EXHIBIT 10.5
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AFG CREDIT CORPORATION,
as Transferor,
AMERICAN FINANCE GROUP, INC.,
as Servicer,
and
BANKERS TRUST COMPANY,
as Trustee and as Collateral Trustee
on behalf of the Holders
of the AFG MASTER TRUST
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POOLING AND SERVICING AGREEMENT AND INDENTURE OF TRUST
Dated as of July 1, 1995
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS.................................. 1
Section 1.1 Definitions.................................. 1
Section 1.2 Other Definitional Provisions................ 25
ARTICLE II
TRANSFER OF TRUST ASSETS..................... 26
Section 2.1 Transfer of Trust Assets..................... 26
Section 2.2 Acceptance by Trustee; Acknowledgment
by Collateral Trustee...................... 30
Section 2.3 Representations and Warranties of
Transferor Relating to Transferor.......... 31
Section 2.4 Representations and Warranties of
Transferor Relating to the Agreement
and the Included Leases.................... 33
Section 2.5 Covenants of Transferor...................... 36
Section 2.6 Addition of Leases........................... 40
Section 2.7 Substitution or Reallocation of Leases....... 42
Section 2.8 Removal of Leases............................ 44
Section 2.9 Release of Lien on Equipment................. 45
Section 2.10 Hedging of Included Leases After the
Related Addition Date...................... 46
ARTICLE III
ADMINISTRATION AND SERVICING OF
INCLUDED LEASES............................ 46
Section 3.1 Appointment and Acceptance; Duties........... 46
Section 3.2 Collection of Payments....................... 48
Section 3.3 Servicer Advances............................ 50
Section 3.4 Realization Upon Defaulted Lease............. 51
Section 3.5 Maintenance of Insurance Policies............ 51
Section 3.6 Representations and Warranties of
Servicer................................... 52
Section 3.7 Covenants of Servicer........................ 53
Section 3.8 Servicing Compensation....................... 54
Section 3.9 Payment of Certain Expenses by Servicer...... 55
Section 3.10 Monthly Statement; Annual Report............. 55
Section 3.11 Annual Statement as to Compliance............ 55
Section 3.12 Annual Independent Public Accountant's
Servicing Reports.......................... 56
Section 3.13 Tax Treatment................................ 56
Section 3.14 Adjustments.................................. 57
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ARTICLE IV
RIGHTS OF NOTEHOLDERS AND ALLOCATION
AND APPLICATION OF COLLECTIONS............. 57
Section 4.1 Rights of Holders............................ 57
Section 4.2 Establishment of Accounts.................... 58
Section 4.3 Collections and Allocations.................. 61
Section 4.4 Determination of the Amortizing Pools........ 66
Section 4.5 Interest Rate Xxxxxx......................... 67
[THE REMAINDER OF ARTICLE IV IS RESERVED AND
SHALL BE SPECIFIED IN ANY SUPPLEMENT
WITH RESPECT TO ANY SERIES]................. 68
ARTICLE V
[ARTICLE V IS RESERVED AND SHALL
BE SPECIFIED IN ANY SUPPLEMENT
WITH RESPECT TO ANY SERIES]................. 69
ARTICLE VI
THE NOTES.................................... 69
Section 6.1 The Notes and the Transferor Interest........ 69
Section 6.2 Authentication of Notes and Transferor
Interest................................... 69
Section 6.3 Registration of Transfer and Exchange
of Notes................................... 69
Section 6.4 Mutilated, Destroyed, Lost or Stolen
Notes...................................... 71
Section 6.5 Persons Deemed Owners........................ 71
Section 6.6 Appointment of Paying Agent.................. 72
Section 6.7 Access to List of Holders' Names and
Addresses.................................. 72
Section 6.8 Authenticating Agent......................... 73
Section 6.9 Book-Entry Notes............................. 74
Section 6.10 Notices to Clearing Agent.................... 75
Section 6.11 Definitive Notes Initially Issued as
Book-Entry Notes........................... 75
Section 6.12 Exchange of Transferor Interest.............. 76
Section 6.13 Note Transfer Restrictions................... 78
Section 6.14 Constituent Transferor Interests............. 79
ARTICLE VII
OTHER MATTERS RELATING TO TRANSFEROR......... 80
Section 7.1 Liability of Transferor...................... 80
Section 7.2 Merger or Consolidation of, or
Assumption of the Obligations of,
Transferor, etc............................ 80
Section 7.3 Limitation on Liability of Transferor........ 81
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Page
Section 7.4 Liabilities.................................. 81
Section 7.5 Decisions with Respect to the Trust.......... 82
ARTICLE VIII
OTHER MATTERS RELATING TO THE SERVICER....... 82
Section 8.1 Liability of the Servicer.................... 82
Section 8.2 Merger or Consolidation of, or Assumption
of the Obligations of, the Servicer........ 82
Section 8.3 Limitation on Liability of the Servicer
and Others................................. 83
Section 8.4 Indemnification of the Trust, the
Trustee and the Collateral Trustee......... 83
Section 8.5 The Servicer Not to Resign................... 84
Section 8.6 Access to Certain Documentation and
Information Regarding the Included
Leases..................................... 84
Section 8.7 Delegation of Duties......................... 85
Section 8.8 Contents of Records.......................... 85
ARTICLE IX
PAY OUT EVENTS............................... 85
Section 9.1 Pay Out Events............................... 85
Section 9.2 Additional Rights Upon the Occurrence
of Certain Events.......................... 87
ARTICLE X
SERVICER DEFAULTS............................ 88
Section 10.1 Servicer Defaults............................ 88
Section 10.2 Trustee to Act; Appointment of
Successor.................................. 90
Section 10.3 Notification to Holders...................... 92
Section 10.4 Waiver of Past Defaults...................... 92
ARTICLE XI
THE TRUSTEE AND THE COLLATERAL TRUSTEE....... 92
Section 11.1 Duties of Trustee............................ 92
Section 11.2 Certain Matters Affecting the Trustee........ 95
Section 11.3 Trustee Not Liable for Recitals in
Notes...................................... 96
Section 11.4 Trustee May Own Notes........................ 97
Section 11.5 Servicer to Pay Trustee's Fees and
Expenses................................... 97
Section 11.6 Eligibility Requirements for Trustee......... 98
Section 11.7 Resignation or Removal of Trustee............ 98
Section 11.8 Successor Trustee............................ 99
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Section 11.9 Merger or Consolidation of Trustee........99
Section 11.10 Appointment of Co-Trustee or Separate
Trustee................................99
Section 11.11 Tax Returns..............................101
Section 11.12 Trustee May Enforce Claims Without
Possession of Notes...................101
Section 11.13 Suits for Enforcement....................102
Section 11.14 Rights of Holders to Direct Trustee......102
Section 11.15 Representations and Warranties of
Trustee...............................102
Section 11.16 Maintenance of Office or Agency..........103
Section 11.17 Release of Collateral Trustee's Lien.....103
Section 11.18 Requests for Agreement...................103
Section 11.19 Duties of Collateral Trustee.............103
Section 11.20 Certain Matters Affecting the
Collateral Trustee....................105
Section 11.21 Collateral Trustee Not Liable for
Recitals in Notes.....................106
Section 11.22 Collateral Trustee May Own Notes.........107
Section 11.23 Servicer to Pay Collateral Trustee's
Fees and Expenses.....................107
Section 11.24 Eligibility Requirements for Collateral
Trustee...............................108
Section 11.25 Resignation or Removal of Collateral
Trustee...............................108
Section 11.26 Successor Collateral Trustee.............109
Section 11.27 Merger or Consolidation of Collateral
Trustee...............................109
Section 11.28 Appointment of Co-Collateral Trustee or
Separate Collateral Trustee...........110
Section 11.29 Collateral Trustee May Enforce Claims
Without Possession of Notes...........111
Section 11.30 Suits for Enforcement....................111
Section 11.31 Rights of Holders to Direct Collateral
Trustee...............................112
Section 11.32 Representations and Warranties of
Collateral Trustee....................112
Section 11.33 Limitation of Liability..................112
ARTICLE XII
TERMINATION..............................113
Section 12.1 Termination of Trust.....................113
Section 12.2 Optional Purchase and Final Trust
Termination Date of Notes.............114
Section 12.3 Final Distributions......................115
Section 12.4 Termination Rights of the Holder of
the Transferor Interest...............116
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ARTICLE XIII
MISCELLANEOUS PROVISIONS.................116
Section 13.1 Amendment................................116
Section 13.2 Protection of Right, Title and Interest
to Trust..............................118
Section 13.3 Limitation on Rights of Holders..........119
SECTION 13.4 GOVERNING LAW............................120
Section 13.5 Notices..................................120
Section 13.6 Severability of Provisions...............121
Section 13.7 Rule 144A Information....................121
Section 13.8 Notes Nonassessable and Fully Paid.......121
Section 13.9 Further Assurances.......................121
Section 13.10 No Waiver: Cumulative Remedies...........121
Section 13.11 Counterparts.............................121
Section 13.12 Third-Party Beneficiaries................122
Section 13.13 Actions by Holders.......................122
Section 13.14 Merger and Integration...................122
Section 13.15 No Bankruptcy Petition...................123
Section 13.16 Headings.................................123
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EXHIBITS
Exhibit A: Form of Custodian Agreement
Exhibit B: Form of Transfer Agreement of Additional Leases
Exhibit C: Form of Opinion of Counsel with Respect to
Additional Leases
Exhibit D: Form of Retransfer Agreement
Exhibit E: Form of Lockbox Agreement
Exhibit F: Form of Monthly Servicer's Certificate
Exhibit G: Form of Annual Independent Auditors' Report
Exhibit H: Form of Monthly Payment Instructions and
Notification
Exhibit I: Form of Opinion with Respect to Amendments
Exhibit J: Form of Annual Opinion of Counsel
SCHEDULES
Schedule 1 List of Leases
Schedule 2 List of Lockboxes
Schedule 3 Portfolio Parameters
Schedule 4 Identification of Accounts
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POOLING AND SERVICING AGREEMENT AND INDENTURE OF TRUST, dated
as of July 1, 1995, among AFG CREDIT CORPORATION, a Delaware corporation, as
Transferor, AMERICAN FINANCE GROUP, INC., a Delaware corporation ("AFG"), as
Servicer, and BANKERS TRUST COMPANY, a banking corporation organized and
existing under the laws of the State of New York, as Trustee (in such capacity,
the "Trustee") and as Collateral Trustee (in such capacity, the "Collateral
Trustee").
In consideration of the mutual agreements herein contained,
each party agrees as follows for the benefit of the other parties and for the
benefit of the Noteholders and the Holder of the Transferor Interest:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Whenever used in this
Agreement, the following words and phrases shall have the
following meanings:
"Accelerated Funding Requirement" shall mean, with respect to
any Series, the obligation to prepay the Principal Amount of such
Series to the extent specified in the related Supplement.
"Accelerated Payment Event" shall have for any Series the
meaning, if any, specified in the related Supplement.
"Accrual Period" shall mean the period from and including a
Distribution Date (or in the case of the initial Accrual Period, the
Initial Closing Date) to but excluding the succeeding Distribution
Date.
"Accumulating Series" shall mean, as of a date of
determination, each Series that is then in its Accumulation Period.
"Accumulation Period" shall mean, with respect to any Series,
the period, if any, specified as such in the related Supplement.
"Addition Date" shall mean, with respect to any Additional
Leases, the date on which such Additional Leases are transferred to the
Trust pursuant to Section 2.6.
"Additional Cut Off Date" shall mean each date as of which an
Additional Lease is to be transferred to the Trust, as specified in the
related Assignment.
"Additional Leases" shall mean the Leases transferred to the
Trust after the Initial Closing Date.
"Additional Selection Criteria" shall have for any Series the
meaning, if any, specified in the related Supplement.
"Adjusted Principal Amount" shall mean on any date of
determination, with respect to any Series, the excess, if any, of the
Principal Amount for such Series over the amount on deposit in the
related Distribution Account for application to reduce the Note
Principal Amount thereof, in each case on such date of determination.
"Advance Payment" means, with respect to any Lease and any
Monthly Period, any Scheduled Payment (or portion thereof) which is due
in a subsequent Monthly Period which the Servicer has received, and
expressly permitted the related Lessee to make, in advance of its
scheduled due date and which will be applied to such Scheduled Payment
on such due date.
"Affiliate" of any specified Person, shall mean any other
Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person. For
purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the
foregoing.
"Aggregate Adjusted Principal Amount" shall mean, as of any
date of determination, the sum of the Adjusted Principal Amounts of all
Series issued and outstanding on such date of determination.
"Aggregate Net Pool Balance" means, on any date of
determination, the product of (i) the excess of (A) the Aggregate Pool
Balance over (B) the sum of the Excess Concentration Amounts, in each
case as of such date of determination, and (ii) prior to the Crossover
Date, 80% and thereafter, 100%.
"Aggregate Pool Balance" means, on any date of determination,
the sum of the Discounted Lease Balances of all Included Leases on such
date. For purposes of calculating such sum on any date other than the
last day of a Monthly Period, the Discounted Lease Balance of any
Included Lease shall be as of the last day of the preceding Monthly
Period or, with respect to any Lease transferred to the Trust after
such last day, the Discounted Lease Balance on the Cut Off Date for
such Lease.
"Aggregate Principal Amount" shall mean, as of any date of
determination, the sum of the Principal Amounts of all Series issued
and outstanding on such date of determination.
"Aggregate Principal Percentage" shall mean, as of any date of
determination, the percentage equivalent of a fraction the numerator of
which is the Aggregate Adjusted Principal Amount and the denominator of
which is the Aggregate Net Pool Balance in each case on such date of
determination; provided, however, that the Aggregate Principal
Percentage shall not exceed 100%.
"Agreement" shall mean this Pooling and Servicing Agreement
and Indenture of Trust and all amendments hereof and supplements
hereto, including any Supplement.
"Amortization Commencement Date" shall mean, with respect to
any Series, the first day to occur after the last day of the Revolving
Period for such Series.
"Amortization Period" shall mean, with respect to any Series,
the period, if any, specified as such in the related Supplement.
"Amortizing Pool" shall mean with respect to each Series that
is then in its Amortization Period or Accumulation Period, the Included
Leases (or portions thereof) that have been allocated to such Series
pursuant to Section 4.4 for the purposes of making the calculations
referred to therein.
"Amortizing Series" shall mean each Series in its Amortization
Period as of a date of determination.
"Applicable Discount Rate" shall mean (i) with respect to each
Included Lease that is a Hedged Lease, the sum of (w) the effective per
annum interest rate implicit in the Interest Rate Hedge applicable
thereto, (x) the Servicing Fee Percentage, (y) the Weighted Average
Applicable Margin, and (z) the Weighted Average Applicable Additional
Fees, and (ii) with respect to each Included Lease that is not a Hedged
Lease, a rate per annum equal to the sum of (w) the yield (determined
by the Servicer on the third Business Day prior to the Closing Date or
Addition Date for such Lease, as the case may be) for actively traded
U.S. Treasury securities having a constant maturity equal to the then-
remaining weighted average life to maturity of such Lease (or, if there
is no such security, such yield shall be obtained by interpolation of
such securities having a constant maturity closest to such average
life), (x) 1.60%, (y) the Servicing Fee Percentage and (z) the Weighted
Average Applicable Additional Fees.
"Applicable Margin" shall mean, with respect to each Series,
or each Class within a Series, that bears interest at a floating rate,
the margin over such rate specified for such Series or Class in the
related Supplement.
"Applicants" shall have the meaning specified in
Section 6.7.
"Asset Base" shall mean as of any date of determination the
sum of (i) the amount on deposit in the Excess Funding Account on such
day and (ii) the Aggregate Net Pool Balance on such day.
"Asset Purchase Agreement" shall mean the Asset Purchase
Agreement, dated as of July 1, 1995, between the Transferor and AFG, as
amended from time to time.
"Authorized Newspaper" shall mean The New York Times or
the Wall Street Journal.
"Available Amount" shall mean, in respect of any Distribution
Date, the sum of (i) all amounts on deposit in the Collection Account
on the immediately preceding Determination Date other than amounts
representing Advance Payments due in a Monthly Period commencing after
the last day of the preceding Monthly Period or that were received by
the Servicer after the last day of the preceding Monthly Period, (ii)
any investment earnings credited to the Collection Account, the Excess
Funding Account or the Tax Escrow Account during the preceding Monthly
Period pursuant to the terms of this Agreement or any Supplement, (iii)
any amount to be received from a Hedging Counterparty on or prior to
the Transfer Date preceding such Distribution Date in respect of the
Accrual Period ending on such Distribution Date, and (iv) any other
amounts received in respect of an Enhancement.
"Available Excess Funding Amount" shall mean as of any date of
determination the lesser of (i) the amount on deposit in the Excess
Funding Account on such day and (ii) an amount that would not, after
giving effect to the application thereof, cause the Asset Base to be
less than the Aggregate Adjusted Principal Amount.
"Book-Entry Notes" shall mean entries evidencing a beneficial
interest in any Notes, ownership and transfers of which shall be made
through book entries by a Clearing Agency as described in Section 6.9,
provided, that after the occurrence of a condition whereupon book-entry
registration and transfer are no longer permitted and Definitive Notes
are to be issued to the Note Owners, such Notes shall no longer be
"Book-Entry Notes".
"Business Day" shall mean each day which is neither a
Saturday, a Sunday nor any other day on which banking institutions in
Boston, Massachusetts, New York, New York, San Francisco, California
(or, with respect to any Series, any additional city specified in the
related Supplement) are authorized or obligated by law or required by
executive order to be closed.
"Casualty Loss" means, with respect to any item of Equipment,
the loss, theft, damage beyond repair or governmental condemnation or
seizure of such item of Equipment.
"Casualty Payment" means any payment pursuant to the terms of
a Lease in connection with a Casualty Loss.
"Class" shall mean, with respect to any Series, any one or
more of the classes of Notes of such Series as specified in the related
Supplement.
"Clearing Agency" shall mean an organization registered as a
"clearing agency" pursuant to Section 17A of the Securities Exchange
Act of 1934, as amended.
"Clearing Agency Participant" shall mean a broker, dealer,
bank, other financial institution or other Person for whom from time to
time a Clearing Agency effects book-entry transfers and pledges of
securities deposited with the Clearing Agency.
"Closing Date" shall mean, with respect to any Series, the
date specified as such in the related Supplement.
"Collateral Trustee" shall mean the institution executing this
Agreement as Collateral Trustee, or its successor in interest, or any
successor collateral trustee appointed as herein provided.
"Collection Account" shall have the meaning specified
in subsection 4.2(a).
"Collections" means all payments received on or with respect
to the Included Leases or the related Equipment, including, without
limitation, Scheduled Payments, Advance Payments, Liquidation Proceeds,
amounts received in respect of Warranty Purchase Prices, Insurance
Proceeds, Early Termination Lease Proceeds and Expired Lease Proceeds,
all as related to amounts attributable to the Equipment and the
Included Leases, but excluding any Excluded Amounts.
"Corporate Trust Office" shall mean the principal office of
the Trustee at which at any particular time its corporate trust
business shall be administered, which office
at the date of the execution of this Agreement is located at Four
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Credit Guidelines" shall mean the Transferor's and
AFG's Standard Credit Underwriting Guidelines as in effect from time to
time.
"Crossover Date" shall mean the first Distribution Date to
occur after the Initial Closing Date on which the Aggregate Net Pool
Balance equals or exceeds $30,000,000.
"Custodian" shall mean initially the party that is designated
as the custodian under the Custodian Agreement and its permitted
successors and assigns, and thereafter any Person appointed as
successor Custodian as therein provided.
"Custodian Agreement" shall have the meaning specified
in Section 2.2(b).
"Cut Off Date" shall mean with respect to each Original Lease,
the date established as such by the Servicer, and with respect to each
Additional Lease, the related Additional Cut Off Date.
"Date of Processing" shall mean, with respect to any
transaction, the date on which such transaction is first recorded on
the Servicer's computer master file of Leases (without regard to the
effective date of such recordation).
"Debtor Relief Laws" shall mean the Bankruptcy Code of the
United States of America and all other applicable liquidation,
conservatorship, bankruptcy, moratorium, rearrangement, receivership,
insolvency, reorganization, suspension of payments, or similar debtor
relief laws from time to time in effect affecting the rights of
creditors generally.
"Default Amount" shall mean, for any Monthly Period, an amount
(which shall not be less than zero) equal to the Discounted Lease
Balance for each Included Lease that became a Defaulted Lease during
such Monthly Period.
"Defaulted Lease" means an Included Lease as to which (i) the
Servicer has determined in its sole discretion, in accordance with its
customary servicing procedures, that such Lease is not collectible, or
(ii) all or part of a Scheduled Payment thereunder is more than 90 days
delinquent.
"Definitive Notes" shall have the meaning specified in
Section 6.9.
"Delinquent Lease" shall mean, on any date of
determination, each Included Lease with respect to which any
Scheduled Payment or portion thereof is more than 60 days delinquent as
of such date of determination.
"Depository Agreement" shall mean, with respect to any Series,
the agreement (if any) among the Transferor, the Trustee and the
initial Clearing Agency (if any) with respect to such Series.
"Determination Date" shall mean with respect to any Monthly
Period, the tenth day of the succeeding calendar month or, if such
tenth day is not a Business Day, the next succeeding Business Day.
"Discounted Lease and Residual Balance" means, with respect to
any Included Lease, at any time of determination, the sum of (i) the
Discounted Lease Balance plus (ii) the Equipment Residual Value for the
related Equipment.
"Discounted Lease Balance" means, with respect to any Included
Lease, at any time of determination, the sum of (i) the present value
of all of the remaining Scheduled Payments becoming due under such
Lease after such date of determination (not to exceed the Stipulated
Loss Value thereunder), discounted monthly at the Applicable Discount
Rate in the manner described below and (ii) the aggregate amount of all
Scheduled Payments (due after the applicable Cut Off Date) then due and
payable under such Lease which have not been received by the Servicer;
provided, however, that for purposes of computing the Aggregate Pool
Balance, the Discounted Lease Balance of any Defaulted Lease,
Ineligible Lease, Early Termination Lease or Expired Lease or Removed
Lease shall be equal to zero.
In connection with all calculations required to be made
pursuant to this Agreement with respect to the determination of
Discounted Lease Balances, for any date of determination the
"Discounted Lease Balance" for each Lease shall be calculated assuming:
(i) all payments due in any Monthly Period are
due on the last day of such Monthly Period;
(ii) payments are discounted on a monthly basis
using a 30 day month and a 360 day year;
(iii) payments are discounted to the last day of
the Monthly Period in which the date of determination falls;
and
(iv) all security deposits are applied to
reduce Scheduled Payments in inverse order of the due date
thereof.
"Distribution Account" shall have the meaning specified
in any applicable Supplement.
"Distribution Date" shall mean the fifteenth day of each month
or, if such fifteenth day is not a Business Day, the next succeeding
Business Day.
"Early Termination Lease" means any Lease that has terminated
prior to its scheduled expiration date (including because of a Casualty
Loss), other than a Defaulted Lease.
"Early Termination Lease Proceeds" means any and all cash
proceeds or rents realized from the sale or re-lease of Equipment under
an Early Termination Lease (net of Liquidation Expenses).
"Eligible Deposit Account" shall mean either (a) a segregated
account with a Qualified Institution or (b) a segregated trust account
with the corporate trust department of a depository institution
organized under the laws of the United States or any one of the states
thereof, including the District of Columbia (or any domestic branch of
a foreign bank), and acting as a trustee for funds deposited in such
account, so long as any of the securities of such depository
institution shall have a credit rating from each Rating Agency in one
of its short-term credit rating categories which signifies investment
grade.
"Eligible Equipment" shall mean any item of Equipment other
than commercial jet aircraft designed to carry more than 50 passengers
or self-powered ocean-going vessels.
"Eligible Lease" shall mean at any date of
determination, each Lease:
(a) which is payable in United States dollars;
(b) the Lessee in respect of which is an Eligible
Lessee and with respect to which the related Equipment is
Eligible Equipment;
(c) which is not a Defaulted Lease as of the
related Cut Off Date, and with respect to which, as of such
date no Scheduled Payment was more than 60 days past due;
(d) which was originated or acquired by the
Transferor in accordance with the Credit Guidelines;
(e) which was created in compliance, in all
material respects, with all Requirements of Law and which
complies, in all material respects, with all Requirements of
Law;
(f) with respect to which all material consents,
licenses, approvals or authorizations of, or registrations or
declarations with, any Governmental Authority required to be
obtained, effected or given by the Originator thereof or the
Transferor in connection with the creation of such Lease or
the execution, delivery and performance by such Originator or
the Transferor of its obligations under the Lease, have been
duly obtained, effected or given and are in full force and
effect;
(g) as to which and as to the related Equipment,
immediately prior to the transfer of same to the Trust by the
Transferor, the Transferor had good title thereto free and
clear of all Liens arising under or through the Originator
thereof, the Transferor or their respective Affiliates (other
than Permitted Liens and except for the interest of the Lessee
in the related Equipment pursuant to such Lease) and as to
which immediately after the transfer of same to the Trust by
the Transferor, the Trust will have good title thereto free
and clear of all Liens arising under or through the Originator
thereof, the Transferor or their respective Affiliates (other
than Permitted Liens and except for the interest of the Lessee
in the related Equipment pursuant to such Lease);
(h) which is the legal, valid and binding payment
obligation of the Lessee with respect thereto, enforceable
against such Lessee in accordance with its terms, except as
such enforceability may be limited by applicable Debtor Relief
Laws, and except as such enforceability may be limited by
general principles of equity (whether considered in a suit at
law or in equity);
(i) which constitutes an "account," a "general
intangible" or "chattel paper" under and as defined in Article
9 of the UCC as then in effect in the State of California;
(j) no provision of which, at the time of transfer to
the Trust, has been waived, altered or otherwise modified
except by an instrument or document contained in the related
Lease File;
(k) which obligates the Lessee to maintain the
related Equipment in good working order, to bear all costs of
operating such Equipment (including taxes and insurance) and
unconditionally, and without set-off or deduction, to make all
payments thereunder, free and clear of any taxes, including
without limitation withholding taxes, and, without limiting
the foregoing,
contains provisions requiring the Lessee to assume all
risk of loss or malfunction of the related Equipment;
(l) which provides to the lessor the option, upon a
Casualty Loss, to do one or more of the following: (i) at the
Lessee's expense to repair the Equipment, (ii) to replace the
Equipment with similar Equipment of equal or greater value or
(iii) to require that the Lessee pay to the lessor the
Stipulated Loss Value;
(m) which obligates the Lessee to make Scheduled
Payments thereunder no less frequently than once every six
months and provides that the lessor may accelerate all
remaining Scheduled Payments upon default (and the expiration
of any applicable grace period) by the Lessee thereunder;
(n) which, as of the related Cut Off Date, had a
lease term of not less than 6 months and of not more than 72
months;
(o) which, as of the applicable Cut Off Date and
after giving effect to its transfer to the Trust, did not
cause any of the Portfolio Parameters to be untrue;
(p) which are not and will not be subject to any
claim of rescission, set-off, counterclaim or any other
defense of the Lessee, other than defenses arising out of
applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting the enforcement of creditors'
rights in general; and
(q) as to which, at the time of transfer to the
Trust, the related vendor has been paid in full, and each of
the Transferor and the Originator has satisfied all its
obligations required to be satisfied by such time.
"Eligible Lessee" shall mean at any date of determination, a
Lessee (i) that has provided a billing address for the related Lease in
the United States of America, (ii) that is organized under the laws of
the United States of America or any State thereof, or that is organized
under the laws of Canada or any province thereof, or (iii) with respect
to which the Rating Agency Condition has been satisfied. For purposes
of this definition, any Lessee the obligations of which under the
related Lease are fully and unconditionally guaranteed by an entity
that would be an Eligible Lessee under the preceding sentence, shall be
deemed to be an Eligible Lessee.
"Enhancement" shall mean, with respect to any Series, the cash
collateral account, letter of credit, guaranteed rate agreement,
maturity guaranty facility, tax protection
agreement, interest rate swap or any other contract, arrangement or
agreement for the benefit of the Noteholders of such Series (or
Noteholders of a Class within such Series), as designated in the
applicable Supplement.
"Enhancement Provider" shall mean, with respect to any Series,
the Person, if any, designated as such in the related Supplement.
"Equipment" means the assets (including office or other
equipment) leased to a Lessee pursuant to a Lease and/or, unless the
context otherwise requires, a security interest in such assets.
"Equipment Excess Concentration Amount" shall have the meaning
specified in Schedule 3.
"Equipment Residual Value" means the anticipated residual
value of the Equipment related to a Lease upon the expiration of such
Lease in accordance with its terms (as such residual value is estimated
by the Servicer on or about the date on which such Lease was created in
accordance with its normal valuation procedures), but not in excess of
any purchase option price with respect thereto set forth in such Lease.
"Excess Concentration Amount" shall mean as of any date of
determination, the sum of the Individual Lessee Excess Concentration
Amount, the Industry Excess Concentration Amount, the Semi-Annual
Lease Excess Concentration Amount and the Equipment Excess
Concentration Amount, in each case as of such date of determination.
"Excess Funding Account" shall have the meaning
specified in subsection 4.2(b).
"Exchange" shall have the meaning specified in
subsection 6.12(b).
"Exchange Date" shall have the meaning specified in
subsection 6.12(b).
"Exchange Notice" shall have the meaning specified in
subsection 6.12(b).
"Excluded Amounts" means any Tax Collections and any payments
received from a Lessee in connection with any insurance premiums or
fees, any indemnity payments made by a Lessee for the benefit of the
lessor under the related Lease or any payments collected from a Lessee
relating to servicing and/or maintenance payments pursuant to the
related Lease or maintenance agreement, as applicable.
"Expired Lease" means any Lease that has terminated on
its scheduled expiration date.
"Expired Lease Proceeds" means any and all cash proceeds or
rents realized from the sale or re-lease of Equipment under an Expired
Lease (net of Liquidation Expenses).
"FDIC" shall mean the Federal Deposit Insurance
Corporation, or any successor thereto.
"Filing Locations" means the States of California and
Massachusetts.
"Final Trust Termination Date" shall mean December 31,
2015.
"Floating Pool" shall mean on any date of determination, all
Included Leases (or portions thereof) on such date other than Included
Leases (or portions thereof) allocated to an Amortizing Pool as of such
date.
"Governmental Authority" shall mean the United States of
America, any state or other political subdivision thereof and any
entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Hedge Termination Payment" shall mean with respect to any
Hedged Lease that becomes an Early Termination Lease and for which a
Substitute Lease is not provided, the amount, if any, owing to the
related Hedge Counterparty in respect of the corresponding early
termination of the related Interest Rate Hedge.
"Hedged Lease" shall mean on any date of determination each
Included Lease that is the subject of an Interest Rate Hedge on such
date of determination.
"Hedging Counterparty" shall mean initially, First Union
National Bank of North Carolina in its capacity as obligor under the
Interest Rate Hedge, and any other Person that provides an Interest
Rate Hedge as provided in Section 4.5(a) or if any Replacement Interest
Rate Hedge or Qualified Substitute Arrangement is obtained pursuant to
Section 4.5(b), any obligor with respect to such Replacement Interest
Rate Hedge or Qualified Substitute Arrangement.
"Highest Required Investment Category" shall mean (i) with
respect to ratings assigned by Standard & Poor's, A-1+ for short-term
instruments and AAA for long-term instruments and (ii) with respect to
ratings assigned by Moody's, A-2 or P-1 for one month instruments, A-1
or P-1 for three month
instruments, AA3 or P-1 for six month instruments and AAA or P-1 for
instruments with a term in excess of six months.
"Holder" shall mean the Person in whose name a Note or the
Transferor Interest is registered in the Register.
"Included Lease" shall mean each Original Lease and each
Additional Lease, but shall exclude any Removed Lease after the Removal
Date with respect thereto.
"Indebtedness" shall mean, with respect to any Person at any
date, (a) all indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services (other than current
liabilities incurred in the ordinary course of business and payable in
accordance with customary trade practices) or which is evidenced by a
note, bond, debenture or similar instrument, (b) all obligations of
such Person under capital leases, (c) all obligations of such Person in
respect of acceptances issued or created for the account of such Person
and (d) all liabilities secured by any Lien on any property owned by
such Person even though such Person has not assumed or otherwise become
liable for the payment thereof.
"Individual Lessee Excess Concentration Amount" shall have the
meaning specified in Schedule 3.
"Industry Excess Concentration Amount" shall have the meaning
specified in Schedule 3.
"Ineligible Lease" shall have the meaning specified in
subsection 2.4(d).
"Initial Closing Date" shall mean the date on which the
initial Series is issued.
"Initial Principal Amount" with respect to any Series, shall
have the meaning specified in the related Supplement.
"Insolvency Event" means, with respect to a specified Person,
(a) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of such Person or any
substantial part of its property in an involuntary case under any
applicable Federal or state bankruptcy, insolvency or other similar law
now or hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official for such
Person or for any substantial part of its property, or ordering the
winding-up or liquidation of such Person's affairs, and such decree or
order shall remain unstayed and in effect for a period of 60
consecutive days; or (b) the commencement by such Person of a voluntary
case under any applicable Federal or state bankruptcy, insolvency or
other similar law now or hereafter in effect, or the consent by
such Person to the entry of an order for relief in an involuntary case
under any such law, or the consent by such Person to the appointment of
or taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official for such Person or for any
substantial part of its property, or the making by such Person of any
general assignment for the benefit of creditors, or the failure by such
Person generally to pay its debts as such debts become due, or the
taking of action by such Person in furtherance of any of the foregoing.
"Insurance Policy" means, with respect to any Lease, an
insurance policy covering physical damage to or loss of the related
Equipment.
"Insurance Proceeds" means, depending on the context, any
amounts payable or any payments made, to the Servicer under any
Insurance Policy.
"Interest Rate Hedge" shall mean the master agreement between
the Trustee on behalf of the Trust and the initial Hedging
Counterparty, and any other similar agreement executed by the Trust and
delivered pursuant to Section 4.5(a), in each case as supplemented from
time to time by the Trustee on behalf of the Trust and the relevant
Hedging Counterparty, or any Replacement Interest Rate Hedge or
Qualified Substitute Arrangement.
"Internal Revenue Code" shall mean the Internal Revenue Code
of 1986, as amended from time to time.
"Lease" shall mean each agreement, including, as applicable,
schedules, subschedules, supplements and amendments to a master lease,
pursuant to which the Originator, as lessor, leases specified assets to
a Lessee at a specified monthly or quarterly rental.
"Lease Files" shall mean, with respect to each Included Lease,
the fully executed original counterpart (for UCC purposes) of the
Lease, the original certificate of title or other title document with
respect to the related Equipment (if applicable), and otherwise such
documents, if any, that the Servicer keeps on file in accordance with
its customary procedures, evidencing ownership of such Equipment.
"Lessee" means, with respect to any Lease, the Person or
Persons obligated to make payments with respect to such Lease,
including any guarantor thereof.
"Lien" shall mean any mortgage, deed of trust, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or other), equity interest, participation interest,
preference, priority or other security agreement or preferential
arrangement of any kind or nature
whatsoever, including, without limitation, any conditional sale or
other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing;
provided, however, that any assignment pursuant to Section 7.2 shall
not be deemed to constitute a Lien.
"Liquidation Expenses" means, with respect to any Lease, the
aggregate amount of all out-of-pocket expenses reasonably incurred by
the Servicer (including amounts paid to any subservicer) and any
reasonably allocated costs of internal counsel, in each case in
accordance with the Servicer's customary procedures in connection with
the repossession, refurbishing and disposition of any related Equipment
upon or after the expiration or earlier termination of such Lease and
other out-of-pocket costs related to the liquidation of any such
Equipment, including the attempted collection of any amount owing
pursuant to such Lease if it is a Defaulted Lease.
"Liquidation Proceeds" means, with respect to a Defaulted
Lease, proceeds from the sale or re-lease of the Equipment, proceeds of
the related Insurance Policy and any other recoveries with respect to
such Defaulted Lease and the related Equipment, net of Liquidation
Expenses and amounts, if any, so received that are required to be
refunded to the Lessee on such Lease.
"Lockbox" shall mean the post office boxes listed on Schedule
2 to which the Lessees are instructed to remit payments on the Included
Leases and/or such other post office boxes as may be established
pursuant to subsection 3.2(f).
"Lockbox Account" shall mean the intervening account used by a
Lockbox Processor for deposit of funds received in a Lockbox prior to
their transfer to the Collection Account.
"Lockbox Agreement" shall have the meaning specified in
Section 3.2(f).
"Lockbox Processor" shall mean the depositary institution or
processing company (which may be the Trustee) which processes payments
on the Leases sent by the Lessees thereon forwarded to a Lockbox.
"Monthly Period" shall mean a calendar month.
"Monthly Servicing Fee" shall have the meaning
specified in Section 3.8.
"Monthly Statement" shall have the meaning specified in
Section 3.10.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.,
or any successor thereto.
"Note" shall mean any one of the notes of any Series executed
by the Trust and authenticated by the Trustee substantially in the form
(or forms, in the case of a Series with multiple Classes) of the notes
attached to the related Supplement.
"Note Interest" shall mean interest payable in respect of the
Notes of any Series pursuant to Article IV as set forth in the
Supplement related to such Series.
"Note Owner" shall mean, with respect to a Book-Entry Note,
the Person who is the owner of such Book-Entry Note, as reflected on
the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly or as an
indirect participant, in accordance with the rules of such Clearing
Agency).
"Note Principal" shall mean principal payable in respect of
the Notes of any Series pursuant to Article IV as set forth in the
Supplement related to such Series.
"Note Rate" shall mean, with respect to any Series of Notes
(or, for any Series with more than one Class, for each Class of such
Series), the rate (or formula on the basis of which such rate shall be
determined) per annum stated for such Series in the related Supplement,
which rate shall be calculated in each case on the basis set forth in
the related Supplement.
"Noteholder" shall mean the Person in whose name a Note
is registered in the Register.
"Notice Date" shall have the meaning specified in
Section 2.6(b).
"Officer's Certificate" shall mean a certificate signed by any
officer of Transferor or the Servicer and delivered to the Trustee.
"Opinion of Counsel" shall mean a written opinion of counsel,
who may be counsel (including internal counsel) for the Transferor or
the Servicer, which counsel shall be reasonably acceptable to the
Trustee.
"Optional Repurchase Percentage" shall have, with respect to
any Series, the meaning specified in the related Supplement.
"Original Lease" shall mean each Lease identified by account
number and Lease Balance in a computer file or list
delivered to the Trustee by the Transferor on or prior to the Initial
Closing Date pursuant to Section 2.1.
"Originator" shall mean, with respect to each Lease, the party
that is the original lessor thereunder.
"Paying Agent" shall mean any paying agent appointed pursuant
to Section 6.6 and shall initially be the Trustee.
"Pay Out Commencement Date" shall mean, with respect to each
Series, (a) the date on which a Trust Pay Out Event is deemed to occur
pursuant to Section 9.1, or (b) the date on which a Series Pay Out
Event is deemed to occur pursuant to the Supplement for such Series.
"Pay Out Event" shall mean either a Trust Pay Out Event
or a Series Pay Out Event.
"Pay Out Event Series Share" shall mean, with respect to any
allocation or payment following the occurrence of a Pay Out Event and
any particular Series, the lesser of (i) the percentage equivalent of a
fraction, the numerator of which is the Adjusted Principal Amount of
such Series as of the first day of the Pay Out Event and the
denominator of which is the Aggregate Adjusted Principal Amount, as of
such first day and (ii) the remaining unpaid Adjusted Principal Amount
of such Series.
"Permitted Investments" shall mean negotiable instruments or
securities or other investments (a) which, except in the case of demand
or time deposits, investments in money market funds and Repurchase
Obligations, are represented by instruments in bearer or registered
form or ownership of which is represented by book entries by a Clearing
Agency or by a Federal Reserve Bank in favor of depository institutions
eligible to have an account with such Federal Reserve Bank who hold
such investments on behalf of their customers and (b) which evidence:
(i) direct obligations of, and obligations
fully guaranteed as to full and timely payment by, the
United States of America (or by any agency thereof to the
extent such obligations are backed by the full faith and
credit of the United States of America);
(ii) demand deposits, time deposits or
certificates of deposit of depository institutions or trust
companies 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 depository
institution authorities; provided, however, that at the time
of the Trust's investment or contractual commitment to invest
therein, the commercial paper, if any, and short-term
unsecured
debt obligations (other than such obligation whose rating is
based on the credit of a Person other than such institution or
trust company) of such depository institution or trust company
shall have a credit rating from the Rating Agency in the
Highest Required Investment Category granted by such Rating
Agency;
(iii) commercial paper having, at the time of the
Trust's investment or contractual commitment to invest
therein, a rating in the Highest Required Investment Category
granted by the Rating Agency;
(iv) bankers' acceptances issued by any depository
institution or trust company referred to in (ii) above;
(v) investments in money market funds having, at
the time of the Trust's investment or contractual commitment
to invest therein, a rating of the Highest Required Investment
Category from the Rating Agency;
(vi) time deposits (having maturities of not more
than 90 days) or notes which are payable on demand by an
entity the commercial paper of which has, at the time of the
Trust's investment or contractual commitment to invest
therein, a rating of the Highest Required Investment Category
granted by the Rating Agency; and
(vii) Repurchase Obligations.
"Permitted Liens" shall mean (a) with respect to
Included Leases:
(i) Liens for state, municipal or other local taxes if such
taxes shall not at the time be due and payable or if the
Transferor shall currently be contesting the validity thereof
in good faith by appropriate proceedings and shall have set
aside on its books adequate reserves with respect thereto, and
(ii) Liens in favor of the Trustee created pursuant to this
Agreement;
and (b) with respect to the related Equipment:
(i) Liens for state, municipal or other local taxes if such
taxes shall not at the time be due and payable or if the
Transferor shall currently be contesting the validity thereof
in good faith by appropriate proceedings and shall have set
aside on its books adequate reserves with respect thereto,
(ii) Liens in favor of the Trustee created pursuant to this
Agreement, and (iii) carriers', warehousemen's, mechanics',
materialmen's, repairmen's or other like
non-consensual Liens arising in the ordinary course of
business.
"Permitted Transaction" shall mean any transaction or series
of related transactions pursuant to which the Transferor finances an
interest in the Trust Assets or the Transferor Interest pursuant to the
transfer of a Note or the Transferor Interest or otherwise and (i) as
to which the Rating Agency Condition is satisfied and (ii) which in the
reasonable judgment of the Transferor as evidenced by an Officer's
Certificate, could not reasonably be expected to have a material
adverse effect on the interests of any of the Noteholders.
"Person" shall mean any legal person, including any
individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, governmental
entity or other entity of similar nature.
"Pool Sale" shall have the meaning specified in Section
12.2(b).
"Portfolio Parameters" shall mean the criteria
specified in Schedule 3.
"Principal Amount" shall have, with respect to any Series, the
meaning specified in the related Supplement.
"Principal Exchange" shall have the meaning specified
in subsection 6.12(b).
"Principal Percentage" shall have, for any Series, the
meaning specified in the related Supplement.
"Principal Terms" shall have the meaning, with respect to any
Series issued pursuant to an Exchange, specified in subsection 6.12(c).
"Publication Date" shall have the meaning specified in
Section 9.2(a).
"Qualified Institution" shall have the meaning
specified in Section 4.2(a).
"Qualified Substitute Arrangement" shall have the
meaning specified in Section 4.5(b).
"Rating Agency" shall mean, with respect to each Series, the
rating agency or agencies, if any, designated as a "Rating Agency" in
the related Supplement.
"Rating Agency Condition" shall mean, with respect to
any action or series of related actions or proposed
transaction or series of related proposed transactions, that each
Rating Agency shall have notified the Transferor and the Trustee in
writing that such action or series of related actions or the
consummation of such proposed transaction or series of related
transactions will not result in a reduction or withdrawal of the rating
of any outstanding Series or Class with respect to which it is a Rating
Agency.
"Record Date" shall mean with respect to any Series, any date
specified as such in the applicable Supplement.
"Register" shall have the meaning specified in Section
6.3.
"Removal Date" shall have the meaning specified in
Section 2.8(a).
"Removal Notice Date" shall have the meaning specified
in Section 2.8(a).
"Removed Leases" shall have the meaning specified in
Section 2.8.
"Replacement Interest Rate Hedge" shall mean any interest rate
swap or cap having substantially the same terms and conditions as the
Interest Rate Hedge and otherwise satisfying the conditions set forth
in Section 4.5.
"Replacement Series" shall mean a Series which is
designated as such by the Transferor.
