INTER-CITY PRODUCTS CORPORATION (USA)
INTER-CITY PRODUCTS RECEIVABLES MASTER TRUST
POOLING AND SERVICING AGREEMENT
dated as of July 25, 1996
among
INTER-CITY PRODUCTS RECEIVABLES COMPANY, L.P.,
as Transferor,
INTER-CITY PRODUCTS CORPORATION (USA)
as Servicer,
and
LASALLE NATIONAL BANK,
as Trustee
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
CONVEYANCE OF ASSETS
SECTION 2.1 Creation of the Trust; Conveyance of Certain Assets 1
SECTION 2.2 Acceptance by Trustee 2
SECTION 2.3 Representations and Warranties of Transferor
Relating to the Transferred Assets 3
SECTION 2.4 No Assumption of Obligations Relating to
Receivables, Related Transferred Assets or Contracts . 4
ARTICLE III
ADMINISTRATION AND SERVICING
SECTION 3.1 Acceptance of Appointment; Other Matters . . . . . . . . . 4
SECTION 3.2 Duties of Servicer and Transferor. . . . . . . . . . . . . 5
SECTION 3.3 Lockbox Accounts; Concentration Accounts . . . . . . . . . 9
SECTION 3.4 Servicing Compensation . . . . . . . . . . . . . . . . . .10
SECTION 3.5 Records of Servicer and Reports to be Prepared by
Servicer. . . . . . . . . . . . . . . . . . . . . . . . .11
SECTION 3.6 Monthly Servicer's Certificate . . . . . . . . . . . . . .13
SECTION 3.7 Servicing Report of Independent Public Accountants;
SEC Reports . . . . . . . . . . . . . . . . . . . . . . .13
SECTION 3.8 Rights of Trustee. . . . . . . . . . . . . . . . . . . . .14
SECTION 3.9 Ongoing Responsibilities of the Initial Servicer . . . . .16
SECTION 3.10 Further Action Evidencing Transfers. . . . . . . . . . . .17
ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS; ALLOCATIONS
SECTION 4.1 Rights of Certificateholders . . . . . . . . . . . . . . .17
SECTION 4.2 Establishment of Transaction Accounts. . . . . . . . . . .18
SECTION 4.3 Trust-Level Calculations and Funds Allocations . . . . . .19
SECTION 4.4 Investment of Funds in Transaction Accounts. . . . . . . .19
SECTION 4.5 Attachment of Transaction Accounts . . . . . . . . . . . .20
ARTICLE V
DISTRIBUTIONS AND REPORTS
SECTION 5.1 Distributions. . . . . . . . . . . . . . . . . . . . . . .20
ARTICLE VI
THE CERTIFICATES
SECTION 6.1 The Certificates . . . . . . . . . . . . . . . . . . . . .20
SECTION 6.2 Authentication of Certificates . . . . . . . . . . . . . .21
SECTION 6.3 Registration of Transfer and Exchange of
Certificates. . . . . . . . . . . . . . . . . . . . . . .21
SECTION 6.4 Mutilated, Destroyed, Lost or Stolen Certificates. . . . .24
SECTION 6.5 Persons Deemed Owners. . . . . . . . . . . . . . . . . . .24
SECTION 6.6 Appointment of Paying Agent. . . . . . . . . . . . . . . .25
SECTION 6.7 Access to List of Certificateholders' Names and
Addresses . . . . . . . . . . . . . . . . . . . . . . . .25
SECTION 6.8 Authenticating Agent . . . . . . . . . . . . . . . . . . .26
SECTION 6.9 Tax Treatment. . . . . . . . . . . . . . . . . . . . . . .27
SECTION 6.10 Issuance of Additional Series of Certificates. . . . . . .27
ARTICLE VII
TRANSFEROR
SECTION 7.1 Representations and Warranties of Transferor
Relating to Transferor and the Transaction Documents. . .30
SECTION 7.2 Covenants of Transferor. . . . . . . . . . . . . . . . . .33
SECTION 7.3 Indemnification by Transferor. . . . . . . . . . . . . . .38
ARTICLE VIII
SERVICER
SECTION 8.1 Representations and Warranties of Servicer . . . . . . . .40
SECTION 8.2 Covenants of Servicer. . . . . . . . . . . . . . . . . . .42
SECTION 8.3 Merger or Consolidation of, or Assumption of the
Obligations of, Servicer . . . . . . . . . . . . . . . . .43
SECTION 8.4 Indemnification by Servicer. . . . . . . . . . . . . . . .43
SECTION 8.5 Servicer Liability . . . . . . . . . . . . . . . . . . . .44
SECTION 8.6 Limitation on Liability of Servicer and Others . . . . . .44
ARTICLE IX
EARLY AMORTIZATION EVENTS; TERMINATION BY SELLERS
SECTION 9.1 Early Amortization Events. . . . . . . . . . . . . . . . .44
SECTION 9.2 Remedies . . . . . . . . . . . . . . . . . . . . . . . . .44
SECTION 9.3 Additional Rights Upon the Occurrence of Certain Events. .44
ARTICLE X
SERVICER DEFAULTS
SECTION 10.1 Servicer Defaults . . . . . . . . . . . . . . . . . . . .46
SECTION 10.2 Trustee to Act; Appointment of Successor. . . . . . . . .47
SECTION 10.3 Notification of Servicer Default; Notification of
Appointment of Successor Servicer . . . . . . . . . . . .49
SECTION 10.4 Waiver of Servicer Defaults . . . . . . . . . . . . . . .49
ARTICLE XI
TRUSTEE
SECTION 11.1 Duties of Trustee . . . . . . . . . . . . . . . . . . . .50
SECTION 11.2 Certain Matters Affecting Trustee . . . . . . . . . . . .53
SECTION 11.3 Limitation on Liability of Trustee. . . . . . . . . . . .54
SECTION 11.4 Trustee May Deal with Other Parties . . . . . . . . . . .55
SECTION 11.5 Servicer To Pay Trustee's Fees and Expenses . . . . . . .56
SECTION 11.6 Eligibility Requirements for Trustee. . . . . . . . . . .56
SECTION 11.7 Resignation or Removal of Trustee . . . . . . . . . . . .57
SECTION 11.8 Successor Trustee . . . . . . . . . . . . . . . . . . . .57
SECTION 11.9 Merger or Consolidation of Trustee. . . . . . . . . . . .58
SECTION 11.10 Appointment of Co-Trustee or Separate Trustee. . . . . .58
SECTION 11.11 Tax Returns. . . . . . . . . . . . . . . . . . . . . . .60
SECTION 11.12 Trustee May Enforce Claims Without Possession of
Certificates . . . . . . . . . . . . . . . . . . . . . .60
SECTION 11.13 Suits for Enforcement. . . . . . . . . . . . . . . . . .60
SECTION 11.14 Rights of Required Investors To Direct Trustee . . . . .60
SECTION 11.15 Representations and Warranties of Trustee. . . . . . . .61
SECTION 11.16 Maintenance of Office or Agency. . . . . . . . . . . . .61
ARTICLE XII
TERMINATION
SECTION 12.1 Termination of Trust. . . . . . . . . . . . . . . . . . .61
SECTION 12.2 Final Distribution. . . . . . . . . . . . . . . . . . . .62
SECTION 12.3 Rights Upon Termination of the Trust. . . . . . . . . . .63
XXXXXXX 00.0 Xxxxxxxx Xxxxxxxxxx of Investor Interests . . . . . . . .63
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.1 Amendment, Waiver, Etc. . . . . . . . . . . . . . . . . .64
SECTION 13.2 Actions by Certificateholders . . . . . . . . . . . . . .66
SECTION 13.3 Limitation on Rights of Certificateholders. . . . . . . .66
SECTION 13.4 Governing Law . . . . . . . . . . . . . . . . . . . . . .67
SECTION 13.5 Notices . . . . . . . . . . . . . . . . . . . . . . . . .68
SECTION 13.6 Severability of Provisions. . . . . . . . . . . . . . . .68
SECTION 13.7 Certificates Nonassessable and Fully Paid . . . . . . . .68
SECTION 13.8 Nonpetition Covenant. . . . . . . . . . . . . . . . . . .68
SECTION 13.9 No Waiver; Cumulative Remedies. . . . . . . . . . . . . .69
SECTION 13.10 Counterparts . . . . . . . . . . . . . . . . . . . . . .69
SECTION 13.11 Third-Party Beneficiaries. . . . . . . . . . . . . . . .69
SECTION 13.12 Integration. . . . . . . . . . . . . . . . . . . . . . .69
SECTION 13.13 Binding Effect; Assignability; Survival of Provisions. .69
SECTION 13.14 Recourse to Transferor . . . . . . . . . . . . . . . . .70
SECTION 13.15 Recourse to Transferred Assets . . . . . . . . . . . . .70
SECTION 13.16 Submission to Jurisdiction . . . . . . . . . . . . . . .70
SECTION 13.17 Waiver of Jury Trial . . . . . . . . . . . . . . . . . .70
EXHIBITS
EXHIBIT A Form of Lockbox Account Letter Agreement
EXHIBIT B [Reserved]
EXHIBIT C Form of Monthly Servicer's Certificate
EXHIBIT D Semi-Annual Agreed-Upon Procedures
EXHIBIT E Form of Transferor Certificate
EXHIBIT F Form of Quarterly Servicer's Certificate
EXHIBIT G Form of Credit and Collection Policy
EXHIBIT H Form of Distributor Agreement
SCHEDULES
SCHEDULE 1 Account Banks - Lockbox Banks
APPENDIX
APPENDIX A Definitions
This POOLING AND SERVICING AGREEMENT, dated as of July 25, 1996
(this "Agreement"), is made among INTER-CITY PRODUCTS RECEIVABLES COMPANY,
L.P., a Tennessee limited partnership ("Transferor"), INTER-CITY PRODUCTS
CORPORATION (USA), a Delaware corporation (the "Initial Servicer"), and
LASALLE NATIONAL BANK, a national banking association, as Trustee.
ARTICLE I
DEFINITIONS
SECTION 2.1 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, 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 under 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 funds from time to time on deposit in each of the Bank
Accounts representing Collections on, or other proceeds of, the foregoing
and, in each case, 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 and (v) 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 to the Trust shall be made to
Trustee, on behalf of the Trust, and each reference in this Agreement to
such transfer, assignment, setover and conveyance shall be construed
accordingly.
(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, Public
Notices with respect to the Transferred Assets meeting the requirements
of applicable law in such manner and in such jurisdictions as are
necessary to perfect the transfer
and assignment of the Transferred Assets to the Trust. In connection with
the transfer described in subsection (a), Transferor and Servicer further
agree to deliver to Trustee 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. Transferor or
Servicer shall deliver each such Transferred Asset to Trustee, at the
expense of Servicer paid out of the Servicing Fee, immediately upon the
transfer of any such Transferred Asset to Trustee pursuant to subsection
(a).
(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 First Issuance Date,
xxxx the master data processing records evidencing the Receivables with
the following legend:
"THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD TO INTER-CITY
PRODUCTS RECEIVABLES COMPANY, L.P. ("TRANSFEROR") PURSUANT TO A
RECEIVABLES PURCHASE AGREEMENT, DATED AS OF JULY 25, 1996, AMONG
INTER-CITY PRODUCTS CORPORATION (USA) ("PARENT") AND CERTAIN
SUBSIDIARIES OF THE PARENT, AS SELLERS, AND TRANSFEROR, AS BUYER;
AND SUCH RECEIVABLES HAVE BEEN TRANSFERRED TO THE INTER-CITY
PRODUCTS RECEIVABLES MASTER TRUST PURSUANT TO A POOLING AND
SERVICING AGREEMENT, DATED AS OF THE SAME DATE, AMONG THE
TRANSFEROR, PARENT, AS SERVICER, AND LASALLE NATIONAL BANK, AS
TRUSTEE."
(d) Upon the 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 executed from time to time.
(e) If the transfer, assignment, set-over, grant and conveyance
described in subsection (a) of this Section 2.1 are deemed to create a
security interest in the property described therein, Transferor hereby
grants to the Trustee, for the benefit of the Trustee and the
Certificateholders, a security interest in that property (which shall be
deemed to be a first priority perfected security interest and shall secure
Transferor's obligations under the Transaction Documents and the
Certificates), and agrees that this Agreement shall constitute a security
agreement under applicable law.
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, on the terms and subject to the conditions
hereinafter set forth.
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SECTION 2.3 Representations and Warranties of Transferor Relating
to the Transferred Assets.
(a) Representations and Warranties. At the time that any
Receivable or other Transferred Asset is transferred by Transferor to the
Trust, Transferor hereby represents and warrants that:
(i) Quality of Title. (A) Immediately before each
transfer to be made by Transferor hereunder, each Receivable and
other Transferred Asset that was then to be transferred to the
Trust hereunder was owned by Transferor free and clear of any
Adverse Claim (other than any Permitted Adverse Claim); and,
within two Business Days after 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 Trust's interest
in such Receivables and such Transferred Assets against all
creditors of, and purchasers from, Transferor and the Sellers.
(B) Each transfer of Receivables and other Transferred
Assets by Transferor to the Trust pursuant to this Agreement
constitutes a valid transfer and assignment to the Trustee of all
right, title and interest of Transferor in such Receivables and
other 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 Trust or a grant of
a first priority perfected security interest in such property to
the Trust. Whenever the Trust accepts a transfer of a Receivable
or other Transferred Asset hereunder, it shall have acquired a
valid and perfected first priority security interest in such
Receivable or other Transferred Asset free and clear of any
Adverse Claim (other than any Permitted Adverse Claim).
(C) No effective Public Notice that covers all or part
of any Transferred Asset is on file in any recording office
except such as may be filed (i) in favor of the Transferor in
accordance with the Contracts, (ii) in favor of Transferor
pursuant to the Purchase Agreement and (iii) in favor of the
Trustee, for the benefit of the Investor Certificateholders, in
accordance with this Agreement. No Public Notice relating to
perfection that covers any inventory of such Seller that might
give rise to Receivables is on file in any recording office
except for (so long as an Intercreditor Agreement is in effect)
Public Notice in favor of creditors of such Seller bound by such
Intercreditor Agreement.
(D) No acquisition of any Receivable or other
Transferred Asset by Transferor or the Trust constitutes a
fraudulent transfer or fraudulent conveyance under the
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) Approvals. With respect to each Receivable and
other Transferred Asset, all consents, licenses, approvals or
authorizations of, or notices to or registrations, declarations
or filings with, any Governmental Authority or other Person
required to be obtained, effected or made by the Sellers,
Servicer or Transferor in connection with the
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conveyance of the Receivable and other Transferred Asset by the
Sellers to Transferor, or by Transferor to the Trust, 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 Trust, 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 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 other Transferred Assets to the Trust. 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 other parties to this Agreement and each
Required Person 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 Noncomplying
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 within the time limit specified therein, 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(h).
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 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 Investor Certificateholder shall have any
obligation or liability to any Obligor.
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. Until Trustee gives a Termination Notice
to the Initial Servicer pursuant to Section 10.1, the Initial Servicer is
designated (and agrees to act) as Servicer.
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(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 any Certificateholder 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.
(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.
(d) Resignation of Servicer. The Initial Servicer 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 the Initial Servicer 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 the preceding
sentence. No resignation by the Initial Servicer 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 and each
Required Person 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 at least 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 Related
Transferred Assets, all in substantial compliance with applicable law and
in accordance with the applicable Credit and Collection Policy
substantially in the form of Exhibit G.
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
applicable Credit and Collection Policy.
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Without limiting the generality of the foregoing and subject to
the next preceding paragraph and Section 10.1, 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 and payments from the Transaction
Accounts as set forth in this Agreement, (ii) to execute and deliver, on
behalf of the Trust for the benefit of the Certificateholders, any and all
instruments of satisfaction or cancellation, or of partial or full release
or discharge, and all other comparable instruments, with respect to the
Receivables and 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 in, to and under the Receivables or Related Transferred
Assets (as applicable).
Notwithstanding anything to the contrary in this Section 3.2(a),
the Servicer may not take any action on behalf of Trustee or demand any
power of attorney from Trustee, without Trustee's prior written consent,
which would have the effect under this Agreement or any of the other
Transaction Documents, of (i) increasing Trustee's duties, obligations or
liabilities; (ii) decreasing Trustee's indemnities, immunities,
compensation or rights to reimbursement (as to the amount, timing or
priority of payment, or otherwise), (iii) joining Trustee to any
litigation, (iv) impeding the Trustee's right to enforce the obligations
of Servicer, ICP or any Seller, or (v) waiving any default in the full and
timely payment to LaSalle National Bank for services rendered as Trustee,
Successor Servicer, Paying Agent or Transfer Agent and Registrar of any
fees, expenses or other amounts due to it.
(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 any Seller to Servicer or
discovery by Servicer that collections of any receivable or other asset
that is not a Collection of a Receivable or any other Transferred Asset
have been deposited into a Bank Account or any Transaction Accounts,
Servicer shall cause all such collections to be segregated, apart and in
different accounts, from the Bank Accounts and the Transaction Accounts.
Servicer and, to the extent applicable, Trustee shall hold all such funds
in trust, separate and apart from such Person's other funds. On each
Business Day, after such misdirected collections have been reasonably
identified by Servicer to Trustee, Servicer shall instruct Trustee to, and
Trustee shall, turn over to the appropriate Lockbox Bank, applicable
Seller or other applicable Related Person (or their designees) all such
misdirected collections less all reasonable and appropriate out-of-pocket
costs and expenses, if any, incurred by Servicer or the Trustee in
collecting and otherwise administering such amounts.
