COLLATERAL TRUST AND INTERCREDITOR AGREEMENT
dated as of June 13, 1997
by and among
ING (U.S.) CAPITAL CORPORATION
as Agent and as a Lender
PNC BANK, NATIONAL ASSOCIATION
as Servicing Agent, as Trustee, as a Lender and
as Collateral Trustee
THE OTHER LENDERS
FROM TIME TO TIME PARTIES HERETO
X.X. XXXXXXXXX RECEIVABLES I LLC
as Seller
X.X. XXXXXXXXX S.S.C. LIMITED PARTNERSHIP
as Borrower
and
X.X. XXXXXXXXX & COMPANY, INC.
as the initial Master Servicer
TABLE OF CONTENTS
Page
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DECLARATION OF TRUST..............................................................................................2
ARTICLE 1. DEFINITIONS...........................................................................................3
1.1. Certain Defined Terms..............................................................................3
ARTICLE 2. INTERCREDITOR PROVISIONS..............................................................................6
2.1. Release of Lien....................................................................................6
2.2. Allocation of Property.............................................................................7
2.3. Enforcement Actions................................................................................7
2.4. Agency for Perfection..............................................................................7
2.5. Limitation on Liability of Parties to Each Other...................................................7
2.6. Effect Upon Lender Documents and Operative Documents...............................................8
ARTICLE 3. THE COLLATERAL TRUST AND THE COLLATERAL TRUSTEE.......................................................8
3.1. Authorization to Execute Collateral Trust Documents................................................8
3.2. Certain Representations and Warranties.............................................................8
3.3. Procedures for Allocating Shared Interest Collateral...............................................9
3.4. Additional Collateral Trust Documents.............................................................10
3.5. Powers of Attorney................................................................................10
3.6. Exercise of Powers................................................................................10
3.7. Limitation on Collateral Trustee's Duties in Respect of the Shared Interest
Collateral......................................................................................11
3.8. Limitation by Law.................................................................................11
3.9. Information as to Holders; Notices to Holders; Notices to Collateral Trustee......................11
3.10. Compensation and Expenses.........................................................................11
3.11. Stamp and Other Similar Taxes.....................................................................12
3.12. Filing Fees, Excise Taxes, etc....................................................................12
3.13. Indemnification...................................................................................12
3.14. Further Assurances................................................................................13
3.15. Limitation on Repayment...........................................................................13
3.16. Acceptance of Trust...............................................................................13
3.17. Exculpatory Provisions............................................................................13
3.18. Delegation of Duties..............................................................................14
3.19. Reliance by Collateral Trustee....................................................................15
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3.20. Limitations on Duties of Collateral Trustee.......................................................15
3.21. Monies to be Held in Trust........................................................................16
3.22. Resignation and Removal of the Collateral Trustee.................................................16
3.23. Merger of the Collateral Trustee..................................................................17
ARTICLE 4. MISCELLANEOUS........................................................................................18
4.1. Notices...........................................................................................18
4.2. Agreement Absolute................................................................................18
4.3. Successors and Assigns............................................................................18
4.4. Beneficiaries.....................................................................................19
4.5. GOVERNING LAW.....................................................................................19
4.6. Section Titles....................................................................................19
4.7. Severability......................................................................................19
4.8. Execution in Counterparts.........................................................................19
4.9. Resolution of Disputes In Respect of Shared Interest Collateral...................................19
4.10. Limitations on Liability..........................................................................19
4.11. Nature of the Obligations and Modification of Lender Documents....................................20
4.12. Nature of the Trust Claim and Modification of Operative Documents.................................20
4.13. Insolvency Proceeding.............................................................................20
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COLLATERAL TRUST AND INTERCREDITOR AGREEMENT dated as of June 13, 1997
(as modified, amended, restated or supplemented from time to time, this
"Agreement"), by and among:
(1) ING (U.S.) Capital Corporation ("ING Capital"), in its capacity
as agent under the Credit Agreement (as defined below) (in such
capacity, the "Agent") and as a Lender (as defined below);
(2) PNC Bank, National Association, a national banking association
("PNC Bank"), as servicing agent under the Credit Agreement (in
such capacity, the "Servicing Agent"), as trustee under the
Pooling and Servicing Agreement (as defined below) (in such
capacity, the "Trustee"), as collateral trustee under this
Agreement (in such capacity, the "Collateral Trustee") for the
respective Holders of Interests referred to below, and as a
Lender;
(3) The other financial institutions from time to time parties to the
Credit Agreement and, pursuant to Section 4.3, hereto (together
with ING Capital and PNC Bank, being collectively, the "Lenders"
and each individually being a "Lender");
(4) X.X. Xxxxxxxxx Receivables I LLC, a Delaware limited liability
company ("JGW LLC"), as seller (the "Seller") under the Pooling
and Servicing Agreement;
(5) X.X. Xxxxxxxxx S.S.C. Limited Partnership, a Delaware limited
partnership ("JGW SSC"), as seller (in such capacity, the
"Company") under the Seller Purchase Agreement (as defined below)
and as the borrower (in such capacity, together with any
successor thereto in such capacity, the "Borrower") under the
Credit Agreement; and
(6) X.X. Xxxxxxxxx & Company, Inc., a Pennsylvania corporation, as
the initial master servicer (the "Master Servicer") under the
Pooling and Servicing Agreement.
R E C I T A L S:
A. The Borrower, the Agent, the Servicing Agent and the Lenders are
parties to an Amended and Restated Revolving Credit Agreement, dated as of
February 11, 1997 (as amended, restated, supplemented or otherwise modified from
time to time, the "Credit Agreement") pursuant to which or in accordance with
which, the Lenders have agreed to make loans, advances and other financial
accommodations ("Advances") to the Borrower;
B. The Borrower, in order to secure its prompt repayment of the
Advances and interest thereon by the Borrower and the prompt payment and
performance of the other "Obligations" owing by the Borrower to the Lenders and
the Agent under (and as such term is defined in) the Credit Agreement and the
other instruments, documents, and agreements executed and delivered in
connection therewith (such instruments, documents and agreements (including the
Security Agreement referred to below), together with the Credit Agreement, being
hereinafter referred to as the "Lender Documents"), entered into a certain
Amended and Restated Security
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Agreement dated as of February 11, 1997 (as amended, restated, supplemented or
otherwise modified from time to time the "Security Agreement") in favor of the
Agent, pursuant to which the Borrower granted a security interest to the
Agent, for the benefit of the Agent and the Lenders, in the "Collateral"
(as such term is defined therein), including, without limitation, the
Receivables and the Related Property and Collections relating thereto (as such
terms are hereinafter defined);
C. Concurrently herewith, the Company and the Seller are entering into
a certain Purchase Agreement dated as of June 13, 1997 (as amended, restated,
supplemented or otherwise modified from time to time, the "Seller Purchase
Agreement") between the Company and the Seller. pursuant to which the Company
may from time to time sell, transfer and otherwise convey or purport to sell,
transfer or otherwise convey (in each case, a "Transfer") to the Seller all of
the right, title and interest of the Company in certain of the Seller's
Receivables and the Related Property and Collections relating thereto and the
proceeds of such Receivables and Related Assets (such Receivables, Related
Property, Collections and proceeds so sold or purported to be Transferred to the
Seller by the Company pursuant to the Seller Purchase Agreement being referred
to as the "Purchased Assets");
D. The Seller, the Master Servicer and the Trustee are entering into a
certain Pooling and Servicing Agreement dated as of June 13, 1997 (as amended,
restated, supplemented, or otherwise modified from time to time, the "Pooling
and Servicing Agreement") pursuant to which the Seller may from time to time
Transfer certain of its assets or interests therein, including, without
limitation, the Purchased Assets, to SSC Master Trust I, a trust organized under
the laws of the State of Delaware (the "Trust"), to facilitate the sale and
funding of certificated interests in the assets of, and/or indebtedness of, the
Trust (as more fully described in the Operative Documents, the "Trust Assets")
which are to be issued by the Trust from time to time (such certificates
evidencing such interests being referred to as the "Certificates" and the
holders of such Certificates being referred to as the "Certificateholders" and
each individually as a "Certificateholder"); and
E. The parties hereto, in order to facilitate the transactions
described above, hereby agree as follows:
DECLARATION OF TRUST:
NOW, THEREFORE, to facilitate the allocation of the Shared Interest
Collateral (as defined below) and in consideration of the premises and the
mutual covenants and agreements set forth herein, each of the Grantors (as
defined below) hereby assigns all of its rights and remedies in the following
property to the Collateral Trustee, in trust for each Holder of an Interest and
for the sole purpose of exercising such rights and remedies in a manner
consistent with each such Person's interests therein, and the Collateral Trustee
does hereby accept such assignment by the Grantors:
(A) this Agreement, the other Collateral Trust Documents (as defined
below) and the Shared Interest Collateral; and
(B) the Proceeds (as hereinafter defined) of any of the foregoing.