"Repurchase Obligations" shall mean repurchase obligations
with respect to any security that is a direct obligation of, or fully
guaranteed by, the United States of America or any agency or
instrumentality thereof, the obligations of which are backed by the
full faith and credit of the United States of America (collectively,
"Eligible Collateral"), in either case entered into with a depository
institution or trust company (acting as principal) described in clause
(b)(ii) of the definition of Permitted Investments.
"Required Holders" shall have, for any Series, the
meaning specified in the related Supplement.
"Requirements of Law" for any Person shall mean the
certificate of incorporation or articles of association and by-laws or
other organizational or governing documents of such Person, and any
law, treaty, rule or regulation, or order or determination of an
arbitrator or Governmental Authority, in each case applicable to or
binding upon such Person or to which such Person is subject, whether
Federal, state or local (including, without limitation, usury laws,
the Federal Truth in Lending Act and Regulation Z and Regulation B of
the Board of Governors of the Federal Reserve System).
"Reserve Funding Requirement" shall mean, with respect to any
Series, the obligation to fund a reserve account to the extent
specified in the related Supplement.
"Response" shall have the meaning specified in
subsection 9.2(a).
"Responsible Officer" shall mean any Vice President, any
Assistant Vice President, any Assistant Secretary, any Assistant
Treasurer or any other officer of the Trustee with direct
responsibility for the administration of this Agreement and also, with
respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge of and familiarity with
the particular subject. The term "Responsible Officer", when used
herein with respect to any Person other than the Trustee, means an
officer or employee of such Person corresponding to any officer or
employee described in the preceding sentence.
"Retransfer Agreement" shall have the meaning specified
in subsection 2.8(b)(ii).
"Retransfer Date" shall have the meaning specified in
subsection 2.4(e).
"Revolving Period" shall have, with respect to any Series, the
meaning specified in the related Supplement.
"Scheduled Interest Payment" means, with respect to any
Included Lease in any Monthly Period, the excess of the Scheduled
Payment over the Scheduled Principal Payment for
such Monthly Period.
"Scheduled Payment" means, with respect to any Included Lease,
the monthly or quarterly or semi-annual rent payment to be made by the
related Lessee under the terms of such Lease after the related Cut Off
Date or Additional Cut Off Date (it being understood that Scheduled
Payments do not include any Excluded Amounts).
"Scheduled Principal Payment" means, with respect to any
Included Lease in any Monthly Period, the excess of the Discounted
Lease Balance on the first day of such Monthly Period over the
Discounted Lease Balance thereof on the first day of the succeeding
Monthly Period.
"Scheduled Termination Date" means, for each Series, its
Scheduled Termination Date as set forth in the related Supplement.
"Semi-Annual Lease Excess Concentration Amount" shall have the
meaning specified in Schedule 3.
"Series" shall mean any series of Notes, which may include
within any such Series a Class or Classes of Notes subordinate to
another such Class or Classes of Notes.
"Series Account" shall mean, with respect to any Series, any
of the accounts established and designated as such pursuant to the
related Supplement.
"Series Pay Out Event" shall have, with respect to any Series,
the meaning specified in the related Supplement.
"Series Representative" shall mean, with respect to any
Series, the Series Trustee or other representative of the Noteholders
of such Series, if any, appointed as such in the related Supplement.
"Series Sale" shall have the meaning specified in
Section 12.2(b).
"Series Share" shall mean, with respect to any allocation or
payment and any particular Series, the percentage equivalent of a
fraction, the numerator of which is the aggregate amount required to be
allocated or paid in respect thereof to such Series and the denominator
of which is the total amount thereof to be allocated or paid to all
Series, in each case without giving effect to any limitation based on
insufficient available funds.
"Series Termination Date" shall mean, with respect to any
Series, the date, if any, specified as such in the related Supplement.
"Series Trustee" shall have, with respect to any Series, the
meaning, if any, specified in the related Supplement.
"Servicer" shall mean initially AFG and its permitted
successors and assigns, and thereafter any Person appointed as
successor as herein provided to service the Trust Assets.
"Servicer Advance" means an advance of Scheduled Payments made
by the Servicer pursuant to Section 3.3.
"Servicer Default" shall have the meaning specified in
Section 10.1.
"Servicing Fee Percentage" shall mean .75%.
"Servicing Officer" shall mean any employee of the Servicer
involved in, or responsible for, the administration and servicing of
the Trust Assets whose name appears on a
list of servicing officers furnished to the Trustee by the Servicer on
the Initial Closing Date, as such list may from time to time be
amended.
"Standard & Poor's" shall mean Standard & Poor's Ratings
Group, a division of McGraw Hill, Inc., or any successor thereto.
"Stipulated Loss Value" shall mean, with respect to any Lease,
the amount payable by the Lessee upon a Casualty Loss in respect of the
related Equipment.
"Substitute Lease" means a Lease that is added to the Trust
pursuant to Section 2.7(a).
"Successor Servicer" shall have the meaning specified
in Section 10.2(a).
"Supplement" shall mean, with respect to any Series, a
supplemental Indenture to this Agreement complying with the terms of
Section 6.12, executed in conjunction with the issuance of any Series
(or, in the case of the issuance of Notes and the book-entry notation
of the Transferor Interest in the Register on the Initial Closing Date,
the supplemental indenture executed in connection with such issuance).
"Target Repayment Amount" shall mean, for each Amortizing
Series in respect of each Monthly Period commencing on and after the
Amortization Commencement Date for such Series, the Target Repayment
Percentage of the excess of (i) the sum of (A) the Scheduled Principal
Payments, (B) Early Termination Lease Proceeds, (C) Warranty Purchase
Price and (D) the Default Amount over (ii) any Unreimbursed Servicer
Advances, in each case in respect of all Included Leases (or portions
thereof) in the related Amortizing Pool for such Monthly Period and
after giving effect to any substitution or reallocation.
"Target Repayment Percentage" with respect to any Series,
shall have the meaning specified in the related Supplement.
"Tax Collections" means all payments received on or with
respect to the Included Leases or the related Equipment that are
Excluded Amounts attributable to any taxes, fees or other charges
imposed by any Governmental Authority.
"Tax Escrow Account" shall have the meaning specified
in Section 4.2(c).
"Tax Opinion" shall mean, with respect to any action, an
opinion of outside counsel to the effect that, for federal income tax
purposes, (i) such action will not
adversely affect the characterization as debt or as an interest in a
partnership (other than a partnership taxable as a corporation), as the
case may be, of any Notes of any outstanding Series or Class not
retained by the Transferor or any affiliate of the Transferor, (ii)
such action will not cause or constitute a sale, exchange or other
disposition by the Transferor or the Trust of the Trust Assets, or by
the Noteholders of such Noteholders' Notes of any Outstanding Series or
Class and (iii) on each Closing Date, the Notes of the new Series which
are not retained by the Transferor will be characterized as debt or as
an interest in a partnership (other than a partnership taxable as a
corporation).
"Termination Notice" shall have the meaning specified
in Section 10.1.
"Transfer Agent and Registrar" shall have the meaning
specified in Section 6.3(a) and shall initially be the Trustee.
"Transfer Agreement" shall have the meaning specified
in subsection 2.6(b)(iv).
"Transfer Date" shall mean the Business Day immediately
preceding each Distribution Date.
"Transferor" shall mean AFG Credit Corporation, a Delaware
corporation, or any successor thereto.
"Transferor Amount" shall mean, on any date of determination,
the Aggregate Net Pool Balance at the end of the day immediately prior
to such date of determination, minus the Aggregate Adjusted Principal
Amount at the end of such day. The Transferor Amount may be a negative
number.
"Transferor Exchange" shall have the meaning specified
in subsection 6.12(b).
"Transferor Interest" shall mean the interest which represents
the Transferor Amount and which has been evidenced by book-entry
notation in the Register, and is exchangeable as provided in Section
6.12; provided, that at any time there shall be only one Transferor
Interest, which shall not be transferable except as provided in Section
6.3(b).
"Transferor Percentage" shall mean, on any date of
determination, a percentage equal to 100% minus the Aggregate Principal
Percentage calculated on such date; provided, however, that the
Transferor Percentage shall never be less than zero.
"Trust" shall mean the trust created by this Agreement and
known as the "AFG Master Trust".
"Trust Assets" shall have the meaning specified in
Section 2.1.
"Trust Pay Out Event" shall have, with respect to each Series,
the meaning specified in Section 9.1.
"Trust Termination Date" shall have the meaning
specified in subsection 12.1.
"Trustee" shall mean the institution executing this Agreement
as Trustee, or its successor in interest, or any successor trustee
appointed as herein provided.
"UCC" shall mean the Uniform Commercial Code, as amended from
time to time, as in effect in any specified jurisdiction.
"Unreimbursed Servicer Advances" means, at any time, the
amount of all previous Servicer Advances (or portions thereof) as to
which the Servicer has not been reimbursed as of such time pursuant to
Section 4.3(d) and which the Servicer has determined in its sole
discretion will not be recoverable from Collections with respect to the
related Included Leases.
"Variable Funding Series" shall mean any Series designated as
a Variable Funding Series in the related Supplement.
"Warranty Purchase Price" means, with respect to an Included
Lease and date of determination, an amount equal to the Discounted
Lease and Residual Balance as of the preceding Determination Date, plus
one month's interest thereon at the Applicable Discount Rate.
"Weighted Average Applicable Additional Fees" shall mean at
any date of determination the weighted average of any per annum fees
that are identified as "Applicable Additional Fees" in a Supplement for
a particular Series.
"Weighted Average Applicable Margin" shall mean at any date of
determination the weighted average of the Applicable Margins in effect
on such date, as estimated by the Servicer using the weighted average
life of the Included Leases and assuming no prepayments or defaults.
Section 1.2 Other Definitional Provisions.
(a) All terms defined in this Agreement or in any Supplement
shall have the defined meanings when used in any
certificate or other document made or delivered pursuant hereto or thereto
unless otherwise defined therein.
(b) As used in this Agreement or in any Supplement and in any
certificate or other document made or delivered pursuant hereto or thereto,
accounting terms not defined in Section 1.1, and accounting terms partially
defined in Section 1.1 to the extent not defined, shall have the meanings given
to them under generally accepted accounting principles. To the extent that the
definitions of accounting terms herein are inconsistent with the meaning of such
terms under generally accepted accounting principles, the definitions contained
herein shall control.
(c) The agreements, representations and warranties of AFG in
this Agreement and in any Supplement in its capacity as Servicer shall be deemed
to be the agreements, representations and warranties of AFG solely in its
capacity as Servicer for so long as it acts in such capacity under this
Agreement.
(d) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement or any Supplement shall refer to this
Agreement or any Supplement as a whole and not to any particular provision of
this Agreement or any Supplement; and Section, subsection, Schedule and Exhibit
references contained in this Agreement or any Supplement are references to
Sections, subsections, Schedules and Exhibits in or to this Agreement or any
Supplement unless otherwise specified.
ARTICLE II
TRANSFER OF TRUST ASSETS
Section 2.1 Transfer of Trust Assets. (a) Transfer.
The Transferor does hereby transfer, assign and set-over to the
Trust for the benefit of the Noteholders and the Holder of the Transferor
Interest, all right, title and interest of the Transferor in, to and under the
following:
(i) on the Initial Closing Date and as of the related Cut
Off Date, the Original Leases and all monies due or to become due
thereunder after such Cut Off Date and all Collections in respect
thereof;
(ii) on the Addition Date with respect thereto and as of
the related Additional Cut Off Date, the Additional Leases and all
monies due or to become due thereunder after such Additional Cut Off
Date and all Collections in respect thereof;
(iii) the related Equipment;
(iv) the related Lease Files;
(v) the Asset Purchase Agreement, including, but not
limited to, the obligation of AFG to purchase or repurchase Leases
under certain circumstances as specified therein;
(vi) the Insurance Policies and any Insurance
Proceeds related to the Included Leases;
(vii) the right to any Enhancement with respect
to any Series; and
(viii) all income or proceeds of the foregoing or
relating thereto.
Such property, together with all monies and investments on deposit, from time to
time, in the Collection Account, the Excess Funding Account and the Series
Accounts, shall constitute the assets of the Trust (collectively, the "Trust
Assets"). The foregoing transfer, assignment, set-over and conveyance does not
constitute and is not intended to result in the creation of an assumption by the
Trust, the Trustee or any Noteholder of any obligation of the Transferor, the
Servicer or any other Person in connection with the Included Leases or any
agreement or instrument relating thereto, including, without limitation, any
obligation to any Lessees or insurers, or in connection with the Asset Purchase
Agreement.
(b) Financing Arrangement. The Transferor hereby transfers
the Trust Assets to the Trust with the intent of issuing indebtedness secured
by the Trust Assets.
(c) Grant of Security Interest to Collateral Trustee. The
Trustee hereby grants to the Collateral Trustee for the benefit of the
Noteholders a security interest in all of the Trustee's right, title and
interest in, to and under the Trust Assets to secure the payment of principal
and interest on, and any other amounts owing in respect of, the Notes, and to
secure compliance with the provisions of this Agreement, all as provided in this
Agreement. This Agreement constitutes a security agreement under applicable law.
(d) Perfection of Transfer. In connection with the transfer,
assignment and set-over set forth in Section 2.1(a), the Transferor agrees as
follows:
(i) The Transferor shall record and file, at its own
expense, financing statements (including any continuation statements
with respect to such financing statements when applicable) with respect
to the Included Leases now existing or hereafter transferred to the
Trust meeting the requirements of applicable state law in such manner
and in such jurisdictions as are necessary to perfect the transfer of
the Leases from the Transferor to the Trust and (subject to the
limitations set forth below) to perfect the interest of the Trust in
the related Equipment to the extent the same
may be viewed as inventory of the Transferor, and to deliver
file-stamped copies of such financing statements or continuation
statements or other evidence of such filings (which may, for purposes
of this Section 2.1, consist of telephone confirmations of such filings
with the file-stamped copy to be provided to the Trustee as soon as
practicable after receipt thereof by the Transferor) to the Trustee on
or prior to the Initial Closing Date, in the case of the Original
Leases, and the applicable Addition Date in the case of Additional
Leases and in the case of any continuation statements filed pursuant to
this Section 2.1(d), as soon as practicable after receipt thereof by
the Transferor. Notwithstanding the foregoing, the Transferor shall
only be obligated to record financing statements with respect to the
Equipment in the Filing Locations.
(ii) The Transferor shall, at its own expense, on or prior
to (x) the Initial Closing Date in the case of the Original Leases, and
(y) the applicable Addition Date, in the case of Additional Leases (A)
indicate in its books and records, including the appropriate computer
files relating to the Leases, that such Leases have been transferred to
the Trust pursuant to this Agreement for the benefit of the Noteholders
and the Holder of the Transferor Interest and stamp the related Lease
Files or otherwise xxxx such Leases with a legend to the effect that
such Leases have been transferred to the Trust for the benefit of the
Noteholders and the Holder of the Transferor Interest pursuant hereto
and (B) on or prior to the Initial Closing Date with respect to the
Original Leases and on or prior to the related Addition Date with
respect to Additional Leases to deliver to the Trustee a computer file
or microfiche or written list containing a true and complete list of
all Leases then being transferred to the Trust, identified by account
number and by the Discounted Lease Balance as of the related Cut Off
Date. Such file or list, as amended from time to time to reflect
Additional Leases and Removed Leases, shall be marked as Schedule 1 to
this Agreement and is hereby incorporated into and made a part of this
Agreement.
(iii) The Transferor shall, at its own expense, on or prior
to (x) the Initial Closing Date in the case of the Original Leases, and
(y) the applicable Addition Date, in the case of Additional Leases,
deliver to the Custodian the related Lease Files to be held by the
Custodian in accordance with the Custodian Agreement.
(iv) The Transferor shall, at its own expense, on or prior
to (x) the Initial Closing Date in the case of the Original Leases, and
(y) the applicable Addition Date, in the case of Additional Leases,
with respect to any item of related Equipment with respect to which
title thereto or a security interest therein is required to be noted on
a certificate of title or otherwise recorded, to take such
steps as shall be necessary or appropriate, in the reasonable judgment
of the Servicer, to fully vest all right, title and interest in such
Equipment in the Trustee on behalf of the Trust, provided, that to the
extent UCC or similar filings are required with respect to any item of
related Equipment, the Transferor shall only be obligated to record
such filings in the Filing Locations. The Trustee is hereby authorized
and directed to sign all financing statements under this Section
2.1(d).
(e) Perfection of Security Interest of Collateral Trustee. In
connection with the grant of a security interest by the Trustee to the
Collateral Trustee set forth in Section 2.1(b), the Servicer agrees that it
will, on behalf of the Trustee, record and file, at its own expense, financing
statements (including any continuation statements with respect to such financing
statements when applicable) with respect to the Included Leases now existing or
hereafter transferred to the Trust meeting the requirements of applicable state
law in such manner and in such jurisdictions as are necessary to perfect the
security interest of the Collateral Trustee in the Included Leases, and to
deliver file-stamped copies of such financing statements or continuation
statements or other evidence of such filings (which may, for purposes of this
Section 2.1, consist of telephone confirmations of such filings with the
file-stamped copy to be provided to the Collateral Trustee as soon as
practicable after receipt thereof by the Servicer) to the Collateral Trustee on
or prior to the Initial Closing Date, in the case of the Original Leases, and
the applicable Addition Date in the case of Additional Leases and in the case of
any continuation statements filed pursuant to this Section 2.1(e), as soon as
practicable after receipt thereof by the Servicer. Notwithstanding the
foregoing, the Servicer shall only be obligated to record financing statements
with respect to the Equipment in the Filing Locations.
(f) Grant of Security Interest to Trustee. To the
extent that the Transferor retains or is deemed to retain any interest in the
Included Leases or the related Equipment or any other property included in the
Trust Assets, the Transferor hereby grants to the Trustee, for the benefit of
the Noteholders, a first priority perfected security interest in all of the
Trust Assets to secure a loan in an amount equal to the unpaid principal
amount of the Notes issued hereunder or to be issued hereunder, the interest
accruing thereon at the applicable Note Rates and all of the Transferor's and
the Servicer's other obligations hereunder, and agrees that this Agreement
shall constitute a security agreement under applicable law.
(g) References. The foregoing transfer, assignment, set-over,
conveyance and grant from the Transferor to the Trust shall be made to the
Trustee, on behalf of the Trust, and each reference in this Agreement to such
transfer, assignment, set- over and conveyance to the Trust, and each
retransfer,
reassignment or reconveyance by the Trust, shall be construed accordingly.
Section 2.2 Acceptance by Trustee; Acknowledgment by
Collateral Trustee.
(a) Acceptance by Trustee. The Trustee hereby acknowledges its
acceptance, on behalf of the Trust, of the Trust Assets, and declares that it
shall maintain such right, title and interest, upon the trust herein set forth
in accordance with the terms of this Agreement, for the benefit of all
Noteholders and the Holder of the Transferor Interest. The Transferor shall
deliver to the Trustee on the Closing Date a certificate certifying that the
computer file or microfiche or written list with respect to the Original Leases
described in Section 2.1(d)(ii) has been provided to the Trustee.
(b) Acknowledgment by Collateral Trustee. The Collateral
Trustee hereby acknowledges its acceptance, on behalf of the Noteholders, of the
grant by the Trustee of a security interest in the Trust Assets.
(c) Custodian Agreement. In connection with the sale, transfer
and assignment of the Included Leases to the Transferor pursuant to the Asset
Purchase Agreement and to the Trust pursuant hereto, the Trustee, on behalf of
the Trust, simultaneously with the execution and delivery of this Agreement,
shall enter into a Custodian Agreement with the Custodian (the "Custodian
Agreement") in a form substantially similar to Exhibit A, pursuant to which the
Trustee, on behalf of the Trust, shall revocably appoint the Custodian, and the
Custodian shall accept such appointment, to act as the agent of the Trustee, on
behalf of the Trust, as custodian of the Lease Files.
(d) Confidentiality. The Trustee hereby agrees not to disclose
to any Person any of the account numbers or other information contained in the
computer files or microfiche or written lists delivered to the Trustee by the
Transferor pursuant to Sections 2.1 and 2.6, except as is required in connection
with the performance of its duties hereunder or in enforcing its rights or the
rights of the Noteholders and the Holder of the Transferor Interest, or to a
Successor Servicer appointed pursuant to Section 10.2, any successor trustee
appointed pursuant to Section 11.8, any co-trustee or separate trustee appointed
pursuant to Section 11.10 or as mandated by any Requirement of Law applicable to
the Trustee. The Trustee agrees to take such measures as shall be reasonably
requested by the Transferor to protect and maintain the security and
confidentiality of such information, and, in connection therewith, shall allow,
upon reasonable notice, the Transferor to inspect the Trustee's security and
confidentiality arrangements from time to time during normal business hours.
(e) No Indebtedness. The 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 this Agreement.
Section 2.3 Representations and Warranties of Transferor
Relating to Transferor. The Transferor hereby represents and warrants as of the
Initial Closing Date and on each Addition Date that:
(a) Organization and Good Standing. The Transferor is a
corporation duly organized and validly existing in good standing under
the laws of the State of Delaware, and has full corporate power,
authority and legal right to own its properties and conduct its
business as such properties are presently owned and such business is
presently conducted, and to execute, deliver and perform its
obligations under this Agreement and the Asset Purchase Agreement and
to direct the Trustee to execute and deliver the Notes and to make a
book-entry notation in the Register evidencing the Transferor Interest.
(b) Due Qualification. The Transferor is duly qualified to do
business and is in good standing as a foreign corporation (or is exempt
from such requirements), and has obtained or will obtain all necessary
licenses and approvals, in each jurisdiction in which failure to so
qualify or to obtain such licenses and approvals would have a material
adverse effect on its ability to perform its obligations hereunder.
(c) Due Authorization. The execution and delivery of this
Agreement and the Asset Purchase Agreement and the consummation of the
transactions provided for herein and therein have been duly authorized
by the Transferor by all necessary corporate action on the part of the
Transferor.
(d) No Conflict. The execution and delivery of this Agreement
and the Asset Purchase Agreement, the performance of the transactions
contemplated hereby and thereby and the fulfillment of the terms hereof
and thereof will not conflict with, result in any breach of any of the
material terms and provisions of, or constitute (with or without notice
or lapse of time or both) a default under, any indenture, contract,
agreement, mortgage, deed of trust, or other instrument to which the
Transferor is a party or by which it or any of its property is bound.
(e) No Violation. The execution and delivery of this Agreement
and the Asset Purchase Agreement, the performance of the transactions
contemplated hereby and thereby and the fulfillment of the terms hereof
and thereof will not conflict with or violate, in any material respect,
any Requirements of Law applicable to the Transferor.
(f) No Proceedings. There are no proceedings or investigations
pending or, to the best knowledge of the Transferor, threatened against
the Transferor, before any court, regulatory body, administrative
agency, or other tribunal or governmental instrumentality (i) asserting
the invalidity of this Agreement, the Asset Purchase Agreement or the
Notes, (ii) seeking to prevent the issuance of the Notes or the making
of a book-entry notation in the Register evidencing the Transferor
Interest or the consummation of any of the transactions contemplated by
this Agreement, the Asset Purchase Agreement or the Notes or the
Transferor Interest, (iii) seeking any determination or ruling that, in
the reasonable judgment of the Transferor, could reasonably be expected
to be adversely determined, and if adversely determined, would
materially and adversely affect the performance by the Transferor of
its obligations under this Agreement or the Asset Purchase Agreement or
(iv) seeking to impose income taxes on the Trust.
(g) All Consents Required. All approvals, authorizations,
consents, orders or other actions of any Person or of any Governmental
Authority required in connection with the execution and delivery of
this Agreement and the Notes and the book-entry notation in the
Register evidencing the Transferor Interest, the performance of the
transactions contemplated by this Agreement, and the fulfillment of or
terms hereof, have been obtained.
(h) Bulk Sales. The execution, delivery and performance of
this Agreement do not require compliance with any "bulk sales" law by
the Transferor.
(i) Solvency. The transactions under this Agreement do not and
will not render the Transferor insolvent.
The representations and warranties set forth in this Section 2.3 shall survive
the transfer of the Trust Assets to the Trust, and termination of the rights and
obligations of the Servicer pursuant to Section 10.1. Upon discovery by the
Transferor, the Servicer or a Responsible Officer of the Trustee of a breach of
any of the foregoing representations and warranties, the party discovering such
breach shall give prompt written notice to the others and any Enhancement
Provider. For the purposes of the representations and warranties contained in
this Section 2.3 and made by the Transferor on the Initial Closing Date, "Notes"
shall mean the Notes issued on the Initial Closing Date. The Transferor hereby
represents and warrants, with respect to any Series, as of the Closing Date with
respect to such Series, unless otherwise stated in the related Supplement, that
the representations and warranties of the Transferor set forth in this Section
2.3 will be true and correct as of such date (for the purposes of such
representations and warranties, "Notes" shall mean the Notes issued on such
Closing Date).
Section 2.4 Representations and Warranties of
Transferor Relating to the Agreement and the Included Leases.
(a) Binding Obligation; Valid Transfer and Security Interest.
The Transferor hereby represents and warrants that, as of the Initial Closing
Date and, with respect to any Series issued after the Initial Closing Date,
unless otherwise stated in the related Supplement, as of the Closing Date for
such Series and as of each Addition Date:
(i) This Agreement constitutes a legal, valid and
binding obligation of the Transferor, enforceable against the
Transferor in accordance with its terms, except as such enforceability
may be limited by Debtor Relief Laws and except as such enforceability
may be limited by general principles of equity (whether considered in a
suit at law or in equity).
(ii) This Agreement constitutes either (A) a valid
transfer to the Trust of all right, title and interest of the
Transferor in, to and under the Trust Assets, and such property will be
held by the Trust free and clear of any Lien of any Person claiming
through or under the Transferor or its Affiliates, except for (w) the
interests of the Trustee and the Noteholders, (x) Permitted Liens, and
(y) the interest of the Transferor as Holder of the Transferor Interest
or (B) a grant of a security interest (as defined in the UCC as in
effect in the State of California) in such property to the Trust. Upon
the filing of the financing statements described in Section 2.1 and, in
the case of Additional Leases on the applicable Addition Date, the
Trustee on behalf of the Trust shall have a first priority perfected
security interest in such property, subject only to Permitted Liens.
Neither the Transferor nor any Person claiming through or under
Transferor shall have any claim to or interest in the Collection
Account, the Excess Funding Account or any Series Account, except as
expressly provided in this Agreement or any Supplement, in accordance
with the provisions of Article IV, and, if this Agreement constitutes
the grant of a security interest in such property, except for the
interest of the Transferor in such property as a debtor for purposes of
the UCC as in effect in the State of California.
(b) Eligibility of Leases. The Transferor hereby represents
and warrants as of the Initial Closing Date that (i) as of the initial Cut Off
Date, Schedule 1 to this Agreement and the computer file or microfiche or
written list delivered pursuant to Section 2.1 is an accurate and complete
listing in all material respects of all the Included Leases as of such Cut Off
Date and the information contained therein with respect to the identity of such
Leases and the amounts owing thereunder is true and correct in all material
respects as of such Cut Off Date, (ii) each such Lease is an Eligible Lease,
(iii) each such
Lease and the related Equipment has been transferred to the Trust free and clear
of any Lien of any Person (other than Permitted Liens and the interest of the
Transferor as holder of the Transferor Interest) and in compliance, in all
material respects, with all Requirements of Law applicable to the Transferor and
(iv) with respect to each such Lease, all material consents, licenses, approvals
or authorizations of or registrations or declarations with any Governmental
Authority required to be obtained, effected or given by the Transferor in
connection with the transfer of such Lease and the related Equipment to the
Trust have been duly obtained, effected or given and are in full force and
effect.
On each day on which any Additional Lease is transferred by
the Transferor to the Trust, Transferor shall be deemed to represent and warrant
that (i) each Additional Lease transferred on such day is an Eligible Lease,
(ii) each such Additional Lease and the related Equipment has been transferred
to the Trust free and clear of any Lien of any Person (other than Permitted
Liens and the interest of the Transferor as holder of the Transferor Interest)
and in compliance, in all material respects, with all Requirements of Law
applicable to the Transferor or the Originator thereof, (iii) with respect to
each such Additional Lease, all material consents, licenses, approvals or
authorizations of or registrations or declarations with any Governmental
Authority required to be obtained, effected or given by the Transferor in
connection with the transfer of such Lease and the related Equipment to the
Trust have been duly obtained, effected or given and are in full force and
effect and (iv) the representations and warranties set forth in subsection
2.4(a) are true and correct with respect to each Lease transferred on such day
as if made on such day.
(c) Notice of Breach. The representations and warranties set
forth in this Section 2.4 shall survive the transfer of the respective Included
Leases and related Equipment to the Trust, and termination of the rights and
obligations of the Servicer pursuant to Section 10.1. Upon discovery by the
Transferor, the Servicer or a Responsible Officer of the Trustee of a breach of
any of the foregoing representations and warranties, the party discovering such
breach shall give prompt written notice to the others and any Enhancement
Provider.
(d) Retransfer of Ineligible Leases. In the event of a breach
of any representation and warranty set forth in Section 2.4(b) or in subsection
2.6(b)(v)(w) with respect to an Included Lease (each such Lease, an "Ineligible
Lease"), within 60 days of the receipt by the Transferor of written notice of
such breach given by the Trustee or the Servicer, the Transferor shall accept a
retransfer of each such Included Lease to which such breach relates on the terms
and conditions set forth below; provided, however, that no such retransfer shall
be required to be made with respect to such Ineligible Lease (and such Lease
shall cease to be an Ineligible Lease) if, on any day within such 60 day
period, the representations and warranties in subsection 2.4(b) or in subsection
2.6(b)(v)(w), with respect to such Ineligible Lease shall then be true and
correct in all material respects with respect to such Ineligible Lease as if
such Ineligible Lease had been transferred to the Trust on such day. With
respect to each retransfer of an Ineligible Lease required to be made pursuant
to this Section 2.6(d), the Transferor shall repurchase and the Trustee shall
convey, without recourse, representation or warranty, all of the Trustee's
right, title and interest in each such Ineligible Lease. The Transferor shall
accept a retransfer of each such Ineligible Lease and there shall be deducted
from the Aggregate Pool Balance the Discounted Lease Balance of each such
Ineligible Lease. On and after the date such Lease becomes an Ineligible Lease,
such Lease shall not be included in the Aggregate Pool Balance. In consideration
of such retransfer the Transferor shall, on the date of retransfer of such
Ineligible Lease, either (i) make a deposit in the Collection Account (for
allocation pursuant to Article IV) in immediately available funds in an amount
equal to the Warranty Purchase Price or (ii) transfer to the Trust a Substitute
Lease. Upon each retransfer to the Transferor of such Ineligible Lease, the
Trust shall automatically and without further action be deemed to transfer,
assign and set-over to the Transferor, without recourse, representation or
warranty (other than that the Trustee has not encumbered such Lease and the
related Equipment, except for the grant of a security interest therein to the
Collateral Trustee), all the right, title and interest of the Trust in, to and
under such Ineligible Lease and all monies due or to become due with respect
thereto, the related equipment and all proceeds of the Ineligible Lease and
Liquidation Proceeds and Insurance Proceeds relating thereto and all rights to
security for any such Ineligible Lease, and all proceeds and products of the
foregoing. The Trustee shall execute such documents and instruments of transfer
as may be prepared by the Transferor and take such other actions as shall
reasonably be requested by the Transferor to effect the transfer of such
Ineligible Lease pursuant to this subsection. The obligation of the Transferor
to accept retransfer of any Ineligible Lease shall constitute the sole remedy
respecting any breach of the representations and warranties set forth in Section
2.4(b) and subsection 2.6(b)(v)(w) with respect to such Lease available to
Noteholders and the Holder of the Transferor Interest, or the Trustee on their
behalf.
(e) Retransfer of Trust Portfolio. In the event of a breach of
any of the representations and warranties set forth in Section 2.4(a) hereof
which breach could reasonably be expected to have a material adverse affect on
the rights of the Noteholders or of the Trustee hereunder or on the ability of
the Transferor to perform its obligations hereunder, either the Trustee, or the
Holders of a principal amount of Notes aggregating more than 662/3% of the
Aggregate Principal Amount, by notice then given in writing to the Transferor
(and to the Trustee and the Servicer, if given by the Noteholders), may
direct the Transferor to accept retransfer of all of the Included Leases and the
Transferor shall be obligated to accept retransfer of such Leases on a
Distribution Date specified by the Transferor (such date, the "Retransfer Date")
occurring within the period of 60 days after such notice on the terms and
conditions set forth below; provided, however, that no such retransfer shall be
required to be made if, at any time during such applicable period, the
representations and warranties contained in Section 2.4(a) shall then be true
and correct in all material respects. The Transferor shall deposit on the
Retransfer Date an amount equal to the deposit amount provided in the next
sentence for such Leases in the Collection Account for distribution to the
Noteholders pursuant to Section 12.3. The deposit amount for such retransfer
will be equal to the sum of (i) the Aggregate Adjusted Principal Amount at the
end of the day on the Business Day preceding the Distribution Date on which the
retransfer is scheduled to be made, plus (ii) an amount equal to all interest
accrued but unpaid on the Notes at the applicable Note Rate through such
Distribution Date, plus (iii) an amount sufficient to pay all unreimbursed
amounts owing to each Enhancement Provider (to the extent set forth in the
applicable Supplement) less (iv) the amount, if any, available in the Collection
Account and the Excess Funding Account on such Transfer Date. On the Retransfer
Date immediately following the Transfer Date on which such amount has been
deposited in full into the Collection Account, the Included Leases and all
monies due or to become due with respect thereto, the related Equipment and all
proceeds thereof, all rights to security for any such Leases, and all proceeds
and products of the foregoing, shall be transferred to the Transferor, and the
Trustee shall execute and deliver such instruments of transfer, in each case
without recourse, representation or warranty (other than that the Trustee has
not encumbered any such Lease and the related Equipment), as shall be prepared
and reasonably requested by the Transferor to vest in the Transferor, or its
designee or assignee, all right, title and interest of the Trust in, to and
under the Included Leases, all monies due or to become due with respect thereto,
the related Equipment and all proceeds thereof and Insurance Proceeds relating
thereto. If the Trustee or the Noteholders give a notice directing the
Transferor to accept a retransfer as provided above, the obligation of the
Transferor to accept a retransfer of the Included Leases pursuant to Section
2.4(e) shall constitute the sole remedy respecting a breach of the
representations and warranties contained in Section 2.4(a) available to the
Noteholders or the Trustee on behalf of the Noteholders.
Section 2.5 Covenants of Transferor. The Transferor
hereby covenants that:
(a) Leases Not to be Evidenced by Promissory Notes. The
Transferor will take no action to cause any Included Lease to be
evidenced by any "instrument" (as defined in the UCC as in effect in
the State of California) that is not
also considered "chattel paper", except in connection with the
enforcement or collection of such Lease. The Servicer will deliver
promptly any such instruments to the Custodian.
(b) Security Interests. Except for the transfers hereunder,
the Transferor will not sell, pledge, assign or transfer to any other
Person, or grant, create, incur, assume or suffer to exist any Lien on
any Included Lease or related Equipment, whether now existing or
hereafter transferred to the Trust, or any interest therein. The
Transferor will immediately notify the Trustee of the existence of any
Lien on any Included Lease or related Equipment; and the Transferor
shall defend the right, title and interest of the Trustee on behalf of
the Trust in, to and under the Included Leases and the related
Equipment, against all claims of third parties; provided, however, that
nothing in this subsection 2.5(b) shall prevent or be deemed to
prohibit the Transferor from suffering to exist upon any of the
Included Leases Permitted Liens; provided further, however, that
nothing in this subsection 2.5(b) shall prevent or be deemed to
prohibit the Transferor from granting a participation interest in the
Transferor Interest or the interest in the Trust evidenced thereby.
(c) Reserved.
(d) Delivery of Collections. The Transferor agrees to pay to
the Servicer promptly (but in no event later than two Business Days
after receipt) all Collections and Tax Collections received by the
Transferor in respect of the Included Leases.
(e) Regulatory Filings. The Transferor shall make any filings,
reports, notices, applications and registrations with, and 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 that Transferor deems advisable to comply with any federal
or state securities or reporting requirements laws.
(f) Reserved.
(g) Reserved.
(h) Compliance with Law. The Transferor hereby agrees to
comply in all material respects with all Requirements of Law applicable
to the Transferor.
(i) Activities of Transferor. The Transferor shall not engage
in any business or activity of any kind, or enter into any transaction
or indenture, mortgage, instrument, agreement, contract, lease or other
undertaking, which is not directly related to the transactions
contemplated and
authorized by this Agreement or the Asset Purchase Agreement or which
is otherwise a Permitted Transaction.
(j) Indebtedness. The Transferor shall not create, incur,
assume or suffer to exist any Indebtedness or other liability
whatsoever, except (i) obligations incurred or owing to the Trust under
this Agreement or the Asset Purchase Agreement, (ii) liabilities
incident to the maintenance of its corporate existence in good standing
or (iii) obligations incident to a Permitted Transaction.
(k) Guarantees. The Transferor shall not become or remain
liable, directly or contingently, in connection with any Indebtedness
or other liability of any other Person, whether by guarantee,
endorsement (other than endorsements of negotiable instruments for
deposit or collection in the ordinary course of business), agreement to
purchase or repurchase, agreement to supply or advance funds, or
otherwise except incident to a Permitted Transaction.
(l) Investments. The Transferor shall not make or suffer to
exist any loans or advances to, or extend any credit to, or make any
investments (by way of transfer of property, contributions to capital,
purchase of stock or securities or evidences of indebtedness,
acquisition of the business or assets, or otherwise) in, any Person
except (i) for acquisitions of Leases pursuant to the Asset Purchase
Agreement, (ii) for investments in Permitted Investments in accordance
with the terms of this Agreement or (iii) pursuant to a Permitted
Transaction.
(m) Merger; Sales. The Transferor shall not enter into any
transaction of merger or consolidation, or liquidate or dissolve itself
(or suffer any liquidation or dissolution), or acquire or be acquired
by any Person, or convey, sell, lease or otherwise dispose of all or
substantially all of its property or business, except as provided for
in this Agreement.
(n) Distributions. The Transferor shall not declare or pay,
directly or indirectly, any dividend or make any other distribution
(whether in cash or other property) with respect to the profits, assets
or capital of the Transferor or any Person's interest therein, or
purchase, redeem or otherwise acquire for value any of its capital
stock now or hereafter outstanding, except that so long as no Pay Out
Event or Accelerated Payment Event has occurred and is continuing and
no Pay Out Event or Accelerated Payment Event would occur as a result
thereof or after giving effect thereto, the Transferor may declare and
pay dividends on its capital stock.
(o) Agreements. The Transferor shall not become a party to, or
permit any of its properties to be bound by,
any indenture, mortgage, instrument, contract, agreement, lease or
other undertaking, except this Agreement, the Asset Purchase Agreement
and the Supplements and except incidental to a Permitted Transaction or
amend or modify the provisions of its Certificate of Incorporation or
issue any power of attorney except to the Trustee or to the Servicer.
(p) Asset Purchase Agreement. The Transferor shall not give
any material consent under the Asset Purchase Agreement unless the
Rating Agency Condition is satisfied with respect thereto.
(q) Net Worth. The Transferor shall maintain a net worth,
exclusive of the Transferor Interest, that is, at any date of
determination, at least equal to 5% of the sum of (i) the Aggregate
Pool Balance plus (ii) the Equipment Residual Value calculated at such
date.
(r) Separate Corporate Existence. The Transferor
shall:
(i) Maintain its own deposit account or accounts,
separate from those of any Affiliate, with commercial banking
institutions. The funds of the Transferor will not be diverted
to any other Person or for other than corporate uses of the
Transferor, except as expressly permitted herein.
(ii) Ensure that, to the extent that it shares the
same officers or other employees as any of its stockholders or
Affiliates, the salaries of and the expenses related to
providing benefits to such officers and other employees shall
be fairly allocated among such entities, and each such entity
shall bear its fair share of the salary and benefit costs
associated with all such common officers and employees.
(iii) Ensure that, to the extent that it jointly
contracts with any of its stockholders or Affiliates to do
business with vendors or service providers or to share
overhead expenses, the costs incurred in so doing shall be
allocated fairly among such entities, and each such entity
shall bear its fair share of such costs. To the extent that
the Transferor contracts or does business with vendors or
service providers when the goods and services provided are
partially for the benefit of any other Person, the costs
incurred in so doing shall be fairly allocated to or among
such entities for whose benefit the goods and services are
provided, and each such entity shall bear its fair share of
such costs. All material transactions between Transferor and
any of its Affiliates shall be either (i) in accordance with
the Asset Purchase Agreement or, if such Affiliate is not a
party to the Asset Purchase
Agreement, on substantially similar terms), or (ii) only on an
arm's length basis.
(iv) Maintain a principal executive and
administrative office through which its business is conducted
separate from those of its Affiliates. To the extent that
Transferor and any of its stockholders or Affiliates have
offices in the same location, there shall be a fair and
appropriate allocation of overhead costs among them, and each
such entity shall bear its fair share of such expenses.
(v) Conduct its affairs strictly in accordance
with its Certificate of Incorporation and observe all
necessary, appropriate and customary corporate formalities,
including, but not limited to, holding all regular and special
stockholders' and directors' meetings appropriate to authorize
all corporate action, keeping separate and accurate minutes of
its meetings, passing all resolutions or consents necessary to
authorize actions taken or to be taken, and preparing and
maintaining its own accurate, separate, full and complete
books, records, accounts and financial statements, including,
but not limited to, payroll and intercompany transaction
accounts. The Transferor's financial statements will comply
with generally accepted accounting principles.
(vi) Within 120 days after the end of its fiscal
year, distribute a copy of its audited annual financial
statements to the Trustee.
(s) Location of Records. The Transferor (i) shall not move
outside the State of California, the location of its chief executive
office, without 45 days' prior written notice to the Trustee and (ii)
will promptly take all actions required (including but not limited to
all filings and other acts necessary or advisable under the UCC of each
relevant jurisdiction) in order to continue the first priority
perfected ownership interest of the Trust, the Noteholders and the
Holder of the Transferor Interest in all Included Leases. The
Transferor will give the Trustee prompt notice of a change within the
State of California of the location of its chief executive office.
Section 2.6 Addition of Leases.
(a) Permitted Additions. The Transferor may from time to time,
at its sole discretion, subject to the conditions specified in subsection 2.6(b)
below, transfer additional Eligible Leases to the Trust as Additional Leases as
of the applicable Additional Cut Off Date.
(b) Conditions to Permitted Additions. The Transferor agrees
that any Additional Leases and the related Equipment shall be transferred by the
Transferor to the Trust under subsection 2.6(a) upon and subject to the
following conditions:
(i) On or before the fifth Business Day (the "Notice
Date") prior to the Addition Date, the Transferor shall give the
Trustee, the Servicer and any Enhancement Provider entitled thereto
pursuant to the relevant Supplement written notice that such Additional
Leases will be transferred to the Trust and specifying (A) the
applicable Addition Date, (B) the Additional Cut Off Date (which shall
be the last day of a Monthly Period), (C) the approximate number of
Additional Leases expected to be added, (D) the approximate Discounted
Lease Balances expected to be outstanding with respect to the
Additional Leases to be added as of the Additional Cut Off Date with
respect thereto and (E) if such Additional Leases are to be Hedged
Leases, the identity of the Hedging Counterparty and the effective
interest rate under the related hedging transaction, and if such
Additional Leases are not Hedged Leases, the effective interest rate as
calculated in accordance with the definition of "Discounted Lease
Balance".
(ii) The Transferor shall have complied with the
requirements of Section 2.1(c) with respect to such Additional Leases
and the related Equipment.
(iii) The Transferor shall have deposited (A) in the
Collection Account, Collections with respect to such Additional Leases
since the Additional Cut Off Date and (B) in the Tax Escrow Account,
any Tax Collections received in respect of such Lease that have not
been disbursed to the relevant Governmental Authority.
(iv) On or prior to the Addition Date the Transferor
shall have delivered to the Trustee a written transfer agreement
(including an acceptance by the Trustee on behalf of the Trust for the
benefit of the Noteholders) in substantially the form of Exhibit B (the
"Transfer Agreement").