Following notification from a Lockbox Bank that any item has been
returned or is uncollected and that such Lockbox Bank has not been
otherwise reimbursed pursuant to the terms
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of the applicable Lockbox Agreement for any amounts it credited to the
relevant Lockbox Account (and then transferred to the Master Collection
Account), Servicer shall instruct Trustee to, and Trustee shall, turn over
to such Lockbox Bank Collections in such amount from Collections on
deposit in the Master Collection Account (unless the applicable Seller has
not made any payment required pursuant to Section 3.1(a) of the
Receivables Purchase Agreement, in which case such amounts shall be
retained by Trustee to the extent necessary to satisfy such payment
obligation).
(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 Sections
3.2(a), and 3.2(k) and the applicable Credit and Collection Policy, the
Unpaid Balance of any Receivable, or otherwise modify the terms of any
Receivable or amend, modify or waive any term or condition of any Contract
related thereto, all as it may determine to be appropriate to maximize
collection thereof. Servicer shall, or shall cause the applicable Sub-
Servicer to, write off Receivables from time to time in accordance with
the applicable Credit and Collection Policy.
(d) Documents and Records. At any time when the Initial Servicer
is not the Servicer, 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 other Transferred Assets of the applicable Seller.
(e) Certain Duties to the Sellers. Servicer, if other than the
Initial Servicer, shall, as soon as practicable after a demand by any
Seller, deliver to such Seller all documents, instruments and records in
its possession that evidence or relate to accounts receivable of such
Seller or other Related Persons that are not Receivables or other
Transferred Assets, and copies of all documents, instruments and records
in its possession that evidence or relate to Receivables and other
Transferred Assets.
(f) Identification of Eligible Receivables and Dilution. 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 whether
any Dilution has occurred, 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 and
whether, and to what extent, any Dilution has occurred.
(g) Authorization to Act as Transferor's Agent. Without limiting
the generality of subsection (a), Transferor hereby appoints Servicer,
subject to the terms and conditions of the Transaction Documents, as its
agent for the following purposes: (i) specifying accounts to which
payments are to be made to Transferor, (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
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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 from Transferor) in
connection with any Receivable or Related Transferred Asset; provide,
however, that without Trustee's prior written consent, Servicer may not
take any action pursuant to this Section 3.2(h) that would have the effect
of joining Trustee to any litigation. The power of attorney that
Transferor and Trustee have granted to Servicer may be revoked by Trustee,
and shall be 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 payments 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 other payments, duly
endorsed or with duly executed instruments of transfer, if applicable, to
a Bank Account or the Master Collection Account.
(j) Quarterly Statement as to Compliance. Servicer will deliver
to Trustee, each Rating Agency and each Required Person no later than 45
days after the end of each fiscal quarter (commencing with the fiscal
quarter ended September 30, 1996), an Officer's Certificate, substantially
in the form of Exhibit F, stating, as to each signer thereof, that (i) a
review of the activities of the Servicer during the preceding fiscal
quarter and of performance under this Agreement has been made under such
officer's supervision and (ii) to the best of such officer's knowledge,
based on such review, the Servicer has fulfilled all its obligations under
this Agreement throughout such quarter, 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) Discretionary Returns. The Servicer will not, and will not
permit any Seller to, allow any Discretionary Returns, unless Servicer or
such Seller has deposited into the Master Collection Account in connection
with such termination an amount of funds sufficient to ensure that the
aggregate Unpaid Balance of the Receivables held by the Trust (after
adjustment for the impact of any Discretionary Returns) is at least equal
to the aggregate Required Receivables (after adjustment for the impact of
any Discretionary Returns) for all Series. The Servicer will not, and
will not permit any Seller to, exercise its right under a Distributor
Agreement to terminate a Distributor, unless Servicer or such Seller has
deposited into the Master Collection Account in connection with such
termination an amount of funds sufficient to ensure that the aggregate
Unpaid Balance of the Receivables held by the Trust is at least equal to
the aggregate
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Required Receivables (after adjustment thereof to reflect the amount (the
"Terminated Distributor Amount") of Receivables owing by such Distributor
which are no long Eligible Receivables as a result of such termination)
for all Series. Each such deposit of funds shall be deemed to be
Collections with respect to the Receivables which are the subject of such
Discretionary Returns or Distributor termination. The amounts of any
Discretionary Returns and any Terminated Distributor Amounts which are
permitted pursuant to this Section 3.2(k) are referred to herein as
"Permitted Inventory Discretionary Returns."
SECTION 3.3 Lockbox Accounts; Concentration Accounts. (a) Each
Lockbox Account shall be subject to a Lockbox Agreement substantially in
the form of Exhibit A (or such other form as is acceptable to the
Trustee). Unless instructed otherwise by the Trustee, each Lockbox Bank
shall be instructed by Servicer 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 a Concentration
Account or the Master Collection Account. Any Concentration Account shall
be maintained in the name of Trustee on behalf of the Trust pursuant to
a Concentration Account Agreement substantially in the form of Exhibit B
(or such other form acceptable to the Trustee). 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 Bank 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 Bank 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 lockboxes maintained at the Lockbox Banks for deposit in
a Lockbox Account or a Concentration Account or (ii) directly to a Lockbox
Account. If Transferor or the applicable Seller receives any Collections
or any other payment of proceeds of any Transferred Asset, 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 best efforts to prevent the deposit of any amounts other than
Collections in any Bank Account. If Servicer is notified by the applicable
Seller that any amount other than Collections has been deposited in any
Bank Account, Servicer shall promptly instruct the appropriate Account
Bank and Trustee to segregate such amount, and shall direct such Account
Bank or Trustee (as appropriate) to turn over such amounts to the
applicable Seller or other Related Person (or their designees) to whom
such amounts are owed (unless the applicable Seller has not made any
payment required pursuant to Section 3.1(a) of the Receivables Purchase
Agreement, in which case such amounts shall be retained by Trustee to the
extent necessary to satisfy such payment obligation).
(c)(i) Servicer may, from time to time after the First Issuance
Date, designate a new account as a Bank Account, and such account shall
become a Bank Account (and the bank at
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which such account is maintained shall become a Lockbox Bank or a
Concentration Account Bank for purposes of this Agreement); provided that
(x) Trustee and each Required Person shall have received not less than
five Business Days' prior written notice of the account and/or the bank
that are proposed to be added as a Bank Account or an Account Bank (as
applicable), (y) not less than five Business Days prior to the effective
date of any such proposed addition, Trustee and each Required Person shall
have received (A) counterparts of a Lockbox Agreement or a Concentration
Account Agreement, as applicable, 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 new Account
Bank or such other parties with respect to any new Bank Account, and (z)
such designation is made with the consent of each Required Person.
(ii) Servicer may, from time to time after the First Issuance
Date, terminate an account as a Bank Account or a bank as an Account Bank;
provided that (x) no such termination shall occur unless Trustee and each
Required Person shall have received not less than five Business Days'
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 five Business Days prior to the effective date of any such
proposed termination, Trustee and each Required Person shall have received
counterparts of an agreement, duly executed by the applicable Account Bank
and reasonably satisfactory in form and substance to Trustee and each
Required Person, 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 another lockbox
or transferred to another Bank Account or the Master Collection Account
promptly after such Account Bank or former Account Bank (as applicable)
discovers that it has received any such funds or items, and (y)
notwithstanding clause (x), 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 Required Person and upon
satisfaction of the Modification Condition.
(d) Servicer shall instruct each Concentration Account Bank (if
any), to transfer on a daily basis (subject to such Concentration Account
Bank's customary funds availability schedule) in same day funds to the
Master Collection Account all collected funds on deposit in the
Concentration Account maintained with such Concentration Account Bank. All
such transfers shall be made in accordance with the relevant Concentration
Account Agreement.
SECTION 3.4 Servicing Compensation. As full compensation for its
servicing activities hereunder and under any Supplement, and as
reimbursement for any expense incurred by it in connection therewith,
Servicer shall be entitled to receive a monthly servicing fee (the
"Servicing Fee") in respect of each Series, payable in arrears on each
Distribution Date in respect of each Distribution Period (or portion
thereof) during which that Series is outstanding. The Servicing Fee in
respect of any Series shall be payable solely as provided in the related
Supplement.
Unless otherwise provided in the applicable Supplement, the
Servicing Fee payable for any Distribution Period with respect to any
Series shall be equal to one-twelfth of the product
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of (a) 1% 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. The fees, costs and expenses of Trustee, the Paying Agent, any
authenticating agent, the Lockbox Banks, the Concentration 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 or any Series Supplement 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, other Transferred Assets and Contracts of
each Seller and all Collections thereon in which timely entries shall be
made. Servicer shall, or shall cause each Sub-Servicer to, maintain and
implement administrative and operating procedures (including an ability
to generate duplicates of Records evidencing Receivables and the other
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 reasonably necessary for the
collection of all Receivables and Related Transferred Assets. Upon the
request of the Trustee or any Required Person after the occurrence and
continuance of a Servicer Default, the Servicer will deliver copies of all
books and records maintained pursuant to this Section 3.5(a) to such
Trustee or Required Person.
(b) Receivables Reviews. Subject to the last proviso to the next
sentence, the Servicer, any Sub-Servicer and Transferor shall, during
regular business hours upon not less than two Business Days' prior notice,
permit the Trustee (or such other Person whom the Trustee may designate
from time to time), any Required Person or their respective agents or
representatives (including certified public accountants or other
auditors), as an expense of the Servicer paid out of the Servicing Fee,
(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 any Origination and Servicing Party, including the related Contracts
and purchase orders, invoices and other agreements related thereto, and
(ii) to visit the offices and properties of any Origination and Servicing
Party for the purpose of examining such materials described in clause (i)
above, and to discuss matters relating to the Receivables or the Related
Transferred Assets or the performance by any Origination and Servicing
Party of their respective obligations under any Transaction Document with
any Authorized Officer of any Origination and Servicing Party or
Transferor (as applicable) or, with employees of such Origination and
Servicing Party having knowledge of such matters. The Trustee or any
Required Person may conduct, or cause their respective agents or
representatives to conduct, reviews of the types described in this
paragraph (b) (each such review, a "Receivables Review") whenever the
Trustee or any Required Person, in its reasonable judgment, deems any such
review appropriate, and the Trustee shall conduct, or cause its agents or
representatives to conduct, such a review if requested by any Required
Person; provided that, prior to the occurrence and continuance of an Early
Amortization Event or an Unmatured Early Amortization Event or during the
period in which the most recent
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quarterly servicing report delivered pursuant to Section 3.7 discloses a
material exception, the Trustee and each Required Person shall have the
right to request a Receivables Review not more than three times in the
aggregate in any calendar year for any Origination and Servicing Party,
each such Receivables Review to be an expense of the Servicer paid out of
the Servicing Fee; and provided, further, that, (A) after the occurrence
and during the continuance of a Early Amortization Event or an Unmatured
Early Amortization Event or during the period in which the most recent
quarterly servicing report delivered pursuant to Section 3.7 discloses a
material exception, such Receivables Reviews shall be conducted during
regular business hours upon not less than two Business Days' prior notice,
and (B) after the occurrence and during the continuance of a Early
Amortization Event or an Unmatured Early Amortization Event or during the
period in which the most recent quarterly servicing report delivered
pursuant to Section 3.7 discloses a material exception, there shall be no
limitation on the number of Receivables Reviews that are conducted by or
on behalf of the Trustee or any Required Person and all such Receivables
Reviews shall be an expense of the Servicer paid out of the Servicing Fee.
Transferor hereby irrevocably authorizes the Trustee, for the
benefit of the Certificateholders, to exercise its rights under Section
6.1(c) of the Purchase Agreement. Any Receivables Reviews that the
Trustee conducts pursuant to Section 6.1(c) of the Purchase Agreement,
under such authorization, shall be conducted concurrently with the
Receivables Reviews with respect to the related Seller that the Trustee
conducts pursuant to this Section 3.5(b). Prior to the occurrence and
continuance of a Early Amortization Event or an Unmatured Early
Amortization Event, the Trustee may conduct no more than three separate
reviews in the aggregate in any calendar year per Origination and
Servicing Party for all reviews conducted pursuant to this Section 3.5(b)
and Section 6.1(c) of the Purchase Agreement. Transferor hereby agrees
that it shall not exercise its rights to conduct any Receivables Review
pursuant to Section 6.1(c) of the Purchase Agreement unless the Trustee,
as the assignee of Transferor pursuant to Section 2.1(a)(iii) hereof,
shall, at the direction of any Required Person, have given its prior
written consent to Transferor's conducting such review; provided that, as
between Transferor and the Trustee, Transferor hereby agrees that it shall
not request the right to conduct, on its own behalf and for its own
benefit, the first Receivables Review in any calendar year. If the
Trustee consents to the conduct of any second Receivables Review by
Transferor pursuant to Section 6.1(c) of the Purchase Agreement, then such
review by Transferor shall be an expense of the Servicer paid out of the
Servicing Fee.
The Trustee shall not be responsible for failing to conduct a
Receivables Review meeting the conditions of this Section 3.5(b) as a
result of any breach of this Section 3.5(b) by any Origination and
Servicing Party.
(c) Daily Reports. Prior to 11:00 a.m., New York City time, on
each Business Day, Servicer shall prepare and deliver to Trustee (and each
Required Person upon its request) a report relating to each outstanding
Series, substantially in the form specified by the applicable Supplement
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 as of the end of business on the preceding Business Day.
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(d) Monthly Report. Prior to 11:00 a.m., New York City time, on
each Report Date, Servicer shall prepare and deliver to Trustee, the
Rating Agencies and each Required Person a report relating to each
outstanding Series, substantially in the form specified by the applicable
Supplement or in such other form as is reasonably acceptable to Trustee
and Servicer (each such report being a "Monthly Report").
(e) Notice of Seller Change Events; Supplements to Monthly
Reports. Section 1.7 of the Purchase Agreement describes circumstances
under which additional Sellers may be added to the Program (such event
being a "Seller Change Event"). Such Section of the Purchase Agreement
requires ICP to give written notice to Transferor of the occurrence of a
Seller Change Event not less than 30 days prior to the occurrence thereof,
and Transferor hereby agrees to give prompt written notice of its receipt
of any such notice to Trustee, the Rating Agencies and each Required
Person. If the notice is given to Trustee, 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, which supplement shall show the calculation (complete with the
historical and/or pro forma receivables data necessary to do such
calculation) of (A) the Required Receivables and the applicable reserve
ratios (as described in each Supplement) to reflect the addition of
accounts receivable originated by any Person that is being added to the
Program as a Seller, and (B) the Loss Discount and the Purchase Discount
for any such Person that is being added to the Program 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 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 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, the
Rating Agencies and each Required Person 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;
SEC Reports. (a)(i) On or before 45 days after the end of each fiscal
semi-annual period of Transferor beginning with Transferor's fiscal semi-
annual period ending December 31, 1996, Servicer shall, as an expense of
Servicer paid out of the Servicing Fee, cause Coopers & Xxxxxxx L.L.P. or
another firm of independent certified 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, Transferor and each Required Person (which report shall
be addressed to Trustee and each Required Person and shall relate to
Transferor's most recently ended fiscal semi-annual period). 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 semi-annual period.
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(ii) Each accountants' report shall state that the accountants
have compared the amounts contained in the Monthly Reports and a
reasonable sample randomly selected from all Daily Reports delivered to
Trustee during the period covered by the report with the 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, a copy of the report may be
obtained by any Investor Certificateholder by a request in writing to
Trustee addressed to the Corporate Trust Office.
(b) Promptly and in any event within two Business Days after the
filing of such reports (if any) with the Securities and Exchange
Commission, ICP shall provide the Trustee, each of the Rating Agencies and
each Required Person with copies of each Quarterly Report on Form 10-Q,
Annual Report on Form 10-K and Report of Form 8-K of ICP. If ICP ceases
to be required to file such reports, or if for any other reason such
reports are not filed, with the Securities and Exchange Commission, ICP
shall provide the Trustee, each of the Rating Agencies and each Required
Person (x) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of ICP, copies of the unaudited consolidated
balance sheets of ICP and its consolidated Subsidiaries as at the end of
the fiscal quarter and the related unaudited statements of earnings and
cash flows, in each case for the fiscal quarter and for the period from
the beginning of the fiscal year through the end of such fiscal quarter,
prepared in accordance with GAAP consistently applied throughout the
periods reflected therein and certified (subject to year end adjustments
and the omission of footnotes) by the chief financial officer or chief
accounting officer of ICP and (y) as soon as possible and in any event
within 90 days after the end of each fiscal year of ICP, a copy of the
audited consolidated balance sheet of ICP and its consolidated
Subsidiaries as at the end of the fiscal year and the related statements
of earnings, stockholders' equity and cash flows of ICP and its
consolidated Subsidiaries for the fiscal year, setting forth in each case
in comparative form for the corresponding figures for the preceding fiscal
year and prepared in accordance with GAAP consistently applied throughout
the periods reflected therein, certified, without Impermissible
Qualification, by Coopers & Xxxxxxx L.L.P. (or another firm of independent
certified public accountants that is generally recognized as being among
the "big six" as shall be selected by ICP (which may also render other
services to Servicer, the Sellers or Transferor).
(c) Promptly upon the receipt thereof, ICP shall provide the
Trustee, each of the Rating Agencies and each Required Person with copies
of all "management letters" received by ICP or any of its Subsidiaries
from their independent accountants.
SECTION 3.8 Rights of Trustee. (a) Trustee has the exclusive
dominion and control over the Bank Accounts, and 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.
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(b) At any time following the designation of a Servicer other
than the Initial Servicer:
(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 Trust's ownership of the Receivables and
the other Transferred Assets to each Obligor and direct that
payments be made directly to Trustee or its designee.