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TO HAVE AND TO HOLD all of the foregoing (collectively, the "Trust
Estate") by the Collateral Trustee and its successors in trust under this
Agreement and its assigns and the assigns of its successors in trust forever.
IN TRUST NEVERTHELESS, under and subject to the terms and conditions
set forth herein and in the other Collateral Trust Documents, and for the
benefit of each Holder of an Interest and for the enforcement of the payment of
all Obligations and Trust Claims (as defined below), and for the performance of
and compliance with the covenants and conditions of this Agreement, the other
Collateral Trust Documents, the Lender Documents, and the Operative Documents
(as defined below).
IT IS HEREBY FURTHER COVENANTED AND DECLARED that the Trust Estate is
to be held and applied by the Collateral Trustee, subject to the further
covenants, conditions and trust hereinafter set forth.
NOW THEREFORE, in order to induce the Lenders to continue to make
Advances to the Borrower under the Credit Agreement, and to induce the
Certificateholders to purchase the Certificates, and, in consideration of the
foregoing premises and the mutual covenants and agreements set forth herein, and
for other good and valuable consideration, receipt of which is hereby
acknowledged, it is hereby agreed as follows:
ARTICLE 1. DEFINITIONS.
1.1. Certain Defined Terms. Capitalized terms used and not otherwise
defined herein shall have the meanings specified in the Pooling and Servicing
Agreement, or if not defined therein, in the Seller Purchase Agreement. In
addition, as used in this Agreement, the following terms shall have the
following meanings (such meanings to be equally applicable to both the singular
and plural forms of the terms defined):
"Borrowing Base" has the meaning ascribed to such term in the Credit
Agreement.
"Borrowing Base Deficiency" means an amount equal to the sum of (A) the
positive excess, if any, of the principal balance of the Advances (other than
Discretionary Non-Ratable Advances) under the Credit Agreement over the
Borrowing Base plus (B) the positive excess, if any, of the principal balance of
the Discretionary Non-Ratable Advances under the Credit Agreement over the
Discretionary Non-Ratable Advance Borrowing Base.
"Business Day" means any day other than a Saturday or Sunday or any
other day on which national banking associations or state banking institutions
in New York, New York or Philadelphia, Pennsylvania are authorized or obligated
by law, executive order, or governmental decree to be closed.
"Claim" means the Obligations or the Trust Claims, as applicable.
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"Collateral Trust Documents" means this Agreement, each Lock-Box
Notice, any additional documents executed to facilitate the allocation of the
Shared Interest Collateral in accordance with the terms hereof, and any
agreement or document referred to in Section 3.4 or 3.14 of this Agreement, as
the same may be amended, supplemented or otherwise modified in accordance with
their respective terms.
"Collateral Trustee's Fees" has the meaning set forth in Section 3.10
of this Agreement.
"Collections" means, with respect to any Receivable, all cash
collections and other Proceeds of such Receivable and/or the Related Property
relating thereto (including late charges, fees and interest arising thereon, and
all recoveries with respect to Receivables that have been written off as
uncollectible) from any source whatsoever, including, without limitation, from
any related Annuity Contract, Life Insurance Policy, guarantee or other source.
"Discretionary Non-Ratable Advance" has the meaning ascribed to such
term in the Credit Agreement.
"Discretionary Non-Ratable Advance Borrowing Base" has the meaning
ascribed to such term in the Credit Agreement.
"Enforcement" means collectively or individually, (i) with respect to
the Operative Documents, the occurrence or declaration of a Significant Event or
Series Significant Event; or (ii) with respect to the Lender Documents, the
automatic occurrence of declaration of the Obligations prior to the date when
otherwise due, or (iii) with respect to the Lender Documents or the Operative
Documents, any party having the party to do so commences juridical or
nonjudicial enforcement of any of the respective default rights and remedies
under any of the foregoing agreements.
"Event of Default" has the meaning ascribed to such term in the Credit
Agreement.
"Grantor" means any of the Agent, the Lenders, the Servicing Agent or
the Trustee, and "Grantors" means all of the foregoing, collectively.
"Holder of an Interest" means, as of any date, any holder of any Claim.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, encumbrance, lien (statutory or other), preference, participation
interest, priority or other security agreement or preferential arrangement of
any kind or nature whatsoever, including, without limitation, any conditional
sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing and the filing of
any financing statement under the UCC or comparable law of any jurisdiction to
evidence any of the foregoing.
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"Lock-Box" means any lock-box to which Collections are remitted or
otherwise received.
"Lock-Box Notice" has the meaning ascribed to such term in the Pooling
and Servicing Agreement.
"Operative Documents" shall have the meaning ascribed to such term in
the Pooling and Servicing Agreement and any applicable Series Supplement
thereto.
"Proceeds" shall have the meaning ascribed to it in Section 9-306(1) of
the UCC and, whether or not constituting proceeds under such section, any
accessions to and substitutions for any such property, and shall include, but
shall not be limited to, (i) any and all proceeds of any insurance, indemnity,
warranty or guaranty payable to either of the Grantors from time to time with
respect to any of the Collateral or the Trust Assets, as applicable, and (ii)
any and all other amounts from time to time paid or payable to either of the
Grantors upon the sale, exchange, collection or other disposition of any part of
the Collateral and the Trust Assets, as applicable.
"Receivable" has the meaning ascribed to such term in the Seller
Purchase Agreement.
"Records" has the meaning ascribed to such term in the Pooling and
Servicing Agreement.
"Related Property" has the meaning ascribed to such term in the Seller
Purchase Agreement.
"Repurchase Claim" means any obligation of the Company to repurchase
Receivables pursuant to the Seller Purchase Agreement.
"Responsible Officer" means, with respect to any Person, the chief
executive officer, the chief financial officer or the chief accounting officer
of such Person.
"Seller Transfer Report" has the meaning ascribed to such term in the
Seller Purchase Agreement.
"Series" has the meaning ascribed to such term in the Pooling and
Servicing Agreement.
"Shared Interest Collateral" mean (i) all Records in respect of all
Receivables, (ii) the Lock-Boxes, the Lock-Box Accounts and all monies and items
on deposit therein and the Lock- Box Notices relating thereto, (iii) the Master
Collection Account, all cash deposited therein, and all certificates and
instruments, if any, from time to time representing the Master Collection
Account, (iv) the Seller Split Payment Account, all cash deposited therein, and
all certificates and instruments, if any, from time to time representing the
Seller Split Payment Account, (v) all
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computer hardware and software used in connection with the servicing, collection
and monitoring of the Receivables and the Related Property associated therewith,
(vi) any other property or interests in property in which the Agent, the Lenders
or the Servicing Agent, on the one hand, and any of the Certificateholders or
the Trustee, on the other hand, each have any Liens or other property interest
under the Lender Documents and the Operative Documents, respectively, and (viii)
all Proceeds thereof, whether now owned or hereafter acquired or created and in
or upon which a Bank Interest and a Seller Interest is granted.
"Trust Claim" means all indebtedness, obligations, fees, costs,
expenses and other liabilities of the Trust owing under or in connection with
any of the Operative Documents.
"Trustee" has the meaning set forth in the Preamble to this Agreement.
"Trustee Fee" has the meaning ascribed to such term in the Pooling and
Servicing Agreement.
"Trust Estate" has the meaning set forth in the Declaration of Trust
herein.