(v) The Transferor shall be deemed to represent and
warrant that (v) as of the Addition Date, Schedule 1 to the Transfer
Agreement and the computer file or microfiche or written list delivered
pursuant to Section 2.1 is an accurate and complete listing in all
material respects of all the Additional Leases as of the Additional Cut
Off Date and the information contained therein with respect to the
identity of such Additional Leases is true and correct in all material
respects as of the Additional Cut Off Date, (w) each Additional Lease
is, as of the Additional Cut Off Date, an Eligible Lease, (x) no
selection procedures reasonably believed by the Transferor to be
materially adverse to the
interests of the Noteholders were utilized in selecting the Additional
Leases from the available Eligible Leases, (y) the transfer of such
Leases to the Trust will not cause the Portfolio Parameters to be
untrue and (z) as of the Addition Date, the Transferor is not insolvent
and will not be rendered insolvent by transferring any such Additional
Lease to the Trust.
(vi) The Transferor shall be deemed to represent and
warrant that, as of the Addition Date, the representations and
warranties set forth in Section 2.4 are true and correct with respect
to the Additional Accounts and the related Transfer Agreement.
(vii) The Transferor shall, on each Addition Date,
deliver an Officer's Certificate of a Vice President or more senior
officer confirming the items set forth in paragraphs (ii), (iii), (iv),
(v) and (vi) above.
(viii) The Transferor shall on each Addition Date deliver
an Opinion of Counsel with respect to the Additional Leases to the
Trustee substantially in the form of Exhibit C.
Section 2.7 Substitution or Reallocation of Leases.
(a) Right of Substitution. Subject to the provisions of
Sections 2.7(b) through (d), the Transferor may transfer to the Trust a Lease
and the related Equipment (each a "Substitute Lease") in substitution for any
Included Lease and the related Equipment. In instances where an Included Lease
being substituted for had been allocated to an Amortizing Pool prior to the
substitution, the Substitute Lease (or portion thereof) being substituted
therefor shall be allocated to the corresponding Amortizing Pool.
(b) Eligible Leases. Each Substitute Lease shall be an
Eligible Lease the transfer of which to the Trust shall be subject to the
satisfaction of the conditions set forth in Section 2.6(b).
(c) Conditions to Substitution. The Servicer shall not permit
any substitution under Section 2.7(a) on any Addition Date:
(i) if the sum of the Discounted Lease Balances (as of the
related Cut Off Date) of Leases substituted for Defaulted Leases on a
cumulative basis (A) during any period of twelve consecutive Monthly
Periods would exceed 4% of the Aggregate Net Pool Balance on the
related Cut Off Date for such Substitute Leases or (B) after the Pay
Out Commencement Date would exceed 7% of the Aggregate Net Pool Balance
as of the Pay Out Commencement Date, unless, in either case, the Rating
Agency Condition shall have been satisfied with respect thereto;
(ii) if the sum of the Discounted Lease Balances (as of the
related Cut Off Date) of all Substitute Leases on a cumulative basis
(A) during any period of twelve consecutive Monthly Periods would
exceed 10% of the Aggregate Net Pool Balance on the related Cut Off
Date for such Substitute Leases or (B) after the Pay Out Commencement
Date would exceed 15% of the Aggregate Net Pool Balance as of the Pay
Out Commencement Date, unless, in either case, the Rating Agency
Condition shall have been satisfied with respect thereto;
(iii) unless as of the related Additional Cut Off Date, each
Substitute Lease has a Discounted Lease Balance not less than the
Discounted Lease Balance of the Lease being replaced;
(iv) if after giving effect to all proposed substitutions
to be made on such Addition Date, the sum of the Scheduled Principal
Payments on all Included Leases due in any Monthly Period would be less
than the sum of all Scheduled Principal Payments on the Included Leases
in each such Monthly Period before giving effect to such proposed
substitutions;
(v) if an Insolvency Event has occurred with respect to
the Transferor or the Servicer or a Servicer Default has occurred and
is continuing.
(d) Security Interest. Upon the replacement of an Included
Lease and the related Equipment with a Substitute Lease as described above, the
interest of the Trustee on behalf of the Trust in such replaced Lease, the
related Equipment and all proceeds thereon shall be terminated.
(e) Reallocation of Leases. During any period prior to the Pay
Out Commencement Date when there is both a Floating Pool and an Amortizing Pool,
subject to the provisions of this Section 2.7(e), the Servicer may reallocate an
Included Lease (or a portion thereof) and the related Equipment from such
Floating Pool to any such Amortizing Pool (each a "Reallocated Lease") in
exchange for any Included Lease and the related Equipment in such Amortizing
Pool that has become a Defaulted Lease, an Early Termination Lease or an
Ineligible Lease. The Servicer shall not permit any reallocation under this
Section 2.7(e) on any day:
(i) unless as of the last day of the preceding Monthly
Period, each Reallocated Lease has a Discounted Lease Balance not less
than the Discounted Lease Balance of the
Lease being replaced in such Amortizing Pool; and
(ii) if after giving effect to all proposed exchanges to be
made on such day, the sum of the Scheduled Principal Payments on all
Included Leases due in any Monthly Period in such Amortizing Pool would
be less than the sum of all
Scheduled Principal Payments on the Included Leases in such pool in
each such Monthly Period before giving effect to such proposed
exchange.
Upon the reallocation of an Included Lease and the related Equipment as
described above, all Collections from the first day of the Monthly Period in
which such reallocation occurs in respect of (i) the Reallocated Lease and the
related Equipment shall be attributable to the Amortizing Pool and (ii) the
Included Lease and the related Equipment being exchanged for such Reallocated
Lease shall be attributable to the Floating Pool.
Section 2.8 Removal of Leases.
(a) Removal. Subject to the conditions set forth below, and
without limiting its rights under Section 2.7(d), the Transferor may designate
from time to time Included Leases no longer to be designated for inclusion in
the Trust (the "Removed Leases"). On or before the fifth Business Day (the
"Removal Notice Date") prior to the date on which Included Leases are to be
removed (the "Removal Date"), the Transferor shall give the Trustee, the
Servicer and each Enhancement Provider entitled thereto pursuant to the relevant
Supplement written notice that the Removed Leases are to be retransferred to the
Transferor.
(b) Conditions to Removal. The Transferor shall be permitted
to designate and require retransfer to it of the Removed Leases only upon
satisfaction of the following conditions:
(i) The Transferor shall satisfy the Rating Agency
Condition with respect thereto by such Removal Date.
(ii) On each Removal Date, the Trustee shall deliver to
the Transferor a written retransfer agreement in substantially the form
of Exhibit D (the "Retransfer Agreement") prepared by the Transferor,
and the Transferor shall deliver to the Trustee a computer file,
microfiche or written list containing a true and complete schedule
identifying all Removed Leases specifying for each such Removed Lease,
as of the Removal Notice Date, its account number and the Discounted
Lease Balance thereof. Such computer file, microfiche or written list
shall, as of the date of such Retransfer Agreement, be incorporated
into and made a part of this Agreement.
(iii) The Transferor shall represent and warrant as of
each Removal Date that (a) the list of Removed Leases, as of the
Removal Notice Date, complies in all material respects with the
requirements of (ii) above; (b) no selection procedure used by the
Transferor which is adverse to the interests of the Noteholders was
utilized in selecting the Removed Leases; and (c) as of the Removal
Notice Date and as of the Removal Date, the Transferor is not insolvent
and the
Transferor has no present intention of seeking protection under any
Debtor Relief Laws.
(iv) The removal of any Removed Leases on any Removal
Date shall not cause a Pay Out Event to occur, or an event which with
notice or lapse of time or both would constitute a Pay Out Event or
cause the Portfolio Parameters to be untrue.
(v) Such Lease shall not be allocated to an Amortizing
Pool (unless such Lease is substituted for in accordance with Section
2.7).
(vi) The Asset Base shall not be less than the Aggregate
Adjusted Principal Amount; and
(vii) The Transferor shall have delivered to the Trustee
and to each Enhancement Provider entitled thereto pursuant to the
relevant Supplement an Officer's Certificate of an officer of the
Transferor confirming the items set forth in (i) through (vi) above.
Upon satisfaction of the above conditions, the Trustee shall
execute and deliver the Retransfer Agreement to the Transferor, and the Removed
Leases shall no longer constitute a part of the Trust.
Section 2.9 Release of Lien on Equipment. At the same time as
(i) any Included Lease becomes an Expired Lease and the Equipment related to
such Lease is sold, (ii) any Lease becomes an Early-Termination Lease and the
Equipment related to such Early-Termination Lease is sold, or (iii) the Servicer
substitutes or replaces any unit of Equipment as contemplated in Section 3.1 or
any Lease and related Equipment as contemplated in Section 2.7 or 2.8, the
Trustee, on behalf of the Trust, will to the extent requested by the Servicer
release its interest in the Equipment relating to such Expired Lease or
Early-Termination Lease or such substituted or replaced Equipment or Lease and
related Equipment, as the case may be; provided that such release will not
constitute a release of the Trust's interest in the proceeds of such sale (other
than with respect to Equipment or Lease and related Equipment that is replaced
pursuant to Section 3.1(c) or 2.7 or removed pursuant to Section 2.8, as the
case may be). In connection with any sale of such Equipment, the Trustee will
execute and deliver to the Servicer any assignments, bills of sale, termination
statements and any other releases and instruments as the Servicer may request in
order to effect such release and transfer; provided that the Trustee will make
no representation or warranty, express or implied, with respect to any such
Equipment in connection with such sale or transfer and assignment other than
with respect to its interest in such Equipment or the absence of any such
interest and other than that the Trustee has not encumbered such Lease or the
related Equipment. Nothing in this Section 2.9 shall diminish the
Servicer's obligations pursuant to Section 3.1(d) with respect to the proceeds
of any such sale.
Section 2.10 Hedging of Included Leases After the
Related Addition Date.
(a) Subject to the provisions of Section 2.10(b), the
Transferor may on any Distribution Date transfer to the Trust an Interest Rate
Hedge with respect to one or more Included Leases that were not originally
Hedged Leases hereunder.
(b) The Transferor agrees that any such Interest Rate Hedge
shall be transferred to the Trust under Section 2.10(a) upon and subject to the
following conditions:
(i) On or before the Determination Date preceding such
Distribution Date, the Transferor shall give the Trustee, the Servicer,
each Rating Agency and any Enhancement Provider entitled thereto
pursuant to the relevant Supplement written notice that such Interest
Rate Hedge will be transferred to the Trust and specifying (A) the
applicable Distribution Date for such transfer, (B) the specific
Included Leases being hedged thereunder, (C) the sum of the Discounted
Lease Balances of such Leases as of the last day of the preceding
Monthly Period before giving effect to such Interest Rate Hedge and
after giving effect thereto, (D) the identity of the Hedging
Counterparty and the effective interest rate under the related hedging
transaction and (E) a recalculation of the Asset Base, the Aggregate
Pool Balance and the Aggregate Net Pool Balance as of such
Determination Date (after giving effect to all transactions to occur on
such date hereunder).
(ii) On such Distribution Date, after giving effect to
the transfer of such Interest Rate Hedge to the Trust and the
corresponding recalculation of the Asset Base, no Pay Out Event or
Accelerated Payment Event, or an event which with notice or lapse of
time or both would constitute a Pay Out Event or Accelerated Payment
Event, shall have occurred, the Asset Base shall be at least equal to
the Aggregate Adjusted Principal Amount and the Portfolio Parameters
shall be true.
ARTICLE III
ADMINISTRATION AND SERVICING OF INCLUDED LEASES
Section 3.1 Appointment and Acceptance; Duties.
(a) Appointment of Initial Servicer. AFG is hereby appointed
as Servicer pursuant to this Agreement. AFG accepts the appointment and agrees
to act as the Servicer pursuant to this Agreement.
(b) General Duties. The Servicer will service, administer and
enforce the Included Leases on behalf of the Trust and will have full power and
authority to do any and all things in connection with such servicing and
administration which it deems necessary or desirable. The Servicer will manage,
service, administer, and make collections on the Included Leases with reasonable
care, using that degree of skill and attention that the Servicer exercises with
respect to all comparable equipment leases that it services for itself or
others. The Servicer's duties will include collection and posting of all
payments, responding to inquiries of Lessees regarding the Included Leases,
investigating delinquencies, accounting for collections, furnishing monthly and
annual statements with respect to collections and payments in accordance with
Section 3.10, making Servicer Advances in its discretion, enforcing the Asset
Purchase Agreement and maintaining the perfected first priority security
interest of the Trustee in the Trust Assets. The Servicer will follow its
customary standards, policies, and procedures and will have full power and
authority, acting alone, to do any and all things in connection with such
managing, servicing, administration, and collection that it deems necessary or
desirable. If the Servicer commences a legal proceeding to enforce a Defaulted
Lease pursuant to Section 3.4 or commences or participates in a legal proceeding
(including a bankruptcy proceeding) relating to or involving an Included Lease,
the Trust will be deemed to have automatically assigned such Included Lease to
the Servicer for purposes of commencing or participating in any such proceeding
as a party or claimant, and the Servicer is authorized and empowered by the
Trustee, pursuant to this Section 3.1(b), to execute and deliver, on behalf of
itself and the Trust, any and all instruments of satisfaction or cancellation,
or partial or full release or discharge, and all other notices, demands, claims,
complaints, responses, affidavits or other documents or instruments in
connection with any such proceedings. If in any enforcement suit or legal
proceeding it is held that the Servicer may not enforce an Included Lease on the
ground that it is not a real party in interest or a holder entitled to enforce
the Included Lease, then the Trustee will, at the Servicer's expense and
direction, take steps to enforce the Included Lease, including bringing suit in
its name.
(c) Consent to Assignment or Replacement. At the request of a
Lessee, the Servicer may in its sole discretion consent to the assignment of the
related Included Lease or the sublease of a unit of the Equipment relating to an
Included Lease, so long as such Lessee remains liable for all of its obligations
under such Included Lease. Upon the request of any Lessee, the Servicer may, in
its sole discretion, provide for the substitution or replacement of any unit of
Equipment for a substantially similar unit of equipment.
(d) Disposition Upon Termination of Included Lease. Upon the
expiration or termination of an Included Lease the Servicer will use
commercially reasonable efforts to dispose of
any related Equipment. Without limiting the generality of the foregoing, the
Servicer may dispose of any such Equipment by selling such Equipment to the
Servicer or any of its Affiliates for a purchase price equal to the fair market
value thereof. The Servicer will deposit any Early Termination Lease Proceeds
and any Expired Lease Proceeds of any such disposition in accordance with
Section 4.3.
(e) Subservicers. The Servicer may enter into servicing
agreements with one or more subservicers (including any Affiliate of the
Servicer) to perform all or a portion of the servicing functions on behalf of
the Servicer; provided that the Servicer will remain obligated and be liable to
the Trust for servicing and administering the Included Leases in accordance with
the provisions of this Agreement without diminution of such obligation and
liability by virtue of the appointment of such subservicer, to the same extent
and under the same terms and conditions as if the Servicer alone were servicing
and administering the Included Leases. The fees and expenses of the subservicer
(if any) will be as agreed between the Servicer and its subservicer and neither
the Trustee, the Trust nor the Holders will have any responsibility therefor.
All actions of a subservicer taken pursuant to such a subservicer agreement will
be taken as an agent of the Servicer with the same force and effect as though
performed by the Servicer.
(f) Further Assurances. The Trustee will furnish the Servicer,
and the Servicer will furnish any subservicer, with any limited powers of
attorney prepared by the Servicer and other documents reasonably necessary or
appropriate to enable the Servicer or a subservicer, as applicable, to carry out
its servicing and administrative duties under this Agreement.
(g) Notice to Lessees. Subject to the provisions of Section
3.2(e), the Servicer will not be required to notify any Lessee that such
Lessee's Included Lease or related Equipment has been sold, transferred,
assigned, or conveyed pursuant to the Asset Purchase Agreement or pursuant to
this Agreement; provided that, in the event that the Servicer resigns or is
replaced, then if the place for payment pursuant to any Included Lease is
changed, the Successor Servicer must give each related Lessee prompt written
notice of the appointment of the Successor Servicer and the place to which such
Lessee should make payments pursuant to each such Included Lease.
Section 3.2 Collection of Payments.
(a) Collection Efforts. The Servicer will make reasonable
efforts to collect all payments called for under the terms and provisions of the
Included Leases as and when the same become due, and will follow those
collection procedures which it follows with respect to all comparable equipment
leases that it services for itself or others. To the extent consistent with the
Servicer's past practices, the Servicer may grant extensions,
rebates, or adjustments on an Included Lease which will not, for purposes of
this Agreement, extend the original due dates or the number of Scheduled
Payments or reduce the amount of any Scheduled Payment. The Servicer may in its
discretion waive any late payment charge or any other fees that may be collected
in the ordinary course of servicing any Included Lease.
(b) Early Termination Lease. The Servicer may, in its sole
discretion, permit an Included Lease to become an Early Termination Lease (which
shall not include an Included Lease that becomes an Early Termination Lease due
to a Casualty Loss), so long as, unless another Included Lease is substituted
therefor as described in Section 2.7, (i) the Servicer deposits in the
Collection Account, not later than the second Business Day after the Date of
Processing thereof by the Servicer, the sum of (A) the Discounted Lease and
Residual Balance of such Included Lease as of the Determination Date in the
month prior to the month in which such Included Lease becomes an Early
Termination Lease and (B) the amount of any Hedge Termination Payment owing in
respect thereof and (ii) at the time the Servicer permits an Included Lease to
become an Early Termination Lease the Discounted Lease Balance of all Included
Leases which have become Early Termination Leases (and for which substitute
Included Leases have not been transferred to the Trust) for the period of twelve
months ending with the current Monthly Period does not exceed 4% of the
Aggregate Pool Balance as of the last day of the preceding Monthly Period.
(c) Acceleration. The Servicer, in its sole discretion, may
accelerate (or elect not to accelerate) the maturity of all or any Scheduled
Payments under any Included Lease under which a default under the terms thereof
has occurred and is continuing (after the lapse of any applicable grace period);
provided that the Servicer is required to accelerate the Scheduled Payments due
under any Included Lease (and take other action in accordance with the
Originator's past practice, including repossessing or otherwise converting the
related Equipment, to realize upon the value of such Included Lease and the
related Equipment) to the fullest extent permitted by the terms of such Included
Lease, promptly after such Included Lease becomes a Defaulted Lease.
(d) Taxes and Other Amounts. To the extent provided for in any
Included Lease, the Servicer will make reasonable efforts to collect all
payments with respect to amounts due for taxes, assessments and insurance
premiums relating to the Included Leases or the Equipment, to withdraw any such
amounts deposited in the Tax Escrow Account, and to remit such amounts to the
appropriate Governmental Authority or insurer on or prior to the date such
payments are due.
(e) Lockboxes. On or before the Initial Closing Date with
respect to the Original Leases and on or before the relevant Addition Date, with
respect to Additional Leases, the Servicer
shall have instructed all Lessees to make all payments in respect of the
Included Leases to a Lockbox. All Collections received in a Lockbox shall,
within one Business Day of receipt thereof be deposited in the Lockbox Account.
In the event that any payments in respect of the Included Leases are made
directly to the Servicer, the Servicer shall, within two Business Days of
receipt thereof, deposit such amounts in a Lockbox Account or in the Collection
Account.
(f) Lockbox Agreements. On or before the Initial Closing Date,
the Transferor, the Servicer, the Collateral Trustee on behalf of the
Noteholders and the Holder of the Transferor Interest and each Lockbox Processor
shall have entered into an agreement (each a "Lockbox Agreement") in a form
substantially similar to Exhibit E, as the same may be amended, supplemented or
otherwise modified from time to time (provided, however, that if the Collateral
Trustee is not the Lockbox Processor, no such amendment, supplement or
modification will permit, without the consent of the Collateral Trustee, (i) any
increase in the time between receipt of a payment and remittance to the
Collateral Trustee, (ii) a change in the payment instruction to the Collateral
Trustee or (iii) a change in the payment instruction to the Lockbox Processor),
pursuant to which such Lockbox Processor is irrevocably directed, and such
Lockbox Processor irrevocably agrees, to deposit funds received in the Lockbox
in the Lockbox Account. Pursuant to the Lockbox Agreement, the Lockbox Processor
maintaining the Lockbox Account shall be irrevocably directed, and shall
irrevocably agree, to transfer funds on deposit in the Lockbox Account within
two Business Days of receipt thereof to the Collection Account. The Lockbox
Account shall be maintained in accordance with the terms and conditions of such
documentation. A new Lockbox Account may be designated by the Transferor and the
Servicer, and the Collateral Trustee shall consent to any such change in the
Lockbox Account; provided that (i) the Collateral Trustee shall have received
from the Transferor or the Servicer written notice of such change at least 30
days prior to the proposed effective date of such change and (ii) the Lockbox
Processor chosen to maintain such new Lockbox Account shall enter into a Lockbox
Agreement with the Transferor, the Servicer and the Collateral Trustee,
substantially similar to Exhibit E.
(g) Remittances. As soon as practicable but in any event not
later than the Business Day following the date of establishment by the Servicer
that any of the collected funds received in any of the Lockboxes do not
constitute Collections on account of the Included Leases, such monies which do
not constitute such Collections shall be remitted to or at the direction of the
Transferor.
Section 3.3 Servicer Advances. For each Monthly Period, if the
Servicer determines that any Scheduled Payment (or portion thereof) which was
due and payable pursuant to an Included Lease during such Monthly Period was not
received prior
to the end of such Monthly Period, the Servicer may make a Servicer Advance in
an amount up to the amount of such delinquent Scheduled Payment (or portion
thereof), to the extent that in its sole discretion it determines that it can
recoup such amount from subsequent collections under the related Included Lease.
The Servicer will deposit any Servicer Advances into the Collection Account on
or prior to 11:00 a.m. (New York City time) on the related Transfer Date, in
immediately available funds. The Servicer will be entitled to be reimbursed for
Servicer Advances pursuant to Section 4.3(d).
Section 3.4 Realization Upon Defaulted Lease. The Servicer
will use its best efforts consistent with its customary and usual practices and
procedures in its servicing of equipment leases to repossess or otherwise
comparably convert the ownership of any Equipment relating to a Defaulted Lease
and will act as sales and processing agent for Equipment which it repossesses.
The Servicer will follow such other practices and procedures as it deems
necessary or advisable and as are customary and usual in its servicing of
equipment leases and other actions by the Servicer in order to realize upon such
Equipment, which practices and procedures may include reasonable efforts to
enforce all obligations of Lessees and repossessing and selling such Equipment
at public or private sale in circumstances other than those described in the
preceding sentence. Without limiting the generality of the foregoing, the
Servicer may sell any such Equipment to the Servicer or its Affiliates for a
purchase price equal to the then fair market value thereof. In any case in which
any such Equipment has suffered damage, the Servicer will not expend funds in
connection with any repair or towards the repossession of such Equipment unless
it determines in its discretion that such repair and/or repossession will
increase the Liquidation Proceeds by an amount greater than the amount of such
expenses. The Servicer will remit to the Collection Account the Liquidation
Proceeds received in connection with the sale or disposition of Equipment
relating to a Defaulted Lease in accordance with Section 4.3(a).
Section 3.5 Maintenance of Insurance Policies. The
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Servicer will use its best efforts to ensure that each Lessee maintains an
Insurance Policy with respect to the related Equipment in an amount at least
equal to the sum of the Discounted Lease and Residual Balance of the related
Included Lease; provided that the Servicer, in accordance with its customary
servicing procedures, may allow Lessees to self-insure. Additionally, the
Servicer will require that each Lessee maintain physical damage and liability
insurance during the term of each Included Lease in amounts and against risks
customarily insured against by the Lessee on equipment owned by it. If a
Lessee fails to maintain physical damage and liability insurance, the Servicer
may purchase and maintain such insurance on behalf of, and at the expense of,
the Lessee. In connection with its activities as Servicer of the Included
Leases, the Servicer agrees to present, on behalf of itself, the Trust and the
Holders, claims to the insurer under each Insurance Policy and any such
liability policy, and to settle, adjust and compromise such claims, in each
case, consistent with the terms of each Included Lease. The Servicer's Insurance
Policies with respect to the related Equipment will insure against liability for
personal injury and property damage relating to such Equipment, will name the
Trustee as an insured thereunder.
Section 3.6 Representations and Warranties of Servicer. The
Servicer represents and warrants to the Trust, the Trustee and the Holders that,
as of the Initial Closing Date and each subsequent Closing Date and on each
Addition Date, insofar as any of the following affects the Servicer's ability to
perform its obligations pursuant to this Agreement in any material respect:
(a) Organization and Good Standing. The Servicer is a
corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware, with all requisite corporate power
and authority to own its properties and to conduct its business as
presently conducted and to enter into and perform its obligations
pursuant to this Agreement.
(b) Due Qualification. The Servicer is qualified to do
business as a foreign corporation, is in good standing, and has
obtained all licenses and approvals as required under the laws of, all
states in which the ownership or lease of its property, the performance
of its obligations pursuant to this Agreement or the other conduct of
its business requires such qualification, standing, license or
approval, except to the extent that the failure to so qualify, maintain
such standing or be so licensed or approved would not, in the
aggregate, materially and adversely affect the ability of the Servicer
to comply with this Agreement or to perform its obligations hereunder
or adversely effect the enforceability of the Included Leases.
(c) Power and Authority. The Servicer has the corporate power
and authority to execute and deliver this Agreement and to carry out
its terms. The Servicer has duly authorized the execution, delivery and
performance of this Agreement by all requisite corporate action.
(d) No Violation. The consummation of the transactions
contemplated by, and the fulfillment of the terms of, this Agreement by
the Servicer (with or without notice or lapse of time) will not (i)
conflict with, result in any breach of any of the terms or provisions
of, or constitute a default under, the certificate of incorporation or
by-laws of the Servicer, or any term of any indenture, agreement,
mortgage, deed of trust or other instrument to which the Servicer is a
party or by which it is bound, (ii) result in the creation or
imposition of any Lien upon any of
its properties pursuant to the terms of any such indenture, agreement,
mortgage, deed of trust or other instrument, or (iii) violate any law,
regulation, order, writ, judgment, injunction, decree, determination or
award of any Governmental Authority applicable to the Servicer or any
of its properties.
(e) No Consent. No consent, approval, authorization, order,
registration, filing, qualification, license or permit of or with any
Governmental Authority having jurisdiction over the Servicer or any of
its properties is required to be obtained by or with respect to the
Servicer in order for the Servicer to enter into this Agreement or
perform its obligations hereunder.
(f) Binding Obligation. This Agreement constitutes a legal,
valid and binding obligation of the Servicer, enforceable against the
Servicer in accordance with its terms, except as such enforceability
may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect affecting the enforcement of creditors' rights generally and
(ii) general principles of equity (whether considered in a suit at law
or in equity).
(g) No Proceedings. There are no proceedings or investigations
pending, or, to the best of the Servicer's knowledge, threatened
against the Servicer, before any Governmental Authority (i) asserting
the invalidity of this Agreement, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement
or (iii) seeking any determination or ruling that might (in the
reasonable judgment of the Servicer) materially and adversely affect
the performance by the Servicer of its obligations under, or the
validity or enforceability of, this Agreement.
(h) Location of Lease Files. Except as provided in the
Custodian Agreement, the Lease Files shall remain at all times in the
possession of the Custodian or the Trustee.
Section 3.7 Covenants of Servicer. The Servicer
hereby covenants that:
(a) Lease Files. The Servicer will, at its own cost and
expense, maintain all Lease Files with the Custodian in accordance with
the terms of the Custodian Agreement. Without limiting the generality
of the preceding sentence, the Servicer will not dispose of any
documents constituting the Lease Files in any manner which is
inconsistent with the performance of its obligations as the Servicer
pursuant to this Agreement and will not dispose of any Included Lease
except as contemplated by this Agreement.
(b) Compliance with Law. The Servicer will comply, in all
material respects, with all laws and regulations of any Governmental
Authority applicable to the Servicer or the Included Leases and related
Equipment and Lease Files or any part thereof; provided that the
Servicer may contest any such law or regulation in any reasonable
manner which will not materially and adversely affect the value of (or
the rights of the Trustee on behalf of the Holders, with respect to)
the Trust Assets.
(c) Preservation of Security Interest. The Servicer will
execute and file such financing and continuation statements and any
other documents reasonably requested by the Trustee to be filed or
which may be required by any law or regulation of any Governmental
Authority to preserve and protect fully the interest of the Trustee in,
to and under the Trust Assets; provided that the Servicer will not be
required (i) to file any financing or continuation statements with
respect to the Equipment in any jurisdiction other than the Filing
Locations.
(d) Obligations with Respect to Included Leases. The Servicer
will duly fulfill and comply with, in all material respects, all
obligations on the part of the "lessor" to be fulfilled or complied
with under or in connection with each Included Lease and will do
nothing to impair the rights of the Trustee and the Holders in, to and
under the Trust Assets. The Servicer will perform such obligations
under the Included Leases and will not change or modify the Included
Leases, except as otherwise provided herein and except insofar as any
such failure to perform, change or modification would not materially
and adversely affect the value of (or the rights of the Trustee, on
behalf of the Holders, with respect to) the Included Leases or the
related Equipment.
(e) No Bankruptcy Petition. The Servicer agrees that, prior to
the date that is one year and one day after the payment in full of all
amounts owing in respect of all outstanding Notes, it will not
institute against the Transferor, or the Trust, or join any other
Person in instituting against the Transferor or the Trust, any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other similar proceedings under the laws of the United
States or any state of the United States. This Section 3.7(e) will
survive the termination of this Agreement.
Section 3.8 Servicing Compensation. As compensation for its
servicing activities hereunder and reimbursement for its expenses as set forth
in Section 3.9, the Servicer shall be entitled to receive a monthly servicing
fee in respect of any Monthly Period (or portion thereof) prior to the
termination of the Trust pursuant to Section 12.1 (with respect to each Monthly
Period, the "Monthly Servicing Fee") equal to one-twelfth of the product of (A)
the Servicing Fee Percentage and (B) the Aggregate Pool Balance on the first day
of such Monthly Period.
Section 3.9 Payment of Certain Expenses by Servicer. The
Servicer will be required to pay all expenses incurred by it in connection with
its activities under this Agreement, including fees and disbursements of
independent accountants, the Trustee, the Collateral Trustee, taxes imposed on
the Servicer, expenses incurred in connection with payments and reports pursuant
to this Agreement, and all other fees and expenses not expressly stated under
this Agreement for the account of the Trust or the Transferor, but excluding
Liquidation Expenses incurred as a result of activities contemplated by Section
3.4. The Servicer will be required to pay all reasonable fees and expenses owing
to the Trustee and the Collateral Trustee in connection with the maintenance of
the Trust Accounts. The Servicer shall be required to pay such expenses for its
own account and shall not be entitled to any payment therefor other than the
Monthly Servicing Fee.
Section 3.10 Monthly Statement; Annual Report.
(a) Monthly Statement. With respect to each Distribution Date
and the related Monthly Period, the Servicer will provide to the Trustee and
each Rating Agency, on the related Determination Date, a monthly statement (a
"Monthly Statement"), signed by a Responsible Officer of the Servicer and
substantially in the form of Exhibit F and such other information as may be
specified in a Supplement.
(b) Annual Summary Statement. The Servicer will provide to the
Trustee, each Rating Agency and each Enhancement Provider, on or prior to March
31 of each year, commencing March 31, 1996, a cumulative summary of the
information required to be included in the Monthly Statements for the Monthly
Periods ending during the immediately preceding calendar year.
Section 3.11 Annual Statement as to Compliance. The
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Servicer will provide to the Trustee, each Rating Agency and each Enhancement
Provider, on or prior to March 31 of each year, commencing March 31, 1996, an
annual report signed by a Responsible Officer of the Servicer stating that (a)
a review of the activities of the Servicer, and the Servicer's performance
pursuant to this Agreement, for the period ending on the last day of the
immediately preceding calendar year has been made under such Person's
supervision and (b) to the best of such Person's knowledge, based on such
review, the Servicer has performed or has caused to be performed in all
material respects all of its obligations under this Agreement throughout such
year and no Servicer Default has occurred and is continuing (or, if a Servicer
Default has so occurred and is continuing, specifying each such event, the
nature and status thereof and the steps necessary to remedy such event, and,
if a Servicer Default
occurred during such year and no notice thereof has been given to the Trustee,
specifying such Servicer Default and the steps taken to remedy such event).
Section 3.12 Annual Independent Public Accountant's Servicing
Reports. The Servicer will cause a firm of nationally recognized independent
public accountants (who may also render other services to the Servicer) to
furnish to the Trustee, each Rating Agency, and each Enhancement Provider, on or
prior to March 31 of each year, commencing March 31, 1996, (i) a report relating
to the previous calendar year to the effect that (a) such firm has reviewed
certain documents and records relating to the servicing of the Included Leases,
and (b) based on such examination, such firm is of the opinion that the Monthly
Statements for such year were prepared in compliance with this Agreement, except
for such exceptions as it believes to be immaterial and such other exceptions as
will be set forth in such firm's report and (ii) a report covering the preceding
calendar year to the effect that such accountants have applied certain
procedures agreed upon by the Servicer and such accountants to certain documents
and records relating to the servicing of Accounts under this Agreement, compared
the information contained in the Servicer's certificates delivered during the
period covered by such report with such documents and records in each case as
specified in Exhibit G and that no matters came to the attention of such
accountants that caused them to believe that such servicing was not conducted in
compliance with Article III, Article IV and Article VIII of this Agreement,
except for such exceptions as such accountants shall believe to be immaterial
and such other exceptions as shall be set forth in such statement. A copy of
such report may be obtained by any Noteholder by a request in writing to the
Trustee addressed to the Corporate Trust Office. In addition, the Servicer shall
cause such accountants to furnish a copy of such report to each Rating Agency
and to each Enhancement Provider.
Section 3.13 Tax Treatment. The Transferor has structured this
Agreement and the Notes to facilitate a secured, credit-enhanced financing on
behalf of the Transferor on favorable terms with the intention that the Notes
will constitute indebtedness of the Transferor for federal income and state and
local tax purposes and the Trust shall be treated as a "security device" for
such purposes. The Transferor, the Servicer, each Holder and each Note Owner
agree to treat and to take no action inconsistent with the treatment of the
Notes (or any beneficial interest therein) as indebtedness for purposes of
federal, state, local and foreign income or franchise taxes and any other tax
imposed on or measured by income. Each Holder, by accepting its Note or the
Transferor Interest, as the case may be, and each Note Owner, by acquiring a
beneficial interest in a Note, agrees to be bound by the provisions of this
Section 3.13. Each Noteholder will cause any Note Owner acquiring an interest in
a Note through it to comply with this Agreement as to treatment as indebtedness
under applicable tax law, as described in this
Section 3.13. Furthermore, subject to Section 11.11, the Trustee shall not file
tax returns or obtain an employer identification number on behalf of the Trust.
Section 3.14 Adjustments. If (i) the Servicer makes a deposit
into the Collection Account in respect of a Collection of an Included Lease and
such Collection was received by the Servicer in the form of a check which is not
honored for any reason or (ii) the Servicer makes a mistake with respect to the
amount of any Collection and deposits an amount that is less than or more than
the actual amount of such Collection, the Servicer shall appropriately adjust
the amount subsequently deposited into the Collection Account to reflect such
dishonored check or mistake. Any Scheduled Payment in respect of which a
dishonored check is received shall be deemed not to have been paid.
ARTICLE IV
RIGHTS OF NOTEHOLDERS AND ALLOCATION
AND APPLICATION OF COLLECTIONS
Section 4.1 Rights of Holders.
(a) The Notes. The Notes shall represent indebtedness secured
by the Trust Assets and an obligation to pay the Noteholders Note Interest and
Note Principal out of the Trust Assets, which, with respect to each Series,
shall consist of the right to receive, to the extent necessary to make the
required Note Principal, Note Interest and any other payments with respect to
the Notes of such Series at the times and in the amounts specified in the
related Supplement, the portion of Collections allocable to Noteholders of such
Series pursuant to this Agreement and such Supplement, funds on deposit in the
Collection Account allocable to Noteholders of such Series pursuant to this
Agreement and such Supplement, funds on deposit in any related Series Account
and funds available pursuant to any related Enhancement, it being understood
that the Notes of any Series or Class shall not represent any interest in any
Series Account or Enhancement for the benefit of any other Series or Class. The
Transferor Interest shall represent the interest in the remainder of the Trust
Assets not allocated pursuant to this Agreement or any Supplement to the
Noteholders, including the right to receive Collections with respect to the
Included Leases and other amounts at the times and in the amounts specified in
this Agreement or any Supplement to be paid to the holder of the Transferor
Interest, provided, however, that the Transferor Interest shall not represent
any interest in the Collection Account, any Series Account or any Enhancement,
except as specifically provided in this Agreement or any Supplement.
(b) No Recourse. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Transferor, the Trustee or
the Collateral Trustee on the Notes or under this
Agreement or any certificate or other writing delivered in connection herewith
or therewith, against: (i) the Trustee or the Collateral Trustee in its
individual capacity; (ii) any owner of a beneficial interest in the Transferor;
or (iii) any partner, owner, beneficiary, agent, officer, director, employee or
agent of the Trustee or the Collateral Trustee in their individual capacities,
any holder of a beneficial interest in the Transferor, the Trustee or the
Collateral Trustee or of any successor or assign of the Trustee or the
Collateral Trustee in their individual capacities (or any of their successors or
assigns), except as any such Person may have expressly agreed (it being
understood that the Trustee and the Collateral Trustee have no such obligations
in their individual capacities) and except that any such partner, owner or
beneficiary shall be fully liable, to the extent provided by applicable law, for
any unpaid consideration for stock, unpaid capital contribution or failure to
pay any instalment or call owing to such entity.
Section 4.2 Establishment of Accounts.
(a) The Collection Account. The Servicer, for the benefit of
the Noteholders and the Holder of the Transferor Interest, shall establish and
maintain in the name of the Collateral Trustee on behalf of the Noteholders and
the Holder of the Transferor Interest, or cause to be established and
maintained, with an office or branch located in the state designated by the
Servicer of a depository institution or trust company (which may include the
Collateral Trustee) organized under the laws of the United States of America or
any one of the states thereof a non-interest bearing segregated deposit account
(the "Collection Account") bearing a designation clearly indicating that the
funds deposited therein are held in trust for the benefit of the Noteholders and
the Holder of the Transferor Interest; provided, however, that at all times the
certificates of deposit, short-term deposits or commercial paper or the
long-term unsecured debt obligations (other than such obligation whose rating is
based on collateral or on the credit of a Person other than such depository
institution or trust company) of such depository institution or trust company if
other than the Collateral Trustee or First Union National Bank of North
Carolina, shall have a credit rating from the Rating Agency or Agencies for each
Series outstanding hereunder of P-1, A-1+, as applicable, respectively, in the
case of the certificates of deposit, short-term deposits or commercial paper, or
a rating from the applicable Rating Agency of Aaa or AAA, as applicable, in the
case of the long-term unsecured debt obligations, and which is a member of the
FDIC (each of First Union National Bank of North Carolina, the Collateral
Trustee or any such depository institution trust company, a "Qualified
Institution"). The Supplement for a Series may require the Collateral Trustee to
establish and maintain, for administrative purposes only, other Series Accounts
for such Series bearing a designation clearly indicating that the funds
allocated thereto are held in trust for the benefit of the Noteholders of such
Series. Pursuant to
authority granted to it pursuant to subsection 3.1(b), the Servicer shall have
the power, revocable by the Trustee, to withdraw funds from the Collection
Account for the purposes of carrying out its duties hereunder.
(b) Establishment of the Excess Funding Account. The
Servicer, for the benefit of the Noteholders and the Holder of the Transferor
Interest, shall establish and maintain or cause to be established and
maintained in the name of the Collateral Trustee, on behalf of the Noteholders
and the Holder of the Transferor Interest, with a Qualified Institution
designated by the Servicer, a segregated trust account within the corporate
trust department of such Qualified Institution (the "Excess Funding Account"),
bearing a designation clearly indicating that the funds deposited therein are
held in trust for the benefit of the Noteholders and the Holder of the
Transferor Interest. The Collateral Trustee shall possess all right, title and
interest in all funds on deposit from time to time in the Excess Funding
Account and in all proceeds thereof. Pursuant to the authority granted to it
pursuant to subsection 3.1(b), the Servicer shall have the power, revocable by
the Trustee, to withdraw funds and to instruct the Trustee to withdraw funds
from the Excess Funding Account for the purposes of carrying out its duties
hereunder.
(c) Establishment of the Tax Escrow Account. The
Servicer, for the benefit of the Noteholders and the Holder of the Transferor
Interest, shall establish and maintain or cause to be established and
maintained in the name of the Collateral Trustee, on behalf of the Noteholders
and the Holder of the Transferor Interest, with a Qualified Institution
designated by the Servicer, a segregated trust account within the corporate
trust department of such Qualified Institution (the "Tax Escrow Account"),
bearing a designation clearly indicating that the funds deposited therein are
held in trust for the purpose of paying the underlying tax obligations. The
Collateral Trustee shall possess all right, title and interest in all funds on
deposit from time to time in the Tax Escrow Account and in all proceeds
thereof. Pursuant to the authority granted to it pursuant to subsection
3.1(b), the Servicer shall have the power, revocable by the Trustee, to
withdraw funds and to instruct the Trustee to withdraw funds from the Tax
Escrow Account for the purposes of carrying out its duties hereunder.
(d) Failure of Institution to Qualify. If any institution with
which any of the accounts established pursuant to this Section 4.2 are
established ceases to be a Qualified Institution, the Servicer or the Collateral
Trustee (as the case may be) shall within 10 Business Days establish a
replacement account at a Qualified Institution after notice thereof.
(e) Amounts in Excess Funding Account. Amounts on deposit in
the Excess Funding Account on any Business Day will be invested, at the written
direction of the Servicer to the Collateral Trustee or the Qualified Institution
(with a copy to
the Collateral Trustee), in Permitted Investments maturing or available for
withdrawal on the next Transfer Day. Earnings from such investments received
shall be treated as part of the Available Amount and shall be deposited in the
Collection Account. Any investment instructions to the Collateral Trustee or the
Qualified Institution may be in writing or made orally and confirmed promptly in
writing, shall be deemed to include a certification that the proposed investment
is a Permitted Investment that matures at or prior to the date required by this
Agreement, and may be given pursuant to standing instructions.
(f) Amounts in Collection Account. Amounts on deposit in the
Collection Account on any Business Day will be invested, at the written
direction of the Servicer to the Collateral Trustee or the Qualified Institution
(with a copy to the Collateral Trustee), in Permitted Investments maturing or
available for withdrawal on the next Business Day; provided that any portion of
such funds that are allocable to a particular Monthly Period may be invested in
Permitted Investments maturing on the Transfer Date preceding the Distribution
Date on which such funds will be included in the "Available Amount". Earnings
from such investments received shall be treated as part of the Available Amount
and shall be deposited in the Collection Account. Any investment instructions to
the Collateral Trustee or the Qualified Institution may be in writing or made
orally and confirmed promptly in writing, shall be deemed to include a
certification that the proposed investment is a Permitted Investment that
matures at or prior to the date required by this Agreement, and may be given
pursuant to standing instructions.
(g) Amounts in Tax Escrow Account. Amounts on deposit in the
Tax Escrow Account on any Business Day will be invested, at the written
direction of the Servicer to the Collateral Trustee or the Qualified Institution
(with a copy to the Collateral Trustee), in Permitted Investments maturing or
available for withdrawal on the Business Day that the Servicer determines such
funds will be required to be withdrawn from such account. Earnings from such
investments received shall be treated as part of the Available Amount and shall
be deposited in the Collection Account. Any investment instructions to the
Collateral Trustee or the Qualified Institution may be in writing or made orally
and confirmed promptly in writing, shall be deemed to include a certification
that the proposed investment is a Permitted Investment that matures at or prior
to the date required by this Agreement, and may be given pursuant to standing
instructions.
(h) Identification of Accounts. Schedule 4, which is hereby
incorporated into and made a part of this Agreement, identifies the Collection
Account, the Excess Funding Account, and the Tax Escrow Account by setting forth
the account number of such account, the account designation of such account and
the name of the institution with which such account has been established.
Section 4.3 Collections and Allocations.
(a) Collections. The Servicer shall, subject to subsections
4.3(c) and 4.3(d), transfer, or cause to be transferred, all Collections on
deposit in the form of available funds in the Lockbox Account to the Collection
Account as promptly as possible after the Date of Processing of such
Collections, but in no event later than the fourth Business Day following such
Date of Processing. The Servicer shall promptly (but in no event later than two
Business Days after the Date of Processing thereof) deposit all Collections
received directly by it in the Collection Account. The Servicer shall transfer,
or cause to be transferred, all Tax Collections on deposit in the form of
available funds in the Collection Account to the Tax Escrow Account as promptly
as possible after the Date of Processing of such Tax Collections, but in no
event later than the fourth Business Day following such Date of Processing. The
Servicer shall promptly (but in no event later than two Business Days after the
Date of Processing thereof) deposit all Tax Collections received directly by it
in the Tax Escrow Account.