(iv) Transferor shall, and shall cause the Sellers to,
at Trustee's request, (A) assemble all of the Records that are
necessary or appropriate to collect the Receivables and other
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 payments 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 other payments, duly
endorsed or with duly executed instruments of transfer, if
applicable, 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 (including computer programs, tapes and disks,
and purchase orders, invoices and other agreements related to the
Receivables and the Related Transferred Assets).
(c) Each of Transferor and Servicer hereby authorizes Trustee,
from time to time after the designation of a Servicer other than the
Initial Servicer, 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 other 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 other 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 the Initial Servicer,
to take (subject to Section 11.14 hereof) 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:
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(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 other Transferred
Asset or otherwise to enforce the rights of Trustee and the
Certificateholders with respect to any of the Receivables or any
other 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 the Initial Servicer.
Anything herein to the contrary notwithstanding:
(a) If at any time the Initial Servicer shall not be
Servicer, the Initial Servicer 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
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 the Initial
Servicer 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. The Initial Servicer 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 the Initial Servicer all steps
necessary or appropriate to endorse, negotiate or otherwise
realize on any writing or other right of any kind held or
transmitted by the Initial Servicer or transmitted and received
by Trustee (whether or not from the Initial Servicer) in
connection with any Receivable or other Transferred Asset.
(b) In addition, if at any time the Initial Servicer
shall not be Servicer, the Initial Servicer shall act (if the
Successor Servicer so requests) as the data processing agent of
Servicer and, in such capacity, the Initial Servicer shall
conduct (and shall cause any other necessary Persons to conduct)
the data processing functions of the administration of the
Receivables, the other Transferred Assets and the Collections
thereon in substantially the same way that the Initial Servicer
(or its Sub-Servicers) conducted such data processing functions
while the Initial Servicer acted as Servicer. The Initial
Servicer
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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 the Initial
Servicer as Servicer hereunder, the Initial Servicer 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 Public Notices and any other necessary documents relating to the
right, title and interest of Trustee in, to and under 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.
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. 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 and funds on deposit in the Transaction
Accounts allocable to Investor Certificateholders of such Series. Unless
the applicable Supplement provides otherwise, the Investor Certificates
of any Series or class shall not represent any interest in any funds
allocable to any other Series. The Transferor Certificate shall represent
an interest in the Trust (the "Transferor Interest") consisting of the
right to receive
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current and deferred transfer payments in respect of the various Series
outstanding from time to time at the times and in the amounts specified
in the related Supplements.
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, the following accounts:
(i account no. 67-7584-70-8, 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;
(ii account no. 67-7584-71-6, which shall be called the
"Carrying Cost Account" and into which funds shall be allocated
from time to time to cover Carrying Costs of each Series
(including interest payable on, and the Servicing Fee allocated
to, each Series);
(iii account no. 67-7584-72-4, which shall be called
the "Equalization Account" and into which funds may from time to
time be transferred from the Master Collection Account to
compensate for fluctuations in the Base Amounts for the
outstanding Series; and
(iv account no. 67-7584-73-2, which shall be called the
"Principal Funding Account" and into which funds will from time
to time be transferred in anticipation of distributions to
Investor Certificateholders on account of their respective
principal investments.
(b In addition, if an Early Amortization Period occurs with
respect to any Series, 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.
(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 to be established
(unless otherwise indicated in such Supplement) are collectively called
the "Transaction Accounts." Each of the Transaction Accounts shall be
established and maintained as a segregated trust account maintained at a
bank with a long-term senior unsecured debt rating of at least "A" and
shall bear a designation clearly indicating that funds deposited therein
are held for the benefit of the Certificateholders. If any Transaction
Account ceases to be a segregated trust account maintained at a bank with
a long-term senior unsecured debt rating of at least "A", Servicer shall
cause Trustee to open a substitute Transaction Account that is a
segregated trust account maintained at a bank with a long-term senior
unsecured debt rating of at least "A" and transfer the funds in the
existing Transaction Account to the substitute Transaction Account, and
thereafter all references in any Transaction
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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. 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. Funds allocated to the Carrying Cost Account, the
Equalization Account, the Principal Funding Account and any Holdback
Account pursuant to any Supplement shall be allocated to the applicable
Series' sub-account and shall be available solely to the holders of the
Certificates in that Series, except to the extent that such funds are
subsequently reallocated to another Series, or to the Transferor, in
accordance with the terms of the applicable Supplement and this Agreement.
Any additional Transaction Accounts established pursuant to any Supplement
shall be held by Trustee for the benefit of only the related Series.
(e Trustee shall possess (for its benefit and for the benefit
of the Certificateholders) 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. 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 unless such right to deduct is expressly provided for
in a Transaction Document.
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 funds that are required to be
returned to Related Persons (or their designees) or Lockbox Banks pursuant
to Sections 3.2(b) and 3.3(b)) since the preceding Business Day and shall
allocate to each outstanding Series 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. The portion of such funds
allocated to any Series shall be further allocated and otherwise dealt
with in accordance with the terms of the related Supplement. In addition,
funds initially allocated to a Series on any Business Day that are
designated as Shared Investor Collections shall be reallocated to other
Series pro rata based upon the respective Shortfalls (if any) of the other
Series.
(b Allocation of Write-Offs and Dilution. In each Monthly Report
relating to a Series 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 3.3 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 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.
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SECTION 4.4 Investment of Funds in Transaction Accounts. On any
day when funds on deposit in any Transaction Account exceed $10,000 (after
giving effect to the allocations of such funds required by this Article
IV and the various Supplements), and at such other times as investment is
practicable, Trustee, at the direction of Servicer, 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. 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. All Eligible Investments in each Transaction Account shall mature
not later than the next succeeding Distribution Date (or such other date
or dates as may be specified in the applicable Supplement). 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
negligence of Trustee or willful misconduct by Trustee, 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, judgment, warrant of attachment, execution or similar
process, Trustee shall (notwithstanding any other provision of the
Transaction Documents) promptly notify Transferor, Servicer and the
Certificateholders 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
SECTION 5.1 Distributions. DISTRIBUTIONS SHALL BE MADE, AND
REPORTS SHALL BE PROVIDED, TO CERTIFICATEHOLDERS AS SET FORTH IN THE
APPLICABLE SUPPLEMENT.
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
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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.
Notwithstanding any other provision of this Agreement, unless
otherwise specified in the applicable Supplement or on the face of any
Certificate, no transfer, assignment or other conveyance of, or sale of
any interest in a Certificate shall be made unless, after giving effect
thereto, there shall be no more than 20 Private Holders of Subject
Instruments, as reasonably determined by the Transferor. Any attempted
transfer, assignment, conveyance, participation or subdivision in
contravention of the preceding restrictions, as reasonably determined by
the Transferor, shall be void ab initio and the purported transferor,
seller or subdivider of such Certificate shall continue to be treated as
the Certificateholder of any such Certificate (or interest therein) for
all purposes of this Agreement.
Each Certificate shall be issued as a Definitive Certificate and
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 Trust 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 Trust (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 substantially in the form provided for herein 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 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.
SECTION 6.2 Authentication of Certificates. Contemporaneously
with the initial assignment and transfer of Receivables and other
Transferred Assets to the Trust, 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
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")
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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,
transfers and exchanges of the Certificates and the allocation of payments
as herein provided. Transferor hereby appoints Trustee as the initial
Transfer Agent and Registrar.
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, Servicer and each Required Person;
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 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,
Trustee and each Required Person 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, and each Required Person a Tax
Opinion for each outstanding Series of Investor Certificates.
(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
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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 canceled and disposed of in a manner satisfactory to
Trustee.
The Investor Certificateholders may, with the consent of the
Agent, provide notice to the Trustee as to whom and in what manner payment
should be made in respect of the Investor Certificates held by such
Investor Certificateholders and the Trustee shall make payment of amounts
to which such Investor Certificateholder is entitled in such manner.
(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) Unless otherwise provided in the applicable Supplement,
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 and, prior to the proposed sale, transfer or disposition,
the Certificateholder and the proposed transferee each provide Trustee and
Transferor with representations and, if requested by Trustee or
Transferor, an Opinion of Counsel 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.
(g) No transfer of a Certificate shall be made unless the
Trustee and the Transfer Agent and Registrar shall have received either
(i) a representation letter from the proposed transferee of such
Certificate to the effect that such proposed transferee is not an employee
benefit plan subject to the fiduciary responsibility provisions of ERISA,
or Section 4975 of the Code, or a Person acting on behalf of any such plan
or using the assets of any such plan or if the proposed transferee is an
insurance company, a representation that the proposed transferee is an
insurance company which is purchasing such certificates with funds
contained in an "insurance company general account" (as such term is
defined in section v(e) of prohibited transaction class exemption 95-60
("ptce 95-60")) and that the purchase and holding of such certificates are
covered under ptce 95-60, which representation letter shall not be an
expense of the Trust, Trustee, the Transfer Agent and Registrar, the
Servicer or the Transferor or (ii) in the case of any such certificate
presented for registration in
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the name of an employee benefit plan subject to the fiduciary
responsibility provisions of ERISA, or Section 4975 of the Internal
Revenue Code (or comparable provisions of any subsequent enactments), or
a trustee of any such plan or any other Person who is using the assets of
any such plan to effect such acquisition, an opinion of counsel, in form
and substance reasonably satisfactory to, and addressed and delivered to,
the Trustee, the Transfer Agent and Registrar and the Transferor, to the
effect that the purchase or holding of such Certificate will not result
in the assets of the Trust estate being deemed to be "plan assets" and
subject to the fiduciary responsibility provisions of ERISA or the
prohibited transaction provisions of the Internal Revenue Code, will not
constitute or result in a prohibited transaction within the meaning of
Section 406 or Section 407 of ERISA or Section 4975 of the Internal
Revenue Code, and will not subject the Trust, the Trustee, the Transfer
Agent and Registrar, the Servicer or the Transferor to any obligation or
liability (including obligations or liability under ERISA or Section 4975
of the Internal Revenue Code) in addition to those explicitly undertaken
in this Trust Agreement which opinion of counsel shall not be an expense
of the Trust, the Trustee, the Transfer Agent and Registrar, the Servicer
or the Transferor.
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 and Trustee such
security or indemnity as may be required by them and Transferor to hold
each of them, the Trust and Transferor 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 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 Holders of the
requisite principal amount or stated amount (as applicable) of
Certificates have given any request, demand,
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authorization, direction, notice, consent or waiver hereunder,
Certificates 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 that Trustee knows to be so owned shall be so disregarded.
Certificates 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 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. Trustee hereby appoints the Paying Agent as
its agent to make distributions to Certificateholders pursuant to the
applicable Supplements and to report the amounts of the distributions to
Trustee. Any Paying Agent shall have the revocable power to withdraw funds
from the Master Collection Account for the purpose of making the
distributions. Trustee or, at any time when Trustee is also the Paying
Agent, Trustee may revoke such power of the Paying Agent and remove the
Paying Agent if Trustee (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, Rating Agencies and the Investor
Certificateholders. 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 each Required Person, which appointment shall be effective
on the date on which the Person so appointed gives Certificateholders
written notice that it accepts the appointment and on which each Required
Person gives written consent to such 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 in trust for the benefit of the
Certificateholders entitled thereto until the sums shall be paid to the
Certificateholders. 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 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 as of the most recent Distribution
Date. If 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 (the "Applicant") applies in writing to Trustee, and
the application states that the Applicant desires to communicate with
other Certificateholders with respect to their rights under this
Agreement, any Supplement or the Certificates and is accompanied by a copy
of the communication that the Applicant proposes to transmit, then
Trustee, after having been adequately indemnified by the
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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 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 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
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, 11.3 and 11.4 shall
be applicable to any authenticating agent as if the references in the
applicable provisions thereof to "Trustee" were references to the
authenticating agent.
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(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:
"This is one of the Certificates described in the Supplement dated
as of __________ ___, 199_.
LASALLE NATIONAL BANK, 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 that, for purposes of Federal, state and
local income and franchise taxes and other taxes measured by or imposed
on income, the Investor Certificates will be treated as evidence of
indebtedness secured by the Transferred Assets and the Trust will not be
characterized as an association or publicly traded partnership taxable as
a corporation. Transferor, by entering into this Agreement, and each
Investor Certificateholder, by its acceptance of its Investor Certificate,
agrees 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. (a)
Transferor may from time to time issue and direct Trustee to authenticate
one or more classes of any newly issued Series of Investor Certificates
(a "New Issuance") if (i) each Required Person shall have given their
prior written consent, and (ii) each Rating Agency after notice of such
contemplated issuance of additional series of Certificates, shall have
confirmed the initial rating of the then-issued and outstanding series of
Certificates that were rated by such Rating Agency. In addition, to the
extent permitted for any Series of Investor Certificates as specified in
the related
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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 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) and (ii) its interest rate (or the method for allocating
interest payments or other cash flows to the Series), 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 and each Required Person) 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) a Tax Opinion for each outstanding Series of
Investor Certificates with respect to such Issuance;
(iii) evidence that the Modification Condition has been
satisfied with respect to such Issuance (unless such Issuance
occurs on the First Issuance Date);
(iv) for any Issuance occurring after 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 Date, of any existing
Investor Certificates with funds (including 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;
(v) 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;
(vi) in the case of an Investor Exchange, any Investor
Certificates that are being exchanged in connection therewith;
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(vii) any other documents, certificates and Opinions
of Counsel as may be required by the applicable Supplement; and
(viii) an Officer's Certificate of Servicer to the
effect that all conditions specified in clauses (i) through (ix)
of this subsection (c) have been satisfied.
Upon satisfaction or waiver of the conditions for any Issuance, Trustee
shall cancel any Investor Certificates that are to be cancelled in
connection with such Issuance 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 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 interest payment date or dates and the date or dates from
which interest shall accrue, (vii) 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 accrue and the
method for allocating write-offs, (viii) the names of any accounts to be
used by the Series and the terms governing the operation of any such
account, (ix) the base rate applicable to the Series, (x) the terms on
which the Certificates of the Series may be repurchased or remarketed to
other investors, (xi) any deposit into any account provided for the
Series, (xii) the number of classes of the Series, and if more than one
class, the rights and priorities of each class, (xiii) whether any fees,
breakage payments or early termination payments will be included in the
funds available to be paid for the Series, (xiv) the subordination of the
Series to any other Series, (xv) whether the Series will be a part of a
group or subject to being paired with any other Series, (xvi) whether the
Series will be prefunded and (xvii) 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
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.
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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 for the
benefit of the Trustee and the Certificateholders that:
(a) Organization and Good Standing. Transferor is a
limited liability company duly organized and validly existing and
in good standing under the laws of its jurisdiction of
organization 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 limited
liability company (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.
(c) Power and Authority. Transferor has (i) all
necessary organizational 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 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 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 to be signed by Transferor 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 formation
or limited liability company agreement or (B) any 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
pursuant to the terms of any such contract, indenture, loan
agreement, mortgage, deed of trust, or other agreement or
instrument, other than 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,
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administrative agency or other governmental instrumentality
having jurisdiction over it or any of its properties.
(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 Trust, the issuance of the
Certificates 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 materially and
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 materially and
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 actions, suits, proceedings and
investigations would have a reasonable likelihood of having a
Material Adverse Effect.
(g) Third Party Approvals. All authorizations, consents,
orders and approvals of, or other action by, any Governmental
Authority or other third party that are required to be obtained
by Transferor, and all notices to and filings with any
Governmental Authority or other third party, 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 Trust 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, notice or filing,
individually or in the aggregate for all such failures, would not
have a substantial likelihood of having a Material Adverse
Effect.
(h) Offices. Transferor's principal place of business
and chief executive office is, and since the date of its
organization 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
Account Banks are specified in Schedule 1 or, after the First
Issuance Date, have been provided by Servicer to Trustee pursuant
to Section 3.3(c), and the account numbers of the Bank Accounts
at such Account Banks have been specified in a letter provided on
or prior to the First Issuance Date to Trustee or, 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
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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.
(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, by 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 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) Transferor will not incur any material indirect
or overhead expenses for items shared between Transferor and any
Affiliate 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.
(p) Transferor will account for and manage its
liabilities separately from those of every other Affiliate,
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.
(q) Transferor will conduct its business at an office
segregated from the offices of each of its Affiliates, which
office of Transferor may consist of office space shared with an
Affiliate, a portion of which is allocated solely to Transferor.
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(r) Transferor will maintain corporate or company
records, books of account and stationery separate from those of
every Affiliate.
(s) Transferor's assets will be maintained in a
manner that facilitates their identification and segregation from
those of any Affiliate.
(t) Transferor will 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 any
Affiliate.
(u) any transaction between Transferor and any
Affiliate will be the type of transaction which would be entered
into by a prudent Person in the position of Transferor with an
Affiliate, and will be on terms that are at least as favorable as
may be obtained from a Person that is not an Affiliate.
(v) neither Transferor nor any Affiliate will be or
will hold itself out to be responsible for the debts of the
other.
(w) Transferor will operate, conduct its business and
otherwise act in a manner that is consistent with the factual
assumptions in each legal opinion delivered in connection with
any Series.
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 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
Noncomplying 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 within the time limit specified under such
sections, 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 remain outstanding (other than any Investor Certificates
payment for which has been duly provided for in accordance with this
Agreement), Transferor shall, unless each Required Person shall otherwise
consent in writing:
(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 failures,
would have a substantial likelihood of having a Material Adverse
Effect.
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(b) Preservation of Organizational Existence. Preserve
and maintain its status and existence as a limited liability
company, rights, franchises and privileges in the jurisdiction of
its organization, and qualify and remain qualified in good
standing as a foreign limited liability company 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 principal
place of business and chief executive offices within the United
States of America.