"Trust Party" means any of the Trust, the Trustee, the Collateral
Trustee, the Master Servicer or the Back-Up Servicer, and "Trust Parties" means
all such parties collectively.
"Trust Termination Date" shall mean the date of termination of the
Trust created under the Pooling and Servicing Agreement pursuant to Section
12.01 thereof.
"UCC" means the Uniform Commercial Code as from time to time in effect
in the applicable jurisdiction.
ARTICLE 2. INTERCREDITOR PROVISIONS.
2.1. Release of Lien. (a) Notwithstanding anything contained in any of
the Lender Documents, any provision of the UCC or any UCC Financing Statement of
record, or any applicable law, the Agent, the Servicing Agent and the Lenders
hereby agree that, upon the Transfer of any interest in any Receivable (or
portion thereof) (1) as described in any Seller Transfer Report acknowledged by
the Agent (which acknowledgment may only be withheld by the Agent to the extent
that the Transfer of such Receivables would cause an Event of Default (provided
that such acknowledgment may be conditioned on the receipt by the Servicing
Agent of cash in an amount equal to any Borrowing Base Deficiency that may
result from such Transfer) and upon which acknowledgment the Seller and the
Trustee may conclusively rely in determining the authority of the Company to
make such Transfer of such Purchased Assets covered by such Seller Transfer
Report) or (2) which was otherwise Transferred to the Seller and did not result
in a positive Borrowing Base Deficiency (after giving effect to the disposition
and application of the aggregate "Purchase Price" (as such term is defined in
the Seller Purchase Agreement) (any such Transfer in either case being a
"Permitted Transfer"), together with the Related Property and
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Collections relating thereto, to the Seller pursuant to the Seller Purchase
Agreement, (i) any and all Liens and/or other claims or interest in favor of
the Agent, the Servicing Agent or any of the Lenders in such Purchased Assets
shall be released, terminated and of no further force or effect, in each case,
without any further action on the part of the Seller, the Company or the
Trustee and (ii) the Agent, the Lenders and the Servicing Agent shall cease to
have any further rights, title or interests in any such Purchased Assets and,
without limiting the foregoing, such Purchased Assets shall not be part of the
Collateral.
(b) Each of the Agent, the Lenders and the Servicing Agent hereby
agrees that it shall not contest or challenge, or join any other Person in
contesting or challenging, the validity, enforceability, priority or perfection
of the ownership interest of the Seller of any of the Purchased Assets which is
the subject of a Permitted Transfer, or the validity, enforceability, priority
or perfection of the ownership or security interest of any assignee of the
Seller in such assets.
(c) Except as expressly set forth herein, nothing contained in this
Agreement shall, or shall be deemed to, restrict, impair or impose any condition
with respect to the exercise by the Agent, the Servicing Agent or the Lenders,
on the one hand, or the Trust Parties, on the other hand, of any right, remedy,
power or privilege under any Lender Document or Operative Document,
respectively.
(d) Each of the Agent, the Lenders and the Servicing Agent hereby
agrees to deliver to the Trustee or the Collateral Trustee, as applicable, all
documents, releases and other agreements, and to take all other actions, which
the Seller or the Trustee may reasonably request to evidence the release of the
Agent's and the Lenders' Liens as described in clause (a) above.
2.2. Allocation of Property. All Proceeds of the Collateral and the
Purchased Assets shall be allocated in accordance with the following procedures:
(a) All Proceeds of the Collateral shall be allocated to the Servicing
Agent for application to the Obligations in accordance with the Lender
Documents until the payment in full thereof and any remaining proceeds
shall be paid to the Company or as otherwise required by applicable law.
(b) All Proceeds of the Purchased Assets shall be allocated to the
Trustee for application in accordance with the Operative Documents.
2.3. Enforcement Actions. Each of the parties hereto agrees to use
reasonable efforts to give notice to the other parties hereto prior to any such
party's commencement of Enforcement (but failure to do so shall not prevent such
Person from commencing Enforcement or affect its rights hereunder nor create any
cause of action or liability against such Person); provided, however, that none
of the parties hereto may commence any Enforcement against any of the Shared
Interest Collateral, such Enforcement only to be commenced by the Collateral
Trustee at the mutual direction of the Trustee and the Agent or, if the Trustee
and the Agent cannot reach agreement, then in accordance with the directions of
any court of competent jurisdiction solicited by the Collateral Trustee, the
Agent or the Trustee.
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2.4. Agency for Perfection. Each of the parties hereto hereby appoints
each other party hereto as such party's agent for purposes of perfecting by
possession each such party's respective security interests and ownership
interests and Liens on the Collateral, the Trust Assets and the Shared
Collateral described hereunder. In the event that the Master Servicer or the
Trustee obtains possession of any of the Collateral, the Master Servicer or the
Trustee, as applicable shall notify the Agent of such fact, shall hold such
Collateral in trust and shall deliver such Collateral to the Agent upon the
Agent's request therefor. In the event that the Agent, the Servicing Agent or
any of the Lenders obtains possession of any of the Trust Assets, the Agent
shall notify the Trustee of such fact, shall hold such Trust Assets in trust and
shall deliver such Trust Assets to the Trustee upon its request therefor.
2.5. Limitation on Liability of Parties to Each Other. Except as
provided in this Agreement, no party shall have any liability to any other party
except for liability arising from the gross negligence or willful misconduct of
such party or its representatives except with respect to the Collateral Trustee
and the Trustee each of which shall be solely liable only for its or its
representative's own bad faith and willful misconduct; provided, however, that
any liability of the Collateral Trustee or the Trustee hereunder is solely the
corporate liability of the Collateral Trustee or the Trustee, as applicable, and
no recourse shall be had for the payment by the Collateral Trustee or the
Trustee of any other obligation or claim of or against the Collateral Trustee or
the Trustee, as applicable, arising out of or based on this Agreement, against
any stockholder, employee, officer, director or incorporator of the Collateral
Trustee or the Trustee.
2.6. Effect Upon Lender Documents and Operative Documents. By executing
this Agreement, the Company and Seller acknowledge that the provisions of this
Agreement shall not give either such Person any substantive rights as against
the Agent, the Servicing Agent, the Lenders, the Trustee, any Master Servicer or
the Certificateholders pursuant hereto and that nothing in this Agreement shall
amend, modify, change or supersede the terms of the Lender Documents or the
Operative Documents with respect to the Seller or the Company or any other
Affiliated Entity. Notwithstanding the foregoing, each of the Trustee, the
Master Servicer, the Lenders, the Servicing Agent and the Agent agrees, that, as
between themselves, to the extent the terms and provisions of the Lender
Documents or the Operative Documents are inconsistent with the terms and
provisions of this Agreement, the terms and provisions of this Agreement shall
control.
ARTICLE 3. THE COLLATERAL TRUST AND THE COLLATERAL TRUSTEE
3.1. Authorization to Execute Collateral Trust Documents. The
Collateral Trustee shall execute and deliver each of the Collateral Trust
Documents requiring execution and delivery by it and shall accept delivery from
each of the Grantors of those Collateral Trust Documents which do not require
the Collateral Trustee's execution; provided, however, that the Collateral
Trustee shall not be required to execute any such Collateral Trust Document
imposing any obligation or liability on the Collateral Trustee or adversely
affecting the Collateral Trustee unless the provisions thereof imposing such
obligation or liability or adversely affecting the Collateral Trustee are, in
each case, in form and substance satisfactory to the Collateral Trustee.
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3.2. Certain Representations and Warranties. The Collateral Trustee, in
its capacity as Collateral Trustee hereunder, and PNC Bank, National
Association, in its individual capacity, each represents and warrants to each of
the Grantors and the Holders as follows:
(i) PNC Bank, National Association is a national banking association
duly incorporated, validly existing and in good standing under the laws of
the United States of America and has all requisite corporate power and
authority to enter into and perform its obligations under this Agreement
and the other Collateral Trust Documents to which it is a party.
(ii) The execution, delivery and performance by the Collateral Trustee
of this Agreement and the other Collateral Trust Documents to which it is a
party have been duly authorized by all necessary corporate action on the
part of PNC Bank, National Association.