The Servicer shall allocate such amounts to each Series of
Notes and to the Holder of the Transferor Interest in accordance with this
Article IV and shall withdraw the required amounts from the Collection Account
or pay such amounts to the Holder of the Transferor Interest or to the other
Persons entitled thereto in accordance with this Article IV. The Servicer shall
make such deposits or payments on the date indicated therein, if applicable, by
wire transfer in immediately available funds or as otherwise provided in the
Supplement for any Series with respect to such Series.
(b) Initial Deposits. On the Initial Closing Date and on each
Addition Date thereafter, the Servicer will deposit (in immediately available
funds) into the Collection Account all Collections received after the applicable
Cut Off Date and through and including the Initial Closing Date or Addition
Date, as the case may be, in respect of Leases being transferred to the Trust on
such date.
(c) Payments from Tax Escrow Account. The Servicer may from
time to time withdraw amounts on deposit in the Tax Escrow Account for the
purpose of paying, or reimbursing itself for paying, any taxes allocable to the
Included Leases or the related Equipment.
(d) Amounts Exempt from Deposit. Notwithstanding Sections
4.3(a) and 4.3(b), the following collections (or portions thereof) are not
required to be deposited into the Collection Account:
(i) Collections on any Included Leases on which (and to
the extent that) the Servicer has previously made a Servicer Advance
which has not been reimbursed, which
amounts the Servicer may retain (as a reimbursement of such
Servicer Advance); and
(ii) Collections from any Removed Lease or any Included
Lease for which another Included Lease has been substituted as
described in Section 2.7, which amounts the Servicer may retain to the
extent necessary to reimburse itself for any related Servicer Advance
which has not been reimbursed, and the remainder of which amounts the
Servicer will pay to the Transferor or Originator, as the case may be.
(e) Allocations Prior to Pay Out Event. On each Determination
Date prior to a Pay Out Event, the Servicer, by means of a Monthly Payment
Instructions and Notification, substantially in the form of Exhibit H, shall
instruct the Collateral Trustee to withdraw, and on the succeeding Distribution
Date the Collateral Trustee acting in accordance with such instructions shall
withdraw, the amounts required to be withdrawn from the Collection Account
pursuant to this Section in order to make the following payments or allocations
from the Available Amount for the related Distribution Date (in each case, such
payment or transfer to be made only to the extent funds remain available
therefor after all prior payments and transfers for such Distribution Date have
been made), in the following order of priority:
(i) pay to the Servicer, the amount of any
Unreimbursed Servicer Advance;
(ii) pay to the Servicer the Monthly Servicing Fee for the
preceding Monthly Period together with any amounts in respect of the
Monthly Servicing Fee that were due in respect of prior Monthly Periods
that remain unpaid;
(iii) pay to each Hedging Counterparty the amount owing to
such Hedging Counterparty under the related Interest Rate Hedge for the
Accrual Period ending on such Distribution Date, together with any such
amounts that were due in respect of prior Accrual Periods that remain
unpaid (excluding, in each case, any amounts owing in respect of
termination payments (other than Hedge Termination Payments),
liquidated damages and gross-ups); provided that if the Available
Amount remaining to be allocated pursuant to this Section 4.3(e)(iii)
is less than the full amount required to be so allocated, such
remaining Available Amount shall be allocated to each Hedging
Counterparty pro rata based on the amount owing to it;
(iv) allocate to each Series an amount equal to Note
Interest accrued in respect thereof for the Accrual Period ending on
such Distribution Date, together with any such amounts that accrued in
respect of prior Accrual Periods for which no allocation was previously
made; provided that if the Available Amount remaining to be allocated
pursuant to
this Section 4.3(e)(iv) is less than the full amount required to be so
allocated, such remaining Available Amount shall be allocated to each
Series in accordance with its Series Share thereof;
(v) allocate to each Series which was as of the first day
of the preceding Monthly Period an Amortizing Series or an Accumulating
Series its Target Repayment Amount for such Monthly Period, together
with any such amounts that were due in respect of prior Monthly Periods
for which no allocation was previously made; provided that if the
Available Amount remaining to be allocated pursuant to this Section
4.3(e)(v) is less than the full amount required to be so allocated,
such remaining Available Amount shall be allocated to each Series in
accordance with its Series Share thereof; and
(vi) allocate any remaining Available Amount to the Excess
Funding Account.
(f) Allocations after a Pay Out Event. On each Determination
Date after the occurrence of a Pay Out Event, the Servicer, by means of a
Monthly Payment Instructions and Notification, substantially in the form of
Exhibit H, shall instruct the Collateral Trustee to withdraw, and on the
succeeding Distribution Date the Collateral Trustee acting in accordance with
such instructions shall withdraw, the amounts required to be withdrawn from the
Collection Account pursuant to this Section in order to make the following
payments or allocations from the Available Amount for the related Distribution
Date (in each case, such payment or transfer to be made only to the extent funds
remain available therefor after all prior payments and transfers for such
Distribution Date have been made), in the following order of priority:
(i) pay to the Servicer, the amount of any Unreimbursed
Servicer Advance;
(ii) pay to the Servicer the Monthly Servicing Fee for the
preceding Monthly Period together with any amounts in respect of the
Monthly Servicing Fee that were due in respect of prior Monthly Periods
that remain unpaid;
(iii) pay to each Hedging Counterparty the amount owing to
such Hedging Counterparty under the applicable Interest Rate Hedge for
the Accrual Period ending on such Distribution Date, together with any
such amounts that were due in respect of prior Accrual Periods that
remain unpaid (excluding, in each case, any amounts owing in respect of
termination payments (other than Hedge Termination Payments),
liquidated damages and gross-ups); provided that if the Available
Amount remaining to be allocated pursuant to this Section 4.3(f)(iii)
is less than the full amount required to be so allocated, such
remaining Available Amount
shall be allocated to each Hedging Counterparty pro rata
based on the amount owing to it;
(iv) allocate to each Series an amount equal to Note
Interest accrued in respect thereof for the Accrual Period ending on
such Distribution Date, together with any such amounts that accrued in
respect of prior Accrual Periods for which no allocation was previously
made; provided that if the Available Amount remaining to be allocated
pursuant to this Section 4.3(f)(iv) is less than the full amount
required to be so allocated, such remaining Available Amount shall be
allocated to each Series in accordance with its Pay Out Event Series
Share thereof;
(v) allocate to each Series the remaining Adjusted
Principal Amount thereof; provided that if the Available Amount
remaining to be allocated pursuant to this Section 4.3(f)(v) is less
than the full amount required to be so allocated, such remaining amount
shall be allocated to each such Series in accordance with its Pay Out
Event Series Share thereof; and
(vi) allocate any remaining Available Amount to the Excess
Funding Account.
(g) Excess Funding Account Prior to a Pay Out Event. On each
Business Day prior to a Pay Out Event, the Servicer shall instruct the
Collateral Trustee to withdraw, and on such day the Collateral Trustee acting in
accordance with such instructions shall withdraw, the amounts required to be
withdrawn from the Excess Funding Account pursuant to this Section in order to
make the following payments or allocations from the amount on deposit therein on
such day up to the Available Excess Funding Amount on such day (in each case,
such payment or transfer to be made only to the extent funds remain available
therefor after all prior payments and transfers for such day have been made and
after giving effect to any Additional Leases transferred to the Trust on such
day), in the following order of priority:
(i) allocate to each Series which is a Variable Funding
Series such amount, if any, as shall be directed by the Servicer to be
applied in accordance with the terms of the related Supplement to
reduce the Principal Amount thereof;
(ii) allocate to each Series an amount equal to any amounts
then due and payable in respect of any Reserve Funding Requirement
thereunder or any Accelerated Funding Requirement thereunder; provided
that if the Available Excess Funding Amount remaining to be allocated
pursuant to this Section 4.3(g)(ii) is less than the full amount
required to be so allocated, such remaining amount shall be allocated
to each Series in accordance with its Series Share thereof;
(iii) allocate to each Series an amount equal to any amounts
then due and payable in respect of fees and expenses owing in respect
thereof; provided that if the Available Excess Funding Amount remaining
to be allocated pursuant to this Section 4.3(g)(iii) is less than the
full amount required to be so allocated, such remaining amount shall be
allocated to each Series in accordance with its Series Share thereof;
(iv) pay to each Hedging Counterparty any unpaid amounts
owing to such Hedging Counterparty under the related Interest Rate
Hedge; provided that if the Available Amount remaining to be allocated
pursuant to this Section 4.3(g)(iv) is less than the full amount
required to be so allocated, such remaining Available Amount shall be
allocated to each Hedging Counterparty pro rata based on the amount
owing to it; and
(v) So long as no event which, with the passage of time or
the giving of notice or both, would be a Pay Out Event or an
Accelerated Payment Event has occurred and is continuing, pay to the
Holder of the Transferor Interest any remaining Available Excess
Funding Amount.
(h) Excess Funding Account after a Pay Out Event. On each
Distribution Date after a Pay Out Event, the Servicer shall instruct the
Collateral Trustee to withdraw, and on such day the Collateral Trustee acting in
accordance with such instructions shall withdraw, the amounts required to be
withdrawn from the Excess Funding Account pursuant to this Section in order to
make the following payments or allocations from the amount on deposit therein on
such day (in each case, such payment or transfer to be made only to the extent
funds remain available therefor after all prior payments and transfers for such
day have been made), in the following order of priority:
(i) on the first Distribution Date following the Monthly
Period in which a Pay Out Event occurs the entire balance in the Excess
Funding Account shall be treated as part of the Available Amount on
such day and shall be distributed pursuant to Section 4.3(f);
(ii) on each subsequent Distribution Date, pay to the
Trustee any unpaid fees and expenses owing to it hereunder;
(iii) on each subsequent Distribution Date, allocate to each
Series an amount equal to any amounts then due and payable in respect
of fees and expenses owing in respect thereof; provided that if the
amount remaining to be allocated pursuant to this Section 4.3(h)(iii)
is less than the full amount required to be so allocated, such
remaining amount shall be allocated to each Series in accordance with
its Series Share thereof;
(iv) on each Distribution Date to occur after all amounts
owing in respect of all outstanding Series have been repaid in full,
pay to each Hedging Counterparty any unpaid amounts owing to such
Hedging Counterparty under the related Interest Rate Hedge; provided
that if the Available Amount remaining to be allocated pursuant to this
Section 4.3(h)(iv) is less than the full amount required to be so
allocated, such remaining Available Amount shall be allocated to each
Hedging Counterparty pro rata based on the amount owing to it; and
(v) on each Distribution Date to occur after all amounts
owing in respect of all outstanding Series and Interest Rate Xxxxxx
have been paid in full, pay to the Holder of the Transferor Interest
any remaining amount.
Section 4.4 Determination of the Amortizing Pools.
(a) On or before the Distribution Date immediately preceding
the Amortization Commencement Date for each Series, the Servicer will select a
group of Included Leases (or portions thereof), to be used to establish a
repayment schedule for such Series (each such group, an "Amortizing Pool") in
accordance with the following criteria and procedures:
(i) The Servicer shall make such selection from among
those Included Leases that are not then assigned to another Amortizing
Pool (unless the Principal Amount of the related Series has been repaid
in full) and are not then Defaulted Leases.
(ii) The aggregate number of Included Leases (or
portions thereof) shall be such as to provide an Aggregate Pool Balance
for such Amortizing Pool at least equal to the Principal Amount of such
Series as of the related Amortization Commencement Date.
(iii) If and to the extent Additional Selection Criteria
are specified in the Supplement for such Series, the Servicer shall use
such criteria.
(iv) Except as specified above in this Section, the
Servicer shall have complete discretion when selecting Included Leases
for inclusion in an Amortizing Pool.
(b) Upon the payment in full of the related Principal Amount,
any Included Leases (or portions thereof) remaining outstanding in such
Amortizing Pool shall be released from such Amortizing Pool.
(c) It is understood that the allocation of specific Included
Leases (or portions thereof) to a particular Amortizing Pool and Series is
solely for the purpose of establishing a target repayment schedule for such
Series and of allocating the
Available Amount prior to a Pay Out Event and does not give any such Series any
preference or priority with respect to the Included Leases (or portions thereof)
allocated to the related Amortizing Pool.
Section 4.5 Interest Rate Xxxxxx. (a) The Servicer may from
time to time designate Persons to become additional Hedging Counterparties
hereunder, provided that (i) when designating such additional Hedging
Counterparty, the Servicer shall deliver to the Trustee an Opinion of Counsel as
to the due authorization, execution and delivery and validity and enforceability
of the Interest Rate Hedge with such additional Hedging Counterparty and (ii) at
the time of such designation, the long term unsecured debt or long term
certificate of deposit rating assigned to such additional Hedging Counterparty,
shall be at least A by Standard & Poor's and A2 by Moody's.
(b) In the event that the long term unsecured debt or long
term certificate of deposit rating of a Hedging Counterparty is withdrawn or
reduced below A by Standard & Poor's or is withdrawn or reduced below A2 by
Moody's, then within 30 days after receiving notice of such decline in
creditworthiness, either (x) such Hedging Counterparty, at its own expense, will
obtain a Replacement Interest Rate Hedge or (y) the Trustee, at the direction of
the Servicer to do either of the following, shall either (i) with the prior
written confirmation of the Rating Agency that such action will not result in a
reduction or withdrawal of the rating of any Class of Notes, use its best
efforts to (A) cause such Hedging Counterparty to pledge securities in the
manner provided by applicable law or (B) otherwise cause to be pledged
securities, which shall be held by the Trustee, its custodian, or its agent free
and clear of the Lien of any third party, in a manner conferring on the Trustee
a perfected first Lien in such securities securing the Hedging Counterparty's
performance of its obligations under the Interest Rate Hedge, or (ii) provided
that a Replacement Interest Rate Hedge or Qualified Substitute Arrangement
meeting the requirements of Section 4.5(c) has been obtained, (A) provide
written notice to the Hedging Counterparty of its intention to terminate the
Interest Rate Hedge within such 30-day period and (B) terminate the Interest
Rate Hedge within such 30-day period, request the payment to it of all amounts
due to the Trust under the Interest Rate Hedge through the termination date and
deposit any such amounts so received, on the day of receipt, to the Collection
Account, or (iii) use reasonable efforts to establish any other arrangement
satisfactory to the Rating Agency including collateral, guarantees or letters of
credit, which arrangement will result in the Rating Agency's not reducing or
withdrawing the then rating of any Class of Notes (a "Qualified Substitute
Arrangement"); provided, however, that in the event at any time any alternative
arrangement established pursuant to clause (x) or (y)(i) or (y)(iii) above shall
cease to be satisfactory to the Rating Agency, then the provisions of this
Section 4.5(b) shall again be applied and in connection therewith the 30-day
period
referred to above shall commence on the date the Servicer receives notice of
such cessation or termination, as the case may be.
(c) Unless an alternative arrangement pursuant to clause (x)
or (y)(i) of Section 4.5(b) is being established, the Trustee, at the direction
of the Servicer shall use its best efforts to obtain a Replacement Interest Rate
Hedge or Qualified Substitute Arrangement meeting the requirements of this
Section 4.5(c) during the 30-day period referred to in Section 4.5(b). The
Trustee shall not at any time terminate the Interest Rate Hedge unless, prior to
such termination, the Trustee or the Servicer has obtained (i) a Replacement
Interest Rate Hedge or Qualified Substitute Arrangement, (ii) to the extent
applicable, an Opinion of Counsel as to the due authorization, execution,
delivery, validity and enforceability of such Replacement Interest Rate Hedge or
Qualified Substitute Arrangement, as the case may be, and (iii) a letter from
the Rating Agency confirming that the termination of the Interest Rate Hedge and
its replacement with such Replacement Interest Rate Hedge or Qualified
Substitute Arrangement will not adversely affect its rating of any Class of
Notes.
(d) The Servicer shall notify the Trustee and the Rating
Agency within five Business Days after obtaining knowledge that the long term
unsecured debt or the long term certificate of deposit rating of a Hedging
Counterparty has been withdrawn or reduced by Standard & Poor's or Moody's.
(e) Notwithstanding the foregoing, the Servicer may at any
time obtain a Replacement Interest Rate Hedge, provided that the Servicer
delivers to the Trustee (i) an Opinion of Counsel as to the due authorization,
execution and delivery and validity and enforceability of such Replacement
Interest Rate Hedge and (ii) a letter from the Rating Agency confirming that the
termination of the then current Interest Rate Hedge and its replacement with
such Replacement Interest Rate Hedge will not adversely affect its rating of any
Class of Notes. Upon the effectiveness of a Replacement Interest Rate Hedge, the
Trustee is authorized to reconvey the benefits of the replaced Interest Rate
Hedge to the Transferor.
(f) The Trustee on behalf of the Trust hereby appoints each
Hedging Counterparty to perform the duties of the calculation agent under the
related Interest Rate Hedge.
[THE REMAINDER OF ARTICLE IV IS RESERVED AND
SHALL BE SPECIFIED IN ANY SUPPLEMENT
WITH RESPECT TO ANY SERIES]
ARTICLE V
[ARTICLE V IS RESERVED AND SHALL
BE SPECIFIED IN ANY SUPPLEMENT
WITH RESPECT TO ANY SERIES]
ARTICLE VI
THE NOTES
Section 6.1 The Notes and the Transferor Interest. The Notes
of each Series and any Class thereof shall be issued in fully registered form
and shall be substantially in the form of the exhibits with respect thereto
attached to the related Supplement. The Transferor Interest shall be evidenced
by book-entry notation in the Register. The Notes shall, upon issue, be
executed, authenticated and delivered by the Trustee. The Notes shall be
issuable in a minimum denomination of $1,000 principal amount and integral
multiples thereof, unless otherwise provided in any Supplement, and the Notes of
each Series shall be issued upon initial issuance in an aggregate original
principal amount equal to the Initial Principal Amount of such Series. Each Note
shall be executed by manual or facsimile signature on behalf of the Trust by a
Responsible Officer of the Trustee. Any Note bearing the manual or facsimile
signature of the individual who was, at the time when such signature was
affixed, authorized to sign on behalf of the Trustee shall not be rendered
invalid, notwithstanding that such individual has ceased to be so authorized
prior to the authentication and delivery of such Note or does not hold such
office at the date of such Note. No Note shall be entitled to any benefit under
this Agreement, or be valid for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by or on behalf of the Trustee by the manual or facsimile signature of
a Responsible Officer, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated and
delivered hereunder. All Notes shall be dated the date of their authentication.
Section 6.2 Authentication of Notes and Transferor Interest.
Contemporaneously with the initial transfer of the Original Leases and the other
initial Trust Assets to the Trust, the Trustee shall authenticate and deliver
the initial Series of Notes. The Trustee shall evidence the Transferor Interest
of the Transferor by notation in the Register simultaneously with its delivery
to or upon the order of the Transferor of the initial Series of Notes. The Notes
shall be duly authenticated by or on behalf of the Trustee.
Section 6.3 Registration of Transfer and Exchange of
Notes. (a) The Trustee shall cause to be kept at the office or
agency to be maintained by a transfer agent and registrar (the
"Transfer Agent and Registrar") in accordance with the provisions of Section
11.16 a register (the "Register") in which, subject to such reasonable
regulations as it may prescribe, the Transfer Agent and Registrar shall provide
for the registration of the Notes and of transfers and exchanges of the Notes as
herein provided. The Trustee is hereby initially appointed Transfer Agent and
Registrar for the purpose of registering the Notes and transfers and exchanges
of the Notes as herein provided. The Trustee shall be permitted to resign as
Transfer Agent and Registrar upon 30 days written notice to the Transferor. In
the event that the Trustee shall no longer be the Transfer Agent and Registrar,
the Transferor shall appoint a successor Transfer Agent and Registrar.
Upon surrender for registration of transfer of any Note of any
Series at any office or agency of the Transfer Agent and Registrar maintained
for such purpose, the Trust shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees, one or
more new Notes of such Series in authorized denominations of like aggregate
principal amounts.
At the option of a Noteholder, Notes of any Series may be
exchanged for other Notes of the same Series and authorized denominations of
like principal amounts, upon surrender of the Notes to be exchanged at any such
office or agency. Whenever any Notes are so surrendered for exchange the Trust
shall execute, and the Trustee shall authenticate and deliver the Notes which
the Noteholder making the exchange is entitled to receive. Every Note presented
or surrendered for registration of transfer or exchange shall be accompanied by
a written instrument of transfer in a form satisfactory to the Trustee and the
Transfer Agent and Registrar duly executed by the Noteholder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Notes, but the Transfer Agent and Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of Notes.
All Notes surrendered for registration of transfer or exchange
shall be canceled and disposed of in the Trustee's customary manner.
(b) It is the understanding of the parties to this Agreement
that AFG has particular expertise in performing the functions given by this
Agreement to the Servicer and that the Noteholders will be purchasing Notes
relying on its exercising such expertise in performing such functions. As
provided in Sections 8.5 and 8.7, the Servicer is not permitted to resign,
except as otherwise permitted in such sections. Except as provided in Section
6.12, Section 6.14 and Section 7.2, the Transferor Interest, or any interest
therein, shall not be
transferred, assigned, exchanged, or otherwise transferred, unless (i) the
Rating Agency Condition will have been satisfied with respect thereto, (ii) the
Transferor will have delivered to the Trustee an Officer's Certificate to the
effect that, based upon the facts known to such officer at such time, such
transfer, assignment or exchange will not cause a Pay Out Event and (iii) the
Transferor will have delivered to the Trustee a Tax Opinion, and provided,
however, in any event, the Transferor shall retain at all times at least 25% in
interest of the Transferor Interest (without exclusion for any constituent
interests therein) which interest cannot be subordinated to any constituent
interests in the Transferor Interest.
(c) The Transfer Agent and Registrar will maintain at its
expense in the Borough of Manhattan, The City of New York, an office or offices
or agency or agencies where Notes may be surrendered for registration of
transfer or exchange.
Section 6.4 Mutilated, Destroyed, Lost or Stolen Notes. If (a)
any mutilated Note 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 Note and (b) there is delivered to the
Transfer Agent and Registrar and the Trustee such security or indemnity as may
be required by them to save each of them harmless, then, in the absence of
notice to the Trustee that such Note has been acquired by a bona fide purchaser,
the Trust shall execute, and the Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen Note, a
new Note of like tenor and aggregate principal amount. In connection with the
issuance of any new Note under this Section 6.4, the Trustee or the Transfer
Agent and Registrar may require the payment 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 fees and expenses of the Trustee and the Transfer
Agent and Registrar) connected therewith. Any duplicate Note issued pursuant to
this Section 6.4 shall constitute complete and indefeasible evidence of a right
to receive payments from the Trust on the terms set forth therein, as if
originally issued, whether or not the lost, stolen or destroyed Note shall be
found at any time.
Section 6.5 Persons Deemed Owners. Prior to due presentation
of a Note for registration of transfer, the Trustee and the Paying Agent, the
Transfer Agent and Registrar and any agent of any of them may treat the Person
in whose name any Note is registered as the owner of such Note for the purpose
of receiving distributions pursuant to Article V (as described in any
Supplement) and for all other purposes whatsoever, and neither the Trustee and
the Paying Agent, the Transfer Agent and Registrar nor any agent of any of them
shall be affected by any notice to the contrary: provided, however, that in
determining whether the Holders of Notes evidencing the requisite principal
amounts have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Notes owned by the Transferor, the Servicer
or any Affiliate thereof shall be disregarded and deemed not to be outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Notes which a Responsible Officer in the Corporate Trust Office of
the Trustee actually knows to be so owned shall be so disregarded. Notes so
owned which have been pledged in good faith shall not be disregarded and may be
regarded as outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Notes and that the
pledgee is not the Transferor, the Servicer or an Affiliate thereof.
Section 6.6 Appointment of Paying Agent. (a) The Paying Agent
shall make distributions to Noteholders from a Distribution Account pursuant to
Article V. Any Paying Agent shall have the revocable power to withdraw funds
from such Distribution Account for the purpose of making distributions referred
to above. The Trustee may revoke such power and remove the Paying Agent for a
particular Series, if the Trustee 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, unless the Supplement relating to any
Series states otherwise, shall initially be the Collateral Trustee. The
Collateral Trustee shall be permitted to resign as Paying Agent upon 30 days'
written notice to the Transferor. In the event that the Collateral Trustee shall
no longer be the Paying Agent, the Transferor shall appoint a successor. Each
Paying Agent must be reasonably acceptable to the Transferor, the Trustee and
the Servicer. The provisions of Sections 11.1, 11.2 and 11.3 shall apply to the
Trustee also in its role as Paying Agent, for so long as the Trustee shall act
as Paying Agent.
(b) The Trustee shall cause the Paying Agent (other than
itself or the Collateral Trustee) to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee that such
Paying Agent will hold all sums, if any, held by it for payment to the
Noteholders in trust for the benefit of the Noteholders entitled thereto until
such sums shall be paid to such Noteholders and shall agree, and if the
Collateral Trustee is the Paying Agent it hereby agrees, that it shall comply
with all requirements of the Internal Revenue Code regarding the withholding of
payments in respect of federal income taxes due from Noteholders and the Holder
of the Transferor Interest by the Collateral Trustee.
Section 6.7 Access to List of Holders' Names and Addresses.
The Trustee will furnish or cause to be furnished by the Transfer Agent and
Registrar to the Servicer or the Paying Agent, within five Business Days after
receipt by the Trustee of a request therefor from the Servicer or the Paying
Agent, respectively, in writing, a list in such form as the Servicer or
the Paying Agent may reasonably require, of the names and addresses of the
Noteholders as of the most recent Record Date for payment of distributions to
Noteholders. If Holders of a principal amount of Notes aggregating not less than
10% of the Principal Amount of the Notes of any Series (the "Applicants") apply
in writing to the Trustee, and such application states that the Applicants
desire to communicate with other Noteholders of any Series with respect to their
rights under this Agreement or under the Notes and is accompanied by a copy of
the communication which such Applicants propose to transmit, then the Trustee,
after having been indemnified to its satisfaction by such Applicants for its
costs and expenses, shall afford or shall cause the Transfer Agent and Registrar
to afford such Applicants access during normal business hours to the most recent
list of Noteholders held by the Trustee and shall give the Servicer notice that
such request has been made, within five Business Days after the receipt of such
application. Such list shall be as of a date no more than 45 days prior to the
date of receipt of such Applicants' request. Every Noteholder and the Holder of
the Transferor Interest, by receiving and holding a Note or the Transferor
Interest, as the case may be, agrees that neither the Trustee nor the Transfer
Agent and Registrar nor the Transferor nor any of their respective agents shall
be held accountable by reason of the disclosure of any such information as to
the names and addresses of the Noteholders and the Holder of the Transferor
Interest hereunder, regardless of the source from which such information was
obtained.
Section 6.8 Authenticating Agent. (a) The Trustee may appoint
one or more authenticating agents with respect to the Notes which shall be
authorized to act on behalf of the Trustee in authenticating the Notes in
connection with the issuance, delivery, registration of transfer, exchange or
repayment of Notes. Whenever reference is made in this Agreement to the
authentication of Notes by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication on
behalf of the Trustee by an authenticating agent and a certificate of
authentication executed on behalf of the Trustee by an authenticating agent.
Each authenticating agent must be reasonably acceptable to the Transferor and
the Servicer.
(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 paper or any further act on the part of
the Trustee or such authenticating agent.
(c) An authenticating agent may at any time resign by giving
written notice of resignation to the Trustee and to the Transferor. The Trustee
may at any time terminate the agency of an authenticating agent by giving notice
of termination to such authenticating agent and to the Transferor. Upon
receiving such a notice of resignation or upon such a termination, or in case at
any time an authenticating agent shall cease to be acceptable to the Trustee or
the Transferor or the Servicer, the Trustee promptly may appoint a successor
authenticating agent. Any successor authenticating agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
authenticating agent. No successor authenticating agent shall be appointed
unless reasonably acceptable to the Trustee, the Transferor and the Servicer.
(d) The Transferor agrees to pay each authenticating agent
from time to time reasonable compensation for its services under this Section
6.8.
(e) The provisions of Sections 11.1, 11.2 and 11.3 shall be
applicable to any authenticating agent.
(f) Pursuant to an appointment made under this Section 6.8,
the Notes may have endorsed thereon, in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication in substantially the
following form:
This is one of the Notes described in the Pooling and
Servicing Agreement and Indenture of Trust.
as Authenticating Agent for the Trustee,
By:
Authorized Officer
Section 6.9 Book-Entry Notes. Unless otherwise provided in any
related Supplement, the Notes of any Series upon original issuance, shall be
issued in the form of one or more physical Notes representing the Book-Entry
Notes, to be delivered to the Clearing Agency specified in the Supplement for
such Series, by, or on behalf of, the Transferor. The Notes of each Series
shall, unless otherwise provided in the related Supplement, initially be
registered on the Register in the name of the nominee of the Clearing Agency,
and no Note Owner will receive a definitive certificate representing such Note
Owner's interest in the Notes, except as provided in Section 6.11. Unless and
until definitive, fully registered Notes of any Series (the "Definitive Notes")
have been issued to Note Owners:
(i) the provisions of this Section 6.9 shall be in full
force and effect with respect to each such Series;
(ii) the Transferor, the Servicer, the Paying Agent, the
Transfer Agent and Registrar and the Trustee may deal with the related
Clearing Agency and the related Clearing Agency Participants for all
purposes (including the making
of distributions on the Notes of each such Series) as the
authorized representatives of such Note Owners;
(iii) to the extent that the provisions of this Section
6.9 conflict with any other provisions of this Agreement, the
provisions of this Section 6.9 shall control with respect to each such
Series; and
(iv) the rights of Note Owners of each such Series shall
be exercised only through the Clearing Agency and the applicable
Clearing Agency Participants and shall be limited to those established
by law and agreements between such Note Owners and the Clearing Agency
and/or the Clearing Agency Participants. Pursuant to the Depository
Agreement applicable to a Series, unless and until Definitive Notes are
issued pursuant to Section 6.11, the initial Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and receive
and transmit distributions of principal and interest on the Notes to
such Clearing Agency Participants.
Section 6.10 Notices to Clearing Agent. Whenever notice or
other communication to the Noteholders of a Series is required under this
Agreement, unless and until Definitive Notes shall have been issued to the Note
Owners of such Series, the Trustee shall give all such notices and
communications specified herein to be given to Holders of the Notes of such
Series to the Clearing Agency.
Section 6.11 Definitive Notes Initially Issued as Book-Entry
Notes. If (i)(A) the Transferor advises the Trustee in writing that the Clearing
Agency is no longer willing or able properly to discharge its responsibilities
under the related Depository Agreement, and (B) the Trustee or the Transferor is
unable to locate a qualified successor, (ii) the Transferor, at its option,
advises the Trustee in writing that it elects to terminate the book-entry system
through such Clearing Agency or (iii) after the occurrence of a Pay Out Event,
Note Owners of a Series representing beneficial interests aggregating not less
than 50% of the Principal Amount of a Series advise the Trustee and the related
Clearing Agency through the related Clearing Agency Participants in writing that
the continuation of a book-entry system through such Clearing Agency is no
longer in the best interests of the Note Owners, the Trustee shall notify all
Note Owners of such Series through such Clearing Agency, of the occurrence of
any such event and of the availability of Definitive Notes to Note Owners
requesting the same. Upon surrender to the Trustee of the Notes of such Series
by the related Clearing Agency, accompanied by registration instructions from
the related Clearing Agency for registration, the Trustee on behalf of the Trust
shall issue the Definitive Notes of such Series. Neither the Transferor nor the
Trustee shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Notes of such Series, all
references herein to obligations imposed upon or to be performed by the Clearing
Agency shall be deemed to be imposed upon and performed by the Trustee, to the
extent applicable with respect to such Definitive Notes and the Trustee shall
recognize the Holders of the Definitive Notes of such Series as Noteholders of
such Series hereunder.
Section 6.12 Exchange of Transferor Interest.
(a) Upon any Exchange, the Transferor shall, pursuant to
Section 6.1, deliver to the Trustee for execution and authentication under
Section 6.2, one or more new Series of Notes. Any such Series of Notes 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 the Transferor. Except as specified in the related Supplement, all Notes of
any Series shall rank pari passu and be equally and ratably entitled as provided
herein to the benefits hereof (except that the Enhancement provided for any
Series shall not be available for any other Series) without preference, priority
or distinction on delivery, all in accordance with terms and provisions of this
Agreement and the related Supplement.
(b) The Holder of the Transferor Interest may direct the
Trustee in writing to make an appropriate entry in the Register to evidence an
exchange of the Transferor Interest for (i) one or more newly issued Series of
Notes and (ii) a new Transferor Interest evidenced by book-entry notation in the
Register (any such exchange, a "Transferor Exchange"). In addition, to the
extent permitted for any Series of Notes as specified in the related Supplement,
the Noteholders of such Series may tender their Notes and the Holder of the
Transferor Interest may direct the Trustee in writing to make an appropriate
entry in the Register to evidence an exchange of the Transferor Interest
pursuant to the terms and conditions set forth in such Supplement in exchange
for (i) one or more newly issued Series of Notes and (ii) a new Transferor
Interest evidenced by book-entry notation in the Register (a "Principal
Exchange"). The Transferor Exchange and Principal Exchange are referred to
collectively herein as an "Exchange". The Holder of the Transferor Interest may
perform an Exchange by notifying the Trustee in writing at least five days (but
in no event less than three Business Days) in advance (an "Exchange Notice") of
the date upon which the Exchange is to occur (an "Exchange Date"). Any Exchange
Notice shall state the designation of any Series to be issued on the Exchange
Date and, with respect to each such Series: (a) its Initial Principal Amount (or
the method of calculating such Initial Principal Amount), (b) its Note Rate (or
the method of allocating interest payments or other cash flows to such Series),
if any, (c) the Enhancement Provider(s), if any, with respect to such Series,
and (d) whether such Series is a Replacement Series. On the Exchange Date, the
Trustee shall execute, authenticate and deliver any such Series of Notes only
upon delivery to it of the following: (a) a Supplement in form satisfactory to
the Trustee satisfying the criteria set forth in subsection 6.12(c) executed by
the Transferor and specifying the Principal Terms of such Series, (b) the
applicable Enhancement, if any, (c) the agreement, if any, pursuant to which the
Enhancement Provider(s) agree(s) to provide the Enhancement, if any, (d) a Tax
Opinion with respect to the newly issued Series of Notes, (e) proof that the
Rating Agency Condition with respect to the Exchange has been satisfied, (f) an
Officer's Certificate of the Transferor that on the Exchange Date (i) after
giving effect to the Exchange, and any Additional Lease being transferred to the
Trust on the Exchange Date pursuant to subsection 2.6(a), no Pay Out Event or an
event which with notice or lapse of time or both would constitute a Pay Out
Event shall have occurred and (ii) after giving effect to such Exchange, the
Asset Base would at least equal the Aggregate Adjusted Principal Amount, and (g)
evidence, satisfactory to the Trustee, of any deposit to a Distribution Account
required in connection with the issuance of a Replacement Series. Upon
satisfaction of such conditions, the Trustee shall cancel the existing
Transferor Interest or applicable Notes, as the case may be, and issue or make
an appropriate entry in the Register, as the case may be and as provided above,
such Series of Notes and a new Transferor Interest, dated the Exchange Date.
There is no limit to the number of Exchanges that may be performed under this
Agreement.
(c) In conjunction with an Exchange, the parties hereto shall
execute a Supplement, which shall specify the relevant terms with respect to any
newly issued Series of Notes, which may include without limitation: (i) its name
or designation, (ii) an Initial Principal Amount or the method of calculating
the Initial Principal Amount, (iii) the Note Rate (or formula for the
determination thereof), (iv) the Closing Date, (v) the Rating Agency or Agencies
rating such Series, (vi) the name of the Clearing Agency, if any, (vii) the
rights of the Holder of the Transferor Interest that have been transferred to
the Holders of such Series pursuant to such Exchange, (viii) the interest
payment date or dates and the date or dates from which interest shall accrue,
(ix) the method of allocating amounts to such Series pursuant to Article IV and,
if applicable, with respect to other Series and the method by which the
principal amount of Notes of such Series shall amortize or accrue, (x) the names
of any accounts to be used by such Series and the terms governing the operation
of any such accounts, (xi) the Series Termination Date, (xii) the terms of any
Enhancement with respect to such Series, (xiii) the Enhancement Provider(s), if
applicable, (xiv) the terms on which the Notes of such Series may be repurchased
or remarketed to other investors, (xv) any deposit into any account provided for
such Series, (xvi) the number of Classes of such Series, and if more than one
Class, the rights and priorities of each such Class, (xvii) the priority of any
Series with respect to any other Series, and (xviii) any other relevant terms of
such Series (including whether or not such Series will be pledged as collateral
for an issuance of any other
securities, including commercial paper or whether or not such Series is a
Replacement Series) (all such terms, the "Principal Terms" of such Series). The
terms of such Supplement may modify or amend the terms of this Agreement solely
as applied to such new Series.
Section 6.13 Note Transfer Restrictions.
(a) Unless otherwise provided in the related Supplement, in
the case of any Notes issued by the Trust for which an Opinion of Counsel is not
delivered that such Class of Notes will be treated as debt for federal income
tax purposes (a "Restricted Note"), no sale, assignment, participation, transfer
or other disposition (a "Transfer") of any such Restricted Note (or any interest
therein) shall be made unless the Transferor and the Servicer shall have granted
their prior consent to such Transfer, which consent shall not be unreasonably
withheld. Moreover, in no event shall a transfer of a Restricted Note be
permitted to a partnership, S corporation or grantor trust. The Transferor and
Servicer shall not approve a Transfer of a Restricted Note and consent will be
deemed to be reasonably withheld if the Transfer creates a substantial risk that
the Trust would be taxable as a corporation for federal income tax purposes. Any
Holder of a Restricted Note which wishes to effect a Transfer must deliver to
the Transferor and the Servicer the following representation prior to the
Transfer:
The Purchaser has neither acquired nor will it sell, trade, assign or
otherwise dispose of the Note(s) (or any interest therein) or cause the
Note(s) (or any interest therein) to be marketed on or through (i) an
"established securities market" within the meaning of section
7704(b)(1) of the Code, including, without limitation, an
over-the-counter market or an interdealer quotation system that
regularly disseminates firm buy or sell quotations or (ii) a "secondary
market" within the meaning of section 7704(b)(2) of the Code, including
a market wherein the Notes (or any interests therein) are regularly
quoted by any person making a market in such interests and a market
wherein any person regularly makes available bid or offer quotes with
respect to the Notes (or any interest therein) and stands ready to
effect buy or sell transactions at the quoted prices for itself or on
behalf of others.
If the Transferor and Servicer do not object to the Transfer within 5 Business
Days of the receipt of the above representation, the Transfer Agent and
Registrar shall record the Transfer.
(b) The Transferor shall designate 20% of the principal amount
of each Class of Notes of a Series which is issued by the Trust for which an
Opinion of Counsel is not delivered that such Class of Notes will be treated as
debt for federal income tax purposes ("Restricted Subclass Notes") to be
subject to the following transfer restrictions in addition to those described in
subparagraph (a) of this Section: (i) if Restricted Subclass Notes are held by
the Transferor, such Notes will only be transferable with the consent of a
majority in interest of each Class of Notes for which an Opinion of Counsel is
not delivered that such Class of Notes will be treated as debt for federal
income tax purposes and a majority in interest of the holders of each issuance
of constituent interests in the Transferor Interest and (ii) if Restricted
Subclass Notes are held by a Person other than the Transferor, such Notes will
only be transferable with the consent of the Transferor, a majority in interest
of each Class of Notes for which an Opinion of Counsel is not delivered that
such Class of Notes will be treated as debt for federal income tax purposes and
a majority in interest of the holders of any constituent interests in the
Transferor Interest.
Section 6.14 Constituent Transferor Interests.
(a) Subject to the satisfaction of the conditions set forth in
Section 6.14(c) and Section 6.3(b), the Holder of the Transferor Interest may at
any time and from time to time create a constituent interest in the Transferor
Interest by (i) authorizing or directing the Trustee to issue an interest in the
Trust that is payable from amounts that are otherwise allocable to the
Transferor Interest, or (ii) authorizing or directing the Trustee to reallocate
all or any portion of the amounts distributable to the Holder of the Transferor
Interest pursuant to Article IV and Article V to any other Holder. In connection
with such issuance or reallocation, the Transferor may assign an interest rate
to the Transferor Interest(s) or a portion thereof. Upon presentation to the
Trustee and the Paying Agent of documentation satisfactory to the Trustee (to
which the Trustee may be a party, if requested by the Transferor) reallocating
payments with respect to the Transferor Interest, the Paying Agent shall pay
amounts due hereunder to the Holder of the Transferor Interest or to the holders
of such constituent interests, as the case may be, pursuant to the terms of such
documentation. The minimum denomination of issuance of any constituent interest
in the Transferor Interest will be $20,000.
(b) The documentation referred to in subsection (a) of this
Section 6.14 shall set forth the rights of the holders of the interests issued
thereby with respect to the approval of amendments and waivers pursuant to
Section 13.1.
(c) As a condition precedent to the issuance of the
constituent interests pursuant to this Section 6.14, (A) the Trustee and the
Transferor shall have received an opinion of outside tax counsel to the effect
that (i) the constituent interests issued and sold to third parties will be
characterized as indebtedness or an interest in a partnership (not taxable as a
corporation) for federal income tax purposes, (ii) the issuance of the
constituent interests will not cause outstanding Notes to be characterized as
other than indebtedness for federal income
tax purposes and (iii) the issuance of the constituent interests will not be
treated as a taxable sale, exchange or other disposition of the Trust Assets for
federal income tax purposes, (B) in the reasonable belief of the Transferor, as
evidenced by an Officer's Certificate, such issuance of constituent interests
would not cause a Pay Out Event to occur, or an event which, with notice or
lapse of time or both, would constitute a Pay Out Event, and (C) the Rating
Agency Condition shall have been satisfied.
(d) Any holder who wishes to effect a Transfer of a
constituent interest must deliver to the Transferor and the Servicer the
representation set forth in Section 6.13.
ARTICLE VII
OTHER MATTERS RELATING TO TRANSFEROR
Section 7.1 Liability of Transferor. The Transferor shall be
liable in accordance herewith to the extent, and only to the extent, of the
obligations specifically undertaken by the Transferor hereunder.
Section 7.2 Merger or Consolidation of, or Assumption
of the Obligations of, Transferor, etc.
(a) Transferor shall not consolidate with or merge into any
other Person or convey or transfer its properties and assets substantially as an
entirety to any Person, unless:
(i) the Person formed by such consolidation or into
which Transferor is merged or the Person which acquires by conveyance
or transfer the properties and assets of the Transferor substantially
as an entirety shall be, if the Transferor is not the surviving entity,
organized and existing under the laws of the United States of America
or any State or the District of Columbia and shall expressly assume, by
an agreement supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the performance of every
covenant and obligation of the Transferor, as applicable hereunder, and
shall benefit from all the rights granted to the Transferor, as
applicable hereunder;
(ii) the Transferor shall have delivered to the Trustee
and, to the extent provided in the related Supplement, to each
Enhancement Provider, an Officer's Certificate of Transferor and an
Opinion of Counsel, each stating that such consolidation, merger,
conveyance or transfer and such supplemental agreement comply with this
Section 7.2 and that all conditions precedent herein provided for
relating to such transaction have been complied with and, in the case
of the Opinion of Counsel, that such
supplemental agreement is legal, valid and binding with
respect to such surviving entity;
(iii) the Transferor shall have complied with Section
6.3(b) to the extent applicable; and
(iv) the Transferor shall have delivered notice of such
consolidation, merger, conveyance or transfer to each Rating Agency
and, with respect to each Series that is rated by a Rating Agency, the
Rating Agency Condition shall have been satisfied and, with respect to
each other Series, the consent thereto of the Required Holders has been
obtained.
(b) The obligations of the Transferor hereunder shall not be
assignable nor shall any Person succeed to the obligations of the Transferor
hereunder except for mergers, consolidations, assumptions or transfers in
accordance with the provisions of the foregoing paragraph.