(d) Reporting Requirements of Transferor. Furnish to
Trustee, the Investor Certificateholders and the Rating Agencies:
(i) Early Amortization Events. As soon as
possible, and in any event within two 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 two 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,
(iii) Proceedings. As soon as possible and in
any event within two Business Days after an Authorized
Officer of Transferor has knowledge thereof, written
notice of (A) any litigation, 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 litigation, 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 or a Required Person may from time
to time reasonably request in order to protect the
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interests of Trustee, the Trust or the Investor
Certificateholders under or as contemplated by this
Agreement.
(e) Adverse Claims. Except for any conveyances under the
Transaction Documents, not permit to exist any Adverse Claim
(other than Permitted Adverse Claims) to or in favor of any
Person upon or with respect to, or cause to be filed any
financing statement or equivalent document relating to perfection
that covers, any Transferred Asset or any interest therein.
Transferor shall defend the right, title and interest of the
Trust 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 (i) extend, amend
or otherwise modify the terms of any Receivable or Contract
(except as permitted by the Credit and Collection Policy) in a
manner that would have a material adverse effect on the Investor
Certificateholders, or (ii) permit any Seller to make any change
in its Credit and Collection Policy that would have a material
adverse effect on the Investor Certificateholders; provided that
Transferor or Servicer, as applicable, may change the terms and
provisions of the Credit and Collection Policy if the change is
made with the prior written approval of each Required Person, and
the Modification Condition is satisfied with respect thereto.
(g) Mergers, Acquisitions, Sales, Etc. Not:
(i) (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) except
pursuant to the Transaction Documents, directly or
indirectly, sell, transfer, assign, convey, lease, pledge
or grant a security interest in, whether in one
transaction or in a series of transactions, all or any
part of its assets, or sell or assign with or without
recourse any Receivables or Related Transferred Assets
(other than as provided in the Transaction Documents);
(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) make any loan or advance to any Person
other than for reasonable and customary operating
expenses; or
(iii) create any direct or indirect Subsidiary
or otherwise acquire direct or indirect ownership of any
equity interests in any other Person.
(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 (i)
shall have given the Servicer and the Trustee 30 days' prior
written notice thereof, (ii)
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shall have received written consent from the Trustee (at the
direction of the Required Persons) and (iii) shall have filed (or
shall have caused to be filed) any Public Notices as Servicer or
Trustee determines may be necessary to continue the perfection of
the Trust's interest in the Receivables, the Related Transferred
Assets and the proceeds thereof.
(i) Amendment of Certificate of Formation or Limited
Liability Company Agreement; Change in Business. Not amend its
certificate of formation or its limited liability company
agreement, or engage in any business other than as contemplated
by the Transaction Documents, unless (i) the Modification
Condition has been satisfied in connection with the amendment or
change in Transferor's business and (ii) Transferor shall have
received the written consent of the Trustee (at the direction of
the Required Persons).
(j) Amendments to Purchase Agreement. The Transferor
will not (i) cancel or terminate the Purchase Agreement or
consent to or accept any cancellation or termination thereof,
(ii) amend or otherwise modify any term or condition of the
Purchase Agreement or give any consent, waiver or approval
thereunder, (iii) waive any default under or breach of the
Purchase Agreement or (iv) take any other action under the
Purchase Agreement not required by the terms thereof.
(k) Enforcement of Transaction Documents. Perform all
its obligations under and otherwise comply with the Transaction
Documents and will enforce the covenants and agreements of each
of the Sellers in the Purchase Agreements and the other
Transaction Documents to which Transferor is a party, unless
instructed otherwise by Trustee or by Trustee at the direction of
the Required Persons in connection with the exercise of the
Trustee's rights pursuant to its security interest in
Transferor's right, title and interest in, to and under the
Transaction Documents to which Transferor is a party.
(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 $10,000 in any of its fiscal
quarters, and (D) other liabilities for expenses that are owed to
a Related 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.
(m) Separate Organization Existence. Hereby acknowledge
that Trustee and the Investor Certificateholders 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. Therefore, from and after the First Issuance Date,
Transferor shall take all reasonable steps to maintain its
existence
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as an organization separate and apart from Servicer, each Seller
and any other Related 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 Related 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 ICP will
pay all expenses owing by Transferor or any Related
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 Related
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 Related
Person, which office of Transferor may consist of office
space shared with a Related Person, a portion of which
is allocated solely to Transferor.
(iv) Transferor will maintain corporate or
company records, books of account and stationery separate
from those of every Related Person.
(v) Any annual financial statements of any
Related Person that are made publicly available and which
are consolidated to include Transferor will contain
footnotes stating that ICP and certain other Subsidiaries
of ICP have sold Receivables and indicating that the
assets of Transferor will not be available to ICP 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 Related 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 a Related
Person.
(viii) Any transaction between Transferor and
any Related Person will be the type of transaction which
would be entered into by a prudent Person in the position
of Transferor with a Related Person, and will be on terms
that are at
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least as favorable as may be obtained from a Person that
is not a Related 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 Related Person
will be or will hold itself out to be responsible for the
debts of the other.
(x) Transferor will operate, conduct its
business and otherwise act in a manner that is consistent
with the factual assumptions in each Bankruptcy Opinion
delivered in connection with any Series.
(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 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) Maximum Exposure Amount. Not permit the aggregate
outstanding principal amount of the Buyer Notes to exceed the
Maximum Exposure Amount.
The covenants 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 covenants, the party discovering the breach shall
give written notice to the other parties to this Agreement within two
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 Noncomplying 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 within the time limit
specified under such sections, then no breach shall be deemed to have
occurred under this Agreement. Trustee's obligation in respect of
discovering any breach are limited as provided in Section 11.2(g).
SECTION 7.3 Indemnification by Transferor. (a) Without limiting
any other rights which any Indemnified Party may have hereunder or under
applicable law, Transferor hereby agrees to indemnify and hold harmless
the Trust, Trustee and each Certificateholder and each of the successors,
permitted transferees and assigns of any such Person and all officers,
directors, shareholders, controlling Persons, employees, affiliates and
agents of any of the foregoing (each of the foregoing Persons being
individually called an "Indemnified Party"), forthwith on demand, from and
against any and all damages, losses, claims (whether on account of
settlement or otherwise, and whether or not the relevant Indemnified Party
is a party to any action or proceeding that gives rise to any Indemnified
Losses (as defined below)), judgments, liabilities and related reasonable
costs and expenses (including reasonable attorneys' fees and
disbursements) (all of the foregoing being collectively called
"Indemnified Losses") awarded
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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 this Agreement, any other Transaction Document
or any of the transactions contemplated herein or therein or the use of
proceeds herefrom or therefrom.
Notwithstanding the foregoing (and with respect to clause (b)
below, without prejudice to the rights that the Trustee may have pursuant
to the other provisions of this Agreement or the provisions of any of the
other Transaction Documents), 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 such
Indemnified Party's officers, directors, employees, affiliates or agents),
(b) to the extent the same 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 such
Indemnified Losses are or result from lost profits, or (d) to the extent
such Indemnified Losses are or result from taxes asserted with respect to
(i) distributions on the Investor Certificates (other than any withholding
taxes, if and to the extent that (A) such withholding taxes should have
been (but in fact were not) withheld and paid over by the Trust to the
relevant taxing authority, (B) such taxing authority asserts a claim for
such withholding taxes against the Trust or the Transferor, and (C) the
assets of the Trust are insufficient to satisfy such claim at the time a
final determination is made that such withholding taxes are due and
payable) and (ii) federal or other income taxes on or measured by the net
income of such Indemnified Party.
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 such loss, claim, damage or liability in
such proportion as is appropriate to reflect not only the relative
benefits received by such Indemnified Party on the one hand and Transferor
on the other hand, but also the relative fault of such 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 and to the extent that
the Transferor has funds available to pay such amounts or funds are
allocated thereafter to the Transferor pursuant to the provisions of a
Supplement 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 Sec. 101 of the Bankruptcy Code) against or organizational
obligation of Transferor for any such insufficiency.
In addition, Transferor agrees to indemnify Trustee and each of
its successors, permitted transferees and assigns, officers, directors,
shareholders, employees, affiliates and agents, and hold them harmless
against, any and all losses, liabilities, damages, claims or expenses
incurred by any of them in connection with the Transaction Documents or
in the exercise or performance of any of the powers or duties of Trustee
hereunder.
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(b) Transferor shall be liable to all creditors of the Trust for
all liabilities of the Trust to the same extent as it would be if the
Trust constituted a partnership under the Delaware Revised Uniform Limited
Partnership Act and Transferor were a general partner thereof (to the
extent Transferred Assets remaining after Investor Certificateholders 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 (other than Trustee automatically appointed as
Successor Servicer pursuant to Section 10.2) 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:
(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.
(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 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.
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(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 (excluding any such agreement that
is terminated on or before the First Issuance Date or under which
Servicer has obtained all necessary consents) 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.
(f) Approvals. All authorizations, consents, orders and
approvals of, or other action by, any Governmental Authority 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 (other than the filing of the UCC financing
statements referred to in Section 2.3(a)(ii)(A), all of which, at
the time required in Section 2.3(a)(ii)(A), will be duly made),
except where the failure to obtain or make such authorization,
consent, order, approval, notice or filing, individually or in
the aggregate for all such failures, would not have a substantial
likelihood of having 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 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 and
investigations would have a reasonable likelihood of having a
Material Adverse Effect.
(h) [Reserved.]
(i) In addition to the servicing reports required to
be delivered pursuant to Section 3.7(a), on or before 60 days
after the end of the third fiscal quarter in 1996, Servicer
shall, as an expense of Servicer paid out of the Servicing Fee,
cause Coopers & Xxxxxxx L.L.P. or another firm of independent
certified public accountants that is
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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 and Transferor (which
report shall be addressed to Trustee and the Purchasers and shall
relate to the period from the Closing Date to the last day of the
most recently ended fiscal quarter). The accountant's report
shall set forth the results of its performance of the procedures
described in Exhibit D hereof with respect to the Monthly Reports
and Daily Reports delivered to Trustee pursuant to Section 3.5
during the period covered by such accountant's report.
(j) The accountant's report described in clause (i)
shall state that the accountant has compared the amounts
contained in the Monthly Reports and a sample randomly selected
from all Daily Reports delivered to Trustee during the period
covered by the report with the 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 it believes
to be immaterial and such other exceptions as shall be set forth
in the report. A copy of the report may be obtained by a Holder
by a request in writing to Trustee addressed to the Corporate
Trust Center.
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 and each Required Person 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 remain outstanding (other than any Investor Certificates
payment for which has been duly provided for in accordance with this
Agreement), 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 with all applicable
laws, rules, regulations, judgments, decrees and orders.
(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 in which the ownership or lease of property or
the conduct of its business requires such qualification, licenses
or approvals.
(c) Notice. As soon as possible (and in any event within
two Business Days after an Authorized Officer has knowledge
thereof), furnish to Transferor, Trustee, the Investor
Certificateholders and the Rating Agencies notice of any of the
events described in clauses (i), (ii) and (iii) of Section
7.2(d).
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(d) Location of Offices. Maintain at all times its
principal place of business and chief executive office in the
United States of America.
The covenants set forth in this section shall survive the transfer and
assignment of the Transferred Assets to the Trust. 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 and each Required Person within two
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 and each Required Person 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.
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 (and with respect to clause (b)
below, without prejudice to the rights that such Indemnified Party may
have pursuant to the other provisions of this Agreement or the provisions
of any of the other Transaction Documents), 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 such Indemnified Party's officers, directors, employees,
affiliates or agents), (b) to the extent the same includes 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, (c) to the
extent such Indemnified Losses are or result from lost profits (other than
breakage payments or early termination payments), or (d) to the extent
such Indemnified Losses are or result from taxes (including interest and
penalties thereon) asserted with respect to (i)
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distributions on the Investor Certificates or (ii) federal or other income
taxes on or measured by the net income of such 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 such
Indemnified Party as a result of such loss, claim, damage or liability in
such proportion as is appropriate to reflect not only the relative
benefits received by such Indemnified Party on the one hand and Servicer
on the other hand, but also the relative fault of such 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 Limitation on Liability of Servicer and Others.
Servicer shall not be under any obligation to appear in, prosecute or
defend any legal action that is not incidental to its duties to service
the Receivables in accordance with this Agreement or any Supplement that
in its reasonable opinion may involve it in any expense or liability.
Servicer may, in its sole discretion, undertake any legal action relating
to the servicing, collection or administration of Receivables and Related
Transferred Assets that it may reasonably deem necessary or appropriate
for the benefit of the Certificateholders with respect to this Agreement
and the rights and duties of the parties hereto and the interests of the
Certificateholders hereunder.
ARTICLE IX
EARLY AMORTIZATION EVENTS; TERMINATION BY SELLERS
SECTION 9.1 Early Amortization Events. The Early Amortization
Events with respect to each Series shall be specified in the related
Supplement.
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 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 Investor Certificateholders
pursuant to (and subject to the limitations specified in) Section 11.14.
SECTION 9.3 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 9.3) 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 an Authorized Newspaper that a
Bankruptcy Event has occurred with respect to Transferor, that
the Trust has terminated, and that Trustee
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intends to sell, dispose of or otherwise liquidate the
Receivables and the Related Transferred Assets pursuant to this
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 describing the provisions of this section and
requesting each Investor Certificateholder 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 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 outstanding Series of Investor
Certificates, Trustee shall instruct Servicer to effectuate a Disposition,
and Servicer shall proceed to consummate a Disposition. If, however,
Holders representing at least a majority of interest of all Series of
Investor Certificates 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
Receivables and the Related Transferred Assets pursuant to subsection (a)
shall be treated as Collections on the Receivables and shall be allocated
and deposited in accordance with the provisions of Article IV.
(c) Trustee 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 Receivables and the Related 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 those set out in Section 11.14, pending
the completion of any Disposition and/or the reconstitution of the Trust.
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ARTICLE X
SERVICER DEFAULTS
SECTION 10.1 Servicer Defaults. Any of the following events
shall constitute a "Servicer Default":
(a) any failure by Servicer to take any action that it
is required to take in its capacity as Servicer to make any
payment, transfer or deposit required by any Transaction Document
or to give instructions or to give notice to Trustee to make such
payment, transfer or deposit, which failure continues unremedied
for three Business Days,
(b) failure on the part of Servicer duly to observe or
perform any other covenants or agreements of Servicer set forth
in this Agreement or any other Transaction Document, which
failure continues unremedied for a period of 25 Business Days
after 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,
(c) Servicer shall assign its duties under this
Agreement, except as permitted by Sections 3.1(b) and 8.3,
(d) any 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 prove to have been incorrect when made
or delivered, and continues to be incorrect in any material
respect for a period of 15 Business Days after the date on which
written notice of such failure, requiring the same to be
remedied, shall have been given to Servicer by the Trustee, or to
the Servicer and Trustee by any Investor Certificateholder, or
(e) 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 (at the direction of the Required
Investors), by notice then given in writing to Servicer (a "Termination
Notice"), shall terminate all the rights and obligations (other than
obligations of such Servicer under Sections 8.4 and 11.5) of Servicer as
Servicer under this Agreement and in and to the Receivables, the Related
Transferred Assets and the proceeds thereof.
As soon as possible, and in any event within two Business Days,
after an Authorized Officer of Servicer has obtained knowledge of the
occurrence of any Servicer Default, Servicer shall furnish Transferor,
Trustee, each Required Person and the Rating Agencies, and Trustee shall
promptly furnish each other Investor Certificateholder, notice of such
Servicer Default.
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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
(i) in so appointing any Successor Servicer, Trustee shall give due
consideration to any Successor Servicer proposed by any Required Person,
(ii) such Successor Servicer is approved by the Required Persons and (iii)
such Successor Servicer shall accept its appointment by a written
assumption in a form acceptable to Trustee and each Required Person. 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 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 Servicer hereunder.
Trustee shall give prompt notice to the Rating Agencies and each Investor
Certificateholder upon the appointment of a Successor Servicer.
(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 best 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
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Receivables and the Related Transferred Assets in the manner and at such
times as the Successor Servicer shall request. To the extent that
compliance with this Section shall require ICP or any Servicer to disclose
to the Successor Servicer information of any kind that ICP deems to be
confidential, prior to the transfer contemplated by the preceding sentence
the Successor Servicer shall be required to enter into a reasonable
confidentiality agreement which shall permit it to carry out its duties
in the best interests of the Investor Certificateholders. 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 such succession as Servicer pursuant to this Section
(including a one time up front payment payable on the first Distribution
Date following the appointment of such Successor Servicer as negotiated
between the Trustee and the Successor Servicer as reasonable compensation
for assuming the responsibilities of the Successor Servicer in an amount
not to exceed $150,000) shall be paid by the predecessor Servicer (or, if
Trustee serves as Successor Servicer on an interim basis, the preceding
Servicer) within 15 days after presentation of reasonable documentation
of the costs and expenses; provided that if the predecessor Servicer or
preceding Servicer, as the case may be, fails to make such payment within
such time, Transferor shall make such payment within five days thereafter.
(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),
and all references in this Agreement to Servicer shall be deemed to refer
to the Successor 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 Servicer or 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
Servicer or Successor Servicer to disclose to Transferor information of
any kind that the Servicer or Successor Servicer deems to be confidential,
Transferor shall be required to enter into such customary licensing and
confidentiality agreements as the Servicer or Successor Servicer shall
deem necessary to protect
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its interests. All reasonable costs and expenses (including attorneys'
fees and disbursements) incurred by Trustee, in its capacity as Successor
Servicer (including a one time up front payment payable on the first
Distribution Date following the appointment of Trustee as Successor
Servicer as determined by the Trustee as reasonable compensation for
assuming the responsibilities of Successor Servicer in an amount not to
exceed $150,000), in connection with the termination shall be paid by
Transferor within 15 days after presentation of reasonable documentation
of the costs and expenses. The Trustee may reserve and withhold from
distributions to the Transferor such amounts as it reasonably determines
may be required for the payment of such costs and expenses.
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 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 Sec. 101 of the
Bankruptcy Code) against or company obligation of Transferor for any such
insufficiency.
(e) To the extent that this Agreement or any other
Transaction Document requires the Servicer to obtain information from
another Person or to cause another Person to act or abstain from acting,
such provision shall be construed only to require a Successor Servicer to
use reasonable efforts to obtain information from another Person or to
cause another Person to act or abstain from acting.
SECTION 10.3 Notification of Servicer Default; Notification of
Appointment of Successor Servicer. Within two Business Days after an
Authorized Officer of Servicer becomes aware of any Servicer Default,
Servicer shall give written notice thereof to Transferor, Trustee, each
Required Person and the Rating Agencies, and Trustee shall, promptly upon
receipt of the written notice, give notice to the other Investor
Certificateholders at their respective addresses appearing in the
Certificate Register. Upon any termination or appointment of a Successor
Servicer pursuant to this Article X, Trustee shall give prompt written
notice thereof to the Investor Certificateholders at their respective
addresses appearing in the Certificate Register and to the Rating
Agencies.
SECTION 10.4 Waiver of Servicer Defaults. The Required Investors
may, on behalf of the Transferor and all the Holders of each Series, waive
in writing any Servicer Default hereunder and its consequences (other than
a continuing failure to pay fees or expenses owing to the Trustee) and
shall provide a copy of such written waiver to the Rating Agencies. 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.
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ARTICLE XI
TRUSTEE
SECTION 11.1 Duties of Trustee. Trustee shall have no duty
(unless it is specifically identified in this Agreement). (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 the
duties shall 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.
(b) Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to Trustee that are specifically required to be furnished to the
Trustee pursuant to any provision of this Agreement, shall examine them
to determine whether they are substantially in the form required by this
Agreement. Trustee shall give written notice to the Person who furnished
any item of the type listed in the preceding sentence of any lack of
substantial conformity of any such item to the applicable requirements of
this Agreement. In addition, Trustee shall give prompt written notice to
the Investor Certificateholders of any lack of substantial conformity of
any such instrument 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 any Required Person to take any action pursuant to this Agreement.
Within two Business Days of its receipt of any Monthly Report, Trustee
shall verify the mathematical computations contained therein (based upon
an examination of the face of the Monthly Report) and shall notify
Servicer, the Required Persons and each of the Rating Agencies of the
accuracy of such computations or of any discrepancies therein (provided
that the rounding of numbers will not constitute a discrepancy), whereupon
Servicer shall deliver to the Required Persons and the Rating Agencies
within five Business Days thereafter a certificate describing the nature
and cause of such discrepancies and the action that Servicer proposes to
take with respect thereto. During the first week of each year, Trustee
shall provide the Rating Agencies and each Required Person 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:
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(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 any Required
Person 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 covenants of Servicer set forth in Section 8.2 or (D) the
ownership of any Certificate 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 Public Notice
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 (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 Public Notice that is a UCC
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 and (z) shall,
unless it shall have received an Opinion
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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 appropriate Public
Notices that are not UCC financing statements to be filed to
continue the perfection of Transferor's or Trustee's interests in
the Receivables and the Related Assets within the requisite time
periods), (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) 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.
(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
Notwithstanding the foregoing, as Successor Servicer, Trustee
shall have no liability arising out of or resulting from any act, omission
or breach of this Agreement and of any other Transaction Document of the
terminated Servicer, Transferor or any Seller. The Successor Servicer
shall have no liability to any Certificateholder, Trustee, or to any other
Person, for any costs, expenses, losses, damages, claims and liabilities
arising out of or resulting from delays of the terminated Servicer,
Transferor, or any Seller in transmitting Records to the Successor
Servicer, permitting inspection of Records or facilities, or for any other
costs, expenses, losses, damages, claims and liabilities incurred in the
servicing transition.
(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.
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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 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, pursuant to the provisions of this Agreement,
unless such Certificateholders 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 from the Required Investors
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 or
Transferor if Servicer fails to make such payment,
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(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, representative, attorney or custodian
appointed with due care by it hereunder,
(g) except as may be required by Sections 11.1(b) and
11.1(c)(v) 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). Except as set
forth in Section 11.15, Trustee makes no representations as to the
validity or sufficiency of this Agreement, any Supplement, the
Certificates (other than the certificate of authentication on the
Certificates) 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 of the
proceeds of such Certificates, 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.
Except as provided in Section 11.1(c)(v), 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
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be distributed to Certificateholders 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 the
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 negligence
or willful misconduct, no recourse shall be had against Trustee in its
individual capacity for any claim (a "Non-Recourse Claim") based on any
provision of this Agreement, any other Transaction Document, the
Certificates, any Transferred Asset or any assignment thereof. Trustee
shall not have any personal obligation, liability, or duty whatsoever to
any Certificateholder or any other Person with respect to any Non-Recourse
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 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
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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) 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 (c) 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,
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 (a) 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 Required
Persons or (b) be removed and discharged from its obligations hereunder
by the Required Persons giving 10 days' prior written notice thereof to
Transferor, Servicer, the Rating Agencies, the Investor Certificateholders
and the Trustee. Upon receiving the notice of resignation or removal,
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 or within 10 days after the giving
of the notice of removal, the resigning or
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removed Trustee, upon notice to each Required Person, may petition any
court of competent jurisdiction to appoint a successor Trustee.
(a) 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 the Required Persons (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.
(b) 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. Any resignation or removal of Trustee, when
effective, shall terminate the Trustee in all capacities under the
Transaction Documents.
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 and the
predecessor Trustee an instrument accepting such appointment hereunder and
an instrument pursuant to which it agrees to be bound by any existing
Intercreditor Agreement, 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 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 Required Persons and 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 Required Person and
Rating Agency.
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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 and each Required Person 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, 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 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 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 or co-Trustee hereunder shall be personally
liable by reason of any act or omission of any other Trustee or
co-Trustee hereunder, and
(iii) Trustee may at any time accept the resignation of or
remove any separate Trustee or co-Trustee.
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(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 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 or co-Trustee.
SECTION 11.11 Tax Returns. No Federal income tax return shall
be filed on behalf of the Trust unless required by applicable law or any
Governmental Authority. 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 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. 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 or the other Transaction Documents may be prosecuted and
enforced by Trustee without the possession of any of the Certificates 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
in respect of which such judgment has been obtained in accordance with the
related Supplement.
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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 under this 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. Nothing herein contained shall be
deemed to authorize Trustee to authorize or consent to or accept or adopt
on behalf of any Certificateholder any plan of reorganization,
arrangement, adjustment or composition affecting the Investor Certificates
or the rights of any Holder thereof, or to authorize Trustee to vote in
respect of the claim of any Investor Certificateholder 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, 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 incurring
unreimbursed costs and expenses or personal liability or be unduly
prejudicial to the rights of the Investor Certificateholders 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,
(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
(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.
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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 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 of any change in the location of
the Certificate Register or any such office or agency.
ARTICLE XII
TERMINATION
SECTION 12.1 Termination of Trust. (a) If not earlier
terminated pursuant to Section 9.3, 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 as hereinafter set forth and the obligations of
Servicer contained in Section 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), 13.8, 13.13, 13.14 and 13.15 upon the earliest to occur of
(i) the day on which the Investor Certificateholders 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 such
Series. If, on the Distribution Date immediately prior to the Final
Scheduled Payment Date for any Series, Servicer determines that the
Invested Amount for such Series on such 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 undivided interests in
the Transferred Assets for a purchase price equal to 110% of the Base
Amount (or comparable amount) for such Series on the Final Scheduled
Payment Date for such Series (after giving effect to all distributions
required to be made on the Final Scheduled Payment Date for the Series);
provided, that the undivided interests so transferred shall not exceed the
Series Collection Allocation Percentage for such Series of the Transferred
Assets held by the Trust as of the date of transfer. 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 period,
Servicer shall determine (x) the Highest Bid and (y) the Available Final
Distribution Amount for such Series. Servicer shall sell such undivided
interests in the Transferred Assets on the Final Scheduled Payment Date
for such 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.
SECTION 12.2 Final Distribution. (a) Servicer shall give
Trustee at least 20 Business Days' prior written notice of the date on
which the Trust is expected to terminate in accordance
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with Section 12.1(a). The notice shall be accompanied by a certificate of
an Authorized Officer of Servicer setting forth the information specified
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 written notice as soon
as practicable after Trustee's receipt of notice from Servicer, which
notice shall specify (i) the Distribution Date (the "Final Distribution
Date") upon which final payment with respect to the Certificates is
expected to be made and (ii) the amount of any such final payment. 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 Final
Distribution Date, Trustee shall, based upon the Daily Report relating to
the Final Distribution Date, cause to be distributed to the
Certificateholders the amounts distributable to them on the Final
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 13.5 not more than ten Business Days after the Final Distribution
Date upon which final payment with respect to the Certificates has been
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 Paying Agent or Trustee shall pay such funds
to the Certificateholders at the time set forth in Section 12.1(a). If any
Certificateholder does not claim the portion of such funds to which it is
entitled to receive on the Final Distribution Date, interest shall cease
to accrue on its Certificate 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 Final Distribution Date, 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.
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
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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) 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 Invested Amount of the Series governed by such
Supplement is reduced to 10% or less of the initial aggregate principal
amount of the Investor Certificates of such Series, Transferor shall have
the option, upon the giving of 45 days' prior written notice to Servicer,
Trustee, each Required Person and the Rating Agencies, to repurchase the
undivided interest of such 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 such Distribution Date at the
Certificate Rate applicable to such Series. Upon tender of all outstanding
Certificates of the Series owned by a Certificateholder, Trustee shall
then distribute to such Certificateholder the portion of such amounts owed
to such Certificateholder, together with all other amounts on deposit in
the Principal Funding Account with respect to that Series that are owed
to such Certificateholder, on the next Distribution Date in repayment of
the principal amount and all accrued and unpaid interest owing to such
Certificateholder. Following the Repurchase Distribution Date, the
Certificateholders of the Series shall have no further rights with respect
to the Transferred Assets and 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 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 in
accordance with the terms of this Agreement, payments shall continue to
be made to the Certificateholders of each Series in accordance with the
terms of this Agreement.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.1 Amendment, Waiver, Etc. (a) Except to the extent
provided otherwise hereinafter in clauses (i) through (iii), the
provisions of this Agreement may be amended, modified or waived from time
to time by the Servicer, Transferor and the Trustee, with the
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consent of the Required Persons, for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment,
modification or waiver shall:
(i) reduce in any manner the amount of, or delay the
timing of, allocations, payments or distributions in respect of
the portion of the Invested Amount attributable to any Series or
class of Certificates, yield on any Series or class of
Certificates or other distributions on any Series or class of
Certificates without the consent of each Certificateholder of
such Series or class, as applicable;
(ii) adversely affect the rating of any Series or
class of Certificates by any Rating Agency without the consent of
the Certificateholders evidencing not less than a two-thirds
majority of such Series or class; or
(iii) amend, modify or waive any provision of this
Agreement which requires the approval or consent of a specified
percentage of Certificateholders without the consent of the same
percentage of Certificateholders.
The 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 Amortization Event or
default.
(b) As soon as practicable before the execution and delivery
of any amendment, consent or waiver pursuant to Section 13.1(a), but in
no event later than twenty Business Days prior to such execution and
delivery, the Servicer shall deliver a copy of such proposed amendment,
consent or waiver to the Rating Agencies and each Certificateholder.
(c) Unless the requisite percentage of a Series or class of
Certificates shall approve an amendment, consent or waiver pursuant to
Section 13.1(a)(iii) above, or the majority of the Holders of each
affected Series or class waive the requirement of this Section 13.1(c),
no such amendment to this Agreement shall become effective unless each
Rating Agency, after having reviewed such amendment, shall have confirmed
the initial rating of the then-issued and outstanding Series or class of
Certificates that were rated by such Rating Agency.
(d) Promptly after the execution of any such amendment,
consent or waiver, the Trustee shall furnish copies of such amendment or
consent to each Certificateholder, and the Servicer shall furnish copies
of such amendment or consent to the Rating Agencies.
(e) The manner of obtaining any waiver or consent given by
the Certificateholders under this Section 13.1 and of evidencing the
authorization of the execution thereof by the Certificateholders shall be
subject to such reasonable requirements as the Trustee may prescribe.
(f) If each Rating Agency shall not have confirmed the
initial rating on all the-issued and outstanding series of Certificates
rated by such Rating Agency after they have reviewed any
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amendment or modification of, or supplement to, any Purchase Agreement and
the Buyer Notes as provided in Section 7.2(j), then such amendment,
modification or supplement shall only become effective if each
Certificateholder of such Series has consented to such amendment.
(g) Each consent or waiver given by any Certificateholder in
connection with any matter described in Section 13.1 or in any other
provision of this Agreement shall be conclusive and binding on such
Certificateholder and on all future Certificateholders and of any
Certificate issued upon the transfer thereof or in exchange therefor or
in lieu thereof whether or not notation of such consent is made upon such
Certificate.
SECTION 13.2 Actions by Certificateholders. (a) By its
acceptance of Certificates pursuant to this Agreement and the applicable
Supplement, each Certificateholder 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 Certificate-
holders, 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 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 or any
Supplement to be given or taken by Certificateholders may be embodied in
and evidenced by one or more instruments of substantially similar tenor
signed by the Certificateholders 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 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
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, any Supplement 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
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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) 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 and Trustee, that no one or more
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 to obtain or seek to obtain priority
over or preference to any such other Investor Certificateholder, 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 (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 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.
SECTION 13.4 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES, EXCEPT (I) WITH RESPECT TO TRANSFEROR, TO THE
EXTENT THAT THE PERFECTION AND THE EFFECT OF PERFECTION OR NONPERFECTION
OF THE SECURITY INTERESTS OF TRUSTEE IN THE RECEIVABLES AND THE RELATED
ASSETS OF SUCH TRANSFEROR ARE GOVERNED BY THE LAWS OF A JURISDICTION (SUCH
TRANSFEROR'S "HOME STATE") OTHER THAN THE STATE OF NEW YORK AND EXCEPT
THAT WITH RESPECT TO TRANSFEROR THE CREATION OF SUCH SECURITY INTERESTS
OF
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TRUSTEE SHALL BE GOVERNED BY THE LAWS OF SUCH TRANSFEROR'S HOME STATE.
SECTION 13.5 Notices. All demands, notices, instructions and
communications hereunder shall be in writing and shall be deemed to have
been duly given if personally delivered, four Business Days after mailing
if mailed by registered mail, return receipt requested, or sent by
facsimile transmission (a) in the case of Transferor, to its address set
forth below its signature hereto, (b) in the case of the Initial Servicer,
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. 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 such 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 a
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 the address of the Rating Agency set forth above or at
the other address as shall be designated by the Rating Agency in a written
notice to Servicer.
SECTION 13.6 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 affect the validity or enforceability
of the other provisions of this Agreement, the Certificates or any of the
other Transaction Documents or the rights of the Certificateholders.
SECTION 13.7 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 shall not be personally liable for obligations of the
Trust, that the interests in the Trust represented by the Certificates
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 13.8 Nonpetition Covenant. Notwithstanding any prior
termination of this Agreement, each of Trustee, Servicer, Transferor, the
Paying Agent, the Authenticating Agent and the Transfer Agent and
Registrar (and each Investor Certificateholder by its acceptance of a
Certificate) 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"
so long as any Certificates issued by the Trust shall be outstanding or
there shall not have
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elapsed one year plus one day since the last day on which any such
Certificates shall have been outstanding. The foregoing shall not limit
the right of Servicer, Transferor, the Paying Agent, the Authenticating
Agent, the Transfer Agent and Registrar and any Investor Certificateholder
to file any claim in or otherwise take any action with respect to any such
insolvency proceeding that was instituted against Transferor or the Trust
by any other Person. In addition, each of Servicer, the Paying Agent, the
Authenticating Agent, the Transfer Agent and Registrar, each
Certificateholder (by its acceptance of a Certificate) 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 Receivables 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 13.9 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of Trustee or the
Investor Certificateholders, 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, remedies, powers and
privileges herein provided are cumulative and are not exhaustive of any
rights, remedies, powers and privileges provided by law.
SECTION 13.10 Counterparts. This Agreement may be executed in
any number of counterparts 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 13.11 Third-Party Beneficiaries. This Agreement will
inure to the benefit of and be binding upon the parties hereto and the
Certificateholders and their respective successors and permitted assigns.
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 13.12 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 13.13 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)
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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 any termination of this
Agreement.
SECTION 13.14 Recourse to 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 Servicer, Trustee and Certificateholders pursuant to the applicable
Supplement 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 to the extent that 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 13.15 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 are
limited in right of payment to the Transferred Assets.
SECTION 13.16 Submission to Jurisdiction. Each party hereto
hereby irrevocably (a) submits to the non-exclusive jurisdiction of any
Illinois State or Federal court sitting in Chicago, Illinois 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 each 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 the action or
proceeding, and (d) each of Transferor and Servicer irrevocably consents
to the service of any and all process in any 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.
SECTION 13.17 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 oral 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.
[Remainder of page intentionally left blank.]
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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.