(iii) To the best knowledge of the officers assigned to the Collateral
Trustee's Corporate Collateral Trustee Administration Department, there are
no Collateral Trustee's Liens against the Trust Estate.
(iv) This Agreement and all of the other Collateral Trust Documents to
which the Collateral Trustee is a party have been duly executed and
delivered by a duly authorized officer thereof.
3.3. Procedures for Allocating Shared Interest Collateral. (a) Subject
to the limitations hereunder, under the other Collateral Trust Documents, and
under the Lender Documents and the Operative Documents, the Collateral Trustee
shall take any action with respect to the Shared Interest Collateral, this
Agreement and the other Collateral Trust Documents requested in writing by both
the Agent and the Trustee, including, without limitation, releasing portions of
the Shared Interest Collateral from the Liens imposed pursuant to this Agreement
and the other Collateral Trust Documents; provided, however, that the Agent and
the Trustee hereby authorize and direct the Collateral Trustee to follow the
directions as to allocations of amounts in the Master Collection Account,
including without limitation to the applicable Series Collection Account and the
Seller Split Payment Account, as shall be specified by the Applicable Master
Servicers and the Borrower in each Daily Report; provided, that in the event
that any material amount of Collections is either misallocated or the Applicable
Master Servicers and the Borrower are unable to agree on the reconciliation and
allocation thereof, then upon the direction of the Trustee or the Agent (such
direction being a "Transition Notice"), the Collateral Trustee shall cease to
follow the instruction of the Applicable Master Servicers and the Borrower as
aforesaid, and shall instead take direction solely from the Back-up Servicer in
respect of such allocations; and provided, further, that (a) at all times prior
to the giving of a Transition Notice, each of the Applicable Master Servicer and
the Borrower may make, or instruct the Collateral Trustee to make, withdrawals
from the Seller Split Payment Account to remit funds to the applicable Claimant
as shall be specified by the Applicable Master Servicer and the Borrower in each
Daily Report, and the Collateral Trustee shall be entitled to rely on any such
directions from the Applicable Master Servicer and/or the Borrower in respect of
such remittances in connection with the Split Payments,
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and (b) from and after the giving of a Transition Notice, the Collateral Trustee
shall cease to follow the instruction of the Applicable Master Servicer and the
Borrower as aforesaid, and shall instead take direction solely from the Back-up
Servicer in respect of such allocations; and provided, further, that the
Collateral Trustee shall not be obligated to take any such action which is in
conflict with any provisions of law or of this Agreement, the Lender Documents,
the Operative Documents or the other Collateral Trust Documents or with respect
to which the Collateral Trustee has not received adequate security or indemnity
as provided in Section 3.19(d). Neither the Agent nor the Trustee shall
unreasonably withhold consent in respect of the other's actions respecting the
allocation of any Shared Interest Collateral, and each such party hereby agrees
not to take any action in respect of any Shared Interest Collateral that would
adversely affect the other's rights to enforce its claims with respect thereto
or the value of such Shared Interest Collateral.
(b) The Seller and the Company hereby acknowledge and agree that the
Collateral Trustee shall have the exclusive ownership, dominion and control over
any and all Lock-Boxes and the Lockbox Accounts which are Shared Interest
Collateral. The Seller and the Company hereby agree to take any further action
necessary or that the Trustee, the Collateral Trustee or the Agent may
reasonably request to evidence and/or effect such ownership, dominion and
control. Unless instructed otherwise by the Collateral Trustee pursuant to its
authority hereunder, each Lockbox Bank shall be instructed to remit, on a daily
basis, via overnight or same day transfer, all amounts deposited in its Lockbox
Accounts to the Master Collection Account in accordance with the terms of a
Lock-Box Notice substantially in the form of Exhibit B to the Pooling and
Servicing Agreement.
3.4. Additional Collateral Trust Documents. In the event that either of
the Grantors at any time has or acquires any interest in any Shared Interest
Collateral which is not covered by a Collateral Trust Document in a manner which
will perfect the Collateral Trustee's lien upon and security interest in such
Shared Interest Collateral without further act or deed of the Collateral
Trustee, then at the time such interest in such Shared Interest Collateral is
acquired (or at any time the Collateral Trustee, any Holder, the Agent or the
Trustee determines that the Collateral Trustee's lien upon or security interest
in such interest in the Shared Interest Collateral is unperfected), to the
extent that such security interest may be perfected by the execution and/or
filing of a Collateral Trust Document, then the applicable Grantor shall
immediately, or immediately upon the Collateral Trustee's request therefor,
prepare, execute and deliver to the Collateral Trustee such Collateral Trust
Documents, in form and substance similar to the Collateral Trust Documents
heretofore executed and delivered by such Grantor unless otherwise specified or
agreed by the Collateral Trustee, as are necessary to perfect the Collateral
Trustee's Lien upon such Shared Interest Collateral. If the signature of the
Collateral Trustee is required on any such Collateral Trust Document, such
Grantor shall present such Collateral Trust Document to the Collateral Trustee
for signature, together with a certificate executed by such Grantor certifying
that such Collateral Trust Document is required by, and complies with, the
provisions hereof, and, if applicable, is in form suitable for filing or
recordation, and the Collateral Trustee shall execute such Collateral Trust
Document and such Grantor shall file such Collateral Trust Document with
appropriate filing and/or recording offices if such filing and/or recording is
required or advisable to perfect or protect the Collateral Trustee's lien upon
or security interest in such Shared Interest Collateral. Such Grantor shall
supply the Collateral Trustee with an executed copy of each such Collateral
Trust
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Document and satisfactory proof that such Collateral Trust Document has
been properly filed or recorded, if and to the extent that filing or recording
is required under this Section 3.4.
3.5. Powers of Attorney. Each of the Grantors hereby irrevocably
constitutes and appoints the Collateral Trustee and any officer or agent
thereof, with full power of substitution, as its true and lawful
attorney-in-fact with full power and authority in the name of such Grantor or
the name of such attorney-in-fact, from time to time in the Collateral Trustee's
discretion (subject to Section 3.17 of this Agreement), for the purposes of
signing documents and taking other action to perfect, promote and protect the
liens and security interests of the Collateral Trustee in the Shared Interest
Collateral. This power of attorney is a power coupled with an interest, shall be
irrevocable.
3.6. Exercise of Powers. All of the powers, remedies and rights of the
Collateral Trustee as set forth in this Agreement may be exercised by the
Collateral Trustee in respect of any Collateral Trust Document as though set
forth at length therein and all the powers, remedies and rights of the
Collateral Trustee as set forth in any Collateral Trust Document may be
exercised from time to time as herein and therein provided.
3.7. Limitation on Collateral Trustee's Duties in Respect of the Shared
Interest Collateral. Beyond its duties set forth in this Agreement as to the
custody of any Shared Interest Collateral in its possession or control and the
accounting to each of the Grantors and the Holders for monies received by it
hereunder, the Collateral Trustee shall not have any duty to the Grantors or the
Holders as to any Collateral in its possession or control or in the possession
or control of any agent or nominee of it or any income thereon or as to the
preservation of rights against prior parties or any other rights pertaining
thereto.
3.8. Limitation by Law. All of the provisions of this Article 3 are
intended to be subject to all applicable mandatory provisions of law which may
be controlling in the premises and to be limited to the extent necessary so that
they will not render this Agreement invalid or unenforceable in whole or in
part.
3.9. Information as to Holders; Notices to Holders; Notices to
Collateral Trustee. Each of the Agent and the Trustee shall be responsible for
maintaining a list setting forth the names and addresses of each party to whom
notices must be sent under the Credit Agreement with respect to the transactions
relating to the Lender Documents, the Operative Documents, this Agreement and
the other Collateral Trust Documents, and the Collateral Trustee shall have no
responsibility or liability with respect thereto. Notwithstanding anything
contained herein or in any other agreement to the contrary, all notices, reports
or other documents required to be delivered by the Collateral Trustee hereunder
or under any of the other Collateral Trust Documents to any of the Holders shall
be deemed delivered by the Collateral Trustee for purposes hereof or thereof by
the delivery thereof to the Agent or the Trustee, as the case may be, in respect
of such Holder(s). The Collateral Trustee may act in reliance upon any
instrument or signature reasonably believed by it to be genuine and may assume
that any Person purporting to give any notice, advice or instruction in
connection with the provisions hereof has been duly authorized to do so. In
addition, the Collateral Trustee shall be entitled to rely upon any
certification, demand, notice, instrument or other writing delivered to it
hereunder or in connection herewith without being required to determine the
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correctness of any fact stated therein or the propriety or validity thereof.