Section 7.3 Limitation on Liability of Transferor. Except as
expressly provided herein, neither the Transferor nor any of the directors,
officers, employees and agents of the Transferor shall be under any liability to
the Trust, the Trustee, the Noteholders, the Holder of the Transferor Interest
or any other Person for any action taken or for refraining from the taking of
any action pursuant to this Agreement whether arising from express or implied
duties under this Agreement, it being expressly understood that all such
liability is expressly waived and released as a condition of, and as
consideration for, the execution of this Agreement and any Supplement and the
issuance of the Notes and the book-entry notation in the Register evidencing the
Transferor Interest; provided, however, that the Transferor hereby assumes
liability for any liabilities, costs or expenses of the Trust arising under any
tax law, including without limitation any foreign, federal, state or local
income or franchise taxes or any other tax imposed on or measured by income (or
any interest or penalties with respect thereto or arising from a failure to
comply therewith) required to be paid by the Trust in connection herewith to any
taxing authority; provided, further, that this provision shall not protect
Transferor or any such Person against any liability which would otherwise be
imposed by reason of willful misfeasance, bad faith or gross negligence in the
performance of duties or by reason of willful misconduct hereunder. The
Transferor and any director, officer, employee and agent of the Transferor may
rely in good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder.
Section 7.4 Liabilities. A creditor of the Trust may seek
personal satisfaction from the Transferor to the extent that the Trust assets
are insufficient to satisfy the creditor's claims as though this Agreement
created a partnership under the Delaware Uniform Partnership law in which the
Transferor is the general partner; provided, however, that the Transferor shall
not
be liable to or indemnify or hold harmless the Trustee, the Noteholders or the
Collateral Trustee or any of its respective officers, directors, employees or
agents as to any loss, liability, expense, damage or injury suffered or
sustained by reason of fraud, negligence or willful misconduct on the part of
the Trustee or the Collateral Trustee, as the case may be, or any of its
respective officers, directors, employees or agents; and provided further,
however, that, in no event will the Transferor be liable, directly or
indirectly, for or in respect of any indebtedness evidenced or created by any
Note or the Transferor Interest, recourse as to which shall be limited solely to
the assets of the Trust allocated for the payment thereof as provided in this
Agreement and any applicable Supplement.
Section 7.5 Decisions with Respect to the Trust. Transferor
agrees that all decisions with respect to the Trust that are not, pursuant to
the terms of this Agreement, otherwise required to be made by other parties, are
to be made by the Transferor.
ARTICLE VIII
OTHER MATTERS RELATING TO THE SERVICER
Section 8.1 Liability of the Servicer. The Servicer shall be
liable in accordance herewith only to the extent of the obligations specifically
undertaken by the Servicer in such capacity herein.
Section 8.2 Merger or Consolidation of, or Assumption of the
Obligations of, the Servicer. The Servicer shall not consolidate with or merge
into any other Person or convey or transfer its properties and assets
substantially as an entirety to any Person, unless:
(i) the Person formed by such consolidation or into
which the Servicer is merged or the Person which acquires by conveyance
or transfer the properties and assets of the Servicer substantially as
an entirety shall be, if the Servicer is not the surviving entity,
organized and existing under the laws of the United States of America
or any State or the District of Columbia and shall expressly assume, by
an agreement supplemental hereto, executed and delivered to the Trustee
in form satisfactory to the Trustee, the performance of every covenant
and obligation of the Servicer hereunder, and shall benefit from all
the rights granted to the Servicer, as applicable hereunder;
(ii) the Servicer has delivered to the Trustee and each
Enhancement Provider an Officer's Certificate and an Opinion of Counsel
each stating that such consolidation, merger, conveyance or transfer
and such supplemental agreement comply with this Section 8.2 and that
all
conditions precedent herein provided for relating to such transaction
have been complied with and, in the case of the Opinion of Counsel,
that such supplemental agreement is legal, valid and binding with
respect to such surviving entity;
(iii) the Servicer shall have delivered notice of such
consolidation, merger, conveyance or transfer to each of the Rating
Agencies; and
(iv) after giving effect thereto, no Pay Out Event or an
event which with notice or lapse of time or both would constitute a Pay
Out Event shall have occurred.
Section 8.3 Limitation on Liability of the Servicer and
Others. Except as provided herein, neither the Servicer nor any of the directors
or officers or employees or agents of the Servicer shall be under any liability
to the Trust, the Trustee, the Noteholders, the Holder of the Transferor
Interest or any other Person for any action taken or for refraining from the
taking of any action pursuant to this Agreement whether arising from express or
implied duties under this Agreement; provided, however, that this provision
shall not protect the Servicer or any such Person against any liability which
would otherwise be imposed by reason of its willful misfeasance, bad faith or
negligence in the performance of duties or by reason of its willful misconduct
hereunder. The Servicer and any director or officer or employee or agent of the
Servicer may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising hereunder.
Section 8.4 Indemnification of the Trust, the Trustee and the
Collateral Trustee. The Servicer shall indemnify and hold harmless the
Transferor, the Trust, the Trustee (and its officers, directors, employees and
agents) and the Collateral Trustee (and its officers, directors, employees and
agents) from and against any loss, liability, expense, damage or injury suffered
or sustained by reason of any acts, omissions or alleged acts or omissions
arising out of activities of the Trust, the Trustee or the Collateral Trustee
pursuant to this Agreement, including those arising from acts or omissions of
the Servicer pursuant to this Agreement, including, but not limited to any
judgment, award, settlement, reasonable attorneys' fees and other costs or
expenses incurred in connection with the defense of any actual or threatened
action, proceeding or claim; provided, however, that the Servicer shall not
indemnify the Transferor, the Trust, the Trustee or the Collateral Trustee if
such acts, omissions or alleged acts (other than its own) constitute willful
misfeasance, bad faith or negligence by such Person; provided further, that the
Servicer shall not indemnify the Transferor, the Trust, the Trustee or the
Collateral Trustee (or, directly or indirectly, any Noteholders or any Note
Owners), for any liabilities, costs or expenses of the Transferor or the Trust
with respect to any action taken by the Trustee or the Collateral Trustee, as
the case may be, at the request of any Noteholders; provided further, that the
Servicer shall not indemnify the Transferor or the Trust (or, directly or
indirectly, any Noteholders or any Note Owners) as to any losses, claims or
damages incurred by any of them in their capacities as investors, including
without limitation losses incurred as a result of Defaulted Leases which are
written off as uncollectible; and provided further, that the Servicer shall not
indemnify the Trust, the Trustee, the Collateral Trustee (or, directly or
indirectly, any Noteholders or the Note Owners) for any liabilities, costs or
expenses of the Trust, the Trustee, the Collateral Trustee (or, directly or
indirectly, any Noteholders or the Note Owners) arising under any tax law,
including without limitation any federal, state or local income or franchise
taxes or any other tax imposed on or measured by income (or any interest or
penalties with respect thereto or arising from a failure to comply therewith)
required to be paid by the Trust, such Noteholders or such Note Owners in
connection herewith to any taxing authority. The provisions of this indemnity
shall run directly to and be enforceable by an injured party subject to the
limitations hereof.
Any indemnification pursuant to this Section shall not be
payable from the Trust Assets.
The obligations of the Servicer under this Section 8.4 shall
survive the termination of the Trust and the removal of the Servicer and the
resignation or removal of the Trustee and/or the Collateral Trustee.
Notwithstanding the foregoing, the Servicer shall not be responsible for the
actions of a successor servicer.
Section 8.5 The Servicer Not to Resign. The Servicer shall not
resign from the obligations and duties hereby imposed on it except upon
determination that (i) the performance of its duties hereunder is or becomes
impermissible under applicable law and (ii) there is no reasonable action which
the Servicer could take to make the performance of its duties hereunder
permissible under applicable law. Any such determination permitting the
resignation of the Servicer shall be evidenced as to clause (i) above by an
Opinion of Counsel to such effect delivered to the Trustee. No such resignation
shall become effective until the Trustee or a Successor Servicer shall have
assumed the responsibilities and obligations of the Servicer in accordance with
Section 10.2. If the Trustee is unable within 120 days of the date of such
determination to appoint a Successor Servicer, the Trustee shall serve as
successor Servicer hereunder subject to the provisions of Section 10.2 hereof.
Section 8.6 Access to Certain Documentation and Information
Regarding the Included Leases. To the extent that documentation regarding
Included Leases and related Equipment is not otherwise held in custody by the
Trustee, the Servicer shall provide to the Trustee access to the documentation
regarding such
Included Leases and the related Equipment in such cases where the Trustee is
required in connection with the enforcement of the rights of the Trust, or by
applicable statutes or regulations to review such documentation, such access
being afforded without charge but only (i) upon reasonable request, (ii) during
normal business hours, (iii) subject to the Servicer's normal security and
confidentiality procedures and (iv) at offices designated by the Servicer.
Section 8.7 Delegation of Duties. Any delegation of duties
permitted under Article III shall not relieve the Servicer of its liability and
responsibility with respect to such duties, and shall not constitute a
resignation within the meaning of Section 8.5.
Section 8.8 Contents of Records. The Servicer shall clearly
and unambiguously identify each Included Lease and the related Equipment in its
computer or other records to reflect that such Leases and Equipment have been
transferred by the Transferor to the Trust pursuant to this Agreement.
ARTICLE IX
PAY OUT EVENTS
Section 9.1 Pay Out Events. If any one of the
following events shall occur with respect to any Series:
(a) failure on the part of the Transferor:
(i) to make any payment or deposit required by the
terms of (A) the Agreement, or (B) any Supplement, on or
before the date occurring three Business Days after the date
such payment or deposit is required to be made; or
(ii) duly to observe or perform in any material respect
any covenants or agreements applicable to it set forth in the
Agreement or any Supplement, which failure has a material
adverse effect on the Noteholders of such Series and which
continues unremedied for a period of 60 days after the first
to occur of (A) the date on which written notice of such
failure, requiring the same to be remedied, shall have been
given to the Transferor by the Trustee, or to the Transferor
and the Trustee by the Holders of a principal amount of Notes
aggregating not less than 25% of the Principal Amount of any
Series adversely affected thereby or (B) the date on which a
Responsible Officer of the Servicer becomes aware of such
failure, and such failure continues to affect materially and
adversely the interests of such Noteholders for such period;
or
(b) any representation or warranty made by the Transferor in
this Agreement or any Supplement, or any information contained in a
computer file or microfiche list required to be delivered by the
Transferor pursuant to Section 2.1 or 2.6, shall prove to have been
incorrect in any material respect when made or when delivered, which
continues to be incorrect in any material respect for a period of 60
days after the first to occur of (A) the date on which written notice
of such failure, requiring the same to be remedied, shall have been
given to the Transferor by the Trustee, or to the Transferor and the
Trustee by the Holders of a principal amount of Notes aggregating not
less than 25% of the Principal Amount of any Series adversely affected
thereby and (B) the date on which a Responsible Officer of the
Transferor becomes aware of such incorrectness, and as a result of
which the interests of the Noteholders are materially and adversely
affected and continue to be materially and adversely affected for such
period; provided, however, that a Pay Out Event pursuant to this
subsection 9.1(b) shall not be deemed to have occurred hereunder if the
Transferor has accepted reassignment of the related Lease, or all of
such Leases, if applicable, during such period in accordance with the
provisions hereof; or
(c) an Insolvency Event shall occur with respect to the
Transferor or the Servicer; or
(d) any Servicer Default shall occur; or
(e) any Note has not been paid in full on or before its
Scheduled Termination Date; or
(f) the Trust or Transferor shall become an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended;
then, and in any such event described in subparagraph (a), (b) or (d), after the
applicable grace period set forth in such subparagraphs, either the Trustee or
the Holders of a principal amount of Notes aggregating more than 662/3% of the
Aggregate Principal Amount by notice then given in writing to the Transferor and
the Servicer (and to the Trustee if given by the Noteholders) may declare that a
pay out event (a "Trust Pay Out Event") has occurred as of the date of such
notice and in the case of any event described in subparagraph (c), (e) or (f) a
Pay Out Event shall occur immediately upon the occurrence of such event without
any notice or other action on the part of the Trustee or the Noteholders.
Notwithstanding the foregoing, a delay in or failure of performance referred to
in subsection 9.1(a)(i) for a period of ten Business Days, or under subsection
9.1(a)(ii) or 9.1(b) for a period of 60 days, in each case without giving effect
to any grace period specified in such subsections, shall not constitute a Pay
Out Event for purposes of this sentence until the expiration of such period, if
such
failure could not be prevented by the exercise of reasonable diligence by the
Transferor or the Servicer and such failure was caused by (i) an act of God or
the public enemy, acts of declared or undeclared war, public disorder,
rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes,
tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages,
bank closings, or similar causes or (ii) computer malfunction, communication
malfunction or other electronic system malfunction or similar causes. The
preceding sentence shall not relieve the Transferor or the Servicer from using
all reasonable efforts to perform their respective obligations in a timely
manner in accordance with the terms of this Agreement and any Supplement and the
Transferor or the Servicer shall provide the Trustee and each Rating Agency with
an Officer's Certificate giving prompt notice of such failure, together with a
description of its efforts to so perform its obligations. Notice of any such Pay
Out Event shall be given by the Servicer to the Rating Agencies.
Section 9.2 Additional Rights Upon the Occurrence of Certain
Events. (a) If an Insolvency Event occurs with respect to the Transferor, the
Transferor shall promptly give notice to the Trustee thereof. Within 15 days
after a Responsible Officer of the Trustee receives notice of the Insolvency
Event or otherwise learns of an Insolvency Event, the Trustee shall (i) publish
a notice in an Authorized Newspaper that an Insolvency Event has occurred and
that the Trustee intends to sell, dispose of or otherwise liquidate the Trust
Assets in a commercially reasonable manner and (ii) send written notice to the
Noteholders describing the provisions of this Section 9.2 and requesting
instructions from such Holders. If after 30 days from the day notice pursuant to
clause (i) above is first published (the "Publication Date"), the Trustee shall
not have received written instructions from a majority in interest of the
Holders of each Class of Notes of a Series which is issued by the Trust for
which an Opinion of Counsel is not delivered that such Class of Notes will be
treated as debt for federal income tax purposes and a majority in interest of
the holders of each issuance of constituent interests in the Transferor Interest
to the effect that the Trustee shall not instruct the Servicer to sell, dispose
of, or otherwise liquidate the Trust Assets, the Trustee, subject to the
following proviso, shall instruct the Servicer to proceed to take such
preparatory actions as the Trustee may deem appropriate in order to sell,
dispose of, or otherwise liquidate the Trust Assets in a commercially reasonable
manner and on commercially reasonable terms, which shall include the
solicitation of competitive bids; provided, however, no such sale, disposition
or liquidation, whether in whole or in part, of the Trust Assets shall be
consummated until and unless the occurrence of refusal to provide the written
response referred to above within the 30 days described above (a "Response").
The Trustee may obtain a prior determination from any bankruptcy trustee,
conservator or receiver that the terms and manner of any proposed sale,
disposition or liquidation are commercially
reasonable. The provisions of Sections 9.1 and 9.2 shall not be
deemed to be mutually exclusive.
(b) The proceeds from the sale, disposition or liquidation of
the Trust Assets pursuant to subsection (a) above shall be treated as
Collections on the Included Leases and shall be allocated and deposited in
accordance with the provisions of Article IV. On the day following the
Distribution Date on which such proceeds are scheduled to be distributed to the
Noteholders, the Trust shall terminate.
ARTICLE X
SERVICER DEFAULTS
Section 10.1 Servicer Defaults. If any one of the
following events (a "Servicer Default") shall occur and be
continuing:
(a) any failure by the Servicer to make any payment, transfer
or deposit or to give instructions or notice to the Trustee pursuant to
Article IV or to make any required drawing, withdrawal, or payment
under any Enhancement, or to deliver any required monthly servicing
report hereunder on or before the date occurring three Business Days
after the date such payment, transfer, deposit, withdrawal or drawing,
or such instruction or notice or report is required to be made or
given, as the case may be, under the terms of this Agreement; or
(b) failure on the part of the Servicer duly to observe or
perform in any material respect any other covenants or agreements of
the Servicer set forth in this Agreement or any Supplement which has a
material adverse effect on the Noteholders and the Holder of the
Transferor Interest, which continues unremedied for a period of 30 days
after the first to occur of (A) the date on which written notice of
such failure requiring the same to be remedied shall have been given to
the Servicer by the Trustee, or to the Servicer and the Trustee by the
Holders of a principal amount of Notes aggregating not less than 25% of
the Principal Amount of any Series adversely affected thereby and (B)
the date on which a Responsible Officer of the Servicer becomes aware
thereof and such failure continues to materially adversely affect such
Noteholders for such period; or
(c) any representation, warranty or certification made by the
Servicer in this Agreement or any Supplement or in any certificate
delivered pursuant to this Agreement or any Supplement shall prove to
have been incorrect when made, which has a material adverse effect on
the Noteholders and the Holder of the Transferor Interest and which
continues to
be incorrect in any material respect for a period of 30 days after the
first to occur of (A) the date on which written notice of such
incorrectness requiring the same to be remedied shall have been given
to the Servicer by the Trustee, or to the Servicer and the Trustee by
the Holders of a principal amount of Notes aggregating not less than
25% of the Principal Amount of any Series adversely affected thereby
and (B) the date on which a Responsible Officer of the Servicer becomes
aware thereof, and such incorrectness continues to materially adversely
affect such Holders for such period; or
(d) an Insolvency Event shall occur with respect to the
Servicer; or
(e) the Servicer delegates any of its duties hereunder except
to the extent such delegation is permitted hereunder; or
(f) as of the last day of any fiscal quarter of the Servicer
the consolidated net worth of the Servicer is less than $6,000,000;
then, so long as such Servicer Default shall not have been remedied, either the
Trustee or the Holders of a principal amount of Notes aggregating more than
662/3% of the Aggregate Principal Amount, by notice then given in writing to the
Servicer (and to the Trustee if given by the Noteholders) (a "Termination
Notice"), may terminate all of the rights and obligations of the Servicer as
Servicer under this Agreement. After receipt by the Servicer of such Termination
Notice, and on the date that a Successor Servicer shall have been appointed by
the Trustee pursuant to Section 10.2, all authority and power of the Servicer
under this Agreement shall pass to and be vested in a Successor Servicer; and,
without limitation, the Trustee is hereby authorized and empowered (upon the
failure of the Servicer to cooperate) to execute and deliver, on behalf of the
Servicer, as attorney-in-fact or otherwise, all documents and other instruments
upon the failure of the Servicer to execute or deliver such documents or
instruments, and to do and accomplish all other acts or things necessary or
appropriate to effect the purposes of such transfer of servicing rights. The
Servicer agrees to cooperate with the Trustee and such Successor Servicer in
effecting the termination of the responsibilities and rights of the Servicer to
conduct servicing hereunder, including without limitation, the transfer to such
Successor Servicer of all authority of the Servicer to service the Trust Assets
provided for under this Agreement, including, without limitation, all authority
over all Collections which shall on the date of transfer be held by the Servicer
for deposit, or which have been deposited by the Servicer, in any Collection
Account or Series Account, or which shall thereafter be received with respect to
the Trust Assets, and in assisting the Successor Servicer and in enforcing all
rights to Insurance Proceeds. The Servicer shall
promptly transfer the Lease Files and its electronic records relating to the
Included Leases 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 Included Leases in the manner and at such times
as the Successor Servicer shall reasonably request. To the extent that
compliance with this Section 10.1 shall require the Servicer to disclose to the
Successor Servicer information of any kind which the Servicer reasonably deems
to be confidential, the Successor Servicer shall be required to enter into such
customary licensing and confidentiality agreements as the Servicer shall deem
reasonably necessary to protect its interest. The Servicer shall, on the date of
any servicing transfer, transfer all of its rights and obligations, if any, in
respect of any Enhancement to the Successor Servicer. In connection with any
servicing transfer, all reasonable costs and expenses (including reasonable
attorneys' fees and expenses) incurred in connection with transferring the
Included Leases and the other Trust Assets to the Successor Servicer and
amending this Agreement to reflect such succession as Successor Servicer
pursuant to this Section 10.1 and Section 10.2 shall be paid by the Servicer
(unless the Trustee is acting as the Servicer, in which case the original
Servicer) upon presentation of reasonable documentation of such costs and
expenses.
Notwithstanding the foregoing, a delay in or failure of
performance referred to in subsection 10.1(a) for a period of ten Business Days,
or under subsection 10.1(b), (c) or (e) for a period of 60 days, in each case
without giving effect to any grace period specified in such subsections, shall
not constitute a Servicer Default if such delay or failure could not have been
prevented by the exercise of reasonable diligence by the Servicer and such delay
or failure was caused by an act of God or public enemy, acts of declared or
undeclared war, public disorder, rebellion, riot or sabotage, epidemics,
landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear
disasters or meltdowns, floods, power outages, bank closings, communications
malfunction, computer malfunction or other electronic system malfunction or
similar causes. The preceding sentence shall not relieve the Servicer from using
its best efforts to perform its obligations in a timely manner in accordance
with the terms of this Agreement and the Servicer shall provide the Trustee and
the Transferor with an Officer's Certificate giving prompt notice of such
failure or delay by it, together with a description of the cause of such failure
or delay and its efforts so to perform its obligations.
Section 10.2 Trustee to Act; Appointment of Successor. (a) On
and after the receipt by the Servicer of a Termination Notice pursuant to
Section 10.1, the Servicer shall continue to perform all servicing functions
under this Agreement until the date specified in the Termination Notice or
otherwise specified by the Trustee in writing or, if no such date is specified
in
such Termination Notice or otherwise specified by the Trustee, until a date
mutually agreed upon by the Servicer and the Trustee. The Trustee shall as
promptly as possible after the giving of a Termination Notice appoint a
successor servicer (the "Successor Servicer"), and such Successor Servicer shall
accept its appointment by a written assumption in a form acceptable to the
Trustee. If the Trustee is unable to appoint any successor servicer and the
Servicer delivers an Officer's Certificate to the effect that it cannot in good
faith cure the Servicer Default which gave rise to a transfer of servicing, then
the Trustee shall offer the Servicer the right to accept retransfer of all the
Trust Assets and the Servicer may accept retransfer of all the Trust Assets,
provided, however, that if the long-term unsecured debt obligations of the
Servicer are not rated at the time of such purchase at least investment grade by
each Rating Agency, no such retransfer shall occur unless the Servicer shall
deliver an Opinion of Counsel reasonably acceptable to the Trustee that such
retransfer would not constitute a fraudulent conveyance of the Servicer. The
retransfer deposit amount for such a retransfer shall be equal to the sum of the
Aggregate Principal Amount, plus accrued interest thereon, at the Note Rate,
through the date of retransfer. In the event that a Successor Servicer has not
been appointed and has not accepted its appointment at the time when the
Servicer ceases to act as Servicer, the Trustee without further action shall
automatically be appointed the Successor Servicer. Notwithstanding the above,
the Trustee shall, if it is legally unable so to act, petition a court of
competent jurisdiction to appoint any established financial institution having a
net worth of not less than $20,000,000 and whose regular business includes the
servicing of Leases as the Successor Servicer hereunder.
(b) Upon its appointment, the Successor Servicer shall be the
successor in all respects to the Servicer with respect to servicing functions
under this Agreement and shall be subject to all the responsibilities, duties
and liabilities relating thereto placed on the Servicer by the terms and
provisions hereof, and all references in this Agreement to the Servicer shall be
deemed to refer to the Successor Servicer. Any Successor Servicer, by its
acceptance of its appointment, will automatically agree to be bound by the terms
and provisions of any Enhancement to the extent that such terms apply to the
Servicer.
(c) In connection with such appointment and assumption, the
Trustee shall be entitled to such compensation, or may make such arrangements
for the compensation of the Successor Servicer out of Collections, as it and
such Successor Servicer shall agree; provided, however, that no such
compensation shall be in excess of the Monthly Servicing Fee.
(d) All authority and power granted to the 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 the Transferor and,
without limitation, the
Transferor is hereby authorized and empowered to execute and deliver, on behalf
of the Servicer, as attorney-in-fact or otherwise, all documents and other
instruments, and to do and accomplish all other acts or things necessary or
appropriate to effect the purposes of such transfer of servicing rights. The
Servicer agrees to cooperate with the Transferor in effecting the termination of
the responsibilities and rights of the Servicer to conduct servicing on the
Included Leases.
Section 10.3 Notification to Holders. Upon the Servicer's
becoming aware of the occurrence of any Servicer Default, the Servicer shall
give prompt written notice thereof to the Trustee and the Trustee shall give
notice to the Noteholders at their respective addresses appearing in the
Register. Upon any termination or appointment of a Successor Servicer pursuant
to this Article X, the Trustee shall give prompt written notice thereof to the
Noteholders at their respective addresses appearing in the Register. A copy of
any notice given pursuant to this Section 10.3 shall be delivered by the
Servicer to each Rating Agency.
Section 10.4 Waiver of Past Defaults. The Holders of a
principal amount of Notes aggregating not less than 662/3% of the Principal
Amount of each Series affected thereby may, on behalf of all Noteholders and the
Holder of the Transferor Interest, waive any default by the Servicer or the
Transferor in the performance of its obligations hereunder and its consequences,
except a default in the failure to make any required deposits or payments in
accordance with Article IV, provided, however, that no such waiver shall affect
any rights of, or obligations to, any Enhancement Provider hereunder. Upon any
such waiver of a past default, such default shall cease to exist, and any
default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereon except to the extent
expressly so waived.
ARTICLE XI
THE TRUSTEE AND THE COLLATERAL TRUSTEE
Section 11.1 Duties of Trustee.
(a) The Trustee, prior to the occurrence of a Servicer Default
of which a Responsible Officer of the Trustee has actual knowledge and after the
curing of all Servicer Defaults which may have occurred, undertakes to perform
such duties and only such duties as are specifically set forth in this
Agreement, and no implied duties or covenants shall be read into this Agreement
against the Trustee. If a Responsible Officer of the Trustee has received notice
that a Servicer Default has occurred (which has not been cured or waived), the
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 the exercise of such rights and powers, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs, provided, however, that if the Trustee shall assume
the duties of the Servicer pursuant hereto, the Trustee in performing such
duties shall use the degree of skill and attention customarily exercised by a
servicer with respect to comparable Leases that it services for itself or
others.
(b) The Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee which are specifically required to be
furnished pursuant to any provision of this Agreement, shall examine them to
determine whether they reasonably conform to the requirements of this Agreement.
The Trustee shall give prompt written notice to all Holders of any material lack
of conformity of any such instrument to the applicable requirements of this
Agreement discovered by the Trustee which would entitle a specified percentage
of the Holders to take any action pursuant to this Agreement. Notwithstanding
the foregoing, prior to the occurrence of a Servicer Default actually known to a
Responsible Officer of the Trustee, the Trustee shall have no obligation to
independently calculate, recompute, verify or confirm any information received
from the Servicer.
(c) No provision of this Agreement shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct; provided, however, that:
(i) the Trustee shall not be personally liable for an
error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(ii) the Trustee shall not be personally liable with
respect to any action taken, suffered or omitted to be taken by it in
good faith in accordance with the direction of the Holders of a
principal amount of Notes aggregating more than 50% of the Principal
Amount of any Series relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement; and
(iii) the Trustee shall not be charged with knowledge of
any failure by the Servicer to comply with the obligations of the
Servicer referred to in Section 10.1 or any Pay Out Event unless a
Responsible Officer of the Trustee obtains actual knowledge of such
failure or Pay Out Event or the Trustee receives written notice of such
failure from the Servicer or any Holders of a principal amount of
Notes aggregating not less than 10% of the Principal Amount of any
Series.
(d) The 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
there is reasonable ground for believing that the repayment of such funds or
indemnity against satisfactory to it such risk or liability is not reasonably
assured to it, and none of the provisions contained in this Agreement shall in
any event require the Trustee to perform, or be responsible for the manner of
performance of, any of the obligations of the Servicer under this Agreement
except during such time, if any, as the Trustee shall be the successor to, and
be vested with the rights, duties, powers and privileges of, the Servicer in
accordance with the terms of this Agreement.
(e) Except for actions expressly authorized by this Agreement,
the Trustee shall take no action reasonably likely to impair the interests of
the Trust in the Trust Assets now existing or hereafter arising or to impair the
value of any Included Lease.
(f) Except as provided in Sections 2.6 and 2.7, the Trustee
shall have no power to vary the corpus of the Trust, including, without
limitation, the power to (i) accept any substitute obligation for a Lease
initially assigned to the Trust under Section 2.1 or 2.6, (ii) add any other
investment, obligation or security to the Trust or (iii) withdraw from the Trust
any Leases, except for a withdrawal permitted under subsection 2.4(d) or 2.4(e),
Article IV, or Section 9.2 or 12.1.
(g) In the event that to the actual knowledge of a Responsible
Officer of the Trustee 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 required to be performed by the Paying Agent or the Transfer Agent and
Registrar, as the case may be, under this Agreement, the Trustee shall be
obligated promptly to perform such obligation, duty or agreement in the manner
so required.
(h) If the Transferor has agreed to transfer any of its Leases
to another Person, upon the written request of the Transferor, the Trustee on
behalf of the Trust will enter into such intercreditor agreements with the
transferee of such Leases as are customary and necessary to identify the rights
of the Trust and such other Person, as the case may be, in the Transferor's
Leases: provided, that the Trust shall not enter into any intercreditor
agreement which could reasonably be expected to adversely affect the interests
of itself or the Noteholders and the Holder of the Transferor Interest and, upon
the request of the Trustee, the Transferor will deliver an Opinion of Counsel on
any matters relating to such intercreditor agreement, requested by the Trustee.
Section 11.2 Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 11.1:
(a) the Trustee may rely on and shall be protected in
acting on, or in refraining from acting in accordance with, any
resolution, Officer's Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond or other paper or document 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;
(b) the Trustee may consult with counsel and any advice
from counsel or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered
or omitted by it hereunder in good faith and in accordance with such
advice or Opinion of Counsel;
(c) the Trustee 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 hereunder or in relation
hereto, at the request, order or direction of any of the Noteholders or
the Holder of the Transferor Interest or any Enhancement Provider,
pursuant to the provisions of this Agreement, unless such Holders or
such Enhancement Provider shall have offered to the Trustee security or
indemnity satisfactory to it against the costs, expenses and
liabilities which may be incurred therein or thereby; provided,
however, that nothing contained herein shall relieve the Trustee of the
obligations, upon the occurrence of any Servicer Default (which has not
been cured) of which a Responsible Officer of the Trustee has actual
knowledge, to exercise such of the rights and powers vested in it by
this Agreement or any Enhancement, 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 such person's own affairs;
(d) the Trustee shall not be liable for any action
taken, suffered 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) the 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 so to do by Holders of a principal amount of Notes aggregating
more than 50% of the Principal Amount of any Series, provided, however,
that if the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it in the
making of such
investigation shall be, in the sole discretion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the
terms of this Agreement, the Trustee may require indemnity satisfactory
to it against such cost, expense or liability as a condition to so
proceeding;
(f) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian or nominee, and the Trustee
shall not be responsible for the supervision of or any misconduct or
negligence on the part of any such agent, attorney, custodian or
nominee appointed with due care by it hereunder;
(g) except as may be required pursuant to subsection 11.1(a),
the Trustee shall not be required to make any initial or periodic
examination of any documents or records related to the Included Leases
or the related Equipment for the purpose of establishing the presence
or absence of defects, the compliance by the Transferor with its
representations and warranties or for any other purpose; and
(h) the right of the Trustee to perform any discretionary act
enumerated in this Agreement or any Supplement shall not be construed
as a duty, and the Trustee shall not be answerable for other than its
negligence or willful misconduct in the performance of any such act.
(i) in the event that the Trustee is the Paying Agent,
Transfer Agent or Registrar, the rights and protections afforded to the
Trustee hereunder shall also be afforded to the Trustee acting in such
other capacities.
Section 11.3 Trustee Not Liable for Recitals in Notes. The
Trustee assumes no responsibility for the correctness of the recitals contained
herein and in the Notes (other than the certificate of authentication on the
Notes). Except as set forth in Section 11.15, the Trustee makes no
representations as to the validity or sufficiency of this Agreement or any
Supplement or of the Notes and the Transferor Interest (other than the
certificate of authentication on the Notes) or of any Lease or related document.
The Trustee shall not be accountable for the use or application by the
Transferor of any of the Notes or the Transferor Interest or of the proceeds
thereof, or for the use or application of any funds paid to the Transferor in
respect of the Included Leases or deposited in the Collection Account, the
Excess Funding Account or any other Series Account, or withdrawn from the
Collection Account, by the Servicer. The Trustee shall have no duty to conduct
any affirmative investigation as to the occurrence of any condition requiring
the repurchase of any Lease by the Transferor pursuant to this Agreement or any
Supplement or the eligibility of any Lease for purposes of this Agreement or any
Supplement. The Trustee shall have no responsibility for
filing any financing or continuation statement in any public office at any time
or to otherwise perfect or maintain the perfection of any security interest or
lien granted to it hereunder (unless the Trustee shall have become the Successor
Servicer) or to prepare or file any Securities and Exchange Commission filing
for the Trust or to record this Agreement or any Supplement.
Section 11.4 Trustee May Own Notes. The Trustee in its
individual or any other capacity may become the owner or pledgee of Notes, and
may deal with the Transferor, the Servicer or any Enhancement Provider, with the
same rights as it would have if it were not the Trustee.
Section 11.5 Servicer to Pay Trustee's Fees and Expenses. The
Servicer covenants and agrees to pay to the Trustee from time to time, and the
Trustee shall be entitled to receive, compensation as agreed upon (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 the execution of
the trust hereby created and in the exercise and performance of any of the
powers and duties hereunder of the Trustee, and, subject to Section 8.4, the
Servicer will pay or reimburse the Trustee (without reimbursement from any
Series Account or otherwise) upon its request for all reasonable expenses,
disbursements and advances, if any, incurred or made by the Trustee in
accordance with any of the provisions of this Agreement (including the fees and
reasonable expenses of its agents and counsel) except any such expense,
disbursement or advance as may arise from its negligence or bad faith and except
as provided in the following sentence. If the Trustee is appointed Successor
Servicer pursuant to Section 10.2, the provisions of this Section 11.5 shall not
apply to expenses, disbursements and advances made or incurred by the Trustee in
its capacity as Successor Servicer.
The obligations of the Servicer under this Section 11.5 shall
survive the termination of the Trust and the resignation or removal of the
Trustee.
In the case of a sale, disposition or liquidation of the Trust
Assets pursuant to subsection 9.2(a), the Trustee shall be entitled to retain
from any amounts distributable to the Transferor pursuant to any Supplement with
respect to any Series from the proceeds of such sale, disposition or liquidation
an amount equal to the Trustee's expenses in connection with such sale,
disposition or liquidation and the performance by the Trustee of the procedures
set forth in subsection 9.2(a).
Whenever the Trustee incurs expenses after the occurrence of
an Insolvency Event with respect to the Transferor or Servicer, the expenses are
intended to constitute expenses of administration under Title 11 of the United
States Code or any
other applicable federal or state bankruptcy, insolvency or
similar law.
Section 11.6 Eligibility Requirements for Trustee. The Trustee
hereunder shall at all times be a corporation organized and doing business under
the laws of the United States of America or any state thereof authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least $100,000,000 and subject to supervision or examination by
Federal or state authority. If such corporation 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 11.6,
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In addition, no institution shall qualify as a successor trustee
hereunder unless its long-term debt obligations are rated at least investment
grade by each Rating Agency. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 11.6, the 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)
---------------------------------
The Trustee may at any time resign and be discharged from the trust hereby
created by giving written notice thereof to the Transferor and the Servicer.
Upon receiving such notice of resignation, the Transferor shall (i) promptly
appoint a successor trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the resigning Trustee and one copy to
the successor trustee and (ii) provide written notice to each Rating Agency of
such resignation. If no successor trustee shall have been so appointed and
have accepted within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee.
(b) The Servicer may at any time remove the Trustee and
discharge it from the trust hereby created and appoint a successor trustee if
(i) no Pay Out Event shall have occurred and is continuing and (ii) the Rating
Agency Condition shall have been satisfied with respect thereto, by giving
written notice thereof to the Trustee, provided, that all amounts then owing to
the Trustee shall have been paid in full prior to any such removal.
(c) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 11.6 and shall fail to resign after
written request therefor by the Transferor, or if at any time the Trustee shall
be legally unable to act, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation,
conservation or liquidation, then the Transferor may, but shall not be required
to, remove the Trustee and promptly appoint a successor trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee.
(d) Any resignation or removal of the Trustee and appointment
of a successor trustee pursuant to any of the provisions of this Section 11.7
shall not become effective until acceptance of appointment by the successor
trustee as provided in Section 11.8.
Section 11.8 Successor Trustee. (a) Any successor trustee
appointed as provided in Section 11.7 shall execute, acknowledge and deliver to
the Transferor and to its predecessor Trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee shall become effective and such 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 all documents 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 and certainly vesting and confirming in the successor trustee all such
rights, powers, duties and obligations.
(b) No successor trustee shall accept appointment as provided
in this Section 11.8 unless at the time of such acceptance such successor
trustee shall be eligible under the provisions of Section 11.6.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 11.8, such successor trustee shall mail notice of such
succession hereunder to all Noteholders and the Holder of the Transferor
Interest at their addresses as shown in the Register, and also to each Rating
Agency.
Section 11.9 Merger or Consolidation of Trustee. Any
----------------------------------
Person into which the 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 the Trustee shall be
a party, or any Person succeeding to all or substantially all of
the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such corporation
shall be eligible under the provisions 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.
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, the
Trustee shall have the power and may execute and deliver all instruments to
appoint one or more Persons to act as a co-trustee or co-trustees, or separate
trustee or separate trustees, of all or any part of the Trust, and to vest in
such Person or Persons, in such capacity and for the benefit of the Noteholders
and the Holder of the Transferor Interest, such title to the Trust, or any part
thereof, and, subject to the other provisions of this Section 11.10, such
powers, duties, obligations, rights and trusts as the Trustee may consider
necessary or desirable. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
11.6 and no notice to Noteholders and the Holder of the Transferor Interest 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 the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate
trustee or co-trustee jointly (it being understood that such separate
trustee or co-trustee is not authorized to act separately without the
Trustee joining in such act), except to the extent that under any laws
of any jurisdiction in which any particular act or acts are to be
performed (whether as Trustee hereunder or as successor to the Servicer
hereunder), the 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 the Trustee;
(ii) no trustee hereunder shall be liable by reason of
any act or omission of any other trustee hereunder; and
(iii) the Trustee may at any time accept the resignation
of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the 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 the
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 to, the Trustee. Every such instrument
shall be filed with the Trustee and a copy thereof given to the Servicer.
(d) Any separate trustee or co-trustee may at any time
constitute the 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 of this Agreement 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
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
Section 11.11 Tax Returns. As set forth in Section 3.13, the
Trustee shall not file any federal tax returns on behalf of the Trust; provided,
however, that if the Trust shall be required to file tax returns, the Servicer,
as soon as practicable after it is made aware of such requirement, shall prepare
or cause to be prepared, and the Trustee is authorized hereunder to sign, any
tax returns required to be filed by the Trust and, to the extent possible, the
Servicer shall deliver such returns to the Trustee at least five days before
such returns are due to be filed. The Servicer shall prepare or shall cause to
be prepared all tax information required by law to be distributed to Noteholders
and the Holder of the Transferor Interest and shall deliver such information to
the Trustee at least five days prior to the date it is required by law to be so
distributed to Holders. The Trustee, upon written request, will furnish the
Servicer with all such information known to the Trustee as may be reasonably
required in connection with the preparation of all tax returns of the Trust. In
no event shall the Trustee or the Servicer be liable for any liabilities, costs
or expenses of the Trust, the Noteholders or the Note Owners arising under any
tax law, including without limitation federal, state or local income or excise
taxes or any other tax imposed on or measured by income (or any interest or
penalty with respect thereto or arising from a failure to comply therewith).
Nothing in this Section 11.11 shall be construed as inconsistent with the
characterization of the Notes as indebtedness of the Transferor for purposes of
federal, state and local income or franchise taxes and any other tax imposed
upon or measured by income, as expressed in Section 3.13.
Section 11.12 Trustee May Enforce Claims Without Possession of
Notes. All rights of action and claims under this Agreement or the Notes and the
Transferor Interest may be prosecuted and enforced by the Trustee without the
possession of any of the Notes and the Transferor Interest, or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the 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 the Trustee, its agents and counsel, be for the ratable benefit of
the Noteholders and the Holder of the Transferor Interest in respect of which
such judgment has been obtained.
Section 11.13 Suits for Enforcement. If a Servicer Default of
which a Responsible Officer of the Trustee has actual knowledge shall occur and
be continuing, the Trustee, in its discretion, may, subject to the provisions of
Section 10.1, proceed to protect and enforce its rights and the rights of the
Noteholders and the Holder of the Transferor Interest under this Agreement or
any Supplement by a 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 Supplement or in aid of the execution of any power granted
in this Agreement or any Supplement or for the enforcement of any other legal,
equitable or other remedy as the Trustee, being advised by counsel, shall deem
most effectual to protect and enforce any of the rights of the Trustee or such
Holders.
Section 11.14 Rights of Holders to Direct Trustee. Holders of
a principal amount of Notes aggregating more than 50% of the Aggregate Principal
Amount (or, with respect to any remedy, trust or power that does not relate to
all Series, 50% of the aggregate unpaid principal amount of the Notes of all
Series to which such remedy, trust or power relates) shall have the right to
direct the time, method, and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee; provided, however, that, subject to Section 11.1, the Trustee shall
have the right to decline to follow any such direction if the Trustee being
advised by counsel determines that the action so directed may not lawfully be
taken, or if the Trustee in good faith shall, by a Responsible Officer or
Responsible Officers of the Trustee, determine that the proceedings so directed
would be illegal or involve it in personal liability or be unduly prejudicial to
the rights of Noteholders not parties to such direction; and provided further
that nothing in this Agreement shall impair the right of the Trustee to take any
action deemed proper by the Trustee and which is not inconsistent with such
direction.
Section 11.15 Representations and Warranties of
Trustee. The Trustee represents and warrants that:
(i) The Trustee is a banking corporation organized,
existing and in good standing under the laws of the State of New York;
(ii) The Trustee is an entity that satisfies the
eligibility requirements of Section 11.6;
(iii) The Trustee has full power, authority and right to
execute, deliver and perform this Agreement, and has taken all
necessary action to authorize the execution, delivery and performance
by it of this Agreement; and
(iv) This Agreement has been duly executed and delivered
by the Trustee.
Section 11.16 Maintenance of Office or Agency. The Trustee
will maintain at its expense in the Borough of Manhattan, The City of New
York, an office or offices or agency or agencies where notices and demands to
or upon the Trustee in respect of the Notes and this Agreement may be served.
The Trustee initially appoints its Corporate Trust Office as its office for
such purposes in New York. The Trustee will give prompt written notice to the
Servicer and to the Noteholders and the Holder of the Transferor Interest of
any change in the location of the Register or any such office or agency.
Section 11.17 Release of Collateral Trustee's Lien. Whenever
under this Agreement the Trustee retransfers Trust Assets to the Transferor, the
security interest in favor of the Collateral Trustee in such Included Leases and
the related Equipment will be automatically released upon such retransfer.
Whenever under this Agreement an Included Lease becomes an Expired Lease or an
Early Termination Lease, the security interest in favor of the Collateral
Trustee in such Included Lease will be automatically released upon such event.
Whenever under this Agreement the Servicer substitutes or replaces any unit of
Equipment as contemplated in Section 3.1 or any Included Lease and related
Equipment as contemplated in Section 2.7 or 2.8, the security interest in favor
of the Collateral Trustee in such unit of Equipment or Included Lease and
related Equipment, as applicable, will be automatically released upon such
event. In connection with any such release, the Collateral Trustee will execute
and deliver to the Trustee (with a copy to the Servicer) any assignments,
termination statements and any other releases and instruments as the Trustee or
the Servicer may request in order to effect such release.
Section 11.18 Requests for Agreement. A copy of this Agreement
may be obtained by any Holder by a request in writing to the Trustee addressed
to the Corporate Trust Office and will be provided at the expense of the
Transferor.
Section 11.19 Duties of Collateral Trustee.
(a) The Collateral Trustee, prior to the occurrence of a Pay
Out Event of which a Responsible Officer of the Collateral Trustee has actual
knowledge and after the curing of all Pay Out Events which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement, and no implied duties or covenants shall be read into
this Agreement against the Collateral Trustee. If a Responsible
Officer of the Collateral Trustee has received notice that a Pay Out Event has
occurred (which has not been cured or waived), the Collateral 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 the exercise of such rights and powers, as
a prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) In the absence of bad faith on its part, the Collateral
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Collateral Trustee and conforming to the requirements of this
Agreement; provided, however, that the Collateral Trustee shall examine the
certificates and opinions to determine whether or not they conform to any
applicable requirements of this Agreement.
