert one of these two provisions, which come from the definition of
"offshore transactions" in Regulation S.
-2-
137
EXHIBIT J
to Pooling Agreement
FORM OF
PLACEMENT AGENT EXCHANGE INSTRUCTIONS
Depository Trust Company
00 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: [Description of Certificates] issued pursuant to the Amended
and Restated Pooling and Servicing Agreement dated as of
July 28, 1998 (the "Agreement"), among AMERISERVE FUNDING
CORPORATION, AMERISERVE FOOD DISTRIBUTION, INC. and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, as Trustee
(the "Certificates").
Pursuant to Section 6.11 of the Agreement, _______________________ (the
"Placement Agent") hereby requests that $____________ aggregate principal amount
of the Certificates held by you for our account and represented by the
Regulation S Temporary Book-Entry Certificate (CUSIP No. _______) (as defined in
the Agreement) be exchanged for an equal principal amount represented by the
144A Book-Entry Certificate (CUSIP No. _______) to be held by you for our
account.
Dated: [placement agent]
------------
By:
------------------------------
Title:
------------------------
138
EXHIBIT K
to Pooling Agreement
FORM OF
ANNUAL STATEMENT AS TO COMPLIANCE
TO: NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, as Trustee
[Name(s) of Rating Agencies]
AMERISERVE FOOD DISTRIBUTION, INC. (the "Servicer") hereby certifies
that:
(A) This Certificate is being delivered pursuant to Section 3.2(j) of
the Amended and Restated Pooling and Servicing Agreement, dated as of July 28,
1998(as the same may be amended, amended and restated, supplemented or otherwise
modified from time to time, the "Pooling Agreement"), among Servicer, AMERISERVE
FUNDING CORPORATION, as Transferor, and NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION, as Trustee.
(B) A review of the activities of Servicer during the calendar year
ended December 31, 199[ ] and of the performance by Servicer under the Pooling
Agreement during such calendar year has been made under the supervision of the
officer signing this Certificate.
(C) [To the best knowledge of the officer signing this Certificate,
based on such review, Servicer has fulfilled all its obligations under the
Pooling Agreement throughout such year.] [Alternately, if there has been a
default in the fulfillment of any such obligations, specify each such default
known to such officer and the nature and status thereof and remedies therefor
being pursued.]
IN WITNESS WHEREOF, Servicer has caused this Certificate to be executed
by its duly authorized officer this __ day of __________, 19__.
AMERISERVE FOOD DISTRIBUTION, INC.
By:
------------------------------------
Name:
-----------------------------
Title:
-----------------------------
139
EXHIBIT L
to Pooling Agreement
DATA FIELDS
Customer Information Fields Invoice Information Fields
--------------------------- --------------------------
Customer's Corporate Name Invoice Number
Customer Name Ship To Number
Customer Billing Address Xxxx To Number
Customer Shipping Address Invoice Date
Customer Phone Number Deliver Date
Customer Fax Number Due Date
Cross Reference Index Numbers Payment Terms
Collection Contact Name Number of Periods Past Due
Collection Contact Phone Number Gross Amount Due
Collection Contact Fax Number Net Amount Due
Any Special Collection Conditions/ Credit Memos (Reference to
Information Invoice Number)
Identify Prepay Accounts
Amount of Prepay Accounts
Is Personal Guarantee on File--
Yes or No Flag