3.10. Compensation and Expenses. Each of the Grantors hereby jointly
and severally agrees to pay to the Collateral Trustee (i) such reasonable
compensation for its performance of services hereunder and under the Collateral
Trust Documents and for administering the Trust Estate as shall be set forth in
a separate letter agreement among the Collateral Trustee and the Grantors to be
entered into prior to or concurrently with the appointment of a Collateral
Trustee other than the Trustee (such compensation being the "Collateral
Trustee's Fees") but in any event not to exceed 120% of such Person's
out-of-pocket expenses incurred in the performance of such duties, and (ii) from
time to time, upon the Collateral Trustee's demand therefor, but subject in all
cases to Section 3.15 of this Agreement, all of the fees, costs and expenses of
the Collateral Trustee (including, without limitation, the reasonable fees and
disbursements of its counsel and such special counsel as the Collateral Trustee
elects to retain) (A) arising in connection with the preparation, execution,
delivery, modification, restatement, amendment or termination of this Agreement
and each Collateral Trust Document or the enforcement (whether in the context of
a civil action, adversary proceeding, workout or otherwise) of any of the
provisions hereof or thereof, or (B) incurred or required to be advanced in
connection with the administration of the Trust Estate, the disposition of the
Shared Interest Collateral pursuant to any Collateral Trust Document and the
preservation, protection or defense of the Collateral Trustee's rights under
this Agreement and in and to the Shared Interest Collateral and the Trust
Estate. In the event that the Trustee and the Collateral Trustee are the same
Person, the Collateral Trustee's Fees and the Collateral Trust Document Fees
shall be deemed to have been paid out of the Trustee Fee. In the event that the
Trustee and the Collateral Trustee are not the same Person, the Collateral
Trustee's Fees and the Collateral Trust Document Fees shall be paid pursuant to
a fee letter between the Collateral Trustee, the Agent and the Trustee in
respect of each Series, to the extent that payment thereof is provided for under
the Operative Documents. The obligations of the Grantors under this Section 3.10
shall survive the termination of this Agreement.
3.11. Stamp and Other Similar Taxes. Subject in all cases to Section
3.15 of this Agreement, each of the Grantors jointly and severally agrees to
indemnify and hold harmless the Collateral Trustee and each Holder from, and
shall reimburse the Collateral Trustee and each Holder for, any present or
future claim for liability for any stamp or other similar tax and any penalties
or interest with respect thereto, which may be assessed, levied or collected by
any jurisdiction in connection with this Agreement, the Trust Estate, or the
attachment or perfection of the security interest granted to the Collateral
Trustee in any Shared Interest Collateral. The obligations of the Grantors under
this Section 3.11 shall survive the termination of this Agreement.
3.12. Filing Fees, Excise Taxes, etc. Subject in all cases to Section
3.15, each of the Grantors hereby jointly and severally agrees to pay or to
reimburse the Collateral Trustee for any and all amounts in respect of all
search, filing, recording and registration fees, taxes, excise taxes and other
similar imposts which may be payable or determined to be payable by such Grantor
in respect of the execution, delivery, performance and enforcement of this
Agreement and each Collateral Trust Document and agrees to save the Collateral
Trustee harmless from and against any and all liabilities with respect to or
resulting from any delay on the part of such Grantor in paying or failing to pay
such taxes and fees. The obligations of the Grantors under this Section 3.12
shall
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survive the termination of this Agreement.
3.13. Indemnification. (a) Each of the Grantors agrees to pay,
indemnify and hold the Collateral Trustee and each of its agents harmless from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement and the Collateral Trust
Documents by, against or with respect to such Grantor, unless arising from the
gross negligence or willful misconduct of such of the Collateral Trustee or such
of the agents as are seeking indemnification. As security for such payment, the
Collateral Trustee shall have a lien on all Shared Interest Collateral and other
property and funds held or collected by the Collateral Trustee as part of the
Trust Estate.
(b) In any suit, proceeding or action brought by the Collateral Trustee
under or with respect to the Shared Interest Collateral for any sum owing
thereunder, or to enforce any provisions thereof, or of any of the Collateral
Trust Documents or this Agreement, each of the Grantors agrees to save,
indemnify and keep the Collateral Trustee and the Holders harmless from and
against all expense, loss or damage suffered by reason of any defense, setoff,
counterclaim, recoupment or reduction of liability whatsoever of the obligee
thereunder, arising out of a breach by such Grantor of any of its obligations
hereunder or thereunder or arising out of any other agreement, indebtedness or
liability at any time owing to or in favor of such obligee or its successors
from such Grantor, and all such obligations of such Grantor shall be and remain
enforceable against and only against such Grantor and shall not be enforceable
against the Collateral Trustee or any Holder.
(c) The agreements in this Section 3.13 shall, in all cases, be subject
to Section 3.15 and shall survive the termination of the other provisions of
this Agreement.
3.14. Further Assurances. (a) Each Grantor agrees that from time to
time, at the expense of such Grantor, it will promptly execute and deliver all
further instruments and documents, and take all further action, that may be
necessary or desirable, as requested by the Collateral Trustee, in order to
perfect and protect any security interest granted or purported to be granted
hereby or to enable the Collateral Trustee to exercise and enforce its rights
and remedies hereunder with respect to any Shared Interest Collateral, including
without limitation, the execution of financing or continuation statements, or
amendments thereto.
(b) Each of the Grantors hereby acknowledges that it shall be and
remain primarily and exclusively liable for the preparation, execution and
filing of financing and continuation statements with respect to the Shared
Interest Collateral. Without in any way limiting the foregoing, each of the
Grantors hereby authorizes the Collateral Trustee to file, in its sole
discretion and without any obligation to do so, one or more financing or
continuation statements, and amendments thereto, relative to all or any part of
the Shared Interest Collateral without the signature of such Grantor where
permitted by law. A carbon, photographic or other reproduction of this Agreement
or any financing statement covering the Shared Interest Collateral or any part
thereof shall be sufficient as a financing statement where permitted by law.
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3.15. Limitation on Repayment. Notwithstanding anything contained
herein to the contrary, the Collateral Trustee hereby agrees that all amounts
(other than the Collateral Trustee's Fees) owing to it by any of the Grantors
pursuant to this Agreement, including, without limitation, any and all
Collateral Trust Document Fees, shall, to the extent payable on account of the
Trustee, be payable by the Seller but only to the extent of Available Seller
Funds to the extent that at the time of such payment, or immediately thereafter
and giving effect to such payment, the Seller would, in the reasonable
determination of the Seller, continue to be able to pay its debts as they become
due. The Trustee shall have no independent obligation for any such amounts.
3.16. Acceptance of Trust. The Collateral Trustee, for itself and its
successors, hereby accepts the trusts created by this Agreement upon the terms
and conditions hereof, including those contained in this Article 3.
3.17. Exculpatory Provisions. (a) The Collateral Trustee shall not be
responsible in any manner whatsoever for the correctness of any recitals,
statements, representations or warranties contained herein or in the other
Collateral Trust Documents, except for those made by the Collateral Trustee, or
for filing any financing statement or continuation statement or recording or
re-recording any Collateral Trust Document in any public office at any time or
for taking any other action to perfect or maintain the perfection or
effectiveness of any security interest or Lien in any of the Shared Interest
Collateral or in any other property granted to it by the Grantors hereunder or
under any of the other Collateral Trust Documents. The Collateral Trustee makes
no representations as to the value or condition of the Trust Estate or any part
thereof, or as to the title of any of the Grantors thereto or as to the security
afforded by the Collateral Trust Documents or this Agreement or, except as set
forth in Section 3.2 of this Agreement, as to the validity, execution,
enforceability, legality or sufficiency of this Agreement, any other Collateral
Trust Document or of the Interests secured hereby and thereby, and the
Collateral Trustee shall incur no liability or responsibility in respect of any
such matters. The Collateral Trustee shall not be responsible for insuring the
Trust Estate or for the payment of taxes, charges, assessments or liens upon the
Trust Estate or for the maintenance of the Trust Estate, except that (i) in the
event the Collateral Trustee enters into possession of all or any part of the
Trust Estate, the Collateral Trustee shall preserve such portion of the Trust
Estate in its possession and (ii) the Collateral Trustee will promptly, and at
its own expense, take such action as may be necessary to remove and discharge
(by bonding or otherwise) any Collateral Trustee's Lien on any part of the Trust
Estate or any other Lien on any part of the Trust Estate resulting from claims
against it individually.