(c) No provision of this Agreement shall be construed to
relieve the Collateral Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct; provided, however,
that:
(i) the Collateral Trustee shall not be personally
liable for an error of judgment made in good faith by a Responsible
Officer or Responsible Officers of the Collateral Trustee, unless it
shall be proved that the Collateral Trustee was negligent in
ascertaining the pertinent facts;
(ii) the Collateral Trustee shall not be personally
liable with respect to any action taken, suffered or omitted to be
taken by it in good faith in accordance with the direction of the
Holders of a principal amount of Notes aggregating more than 50% of the
Principal Amount of any Series relating to the time, method and place
of conducting any proceeding for any remedy available to the Collateral
Trustee, or exercising any trust or power conferred upon the Collateral
Trustee, under this Agreement; and
(iii) the Collateral Trustee shall not be charged with
knowledge of any Pay Out Event unless a Responsible Officer of the
Collateral Trustee obtains actual knowledge of such Pay Out Event.
(d) The Collateral 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 there is reasonable ground for believing that the repayment of such funds or
indemnity against satisfactory to it such risk or liability is not reasonably
assured to it, and none of the provisions contained in this Agreement shall in
any event require the Collateral Trustee to perform, or be responsible for the
manner
of performance of, any of the obligations of the Servicer under
this Agreement.
(e) Except for actions expressly authorized by this Agreement,
the Collateral Trustee shall take no action reasonably likely to impair the
interests of the Trust in the Trust Assets now existing or hereafter arising or
to impair the value of any Included Lease.
Section 11.20 Certain Matters Affecting the Collateral
Trustee. Except as otherwise provided in Section 11.19:
(a) the Collateral Trustee may rely on and shall be
protected in acting on, or in refraining from acting in accordance
with, any resolution, Officer's Certificate, certificate of auditors or
any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document
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;
(b) the Collateral Trustee may consult with counsel and
any advice from counsel or Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance
with such advice or Opinion of Counsel;
(c) the Collateral Trustee 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 hereunder or in
relation hereto, at the request, order or direction of any of the
Noteholders or any Enhancement Provider, pursuant to the provisions of
this Agreement, unless such Holders or such Enhancement Provider shall
have offered to the Collateral Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities which
may be incurred therein or thereby; provided, however, that nothing
contained herein shall relieve the Collateral Trustee of the
obligations, upon the occurrence of any Pay Out Event (which has not
been cured) of which a Responsible Officer of the Collateral Trustee
has actual knowledge, to exercise such of the rights and powers vested
in it by this Agreement or any Enhancement, 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 such person's own
affairs;
(d) the Collateral Trustee shall not be liable for any
action taken, suffered 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) the Collateral 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 so to do by Holders of a principal amount of Notes
aggregating more than 50% of the Principal Amount of any Series,
provided, however, that if the payment within a reasonable time to the
Collateral Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation shall be, in the
sole discretion of the Collateral Trustee, not reasonably assured to
the Collateral Trustee by the security afforded to it by the terms of
this Agreement, the Collateral Trustee may require indemnity
satisfactory to it against such cost, expense or liability as a
condition to so proceeding;
(f) the Collateral Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents or attorneys or a custodian or nominee, and the
Collateral Trustee shall not be responsible for the supervision of or
any misconduct or negligence on the part of any such agent, attorney,
custodian or nominee appointed with due care by it hereunder;
(g) the Collateral Trustee shall not be required to make any
initial or periodic examination of any documents or records related to
the Included Leases or the related Equipment for the purpose of
establishing the presence or absence of defects, the compliance by the
Transferor with its representations and warranties or for any other
purpose; and
(h) the right of the Collateral Trustee to perform any
discretionary act enumerated in this Agreement or any Supplement shall
not be construed as a duty, and the Collateral Trustee shall not be
answerable for other than its negligence or willful misconduct in the
performance of any such act.
(i) in the event that the Collateral Trustee is the Paying
Agent, Transfer Agent or Registrar, the rights and protections afforded
to the Collateral Trustee hereunder shall also be afforded to the
Collateral Trustee acting in such other capacities.
Section 11.21 Collateral Trustee Not Liable for Recitals in
Notes. The Collateral Trustee assumes no responsibility for the correctness of
the recitals contained herein and in the Notes. Except as set forth in Section
11.32, the Collateral Trustee makes no representations as to the validity or
sufficiency of this Agreement or any Supplement or of the Notes and the
Transferor Interest or of any Lease or related
document. The Collateral Trustee shall not be accountable for the use or
application by the Transferor of any of the Notes or the Transferor Interest or
of the proceeds thereof, or for the use or application of any funds paid to the
Transferor in respect of the Included Leases or deposited in the Collection
Account, the Excess Funding Account or any other Series Account, or withdrawn
from the Collection Account, by the Servicer. The Collateral Trustee shall have
no duty to conduct any affirmative investigation as to the occurrence of any
condition requiring the repurchase of any Lease by the Transferor pursuant to
this Agreement or any Supplement or the eligibility of any Lease for purposes of
this Agreement or any Supplement. The Collateral Trustee shall have no
responsibility for filing any financing or continuation statement in any public
office at any time or to otherwise perfect or maintain the perfection of any
security interest or lien granted to it hereunder or to prepare or file any
Securities and Exchange Commission filing for the Trust or to record this
Agreement or any Supplement.
Section 11.22 Collateral Trustee May Own Notes. The Collateral
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes, and may deal with the Transferor, the Servicer or any Enhancement
Provider, with the same rights as it would have if it were not the Collateral
Trustee.
Section 11.23 Servicer to Pay Collateral Trustee's Fees and
Expenses. The Servicer covenants and agrees to pay to the Collateral Trustee
from time to time, and the Collateral Trustee shall be entitled to receive,
compensation as agreed upon (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 the execution of the trust hereby created and in the exercise
and performance of any of the powers and duties hereunder of the Collateral
Trustee, and, subject to Section 8.4, the Servicer will pay or reimburse the
Collateral Trustee (without reimbursement from any Series Account or otherwise)
upon its request for all reasonable expenses, disbursements and advances, if
any, incurred or made by the Collateral Trustee in accordance with any of the
provisions of this Agreement (including the fees and reasonable expenses of its
agents and counsel) except any such expense, disbursement or advance as may
arise from its negligence or bad faith and except as provided in the following
sentence.
The obligations of the Servicer under this Section 11.23 shall
survive the termination of the Trust and the resignation or removal of the
Collateral Trustee.
Whenever the Collateral Trustee incurs expenses after the
occurrence of an Insolvency Event with respect to the Transferor or Servicer,
the expenses are intended to constitute expenses of administration under Title
11 of the United States
Code or any other applicable federal or state bankruptcy, insolvency or similar
law.
Section 11.24 Eligibility Requirements for Collateral Trustee.
The Collateral Trustee hereunder shall at all times be a corporation organized
and doing business under the laws of the United States of America or any state
thereof authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $100,000,000 and subject to supervision
or examination by Federal or state authority. If such corporation 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 11.24, the combined capital and surplus of such corporation shall
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In addition, no institution shall qualify as a
Successor Collateral Trustee hereunder unless its long-term debt obligations are
rated at least investment grade by each Rating Agency. In case at any time the
Collateral Trustee shall cease to be eligible in accordance with the provisions
of this Section 11.24, the Collateral Trustee shall resign immediately in the
manner and with the effect specified in Section 11.25.
Section 11.25 Resignation or Removal of Collateral Trustee.
(a) The Collateral Trustee may at any time resign and be discharged from the
trust hereby created by giving written notice thereof to the Transferor and the
Servicer. Upon receiving such notice of resignation, the Transferor shall (i)
promptly appoint a successor collateral trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the resigning
Collateral Trustee and one copy to the successor collateral trustee and (ii)
provide written notice to each Rating Agency of such resignation. If no
successor collateral trustee shall have been so appointed and have accepted
within 30 days after the giving of such notice of resignation, the resigning
Collateral Trustee may petition any court of competent jurisdiction for the
appointment of a successor collateral trustee.
(b) The Servicer may at any time remove the Collateral Trustee
and discharge it from the trust hereby created and appoint a successor
Collateral Trustee if (i) no Pay Out Event shall have occurred and be continuing
and (ii) the Rating Agency Condition shall have been satisfied with respect
thereto, by giving written notice thereof to the Collateral Trustee.
(c) If at any time the Collateral Trustee shall cease to be
eligible in accordance with the provisions of Section 11.24 and shall fail to
resign after written request therefor by the Transferor, or if at any time the
Collateral Trustee shall be legally unable to act, or shall be adjudged a
bankrupt or insolvent, or a receiver of the Collateral Trustee or of its
property shall be appointed, or any public officer shall take
charge or control of the Collateral Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then the Transferor
may, but shall not be required to, remove the Collateral Trustee and promptly
appoint a successor collateral trustee by written instrument, in duplicate, one
copy of which instrument shall be delivered to the Collateral Trustee so removed
and one copy to the successor collateral trustee.
(d) Any resignation or removal of the Collateral Trustee and
appointment of a successor collateral trustee pursuant to any of the provisions
of this Section 11.25 shall not become effective until acceptance of appointment
by the successor collateral trustee as provided in Section 11.26.
Section 11.26 Successor Collateral Trustee. (a) Any
successor collateral trustee appointed as provided in Section 11.25 shall
execute, acknowledge and deliver to the Transferor, the Trustee and to its
predecessor Collateral Trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor
Collateral Trustee shall become effective and such successor collateral
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 Collateral Trustee
herein. The predecessor Collateral Trustee shall deliver to the successor
collateral trustee all documents and statements held by it hereunder; and
Transferor and the predecessor Collateral Trustee shall execute and deliver
such instruments and do such other things as may reasonably be required for
fully and certainly vesting and confirming in the successor collateral trustee
all such rights, powers, duties and obligations.
(b) No successor collateral trustee shall accept appointment
as provided in this Section 11.26 unless at the time of such acceptance such
successor collateral trustee shall be eligible under the provisions of Section
11.24.
(c) Upon acceptance of appointment by a successor collateral
trustee as provided in this Section 11.26, such successor collateral trustee
shall mail notice of such succession hereunder to all Noteholders and the Holder
of the Transferor Interest at their addresses as shown in the Register, and also
to each Rating Agency.
Section 11.27 Merger or Consolidation of Collateral Trustee.
Any Person into which the Collateral 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 the Collateral Trustee shall be a party, or
any Person succeeding to all or substantially all of the corporate trust
business of the Collateral Trustee, shall be the successor of the Collateral
Trustee hereunder, provided such corporation shall be
eligible under the provisions of Section 11.24, 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.
Section 11.28 Appointment of Co-Collateral Trustee or Separate
Collateral 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, the
Collateral Trustee shall have the power and may execute and deliver all
instruments to appoint one or more Persons to act as a co-collateral trustee or
co-collateral trustees, or separate collateral trustee or separate collateral
trustees, of all or any part of the Trust, and to vest in such Person or
Persons, in such capacity and for the benefit of the Noteholders and the Holder
of the Transferor Interest, such title to the Trust, or any part thereof, and,
subject to the other provisions of this Section 11.28, such powers, duties,
obligations, rights and trusts as the Collateral Trustee may consider necessary
or desirable. No co-collateral trustee or separate collateral trustee hereunder
shall be required to meet the terms of eligibility as a successor collateral
trustee under Section 11.24 and no notice to Noteholders and the Holder of the
Transferor Interest of the appointment of any co-collateral trustee or separate
collateral trustee shall be required under Section 11.26.
(b) Every separate collateral trustee and co-collateral
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 the Collateral Trustee shall be conferred or
imposed upon and exercised or performed by the Collateral Trustee and
such separate collateral trustee or co-collateral trustee jointly (it
being understood that such separate collateral trustee or co-collateral
trustee is not authorized to act separately without the Collateral
Trustee joining in such act), except to the extent that under any laws
of any jurisdiction in which any particular act or acts are to be
performed (whether as Collateral Trustee hereunder or as successor to
the Servicer hereunder), the Collateral 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 collateral trustee or
co-collateral trustee, but solely at the direction of the Collateral
Trustee;
(ii) no collateral trustee hereunder shall be liable by
reason of any act or omission of any other collateral trustee
hereunder; and
(iii) the Collateral Trustee may at any time accept the
resignation of or remove any separate collateral trustee or
co-collateral trustee.
(c) Any notice, request or other writing given to the
Collateral Trustee shall be deemed to have been given to each of the then
separate collateral trustees and co-collateral trustees, as effectively as if
given to each of them. Every instrument appointing any separate collateral
trustee or co-collateral trustee shall refer to this Agreement and the
conditions of this Article XI. Each separate collateral trustee and
co-collateral 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 the Collateral 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 to, the Collateral Trustee. Every such
instrument shall be filed with the Collateral Trustee and a copy thereof given
to the Servicer.
(d) Any separate collateral trustee or co-collateral trustee
may at any time constitute the Collateral 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 of this Agreement on its behalf and in its name.
If any separate collateral trustee or co-collateral trustee shall die, become
incapable of acting, resign or be removed, all of its estates, properties,
rights, remedies and trusts shall vest in and be exercised by the Collateral
Trustee, to the extent permitted by law, without the appointment of a new or
successor collateral trustee.
Section 11.29 Collateral Trustee May Enforce Claims Without
Possession of Notes. All rights of action and claims under this Agreement or the
Notes may be prosecuted and enforced by the Collateral Trustee without the
possession of any of the Notes, or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Collateral 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 the Collateral Trustee, its agents and counsel, be
for the ratable benefit of the Noteholders in respect of which such judgment has
been obtained.
Section 11.30 Suits for Enforcement. If a Pay Out Event of
which a Responsible Officer of the Collateral Trustee has actual knowledge shall
occur and be continuing, the Collateral Trustee, in its discretion, may, subject
to the provisions of Article IX, proceed to protect and enforce its rights and
the rights of the Noteholders under this Agreement or any Supplement by a 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 Supplement or in aid of
the execution of any power granted in this Agreement or any Supplement or for
the enforcement of any other legal, equitable or other remedy as the Collateral
Trustee, being advised by counsel, shall deem most effectual to protect and
enforce any of the rights of the Collateral Trustee or such Holders.
Section 11.31 Rights of Holders to Direct Collateral Trustee.
Holders of a principal amount of Notes aggregating more than 50% of the
Aggregate Principal Amount (or, with respect to any remedy, trust or power that
does not relate to all Series, 50% of the aggregate unpaid principal amount of
the Notes of all Series to which such remedy, trust or power relates) shall have
the right to direct the time, method, and place of conducting any proceeding for
any remedy available to the Collateral Trustee, or exercising any trust or power
conferred on the Collateral Trustee; provided, however, that, subject to Section
11.19, the Collateral Trustee shall have the right to decline to follow any such
direction if the Collateral Trustee being advised by counsel determines that the
action so directed may not lawfully be taken, or if the Collateral Trustee in
good faith shall, by a Responsible Officer or Responsible Officers of the
Collateral Trustee, determine that the proceedings so directed would be illegal
or involve it in personal liability or be unduly prejudicial to the rights of
Noteholders not parties to such direction; and provided further that nothing in
this Agreement shall impair the right of the Collateral Trustee to take any
action deemed proper by the Collateral Trustee and which is not inconsistent
with such direction.
Section 11.32 Representations and Warranties of
Collateral Trustee. The Collateral Trustee represents and
warrants that:
(i) The Collateral Trustee is a banking corporation
organized, existing and in good standing under the laws of the State of
New York;
(ii) The Collateral Trustee is an entity that satisfies
the eligibility requirements of Section 11.24;
(iii) The Collateral Trustee has full power, authority
and right to execute, deliver and perform this Agreement, and has taken
all necessary action to authorize the execution, delivery and
performance by it of this Agreement; and
(iv) This Agreement has been duly executed and delivered
by the Collateral Trustee.
Section 11.33 Limitation of Liability. It is expressly
understood and agreed by the parties hereto that (a) this Agreement is
executed and delivered by Bankers Trust
Company, not individually or personally but solely (i) as Trustee of the Trust
and (ii) as Collateral Trustee of the Trust, in the exercise of the powers and
authority conferred and vested in it, (b) except with respect to Section 11.15
(with respect to the Trustee) and Section 11.32 (with respect to the Collateral
Trustee) hereof the representations, undertakings and agreements herein made on
the part of the Trust are made and intended not as personal representations,
undertakings and agreements by the Trustee or the Collateral Trustee, as
applicable, but are made and intended for the purpose of binding only the Trust,
(c) nothing herein contained shall be construed as creating any liability on the
Trustee or the Collateral Trustee, individually or personally, to perform any
covenant of the Trust either expressed or implied contained herein, all such
liability, if any, being expressly waived by the parties who are signatories to
this Agreement and by any Person claiming by, through or under such parties;
provided, however, that the Trustee or the Collateral Trustee, as applicable,
shall be liable in its individual capacity for its own willful misconduct or
negligence and for any tax assessed against it based on or measured by any fees,
commission or compensation received by it for acting as Trustee or Collateral
Trustee, as applicable, and (d) under no circumstances shall the Trustee or the
Collateral Trustee be personally liable for the payment of any indebtedness or
expenses of the Trust or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Trust under this
Agreement.
ARTICLE XII
TERMINATION
Section 12.1 Termination of Trust. The respective obligations
and responsibilities of the Transferor, the Servicer, the Trustee and the
Collateral Trustee created hereby (other than the obligation of the Trustee to
make payments to Noteholders and the Holder of the Transferor Interest as
hereafter set forth) shall terminate, except with respect to the duties
described in Sections 7.4, 8.4 and 11.5 and subsections 2.4(c) and 12.3(b), upon
the earlier of (i) the day, if any, designated by the Transferor after the
Distribution Date following the date on which funds shall have been deposited in
the Distribution Account sufficient to pay the Aggregate Principal Amount plus
Note Interest accrued through such Distribution Date in full and (ii) the day on
which final payment is made under the Notes and the Transferor Interest (any
such day under either the preceding clause (i) or this clause (ii) is referred
to as a "Trust Termination Date"); but in no event later than the Final Trust
Termination Date.
Section 12.2 Optional Purchase and Final Trust
Termination Date of Notes.
(a) If so provided in any Supplement, the Transferor or the
Servicer may, but shall not be obligated to, repurchase Notes of the related
Series by depositing into the related Distribution Account, if any, on the
Transfer Date that is on or immediately preceding the Distribution Date
specified in such Supplement, the amount so specified therein; provided,
however, that if the long-term unsecured debt obligations of the Servicer are
not rated at least Baa-3 by Moody's and BBB- by Standard & Poor's at the time of
such purchase, such purchase shall not occur unless the Transferor shall deliver
an Opinion of Counsel reasonably acceptable to the Trustee that such purchase of
Notes would not constitute a fraudulent conveyance by the Transferor or the
Servicer. On the Distribution Date that is on or following the Transfer Date on
which such deposit is made, the Transferor shall be deemed, automatically and
without requirement for any act on the part of the Transferor, or of any other
Person, to have acquired all outstanding Notes and to have retired the Notes,
thereby resulting in an increase in the Transferor Amount. If so provided in any
Supplement, the Transferor may replace the Notes of such Series with a
Replacement Series; provided that the Transferor shall follow the procedures set
forth in related Supplement.
(b) The Principal Amount of each Series shall be due and
payable no later than the Series Termination Date with respect to such Series.
If on the Determination Date in the third month immediately preceding the month
in which such Series Termination Date occurs, the Adjusted Principal Amount with
respect to such Series would be greater than zero (after giving effect to all
transfers, withdrawals, deposits and drawings to occur on the next Transfer Date
and the payment of principal on the Notes of such Series to be made on the
related Distribution Date pursuant to Article IV), the Servicer shall sell,
dispose of, or otherwise liquidate, in a commercially reasonable manner and on
commercially reasonable terms (which shall include the solicitation of
competitive bids from Persons who are not Affiliates of the Transferor), within
60 days of such Determination Date (a "Series Sale"), an amount of Included
Leases and related Equipment equal to (i) the Adjusted Principal Amount of such
Series determined as of the date of such sale, disposition or liquidation
provided, however, that the Servicer shall give the Transferor at least 15 days'
advance written notice of such sale, disposition or other liquidation.
Notwithstanding the foregoing, if after giving effect to any such sale,
disposition or liquidation and the application of the proceeds thereof, the
Asset Base would be less than the Aggregate Adjusted Principal Amount, the
Servicer shall sell, dispose of, or otherwise liquidate, in the manner specified
above, all Included Leases and related Equipment (a "Pool Sale"). The Transferor
shall have the option, exercisable at any time after the Servicer has obtained
an offer from any Person that is not an
Affiliate of the Transferor and prior to the consummation of any such sale,
disposition or liquidation by giving notice of the exercise thereof to the
Servicer, to purchase such Leases for cash (payable in immediately payable funds
on the Series Termination Date) for the lesser of (i) 100% of the Discounted
Lease and Residual Balance of such Leases, or (ii) the highest price offered
therefor pursuant to such proposed sale, disposition or other liquidation. In
the case of a Series Sale, the proceeds received upon the sale, disposition or
other liquidation of such Leases in an amount up to (i) the Adjusted Principal
Amount with respect to such Series on the Series Termination Date, plus (ii)
unpaid interest thereon at the Note Rate for each Series as of the Series
Termination Date with respect to such Series, and shall be distributed to the
Holders of the Notes of such Series in final payment thereof pursuant to the
terms of Section 12.3. Proceeds received in excess of the amount to be deposited
as aforesaid shall be treated as Collections on the Included Leases and shall be
allocated and deposited in accordance with the provisions of Article IV. In the
case of a Pool Sale, all proceeds received shall be treated as Collections on
the Included Leases and shall be allocated and deposited in accordance with the
provisions of Article IV.
(c) The amount deposited pursuant to subsections 12.2(a) and
12.2(b) shall be paid to the Noteholders in the manner provided in Section 12.3.
Section 12.3 Final Distributions. (a) Written notice of any
termination, specifying the Distribution Date upon which the Noteholders may
surrender their Notes for payment of the final distribution and cancellation
(unless otherwise specified in a Supplement), shall be given (subject to at
least four Business Days' prior notice from the Servicer to the Trustee) by the
Trustee to Noteholders mailed not later than the fifth day of the month of such
final distribution specifying (a) the Distribution Date (which shall be the
Distribution Date in the month in which the deposit is made pursuant to
subsection 2.4(e), 12.1 or 12.2(a)) upon which final payment of the Notes will
be made upon presentation and surrender of Notes (unless otherwise specified in
a Supplement) at the office or offices therein designated, (b) the amount of any
such final payment and (c) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Notes at the office or offices therein specified (unless
otherwise specified in a Supplement). The Servicer's notice to the Trustee in
accordance with the preceding sentence shall be accompanied by an Officer's
Certificate setting forth the information specified in Section 3.5 covering the
period during the then current calendar year through the date of such notice.
The Trustee shall give such notice to the Transfer Agent and Registrar and the
Paying Agent at the time such notice is given to Noteholders.
(b) All funds on deposit in the related Distribution Account,
if any, in the case of a final payment, pursuant to Section 12.2 and, in the
case of a termination of the Trust, pursuant to Section 12.1 (and
notwithstanding such termination), shall continue to be held in trust for the
benefit of the Noteholders and the Holder of the Transferor Interest and the
Paying Agent or the Trustee shall pay such funds to the appropriate Noteholders
upon surrender of their Notes (unless otherwise specified in a Supplement). In
the event that all of the Noteholders shall not surrender their Notes for
cancellation within six months after the date specified in the above-mentioned
written notice, the Trustee shall give a second written notice to the remaining
Noteholders to surrender their Notes for cancellation and receive the final
distribution with respect thereto. If within one year after the second notice
all the Notes shall not have been surrendered for cancellation, the Trustee may
take appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Noteholders concerning surrender of their Notes, and the
cost thereof shall be paid out of the funds in the Distribution Account held for
the benefit of such Noteholders. The Trustee and the Paying Agent shall pay to
the Transferor upon request any monies held by them for the payment of principal
or interest which remains unclaimed for two years. After payment to the
Transferor, Noteholders entitled to the money must look to the Transferor for
payment as general creditors unless an applicable abandoned property law
designates another Person.
Section 12.4 Termination Rights of the Holder of the
Transferor Interest. Upon the termination of the Trust pursuant to Section 12.1
and the surrender of the Transferor Interest, the Trustee shall return to the
Holder of the Transferor Interest (without recourse, representation or warranty
(other than that the Trustee has not encumbered such Lease and the related
Equipment, except for the grant of a security interest therein to the Collateral
Trustee)) all right, title and interest of the Trust in, to and under the Trust
Assets, except for amounts held by the Trustee pursuant to subsection 12.3(b).
The Trustee shall execute and deliver such instruments of transfer, in each case
prepared by the Transferor and without recourse, representation or warranty as
shall be reasonably requested by the Holder of the Transferor Interest to vest
in the Holder of the Transferor Interest all right, title and interest which the
Trust had in the Trust Assets.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.1 Amendment. (a) This Agreement (including any
Supplement) may be amended from time to time by the Servicer, the Transferor,
the Trustee and the Collateral Trustee, without the consent of any of the
Noteholders and the
Holder of the Transferor Interest, (i) to cure any ambiguity, to revise any
exhibits or Schedules, to correct or supplement any provisions herein or thereon
or (ii) to add any other provisions with respect to matters or questions raised
under this Agreement which shall not be inconsistent with the provisions of this
Agreement; provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interests of
any of the Noteholders.
(b) This Agreement (including any Supplement) may be amended
from time to time by the Servicer, the Transferor, the Trustee and the
Collateral Trustee, without the consent of any of the Noteholders and the Holder
of the Transferor Interest, to modify, eliminate or add to the provisions of
this Agreement to such extent as shall be necessary to effect the qualification
of this Agreement under the Trust Indenture Act of 1939, as amended (the "TIA"),
or under any similar federal statute hereafter enacted and to add to this
Agreement such other provisions as may be expressly required by the TIA.
(c) This Agreement (including any Supplement) may be amended
from time to time by the Servicer, the Transferor, the Trustee and the
Collateral Trustee, without the consent of any of the Noteholders and the Holder
of the Transferor Interest, to eliminate any restrictions on transferability
applicable to any Series, or class thereof, of Notes, to the extent that, in the
Opinion of Counsel, such restrictions are not necessary to comply with Section
7704 of the Code; provided, that prior to any such amendment, an Opinion of
Counsel provided by tax counsel and to that effect shall have been delivered to
the Trustee.
(d) This Agreement and any Supplement may also be amended from
time to time by the Servicer, the Transferor, the Trustee and the Collateral
Trustee with the consent of Noteholders aggregating more than 662/3% of the
Principal Amount of each and every Series adversely affected, 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
Noteholders of any Series then issued and outstanding; provided, however, that
no such amendment under this subsection shall(i) reduce in any manner the amount
of, or delay the timing of, distributions which are required to be made on any
Note of such Series without the consent of all of the related Noteholders; (ii)
change the definition of or the manner of calculating the Principal Amount, or
the Principal Percentage of such Series without the consent of the related
Noteholders or (iii) reduce the aforesaid percentage required to consent to any
such amendment, in each case without the consent of each Noteholder of all
Series affected.
(e) It shall not be necessary to obtain the consent of
Noteholders under this Section 13.1 to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of
obtaining such consents and of evidencing the authorization of the execution
thereof by Noteholders shall be subject to such reasonable requirements as the
Trustee may prescribe.
(f) Any Supplement executed and delivered pursuant to Section
6.12 and any amendments regarding the addition to or removal of Leases from the
Trust as provided in Sections 2.6 or 2.7, executed in accordance with the
provisions hereof, shall not be considered amendments to this Agreement for the
purpose of Section 13.1.
(g) In connection with any amendment, the Trustee may request,
in addition to the Opinion of Counsel required by subsection 13.2(d), an Opinion
of Counsel from the Transferor or the Servicer to the effect that the amendment
complies with all requirements of this Agreement. For the purposes of this
Section 13.1(g), such Opinion of Counsel may not be provided by internal
counsel. The Trustee may, but shall not be obligated to, enter into any
amendment which affects the Trustee's rights, duties or immunities under this
Agreement or otherwise.
Section 13.2 Protection of Right, Title and Interest to Trust.
(a) The Servicer shall cause this Agreement, all amendments hereto and/or all
financing statements and continuation statements and any other necessary
documents covering the Holders' and the Trustee's right, title and interest to
the Trust 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 and protect the right, title and
interest of the Trustee hereunder to all property comprising the Trust Assets.
The Servicer shall deliver to the 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. The
Transferor shall cooperate fully with the Servicer in connection with the
obligations set forth above and will execute any and all documents reasonably
required to fulfill the intent of this subsection 13.2(a).
(b) Within 30 days after the Transferor makes any change in
its name, identity or corporate structure which would make any financing
statement or continuation statement filed in accordance with paragraph (a) above
seriously misleading within the meaning of Section 9-402 of the UCC as in effect
in the state where such financing statement or continuation statement was filed,
the Transferor shall give the Trustee and the Rating Agencies notice of any such
change and shall file such financing statements or amendments as may be
necessary to continue the perfection of the Trust's security interest in the
Trust Assets and the proceeds thereof.
(c) The Servicer will give the Trustee prompt written notice
of any relocation of any office from which it services
Included Leases or keeps the Lease Files or of its principal executive office
and whether, as a result of such relocation, the applicable provisions of the
UCC would require the filing of any amendment of any previously filed financing
or continuation statement or of any new financing statement and shall file such
financing statements or amendments as may be necessary to continue the
perfection of the Trust's security interest in the Included Leases and the
proceeds thereof. The Servicer will at all times maintain each office from which
it services Included Leases and its principal executive office within the United
States of America.
(d) The Servicer will deliver to the Trustee: (i)
upon the execution and delivery of each amendment of Articles I, II, III or IV
other than amendments pursuant to subsection 13.1(a), an Opinion of Counsel
substantially in the form of Exhibit I; and (ii) on or before April 15 of each
year, beginning with April 15, 1996, an Opinion of Counsel, dated as of a date
during the preceding 90-day period, substantially in the form of Exhibit J.
Section 13.3 Limitation on Rights of Holders. (a)
The death or incapacity of any Holder shall not operate to terminate this
Agreement or the Trust, nor shall such death or incapacity entitle such
Holder's legal representatives or heirs to claim an accounting or to take any
action or commence any proceeding in any court for a partition or winding up
of the Trust, nor otherwise affect the rights, obligations and liabilities of
the parties hereto or any of them.
(b) No Holder shall have any right to vote (except with
respect to the Noteholders as provided in Section 13.1) or in any manner
otherwise 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 Notes, be construed so as to constitute the Noteholders and the
Holder of the Transferor Interest from time to time as partners or members of an
association; nor shall any such Holder 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 Holder 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 this Agreement, unless such Holder
previously shall have given notice to the Trustee, and unless the Holders of a
principal amount of Notes aggregating more than 50% of the Principal Amount of
any Series affected shall have made written request upon the Trustee to
institute such action, suit or proceeding in its own name as Trustee hereunder
and shall have offered to the Trustee such indemnity as it may require against
the costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for 60 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 Holder with every other Holder and the Trustee, that no one or more
Holders shall have the right in any manner whatever by virtue or by availing
itself or themselves of any provisions of this Agreement to affect, disturb or
prejudice the rights of the Holders of any other of the Notes or the Transferor
Interest, or to obtain or seek to obtain priority over or preference to any
other such Holder, or to enforce any right under this Agreement, except in the
manner herein provided and for the equal, ratable and common benefit of all
Holders. For the protection and enforcement of the provisions of this Section
13.3, each and every Holder and the Trustee shall be entitled to such relief as
can be given either at law or in equity.
SECTION 13.4 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS, PROVIDED, HOWEVER, THAT THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE TRUSTEE AND THE COLLATERAL TRUSTEE SHALL BE DETERMINED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
Section 13.5 Notices. All demands, notices and communications
hereunder shall be in writing (including by facsimile) and shall be deemed to
have been duly given if personally delivered (including by overnight courier)
at, mailed by registered mail, return receipt requested, to, or sent by
facsimile, with receipt confirmed and with a hard copy sent promptly, to (a) in
the case of the Servicer, to Xxx Xxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000 (facsimile # (000) 000-0000), Attn: Chief Financial Officer,
(b) in the case of the Transferor, to Xxx Xxxxxx Xxxxx, Xxxxx 000, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000 (facsimile # (000) 000-0000), Attn: Chief Financial
Officer, with a copy to the Servicer, (c) in the case of the Trustee or the
Collateral Trustee, to the Corporate Trust Office (facsimile # 212-250-6961),
Attn: Corporate Market Services, (d) in the case of the Enhancement Provider for
a particular Series the address, if any, specified in the Supplement relating to
such Series, (e) in the case of Moody's, to Xxxxx'x Investors Service, Inc., 00
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: ABS Monitoring Department, 4th
Floor, and (f) in the case of Standard & Poor's, to Standard & Poor's Ratings
Group, 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Structured Finance
Surveillance; or, as to each party, at such other address as shall be designated
by such party in a written notice to each other party. Any notice required or
permitted to be mailed to a Holder shall be given by first class mail, postage
prepaid, at the address of such Holder as shown in the Register. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Holder receives such
notice.
Section 13.6 Severability of Provisions. If any one or more of
the covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Notes and the
Transferor Interest or rights of the Holders thereof or any Enhancement
Provider.
Section 13.7 Rule 144A Information. For so long as any of
the Notes of any Series or any Class are restricted securities within the
meaning of Rule 144(a)(3) under the Securities Act of 1933, as amended, each
of the Transferor, the Servicer, the Trustee and any Enhancement Provider
agree to cooperate with each other to provide to any Noteholders of such
Series or Class and to any prospective purchaser of Notes designated by such a
Noteholder upon the request of such Noteholder or prospective purchaser, any
information required to be provided to such holder or prospective purchaser to
satisfy the condition set forth in Rule 144A(d)(4) under the Act.
Section 13.8 Notes Nonassessable and Fully Paid. It
is the intention of the parties to this Agreement that the Notes and the
Transferor Interest shall not be liable for obligations of the Trust, that the
interests in the Trust Assets represented by the Notes and the Transferor
Interest shall be nonassessable for any losses or expenses of the Trust or for
any reason whatsoever, and that Notes upon authentication thereof by the
Trustee pursuant to Sections 2.1 and 6.2 are and shall be deemed fully paid.
Section 13.9 Further Assurances. The Transferor and the
Servicer agree to do and perform, from time to time, any and all acts and to
execute any and all further instruments required or reasonably requested by the
Trustee more fully to effect the purposes of this Agreement, including, without
limitation, the execution of any financing statements or continuation statements
relating to the Trust Assets for filing under the provisions of the UCC of any
applicable jurisdiction.
Section 13.10 No Waiver: Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Trustee, the Collateral
Trustee or the Noteholders, 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
not exhaustive of any rights, remedies, powers and privileges provided by law.
Section 13.11 Counterparts. This Agreement may be
executed in two or more counterparts (and by different parties on
separate counterparts), each of which shall be an original, but all of which
together shall constitute one and the same instrument.
Section 13.12 Third-Party Beneficiaries. This Agreement shall
inure to the benefit of and be binding upon the parties hereto, the Holders and,
to the extent provided in any Supplement, the Enhancement Provider named
therein, and their respective successors and permitted assigns. Except as
otherwise provided in this Agreement or any Supplement, no other Person will
have any right or obligation hereunder.
Section 13.13 Actions by Holders. (a) Wherever in this
Agreement a provision is made that an action may be taken or a notice, demand or
instruction given by Noteholders, such action, notice or instruction may be
taken or given by any Noteholder, unless such provision requires a specific
percentage of Noteholders.
(b) Any request, demand, authorization, direction, notice,
consent, waiver or other act by a Holder shall bind such Holder and every
subsequent Holder of such Note or the Transferor Interest, as the case may be,
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 the Trustee,
Transferor or the Servicer in reliance thereon, whether or not notation of such
action is made upon such Note or in the Register with respect to the Transferor
Interest, as the case may be.
(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 Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing; and except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, when required, to the Transferor or the
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 or any
Supplement and conclusive in favor of the Trustee, Transferor and the Servicer,
if made in the manner provided in this Section.
(d) The fact and date of the execution by any Holder of any
such instrument or writing may be proved in any reasonable manner which the
Trustee deems sufficient.
Section 13.14 Merger and Integration. Except as specifically
stated otherwise herein, this Agreement sets forth the entire understanding of
the parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived or supplemented except as provided
herein.
Section 13.15 No Bankruptcy Petition. Each of each Holder and
the Trustee, severally and not jointly, hereby covenants and agrees that, prior
to the date which is one (1) year and one (1) day after the payment in full of
all Notes, it will not institute against, or join any other Person in
instituting against, the Transferor or the Trust any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other similar proceeding
under the laws of the United States or any state of the United States. Nothing
in this Section 13.15 shall preclude, or be deemed to estop, any Holder or the
Trustee from taking (to the extent such action is otherwise permitted to be
taken by such Person hereunder) or omitting to take any action prior to such
date in (i) any case or proceeding voluntarily filed or commenced by or on
behalf of the Transferor or the Trust under or pursuant to any such law or (ii)
any involuntary case or proceeding pertaining to the Transferor or the Trust
under or pursuant to any such law.
Section 13.16 Headings. The headings herein are for purposes
of reference only and shall not otherwise affect the meaning or interpretation
of any provision hereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed by their respective officers as of the day and year first above
written.
AFG CREDIT CORPORATION,
as Transferor
By:___________________________
Title:
AMERICAN FINANCE GROUP, INC.
as Servicer
By:___________________________
Title:
BANKERS TRUST COMPANY,
as Trustee
By:___________________________
Title:
BANKERS TRUST COMPANY,
as Collateral Trustee
By:___________________________
Title:
SCHEDULE 1
to
POOLING AND SERVICING AGREEMENT AND INDENTURE OF TRUST
LIST OF LEASES
Delivered to Trustee only
As contained on an Appropriately Labeled Computer File or Microfiche Delivered
Contemporaneously with this Agreement.
Leases
Account Number: ___________
Discounted Lease Balance as of the related
Cut Off Date: $___________
SCHEDULE 2
to
POOLING AND SERVICING AGREEMENT AND INDENTURE OF TRUST
LIST OF LOCKBOXES
1. First Union National Bank of North Carolina
X.X. Xxx 00000
Xxxxxxxxx, X.X. 00000
Account # 60581
SCHEDULE 3
to
POOLING AND SERVICING AGREEMENT AND INDENTURE OF TRUST
PORTFOLIO PARAMETERS1
1. Portfolio Quality:
(a) With respect to the Included Leases, the Weighted
Average Debt Rating of all of the Lessees thereunder is
at least Baa2, based on ratings assigned by Xxxxx'x, or
the equivalent based upon ratings assigned by another
Rating Agency.2 "Weighted Average Debt Rating" shall
mean at any time the weighted average of the senior
secured long-term debt ratings assigned by a Rating
Agency to the Lessees based on the following numerical
values3:
Credit Rating Numerical
Xxxxx'x/S&P/Internal Rating Value
Aaa/AAA 325.5
Aa1/AA+ 305.5
Aa2/AA 285.5
Aa3/AA- 265.5
A1/A+ 245.5
A2/A 225.5
A3/A- 205.5
Baa1/BBB+ 185.5
Baa2/BBB 165.5
Baa3/BBB- 145.5
(continued on next page)
--------
1 Capitalized terms used in this Schedule and not otherwise defined shall
have the respective meanings set forth in the Pooling and Servicing
Agreement and Indenture of Trust.
2 For the purposes of this Schedule, the term "Rating Agency" has the
meaning assigned thereto in the Pooling and Servicing Agreement and
shall also include AFG's internal ratings ("Internal Ratings"), which
are based on the ALCAR Debt Rater Plus software, or successor
software packages.
3 For Lessees that do not have a senior secured long-term debt rating
assigned to them by Xxxxx'x or S&P, the numerical value that
corresponds to the rating that is one level above the unsecured long-
term debt rating of such Lessee in the table above shall be used. For
Lessees that are not assigned ratings by either Xxxxx'x or S&P,
Internal Ratings shall be used. In the case of a Lessee with
different ratings assigned by Xxxxx'x and S&P, the lower of the two
ratings shall be used.
Credit Rating Numerical
Xxxxx'x/S&P/Internal Rating Value
Ba1/BB+ 125.5
Ba2/BB 105.5
Ba3/BB- 85.5
B1/B+ 65.5
B2/B 45.5
B3/B- 25.5
(b) No Lessee under an Included Lease has a long-term unsecured
debt rating assigned by Xxxxx'x of less than B-3, or the
equivalent assigned by another Rating Agency.
(c) The sum of the Discounted Lease Balances of all Included
Leases with respect to which the Lessees thereunder have
long-term unsecured debt ratings assigned by Xxxxx'x of X-0,
X-0 or B-3, or the equivalent assigned by another Rating
Agency, on a cumulative basis, is not greater than 5% of the
Aggregate Pool Balance.
(d) The sum of the Discounted Lease Balances of Included Leases
with respect to which the Lessees thereunder are rated
internally by AFG, on a cumulative basis, is not more than 25%
of the Aggregate Pool Balance.
2. Concentration Limitations: (a) Each amount set forth in the table below
represents the maximum percentage of the Aggregate Pool Balance that
may be comprised of the sum of the Discounted Lease Balances
attributable to the Included Leases in the applicable category, on a
cumulative basis.
3
=============================================================================================================================
Category When Aggregate Pool Balance is
-------------------------------------------------------------------------------
Greater Greater than
than $0 but $30 Million Greater
less than $30 but less than $60 than $60
Million Million Million
-----------------------------------------------------------------------------------------------------------------------------
1. Included Leases of
any individual
Lessee that is rated
investment grade or
higher by a Rating
Agency 25% 10% 9%
-----------------------------------------------------------------------------------------------------------------------------
2. Included Leases of any individual
Lessee that is not rated investment
grade by a Rating
Agency 15% 3% 3%
-----------------------------------------------------------------------------------------------------------------------------
3. Included Leases of
all Lessees that
operate in the same
industry* N/A 40% 40%
-----------------------------------------------------------------------------------------------------------------------------
4. Included Leases that relate to the same
type of Equipment** N/A 40% 40%
-----------------------------------------------------------------------------------------------------------------------------
5. Included Leases for
which the Scheduled
Payments are payable
semi-annually 10% 10% 10%
=============================================================================================================================
---------------
* Based upon Primary Standard Industrial Classification Code
Number.
** As determined by AFG Credit Corporation in accordance with its customary
procedures.
The following words and phrases shall have the following
meanings:
"Equipment Excess Concentration Amount" shall mean at any date
of determination, the dollar amount, if any, by which the Discounted
Lease Balances of Included Leases exceeds the applicable concentration
limits prescribed in
category 4 in the table above.
"Individual Lessee Excess Concentration Amount" shall mean at
any date of determination, the dollar amount, if any, by which the
Discounted Lease Balances of Included Leases exceeds the applicable
concentration limits prescribed in category 1 or category 2, as
applicable with respect to a particular Lessee, in the table above.
"Industry Excess Concentration Amount" shall mean at any date
of determination, the dollar amount, if any, by which the Discounted
Lease Balances of Included Leases exceeds the applicable concentration
limits prescribed in
category 3 in the table above.
"Semi-Annual Lease Excess Concentration Amount" shall mean at
any date of determination, the dollar amount, if any, by which the
Discounted Lease Balances of Included Leases exceeds the applicable
concentration limits prescribed in category 5 in the table above.
If at any date of determination with respect to any Included
Lease there are two or more of (a) an Equipment Excess Concentration
Amount, (b) an Individual Lessee Excess Concentration Amount, (c) an
Industry Excess Concentration Amount or (d) a Semi-Annual Lease Excess
Concentration Amount, then only the one largest dollar amount that is
attributable to (a), (b), (c) or (d) above, as applicable, shall be
used in the calculation of the Excess Concentration Amount at such date
of determination.
A Lease shall not be deemed to cause any of the limits set
forth in the table above to be exceeded, and shall therefore not be
deemed to give rise to the existence of an Equipment Excess
Concentration Amount, an Individual Lessee Excess Concentration Amount,
an Industry Excess Concentration Amount or a Semi-Annual Lease Excess
Concentration Amount, as the case may be, if the Rating Agency
Condition shall have been satisfied with respect to such Lease.
(b) the sum of the Discounted Lease Balances attributable to all
Included Leases that are not Hedged Leases shall not, on a
cumulative basis, exceed $10,000,000.