INTER-CITY PRODUCTS
RECEIVABLES COMPANY, L.P.,
as Transferor
By: Inter-City Products Partner
Corporation, its general partner
By: /s/ Xxxxx X. Xxxx
-------------------------------
Name: Xxxxx Xxxx
Title: Senior Vice President
Address: 000 Xxxx-Xxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
INTER-CITY PRODUCTS CORPORATION (USA),
as initial Servicer
By: /s/ Xxxxx X. Xxxx
-------------------------------
Name: Xxxxx Xxxx
Title: Senior Vice President
Attention: Xxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
LASALLE NATIONAL BANK,
as Trustee
By: /s/ Xxxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
Address:
Attention:
Telephone:
Facsimile:
EXHIBITS AND SCHEDULES OMITTED AS NOT MATERIAL
INTER-CITY PRODUCTS CORPORATION (USA)
APPENDIX A
DEFINITIONS
A. Defined Terms. As used in the Transaction Documents, unless
otherwise defined therein:
"Account Agreements" means the Concentration Account Agreements
and the Lockbox Agreements.
"Account Banks" means the Concentration Account Banks and the
Lockbox Banks.
"Adverse Claim" means any claim of ownership interest or any
mortgage, deed of trust, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other) or other security
interest.
"Affiliate" means, with respect to a Person, any other Person
directly or indirectly controlling, controlled by or under common control
with such Person. As used in this definition of "Affiliate," the term
"control" means the power, directly or indirectly, to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of such Person's voting securities, by contract or otherwise,
and the terms "affiliated," "controlling" and "controlled" have the
meanings correlative to the term "control."
"Aggregate Unpaid Balance" is defined in Section 2.1(b) of the
Purchase Agreement.
"Amortization Period" is defined, for purposes of any Series, in
the related Supplement.
"Applicant" is defined in Section 6.7 of the Pooling Agreement.
"Authorized Newspaper" means 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.
"Authorized Officer" means, with respect to Transferor, Servicer
or any Seller, the Chief Executive Officer, the President, the Treasurer,
the Chief Financial Officer, any Vice President and any Assistant
Treasurer provided, that if Trustee is Servicer, such Authorized Officers
of Servicer shall be limited to Responsible Officers.
"Available Final Distribution Amount" means with respect to any
Series, the amount that would be available in the Master Collection
Account on the Final Scheduled Payment Date for the Series for
distribution to the Certificateholders of such Series.
"Bank Accounts" means the Lockbox Accounts and the Concentration
Accounts.
"Bankruptcy Code" means the United States Bankruptcy Reform Act
of 1978 (11 U.S.C. Sections 101 et seq.).
"Bankruptcy Event" means, for any Person, any of the following
events:
(a) a case or other proceeding shall be commenced,
without the application or consent of such Person, in any court,
seeking the liquidation, reorganization, debt arrangement,
dissolution, winding up or composition or readjustment of debts
of such Person, the appointment of a trustee, receiver,
custodian, liquidator, assignee, sequestrator or the like for
such Person or any substantial part of its assets, or any similar
action with respect to such Person under any law relating to
bankruptcy, insolvency, reorganization, winding up or composition
or adjustment of debts, and such case or proceeding shall
continue undismissed, or unstayed and in effect, for a period of
(i) in the case of any Person other than Transferor, 60 days and
(ii) in the case of Transferor, 10 days; or an order for relief
in respect of such Person shall be entered in an involuntary case
under the Federal bankruptcy laws or other similar laws now or
hereafter in effect, or
(b) such Person shall commence a voluntary case or other
proceeding under any applicable bankruptcy, insolvency,
reorganization, debt arrangement, dissolution or other similar
law now or hereafter in effect, or shall consent to the
appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator or the like, for such
Person or any substantial part of its property, or shall make any
general assignment for the benefit of creditors, or shall fail
to, or admit in writing its inability to, pay its debts generally
as they become due.
"Bankruptcy Opinion" means (i) with respect to any Series, the
Opinion of Counsel regarding true sale and substantive consolidation
issues rendered in connection with the original issuance of such Series,
and (ii) with respect to any other action, an Opinion of Counsel
substantially in the form of the opinion referred to in clause (i) above.
"Base Amount" is defined, for purposes of any Series, in the
applicable Supplement.
"Business Day" means any day other than a Saturday, Sunday or
public holiday under the laws of the State of New York or other day on
which banking institutions are authorized or obligated to close in the
Borough of Manhattan in the City of New York in the State of New York.
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"Buyer" is defined in the preamble to the Purchase Agreement.
"Buyer Note" is defined in Section 3.2 of the Purchase Agreement.
"Calculation Period" means a calendar month, provided, however,
that with respect to Coastline for periods ending prior to the First
Issuance Date, Calculation Period means a one-month period beginning on
the 26th day of the calendar month and ending on the 25th day of the next
succeeding calendar month.
"Carrying Cost Account" is defined in Section 4.2 of the Pooling
Agreement.
"Carrying Costs" means, for any period, (a) interest or yield
payable with respect to any Series for that period, (b) the aggregate
Servicing Fee for the period in the applicable amount provided for in
Section 3.4 of the Pooling Agreement, (c) the operating expenses described
in Section 7.2(m) of the Pooling Agreement for the period and (d) other
fees, costs and expenses incurred by Transferor and Trustee for the period
and paid to Persons other than Related Persons in connection with their
duties under the Transaction Documents (in the case of Trustee, to the
extent not included in the Servicing Fee).
"Certificate" means any Investor Certificate or the Transferor
Certificate.
"Certificateholder" means the Person in whose name a Certificate
is registered in the Certificate Register.
"Certificate Purchase Agreements" means the Certificate Purchase
Agreement (Series 1996-1, Class A) dated as of the First Issuance Date
among ICP and Anagram Funding Corp., as Purchaser and the Certificate
Purchase Agreement (Series 1996-1, Class B) dated as of the First Issuance
Date among ICP and Argos Funding Corp., as Purchaser.
"Certificate Register" means the register maintained pursuant to
Section 6.3 of the Pooling Agreement.
"Coastline" means Coastline Distribution, Inc., a Delaware
corporation and indirect wholly-owned Subsidiary of ICP.
"Collections" means all funds that are received by any Seller,
Transferor, Servicer or Trustee from or on behalf of any Obligor in
payment of any amounts owed (including invoice prices, finance charges,
interest and all other charges, if any) in respect of any Receivable or
Related Asset, or otherwise applied to repay or discharge any Receivable
(including insurance payments that any Seller, Transferor or Servicer
applies in the ordinary course of its business to amounts owed in respect
of such Receivable and net proceeds of sale or other disposition of
repossessed goods that were the subject of such Receivable) or otherwise
constituting proceeds of Receivables.
-3-
"Commercial Stocking Receivable" means a Receivable that (i)
arises from a sale of a minimum of 25 items, each of which constitutes
two-20 ton three-phase-equipment, to a Distributor and (ii) has a final
due date that is no more than 170 days after the invoice date.
"Concentration Account" means any bank account that is maintained
in accordance with, and to perform the functions contemplated for
Concentration Accounts in, Section 3.3 of the Pooling Agreement.
"Concentration Account Agreement" means a letter agreement,
substantially in the form of Exhibit B to the Pooling Agreement (or such
other form as to which the Modification Condition has been satisfied),
among Transferor, Servicer, a Concentration Account Bank and Trustee that
relates to one or more Concentration Accounts, as it may be amended,
supplemented or otherwise modified from time to time.
"Concentration Account Banks" means any of the banks at which one
or more Concentration Accounts are maintained from time to time.
"Contract" means an agreement between a Seller and any Person
pursuant to which such Person is obligated to make payments in respect of
any Receivable or Related Asset and any Distributor Agreement.
"Contributed Initial Receivable" is defined in Section 1.8(a) of
the Purchase Agreement.
"Contributed Receivables" is defined in Section 1.8(b) of the
Purchase Agreement.
"Contributed Subsequent Receivable" is defined in Section 1.8(b)
of the Purchase Agreement.
"Cooling Preseason Receivable" means a Receivable that (i) arises
from a sale to a Distributor of air conditioning units with an invoice
date between December 1 and February 28 of the following year, (ii) a
final due date that is no more than 135 days after the invoice date and
(iii) is designated as such by Seller in accordance with Seller's seasonal
sale promotional policies which apply to Distributors generally and which
are in existence as of the Closing Date.
"Corporate Trust Office" means the principal office of Trustee in
Chicago, Illinois, at which at any particular time its corporate trust
business shall be principally administered.
"Credit and Collection Policy" means (a) so long as no Successor
Servicer has been appointed, with respect to any Seller, its credit and
collection policies and practices relating to the Contracts and
Receivables of such Seller that are attached to the Pooling Agreement as
Exhibit G, as such credit and collection policies may be modified without
violating Section 6.3(b) of the Purchase Agreement or Section 7.2(f) of
the Pooling Agreement or (b) with respect
-4-
to any Successor Servicer, its collection policies and practices with
respect to receivables like the Receivables.
"Cut-Off Date" means the last day of any Calculation Period.
"Daily Report" is defined in Section 3.5 of the Pooling Agreement.
"DCR" means Duff & Xxxxxx Credit Rating Co.
"Definitive Certificates" means any Certificate.
"Dilution" means any reduction in the balance of a Receivable or
payment (whether by credit, check, wire transfer or otherwise) issued by
any Seller to an Obligor on account of discounts, incorrect xxxxxxxx,
credits, rebates, allowances, chargebacks, returned or repossessed goods,
allowances for early payments or any other reduction in the balance of a
Receivable for any other reason unrelated to the inability of the Obligor
to pay the Receivable. Dilution shall also include any shortfall in
Collections on the Unpaid Balance of a Receivable denominated in a
currency other than U.S. dollars as a result of an increase in the
exchange rate of such foreign currency for U.S. dollars from the date of
origination of such Receivable to the date of such Collection.
"Discount Rate" is defined in Section 2.2(c) of the Purchase
Agreement.
"Discretionary Returns" means the voluntary acceptance of a return
of merchandise from a Distributor to ICP not required by such
Distributor's Distributor Agreement, other than (i) Terminated Distributor
Returns (ii) returns pursuant to ICP's standard or extended limited
warranties on replacement and service parts and (iii) returns of defective
merchandise.
"Disposition" is defined in Section 9.3 of the Pooling Agreement.
"Distribution Date" means the 25th day of each calendar month (or,
if not a London/U.S. Business Day, the next London/U.S. Business Day).
"Distribution Period" means each period from one Distribution Date
to the next Distribution Date.
"Distributor" means a wholesale distributor who purchases from ICP
for the purpose of resale to independent contractors heating and air
conditioning products, accessories, parts, literature and sales
promotional materials.
"Distributor Agreement" means a written distribution sales
agreement between ICP and a wholesale distributor whereby the wholesale
distributor purchases from ICP for the purpose of resale to independent
contractors heating and air conditioning products, accessories, parts,
-5-
literature, and sales promotional materials substantially in the form of
Exhibit H to the Pooling Agreement.
"Dollars" means dollars in lawful money of the United States of
America.
"Domestic Person" means any Person that has a place of business
located in the United States of America or Puerto Rico or otherwise is
subject to the jurisdiction of one or more civil courts of the United
States of America (other than solely by reason of contractual submission
to such jurisdiction).
"Domestic Subsidiary" means any direct or indirect Subsidiary of
ICP that: (a) is organized under the laws of a jurisdiction in the United
States of America (whether Federal or state), and (b) has both its chief
executive office and principal place of business located in the United
States of America.
"Early Amortization Event" means, with respect to any Series, any
event identified as an Early Amortization Event in the related Supplement.
"Early Amortization Period" is defined, for purposes of any
Series, in the related Supplement.
"Eligible Deposit Account" means (a) a segregated trust account
maintained at a bank with a long-term senior unsecured debt rating of at
least "A" (or, in the case of a Bank Account, at least "BBB") from S&P,
(b) a deposit account maintained with a bank that has an unsecured long-
term senior unsecured debt rating of at least "A", or a short-term rating
of at least "A-1", from S&P or (c) another deposit account as to which the
Modification Condition has been satisfied.
"Eligible Investments" means any of the following:
(a) negotiable instruments or securities represented by
instruments in registered or book-entry form which
evidence:
(i) obligations which have the benefit of the full
faith and credit of the United States of
America, including depository receipts issued by
a bank as custodian with respect to any such
instrument or security held by the custodian for
the benefit of the holder of such depository
receipt,
(ii) demand deposits or time deposits in, or bankers'
acceptances issued by, any depositary
institution or trust company incorporated under
the laws of the United States of America or any
state thereof and subject to supervision and
examination by Federal or state
-6-
banking or depositary institution authorities,
provided that at the time of such investment or
contractual commitment to invest therein, the
certificates of deposit or short-term deposits,
if any, or long-term unsecured debt obligations
(other than any such obligation whose rating is
based on collateral or on the credit of a Person
other than such institution or trust company),
of such depositary institution or trust company
are rated A-1+ by S&P and (if such certificates
of deposit or short-term deposits are then rated
by DCR) D-1+ by DCR, in the case of the
certificates of deposit or short-term deposits,
or are rated AAA by S&P and (if such obligations
are then rated by DCR) AAA by DCR, in the case
of long-term unsecured debt obligations,
(iii) certificates of deposit which, at the
time of such investment or contractual
commitment to invest therein, are rated
A-1+ by S&P and (if such certificates
of deposit are then rated by DCR) D-1+
by DCR, or
(iv) freely redeemable shares in open-end money
market mutual funds (including such mutual funds
that are offered by the Person who is acting as
the Trustee or by any agent of such Person)
which (1) maintain a constant net-asset value,
(2) at the time of such investment have been
rated not less than "AAAm" by S&P and, if rated
by DCR, "AAA" by DCR, (3) have offering
materials which explicitly state that such fund
will not invest in derivative instruments or
enter into derivative contracts and (4) invest
solely in obligations, deposits, bankers'
acceptances, certificates of deposit, repurchase
agreements and commercial paper of the types
described in clauses (a)(i) through (a)(iii)
above and (b) through (e) below, without regard
to the limitation set forth in such clauses as
to the maturity of such obligations, deposits,
bankers' acceptances, certificates of deposit,
repurchase agreements or commercial paper;
(b) demand deposits in the name of Trustee in any depositary
institution or trust company referred to in clause
(a)(ii) above;
(c) commercial paper (having original or remaining maturities
of no more than 270 days) which, at the time of Trustee's
investment or contractual commitment to invest therein,
is rated A-1+ by S&P and (if such commercial paper is
then rated by DCR) D-1+ by DCR;
-7-
(d) Eurodollar time deposits that are obligations of
institutions whose time deposits are rated AAA by S&P and
(if such time deposits are then rated by DCR) AAA by DCR;
(e) repurchase agreements involving any Eligible Investment
described in any of clauses (a)(i), (a)(iii) or (d)
above, so long as the other party to such repurchase
agreement is rated AAA by S&P and (if such party is then
rated by DCR) AAA by DCR; and
(f) the following:
(i) negotiable instruments or securities represented
by instruments in registered or book-entry form
which evidence:
(1) demand deposits or time deposits in, or
bankers' acceptances issued by, any
depositary institution or trust company
incorporated under the laws of the
United States of America or any state
thereof and subject to supervision and
examination by Federal or state banking
or depositary institution authorities,
provided that at the time of the
Trustee's investment or contractual
commitment to invest therein, the
certificates of deposit or short-term
deposits, if any (other than any such
obligation whose rating is based on
collateral or on the credit of a Person
other than such institution or trust
company), of such depositary
institution or trust company are rated
A-1 by S&P and (if such certificates of
deposit or short-term deposits are then
rated by DCR) D-1 by DCR, in the case
of certificates of deposit or short-
term deposits, or are rated A by S&P
and (if such obligations are then rated
by DCR) A by DCR, in the case of long-
term unsecured debt obligations,
(2) certificates of deposit which, at the
time of the Trustee's investment or
contractual commitment to invest
therein, are rated A-1 by S&P and (if
such certificates of deposit are then
rated by DCR) D-1 by DCR, or
(3) freely redeemable shares in open-end
money market mutual funds (including
such mutual funds that are offered by
the Person who is acting as the Trustee
or by any agent of such Person) which
(A) maintain a constant net-asset
value, (B) at the time of such
investment have been rated not less
than "Am" by S&P and, if rated by DCR,
"A" by DCR,
-8-
(C) have offering materials which
explicitly state that such fund will
not invest in derivative instruments or
enter into derivative contracts and
(D) invest solely in obligations,
deposits, bankers' acceptances,
certificates of deposit, repurchase
agreements and commercial paper of the
types described in this clause (f),
without regard to the limitation set
forth in such clauses as to the
maturity of such obligations, deposits,
bankers' acceptances, certificates of
deposit, repurchase agreements or
commercial paper;
(ii) demand deposits in the name of the Trustee in
any depositary institution or trust company
referred to in clause (f)(i)(1) above; and
(iii) commercial paper (having original or remaining
maturities of no more than 270 days) which, at
the time of the Trustee's investment or
contractual commitment to invest therein, is
rated A-1 by S&P and (if such commercial paper
is then rated by DCR) D-1 by DCR;
provided that (x) funds on deposit in the Equalization
Account may not be invested in any Eligible Investment
described in clauses (f)(i) through (f)(iii) above,
(y) each investment described in clauses (f)(i) through
(f)(iii) above must have a maturity of 30 or fewer days
after the time of the investment therein by the Trustee,
and (z) the aggregate amount invested in all investments
which are described in any of clauses (f)(i) through
(f)(iii) above at any time may not exceed 20% of the
total funds on deposit in all Transaction Accounts at
such time; and
(g) any other type of investment which is expressly permitted
by each Required Person and each Rating Agency (as
confirmed in writing by each Required Person and each
Rating Agency).
provided, that any such Eligible Investment specified in clauses
(a) through (f) shall (x) have a predetermined fixed dollar
amount of principal due at maturity that cannot vary or change;
(y) if such Eligible Investment is rate by S&P, not have an "r"
highlighter affixed to such rating; and (z) if the interest rate
on such Eligible Investment is not fixed, such interest rate
shall be tied to a single interest rate index plus a single fixed
spread, if any, and shall move proportionately with such index.
"Eligible Obligor" means, for purposes of any Series (unless
otherwise specified in the related Supplement) at any time, an Obligor
that satisfies the following criteria (unless such
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Obligor is expressly approved as an Eligible Obligor by each Required
Person and each Rating Agency (as confirmed in writing by each Required
Person and each Rating Agency)):
(a) it is not (except as otherwise specified for any
Series in the related Supplement) a Governmental Authority;
(b) it is not a direct or indirect Subsidiary of or an
Affiliate of Inter-City Products Corporation, a Canadian
corporation, or any other entity with respect to which Inter-City
Products Corporation, a Canadian corporation, or any of its
Subsidiaries or Affiliates own, directly or indirectly, more than
20% of the entity's equity interests;
(c) with respect to which no Bankruptcy Event had
occurred and was continuing without respect to such 60 day grace
period contained in clause (a)(i) of the definition of
"Bankruptcy Event"; provided that this clause shall not apply if
a bankruptcy court has approved the Obligor's payment of its
obligations on the Receivables;
(d) as of the end of the most recent Calculation Period,
either (i) no more than 25% of all Receivables of the Obligor
were (for reasons other than legitimate disputes) aged more than
120 days past their respective original invoice dates or (ii) no
more than 10% of all Receivables of the Obligor were (for reasons
other than legitimate disputes) aged more than 180 days past
their respective original invoice dates;
(e) which, if a Distributor is a party to a valid,
binding and enforceable Distribution Agreement with ICP that is
in full force and effect;
(f) as of the end of the most recent Calculation Period,
none of the Receivables of the Obligor were evidenced by
promissory notes;
(g) it is not an Obligor with whom the applicable Seller
has a "cash in advance" or "cash on account" arrangement (but may
be an Obligor that the applicable Seller bills in advance in
accordance with that Seller's customary practices, and not on
account of concerns about the creditworthiness of the Obligor);
and
(h) it is not Xxxxxxxxxx or an Affiliate of Xxxxxxxxxx
to the extent that a substantial portion of such entity's
Receivables are derived pursuant to floor plan financing
activities.
"Eligible Receivable" means, for purposes of any Series (unless
otherwise specified in the related Supplement) at any time, a Receivable:
(a) that arises from the sale of goods or services by a
Seller in the ordinary course of its business; provided that such
Receivable (i) is not an Excluded International
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Receivable, or (ii) does not arise out of brokerage services
rendered by Heaven Engineering, a division of General;
(b) that represents a bona fide obligation resulting
from a sale of goods that have been shipped or services that have
been performed and is (i) an Extended Term Receivable or (ii) due
and payable not more than 61 days after the date on which the
invoice for services or merchandise, the sale of which gave rise
to such Receivable, is provided or delivered;
(c) that, as of that time, is not aged more than 90 days
past its original due date;
(d) that constitutes an account or a general intangible
for the payment of money and not an instrument or chattel paper;
(e) the Obligor of which is an Eligible Obligor;
(f) with regard to which both the representation and
warranty of Transferor in Section 2.3(a)(i) of the Pooling
Agreement and the representation and warranty of the relevant
Seller in Section 5.1(k) of the Purchase Agreement are true and
correct;
(g) the transfer of which (including the sale by the
applicable Seller to Transferor and the transfer by Transferor to
the Trust) does not contravene or conflict with any law, rule or
regulation or any contractual or other restriction, limitation or
encumbrance that applies to the applicable Seller, Transferor or
the Trust, and the sale, assignment or transfer of which, and the
granting of a security interest in which, does not require the
consent of the Obligor thereof or any other Person, other than
any such consent that has been obtained and continues in full
force and effect;
(h) that, unless it is an Extended Term Receivable, is
non-interest bearing; provided that a Receivable shall not be
deemed to be interest-bearing solely as a result of the
applicable Seller's imposition of an interest or other charge on
any such Receivable that remains unpaid for some specified period
(but no interest charge or other charge shall be included in the
Unpaid Balance of a Receivable for purposes of calculating the
Base Amount);
(i) that arises under a Contract that has been duly
authorized and that, together with such Receivable, is in full
force and effect and constitutes the legal, valid and binding
obligation of the Obligor of such Receivable enforceable against
such Obligor in accordance with its 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;
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(j) that is not subject to any asserted reduction,
cancellation, or refund or any dispute, offset, counterclaim,
lien or defense whatsoever (including any Permitted Adverse Claim
or other potential reduction on account of any offsetting account
payable of Transferor or the applicable Seller to an Obligor or
funds of an Obligor held by Transferor or the Seller); provided
that a Receivable that is subject only in part to any of the
foregoing shall be an Eligible Receivable to the extent not
subject to reduction, cancellation, refund, dispute, offset,
counterclaim, lien or other defense;
(k) that, together with the Contract related thereto,
was created in accordance with, and conforms in all material
respects with, all applicable laws, rules, regulations, orders,
judgments, decrees and determinations of all courts and other
Governmental Authorities (whether Federal, state, local or
foreign) and including usury laws;
(l) that satisfies all applicable requirements of the
Credit and Collection Policy of the applicable Seller or, if
there is a Successor Servicer, the Successor Servicer and that
arises from a line of business in which such Seller was engaged
on the First Issuance Date;
(m) that has not been compromised, adjusted, satisfied,
subordinated, rescinded or modified (including by extension of
time or payment or the granting of any discounts, allowances or
credits), except as permitted by Section 7.2(f) of the Pooling
Agreement; and
(n) if such Receivable is payable to a Person who becomes
a Seller after the First Issuance Date, such Receivable satisfies
the conditions specified in Section 1.7 of the Receivables
Purchase Agreement.
"Eligible Servicer" means (a) the Initial Servicer, (b) Trustee
or (c) an entity that, at the time of its appointment as Servicer, (i) is
servicing a portfolio of trade receivables, (ii) is legally qualified and
has the capacity to service the Receivables, (iii) has demonstrated the
ability to service professionally and competently a portfolio of trade
receivables similar to the Receivables in accordance with high standards
of skill and care, (iv) is qualified to use the software that is then
being used to service the Receivables or obtains the right to use such
software or has its own software that is adequate to perform its duties
under the Pooling Agreement and (v) as to which the Modification Condition
has been satisfied.
"Equalization Account" is defined in Section 4.2 of the Pooling
Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"Estimated Base Amount" is defined in Section 3.5 of the Pooling
Agreement.
"Exchange Act" means the Securities Exchange Act of 1934.
-12-
"Excluded International Receivable" means, (i) an International
Receivable designated as such by the Agent if (a) ICP has given written
notice to the Agent that the level of Excess Foreign Obligor Balances is
unacceptably high to ICP, (b) ICP uses its good faith effort to reduce the
level of Excess Foreign Obligor Balances for a period of 90 days after
such notice, and (c) after such 90-day period a level of Excess Foreign
Obligor Balances which is unacceptably high to ICP continues to exist;
provided that if the Agent fails to make such designation within 30 days
after such 90-day period, such designation shall be made by ICP up to an
amount not to exceed the Excess Foreign Obligor Balances at such time and
(ii) at the election of ICP, all International Receivables originated
after ICP gives the Agent notice of such election to include all
International Receivables as Excluded International Receivables.
"Extended Term Receivable" means a Commercial Stocking Receivable,
Cooling Preseason Receivable, Heating Preseason Receivable, FAST Parts
Receivable, Selected Extended Term Receivable or International Receivable.
"FAST Parts Receivable" means a Receivable that (i) arises from
a sale to a Distributor of parts for heating and air conditioning units
and (ii) a final due date that is no more than 170 days after the invoice
date.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System, or any successor thereto or to the functions
thereof.
"Final Distribution Date" is defined in Section 12.2 of the
Pooling Agreement.
"Final Scheduled Payment Date" is defined, for purposes of any
Series, in the applicable Supplement.
"First Issuance Date" means July 25, 1996.
"GAAP" means United States of America generally accepted
accounting principles.
"General" means General Heating and Cooling Company, a Delaware
corporation and indirect wholly-owned Subsidiary of ICP.
"Governmental Authority" means the United States of America, any
state or other political subdivision thereof and any entity in the United
States of America or any applicable foreign jurisdiction that exercises
executive, legislative, judicial, regulatory or administrative functions
of or pertaining to government.
"Guaranty" means any agreement or arrangement by which any Person
directly or indirectly guarantees, endorses, agrees to purchase or
otherwise becomes contingently liable upon any liability of any other
Person (other than by endorsements of instruments in the course of
collection) or guarantees the payment of distributions upon the shares of
any other Person.
-13-
"Heating Preseason Receivable" means a Receivable that (i) arises
from a sale to a Distributor of heating units with an invoice date between
July 1 and October 31, (ii) a final due date that is no more than 135 days
after the invoice date and (iii) is designated as such by Seller in
accordance with Seller's seasonal sale promotional policies which apply
to Distributors generally and which were in existence as of the Closing
Date.
"Highest Bid" means the highest cash purchase offer for a Series
received by Servicer pursuant to Section 12.1 of the Pooling Agreement.
"Holdback Account" is defined in Section 4.2 of the Pooling
Agreement.
"Holder" means the Person in whose name a Certificate is
registered in the Certificate Register at the time of determination.
"ICP" means Inter-City Products Corporation (USA), a Delaware
corporation.
"ICP Person" means ICP or any of its Affiliates.
"Impermissible Qualification" means, relative to the opinion or
certification of any independent certified public accountant as to any
financial statement of the Initial Servicer or ICP, any qualification or
exception to such opinion or certification that is of a "going concern"
or similar nature.
"Indebtedness" of any Person means all of that Person's
obligations for borrowed money, obligations evidenced by bonds,
debentures, notes or other similar instruments, obligations as lessee
under leases that are required by GAAP to be recorded as capitalized
leases and obligations to pay the deferred purchase price of property or
services.
"Indemnified Losses" is defined in Section 7.3 of the Pooling
Agreement.
"Indemnified Party" is defined in Section 7.3 of the Pooling
Agreement.
"Initial Cut-Off Date" means the Business Day immediately
preceding the First Issuance Date.
"Initial Servicer" means Inter-City Products Corporation (USA),
a Delaware corporation.
"Intercreditor Agreement" means an intercreditor agreement, in
form and substance satisfactory to the Trustee and each Required Person,
between the Trustee and a secured creditor of a Seller.
"Internal Revenue Code" means the Internal Revenue Code of 1986,
as amended.
-14-
"International Receivable" means a right of any Seller to payment,
whether constituting an account, chattel paper, instrument, general
intangible or otherwise, arising from the sale of goods, services or
future services by such Seller (and including the right to payment of any
interest or finance charges and other obligations with respect thereto)
owing from an entity (i) with its chief executive office outside of the
United States and Canada, (ii) that transacts a substantial portion of its
business and maintains a substantial portion of its fixed assets outside
the United States and Canada and (iii) which is not engaged primarily in
financing the operations of businesses within the United States and
Canada.
"Invested Amount" is defined, with respect to any Series, in the
related Supplement.
"Investor Certificateholder" means the Person in whose name an
Investor Certificate is registered in the Certificate Register at the time
of determination.
"Investor Certificates" means the Certificates issued pursuant to
any Supplement.
"Investor Exchange" is defined in Section 6.10(a) of the Pooling
Agreement.
"Issuance" is defined in Section 6.10(a) of the Pooling Agreement.
"Issuance Date" is defined in Section 6.10(b) of the Pooling
Agreement.
"Issuance Notice" is defined in Section 6.10(b) of the Pooling
Agreement.
"Lockbox Accounts" means the bank accounts, maintained at those
certain locations described in Schedule 1 to the Pooling Agreement, into
which Collections from Receivables are deposited, and any bank account
that is hereafter created in accordance with, and to perform the functions
contemplated for "Lockbox Accounts" in, Section 3.3 of the Pooling
Agreement.
"Lockbox Agreement" means any of the letter agreements delivered
in connection with the Pooling Agreement and any other letter agreement,
substantially in the form of Exhibit A to the Pooling Agreement (or such
other form as to which the Modification Condition is satisfied), among a
Lockbox Bank, one or more Sellers, Servicer and Trustee that relates to
one or more Lockbox Accounts, as they may be amended, supplemented or
otherwise modified from time to time.
"Lockbox Bank" means any of the banks at which one or more Lockbox
Accounts are maintained from time to time.
"Loss to Liquidation Ratio" means, as calculated in each Monthly
Report, a fraction (a) the numerator of which is the aggregate Unpaid
Balance of Receivables (net of recoveries) that were written off as
uncollectible or (without duplication) converted into promissory notes
during the three preceding Calculation Periods in accordance with the
Credit and Collection Policy, and
-15-
(b) the denominator of which is the aggregate amount of Collections on the
Receivables received during such three Calculation Periods.
"Master Collection Account" is defined in Section 4.2 of the
Pooling Agreement.
"Material Adverse Effect" means, with respect to Transferor, any
ICP Person, any Servicer and any event or circumstance at any time, a
material adverse effect on (a) the ability of that Person to perform its
obligations under any Transaction Document or (b) the validity,
enforceability or collectibility of any Receivables, Related Assets or
Contracts; provided, that for the purpose of determining whether any
Adverse Claim or other event or circumstance results (or has a likelihood
of resulting) in a Material Adverse Effect, the effect of such event or
circumstance shall be considered in the aggregate with the effect of all
other Adverse Claims (including Permitted Adverse Claims) or other events
and circumstances occurring or existing at the time of such determination.
"Maximum Exposure Amount" shall be the lowest amount specified in
any Supplement as the "Maximum Exposure Amount."
"Modification Condition" means, with respect to any action, that
(a) each Rating Agency has confirmed in writing that such action will not
result in a reduction or withdrawal of the initial rating of any
outstanding Series that was rated by such Rating Agency and (b) each
Required Person has consented to such action in writing.
"Monthly Report" is defined in Section 3.5(d) of the Pooling
Agreement.
"Net Invested Amount" is defined, for purposes of any Series, in
the applicable Supplement.
"New Issuance" is defined in Section 6.10(a) of the Pooling
Agreement.
"Noncomplying Receivables and Dilution Adjustment" is defined in
Section 3.1(b) of the Purchase Agreement.
"Non-Recourse Claim" is defined in Section 11.3 of the Pooling
Agreement.
"Obligations" means (a) all obligations of Buyer, the Sellers and
the Servicer to the Trustee, the Trust, any other Indemnified Party, the
Investor Certificateholders and their respective successors, permitted
transferees and assigns, arising under or in connection with the
Transaction Documents, and (b) all obligations of a Seller to Buyer, any
other RPA Indemnified Party and their respective successors, transferees
and assigns, arising under or in connection with the Transaction
Documents, in each case howsoever created, arising or evidenced, whether
direct or indirect, absolute or contingent, now or hereafter existing, or
due or to become due.
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"Obligor" means a Person obligated to make payments on a
Receivable.
"Officer's Certificate" means, unless otherwise specified in the
Pooling Agreement or in any Supplement, a certificate signed by an
Authorized Officer of Transferor or the Initial Servicer, as the case may
be, or, in the case of a Successor Servicer, a certificate signed by the
President, any Vice President, Assistant Treasurer or the financial
controller (or an officer holding an office with equivalent or more senior
responsibilities) of such Successor Servicer, that, in the case of any of
the foregoing, is delivered to Trustee.
"Opinion of Counsel" means a written opinion of counsel, who shall
be reasonably acceptable to Trustee and each Required Person and, if the
Rating Agencies are addressees, the Rating Agencies.
"Origination and Servicing Party" means any of each Seller, the
Servicer, each Sub-Servicer and Transferor.
"Paying Agent" means any paying agent appointed pursuant to
Section 6.6 of the Pooling Agreement and shall initially be Trustee.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Permitted Adverse Claims" means (a) ownership or security
interests arising under the Transaction Documents, (b) liens for taxes,
assessments or charges of any Governmental Authority (other than Tax or
ERISA Liens) and liens of landlords, carriers, warehousemen, mechanics and
materialmen imposed by law in the ordinary course of business, in each
case (i) for amounts not yet due or (ii) which are being contested in good
faith by appropriate proceedings and with respect to which adequate
reserves or other appropriate provisions are being maintained in
accordance with GAAP, provided that the aggregate amount secured by all
liens referred to in this clause (ii) does not exceed $250,000 (or for
purposes of any Series, any different amount that may be specified in the
applicable Supplement).
"Permitted Discretionary Returns" is defined in Section 3.2(k) of
the Pooling Agreement.
"Person" means an individual, partnership, limited liability
company, corporation (including a business trust), joint stock company,
trust, unincorporated association, joint venture, government or any agency
or political subdivision thereof or any other entity.
"Pooling Agreement" means the Pooling and Servicing Agreement,
dated as of the First Issuance Date, among Transferor, as transferor, the
Initial Servicer, as Servicer, and Trustee, as it may be amended,
supplemented or otherwise modified from time to time.
"Portfolio Collection Days" means, at any time, the product of (i)
30 and (ii) the quotient of (x) the sum of the Unpaid Balance of
Receivables as of the end of each of the three
-17-
Calculation Periods ending on the most recent Cut-Off Date divided by (y)
the sum of the aggregate amounts payable pursuant to invoices giving rise
to Receivables generated by the Sellers during the three Calculation
Periods ending on the most recent Cut-Off Date.