(b) The Collateral Trustee shall not be required to ascertain or
inquire as to the performance by either of the Grantors of any of the covenants
or agreements contained herein or in any Collateral Trust Document. Whenever it
is necessary, or in the opinion of the Collateral Trustee advisable, for the
Collateral Trustee to ascertain the amount of Interests then held by a Holder,
the Collateral Trustee may rely on a certificate of such Holder (or the Agent or
the Trustee on behalf of such Holder) as to such amount.
(c) PNC Bank, National Association shall, in its individual capacity
and at its own cost and expense, promptly take all action as may be necessary to
discharge any Collateral Trustee's Liens or any other Lien resulting from claims
against it individually.
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(d) The Collateral Trustee shall not be personally liable for any acts,
omissions, errors of judgment or mistakes of fact or law made, taken or omitted
to be made or taken by it in accordance with this Agreement or any other
Collateral Trust Document (including, without limitation, acts, omissions,
errors or mistakes with respect to the Shared Interest Collateral), except for
those arising out of or in connection with the Collateral Trustee's gross
negligence or willful misconduct. Notwithstanding anything set forth herein to
the contrary, the Collateral Trustee shall have a duty of reasonable care with
respect to any notes and instruments which are delivered to the Collateral
Trustee or its designated representatives and are in the Collateral Trustee's or
its designated representatives' possession and control.
3.18. Delegation of Duties. The Collateral Trustee may execute any of
the trusts or powers hereof and perform any duty hereunder either directly or by
or through agents, nominees or attorneys-in-fact, provided that the Collateral
Trustee shall obtain a written acknowledgment from such agents, nominees or
attorneys-in-fact that they shall be liable to the Holders for losses or damages
incurred by any such Holder as a result of such agent's, nominee's or
attorney-in-fact's gross negligence or willful misconduct as and to the extent
the Collateral Trustee would be liable for such losses or damages if the actions
or omissions of such agents, nominees or attorneys-in-fact constituting such
gross negligence or willful misconduct had been actions or omissions of the
Collateral Trustee. The Collateral Trustee shall be entitled to advice of
counsel concerning all matters pertaining to such trusts, powers and duties. The
Collateral Trustee shall not be responsible for the negligence or misconduct of
any agents, nominees or attorneys-in-fact selected by it without gross
negligence or willful misconduct.
3.19. Reliance by Collateral Trustee. (a) Whenever in the
administration of the trusts under this Agreement the Collateral Trustee shall
deem it necessary or desirable that a matter be proved or established with
respect to any of the Grantors in connection with the taking, suffering or
omission of any action hereunder by the Collateral Trustee, such matter (unless
other evidence in respect thereof is specifically prescribed under this
Agreement) may be deemed to be conclusively provided or established by a
certificate of a Responsible Officer of such Grantor(s) or any officer of the
Agent or Trustee, as applicable, in each case, delivered to the Collateral
Trustee, and such certificate shall be full warranty to the Collateral Trustee
for any action taken, suffered or omitted in reliance thereon; subject, however,
to the provisions of Section 3.20 of this Agreement. Without in any way limiting
the foregoing, all certificates, notices or directions required to be delivered
by any of the Grantors, the Agent or the Trustee to the Collateral Trustee
pursuant to the terms hereof shall in all cases be signed by a Responsible
Officer of such Person, if such Person is a Grantor, or, otherwise, by any
officer thereof.
(b) The Collateral Trustee may consult with counsel, accountants and
other experts, and any opinion or advice of any such counsel, any such
accountant, and any such other expert shall be full and complete authorization
and protection in respect of any action taken or suffered by the Collateral
Trustee hereunder in accordance therewith. The Collateral Trustee shall have the
right at any time to seek instructions concerning the administration of the
Trust Estate from any court of competent jurisdiction.
(c) The Collateral Trustee may rely, and shall be fully protected in
acting, upon
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any resolution, statement, certificate, instrument, opinion, report, notice,
request, consent, order, bond or other paper or document which it has no
reasonable reason to believe to be other than genuine and to have been signed
or presented by the proper party or parties or, in the case of cables,
telecopies and telexes, to have been sent by the proper party or parties. In the
absence of its gross negligence or willful misconduct, the Collateral Trustee
may conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished to
the Collateral Trustee and conforming to the requirements of this Agreement or
any other Collateral Trust Document.
(d) If the Collateral Trustee has been requested or directed to take
action under this Agreement, including, without limitation, pursuant to Section
3.3, the Collateral Trustee shall not be under any obligation to exercise any of
the rights or powers vested in the Collateral Trustee by this Agreement or any
Collateral Trust Document unless the Collateral Trustee shall have been provided
adequate security and indemnity against the costs, expenses and liabilities
which may be incurred by it in compliance with such request or direction,
including such reasonable advances as may be requested by the Collateral
Trustee.
3.20. Limitations on Duties of Collateral Trustee. (a) The Collateral
Trustee shall be obligated to perform such duties and only such duties as are
specifically set forth in this Agreement or in any other Collateral Trust
Document, and no implied covenants or obligations shall be read into this
Agreement or any other Collateral Trust Document against the Collateral Trustee.
The Collateral Trustee shall exercise the rights and powers vested in it by this
Agreement or by any other Collateral Trust Document, and the Collateral Trustee
shall not be liable with respect to any action taken or omitted to be taken by
it in accordance with the direction of the Agent or the Trustee, as the case may
be, in accordance with the terms of this Agreement.
(b) Except as herein otherwise expressly provided, the
Collateral Trustee shall not be under any obligation to take any action which is
discretionary with the Collateral Trustee under the provisions hereof or under
any Collateral Trust Document.
3.21. Monies to be Held in Trust. All monies received under or
pursuant to any provision of this Agreement or any Collateral Trust Document
shall be held in trust for the purposes for which they were paid or are held.
3.22. Resignation and Removal of the Collateral Trustee. (a)
The Collateral Trustee may at any time (and, if the Collateral Trustee shall at
any time cease to be an Eligible Collateral Trustee, the Collateral Trustee
shall at such time), by giving thirty (30) days' prior written notice to each of
the Grantors, the Master Servicer, the Company, the Seller, the Agent and the
Trustee, resign and be discharged of the responsibilities hereby created, such
resignation to become effective upon the appointment of a successor Collateral
Trustee or Collateral Trustees (each of which Collateral Trustees shall be an
Eligible Collateral Trustee) by the Agent and the Trustee and the acceptance of
such appointment by such successor Collateral Trustee or Collateral Trustees
(which acceptance shall (i) be in writing, (ii) be signed by such successor
Collateral Trustee and delivered to each of the Agent and the Trustee and (iii)
expressly acknowledge such successor Collateral Trustee's agreement to be party
to, and bound by, the terms of this Agreement,
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including, without limitation, this Section 3.22). The Collateral Trustee may
be removed at any time and a successor Collateral Trustee appointed by the
affirmative vote of the Agent and the Trustee, which successor Collateral
Trustee shall, upon its acceptance of such appointment, deliver a written
acceptance thereof as set forth in the parenthetical in the immediately
preceding sentence; provided, that the Collateral Trustee shall be entitled to
its fees and expenses to the date of removal. If no successor Collateral
Trustee or Collateral Trustees shall be appointed and approved within thirty
(30) days from the date of the giving of the aforesaid notice of resignation
or within thirty (30) days from the date of such removal, the Collateral
Trustee, the Agent or the Trustee may apply to any court of competent
jurisdiction to appoint a successor Collateral Trustee or Collateral Trustees
(any of which shall be an Eligible Collateral Trustee) to act until such time,
if any, as a successor Collateral Trustee or Collateral Trustees shall have
been appointed as above provided. Any successor Collateral Trustee or
Collateral Trustees so appointed by such court shall immediately and without
further act be superseded by any successor Collateral Trustee or Collateral
Trustees appointed by the Agent and the Trustee.