3. Other Lease Requirements: Utilizing the Definition of "Discount Rate"
in the Pooling and Servicing Agreement and Indenture of Trust, the sum
of the Discounted Lease Balances of all Included Leases, calculated for
each Lease at the date of origination of each such Lease by AFG, would
not, on a cumulative basis, exceed 88% of the sum of the original cost
of the Equipment relating to all Included Leases.
SCHEDULE 4
to
POOLING AND SERVICING AGREEMENT AND INDENTURE OF TRUST
IDENTIFICATION OF ACCOUNTS
1. Collection Account
Account Number: 2000000732936
Account Designation: AFG Master Trust Collection
Account, Bankers Trust Company as
Collateral Trustee
Name of Institution
with which account
has been established: First Union National Bank of
North Carolina
2. Excess Funding Account
Account Number: 2000000733508
Account Designation: AFG Master Trust Excess Funding
Account, Bankers Trust Company as
Collateral Trustee
Name of Institution
with which account
has been established: First Union National Bank of
North Carolina
3. Tax Escrow Account
Account Number: 2000000733485
Account Designation: AFG Master Trust Tax Escrow
Account, Bankers Trust Company as
Collateral Trustee
Name of Institution
with which account
has been established: First Union National Bank of
North Carolina
4. Series 1995-1 Distribution Account1
Account Number: 2000000733498
Account Designation: AFG Master Trust Series 1995-1
Distribution Account, Bankers
Trust Company as Collateral
Trustee
Name of Institution
with which account
has been established: First Union National Bank of
North Carolina
--------
1 This account pertains to Series 1995-1 only. Distribution
accounts for other series will be added to this schedule as
appropriate.
EXHIBIT A
to
POOLING AND SERVICING AGREEMENT AND INDENTURE OF TRUST
FORM OF CUSTODIAN AGREEMENT
THIS CUSTODIAN AGREEMENT, dated as of ________ __, 199_ is
made between AMERICAN FINANCE GROUP, INC., a Delaware corporation ("AFG"), [ ]
(the "Custodian") and BANKERS TRUST COMPANY, a New York banking corporation, as
Trustee and as Collateral Trustee (in such capacity, the "Trustee") of the AFG
Master Trust (the "Trust") under the POOLING AND SERVICING AGREEMENT AND
INDENTURE OF TRUST, dated as of July 1, 1995 (as amended or otherwise modified
from time to time, the "Pooling and Servicing Agreement"), among AFG CREDIT
CORPORATION, a Delaware corporation, as Transferor (the "Transferor"), AFG, in
its capacity as Servicer thereunder (in such capacity, the "Servicer") and the
Trustee.
WHEREAS, from time to time under the Pooling and Servicing
Agreement the Trustee, on behalf of the Trust, will acquire from the Transferor
interests in certain leases and related equipment to be serviced by the
Servicer;
WHEREAS, it is a requirement of the Pooling and
Servicing Agreement that the Trustee be given possession of such
leases;
WHEREAS, to facilitate the servicing of such leases by the
Servicer and the taking of, and maintenance of, possession thereof by the
Trustee, the Trustee wishes to appoint the Custodian as its agent to maintain
such possession; and
NOW, THEREFORE, in consideration of the mutual agreements
herein contained and of other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
SECTION 1. APPOINTMENT AND DUTIES OF CUSTODIAN
1.1 The Trustee hereby appoints the Custodian to act
exclusively as the custodian of the Trustee for the purposes of taking and
retaining custody of the Lease Files (as defined on Schedule I hereto) in
accordance with the terms and conditions of this Agreement, all for the
exclusive benefit of the Trustee on behalf of the Trust. In so taking and
retaining custody of the Lease Files, the Custodian shall be deemed to be acting
as the agent of the Trustee for the purpose of perfecting the Trustee's security
interest therein under the Uniform Commercial Code, provided, however, that the
Custodian makes no representations as to the existence, perfection or priority
of any such purported security interest, and provided further, that the
Custodian's duties as agent shall be limited to those expressly contemplated
herein. The Custodian hereby accepts such appointment.
1.2 The Transferor, the Trustee and the Servicer may from time
to time deposit with the Custodian the items (the "Documents") listed on
Schedule I attached hereto. The sole responsibilities of the Custodian with
respect to such Documents shall be to (x) act as custodian of such Documents for
the Trustee so long as such Documents are in the Custodian's possession and (y)
(1) accept such Documents from the Transferor, the Trustee and the Servicer; (2)
verify that all Documents are in the respective Lease Files or, if a Lease File
already exists for any Included Lease, place any Documents received under this
subsection 1.2 in the appropriate Lease Files; and (3) secure the Lease Files.
The Custodian shall provide written verification of all documents received from
or removed by the Trustee and the Servicer in a form substantially similar to
Exhibit 1, copies of which will be provided to the Servicer or the Trustee, as
appropriate. The Custodian hereby acknowledges receipt of the Lease Files listed
on the Schedule of Included Leases attached as Schedule II hereto (except for
the documents listed on the Schedule of Exception attached to Exhibit 1 hereto
as Schedule A). The Custodian makes no representations as to: (i) the validity,
legality, enforceability or genuineness of any of the documents identified on
Schedule II, or (ii) the collectability, insurability, effectiveness or
suitability of any such documents. The Custodian shall have no duty to monitor
the delivery to it of such documents other than to note receipt of such on its
records.
1.3 Except as set forth in Section l.4, the Custodian shall
accept only written instructions (if oral, then immediately confirmed in writing
by telecopy) of an Authorized Representative (as defined below) of the Servicer
concerning the use, handling and disposition of the Lease Files. Each individual
designated as an authorized representative of the Trustee, the Servicer or the
Custodian (each, an "Authorized Representative") is authorized to give and
receive notices, requests and instructions and to deliver certificates and
documents in connection with this Custodian Agreement on behalf of the Trustee,
the Servicer or the Custodian, as the case may be, and the specimen signature
for each such Authorized Representative of the Trustee, the Servicer and the
Custodian initially authorized hereunder is set forth on Exhibits 4, 5 and 6
hereto, respectively. From time to time, the Trustee, the Servicer, the
Transferor and the Custodian may, by delivering to each of the others a revised
exhibit, change the information previously given, but each of the other parties
hereto shall be entitled to rely conclusively on the last exhibit until receipt
of a superseding exhibit.
1.4 (a) Unless the Custodian shall receive written notice from
the Trustee to the contrary and subject to the requirements of Section 1.6, the
Custodian, upon the receipt of a written request from the Servicer, in
substantially the form of Exhibit 3 hereto, detailing the Lease Files to be
released or transferred by the Custodian to the Servicer, shall release or
transfer the Lease Files specifically requested by the Servicer to the Servicer.
The Custodian shall deliver to the Servicer,
upon receipt of such written instructions of the Servicer, as rapidly as
practicable, but in no case later than two (2) Business Days, all of the Lease
Files so designated for delivery.
(b) Any instruction by the Servicer to deliver the Lease Files
to the Servicer must inform the Custodian, to the Custodian's satisfaction, of
the terms and method of delivery of the Lease Files to the Servicer. The
Servicer shall hold the Custodian harmless from losses or damages to any person,
including, without limitation, the Trustee or the Transferor for the safe
transmittal of the Lease Files if the Custodian has complied with the Servicer's
instructions regarding their delivery. Upon receipt of a notice from the Trustee
to cease accepting instructions from the Servicer, the Custodian shall
thereafter accept instructions as set forth herein only from the Trustee until
such notice is withdrawn by the Trustee.
1.5 The notices, statements, directions and certificates
requested under or required by this Section 1 shall be full authority for and
direction to the Custodian to execute the certificates and notices and deliver
the Lease Files referred to herein and the Custodian shall promptly do so. The
Custodian in so doing shall have no liability to any Person except on account of
its willful misconduct or gross negligence.
1.6 At any time when an Included Lease is to be reconveyed to
the Transferor or otherwise disposed of under the terms of the Pooling and
Servicing Agreement, the Servicer shall submit a written request to the
Custodian in a form substantially similar to Exhibit 3 with a copy to the
Trustee (1) identifying the Included Leases for which a reconveyance or other
disposition hereunder is to be made, and (2) requesting the Custodian to release
the specific Lease Files relating to such Leases to the Servicer. Upon receipt
of such request from the Servicer with respect to any such sale or other
disposition hereunder, the Custodian shall promptly deliver the Lease Files
listed in such request to the Servicer. Upon receipt of a notice from the
Trustee to cease accepting instructions from the Servicer, the Custodian shall
thereafter accept instructions as set forth herein only from the Trustee until
such notice is withdrawn by the Trustee.
1.7 All Lease Files shall be kept in fireproof vaults or
cabinets at the office of the Custodian specified in Section 4.3, or at such
other office as shall be specified to the Trustee and the Servicer by 30 days'
prior written notice. All Lease Files shall be placed together in a separate
file cabinet with an appropriate identifying label and maintained in such a
manner so as to permit retrieval and access.
1.8 The Custodian shall keep all Lease Files clearly
segregated from any other documents or instruments in its files. The Custodian
shall clearly list by customer name and contract number all Lease Files, to
indicate that such Lease Files are the
sole property of the Trustee, and that the Custodian is holding such files
solely as custodian for the Trustee; provided that the Lease Files, including
any original certificates of title or other title documents with respect to the
Equipment related to the Included Leases, may be transferred to the Trustee or
such other Person as the Trustee may direct.
1.9 The Custodian hereby agrees and covenants that, on
reasonable prior notice, it will permit any representative of the Servicer, the
Servicer's accountants (auditors), or the Trustee (or any of its agents), during
the Custodian's normal business hours, to examine the books of account, records,
reports and other papers of the Custodian relating to the Lease Files, to make
copies and extracts therefrom, all at such reasonable times and as often as may
be reasonably requested.
1.10 The Custodian shall not have any duty or obligation to
take any action in respect of the collection of any indebtedness evidenced by
the Lease Files or to otherwise act with respect to payment on any such
indebtedness, provided that the Custodian shall transfer any Lease Files to the
Servicer, and accept the return of such Lease Files from the Servicer, which the
Servicer from time to time may request in connection with the Servicer's
obligations under the Pooling and Servicing Agreement.
1.11 The Custodian undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement and no implied
covenants or obligations shall be read into this Agreement against the
Custodian; in the absence of bad faith on its part, the Custodian may rely, as
to the truth of the statements and correctness of the instructions given, on
instruments and reports furnished to the Custodian and conforming to the
requirements of this Agreement.
1.12 In performing its duties as Custodian, the Custodian
shall use the highest degree of care and attention employed by custodial
institutions holding and transferring documents of a comparable nature.
1.13 The Custodian makes no warranty or representation as to
the completeness or validity of the Lease Files (other than as set out in
Section 1.2 hereof) nor as to the perfection or priority of any security
interest therein in favor of the Trustee and is acting solely as custodian of
the Trustee to furnish only those services which are expressly described herein
or any other administerial service or action which is reasonably requested by
the Trustee in order to accomplish the purposes of this Agreement.
1.14 The Servicer covenants and agrees to pay to the Custodian
and the Custodian shall be entitled to receive, under a separate agreement with
the Transferor, reasonable compensation for all services rendered by it
hereunder and in the exercise and performance of any of the powers and duties
hereunder of the
Custodian, and, the Servicer will pay or reimburse the Custodian upon its
request for all reasonable expenses, disbursements and advances incurred or made
by the Custodian in accordance with any of the provisions of this Agreement
(including the reasonable fees and expenses of its agents and counsel) except
any such expense, disbursement or advance as may arise from its negligence or
bad faith.
SECTION 2. INDEMNIFICATION
2.1 The Servicer agrees to indemnify and hold the Custodian
and its directors, officers, agents and employees harmless against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever, including
reasonable attorney's fees, that may be imposed on, incurred by, or asserted
against it or them in any way relating to or arising out of this Custodian
Agreement or any action taken or not taken by it or them hereunder unless such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements were imposed on, incurred by or asserted
against the Custodian because of the breach by the Custodian of its obligations
hereunder, which breach was caused by the negligence, lack of good faith or
willful misconduct on the part of the Custodian or any of its directors,
officers, agents or employees. The foregoing indemnification shall survive any
termination of this Custodian Agreement.
2.2 Neither the Custodian nor any of its directors, officers,
agents or employees shall be liable for any action taken or omitted to be taken
by it or them hereunder or in connection herewith in good faith and believed by
it or them to be within the purview of this Custodian Agreement, including,
without limitation, in the selection of shippers and methods of shipment, except
for its or their own negligence, lack of good faith or willful misconduct. In no
event shall the Custodian or its directors, officers, agents and employees be
held liable for any special, indirect, punitive or consequential damages
resulting from any action taken or omitted to be taken by it or them hereunder
or in connection herewith even if advised of the possibility of such damages.
Custodian shall not be responsible to the Trustee or any other party for
recitals, statements or warranties or representations of the Servicer contained
herein, in the Pooling and Servicing Agreement or in any document or be bound to
ascertain or inquire as to the performance or observance of any of the terms of
this Custodian Agreement or the Pooling and Servicing Agreement on the part of
the Servicer.
SECTION 3. TERMINATION OF AGREEMENT
3.1 This Agreement may be terminated at any time by the
Trustee without penalty hereto by written notice delivered by
an Authorized Representative of the Trustee to the Custodian and the Servicer.
In such event, the Trustee will select a replacement custodian which is
satisfactory to the Servicer and will obtain the Servicer's written consent to
such selection, provided that no consent will be required if the Servicer is in
a default status under the Pooling and Servicing Agreement. The effective date
of termination shall be as specified in such notice; provided, however, that at
the option of either the Trustee or the Custodian, the effective date of
termination may be postponed to a date not more than ten (10) days from the date
of the delivery of such notice in order to provide the Custodian an opportunity
to prepare for the transfer of the Lease Files to the Trustee.
3.2 (a) Upon the termination of this Agreement and upon
written notice to the Custodian, the Custodian shall deliver to the Trustee, its
designee or any successor custodian, at the Custodian's office, all Lease Files
then held by the Custodian and a list of all Lease Files held by any other
Person.
(b) If, upon termination of this Agreement, the Trustee fails
to accept delivery of, or provide written delivery instructions for, all Lease
Files then held by the Custodian pursuant to this Agreement, the Custodian shall
have the right upon thirty (30) days prior written notice to the Trustee, to
store the unaccepted Lease Files in a non-fireproof area and shall not be held
liable by the Trustee for damage, theft, fire or other perils relating to the
Lease Files. Upon termination of this Agreement, the Custodian will not accept
any instructions from the Trustee other than arrangements for complete delivery
of all Lease Files in its possession. Upon the Trustee's failure to arrange
complete delivery or provide instructions for delivery within thirty (30) days
of termination, the Custodian shall have the right to mail all packages by
regular, insured U.S.A. mail or United Parcel Service to the Servicer or other
Person so designated by the Trustee.
SECTION 4. MISCELLANEOUS
4.1 Defined Terms. Capitalized terms used but not otherwise
defined herein shall the respective meanings assigned them in the Pooling and
Servicing Agreement. All references herein to "the Agreement" or "this
Agreement" are to this Custodian Agreement as it may be amended, supplemented or
modified from time to time, and all references hereto to Sections and
subsections are to Sections and subsections of this Agreement unless otherwise
specified.
4.2 Assignment, Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the parties hereto, and their
respective successors and permitted assigns. Except as otherwise provided in
this Agreement, no other Person will have any right or obligation hereunder.
Notwithstanding anything contained in this Agreement to the contrary, this
Agreement may not be assigned by the Custodian without the prior written consent
of the Trustee, which shall not be unreasonably withheld.
4.3 Notices. (a) Except as otherwise specifically provided for
in this Agreement, all notices, payments and other communications between the
parties hereto shall be given by an Authorized Representative of the Trustee,
Custodian or Servicer, as the case may be, in writing (including by facsimile)
and shall be either hand delivered or mailed by registered or certified mail,
postage prepaid, return receipt requested, or by facsimile (with receipt
confirmed and with a hard copy sent promptly), Federal Express, other overnight
couriers providing receipts or electronic mail as follows:
If to the Trustee:
Bankers Trust Company
Four Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mr. Xxxxx Xxxxx
Corporate Market Services
Telephone Number: (000) 000-0000
Telecopy Number : (000) 000-0000, 6961
If to the Custodian:
--------------------------
Attention:
Telephone Number:
Telecopy Number :
If to the Servicer:
American Finance Group, Inc.
00 X. Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Vice President of Lease Operations
Telephone Number: (000) 000-0000
Telecopy Number : (000) 000-0000
(b) Any such notice, payment or communication so delivered or
addressed and mailed by certified mail, postage prepaid, return receipt
requested, shall be deemed to have been given when so mailed. Notice given by
Federal Express or electronic mail shall be deemed given twenty-four (24) hours
after communicated. Any party may change the address to which notices, payments
or communications shall be given by notifying the other party in writing as
provided for in this Section.
4.4 No Set-Off. The Custodian, in its capacity as custodian
hereunder or otherwise, hereby agrees that it will not set-off against the Lease
Files delivered under this Agreement or the proceeds thereof any claims which it
may have against the Trustee or any other Person. The Custodian, in its capacity
as custodian hereunder or otherwise, hereby expressly waives any and all rights
it may have to file a lien against any Lease File individually or in the
aggregate.
4.5 Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
4.6 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
4.7 Counterparts. This Agreement may be executed in two or
more counterparts (and by different parties on separate counterparts), each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
4.8 Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived or supplemented except as provided herein.
4.9 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF [ ].
4.10 Genuineness of Documents. In the absence of bad faith on
the part of the Custodian, the Custodian may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed therein, upon
any request, instructions, certificate, opinion or other document furnished to
the Custodian, believed by the Custodian to be genuine and to have been signed
or presented by the proper party or parties and conforming to the requirements
of this Custodian Agreement; but in the case of any loan document or other
request, instruction, document or certificate which by any provision hereof is
specifically required to be furnished to the Custodian, the Custodian shall be
under a duty to examine the same to determine whether or not it conforms to the
requirements of this Custodian
Agreement. The Custodian may consult with counsel and any opinion of counsel
shall be full and complete authorization and protection in respect of any action
taken or suffered or omitted by it hereunder in good faith and in accordance
with such opinion of counsel.
4.11 Reproduction of Documents. This Agreement and all
documents relating thereto, including, without limitation, (a) consents, waivers
and modifications which may hereafter be executed, (b) documents received by any
party at the closing, and (c) certificates and other information previously or
hereafter furnished, may be reproduced by any photographic, photostatic,
microfilm, micro-card, miniature photographic or other similar process. The
parties agree that any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding, whether or not the
original is in existence and whether or not such reproduction was made by a
party in the regular course of business, and that any enlargement, facsimile or
further reproduction of such reproduction shall likewise be admissible in
evidence.
4.12 Data Access. If the Custodian has issued to the Servicer
a data access security system in order that the Servicer may have access to
certain data and functions, the Servicer hereby agrees: (a) to access data and
functions only in accordance with the Data Access Operating Procedures annexed
hereto as Exhibit 7 and to regard and preserve as confidential all information
obtained with respect to the issuance to the Servicer of a data access authority
system (other than information provided by or on behalf of the Servicer); (b) to
access data and functions solely for its own internal use and benefit; (c) to
discontinue use of the data access security system at any time for security
reasons upon notice from the Custodian; (d) upon request, to cause the
Servicer's internal auditors to verify to the Custodian that data access is
restricted to authorized employees; (e) to indemnify the Custodian against and
to hold the Custodian harmless from all liability, claims, loss and demands
whatsoever, including reasonable attorney's fees, howsoever arising or incurred
because of or in connection with the access of data and functions by the
Servicer and the use by the Servicer or any of their employees, whether
authorized or unauthorized, of the data access security system; and (f) to
designate a duly authorized individual to serve as the Data Security
Administrator in accordance with the Data Security Administrator Designation
form annexed hereto as Exhibit 8.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed by their respective officers as of the day and year first above
written.
[Custodian], as Custodian
By
Title:
BANKERS TRUST COMPANY, as Trustee
and as Collateral Trustee
By
Title:
AMERICAN FINANCE GROUP, INC.
as Servicer
By
Title:
SCHEDULE I
(Attached to and Made a Part of the
Custodian Agreement Between
[ ],
Bankers Trust Company and
American Finance Group, Inc.
dated as of __________ __, 199_)
CONTENTS OF LEASE FILES
(1) THE FOLLOWING DOCUMENTS RECEIVED FROM TIME TO TIME BY THE CUSTODIAN
FROM THE TRANSFEROR OR THE SERVICER WITH RESPECT TO THE INCLUDED LEASES
CONSTITUTE THE "LEASE FILES" (listed below as Exhibits "_" through
"_"):
SCHEDULE II
(Attached to and Made a Part of the
Custodian Agreement Between
[ ],
Bankers Trust Company and
American Finance Group, Inc.
dated as of __________ __, 199_)
LIST OF INCLUDED LEASES
Leases
Account Number:
EXHIBIT 1
(Attached to and Made a Part of the
Custodian Agreement Between
[ ],
Bankers Trust Company and
American Finance Group, Inc.
dated as of __________ __, 199_)
Custodian
Street Address
City, St, Zip
Re: Section 1.2 of the Custodian Agreement by and between
[_________________], as custodian ("Custodian"),
American Finance Group, Inc. ("Servicer") and Banker's
Trust Company ("Trustee") under the AFG Master Trust.
Dear _______________:
Enclosed please find the below-listed documents which Servicer requests be:
_____ added as an additional Lease File __________
_____ filed as an addition to a Lease File _________
Listing of Contents
1. _____________________________________________
2. _____________________________________________
3. _____________________________________________
4. _____________________________________________
5. _____________________________________________
6. _____________________________________________
7. _____________________________________________
AMERICAN FINANCE GROUP, INC.
By:____________________________
Title:_________________________
Custodian hereby acknowledges receipt of the above-listed documentation and
confirms to Servicer that it has filed such documents in accordance with the
instructions set forth herein as
of this ____ day of __________, 199_. The Custodian makes no representations as
to: (i) the validity, legality, enforceability or genuineness of any of the
documents identified on Schedule II, or (ii) the collectability, insurability,
effectiveness or suitability of any such documents. The Custodian shall have no
duty to monitor the delivery to it of such documents other than to note receipt
of such on its records.
By:____________________________
Title:_________________________
Exhibit 1 - Schedule A
(Attached to and Made a Part of the
Custodian Agreement Between
[ ],
Bankers Trust Company and
American Finance Group, Inc.
dated as of __________ __, 199_)
Schedule of Exceptions
EXHIBIT 2
Certification of the Custodian
(Attached to and Made a Part of the
Custodian Agreement Between
[ ],
Bankers Trust Company and
American Finance Group, Inc.
dated as of __________ __, 199_)
Re: Reference is made to the Custodian Agreement, dated as of
_________, 1995 (the "Custodian Agreement") among Bankers
Trust Company (the "Trustee"), American Finance Group, Inc.
(the "Servicer") and [_______________________] (the
"Custodian")
Ladies and Gentlemen:
In accordance with the provisions of Section 1.2 of the Custodian Agreement, the
undersigned, as Custodian, hereby certifies that, as to each Lease File listed
in the Lease File Schedule attached hereto (other than any Lease File paid in
full or any Lease File listed on the attachment hereto), it has reviewed the
documents delivered to it pursuant to Section 1.2 of the Custodian Agreement, as
specified on the related Lease File Schedule, and has determined (except as
provided in the attached exception report) (i) all such documents listed on the
document inventory checklist are in its possession and (ii) based on its
examination, and only as to the foregoing documents, the information set forth
in the Lease File Schedule with respect to such Lease File accurately reflects
the information set forth in the Custodian's Lease File.
The undersigned makes no representation as to and shall not be required to
verify (a) the validity, legality, sufficiency, enforceability, recordability,
due authorization, adequacy of genuineness of any such documents contained in
each or any of the Lease Files, or (b) the collectability, insurability,
effectiveness or suitability of any such Lease File.
Any capitalized terms used but not defined herein shall have the meanings
assigned in the Custodian Agreement.
[CUSTODIAN]
By: _____________________
Name: ___________________
EXHIBIT 3
(Attached to and Made a Part of the
Custodian Agreement Between
[ ],
Bankers Trust Company and
American Finance Group, Inc.
dated as of __________ __, 199_)
Xxxxxxxxx
Xxxxxx Xxxxxxx
Xxxx, Xx, Xxx
Re: Section ___ of the Custodian Agreement by and between
_______________, as custodian ("Custodian"), American
Finance Group, Inc. ("Servicer") and Banker's Trust
Company ("Trustee") under the AFG Master Trust.
Dear _______________:
In accordance with Section 1.4 of the Custodian Agreement, Servicer hereby
formally requests the release and transfer of the below-listed Lease Files and
the delivery of the same via _______________ at the address listed below:
Listing of Lease Files
Lease File _________ Lease File _________
Lease File _________ Lease File _________
Lease File _________ Lease File _________
Lease File _________ Lease File _________
Lease File _________ Lease File _________
Lease File _________ Lease File _________
Delivery Address
---------------------------
American Finance Group, Inc.
00 X. Xxxxxxxxxx Xx., Xxxxxx, XX 00000
AMERICAN FINANCE GROUP, INC.
By:____________________________
Title:_________________________
Servicer hereby acknowledges receipt of the above-listed Lease Files and
confirms the completeness of their contents this ____ day of __________, 199_.
AMERICAN FINANCE GROUP, INC.
By:____________________________
Title:_________________________
EXHIBIT 4
AUTHORIZED REPRESENTATIVES OF THE TRUSTEE
(Attached to and Made a Part of the
Custodian Agreement Between
[ ],
Bankers Trust Company and
American Finance Group, Inc.
dated as of __________ __, 199_)
Name Signature
-------------------------- ------------------------------
Title:
-------------------------- ------------------------------
Title:
-------------------------- ------------------------------
Title:
-------------------------- ------------------------------
Title:
EXHIBIT 5
AUTHORIZED REPRESENTATIVES OF THE SERVICER
(Attached to and Made a Part of the
Custodian Agreement Between
[ ],
Bankers Trust Company and
American Finance Group, Inc.
dated as of __________ __, 199_)
Name Signature
-------------------------- ------------------------------
Title:
-------------------------- ------------------------------
Title:
-------------------------- ------------------------------
Title:
-------------------------- ------------------------------
Title:
EXHIBIT 6
AUTHORIZED REPRESENTATIVES OF THE CUSTODIAN
(Attached to and Made a Part of the
Custodian Agreement Between
[ ],
Bankers Trust Company and
American Finance Group, Inc.
dated as of __________ __, 199_)
Name Signature
-------------------------- ------------------------------
Title:
-------------------------- ------------------------------
Title:
-------------------------- ------------------------------
Title:
-------------------------- ------------------------------
Title:
EXHIBIT 7
PROTECTION OF EQUIPMENT AND INFORMATION
(Attached to and Made a Part of the
Custodian Agreement Between
[ ],
Bankers Trust Company and
American Finance Group, Inc.
dated as of __________ __, 199_)
The databases, computer programs, screen formats, screen
designs, report formats, interactive design techniques, and other information
furnished to the Servicer by the Custodian as part of the services constitute
copyrighted, trade secret or proprietary information of substantial value to the
Custodian. Such databases, programs and other information, other than such
information as has been provided by or on behalf of the Servicer are
collectively referred to below as "Proprietary Information". The Servicer agrees
that it shall treat all Proprietary Information as proprietary to the Custodian
and that it shall not divulge any Proprietary Information to any person or
organization except as is expressly permitted hereunder. Proprietary Information
is furnished "as is" without warranty. Without limiting the foregoing, the
Servicer agrees for itself and its employees and agents:
(1) to use such programs and databases constituting proprietary
information (i) solely on the Custodian's Computers or designated Servicer
devices, (ii) solely from devices at Servicer locations designated by the
Servicer on the Appendix attached hereto and (iii) solely in accordance with
Custodian's applicable user documentation;
(2) to refrain from copying or duplicating in any way (other than in
the normal course of performing processing on the Custodian's computers) any
part of any Proprietary Information, and to return any Proprietary Information
upon termination of this Agreement;
(3) to refrain from obtaining unauthorized access to any programs, data
or other information to which the Servicer is not entitled, and if such access
is accidently obtained, to respect and safeguard the same as Proprietary
Information;
(4) to refrain from causing or allowing proprietary information
transmitted from the Custodian's computer to the Servicer's terminal to be
transmitted to another computer, terminal or other device for other than the
Servicer's own use, except upon prior approval of Custodian;
(5) that the Servicer shall have access to only those authorized
transactions as set forth on the Appendix attached hereto; and
(6) to honor all reasonable written requests made by the Custodian to
protect at the Custodian's expense the rights of the Custodian in Proprietary
Information at common law, under the Federal copyright statute and under other
Federal and state statutes.
(7) to designate a duly authorized individual to serve as the Data
Security Administrator in accordance with the Designation Form annexed hereto.
(8) to request a unique user ID for each separate user. The request
must be made in writing to Custodian's data security manager.
(9) to request immediate deactivation of a user ID or deletion of
access when no longer needed or when Servicer believes security has been
violated.
(10) to limit knowledge of user IDs to only authorized individuals.
(11) to not disclose passwords directly or indirectly to anyone,
including other employees of the Servicer.
(12) to not store user IDs or passwords in any computer file, as part
of an "automatic logon" procedure.
(13) to select unique passwords which cannot be easily guessed.
(14) to change the password every 30 days, or when the Servicer
believes the password might have become known to others, or when the Servicer
suspects a possible security violation.
(15) to not recycle or reuse passwords.
(16) to refrain from modifying, enhancing or otherwise creating
derivative works based upon the Proprietary Information, nor shall the Servicer
reverse engineer, decompile or otherwise attempt to secure the source code for
all or any part of the Proprietary Information.
EXHIBIT 8
DATA SECURITY ADMINISTRATOR DESIGNATION FORM
(Attached to and Made a Part of the
Custodian Agreement Between
[ ],
Bankers Trust Company and
American Finance Group, Inc.
dated as of __________ __, 199_)
Date: _______________ __, 199_
[Custodian]
[Address]
Gentlemen:
As _______________ (title of officer or other authorized official) of
_________________________ (Name of Company), I hereby certify that the following
individual has been duly authorized by the Board of Directors or other governing
body of the Company (or designated by an official of the Company who has been
duly authorized by said Board of Directors or other governing body to make such
designation), to serve as the Data Security Administrator, as such term is
defined in the Data Access Operating Procedures:
Name Signature
---------------------------- -----------------------------------
It is understood and agreed that the above-named individual is the
authorized recipient on behalf of the Company of (1) all documents and
correspondence assigning, confirming or otherwise containing company and user
identification codes, passwords, mnemonics, tastkeys, encryption keys and other
security devices, and (2) all other notices, documents and correspondence from
State Street respecting the data access security systems, including, without
limitation, any changes or supplements to the Data Accessing Operating
Procedures.
IN WITNESS WHEREOF, I have executed this document and affixed the seal
of the Company on this ____ day of __________, 19__.
-----------------------------------
(Signature of officer or other
authorized official)
-----------------------------------
(Title)
* In case the first signing officer is a Data Security Administrator,
this form must be signed by a second officer.
-----------------------------------
(Signature of other officer or
other authorized official)*
-----------------------------------
(Title)
* In case the first signing officer is a Data Security Administrator,
this form must be signed by a second officer.
EXHIBIT B
to
POOLING AND SERVICING AGREEMENT AND INDENTURE OF TRUST
FORM OF TRANSFER AGREEMENT OF
ADDITIONAL LEASES
ASSIGNMENT No. ____ OF ADDITIONAL LEASES, dated as of
_______________________, _____ (this "Assignment"), by and between AFG Credit
Corporation, a Delaware corporation (the "Transferor"), to Bankers Trust
Company, a banking corporation organized and existing under the laws of New York
(the "Trustee") pursuant to the Pooling and Servicing Agreement and Indenture of
Trust referred to below.
W I T N E S S E T H :
WHEREAS, the Transferor, American Finance Group, Inc., as
Servicer, and the Trustee are parties to the Pooling and Servicing Agreement and
Indenture of Trust, dated as of July 1, 1995 (hereinafter as such agreement may
have been, or may from time to time be, amended, supplemented or otherwise
modified, the "Pooling and Servicing Agreement");
WHEREAS, pursuant to the Pooling and Servicing Agreement, the
Transferor wishes to designate Additional Leases of the Transferor to be
included as Included Leases and to convey such Additional Leases, the related
Equipment and all monies due or to become due under such Additional Leases after
the Additional Cut Off Date, to the Trust as part of the corpus of the Trust (as
each such term is defined in the Pooling and Servicing Agreement); and
WHEREAS, the Trustee on behalf of the Trust is willing to
accept such designation and conveyance subject to the terms and conditions
hereof;
NOW THEREFORE, the Transferor and the Trustee hereby agree as
follows:
1. Defined Terms. All terms defined in the Pooling and
Servicing Agreement and used herein shall have such defined meanings when used
herein, unless otherwise defined herein.
"Additional Cut Off Date" shall mean, with respect to
Additional Leases designated hereby, ___________________, 19___ (which
shall be the last day of a Monthly Period).
"Addition Date" shall mean, with respect to the Additional
Leases designated hereby, ___________________, 19 ___.
"Notice Date" shall mean, with respect to the Additional
Leases designated hereby, _______________, 19__ (which shall be a date
on or prior to the fifth Business Day prior to the Addition Date).
2. Designation of Additional Leases. The Transferor shall
deliver or cause to be delivered to the Trustee not later than the Addition
Date, a computer file or microfiche or written list containing a true and
complete list of all Additional Leases then being transferred to the Trust,
identified by account number and by the Discounted Lease Balance as of the
related Additional Cut Off Date. Such list shall be marked as Schedule 1 to this
Assignment, delivered to the Trustee as confidential and proprietary and, as of
the Addition Date, shall be incorporated into and made a part of this
Assignment.
3. Transfer of Additional Leases. (a) The Transferor does
hereby transfer, assign and set-over to the Trust for the benefit of the
Noteholders and the Holder of the Transferor Interest, on and after the Addition
Date, all right, title and interest of the Transferor in and to the Additional
Leases designated hereby, including all monies due or to become due thereunder
after the related Additional Cut Off Date, all Collections in respect thereof,
the related Equipment, the related Lease Files, the Insurance Policies and any
Insurance Proceeds related to the Additional Leases, and all income or proceeds
of the foregoing or relating thereto (collectively, the "Additional Trust
Assets").
(b) The Trustee hereby grants to the Collateral Trustee for
the benefit of the Noteholders a security interest in all of the Trustee's
right, title and interest in, to and under the Additional Trust Assets to secure
the payment of principal and interest on, and any other amounts owing in respect
of, the Notes, and to secure compliance with the provisions of the Pooling and
Servicing Agreement, all as provided in the Pooling and Servicing Agreement.
(c) In connection with such transfer, unless a financing
statement covering such Additional Trust Assets has heretofore been filed, the
Transferor agrees to record and file, at its own expense, financing statements
(including any continuation statements with respect to such financing statements
when applicable) with respect to the Additional Leases meeting the requirements
of applicable state law in such manner and in such jurisdictions as are
necessary to perfect the transfer of the Additional Leases from Transferor to
the Trust and (subject to the limitations set forth below) to perfect the
interest of the Trust in the related Equipment to the extent the same may be
viewed as inventory of the Transferor, and to deliver file-stamped copies of
such financing statements or continuation statements or other evidence of such
filings (which may, for purposes of this Section 3, consist of telephone
confirmations of such filings with the file-stamped copy to be provided to the
Trustee as soon as practicable after receipt thereof by the Transferor) to the
Trustee on or prior to the Addition Date and, in the case of any continuation
statements filed pursuant to this Section 3, as soon as practicable after
receipt thereof by the Transferor. Notwithstanding the foregoing, the Transferor
shall only be obligated to record financing statements with respect to the
Equipment in the Filing Locations and will not be required to deliver the Lease
Files to the Trustee but instead the Lease Files will be held by the Servicer as
custodian for the Trustee in accordance with the provisions of the Pooling and
Servicing Agreement.
(d) In connection with such transfer, the Transferor further
agrees, at its own expense, on or prior to the date of this Assignment, to
indicate in its books and records, including the appropriate computer files
relating to the Additional Leases, that such Additional Leases have been
transferred to the Trust pursuant to this Assignment for the benefit of the
Noteholders and the Holder of the Transferor Interest and to stamp such Leases
or otherwise xxxx such Leases with a legend to the effect that such Leases have
been transferred to the Trust for the benefit of the Noteholders and the Holder
of the Transferor Interest pursuant hereto.
(e) In connection with such transfer, the Transferor further
agrees, at its own expense, on or prior to the Addition Date, to deliver to the
Custodian the related Lease Files to be held by the Custodian in accordance with
the Custodian Agreement.
(f) In connection with such transfer, the Transferor further
agrees, at its own expense, on or prior to the Addition Date, with respect to
any item of related Equipment with respect to which title thereto or a security
interest therein is required to be noted on a certificate of title or otherwise
recorded, to take such steps as shall be necessary or appropriate, in the
reasonable judgement of the Servicer, or the Trustee, to fully vest all right,
title and interest in such Equipment in the Trustee.
(g) In connection with the grant of a security interest by the
Trustee to the Collateral Trustee set forth in Section 3(b) above, the Servicer
agrees that it will, on behalf of the Trustee, record and file, at its own
expense, financing statements (including any continuation statements with
respect to such financing statements when applicable) with respect to the
Additional Leases meeting the requirements of applicable state law in such
manner and in such jurisdictions as are necessary to perfect the security
interest of the Collateral Trustee in the Additional Leases, and to deliver
file-stamped copies of such financing statements or continuation statements or
other evidence of such filings (which may, for purposes of this Section 3,
consist of telephone confirmations of such filings with the file-stamped copy to
be provided to the Collateral Trustee as soon as practicable after receipt
thereof by the Servicer) to the
Collateral Trustee on or prior to the Addition Date. Notwithstanding the
foregoing, the Servicer shall only be obligated to record financing statements
with respect to the Equipment in the Filing Locations.
4. Acceptance by Trustee; Acknowledgement by Collateral
Trustee. (a) The Trustee hereby acknowledges its acceptance, on behalf of the
Trust, of all right, title and interest previously held by the Transferor in and
to the Additional Trust Assets, and declares that it shall maintain such right,
title and interest, upon the trust set forth herein and in accordance with the
terms of the Pooling and Servicing Agreement, for the benefit of all Noteholders
and the Holder of the Transferor Interest. The Trustee further acknowledges
that, prior to or contemporaneously with the execution and delivery of this
Assignment, the Transferor delivered to the Trustee the computer file or
microfiche or written list described in Section 2 of this Assignment.
(b) The Collateral Trustee hereby acknowledges its acceptance,
on behalf of the Noteholders, of the grant by the Trustee of a security interest
in the Additional Trust Assets.
5. Representations and Warranties of the Transferor. The
Transferor hereby represents and warrants to the Trust as of the Addition Date:
(a) Legal Valid and Binding Obligation. This Assignment
constitutes a legal, valid and binding obligation of the Transferor,
enforceable against the Transferor in accordance with its terms, except
as such enforceability may be limited by Debtor Relief Laws and except
as such enforceability may be limited by general principles of equity
(whether considered in a suit at law or in equity);
(b) Schedule 1. (i) Schedule 1 to this Assignment and the
computer file or microfiche or written list delivered pursuant to
Section 2 of this Assignment is an accurate and complete listing in all
material respects of all the Additional Leases as of the Addition Date
and the information contained therein with respect to the identity of
such Additional Leases is true and correct in all material respects as
of the Addition Date, (ii) each Additional Lease is an Eligible Lease,
(iii) each Additional Lease and the related Equipment is being
transferred to the Trust free and clear of any Lien of any Person
(other than Permitted Liens) and in compliance, in all material
respects, with all Requirements of Law applicable to Transferor or the
Originator thereof, and (iv) with respect to each Additional Lease, all
material consents, licenses, approvals or authorizations of or
registrations or declarations with any Governmental Authority required
to be obtained, effected or given by the Transferor in connection with
the transfer of such Lease and the related Equipment to
the Trust have been duly obtained, effected or given and are in full
force and effect.
(c) Portfolio Parameters. The transfer of the Additional
Leases to the Trust pursuant to this Assignment will not cause the
Portfolio Parameters to be untrue;
(d) Solvency. The Transferor is not insolvent and
will not be rendered insolvent by transferring any the
Additional Lease to the Trust;
(e) Security Interest. This Assignment constitutes either (A)
a valid transfer to the Trust of all right, title and interest of
Transferor in, to and under the Additional Trust Assets, and such
property will be held by the Trust free and clear of any Lien of any
Person claiming through or under the Transferor or its Affiliates,
except for (w) the interests of the Trustee and the Noteholders, (x)
Permitted Liens, and (y) the interest of the Transferor as holder of
the Transferor Interest or (B) a grant of a security interest (as
defined in the UCC as in effect in the State of California) in such
property to the Trust. Upon the filing of the financing statements
described in Section 3, the Trust shall have a first priority perfected
security interest in such property, subject only to Permitted Liens.
Neither Transferor nor any Person claiming through or under Transferor
shall have any claim to or interest in the Collection Account, the
Excess Funding Account or any Series Account, except for the
Transferor's right to receive the Excess Funding Account or any Series
Account as provided in the Pooling and Servicing Agreement or any
Supplement, in accordance with the provisions of Article IV of the
Pooling and Servicing Agreement, and, if this Assignment constitutes
the grant of a security interest in such property, except for the
interest of Transferor in such property as a debtor for purposes of the
UCC as in effect in the State of California.
(f) Notice has been given to each Rating Agency and to each
Enhancement Provider to the extent required under Section 2.6(b) of the
Pooling and Servicing Agreement.
6. Conditions Precedent. The acceptance of the Trustee set
forth in Section 4 above and the amendment of the Pooling and Servicing
Agreement set forth in Section 7 below are subject to the satisfaction, on or
prior to the Addition Date, of the following conditions precedent:
(a) Notice. On or prior to the Notice Date, the Transferor
shall have given the written notice specified in Section 2.6(b)(i) of
the Pooling and Servicing Agreement to each of the parties specified in
Section 2.6(b)(i) of the Pooling Servicing Agreement.
(b) Deposit of Collections. The Transferor shall have
deposited (i) in the Collection Account, Collections with respect to
the Additional Leases designated on Schedule 1 hereto since the
Additional Cut Off Date and (B) in the Tax Escrow Account, any Tax
Collections received in respect of such Leases that have not been
disbursed to the relevant Governmental Authority.
(c) Officer's Certificate. The Transferor shall have delivered
to the Trustee an Officer's Certificate of a Vice President or more
senior officer, certifying the following items: (i) all requirements
set forth in Section 2.6 of the Pooling and Servicing Agreement for
designating Additional Leases and conveying the Additional Trust Assets
have been satisfied; (ii) each of the representations and warranties
made by the Transferor in Section 5 herein and, with respect to the
Additional Leases, in Section 2.4 of the Pooling and Servicing
Agreement, is true and correct as of the Addition Date. The Trustee may
conclusively rely on such Officer's Certificate, shall have no duty to
make inquiries with regard to the matters set forth therein, and shall
incur no liability in so relying.
(d) Opinion of Counsel. The Transferor shall have delivered to
the Trustee an Opinion of Counsel with respect to the Additional Leases
designated hereby substantially in the form of Exhibit C to the Pooling
and Servicing Agreement.
(e) Additional Information. The Transferor shall have
delivered to the Trustee such information as was reasonably requested
by the Trustee to satisfy itself as to the accuracy of the
representation and warranty set forth in Section 5(c) of this
Assignment.
7. Amendment of the Pooling and Servicing Agreement. The
Pooling and Servicing Agreement is hereby amended to provide that all references
therein to the "Pooling and Servicing Agreement", to "this Agreement" and
"herein" shall be deemed from and after the Addition Date to be a reference to
the Pooling and Servicing Agreement as supplemented by this Assignment. Except
as expressly amended hereby, all of the representations, warranties, terms,
covenants and conditions of the Pooling and Servicing Agreement shall remain
unamended and shall continue to be, and shall remain, in full force and effect
in accordance with their terms and except as expressly provided herein shall not
constitute or be deemed to constitute a waiver of compliance with or a consent
to noncompliance with any term or provision of the Pooling and Servicing
Agreement.
8. Counterparts. This Assignment may be executed in two or
more counterparts (and by different parties on separate counterparts), each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
9. GOVERNING LAW. THIS ASSIGNMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS, PROVIDED, HOWEVER, THAT THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
TRUSTEE SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
IN WITNESS WHEREOF, the undersigned have caused this
Assignment of Additional Leases to be duly executed and delivered by their
respective duly authorized officers on the day and year first above written.
AFG CREDIT CORPORATION
By:___________________________
Title:________________________
BANKERS TRUST COMPANY,
as Trustee
By:___________________________
Title:________________________
Schedule 1
to Assignment of Additional Leases
ADDITIONAL LEASES
As contained on an Appropriately Labeled Computer File or Microfiche Delivered
Contemporaneously with this Assignment.
Account Number: ___________
Discounted Lease Balance as of the related
Additional Cut Off Date: $___________
EXHIBIT C
to
POOLING AND SERVICING AGREEMENT AND INDENTURE OF TRUST
PROVISIONS TO BE INCLUDED IN
OPINION OF COUNSEL TO BE
DELIVERED PURSUANT TO
SUBSECTION 2.6(b)(viii) OF THE
POOLING AND SERVICING AGREEMENT AND INDENTURE OF TRUST
The opinions set forth below may be subject to certain
qualifications, assumptions, limitations and exceptions taken or made in the
opinion of the Transferor's counsel with respect to similar matters delivered on
the Initial Closing Date.
(a) The Assignment has been duly authorized, executed and delivered by
the Transferor and constitutes the legal, valid and binding agreement of the
Transferor, enforceable against Transferor in accordance with its terms.
(b) If the Assignment constitutes a valid transfer, assignment and sale
to the Trust of the Additional Leases and the related Equipment (collectively,
the "Additional Assets"), based on the Financing Statement having been filed in
the office of the California Secretary of State, such transfer and assignment
transfers all of the right, title and interest of Transferor in and to such
Additional Assets and the Proceeds thereof to the Trust, free and clear of any
Liens of any person claiming through or under Transferor now existing or
hereafter created, subject to (i) Permitted Liens, (ii) the interest of
Transferor as holder of the Transferor Interest, (iii) AFG's right to receive
servicing fees in its capacity as the Servicer, and (iv) the matters set forth
below. With respect to Additional Assets or the Proceeds thereof represented by
Chattel Paper, Instruments or Money, the interest of the Trustee would be
subject to the matters set forth in clauses (i), (ii)(B) and (ii)(D) of section
(e) of this opinion (with respect to Instruments), clauses (ii)(B) and (ii)(C)
of section (e) of this opinion (with respect to Chattel Paper) or clauses (i)
and (ii)(B) of section (e) of this opinion (with respect to Money). With respect
to Additional Assets or the Proceeds thereof which are represented by
Instruments, the transferee would not have the rights of a holder in due course
unless transfer is effected by negotiation and delivery in accordance with
Sections 3201, 3203 and 3204 of the Code.
(c) The interest acquired by the Trustee will be enforceable against
subsequent creditors of or purchasers from Transferor. We note, however, that
unless the Lessee in respect of an Additional Lease has received notice of the
transfer to the Trust, bona fide payments made by such Lessee to Transferor, or
to a subsequent assignee of such Additional Lease as to which the Lessee has
received notice of such assignment, will discharge such Lessee's obligations to
the extent of such payment, and such
payment will be recoverable only from Transferor, which recovery may be impaired
in a subsequent insolvency of Transferor. With respect to the foregoing, we
further note that under Section 3.2(e) of the Pooling and Servicing Agreement,
Lessees are to be directed to deliver lease payments to the Lockbox.
(d) The opinions in this section (a) shall apply if and to the extent
that the Assignment does not constitute a valid transfer, assignment and sale of
the Additional Assets. In that case, the Pooling and Servicing Agreement creates
a valid security interest (as defined in the Code) in favor of the Trustee, with
respect to the Additional Assets and the Proceeds thereof, for the benefit of
the Noteholders and the Holder of the Transfer or Interest, securing the
obligations of Transferor under the Pooling and Servicing Agreement. The
Financing Statement having been filed in the office of the California Secretary
of State, such security interest constitutes a perfected security interest in
the Additional Assets and the Proceeds thereof.
(e) Based on the Financing Statement having been filed in the office of
the California Secretary of State, such security interest is enforceable as such
against, and is prior to, creditors of and purchasers from Transferor, and the
Trustee will have the rights of a secured creditor properly perfected under
state law in a bankruptcy or insolvency proceeding or in the event of the
appointment of a receiver or trustee in bankruptcy with respect to Transferor,
except, in each case, (i) with respect to Additional Assets or the Proceeds
thereof evidenced by Instruments (as defined in Section 9105(1)(i) of the Code),
or Money, which in either case are not in the possession of the Trustee; and
(ii) as priority may be subject to (A) liens under Section 4210 of the Code
(relating to the security interest of a collecting bank), (B) claims of the
United States under the federal priority statute (31 U.S.C. ss.3713), (C) with
respect to Additional Assets or the Proceeds thereof represented by Chattel
Paper or Instruments, the interest of a purchaser of such Chattel Paper or
Instruments under Section 9308 of the Code (although we note that, pursuant to
Section 2.1 of the Pooling and Servicing Agreement, Transferor will deliver the
Lease Files to the Custodian), and (D) with respect to Additional Assets or the
Proceeds thereof evidenced by Instruments, security interests of third parties
perfected for 21 days under Section 9304(4) or (5)(b) of the Code.
(f) No further filing or other action, other than the execution and
delivery of the Assignment by the parties thereto and the filing of the
Financing Statement in the office of the California Secretary of State, is
necessary to protect the Trustee's ownership interest or perfect or continue the
perfected status under California law of the security interest of the Trustee
for the benefit of the Noteholders and the Holder of the Transferor Interest in
the Additional Assets and the Proceeds thereof against third parties, except
that appropriate
continuation statements must be filed with respect to the Financing Statement at
five-year intervals to continue to protect or continue the perfection of such
interests.
EXHIBIT D
to
POOLING AND SERVICING AGREEMENT AND INDENTURE OF TRUST
FORM OF RETRANSFER AGREEMENT
TRANSFER No. ____ OF LEASES (this "Retransfer Agreement"),
dated as of _________________, 19 ___, by and between AFG CREDIT CORPORATION, a
Delaware corporation (the "Transferor"), and BANKERS TRUST COMPANY, a banking
corporation organized and existing under the laws of New York (the "Trustee"),
pursuant to the Pooling and Servicing Agreement and Indenture of Trust referred
to below.
W I T N E S S E T H :
WHEREAS, the Transferor, American Finance Group, Inc., as
Servicer, and the Trustee are parties to the Pooling and Servicing Agreement and
Indenture of Trust, dated as of July 1, 1995 (hereinafter as such agreement may
have been, or may from time to time be, amended, supplemented or otherwise
modified, the "Pooling and Servicing Agreement");
WHEREAS, pursuant to the Pooling and Servicing Agreement, the
Transferor wishes to remove certain Included Leases and the related Equipment
from the Trust (the "Removed Leases") and to cause the Trustee to reconvey the
Removed Leases, the related Equipment and the other Trust Assets relating to
such Removed Leases, from the Trust to the Transferor (as each such term is
defined in the Pooling and Servicing Agreement); and
WHEREAS, the Trustee on behalf of the Trust is willing to
accept such designation and to reconvey the Removed Leases and the related
Equipment subject to the terms and conditions hereof:
NOW THEREFORE, the Transferor and the Trustee hereby agree as
follows:
1. Defined Terms. All terms defined in the Pooling and
Servicing Agreement and used herein shall have such defined meanings when used
herein, unless otherwise defined herein.
"Removal Date" shall mean, with respect to the Removed
Leases designated hereby, , 199__.
"Removal Notice Date" shall mean, with respect to the Removed
Accounts designated hereby, _________, 199__ (which shall be a date on
or prior to the fifth Business Day prior
to the Removal Date).
2. Designation of Removed Leases. The Transferor shall deliver
to the Trustee a computer file, microfiche or written list containing a true and
complete schedule identifying all Removed Leases specifying for each such
Removed Lease, as of the Removal Notice Date, its account number and the
Discounted Lease Balance thereof. Such list shall be marked as Schedule 1 to
this Retransfer Agreement and shall be incorporated into and made a part of this
Retransfer Agreement as of the Removal Date.
3. Transfer of Leases. (a) The Trustee does hereby transfer,
assign and set-over to the Transferor, without representation, warranty or
recourse, all right, title and interest of the Trust in and to the assets in and
arising in connection with the Removed Leases designated hereby, including all
monies due or to become due thereunder and all Collections in respect thereof,
the related Equipment, the related Lease Files, the Insurance Policies and any
Insurance Proceeds related to the Removed Leases, and all income or proceeds of
the foregoing or relating thereto.
(b) In connection with such transfer, the Trustee agrees to
execute and deliver to the Transferor on or prior to the date of this Retransfer
Agreement, a termination statement or partial release with respect to the
Removed Leases designated hereby (which may be a single termination statement
with respect to all such property) evidencing the reassignment and release by
the Trust of its lien on and interest in the Removed Leases and the related
Equipment, and meeting the requirements of applicable state law, in such manner
and such jurisdictions as are necessary to evidence such reassignment.
4. Acceptance by Trustee. The Trustee hereby acknowledges
that, prior to or contemporaneously with the execution and delivery of this
Retransfer Agreement, the Transferor delivered to the Trustee the computer file
or microfiche or written list described in Section 2 of this Retransfer
Agreement.
5. Representations and Warranties of the Transferor. The
Transferor hereby represents and warrants to the Trust as of the Removal Date:
(a) Legal Valid and Binding Obligation. This Retransfer
Agreement constitutes a legal, valid and binding obligation of the
Transferor, enforceable against the Transferor in accordance with its
terms, except as such enforceability may be limited by Debtor Relief
Laws and except as such enforceability may be limited by general
principles of equity (whether considered in a suit at law or in
equity);
(b) List of Removed Leases. The computer file or microfiche or
written list described in Section 2 of this Retransfer Agreement, as of
the Removal Notice Date,
complies in all material respects with the requirements of Section
2.8(b)(ii) of the Pooling and Servicing Agreement;
(c) Selection Procedures. No selection procedure used by the
Transferor which is adverse to the interests of the Noteholders was
utilized in selecting the Removed Leases designated hereby; and
(d) Solvency. As of the Removal Notice Date and the Removal
Date, the Transferor is not insolvent and the Transferor has no present
intention of seeking protection under any Debtor Relief Laws.
6. Conditions Precedent. The acceptance by the Trustee set
forth in Section 4 above and the amendment of the Pooling and Servicing
Agreement set forth in Section 7 hereof is subject to the satisfaction, on or
prior to the Removal Date, of the following conditions precedent:
(a) Officers' Certificate. The Transferor shall have delivered
to the Trustee and each Enhancement Provider an Officers' Certificate of an
officer of the Transferor certifying that (i) as of the Removal Date, all
requirements set forth in Section 2.8(b) of the Pooling and Servicing Agreement
for designating Removed Leases and reconveying such Removed Leases and in
Section 6 hereof, have been satisfied, and (ii) each of the representations and
warranties made by the Transferor in Section 5 hereof is true and correct as of
the Removal Date. The Trustee may conclusively rely on such Officer's
Certificate, shall have no duty to make inquiries with regard to the matters set
forth therein and shall incur no liability in so relying.
(b) The removal of any Removed Leases on any Removal Date
shall not cause a Pay Out Event to occur, or an event which with notice or lapse
of time or both would constitute a Pay Out Event or cause the Portfolio
Parameters to be untrue.
(c) Any Removed Lease shall not be allocated to an Amortizing
Pool (unless such Lease is substituted for in accordance with Section 2.7 of the
Pooling and Servicing Agreement).
(d) As of the Removal Notice Date and the Removal Date, the
Asset Base shall not be less than the Aggregate Adjusted Principal Amount.
7. Amendment of the Pooling and Servicing Agreement. The
Pooling and Servicing Agreement is hereby amended to provide that all references
therein to the "Pooling and Servicing Agreement", to "this Agreement" and
"herein" shall be deemed from and after the Removal Date to be a reference to
the Pooling and Servicing Agreement as supplemented by this Retransfer
Agreement. Except as expressly amended hereby, all of the representations,
warranties, terms, covenants and conditions of the Pooling and
Servicing Agreement shall remain unamended and shall continue to be, and shall
remain, in full force and effect in accordance with its terms and except as
expressly provided herein shall not constitute or be deemed to constitute a
waiver of compliance with or a consent to non-compliance with any term or
provision of the Pooling and Servicing Agreement.
8. Counterparts. This Retransfer Agreement may be executed in
two or more counterparts (and by different parties on separate counterparts),
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
9. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS, PROVIDED, HOWEVER, THAT THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
TRUSTEE SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
IN WITNESS WHEREOF, the undersigned have caused this
Retransfer Agreement to be duly executed and delivered by their respective duly
authorized officers on the day and year first above written.
AFG CREDIT CORPORATION
By:___________________________
Title:________________________
BANKERS TRUST COMPANY,
as Trustee
By:___________________________
Title:________________________
Schedule 1
to Retransfer Agreement
REMOVED LEASES
As contained on an Appropriately Labeled Computer File or Microfiche Delivered
Contemporaneously with this Agreement.
Account Number: ___________
Discounted Lease Balance as of the related
Removal Notice Date: $___________
EXHIBIT E
to
POOLING AND SERVICING AGREEMENT AND INDENTURE OF TRUST
FORM OF LOCKBOX AGREEMENT
THIS LOCKBOX AGREEMENT, dated as of __________ __, 199_, is
made between [ ], as Lockbox Processor (the "Lockbox Processor"), BANKERS TRUST
COMPANY, a New York Banking corporation, as Collateral Trustee (the "Collateral
Trustee"), AFG CREDIT CORPORATION, a Delaware corporation (the "Company") and
AMERICAN FINANCE GROUP, INC, a Delaware Corporation ("AFG").
WHEREAS, the Company has agreed to purchase certain leases
(the "Leases") and related equipment from time to time from AFG pursuant to the
Asset Purchase Agreement, dated as of July 1, 1995, between AFG and the Company;
WHEREAS, the Company has in turn transferred the Leases and
the related equipment to the AFG Master Trust (the "Trust") pursuant to the
Pooling and Servicing Agreement and Indenture of Trust, dated as of July 1, 1995
(as amended or otherwise modified from time to time, the "Pooling and Servicing
Agreement"), among the Company, AFG, as servicer (in such capacity, the
"Servicer"), and Bankers Trust Company, as Trustee and as Collateral Trustee;
WHEREAS, on or prior to the date of this Agreement, the
Servicer, pursuant to the terms of the Pooling and Servicing Agreement, has
instructed the lessees under the Leases to make all payments with respect to
such Leases to a Lockbox (as such term is defined in the Pooling and Servicing
Agreement); and
WHEREAS, the Company has assigned all of its right, title and
interest in and to the lockbox with the post office box listed in item 1 of
Schedule A hereto (the "Lockbox") and the lockbox account established pursuant
to Section 3.1 hereof and identified in item 2 of Schedule A hereto (the
"Lockbox Account") to the Trust for the benefit of the holders of the notes
issued by the Trust (the "Noteholders") and the holder of the transferor
interest in the Trust (the "Transferor Interest") (as such terms are defined in
the Pooling and Servicing Agreement);
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants herein contained, the parties hereto agree as follows:
ARTICLE I
COLLECTION PROCEDURES
Section 1.1 Access to Lockbox Mail. The Lockbox Processor, its
employees and agents shall have unrestricted and exclusive access to the mail
(including registered, insured or COD mail) directed to the Lockbox.
Section 1.2 Remittance Collection. The Lockbox Processor shall
collect the contents of the Lockbox on each day on which the Lockbox Processor
is open for normal business (a "Business Day"). The Lockbox Processor shall open
the envelopes and other contents of the Lockbox, remove and inspect the checks
and enclosures and process the checks and deposit the cash and enclosures as
provided herein; provided however, that any bulk items may be refused at the
post office and returned to sender.
Section 1.3 Remittances From AFG. Payments in respect of the
Leases that are made directly to the Company or AFG and deposited by the Company
or AFG, as the case may be, into the Lockbox Account shall be processed in
accordance with Articles II and III hereof.
Section 1.4 Acceptable Checks. Checks collected in accordance
with Sections 1.2 and 1.3 and conforming to the following requirements shall be
considered "Acceptable Checks" and processed in accordance with Article II
hereof:
(a) The name of the payee on the checks shall be
American Finance Group, Inc. or AFG Credit Corporation or a reasonable variation
thereof. If the name of the payee is missing on the payee line the Lockbox
Processor shall write or stamp "drawee refer to maker" on the payee line and
process the check.
(b) In the case of a missing date on a check the
Lockbox Processor shall either write in the postmark date or insert the current
date with a date-stamp.
(c) If checks written in numerical amount differ
from the written amount the Lockbox Processor shall use the written amount. If
the correct amount of the check cannot otherwise be determined the check shall
not be deposited.
(d) A check bearing a paid-in-full or other
similar restrictive notation shall not be deposited by the Lockbox Processor.
The Lockbox Processor shall not be required to examine the reverse sides of
checks for any restrictive notation.
(e) Items collected from the Lockbox and
denominated in a foreign currency or drawn on a foreign bank
shall be processed on a collection basis only. Credit on such
foreign currency shall be posted to the Lockbox Account upon receipt of paid
collections less all applicable fees and charges.
ARTICLE II
PROCESSING ACCEPTABLE CHECKS
Section 2.1 Endorsement. The following endorsement shall be
applied to each Acceptable Check collected in accordance with Sections 1.2 and
1.3 hereof:
======================
Absence of payee endorsement guaranteed
======================
Section 2.2 Deposit of Collections. Each Acceptable Check
shall be deposited into the Lockbox Account on each Business Day. The collection
of the checks, money, statements, invoices, communications and other documents
accompanying the checks from the Lockbox shall create a bailment, and the
xxxxxx- bailee relationship shall continue until such items are received by the
banking clearing house of the Lockbox Processor and are received and credited to
the Lockbox Account at which time the Collateral Trustee, on behalf of the
Noteholders and the holder of the Transferor Interest, as assignee of the
Company, shall become a depositor of the Lockbox Processor with respect to the
Acceptable Checks. The xxxxxx-bailee relationship shall also apply to the
contents of the Lockbox other than money, checks, drafts and other orders for
the payment of money. The collection of the Acceptable Checks shall be governed
(i) by the Uniform Commercial Code as adopted in the state of the location of
the Lockbox and Lockbox Account and (ii) by this Agreement.
Section 2.3 Remittance Detail and Documentation. Prior to 1:00
p.m., Eastern Standard Time, on each Business Day, the Lockbox Processor shall
make available for pick-up by the Servicer at the address specified in item 3(a)
of Schedule A hereto the package of material described below, which package
shall be addressed to the address specified in item 3(b). This package shall
include any checks that are not Acceptable Checks, along with all statements,
invoices, communications and other documents accompanying such checks, and all
statements, invoices, communications and other documents accompanying the
Acceptable Checks collected in the Lockbox, along with photocopies of each
Acceptable Check, a detail deposit listing, a summary credit advice for the
day's total deposit, the checks returned pursuant to Section 3.5 hereof and all
other contents of the Lockbox.
Section 2.4 Preparation of Package. The package of
material described in Section 2.3 shall be prepared in the order
of receipt without regard to sorting or grouping in alphabetical
order or otherwise. Collections received from the Lockbox on any
Business Day that are not processed prior to the deadline for preparing the
package of materials described in Section 2.3 hereof shall be processed on the
next Business Day and reported with the next day's collections.
Section 2.5 Telephone Confirmation; Transfer of Funds. Prior
to 1:00 p.m., Eastern Standard Time, on each Business Day, the Lockbox Processor
shall by telephone provide verbal confirmation of the summary credit advice for
that day's total deposit to the Servicer at the telephone number specified in
item 4 of Schedule A hereto. Prior to 5:00 p.m., Eastern Standard Time, on each
Business Day, the Lockbox Processor shall transfer all available funds (such
availability as set forth in the Lockbox Processor's then current published
Funds Availability Policy (the "Funds Availability Policy") as applicable to
commercial transaction accounts) on deposit in the Lockbox Account to account
number 2000000732936 at First Union National Bank of North Carolina (the
"Collection Account"). The Lockbox Processor hereby agrees to transfer all
available funds on deposit in the Lockbox Account to the Collection Account
within two Business Days of the Lockbox Processor's receipt thereof.
Section 2.6 Record Maintenance. The Lockbox Processor shall
maintain a microfilm or microfiche record of each Acceptable Check deposited in
the Lockbox Account which records shall be retained by the Lockbox Processor for
a period of seven years. A photocopy shall be provided to the Servicer or the
Collateral Trustee upon request (subject to the payment of the Lockbox
Processor's then prevailing charge for such service).
ARTICLE III
ESTABLISHMENT OF LOCKBOX ACCOUNT
Section 3.1 Establishment of Lockbox Account. The Lockbox
Processor has established the Lockbox Account using the account number set forth
in item 2 of Schedule A hereto. The Lockbox Account has been established in the
name of "Bankers Trust Company, as collateral trustee for the AFG Master Trust."
Section 3.2 Exclusive Dominion and Control in Collateral
Trustee. The Collateral Trustee, on behalf of the Noteholders and the holder of
the Transferor Interest, as assignee of the Company, shall have the sole and
exclusive right to withdraw funds or order a transfer of funds from the Lockbox
Account. The Company hereby appoints the Collateral Trustee as the true and
lawful attorney of the Company with full power of substitution, for the purpose
of making any such withdrawal or ordering any such transfer of funds from the
Lockbox Account, which appointment is coupled with an interest and is
irrevocable by the Company. Unless instructed otherwise in writing by the
Collateral Trustee, all funds withdrawn from the Lockbox Account
from time to time may be transferred only to the Collection
Account.
Section 3.3 Statements. The Lockbox Processor shall mail all
statements relating to the activity in the Lockbox Account to the Servicer with
copies to the Collateral Trustee.
Section 3.4 Signature Cards. The Lockbox Processor is
authorized to honor, without inquiry or investigation, all checks, drafts or
other orders for payment of money drawn in the Collateral Trustee's name on the
Lockbox Account when signed by any of the individuals whose specimen signatures
appear on the Signature Card dated _______ __, 199_ (the "Signature Card"). For
purposes of this Section 3.4, items drawn by an authorized signer may be
conclusively deemed by the Lockbox Processor to be signed in the name of the
Collateral Trustee whether or not such signature is accompanied by language
indicating that the drawing is made in a representative capacity. Authorized
signers to the Lockbox Account may be added or deleted by written instructions
sent to the Lockbox Processor and executed by any vice president of the Company,
with the written consent of the Collateral Trustee. If a new authorized signer
is added to the Lockbox Account a new signature card containing the specimen
signature of any new signer shall be submitted to the Lockbox Processor by the
Company, with the written consent of the Collateral Trustee, along with the
written instructions requesting changes to the authorized signers on the Lockbox
Account. Submission of the Signature Card to the Lockbox Processor shall operate
to revoke all previous signature cards relating to the Lockbox Account unless
otherwise noted.
Section 3.5 Returned Checks. The Lockbox Processor shall
notify the Servicer of any check deposited to the Lockbox Account that is
returned unpaid because of insufficient funds or uncollected funds and shall
then follow the Servicer's instructions with respect to such check. The charge
for returned checks will be the prevailing rate as specified by the Lockbox
Processor. The Trust shall reimburse the Lockbox Processor for the amount of any
returned checks if there are not sufficient funds in the Lockbox Account or
Lockbox to reimburse the Lockbox Processor for the returned checks. This right
of indemnification shall survive termination of this Agreement.
Section 3.6 Adjustment and Correction Procedures. The
------------------------------------
Lockbox Processor may reverse any credit or debit it has erroneously made to
the Lockbox Account at any time without prior notice. The Lockbox Processor
shall notify the Servicer promptly by telephone of any such corrections.
Copies of credit or debit advices shall be sent to the Servicer and the
Collateral Trustee by first class mail or by facsimile transmission at the
addresses specified in Section 5.1 hereof. If any processing error shall come
to the attention of any of the Servicer or the Collateral Trustee then such
processing error shall be communicated promptly to the Lockbox Processor. All
transactions, including without
limitation those for which the Lockbox Processor has provided the Servicer with
a receipt, are subject to the Lockbox Processor's final verification. Inquires
by the Servicer, the Company or the Collateral Trustee concerning day-to-day
processing shall be directed to the Lockbox Customer Service Department at the
address set forth in item 5 of Schedule A hereto. Written inquiries shall
include a short description of the problem, deposit date, deposit total and item
position on the adding machine tape.
ARTICLE IV
FEES AND EXPENSES
Section 4.1 Fees For Services. The Company shall pay the
Lockbox Processor the prices or fees for servicing the Lockbox and Lockbox
Account specified in item 6 of Schedule A hereto. The prices or fees specified
therein shall be subject to change upon the Lockbox Processor's giving the
Company thirty days' prior written notice.
Section 4.2 Expenses. All expenses incurred by the Lockbox
Processor directly relating to the Lockbox and the Lockbox Account, such as post
office rental, postage and exchange charges initially paid by the Lockbox
Processor, shall be reimbursed by the Servicer upon receiving notice of such
reimbursement claim. In the event the Company fails to pay the fees and expenses
set forth in this Section 4.2 and such fees and expenses remain past due for 45
days or more, the Lockbox Processor, after written notice of such failure to the
Collateral Trustee, shall have the right to debit the Lockbox Account for such
fees and expenses.
ARTICLE V
MISCELLANEOUS PROVISIONS
Section 5.1 Notice. Informational requests of the Lockbox
Processor concerning collections in the Lockbox and other matters relating to
the Lockbox and the Lockbox Account may be made by telephone to the Servicer at
the telephone number set forth in this Section 5.1. All written notices,
demands, instructions or other communications required or permitted to be given
to or made upon any party hereto shall be in writing and shall be either hand
delivered or mailed by registered or certified mail, postage prepaid, return
receipt requested or by Federal Express or electronic mail and shall be deemed
to be given for purposes of this Agreement when so mailed. Notice given by
Federal Express or electronic mail shall be deemed given twenty-four (24) hours
after communicated. Unless otherwise specified in a notice sent or delivered in
accordance with the foregoing provisions of this section, notices, demands,
instructions and other communications in writing shall be given to or made upon
the respective parties hereto at the respective addresses (or their respective
facsimile) indicated below:
If to the Lockbox Processor:
===================
Attention: ______________
Telephone No.:
Telecopier No.:
with copies to:
If to the Company:
AFG Credit Corporation
00 X. Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Chief Financial Officer
Telephone No.: 000-000-0000
Telecopier No.: 000-000-0000
If to the Servicer:
American Finance Group, Inc.
00 X. Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: [Cash Manager]
Telephone No.: 000-000-0000
Telecopier No.: 000-000-0000
If to the Collateral Trustee:
Bankers Trust Company
Four Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Market
Services
Telephone No.: 000-000-0000
Telecopier No.: 000-000-0000/6392
Any party may change the address to which notices, payments or
communications shall be given by notifying the other party in writing as
provided for in this Section
Section 5.2 Limitation of Liability; Force Majeure. The
Lockbox Processor shall not be liable to the parties hereto or to the Collateral
Trustee with respect to the Lockbox and the Lockbox Account for any acts done or
steps taken or omitted by it in good faith, for any mistake in fact or law, or
for anything it may do or refrain from doing in connection with or as required
by this Agreement except for gross negligence or willful misconduct. The Lockbox
Processor shall not be liable for any loss or claim resulting from any cause
outside of the Lockbox Processor's reasonable control. In no event shall the
Lockbox Processor be liable for incidental or consequential damages. A delay in
or
failure of performance by the Lockbox Processor under this Agreement shall not
constitute a default hereunder if such delay or failure could not be prevented
by the exercise of reasonable diligence by the Lockbox Processor and such delay
or failure was caused by an act of God or the public enemy, acts of declared or
undeclared war, public disorder, rebellion or sabotage, power failures,
epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or
similar causes. The Lockbox Processor shall provide the Collateral Trustee and
the Servicer with prompt telephonic notice of such failure or delay by it.
Section 5.3 Limited Waiver of Setoff; Waiver. Except for
returned items, fees and expenses as provided in Section 3.5 and 4.2 hereof, the
Lockbox Processor agrees that it will not exercise any right of setoff,
counterclaim, banker's lien, security interest or other right or claim against
the Lockbox or the Lockbox Account. The failure of the Lockbox Processor on any
occasion to exercise any right as to the Company or the Lockbox Account not
otherwise waived under this Agreement will not be considered a waiver of the
Lockbox Processor's rights on any other occasion.
Section 5.4 Termination. This Agreement may be terminated by
either the Lockbox Processor or the Company by giving sixty days' prior written
notice to the other parties hereto. Any mail, documentation or checks received
by the Lockbox Processor after the termination date, shall be forwarded to the
party designated by the Company, or if no party is designated, to the Company,
with copies to the Collateral Trustee, for a period of four months subsequent to
the termination date. Termination shall not affect the rights of the parties for
amounts owing or claims arising prior to the termination date. Upon termination
of this Agreement, the Lockbox Processor shall close the Lockbox Account and the
Company shall instruct the United States Postal Service for disposition of all
mail addressed to the Lockbox.
Section 5.5 Modifications. This Agreement and the rights and
obligations of the parties hereunder may not be changed orally but only by an
instrument in writing signed by the parties to this Agreement; provided,
however, no such amendment, supplement or modification will, without the consent
of the Collateral Trustee, have a material adverse effect on the Collateral
Trustee's interest in the Lockbox or the Lockbox Account, including, without
limitation (i) any increase in the time between receipt of a payment and
remittance to the Collection Account, (ii) a change in the payment instructions
to the Collection Account or (iii) a change in the payment instructions to the
Lockbox Processor.
Section 5.6 Third-Party Beneficiaries. This Agreement
shall inure to the benefit of and be binding upon the parties
hereto, and their respective successors and permitted assigns.
Notwithstanding anything contained in this Agreement to the
contrary, this Agreement may not be assigned by the Lockbox Processor without
the prior written consent of the Collateral Trustee.
Section 5.7 No Prior Security Interests. As of the date of
delivery of this Agreement, the Lockbox Processor represents that it has not
received any notice of any claim, lien, security interest or other encumbrance
relating to the Lockbox Account as of the date of this Agreement. Additionally,
the Lockbox Processor hereby represents that no security interest relating to
the Lockbox Account has been created in the Lockbox Processor's favor. This
Agreement shall constitute written notice to the Lockbox Processor of the
security interest in this Lockbox Account granted by the Company to the
Collateral Trustee, on behalf of the Noteholders and the holder of the
Transferor Interest. The Lockbox Processor shall give the Collateral Trustee
prompt notice if the Lockbox Account shall become subject to any writ, judgment,
warrant of attachment, execution or similar process.
Section 5.8 No Bankruptcy Petition. The Lockbox Processor
agrees that it will not institute against, or join any other person in
instituting against, the Company any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any federal or
state bankruptcy or similar law.
Section 5.9 Integration. This Agreement, together with
Schedule A hereto, the Signature Card and the Funds Availability Policy,
constitutes the entire agreement among the parties relating to the Lockbox, the
Lockbox Account and the Lockbox Processor's services relating thereto, and
supersedes all prior understandings, written or oral, concerning the subject
matter discussed herein. This Agreement may not be modified, amended, waived or
supplemented except as provided herein. To the extent there are any
inconsistencies between this Agreement and Schedule A hereto or the Signature
Card, this Agreement shall control.
Section 5.10 Deposit Account. The Lockbox Processor hereby
represents that the Lockbox Account is a "deposit account" as such term is
defined in the Uniform Commercial Code of the jurisdiction in which the Lockbox
and Lockbox Account are located. The Lockbox Processor represents and covenants
that the Lockbox Account is not, and will not be, evidenced by any negotiable
certificates of deposit.
Section 5.11 Severability Clause. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
Section 5.12 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH THE LOCKBOX AND THE LOCKBOX
ACCOUNT ARE LOCATED, WHICH SHALL INITIALLY BE THE STATE OF ___________, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
Section 5.13 Counterparts. This Agreement may be executed in
two or more counterparts (and by different parties on separate counterparts),
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
Section 5.14 Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
IN WITNESS WHEREOF, the Lockbox Processor, the Company, the
Servicer and the Collateral Trustee have caused this Agreement to be executed by
the respective officers thereunto duly authorized as of the day and year first
above written.
[LOCKBOX PROCESSOR]
By:_________________________
Title:
AFG CREDIT CORPORATION
By:_________________________
Title:
AMERICAN FINANCE GROUP, INC.
By:_________________________
Title:
BANKERS TRUST COMPANY
By:_________________________
Title:
SCHEDULE A
(Attached to and Made a Part of the
Lockbox Agreement Between
[ ],
Bankers Trust Company
AFG Credit Corporation and
American Finance Group, Inc.
dated as of _________ __, 199_)
1. Lockbox address:
2. Lockbox Account number:
3. (a) Address at which package of material described in Section 2.3 will
be made available:
(b) Address to which package of material described in Section 2.3 will
be addressed:
American Finance Group, Inc.
00 X. Xxxxxxxxxx Xx.
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxx Xxxxx, tel. 000-000-0000
4. Telephonic confirmation of summary credit advice for the day's total
deposit directed to:
Xxxx Xxxxx, tel. 000-000-0000
5. Lockbox Customer Service Department: 0-000-000-0000
6. Pricing of Services:
EXHIBIT F
to
POOLING AND SERVICING AGREEMENT AND INDENTURE OF TRUST
FORM OF MONTHLY SERVICER'S CERTIFICATE
AFG MASTER TRUST
The undersigned, a duly authorized representative of American
Finance Group, Inc. ("AFG"), as Servicer pursuant to the Pooling and Servicing
Agreement and Indenture of Trust dated as of July 1, 1995 (as amended, modified
or otherwise supplemented from time to time, the "Pooling and Servicing
Agreement") among AFG, AFG Credit Corporation and Bankers Trust Company, as
Trustee and as Collateral Trustee, does hereby certify as follows:
Part I of II
1. Capitalized terms used in this Certificate have their
respective meanings set forth in the Pooling and
Servicing Agreement. This Certificate is delivered
pursuant to Section 3.10(a) of the Pooling and
Servicing Agreement. References herein to certain
sections and subsections are references to the
respective sections and subsections of the Pooling and
Servicing Agreement.
2. AFG is Servicer under the Pooling and Servicing
Agreement.
3. The undersigned is a Servicing Officer.
4. The date of this Certificate is a Determination Date under the
Pooling and Servicing Agreement.
5. The Portfolio Parameters are true in all respects as of the
date of this Certificate (if not true, explain any
deficiencies here).
6. The information set forth in the Chart attached hereto as Part
II of this Certificate is true and correct.
DATE:
-------------------
by:
title:
EXHIBIT G
to
POOLING AND SERVICING AGREEMENT AND INDENTURE OF TRUST
FORM OF ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS'
SERVICING REPORT
AFG MASTER TRUST
American Finance Group, Inc.
00 X. Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
AFG Credit Corporation
----------------------
----------, ------------ -----
Bankers Trust Company, as Trustee
Four Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Gentlemen:
We have applied certain agreed-upon procedures, as discussed
below, to the accounting records of American Finance Group, Inc. (the
"Servicer") and AFG Credit Corporation ("AFG Credit") as of December 31, ____,
solely to assist the Servicer in its responsibilities as Servicer under the
Pooling and Servicing Agreement and Indenture of Trust, dated as of July 1,
1995, among AFG Credit, the Servicer and Bankers Trust Company, as trustee and
as collateral trustee (the "Trustee"), as amended and supplemented from time to
time by supplements thereto (each a "Supplement") entered into by AFG Credit,
the Servicer and the Trustee in conjunction with the issuance of Series of Notes
(the "Pooling and Servicing Agreement"). It is understood that this report is
solely for your information and is not to be referred to or distributed for any
other purpose to anyone who is not a member of management of the Servicer, AFG
Credit or the Trustee, or who is not otherwise specifically defined as a
recipient in the Pooling and Servicing Agreement. Our procedures and findings
are as follows:
(a) We compared each of the amounts in the certificates
delivered by the Servicer pursuant to Section 3.10(a)
of the Pooling and Servicing Agreement, the statements
or reports delivered to the Noteholders of each Series
pursuant to Article V of the Pooling and Servicing
Agreement and the monthly payment instructions
delivered to the Trustee with respect to each Series of
Notes pursuant to Article IV of the Pooling and
Servicing Agreement for each of the months in the
[fiscal year] [period of _____ months ended] [the
Saturday closest to January 31] to the corresponding
amounts in schedules prepared by the Servicer and found
them to be in agreement.
(b) We verified the mathematical accuracy of the schedules
prepared by the Servicer and found no differences.
(c) We compared the information in the schedules prepared by the
Servicer to data extracted from the Servicer's credit
accounting system and found them to be in agreement.
(d) We read the Annual Servicer's Certificate delivered pursuant
to Section 3.10 of the Pooling and Servicing Agreement for the
[year] [the period of ____ months ended] [the Saturday closest
to January 31] and made inquiries of the Servicer's management
regarding the Servicer's compliance with the guidelines of the
Pooling and Servicing Agreement.
Because the above procedures do not constitute an audit made
in accordance with generally accepted auditing standards, we express no opinion
on any of the specified accounts or items referred to above. In connection with
the procedures referred to above, no matters came to our attention that caused
us to believe that the certificates and reports referred to above should be
adjusted. Based on our reading, inquiries and procedures as set forth in
paragraphs (a), (b), (c) and (d) above, nothing came to our attention that
caused us to believe that the servicing of the accounts was not conducted in
compliance with the terms and conditions set forth in the Pooling and Servicing
Agreement insofar as they relate to accounting matters. Had we performed
additional procedures, matters might have come to our attention that would have
been reported to you. This report relates only to the accounts or items
specified above and does not extend to any financial statements of American
Finance Group, Inc., AFG Credit Corporation or Bankers Trust Company taken as a
whole.
Date:
EXHIBIT H
to
POOLING AND SERVICING AGREEMENT AND INDENTURE OF TRUST
FORM OF MONTHLY PAYMENT INSTRUCTIONS AND NOTIFICATION2
AFG MASTER TRUST
This Payment Instructions and Notification has been prepared
and signed by a duly authorized representative of American Finance Group.
("AFG"), as Servicer pursuant to the Pooling and Servicing Agreement and
Indenture of Trust dated as of July 1, 1995, as supplemented by the Series
1995-1 Supplement thereto (the "Pooling and Servicing Agreement") among AFG, AFG
Credit Corporation and Bankers Trust Company, as Trustee and as Collateral
Trustee.
A. Capitalized terms used herein have their respective
meanings set forth in the Pooling and Servicing Agreement, as amended
by [the Series 1995-1 Supplement thereto] [name of applicable Series].
This form is delivered pursuant to Section [4.3(e)] [4.3(f)] of the
Pooling and Servicing Agreement.
B. AFG is the Servicer under the Pooling and
Servicing Agreement.
C. The undersigned is a Servicing Officer.
D. The date of this notice is a Determination Date
under the Pooling and Servicing Agreement.
DATE:
--------------------------
By:
Title:
--------
2 The form attached to this Payment Instructions and Notification applies
to Series 1995-1. Payment Instructions and Notification for other
Series will be added as
attachments to this form as applicable.
EXHIBIT I
to
POOLING AND SERVICING AGREEMENT AND INDENTURE OF TRUST
PROVISIONS TO BE INCLUDED IN
OPINION OF COUNSEL PURSUANT
TO SUBSECTION 13.2(d)(i)
(a) The amendment to the Pooling and Servicing Agreement and
Indenture of Trust, attached hereto as Exhibit A (the "Amendment"), has been
duly authorized, executed and delivered by the Transferor and the Servicer and
constitutes the legal, valid and binding agreement of the Transferor and the
Servicer, enforceable in accordance with its terms.
(b) The Amendment has been entered into in accordance with the
terms and provisions of Section 13.1 of the Pooling and Servicing Agreement and
Indenture of Trust.
EXHIBIT J
to
POOLING AND SERVICING AGREEMENT AND INDENTURE OF TRUST
PROVISIONS TO BE INCLUDED
IN ANNUAL OPINION OF COUNSEL
The opinions set forth below, which are to be delivered
pursuant to subsection 13.2(d)(ii) of the Pooling and Servicing Agreement and
Indenture of Trust (the "Pooling and Servicing Agreement"), may be subject to
certain qualifications, assumptions, limitations and exceptions taken or made in
the opinion of the Transferor's counsel with respect to similar matters
delivered on the Initial Closing Date.
(a) If the Pooling and Servicing Agreement constitutes a valid
transfer, assignment and sale to the Trust of the Original Leases and the
related Equipment (collectively, the "Assets"), based on the Financing Statement
having been filed in the office of the California Secretary of State, such
transfer and assignment transfers all of the right, title and interest of
Transferor in and to such Assets and the Proceeds thereof to the Trust, free and
clear of any Liens of any person claiming through or under Transferor now
existing or hereafter created, subject to (i) Permitted Liens, (ii) the interest
of Transferor as holder of the Transferor Interest, (iii) AFG's right to receive
servicing fees in its capacity as the Servicer, and (iv) the matters set forth
below. With respect to Assets or the Proceeds thereof represented by Chattel
Paper, Instruments or Money, the interest of the Trustee would be subject to the
matters set forth in clauses (i), (ii)(B) and (ii)(D) of section (d) of this
opinion (with respect to Instruments), clauses (ii)(B) and (ii)(C) of section
(d) of this opinion (with respect to Chattel Paper) or clauses (i) and (ii)(B)
of section (d) of this opinion (with respect to Money). With respect to Assets
or the Proceeds thereof which are represented by Instruments, the transferee
would not have the rights of a holder in due course unless transfer is effected
by negotiation and delivery in accordance with Sections 3201, 3203 and 3204 of
the Code.
(b) The interest acquired by the Trustee will be enforceable against
subsequent creditors of or purchasers from Transferor. We note, however, that
unless the Lessee in respect of an Original Lease has received notice of the
transfer to the Trust, bona fide payments made by such Lessee to Transferor, or
to a subsequent assignee of such Original Lease as to which the Lessee has
received notice of such assignment, will discharge such Lessee's obligations to
the extent of such payment, and such payment will be recoverable only from
Transferor, which recovery may be impaired in a subsequent insolvency of
Transferor. With respect to the foregoing, we further note that under Section
3.2(e) of the Pooling and Servicing Agreement, Lessees are to be directed to
deliver lease payments to the Lockbox.
(c) The opinions in this section (a) shall apply if and to the extent
that the Pooling and Servicing Agreement does not constitute a valid transfer,
assignment and sale of the Assets. In that case, the Pooling and Servicing
Agreement creates a valid security interest (as defined in the Code) in favor of
the Trustee, with respect to the Assets and the Proceeds thereof, for the
benefit of the Noteholders and the Holder of the Transfer or Interest, securing
the obligations of Transferor under the Pooling and Servicing Agreement. The
Financing Statement having been filed in the office of the California Secretary
of State, such security interest constitutes a perfected security interest in
the Assets and the Proceeds thereof.
(d) Based on the Financing Statement having been filed in the office of
the California Secretary of State, such security interest is enforceable as such
against, and is prior to, creditors of and purchasers from Transferor, and the
Trustee will have the rights of a secured creditor properly perfected under
state law in a bankruptcy or insolvency proceeding or in the event of the
appointment of a receiver or trustee in bankruptcy with respect to Transferor,
except, in each case, (i) with respect to Assets or the Proceeds thereof
evidenced by Instruments (as defined in Section 9105(1)(i) of the Code), or
Money, which in either case are not in the possession of the Trustee; and (ii)
as priority may be subject to (A) liens under Section 4210 of the Code (relating
to the security interest of a collecting bank), (B) claims of the United States
under the federal priority statute (31 U.S.C. ss.3713), (C) with respect to
Assets or the Proceeds thereof represented by Chattel Paper or Instruments, the
interest of a purchaser of such Chattel Paper or Instruments under Section 9308
of the Code (although we note that, pursuant to Section 2.1 of the Pooling and
Servicing Agreement, Transferor will deliver the Lease Files to the Custodian),
and (D) with respect to Assets or the Proceeds thereof evidenced by Instruments,
security interests of third parties perfected for 21 days under Section 9304(4)
or (5)(b) of the Code.
(e) No further filing or other action, other than the execution and
delivery of the Pooling and Servicing Agreement by the parties thereto and the
filing of the Financing Statement in the office of the California Secretary of
State, is necessary to protect the Trustee's ownership interest or perfect or
continue the perfected status under California law of the security interest of
the Trustee for the benefit of the Noteholders and the Holder of the Transferor
Interest in the Assets and the Proceeds thereof against third parties, except
that appropriate continuation statements must be filed with respect to the
Financing Statement at five-year intervals to continue to protect or continue
the perfection of such interests.