"Principal Funding Account" is defined in Section 4.2 of the
Pooling Agreement.
"Private Holder" shall mean each holder of a right to receive
interest or principal with respect to a Certificate, other than
Certificates with respect to which an opinion is rendered that such
Certificates will be treated as debt for Federal income tax purposes, and
any holder of a right to receive any amount in respect of the Transferor
Certificate. A Person holding more than one interest in the Trust each
of which separately would cause such Person to be a Private Holder shall
be treated as a single Private Holder; a Private Holder that would be a
partnership, an S corporation or a grantor trust under the Internal
Revenue Code shall be treated as one or more Private Holders in accordance
with the provisions of Treasury Regulation Section 1.7704-1 or any
successor provision of law.
"Program" means the transactions contemplated in the Transaction
Documents.
"Publication Date" is defined in Section 9.3(a) of the Pooling
Agreement.
"Public Notice" means all financing statements (and continuation
statements or financing change statements with respect to such financing
statements where applicable), filings, notices and registrations and any
other instrument similar in effect, and all amendments or assignments of
any of the foregoing, relating to assignment or perfection of a security
interest meeting the requirements of applicable state, provincial,
territorial or other local law.
"Purchase" means each purchase of Receivables and Related Assets
by Transferor from a Seller under the Purchase Agreement.
"Purchase Agreement" means the Receivables Purchase Agreement,
dated as of the First Issuance Date, among the Sellers and Transferor, as
it may be amended, supplemented or otherwise modified from time to time.
"Purchase Discount Reserve Ratio" is defined in Section 2.2(b) of
the Purchase Agreement.
"Purchase Price" is defined in Section 2.1(b) of the Purchase
Agreement.
"Purchase Price Percentage" is defined in Section 2.2(a) of the
Purchase Agreement.
"Purchase Termination Date" means the date of occurrence of any
event referred to in Section 8.1 of the Purchase Agreement.
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"Purchased Assets" is defined in Section 1.1 of the Purchase
Agreement.
"Purchased Receivables" is defined in Section 1.1 of the Purchase
Agreement.
"Rating Agency" means each statistical rating agency, if any, that
at the request of ICP or Transferor has rated any then-issued and
outstanding Series of Investor Certificates.
"Receivable" means any right of any Seller to payment, whether
constituting an account, chattel paper, instrument, general intangible or
otherwise, arising from the sale of goods, services or future services by
such Seller (and including the right to payment of any interest or finance
charges and other obligations with respect thereto); provided that such
right to payment is not an Excluded International Receivable.
"Receivables Pool" means at any time all Receivables then held by
the Trust.
"Record Date" means the Business Day that is three Business Days
prior to a Distribution Date.
"Records" means all Contracts, purchase orders, invoices and other
agreements, documents, books, records and other media for the storage of
information (including tapes, disks, punch cards, computer programs and
databases and related property) maintained by Transferor, the Sellers or
Servicer with respect to the Transferred Assets and/or the related
Obligors.
"Recoveries" means all Collections received by the Trust in
respect of any Write-Off held by the Trust.
"Related Assets" is defined in Section 1.1 of the Purchase
Agreement.
"Related Contributed Assets" is defined in Section 1.8(b) of the
Purchase Agreement.
"Related Contributed Initial Assets" is defined in Section 1.8(a)
of the Purchase Agreement.
"Related Contributed Subsequent Assets" is defined in Section
1.8(b) of the Purchase Agreement.
"Related Person" means the Initial Servicer and each of its
Affiliates (other than Transferor).
"Related Purchased Assets" is defined in Section 1.1 of the
Purchase Agreement.
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"Related Security" means, with respect to any Receivable, (a) all
of the applicable Seller's right, title and interest in and to the goods,
if any, relating to the sale that gave rise to the Receivable, (b) all
other security interests or liens and property subject thereto from time
to time purporting to secure payment of the Receivable, whether pursuant
to the Contract related to the Receivable or otherwise, (c) all
merchandise (including returned merchandise), if any, relating to the sale
which gave rise to such Receivable for so long as such Receivable remains
outstanding or (in the case of returned merchandise) until the Seller has
complied with its obligations relating to any Seller Dilution Adjustment
arising in connection therewith, and (d) all letters of credit, guarantees
and other agreements or arrangements of whatever character from time to
time supporting or securing payment of the Receivable, whether pursuant
to the Contract related to the Receivable or otherwise.
"Related Transferred Assets" is defined in Section 2.1(a) of the
Pooling Agreement.
"Report Date" means the Business Day that is three Business Days
prior to a Distribution Date.
"Repurchase Amount" is defined in Section 12.4 of the Pooling
Agreement.
"Repurchase Distribution Date" is defined in Section 12.4 of the
Pooling Agreement.
"Required Investors" means Holders of Investor Certificates that
evidence at least 66-2/3% of the total outstanding principal amount of
Investor Certificates.
"Required Person" means each person designated as such pursuant
to any Supplement.
"Required Receivables" is defined, for purposes of any Series, in
the applicable Supplement.
"Required Series Holders" means with respect to any action to be
taken by Investor Certificateholders of any Series, unless otherwise
specified in the related Supplement, Investor Certificateholders that
evidence at least 66-2/3% of the principal amount of those Certificates.
"Responsible Officer" means, when used with respect to Trustee,
(a) any officer within the Corporate Trust Office (or any successor group
of Trustee), including any vice president, assistant vice president or any
officer or assistant trust officer of Trustee customarily performing
functions similar to those performed by the persons who hold the office
of vice president, assistant vice president, or assistant secretary and
(b) any other officer within the Corporate Trust Office with direct
responsibility for the administration of the Pooling Agreement or to whom
any corporate trust matter is referred at Trustee's Corporate Trust Office
because of his knowledge of and familiarity with the particular subject.
-20-
"Revolving Period" means, with respect to any Series, the period
before the commencement of the earliest of any applicable amortization
period, accumulation period or early amortization period (other than a
prepayment accumulation period with respect to a partial prepayment of any
such Series) for any such Series; provided, that the Revolving Period for
any such Series shall be suspended during a prepayment accumulation period
with respect to a partial prepayment of any such Series.
"RPA Indemnified Losses" is defined in Section 9.1 of the Purchase
Agreement.
"RPA Indemnified Party" is defined in Section 9.1 of the Purchase
Agreement.
"S&P" means Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc.
"Scoring Model" means an automated system of ICP, satisfactory to
the Agent, that is used to measure the creditworthiness of Distributors
by analyzing, among other things, each Distributor's balance sheets,
income statements, statements of cash flow and payment history, which
system shall be applied consistently among all Distributors by
incorporating uniform procedures.
"Securities Act" means the Securities Act of 1933, as amended.
"Selected Extended Term Receivable" means a Receivable (i) that
arises from a sale to a Distributor that is rated "20" or better under the
Servicer's Scoring Model, and (ii) that has a final due date that is no
more than 150 days after the invoice date.
"Seller" means each Person from time to time party to the Purchase
Agreement as a "Seller."
"Seller Assignment Certificate" means an assignment by a Seller,
substantially in the form of Exhibit B to the Purchase Agreement,
evidencing Transferor's acquisition of the Purchased Assets generated by
the Seller, as it may be amended, supplemented or otherwise modified from
time to time.
"Seller Change Event" is defined in Section 3.5(e) of the Pooling
Agreement.
"Seller Dilution Adjustment" is defined in Section 3.5(b) of the
Purchase Agreement.
"Seller Guaranty" means the Guaranty, dated as of the First
Issuance Date, by ICP of the Obligations of the other Sellers, as it may
be amended, supplemented or otherwise modified from time to time.
"Seller Maturity Date" is defined in Section 3.2 of the Purchase
Agreement.
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"Seller Noncomplying Receivable" means a Receivable that does not
meet the criteria set forth in the definition of Eligible Receivables.
"Seller Noncomplying Receivables Adjustment" is defined in Section
3.5(a) of the Purchase Agreement.
"Seller Noncomplying Receivables and Dilution Excess" is defined
in Section 3.1(c) of the Purchase Agreement.
"Seller Receivables Review" is defined in Section 6.1(c) of the
Purchase Agreement.
"Seller Transaction Documents" means the Purchase Agreement, the
Seller Assignment Certificates, the Account Agreements and the Seller
Guaranty.
"Senior Interest" is defined in each Buyer Note.
"Series" means any series of Investor Certificates issued pursuant
to Section 6.10 of the Pooling Agreement.
"Series Collection Allocation Percentage" means, for any Series,
at any time, the percentage equivalent of a fraction: (a) the numerator
of which is the Required Receivables for that Series and (b) the
denominator of which is the sum of the Required Receivables for all then
outstanding Series.
"Series Interest" is defined in Section 4.1 of the Pooling
Agreement.
"Series Loss Allocation Percentage" means, for any Series for
purposes of any Monthly Report, the percentage equivalent of a fraction:
(a) the numerator of which is the Invested Amount of that Series and (b)
the denominator of which is the sum of the Invested Amounts of all then
outstanding Series, in each case determined as of the beginning of the
related Calculation Period (or such other date as may be specified in the
related Supplement).
"Servicer" means at any time the Person then authorized pursuant
to Article III of the Pooling Agreement to service, administer and collect
Receivables and Related Transferred Assets.
"Servicer Default" is defined in Section 10.1 of the Pooling
Agreement.
"Service Transfer" is defined in Section 10.2(b) of the Pooling
Agreement.
"Servicing Fee" is defined in Section 3.4 of the Pooling
Agreement.
"Shared Investor Collections" means any funds identified as such
in any Supplement.
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"Shortfall" is defined, for any Series, in the related Supplement.
"Specified Assets" is defined in Section 1.1 of the Purchase
Agreement.
"Specified Receivables" is defined in Section 1.1 of the Purchase
Agreement.
"Subject Instruments" means any Certificates with respect to which
the Transferor shall not have received an Opinion of Counsel to the effect
that such Certificates will be treated as debt for Federal income tax
purposes.
"Sub-Servicer" is defined in Section 3.1 of the Pooling Agreement.
"Subsidiary" means, with respect to any Person, any corporation
of which more than 50% of the outstanding capital stock having ordinary
voting power to elect a majority of the board of directors of such
corporation (irrespective of whether at the time capital stock of any
other class or classes of such corporation shall or might have voting
power upon the occurrence of any contingency) is at the time directly or
indirectly owned by such Person.
"Successor Servicer" is defined in Section 10.2(a) of the Pooling
Agreement.
"Supplement" means each supplement to the Pooling Agreement
executed by Transferor, Servicer and Trustee to specify the terms of a
Series of Certificates, as the same may be amended, supplemented or
otherwise modified from time to time.
"Tax or ERISA Lien" means a lien arising under Section 6321 of the
Internal Revenue Code or Section 302(f) or 4068 of ERISA.
"Tax Opinion" means, with respect to any action, an Opinion of
Counsel to the effect that, for Federal and state income and franchise tax
purposes, (a) such action will not adversely affect the existing
characterization of the Investor Certificates of any outstanding Series
or class as debt or (if applicable) as interests in a partnership (that
is not a publicly traded partnership), (b) following such action the Trust
will not be treated as an association (or publicly traded partnership)
taxable as a corporation, (c) such action will not be treated as a taxable
event to any Investor Certificateholder or Certificate Owner and (d) in
the case of the original issuance of any Series or class of Investor
Certificates, unless specified otherwise in the applicable Supplement, the
Investor Certificates of the new Series or class will properly be
characterized as debt.
"Terminated Distributor Returns" means a return of merchandise
from a Distributor to a Seller due to the termination of such
Distributor's status as a Distributor.
"Termination Notice" is defined in Section 10.1 of the Pooling
Agreement.
"Transaction Accounts" is defined in Section 4.2 of the Pooling
Agreement.
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"Transaction Documents" means each Seller Transaction Document,
the Pooling Agreement, the Seller Guaranty, each Supplement, the
Certificate Purchase Agreements and the related Certificates, and each
other agreement designated as a Transaction Document in any Supplement,
as any of the same from time to time may be amended, supplemented, amended
and restated or otherwise modified in accordance with the terms thereof.
"Transfer Agent and Registrar" means any transfer agent and
registrar appointed pursuant to Section 6.3 of the Pooling Agreement and
shall initially be Trustee.
"Transferor" means Inter-City Products Receivables Company, L.P.,
a Tennessee limited partnership.
"Transferor Certificate" means a certificate substantially in the
form of Exhibit E to the Pooling Agreement, as described in Section 4.1
of the Pooling Agreement.
"Transferor Interest" is defined in Section 4.1 of the Pooling
Agreement.
"Transferor Retained Interest" means, on any date of
determination, the sum of the Transferor Interest and the interest in the
Trust represented by any Investor Certificates (regardless of Series or
class) owned or otherwise retained by the Transferor.
"Transferred Assets" is defined in Section 2.1 of the Pooling
Agreement.
"Trigger Event" is defined in Section 9.3(a) of the Pooling
Agreement.
"Trust" means the trust created by the Pooling Agreement, which
shall be known as the Inter-City Products Receivables Master Trust.
"Trust Asset Shortfall" means, as of any date of determination,
that the aggregate Required Receivables for all outstanding Series exceeds
the aggregate Unpaid Balance of Receivables held by the Trust on such
date.
"Trustee" means LaSalle National Bank, a national banking
association, in its capacity as agent for the Certificateholders, or its
successor-in-interest, or any successor trustee appointed as provided in
the Pooling Agreement.
"UCC" means the Uniform Commercial Code as from time to time in
effect in the applicable jurisdiction or jurisdictions.
"Unmatured Early Amortization Event" means any event that, with
the giving of notice or lapse of time, or both, would become an Early
Amortization Event.
-24-
"Unpaid Balance" of any Receivable means at any time the unpaid
amount thereof (excluding interest accrued for the period after the due
date of such Receivable and related service charges) as shown in the books
of Servicer at such time.
"Write-Off" means any Receivable that, consistent with the
applicable Credit and Collection Policy, has been written off as
uncollectible.
B. Other Terms. All accounting terms not specifically defined
herein shall be construed in accordance with GAAP. To the extent that the
definitions of accounting terms in any Transaction Document are
inconsistent with the meanings of such terms under GAAP, the definitions
contained in such Transaction Document shall control.
C. Reference. The words "hereof", "herein" and "hereunder" and
words of similar import when used in any Transaction Document shall refer
to such Transaction Document as a whole and not to any particular
provision of such Transaction Document; and reference to "Section",
"subsection", "Schedule" and "Exhibit" in any Transaction Document are
references to Sections, subsections, Schedules and Exhibits in or to such
Transaction Document unless otherwise specified in such Transaction
Document .
D. Number and Gender. Each defined term used in the Transaction
Documents has a comparable meaning when used in its plural or singular
form. Each gender-specific term used in the Transaction Documents has a
comparable meaning whether used in a masculine, feminine or gender-neutral
form.
E. Including. Whenever the term "including" (whether or not that
term is followed by the phrase "but not limited to" or "without
limitation" or words of similar effect) is used in the Transaction
Documents in connection with a listing of items within a particular
classification, that listing will be interpreted to be illustrative only
and will not be interpreted as a limitation on, or exclusive listing of,
the items within that classification.
F. Taking Actions. Actions permitted under the Transaction
Documents may be taken at any time and from time to time in the actor's
sole discretion.
G. Reference to Statutes and Regulations. References to a
statute shall refer to such statute and any successor statute, and to all
regulations promulgated under or implementing the statute or successor,
as in effect at the relevant time. References to a regulation shall refer
to such regulation and any successor regulation, as in effect from time
to time.
H. Regulatory Bodies. References to a governmental or quasi-
governmental agency, authority or instrumentality shall also refer to a
regulatory body that succeeds to the functions of such agency, authority
or instrumentality.
-25-
I. Time Periods. In computing periods from a specified date to
a later specified date, when precise times of day are not stated, the
words "from" and "commencing on" (and the like) mean "from and including,"
and the words "to," "until" and "ending on" (and the like) mean "to but
excluding."
J. Time of Day. Unless otherwise specified, indications of time
of day mean New York, New York time.
K. Interpretation of Standards. The parties acknowledge
that this Pooling Agreement and the other Transaction Documents contain
many determinations, standards and measurements which must be made or
applied by the Transferor and the Servicer in the process of performing
their obligations under this Agreement and the other Transaction
Documents, including the determination of whether Receivables constitute
Eligible Receivables, when or whether Dilutions, Write-offs or Early
Amortization Events have occurred, and many other matters. The Transferor
and the Servicer shall make or apply such determinations, standards and
measurements in good faith and using reasonable judgment, and the
Transferor and the Servicer shall bear the burden of proof in any dispute
with the Trustee or any Required Person regarding any such determinations,
standards or measurements.
L. "Or." The word "or" is not exclusive. Thus, "A or B" means
"A or B or both."
M. Agreements. References to any agreement, arrangement or other
document (including the Buyer Note) shall refer to such agreement,
arrangement or other document as the same may be amended, supplemented,
amended and restated, endorsed or otherwise modified from time to time,
together with any other agreement, arrangement or other document entered
into or executed in substitution therefor or renewal thereof in accordance
with the Transaction Documents.
N. Valuation of Foreign Currency Receivables. Amounts
payable with respect to any Receivable denominated in a currency other
than Dollars shall be calculated at the applicable exchange rate in effect
at the time of the origination of such Receivable, except that Collections
with respect to any such Receivable shall be calculated at the applicable
exchange rate in effect on the date on which such Collection is received.
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