(b) If at any time the Collateral Trustee shall resign, be removed or
otherwise become incapable of action, or if at any time a vacancy shall occur in
the office of the Collateral Trustee for any other cause, a successor Collateral
Trustee or Collateral Trustees (any of which shall be an Eligible Collateral
Trustee) may be appointed by the Agent and the Trustee, and the powers, duties,
authority and title of the predecessor Collateral Trustee or Collateral Trustees
shall be terminated and cancelled with or without procuring the resignation of
such predecessor Collateral Trustee or Collateral Trustees, and without any
other action (except as may be required by applicable law) upon delivery to such
predecessor Collateral Trustee or Collateral Trustees of written notice, duly
executed by the Agent and the Trustee, of such appointment and designation of a
successor Collateral Trustee or Collateral Trustees, which notice shall be filed
for record in each public office, if any, in which this Agreement is required to
be filed.
(c) The appointment and designation referred to in Section 3.22(b) of
this Agreement shall be full evidence of the right and authority to make the
same and of all the facts therein recited, and this Agreement shall vest in such
successor Collateral Trustee or Collateral Trustees, without any further act,
deed or conveyance, all of the estate and title of its predecessor or their
predecessors, and upon such appointment and designation the successor Collateral
Trustee or Collateral Trustees shall become fully vested with all the estates,
properties, rights, powers, trusts, duties, authority and title of its
predecessor or their predecessors; but such predecessor or predecessors shall,
nevertheless, on the written request of the Agent or the Trustee, either of the
Grantors, or the successor Collateral Trustee or Collateral Trustees, execute
and deliver an instrument transferring to such successor or successors all the
estates, properties, rights, powers, trusts, duties, authorities and title of
such predecessor or predecessors hereunder and shall deliver all securities and
monies held by it or them to such successor Collateral Trustee or Collateral
Trustees. Should any deed, conveyance or other instrument in writing from either
of the Grantors be required by any successor Collateral Trustee or Collateral
Trustees for more fully and certainly vesting in such successor Collateral
Trustee or Collateral Trustees the estates, properties, rights, powers, trusts,
duties, authorities and title vested or intended to be vested in the predecessor
Collateral Trustee or Collateral Trustees, any and all such deeds, conveyances
and other instruments in writing shall, on the request of such successor
Collateral Trustee
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or Collateral Trustees, be so executed, acknowledged and delivered.
(d) Any required filing for record of the instrument appointing a
successor Collateral Trustee or Collateral Trustee as hereinabove provided shall
be at the expense of the Grantors. The resignation of any Collateral Trustee or
Collateral Trustees and the instrument or instruments removing any Collateral
Trustee or Collateral Trustees, together with all other instruments, deeds and
conveyances provided for in this Article 3 shall, if required by law, be
forthwith recorded, registered and filed by and at the expense of the Grantors,
wherever this Agreement is recorded, registered and filed.
(e) Notwithstanding any provision herein to the contrary, the
Collateral Trustee shall at all times be the same Person as the Person acting as
"Trustee" pursuant to the terms (and as defined in) the Pooling and Servicing
Agreement.
3.23. Merger of the Collateral Trustee. Any corporation (i) into which
the Collateral Trustee shall be merged, or with which it shall be consolidated,
(ii) resulting from any merger or consolidation to which the Collateral Trustee
shall be a party, or (iii) succeeding to all or substantially all of the
corporate trust business of the Collateral Trustee shall, to the extent it would
constitute an Eligible Collateral Trustee, be the Collateral Trustee under this
Agreement without the execution or filing of any paper or any further act on the
part of the parties hereto.
ARTICLE 4. MISCELLANEOUS.
4.1. Notices. All notices and other communications provided for
hereunder shall, unless otherwise stated herein, be in writing (including
telecommunications and communication by facsimile copy) and mailed, telexed,
transmitted or delivered, as to each party hereto, at its address set forth
under its name on the signature pages hereof or at such other address as shall
be designated by such party in a written notice to the other parties hereto. All
such notices and communications shall be effective upon receipt, or, in the case
of notice by mail, five (5) days after being deposited in the mails, postage
prepaid, or in the case of notice by telex, when telexed against receipt of the
answerback, or in the case of notice by facsimile copy, when verbal confirmation
of receipt is obtained, in each case addressed as aforesaid.
4.2. Agreement Absolute. The Trustee shall be deemed to have entered
into the Operative Documents in express reliance upon this Agreement and the
Lenders, the Servicing Agent and the Agent shall be deemed to have entered into
the Lender Documents in express reliance upon this Agreement. This Agreement
shall be and remain absolute and unconditional under any and all circumstances,
and no acts or omissions on the part of any party to this Agreement shall affect
or impair the agreement of any party to this Agreement, unless otherwise agreed
to in writing by all of the parties hereto. This Agreement shall be applicable
both before and after the filing of any petition by or against the Company or
the Seller under the Bankruptcy Code and all references herein to the Company or
the Seller shall be deemed to apply to a debtor-in-possession for such party and
all allocations of payments between the Lenders, the Trustee and the Master
Servicer shall, subject to any court order to the contrary, continue to be made
after the
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filing of such petition on the same basis that the payments were to be applied
prior to the date of the petition.
4.3. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of each of the parties hereto and their respective
successors and assigns. The successors and assigns for the Company and the
Seller shall include a debtor-in-possession or trustee of or for such party. The
successors and assigns for the Lenders, the Trustee, the Agent, or the Master
Servicer, as the case may be, shall include any successor Lenders, Trustee, the
Agent, or the Master Servicer, as the case may be, appointed under the terms of
the Lender Documents or the Operative Documents, as applicable. Each of the
Trustee, the Agent or the Master Servicer, as the case may be, agrees not to
transfer any interest it may have in the Lender Documents or the Operative
Documents unless such transferee has been notified of the existence of this
Agreement and has agreed to be bound hereby. In the event that the financing
provided under the Credit Agreement shall be refinanced, replaced or refunded,
the Company, the Seller, the Collateral Trustee, the Trustee and the Master
Servicer hereby agree, at the request of the agent or lenders under the credit
facility that so refinances, replaces or refunds the financing under the Credit
Agreement, to execute and deliver a new intercreditor agreement with such agent
and/or lenders or substantially the same terms as herein provided. In the event
that the financing provided under the Lender Documents shall be refinanced,
replaced or refunded, each of the Lenders and the Agent hereby agree, at the
request of the agent or purchasers under the facility that so refinances,
replaces or refunds the financing under the Lender Documents, to execute and
deliver a new intercreditor agreement with such agent and/or purchaser on
substantially the same terms as herein provided. The Agent, the Servicing Agent,
the Collateral Trustee and each of the Lenders hereby agree that in the event
that any of the Agent, the Servicing Agent or a Lender assigns any or all of
its rights or interests under the Credit Agreement, the assignee thereof shall
execute and deliver to each of the Agent, the Trustee and the Collateral Agent
a Collateral Trust and Intercreditor Agreement Acknowledgment, substantially
in the form of Exhibit A hereto, pursuant to which such assignee shall
expressly acknowledge its obligations hereunder and agree to be bound by all
of the terms hereof.
4.4. Beneficiaries. The terms and provisions of this Agreement shall be
for the sole benefit of the parties hereto and their respective successors and
assigns, and no other Person shall have any right, benefit, or priority by
reason of this Agreement.
4.5. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF DELAWARE.
4.6. Section Titles. The article and section headings contained in this
Agreement are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
4.7. Severability. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or thereof or affecting the
validity or enforceability of such provision in any other jurisdiction.
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4.8. Execution in Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which when taken together shall constitute one and the same agreement.
4.9. Resolution of Disputes In Respect of Shared Interest Collateral.
In the event that a dispute as to the allocation or disposition of any Shared
Interest Collateral shall arise which cannot be resolved in good faith by mutual
agreement between the Agent and the Trustee, then any of the Agent, the Trustee
or the Collateral Trustee may apply for resolution of such dispute to any court
of competent jurisdiction. Other than as described in the preceding sentence,
and notwithstanding any other provision of this Agreement, the Collateral
Trustee shall have no right to take any action in respect of any Shared Interest
Collateral other than as authorized by the Agent and/or the Trustee pursuant to
the terms of this Agreement.
4.10. Limitations on Liability. None of the members, managers,
officers, employees, agents, stockholders, holders of limited liability company
interests or directors of or in the Seller, the Company or the Master Servicer,
past, present or future, shall be under any liability to the Trust, the Trustee,
the Agent, the Servicing Agent, any Lender, any Certificateholder or any other
Person for any action taken or for refraining from the taking of any action in
such capacities or otherwise pursuant to this Agreement or for any obligation or
covenant under this Agreement, it being understood that, with respect to the
Seller, the Company and the Master Servicer, this Agreement and the obligations
created hereunder shall be, to the fullest extent permitted under applicable
law, solely the limited liability company, limited partnership or corporate
obligations of the Seller, the Company or the Master Servicer, as applicable.
The Seller, the Company, the Master Servicer and any member, manager, officer,
employee, agent, stockholder, or holder of any limited liability company
interest, or director of or in the Seller, the Company or the Master Servicer,
as applicable, may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person (other than the Seller or any
Affiliate thereof, in the case of the Seller, or the Company or any Affiliate
thereof, in the case of the Company, or the Master Servicer or any Affiliate
thereof, in the case of the Master Servicer) respecting any matters arising
hereunder.
4.11. Nature of the Obligations and Modification of Lender Documents.
Each of the Seller, the Company, the Trustee and the Master Servicer
acknowledges that the Obligations and other obligations and liabilities owing
under the Lender Documents are, in part, revolving in nature and that the amount
of such revolving indebtedness which may be outstanding at any time or from time
to time may be increased or reduced and subsequently reborrowed. The terms of
the Lender Documents may be modified, extended or amended from time to time, and
the amount thereof may be increased or reduced, all without notice to or consent
by any of the Seller, the Trustee or the Master Servicer and without affecting
the provisions of this Agreement. Without in any way limiting the foregoing,
each of the Seller, the Trustee or Master Servicer hereby agrees that the
maximum amount of Obligations and other obligations and liabilities owing under
the Lender Documents may be increased at any time and from time to time to any
amount.
4.12. Nature of the Trust Claim and Modification of Operative
Documents. Each
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of the Seller, the Company, the Lenders, and the Agent acknowledges that the
Trust Claim and other obligations and liabilities owing under the Operative
Documents may be, in part, revolving in nature and that the amount of such
revolving indebtedness which may be outstanding at any time or from time to
time may be increased or reduced and subsequently reborrowed. The terms of the
Operative Documents may be modified, extended or amended from time to time,
and the amount thereof may be increased or reduced, all without notice to or
consent by any of the Company, the Lenders or the Agent and without affecting
the provisions of this Agreement. Without in any way limiting the foregoing,
each of the Company, the Lenders and the Agent hereby agrees that the maximum
amount of Trust Claim and other obligations and liabilities owing under the
Operative Documents may be increased at any time and from time to time to any
amount.
4.13. Insolvency Proceeding. To and until the date which is one year
and one day after the Collection Date of the last outstanding Series under the
Pooling and Servicing Agreement, none of the parties hereto shall file or
institute or join any other Person in the filing or institution of any
bankruptcy, dissolution or insolvency proceeding against the Seller.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
ING (U.S.) CAPITAL CORPORATION,
as Agent, as a Lender and as Grantor
By:___________________________________
Name:
Title:
Address: 000 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ________________________
Telecopy: (000) 000-0000
PNC BANK, NATIONAL ASSOCIATION,
as Servicing Agent, and as a Lender and as
Grantor
By: __________________________________
Name:
Title:
Address: PNC Bank Center
0000 Xxxxxx Xxxxxx ___ Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: _______________________
Telecopy: (215) 585-____
PNC BANK, NATIONAL ASSOCIATION,
as Trustee, and as Grantor
By: __________________________________
Name:
Title:
Address: c/o PNC Bank, DE
000 Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Corporate Trust
Telecopy: (000) 000-0000
PNC BANK, NATIONAL ASSOCIATION,
as Collateral Trustee
By: __________________________________
Name:
Title:
Address: c/o PNC Bank, DE
000 Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Corporate Trust
Telecopy: (000) 000-0000
X.X. XXXXXXXXX S.S.C. LIMITED
PARTNERSHIP, as Borrower
By: X.X. Xxxxxxxxx & Company, Inc.,
its general partner
By: __________________________________
Name:
Title:
Address: 000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Telecopy: (000) 000-0000
X.X. XXXXXXXXX RECEIVABLES I LLC,
as Seller
By: X.X. Xxxxxxxxx S.S.C. Limited Partnership,
its manager
By: X.X. Xxxxxxxxx & Company, Inc.,
its general partner
By: __________________________________
Name:
Title:
Address: 000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Telecopy: (000) 000-0000
X.X. XXXXXXXXX & COMPANY, INC.,
as initial Master Servicer
By: __________________________________
Name:
Title:
Address: 000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Telecopy: (000) 000-0000
EXHIBIT A
TO
COLLATERAL TRUST AND INTERCREDITOR AGREEMENT
FORM OF COLLATERAL TRUST AND
INTERCREDITOR AGREEMENT ACKNOWLEDGMENT
[DATE]
PNC BANK, NATIONAL ASSOCIATION,
as Trustee
PNC Bank Center
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: _________________
PNC BANK, NATIONAL ASSOCIATION,
as Collateral Trustee
PNC Bank Center
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: _________________
ING (U.S.) CAPITAL CORPORATION,
as Agent
000 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: __________________
Reference is hereby made to (i) that certain Pooling and Servicing
Agreement (as the same may be amended, restated, supplemented or otherwise
modified from time to time, the "Pooling and Servicing Agreement"), dated as of
June 13, 1997, among X.X. Xxxxxxxxx Receivables I LLC, as seller (the "Seller"),
X.X. Xxxxxxxxx & Company, Inc., as the initial master servicer (the "Master
Servicer"), and PNC Bank, National Association, as trustee (the "Trustee"), (ii)
that certain Series 1997-1 Supplement (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "Supplement"), dated
as of June 13, 1997, among the Seller, the Master Servicer and the Trustee and
(iii) that certain Collateral Trust and Intercreditor Agreement, dated as of
June 13, 1997, among ING (U.S.) Capital Corporation, as Agent and as Lender, PNC
Bank, National Association, in its separate capacities as Servicing Agent, as
Lender, as Trustee and as Collateral Trustee, the "Lenders" from time to time
parties thereto, the Seller, the Master Servicer, and X.X. Xxxxxxxxx S.S.C.,
Limited Partnership, as Borrower (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "Intercreditor
Agreement"). Unless otherwise defined herein, capitalized terms used herein
shall have the
meanings ascribed thereto in the Pooling and Servicing Agreement and/or the
Intercreditor Agreement, as applicable.
In accordance with Section 4.3 of the Intercreditor Agreement,
the undersigned is to become a party to the Intercreditor Agreement as [an
additional Lender] [the "Agent"] [the "Servicing Agent") thereunder. In
connection therewith, as required pursuant to Section 4.3 of the Intercreditor
Agreement, the undersigned hereby (i) acknowledges that it has received and
reviewed a copy of the Intercreditor Agreement and (ii) agrees to bound by the
terms and provisions thereof applicable to the undersigned as [a Lender] [the
Agent] [the Servicing Agent].
IN WITNESS WHEREOF, the undersigned has executed this
Collateral Trust and Intercreditor Agreement Acknowledgment as of the date and
year first above written.
[__________________________]
By:_________________________
Name:
Title:
