AMENDED AND RESTATED COLLATERAL TRUST AND
INTERCREDITOR AGREEMENT
dated as of September 30, 1997
by and among
ING (U.S.) CAPITAL CORPORATION
as Agent and as a Lender
PNC BANK, NATIONAL ASSOCIATION
as Servicing Agent, as SSC Master Trust Trustee , as Issuer Trustee, as a
Lender and as Collateral Trustee
THE OTHER LENDERS
FROM TIME TO TIME PARTIES HERETO
▇.▇. ▇▇▇▇▇▇▇▇▇ RECEIVABLES I LLC
as Trust Seller
▇.▇. ▇▇▇▇▇▇▇▇▇ RECEIVABLES III LLC
as Issuer
▇.▇. ▇▇▇▇▇▇▇▇▇ S.S.C. LIMITED PARTNERSHIP
as the Company
▇.▇. ▇▇▇▇▇▇▇▇▇ RECEIVABLES II LLC
as Borrower and as Seller
and
▇.▇. ▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
as the initial Trust Master Servicer and as
the initial Issuer Master Servicer
TABLE OF CONTENTS
Page
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DECLARATION OF TRUST................................................................................3
ARTICLE 1. DEFINITIONS.............................................................................4
1.1. Certain Defined Terms...............................................................4
ARTICLE 2. INTERCREDITOR PROVISIONS................................................................8
2.1. Release of Lien.....................................................................8
2.2. Allocation of Property..............................................................9
2.3. Enforcement Actions.................................................................9
2.4. Agency for Perfection...............................................................9
2.5. Limitation on Liability of Parties to Each Other...................................10
2.6. Effect Upon Lender Documents, the Issuer Documents and Operative Documents.........10
ARTICLE 3. THE COLLATERAL TRUST AND THE COLLATERAL TRUSTEE........................................11
3.1. Authorization to Execute Collateral Trust Documents................................11
3.2. Certain Representations and Warranties.............................................11
3.3. Procedures for Allocating Shared Interest Collateral...............................11
3.4. Additional Collateral Trust Documents..............................................13
3.5. Powers of Attorney.................................................................13
3.6. Exercise of Powers.................................................................13
3.7. Limitation on Collateral Trustee's Duties in Respect of the Shared Interest
Collateral.....................................................................13
3.8. Limitation by Law..................................................................14
3.9. Information as to Holders; Notices to Holders; Notices to Collateral Trustee.......14
3.10. Compensation and Expenses..........................................................14
3.11. Stamp and Other Similar Taxes......................................................15
3.12. Filing Fees, Excise Taxes, etc.....................................................15
3.13. Indemnification....................................................................15
3.14. Further Assurances.................................................................16
3.15. Limitation on Repayment............................................................16
3.16. Acceptance of Trust................................................................16
3.17. Exculpatory Provisions.............................................................16
3.18. Delegation of Duties...............................................................17
3.19. Reliance by Collateral Trustee.....................................................18
3.20. Limitations on Duties of Collateral Trustee........................................18
3.21. Monies to be Held in Trust.........................................................19
3.22. Resignation and Removal of the Collateral Trustee..................................19
3.23. Merger of the Collateral Trustee...................................................20
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Page
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ARTICLE 4. MISCELLANEOUS..........................................................................21
4.1. Notices............................................................................21
4.2. Agreement Absolute.................................................................21
4.3. Successors and Assigns.............................................................21
4.4. Beneficiaries......................................................................22
4.5. GOVERNING LAW......................................................................22
4.6. Section Titles.....................................................................22
4.7. Severability.......................................................................22
4.8. Execution in Counterparts..........................................................22
4.9. Resolution of Disputes In Respect of Shared Interest Collateral....................22
4.10. Limitations on Liability...........................................................23
4.11. Nature of the Obligations and Modification of Lender Documents.....................23
4.12. Nature of the Trust Claim and Modification of Operative Documents..................23
4.13. Nature of the Issuer Claim and Modification of Issuer Documents....................24
4.14. Insolvency Proceeding..............................................................24
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AMENDED AND RESTATED COLLATERAL TRUST AND INTERCREDITOR AGREEMENT dated
as of September 30, 1997 (as modified, amended, restated or supplemented from
time to time, this "Agreement"), by and among:
(1) ING (U.S.) Capital Corporation ("ING Capital"), in its capacity
as agent under the Credit Agreement (as defined below) (in such
capacity, the "Agent") and as a Lender (as defined below);
(2) PNC Bank, National Association, a national banking association
("PNC Bank"), as servicing agent under the Credit Agreement
(in such capacity, the "Servicing Agent"), as trustee under
the Pooling and Servicing Agreement (as defined below) (in
such capacity, the "SSC Master Trust Trustee"), as trustee
under the Indenture (as defined below) and not in its
individual capacity (in such capacity, the "Issuer Trustee"),
as collateral trustee under this Agreement (in such capacity
and not in its individual capacity, the "Collateral Trustee")
for the respective Holders of Interests referred to below, and
as a Lender;
(3) The other financial institutions from time to time parties to
the Credit Agreement and, pursuant to Section 4.3, hereto
(together with ING Capital and PNC Bank, being collectively,
the "Lenders" and each individually being a "Lender");
(4) ▇.▇. ▇▇▇▇▇▇▇▇▇ Receivables I LLC, a Delaware limited liability
company ("JGW I LLC"), as seller (the "Trust Seller") under the
Pooling and Servicing Agreement;
(5) ▇.▇. ▇▇▇▇▇▇▇▇▇ S.S.C. Limited Partnership, a Delaware limited
partnership ("JGW SSC"), as seller (in such capacity, the
"Company") under the June 13 Seller Purchase Agreement (as
defined below);
(6) ▇.▇. ▇▇▇▇▇▇▇▇▇ Receivables II LLC, a Delaware limited
liability company ("JGW II LLC"), as Seller (in such capacity,
the "Seller") under the Issuer Purchase Agreement (as defined
below) and as the borrower as successor by assignment to the
Company (in such capacity, together with any successor thereto
in such capacity, the "Borrower") under the Credit Agreement;
(7) ▇.▇. ▇▇▇▇▇▇▇▇▇ Receivables III LLC, a Delaware limited liability
company ("JGW III LLC"), as issuer (in such capacity, the
"Issuer") under the Indenture; and
(8) ▇.▇. ▇▇▇▇▇▇▇▇▇ & Company, Inc., a Pennsylvania corporation, as
the initial master servicer (the "Trust Master Servicer")
under the Pooling and Servicing Agreement and as the initial
master servicer (the "Issuer Master Servicer") under the
Indenture.
RECITALS:
A. The Borrower (as successor by assignment to JGW SSC), the Agent, the
Servicing Agent and the Lenders are parties to an Amended and Restated Revolving
Credit Agreement, dated as of February 11, 1997, as amended by an Amendment No.
1 and an
Assignment and Amendment No. 2, dated as of May 26, 1997 and September 30,
1997, respectively (as amended, and as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement")
pursuant to which or in accordance with which, the Lenders have agreed to make
loans, advances and other financial accommodations ("Advances") to the Borrower;
B. The Borrower, in order to secure its prompt repayment of the
Advances and interest thereon by the Borrower and the prompt payment and
performance of the other "Obligations" owing by the Borrower to the Lenders and
the Agent under (and as such term is defined in) the Credit Agreement and the
other instruments, documents, and agreements executed and delivered in
connection therewith (such instruments, documents and agreements (including the
Security Agreement referred to below), together with the Credit Agreement, being
hereinafter referred to as the "Lender Documents"), has assumed all of JGW SSC's
obligations and liabilities under that certain Amended and Restated Security
Agreement dated as of February 11, 1997 (as amended, restated, supplemented or
otherwise modified from time to time the "Security Agreement") in favor of the
Agent, pursuant to which the Borrower has granted a security interest to the
Agent, for the benefit of the Agent and the Lenders, in the "Collateral" (as
such term is defined therein), including, without limitation, the Receivables
and the Related Property and Collections relating thereto (as such terms are
hereinafter defined);
C. The Company and the Trust Seller have entered into that certain
Purchase Agreement dated as of June 13, 1997 (as amended, restated, supplemented
or otherwise modified from time to time, the "June 13 Seller Purchase
Agreement") between the Company and the Trust Seller pursuant to which the
Company may from time to time sell, transfer and otherwise convey (including by
way of contribution) or purport to sell, transfer or otherwise convey (in each
case, a "Transfer") to the Trust Seller all of the right, title and interest of
the Company in certain of the Company's Receivables and the Related Property and
Collections relating thereto and the proceeds of such Receivables and Related
Assets (such Receivables, Related Property, Collections and proceeds so sold or
purported to be Transferred to the Trust Seller by the Company pursuant to the
June 13 Seller Purchase Agreement being referred to as the "Trust Purchased
Assets");
D. The Trust Seller, the Trust Master Servicer and the SSC
Master Trust Trustee have entered into that certain Pooling and Servicing
Agreement dated as of June 13, 1997 (as amended, restated, supplemented, or
otherwise modified from time to time, the "Pooling and Servicing Agreement")
pursuant to which the Trust Seller may from time to time Transfer certain of its
assets or interests therein, including, without limitation, the Trust Purchased
Assets, to SSC Master Trust I, a trust organized under the laws of the State of
Delaware (the "Trust"), to facilitate the sale and funding of certificated
interests in the assets of, and/or indebtedness of, the Trust (as more fully
described in the Operative Documents, the "Trust Assets") which are to be issued
by the Trust from time to time (such certificates evidencing such interests
being referred to as the "Certificates" and the holders of such Certificates
being referred to as the "Certificateholders" and each individually as a
"Certificateholder");
E. In connection with the Pooling and Servicing Agreement, the Agent,
the Trust Seller, the Company, the Trust Master Servicer, the Lenders, the
Servicing Agent, the SSC
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Master Trust Trustee, and the Collateral Trustee entered into that certain
Collateral Trust and Intercreditor Agreement, dated as of June 13, 1997 (the
"June 13th Intercreditor Agreement");
F. Concurrently herewith, the Seller and the Issuer are entering into
that certain Purchase and Contribution Agreement, dated as of September 30, 1997
(as amended, restated, supplemented or otherwise modified from time to time, the
"Issuer Purchase Agreement") between the Seller and the Issuer pursuant to which
the Seller may from time to time Transfer or purport to Transfer to the Issuer
all of the right, title and interest of the Seller in certain of the Seller's
Receivables and the Related Property and Collections relating thereto and the
proceeds of such Receivables and Related Property (such Receivables, Related
Property, Collections and proceeds so Transferred or purported to be Transferred
to the Issuer by the Seller pursuant to the Issuer Purchase Agreement being
referred to as the "Issuer Purchased Assets");
G. The Issuer, the Issuer Master Servicer and the Issuer Trustee are
entering into that certain Master Trust Indenture and Security Agreement dated
as of September 30, 1997 (as amended, restated, supplemented, or otherwise
modified from time to time, the "Indenture") pursuant to which the Issuer may
from time to time grant a security interest in certain of its assets, including,
without limitation, the Issuer Purchased Assets, to the Issuer Trustee as
security for, and to facilitate the issuance of, notes of the Issuer (as more
fully described in the Issuer Documents, the "Pledged Assets") to be issued from
time to time (such notes being referred to as the "Notes" and the holders of
such Notes being referred to as the "Noteholders" and each individually, as a
"Noteholder"); and
H. The parties hereto, in order to facilitate the transactions
described above, hereby agree to amend and restate the June 13th Intercreditor
Agreement in its entirety and to further agree as follows:
DECLARATION OF TRUST:
NOW, THEREFORE, to facilitate the allocation of the Shared Interest
Collateral (as defined below) and in consideration of the premises and the
mutual covenants and agreements set forth herein, each of the Grantors (as
defined below) hereby reaffirms the declarations and assignments made in the
June 13th Intercreditor Agreement and hereby assigns all of its rights and
remedies in the following property to the Collateral Trustee, in trust for each
Holder of an Interest and for the sole purpose of exercising such rights and
remedies in a manner consistent with each such Person's interests therein, and
the Collateral Trustee does hereby accept such assignment by the Grantors:
(A) this Agreement, the other Collateral Trust Documents
(as defined below) and the Shared Interest Collateral;
and
(B) the Proceeds (as hereinafter defined) of any of the
foregoing.
TO HAVE AND TO HOLD all of the foregoing (collectively, the "Trust
Estate") by the Collateral Trustee and its successors in trust under this
Agreement and its assigns and the
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assigns of its successors in trust forever.
IN TRUST NEVERTHELESS, under and subject to the terms and conditions
set forth herein and in the other Collateral Trust Documents, and for the
benefit of each Holder of an Interest and for the enforcement of the payment of
all Obligations and Issuer Claims (as defined below) and Trust Claims (as
defined below), and for the performance of and compliance with the covenants and
conditions of this Agreement, the other Collateral Trust Documents, the Lender
Documents, the Issuer Documents (as defined below) and the Operative Documents
(as defined below).
IT IS HEREBY FURTHER COVENANTED AND DECLARED that the Trust Estate is
to be held and applied by the Collateral Trustee, subject to the further
covenants, conditions and trust hereinafter set forth.
NOW THEREFORE, in order to induce the Lenders to continue to make
Advances to the Borrower under the Credit Agreement, and to induce the
Certificateholders to purchase the Certificates, and to induce the Noteholders
to purchase the Notes, and, in consideration of the foregoing premises and the
mutual covenants and agreements set forth herein, and for other good and
valuable consideration, receipt of which is hereby acknowledged, it is hereby
agreed as follows:
ARTICLE 1. DEFINITIONS.
1.1. Certain Defined Terms. Capitalized terms used and not otherwise
defined herein shall have the meanings specified in the Pooling and Servicing
Agreement and the Indenture, as applicable, or if not defined therein, in the
June 13 Seller Purchase Agreement and the Issuer Purchase Agreement, as
applicable. In addition, as used in this Agreement, the following terms shall
have the following meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
"Borrowing Base" has the meaning ascribed to such term in the Credit
Agreement.
"Borrowing Base Deficiency" means an amount equal to the sum of (A) the
positive excess, if any, of the principal balance of the Advances (other than
Discretionary Non-Ratable Advances) under the Credit Agreement over the
Borrowing Base plus (B) the positive excess, if any, of the principal balance of
the Discretionary Non-Ratable Advances under the Credit Agreement over the
Discretionary Non-Ratable Advance Borrowing Base.
"Business Day" means any day other than a Saturday or Sunday or any
other day on which national banking associations or state banking institutions
in New York, New York, Wilmington, Delaware or Philadelphia, Pennsylvania are
authorized or obligated by law, executive order, or governmental decree to be
closed.
"Claim" means the Obligations, the Issuer Claims or the Trust Claims,
as
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applicable.
"Collateral Trust Documents" means this Agreement, each Lock-Box
Notice, any additional documents executed to facilitate the allocation of the
Shared Interest Collateral in accordance with the terms hereof, and any
agreement or document referred to in Section 3.4 or 3.14 of this Agreement, as
the same may be amended, supplemented or otherwise modified in accordance with
their respective terms.
"Collateral Trustee's Fees" has the meaning set forth in Section 3.10
of this Agreement.
"Collections" means, with respect to any Receivable, all cash
collections and other Proceeds of such Receivable and/or the Related Property
relating thereto (including late charges, fees and interest arising thereon, and
all recoveries with respect to Receivables that have been written off as
uncollectible) from any source whatsoever, including, without limitation, from
any related Annuity Contract, Life Insurance Policy, guarantee or other source.
"Discretionary Non-Ratable Advance" has the meaning ascribed to such
term in the Credit Agreement.
"Discretionary Non-Ratable Advance Borrowing Base" has the meaning
ascribed to such term in the Credit Agreement.
"Enforcement" means collectively or individually, (i) with respect to
the Operative Documents, the occurrence or declaration of a Significant Event or
Series Significant Event; or (ii) with respect to the Lender Documents, the
automatic occurrence of declaration of the Obligations prior to the date when
otherwise due; or (iii) with respect to the Issuer Documents, the occurrence or
declaration of an "Event of Default" or "Series Event of Default" thereunder; or
(iv) with respect to the Lender Documents, the Issuer Documents or the Operative
Documents, any party having the right and authority to do so commences juridical
or nonjudicial enforcement (including setoff) of any of the respective default
rights and remedies under any of the foregoing agreements.
"Event of Default" shall mean an "Event of Default" under and as
defined in the Indenture, and an "Event of Default" under and as defined in the
Credit Agreement, as applicable.
"Grantor" means any of the Agent, the Lenders, the Servicing Agent, the
Issuer Trustee or the SSC Master Trust Trustee, and "Grantors" means all of the
foregoing, collectively.
"Holder of an Interest" means, as of any date, any holder of any Claim.
"Indenture Termination Date" shall mean the date of satisfaction and
discharge of the Indenture pursuant to Section 12.01 thereof.
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"Issuer Claims" means all indebtedness, obligations, fees, costs,
expenses and other liabilities of the Issuer owing under or in connection with
any of the Issuer Documents.
"Issuer Documents" shall mean all of the "Operative Documents" (as
defined in the Indenture and any applicable supplement thereto).
"Issuer Party" shall mean any of the Issuer Trustee, the
Issuer Master Servicer, the Collateral Trustee or the Back-Up Servicer, and
"Issuer Parties" means all such parties collectively.
"Issuer Transfer Report" shall mean the "Seller Transfer Report" under
and as defined in the Issuer Purchase Agreement.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, encumbrance, lien (statutory or other), preference, participation
interest, priority or other security agreement or preferential arrangement of
any kind or nature whatsoever, including, without limitation, any conditional
sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing and the filing of
any financing statement under the UCC or comparable law of any jurisdiction to
evidence any of the foregoing.
"Lock-Box" means any lock-box to which Collections are remitted or
otherwise received.
"Lock-Box Notice" has the meaning ascribed to such term in each of the
Pooling and Servicing Agreement and the Indenture.
"Master Servicer" means either the Issuer Master Servicer or the Trust
Master Servicer, as the context may require, and "Master Servicers" means both
of the foregoing parties.
"Operative Documents" shall have the meaning ascribed to such term in
the Pooling and Servicing Agreement and any applicable Series Supplement
thereto.
"Proceeds" shall have the meaning ascribed to it in Section 9-306(1) of
the UCC and, whether or not constituting proceeds under such section, any
accessions to and substitutions for any such property, and shall include, but
shall not be limited to, (i) any and all proceeds of any insurance, indemnity,
warranty or guaranty payable to either of the Grantors from time to time with
respect to any of the Collateral, the Pledged Assets or the Trust Assets, as
applicable, and (ii) any and all other amounts from time to time paid or payable
to either of the Grantors upon the sale, exchange, collection or other
disposition of any part of the Collateral, the Pledged Assets and the Trust
Assets, as applicable.
"Purchase Agreement" means either the Issuer Purchase Agreement or the
June 13th Seller Purchase Agreement, as the context may require, and "Purchase
Agreements" means both such Agreements.
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"Purchased Assets" means the Issuer Purchased Assets or the Trust
Purchased Assets or both of the Issuer Purchased Assets and the Trust Purchased
Assets, as the context may require.
"Receivable" has the meaning ascribed to such term in the June 13
Seller Purchase Agreement and the Issuer Purchase Agreement, as applicable.
"Records" has the meaning ascribed to such term in the Pooling and
Servicing Agreement and the Indenture, as applicable.
"Related Property" has the meaning ascribed to such term in the June 13
Seller Purchase Agreement and the Issuer Purchase Agreement, as applicable.
"Responsible Officer" means, with respect to any Person, the chief
executive officer, the chief financial officer or the chief accounting officer
of such Person.
"Seller Transfer Report" has the meaning ascribed to such term in the
June 13 Seller Purchase Agreement.
"Series" has the meaning ascribed to such term in the Pooling and
Servicing Agreement and the Indenture, as applicable.
"Shared Interest Collateral" means (i) all Records in respect of all
Receivables, (ii) the Lock-Boxes, the Lock-Box Accounts and all monies and items
on deposit therein and the Lock-Box Notices relating thereto, (iii) the Master
Collection Account, all cash deposited therein, and all certificates and
instruments, if any, from time to time representing the Master Collection
Account, (iv) the Seller Split Payment Account, all cash deposited therein, and
all certificates and instruments, if any, from time to time representing the
Seller Split Payment Account, (v) the Issuer Split Payment Account, all cash
deposited therein, and all certificates and instruments, if any, from time to
time representing the Issuer Split Payment Account, (vi) all computer hardware
and software used in connection with the servicing, collection and monitoring of
the Receivables and the Related Property associated therewith, (vii) any other
property or interests in property in which the Agent, the Lenders or the
Servicing Agent, and any of the Noteholders or the Issuer Trustee, and any of
the Certificateholders or the SSC Master Trust Trustee, each have any Liens or
other property interest under the Lender Documents, the Issuer Documents and the
Operative Documents, respectively, and (viii) all Proceeds thereof, whether now
owned or hereafter acquired or created and in or upon which an interest in favor
of the Agent, the Lenders or the Servicing Agent, and/or any of the Noteholders
or the Issuer Trustee, and/or any of the Certificateholders or the SSC Master
Trust Trustee is granted.
"SSC Master Trust Trustee" has the meaning set forth in the Preamble to
this Agreement.
"Transfer Report" means either a Seller Transfer Report or an Issuer
Transfer
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Report, as the contest may require, and "Transfer Reports" means both
such reports.
"Trust Claim" means all indebtedness, obligations, fees, costs,
expenses and other liabilities of the Trust owing under or in connection with
any of the Operative Documents.
"Trustee" means either the Issuer Trustee or the SSC Master Trust
Trustee, as applicable, and "Trustees" means both of the foregoing parties.
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"Trustee Fee" has the meaning ascribed to such term in the Pooling and
Servicing Agreement and the Indenture, as applicable.
"Trust Estate" has the meaning set forth in the Declaration of Trust
herein.
"Trust Party" means any of the Trust, the SSC Master Trust Trustee, the
Collateral Trustee, the Trust Master Servicer or the Back-Up Servicer, and
"Trust Parties" means all such parties collectively.
"Trust Termination Date" shall mean the date of termination of the
Trust created under the Pooling and Servicing Agreement pursuant to Section
12.01 thereof.
"UCC" means the Uniform Commercial Code as from time to time in effect
in the applicable jurisdiction.
ARTICLE 2. INTERCREDITOR PROVISIONS.
2.1. Release of Lien. (a) Notwithstanding anything contained in any of
the Lender Documents, any provision of the UCC or any UCC Financing Statement of
record, or any applicable law, the Agent, the Servicing Agent and the Lenders
hereby agree that, upon the Transfer of any interest in any Receivable (or
portion thereof), or any other Purchased Asset together with the Related
Property and Collections relating thereto, either to the Trust Seller pursuant
to the June 13 Seller Purchase Agreement or to the Issuer pursuant to the Issuer
Purchase Agreement (1) as described in any Seller Transfer Report or Issuer
Transfer Report acknowledged by the Agent (which acknowledgment may only be
withheld by the Agent to the extent that the Transfer of such Receivables would
cause an Event of Default under the Credit Agreement (provided that such
acknowledgment may be conditioned on the receipt by the Servicing Agent of cash
in an amount equal to any Borrowing Base Deficiency that may result from such
Transfer) and upon which acknowledgment the Trust Seller, the Issuer and the
applicable Trustee may conclusively rely in determining the authority of the
Seller to make such Transfer covered by such Transfer Report (it being agreed
and understood that such acknowledgment by the Agent shall constitute conclusive
proof that such Transfer is a "Permitted Transfer" (as defined below)) or (2)
which was otherwise Transferred to the Trust Seller or the Issuer and did not
result in a positive Borrowing Base Deficiency (after giving effect to the
disposition and application of the aggregate "Purchase Price" (as such term is
defined in the applicable Purchase Agreement), (any such Transfer in either case
being a "Permitted Transfer"), (i) any and all Liens and/or other claims or
interest in favor of the Agent, the Servicing Agent or any of the Lenders in
such Purchased Assets shall be released, terminated and of no further force or
effect, in each case, without any further action on the part of any Person, and
(ii) the Agent, the Lenders and the Servicing Agent shall cease to have any
further rights, title or interests in any such Purchased Assets and, without
limiting the foregoing, such Purchased Assets shall not be part of the
Collateral.
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(b) Each of the Agent, the Lenders and the Servicing Agent hereby
agrees that it shall not contest or challenge, or join any other Person in
contesting or challenging, the validity, enforceability, priority or perfection
of the ownership interest of the Trust Seller of any of the Trust Purchased
Assets or of the Issuer of any of the Issuer Purchased Assets which is the
subject of a Permitted Transfer, or the validity, enforceability, priority or
perfection of the ownership or security interest of any assignee or pledgee of
the Trust Seller or the Issuer, as applicable, in such assets (including the
Issuer Trustee and the SSC Master Trust Trustee).
(c) Except as expressly set forth herein, nothing contained in this
Agreement shall, or shall be deemed to, restrict, impair or impose any condition
with respect to the exercise by the Agent, the Servicing Agent or the Lenders,
or the Issuer Parties, or the Trust Parties, of any right, remedy, power or
privilege under any Lender Document, Issuer Document or Operative Document,
respectively.
(d) Each of the Agent, the Lenders and the Servicing Agent hereby
agrees to deliver to the SSC Master Trust Trustee, the Issuer Trustee or the
Collateral Trustee, as applicable, all documents, releases and other agreements,
and to take all other actions, which the Trust Seller or the SSC Master Trust I,
or the Issuer or the Issuer Trustee may reasonably request to evidence the
release of the Agent's and the Lenders' Liens as described in clause (a) above.
2.2. Allocation of Property. All Proceeds of the Collateral and the
Trust Purchased Assets and the Issuer Purchased Assets shall be allocated in
accordance with the following procedures:
(a) All Proceeds of the Collateral shall be allocated to the
Servicing Agent for application to the Obligations in accordance with
the Lender Documents until the payment in full thereof and any
remaining proceeds shall be paid to the Borrower or as otherwise
required by applicable law.
(b) All Proceeds of the Issuer Purchased Assets shall be
allocated to the Issuer Trustee for application in accordance with the
Issuer Documents.
(c) All Proceeds of the Trust Purchased Assets shall be
allocated to the SSC Master Trust Trustee for application in accordance
with the Operative Documents.
2.3. Enforcement Actions. Each of the parties hereto agrees to use
reasonable efforts to give notice to the other parties hereto prior to any such
party's commencement of Enforcement (but failure to do so shall not prevent such
Person from commencing Enforcement or affect its rights hereunder nor create any
cause of action or liability against such Person); provided, however, that none
of the parties hereto may commence any Enforcement against any of the Shared
Interest Collateral, such Enforcement only to be commenced by the Collateral
Trustee at the mutual direction of the Trustees and the Agent or, if the
Trustees and the Agent cannot reach agreement, then in accordance with the
directions of any court of competent jurisdiction solicited by the Collateral
Trustee, the Agent or any Trustee.
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2.4. Agency for Perfection. Each of the parties hereto hereby appoints
each other party hereto as such party's agent for purposes of perfecting by
possession each such party's respective security interests and ownership
interests and Liens on the Collateral, the Pledged Assets, the Trust Assets and
the Shared Collateral described hereunder. In the event that any Master Servicer
or any Trustee obtains possession of any of the Collateral, such Master Servicer
or Trustee, as applicable, shall notify the Agent of such fact, shall hold such
Collateral in trust and shall deliver such Collateral to the Agent upon the
Agent's request therefor. In the event that the Agent, the Servicing Agent, any
of the Lenders, the Issuer Trustee or the Issuer Master Servicer obtains
possession of any of the Trust Assets, the party obtaining possession thereof
shall notify the SSC Master Trust Trustee of such fact, shall hold such Trust
Assets in trust and shall deliver such Trust Assets to the SSC Master Trust
Trustee upon the SSC Master Trust Trustee's request therefor. In the event that
the Agent, the Servicing Agent, any of the Lenders, the SSC Master Trust Trustee
or the Trust Master Servicer obtains possession of any of the Pledged Assets,
the party obtaining possession thereof shall notify the Issuer Trustee of such
fact, shall hold such Pledged Assets in trust and shall deliver such Pledged
Assets to the Issuer Trustee upon the Issuer Trustee's request therefor.
2.5. Limitation on Liability of Parties to Each Other. Except as
provided in this Agreement, no party shall have any liability to any other party
except for liability arising from the gross negligence or willful misconduct of
such party or its representatives except with respect to the Collateral Trustee
or either Trustee each of which shall be solely liable only for its or its
representative's own bad faith and willful misconduct; provided, however, that
any liability of the Collateral Trustee or either Trustee hereunder is solely
the corporate liability of the Collateral Trustee, or such Trustee, as
applicable, and no recourse shall be had for the payment by the Collateral
Trustee, or such Trustee of any other obligation or claim of or against the
Collateral Trustee or such Trustee, as applicable, arising out of or based on
this Agreement, against any stockholder, employee, officer, director or
incorporator of the Collateral Trustee or such Trustee.
2.6. Effect Upon Lender Documents, the Issuer Documents and Operative
Documents. By executing this Agreement, the Company, the Trust Seller, the
Seller and the Issuer acknowledge that the provisions of this Agreement shall
not give any such Person any substantive rights as against the Agent, the
Servicing Agent, the Lenders, any Trustee, any Master Servicers, the
Certificateholders, or the Noteholders pursuant hereto and that nothing in this
Agreement shall amend, modify, change or supersede the terms of the Lender
Documents, the Issuer Documents or the Operative Documents with respect to the
Trust Seller, the Company, the Seller or the Issuer, or any other Affiliated
Entity. Notwithstanding the foregoing, each of the Trustees, the Master
Servicers, the Lenders, the Servicing Agent and the Agent agrees, that, as
between themselves, to the extent the terms and provisions of the Lender
Documents, the Issuer Documents or the Operative Documents are inconsistent with
the terms and provisions of this Agreement, the terms and provisions of this
Agreement shall control.
ARTICLE 3. THE COLLATERAL TRUST AND THE COLLATERAL TRUSTEE
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3.1. Authorization to Execute Collateral Trust Documents. The
Collateral Trustee shall execute and deliver each of the Collateral Trust
Documents requiring execution and delivery by it and shall accept delivery from
each of the Grantors of those Collateral Trust Documents which do not require
the Collateral Trustee's execution; provided, however, that the Collateral
Trustee shall not be required to execute any such Collateral Trust Document
imposing any obligation or liability on the Collateral Trustee or adversely
affecting the Collateral Trustee unless the provisions thereof imposing such
obligation or liability or adversely affecting the Collateral Trustee are, in
each case, in form and substance satisfactory to the Collateral Trustee.
3.2. Certain Representations and Warranties. The Collateral Trustee, in
its capacity as Collateral Trustee hereunder, and PNC Bank, National
Association, in its individual capacity, each represents and warrants to each of
the Grantors and the Holders as follows:
(i) PNC Bank, National Association is a national banking
association duly incorporated, validly existing and in good standing
under the laws of the United States of America and has all requisite
corporate power and authority to enter into and perform its obligations
under this Agreement and the other Collateral Trust Documents to which
it is a party.
(ii) The execution, delivery and performance by the Collateral
Trustee of this Agreement and the other Collateral Trust Documents to
which it is a party have been duly authorized by all necessary
corporate action on the part of PNC Bank, National Association.
(iii) To the best knowledge of the officers assigned to the
Collateral Trustee's Corporate Trust Administration Department, there
are no Liens in favor of the Collateral Trustee against the Trust
Estate.
(iv) This Agreement and all of the other Collateral Trust
Documents to which the Collateral Trustee is a party have been duly
executed and delivered by a duly authorized officer thereof.
3.3. Procedures for Allocating Shared Interest Collateral. (a) Subject
to the limitations hereunder, under the other Collateral Trust Documents, and
under the Lender Documents, the Issuer Documents and the Operative Documents,
the Collateral Trustee shall take any action with respect to the Shared Interest
Collateral, this Agreement and the other Collateral Trust Documents requested in
writing signed by each of the Agent and the Trustees, including, without
limitation, releasing portions of the Shared Interest Collateral from the Liens
imposed pursuant to this Agreement and the other Collateral Trust Documents;
provided, however, that the Agent, the Issuer and the Trustees hereby authorize
and direct the Collateral Trustee to follow the directions as to allocations of
amounts in the Master Collection Account, including without limitation to the
applicable "Series Collection Account" (as defined under each of the Pooling and
Servicing Agreement and the Indenture), the Seller Split Payment Account and the
Issuer Split
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Payment Account, as shall be specified (i) by the applicable Trust Master
Servicer and the Borrower in each "Daily Report" (as defined under the Pooling
and Servicing Agreement ) and (ii) by the applicable Issuer Master Servicer
and the Borrower in each "Daily Report" (as defined under the Indenture);
provided, that in the event that any material amount of Collections is either
misallocated or the applicable Trust Master Servicer and the Borrower, or the
applicable Issuer Master Servicer and the Borrower, as applicable, are unable
to agree on the reconciliation and allocation thereof, then upon the direction
of the SSC Master Trust Trustee or the Agent, or the Issuer Trustee or the
Agent, as applicable, (such direction being a "Transition Notice"), the
Collateral Trustee shall cease to follow the instruction of the applicable Trust
Master Servicer, applicable Issuer Master Servicer and the Borrower, as
aforesaid, and shall instead take direction solely from the Back-Up Servicer
related thereto in respect of such allocations; and provided, further, that (a)
at all times prior to the giving of a Transition Notice, (i) each of the
applicable Trust Master Servicer and the Borrower may make, or instruct the
Collateral Trustee to make, withdrawals from the Seller Split Payment Account to
remit funds to the applicable Claimant as shall be specified by the applicable
Trust Master Servicer and the Borrower in each "Daily Report" (as defined under
the Pooling and Servicing Agreement), and the Collateral Trustee shall be
entitled to rely on any such directions from the applicable Trust Master
Servicer and/or the Borrower in respect of such remittances in connection with
the "Split Payments" (as defined under the Pooling and Servicing Agreement), and
(ii) each of the applicable Issuer Master Servicer and the Borrower may make, or
instruct the Collateral Trustee to make, withdrawals from the Issuer Split
Payment Account to remit funds to the applicable Claimant as shall be specified
by the applicable Issuer Master Servicer and the Borrower in each "Daily Report"
(as defined under the Indenture), and the Collateral Trustee shall be entitled
to rely on any such directions from the applicable Issuer Master Servicer and/or
the Borrower in respect of such remittances in connection with the "Split
Payments" (as defined under the Indenture), and (b) from and after the giving of
a Transition Notice, the Collateral Trustee shall cease to follow the
instruction of the applicable Trust Master Servicer and the Borrower and from
the applicable Issuer Master Servicer and the Borrower as aforesaid, and shall
instead take direction solely from the Back-Up Servicer in respect of such
allocations; and provided, further, that the Collateral Trustee shall not be
obligated to take any such action which is in conflict with any provisions of
law or of this Agreement, the Lender Documents, the Issuer Documents, the
Operative Documents or the other Collateral Trust Documents or with respect to
which the Collateral Trustee has not received adequate security or indemnity as
provided in Section 3.19(d). Neither the Agent nor either Trustee shall
unreasonably withhold consent in respect of the other's actions respecting the
allocation of any Shared Interest Collateral, and each such party hereby agrees
not to take any action in respect of any Shared Interest Collateral that would
adversely affect the other's rights to enforce its claims with respect thereto
or the value of such Shared Interest Collateral.
(b) The Trust Seller, the Company, the Seller and the Issuer hereby
acknowledge and agree that the Collateral Trustee shall have the exclusive
ownership, dominion and control over any and all Lock-Boxes and the Lockbox
Accounts which are Shared Interest Collateral. The Trust Seller, the Company,
the Seller and the Issuer hereby agree to take any further action necessary or
that either Trustee, the Collateral Trustee or the Agent may reasonably request
to evidence and/or effect such ownership, dominion and control. Unless
instructed otherwise by the Collateral Trustee pursuant to its authority
hereunder, each Lockbox Bank shall
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be instructed to remit, on a daily basis, via overnight or same day transfer,
all amounts deposited in its Lockbox Accounts to the Master Collection Account
in accordance with the terms of a Lock-Box Notice substantially in the form of
Exhibit B to the Pooling and Servicing Agreement or Exhibit B to the Indenture.
3.4. Additional Collateral Trust Documents. In the event that any of
the Grantors at any time has or acquires any interest in any Shared Interest
Collateral which is not covered by a Collateral Trust Document in a manner which
will perfect the Collateral Trustee's lien upon and security interest in such
Shared Interest Collateral without further act or deed of the Collateral
Trustee, then at the time such interest in such Shared Interest Collateral is
acquired (or at any time the Collateral Trustee, any Holder, the Agent, either
Trustee determines that the Collateral Trustee's lien upon or security interest
in such interest in the Shared Interest Collateral is unperfected), to the
extent that such security interest may be perfected by the execution and/or
filing of a Collateral Trust Document, then the applicable Grantor shall
immediately, or immediately upon the Collateral Trustee's request therefor,
prepare, execute and deliver to the Collateral Trustee such Collateral Trust
Documents, in form and substance similar to the Collateral Trust Documents
heretofore executed and delivered by such Grantor unless otherwise specified or
agreed by the Collateral Trustee, as are necessary to perfect the Collateral
Trustee's Lien upon such Shared Interest Collateral. If the signature of the
Collateral Trustee is required on any such Collateral Trust Document, such
Grantor shall present such Collateral Trust Document to the Collateral Trustee
for signature, together with a certificate executed by such Grantor certifying
that such Collateral Trust Document is required by, and complies with, the
provisions hereof, and, if applicable, is in form suitable for filing or
recordation, and the Collateral Trustee shall execute such Collateral Trust
Document and such Grantor shall file such Collateral Trust Document with
appropriate filing and/or recording offices if such filing and/or recording is
required or advisable to perfect or protect the Collateral Trustee's lien upon
or security interest in such Shared Interest Collateral. Such Grantor shall
supply the Collateral Trustee with an executed copy of each such Collateral
Trust Document and satisfactory proof that such Collateral Trust Document has
been properly filed or recorded, if and to the extent that filing or recording
is required under this Section 3.4.
3.5. Powers of Attorney. Each of the Grantors hereby irrevocably
constitutes and appoints the Collateral Trustee and any officer or agent
thereof, with full power of substitution, as its true and lawful
attorney-in-fact with full power and authority in the name of such Grantor or
the name of such attorney-in-fact, from time to time in the Collateral Trustee's
discretion (subject to Section 3.17 of this Agreement), for the purposes of
signing documents and taking other action to perfect, promote and protect the
liens and security interests of the Collateral Trustee in the Shared Interest
Collateral. This power of attorney is a power coupled with an interest, shall be
irrevocable.
3.6. Exercise of Powers. All of the powers, remedies and rights of the
Collateral Trustee as set forth in this Agreement may be exercised by the
Collateral Trustee in respect of any Collateral Trust Document as though set
forth at length therein and all the powers, remedies and rights of the
Collateral Trustee as set forth in any Collateral Trust Document may be
exercised from time to time as herein and therein provided.
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3.7. Limitation on Collateral Trustee's Duties in Respect of the Shared
Interest Collateral. Beyond its duties set forth in this Agreement as to the
custody of any Shared Interest Collateral in its possession or control and the
accounting to each of the Grantors and the Holders for monies received by it
hereunder, the Collateral Trustee shall not have any duty to the Grantors or the
Holders as to any Collateral in its possession or control or in the possession
or control of any agent or nominee of it or any income thereon or as to the
preservation of rights against prior parties or any other rights pertaining
thereto.
3.8. Limitation by Law. All of the provisions of this Article 3 are
intended to be subject to all applicable mandatory provisions of law which may
be controlling in the premises and to be limited to the extent necessary so that
they will not render this Agreement invalid or unenforceable in whole or in
part.
3.9. Information as to Holders; Notices to Holders; Notices to
Collateral Trustee. Each of the Agent and the Trustees shall be responsible for
maintaining a list setting forth the names and addresses of each party to whom
notices must be sent under the Credit Agreement with respect to the transactions
relating to the Lender Documents, the Issuer Documents, the Operative Documents,
this Agreement and the other Collateral Trust Documents, and the Collateral
Trustee shall have no responsibility or liability with respect thereto.
Notwithstanding anything contained herein or in any other agreement to the
contrary, all notices, reports or other documents required to be delivered by
the Collateral Trustee hereunder or under any of the other Collateral Trust
Documents to any of the Holders shall be deemed delivered by the Collateral
Trustee for purposes hereof or thereof by the delivery thereof to the Agent or
the applicable Trustee, as the case may be, in respect of such Holder(s). The
Collateral Trustee may act in reliance upon any instrument or signature
reasonably believed by it to be genuine and may assume that any Person
purporting to give any notice, advice or instruction in connection with the
provisions hereof has been duly authorized to do so. In addition, the Collateral
Trustee shall be entitled to rely upon any certification, demand, notice,
instrument or other writing delivered to it hereunder or in connection herewith
without being required to determine the correctness of any fact stated therein
or the propriety or validity thereof.
3.10. Compensation and Expenses. Each of the Grantors hereby jointly
and severally agrees to pay to the Collateral Trustee (i) such reasonable
compensation for its performance of services hereunder and under the Collateral
Trust Documents and for administering the Trust Estate as shall be set forth in
a separate letter agreement among the Collateral Trustee and the Grantors to be
entered into prior to or concurrently with the appointment of a Collateral
Trustee which is not acting as one or both of the Trustees (such compensation
being the "Collateral Trustee's Fees") but in any event not to exceed 120% of
such Person's out-of-pocket expenses incurred in the performance of such duties,
and (ii) from time to time, upon the Collateral Trustee's demand therefor, but
subject in all cases to Section 3.15 of this Agreement, all of the fees, costs
and expenses of the Collateral Trustee (including, without limitation, the
reasonable fees and disbursements of its counsel, accountants and other experts,
and such special counsel as the Collateral Trustee elects to retain) (A) arising
in connection with the preparation, execution, delivery, modification,
restatement, amendment or termination of this Agreement and each Collateral
Trust Document or the enforcement (whether in the context of a civil action,
adversary
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proceeding, workout or otherwise) of any of the provisions hereof or
thereof, or (B) incurred or required to be advanced in connection with the
administration of the Trust Estate, the disposition of the Shared Interest
Collateral pursuant to any Collateral Trust Document and the preservation,
protection or defense of the Collateral Trustee's rights under this Agreement
and in and to the Shared Interest Collateral and the Trust Estate. In the event
that the Collateral Trustee is also acting as both Trustees, the Collateral
Trustee's Fees and the Collateral Trust Document Fees shall be deemed to have
been paid out of the Trustee Fees. In the event that the Trustees and the
Collateral Trustee are not one and the same Person, the Collateral Trustee's
Fees and the Collateral Trust Document Fees shall be paid pursuant to a fee
letter between the Collateral Trustee, the Agent, the SSC Master Trust Trustee
and the Issuer Trustee in respect of each Series, to the extent that payment
thereof is provided for under the Operative Documents or the Issuer Documents,
as applicable. The obligations of the Grantors under this Section 3.10 shall
survive the termination of this Agreement.
3.11. Stamp and Other Similar Taxes. Subject in all cases to Section
3.15 of this Agreement, each of the Grantors jointly and severally agrees to
indemnify and hold harmless the Collateral Trustee and each Holder from, and
shall reimburse the Collateral Trustee and each Holder for, any present or
future claim for liability for any stamp or other similar tax and any penalties
or interest with respect thereto, which may be assessed, levied or collected by
any jurisdiction in connection with this Agreement, the Trust Estate, or the
attachment or perfection of the security interest granted to the Collateral
Trustee in any Shared Interest Collateral. The obligations of the Grantors under
this Section 3.11 shall survive the termination of this Agreement.
3.12. Filing Fees, Excise Taxes, etc. Subject in all cases to Section
3.15, each of the Grantors hereby jointly and severally agrees to pay or to
reimburse the Collateral Trustee for any and all amounts in respect of all
search, filing, recording and registration fees, taxes, excise taxes and other
similar imposts which may be payable or determined to be payable by such Grantor
in respect of the execution, delivery, performance and enforcement of this
Agreement and each Collateral Trust Document and agrees to save the Collateral
Trustee harmless from and against any and all liabilities with respect to or
resulting from any delay on the part of such Grantor in paying or failing to pay
such taxes and fees. The obligations of the Grantors under this Section 3.12
shall survive the termination of this Agreement.
3.13. Indemnification. (a) Each of the Grantors agrees to pay,
indemnify and hold the Collateral Trustee and each of its agents harmless from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement and the Collateral Trust
Documents by, against or with respect to such Grantor, unless arising from the
gross negligence or willful misconduct of such of the Collateral Trustee or such
of the agents as are seeking indemnification. As security for such payment, the
Collateral Trustee shall have a lien on all Shared Interest Collateral and other
property and funds held or collected by the Collateral Trustee as part of the
Trust Estate.
(b) In any suit, proceeding or action brought by the Collateral Trustee
under or with respect to the Shared Interest Collateral for any sum owing
thereunder, or to enforce any
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provisions thereof, or of any of the Collateral Trust Documents or this
Agreement, each of the Grantors agrees to save, indemnify and keep the
Collateral Trustee and the Holders harmless from and against all expense, loss
or damage suffered by reason of any defense, setoff, counterclaim, recoupment
or reduction of liability whatsoever of the obligee thereunder, arising out of
a breach by such Grantor of any of its obligations hereunder or thereunder or
arising out of any other agreement, indebtedness or liability at any time
owing to or in favor of such obligee or its successors from such Grantor, and
all such obligations of such Grantor shall be and remain enforceable against
and only against such Grantor and shall not be enforceable against the
Collateral Trustee or any Holder.
(c) The agreements in this Section 3.13 shall, in all cases,
be subject to Section 3.15 and shall survive the termination of the other
provisions of this Agreement.
3.14. Further Assurances. (a) Each Grantor agrees that from time to
time, at the expense of such Grantor, it will promptly execute and deliver all
further instruments and documents, and take all further action, that may be
necessary or desirable, as requested by the Collateral Trustee, in order to
perfect and protect any security interest granted or purported to be granted
hereby or to enable the Collateral Trustee to exercise and enforce its rights
and remedies hereunder with respect to any Shared Interest Collateral, including
without limitation, the execution of financing or continuation statements, or
amendments thereto.
(b) Each of the Grantors hereby acknowledges that it shall be and
remain primarily and exclusively liable for the preparation, execution and
filing of financing and continuation statements with respect to the Shared
Interest Collateral. Without in any way limiting the foregoing, each of the
Grantors hereby authorizes the Collateral Trustee to file, in its sole
discretion and without any obligation to do so, one or more financing or
continuation statements, and amendments thereto, relative to all or any part of
the Shared Interest Collateral without the signature of such Grantor where
permitted by law. A carbon, photographic or other reproduction of this Agreement
or any financing statement covering the Shared Interest Collateral or any part
thereof shall be sufficient as a financing statement where permitted by law.
3.15. Limitation on Repayment. (a) Notwithstanding anything contained
herein to the contrary, the Collateral Trustee hereby agrees that all amounts
(other than the Collateral Trustee's Fees) owing to it by any of the Grantors
pursuant to this Agreement, including, without limitation, any and all
Collateral Trust Document Fees, shall, to the extent payable on account of the
SSC Master Trust Trustee, be payable by the Trust Seller but only to the extent
of Available Seller Funds (as defined under the Pooling and Servicing Agreement)
to the extent that at the time of such payment, or immediately thereafter and
giving effect to such payment, the Trust Seller would, in the reasonable
determination of the Trust Seller, continue to be able to pay its debts as they
become due. The SSC Master Trust I Trustee shall have no independent obligation
for any such amounts.
(b) Notwithstanding anything contained herein to the contrary, the
Collateral Trustee hereby agrees that all amounts (other than the Collateral
Trustee's Fees) owing to it by any of the Grantors pursuant to this Agreement,
including, without limitation, any and all
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Collateral Trust Document Fees, shall, to the extent payable on account of the
Issuer Trustee, be payable by the Issuer but only to the extent of Available
Issuer Funds (as defined under the Indenture) to the extent that at the time
of such payment, or immediately thereafter and giving effect to such payment,
the Issuer would, in the reasonable determination of the Issuer, continue to
be able to pay its debts as they become due. The Issuer Trustee shall have no
independent obligation for any such amounts.
3.16. Acceptance of Trust. The Collateral Trustee, for itself and its
successors, hereby accepts the trusts created by this Agreement upon the terms
and conditions hereof, including those contained in this Article 3.
3.17. Exculpatory Provisions. (a) The Collateral Trustee shall not be
responsible in any manner whatsoever for the correctness of any recitals,
statements, representations or warranties contained herein or in the other
Collateral Trust Documents, except for those made by the Collateral Trustee, or
for filing any financing statement or continuation statement or recording or
re-recording any Collateral Trust Document in any public office at any time or
for taking any other action to perfect or maintain the perfection or
effectiveness of any security interest or Lien in any of the Shared Interest
Collateral or in any other property granted to it by the Grantors hereunder or
under any of the other Collateral Trust Documents. The Collateral Trustee makes
no representations as to the value or condition of the Trust Estate or any part
thereof, or as to the title of any of the Grantors thereto or as to the security
afforded by the Collateral Trust Documents or this Agreement or, except as set
forth in Section 3.2 of this Agreement, as to the validity, execution,
enforceability, legality or sufficiency of this Agreement, any other Collateral
Trust Document or of the Interests secured hereby and thereby, and the
Collateral Trustee shall incur no liability or responsibility in respect of any
such matters. The Collateral Trustee shall not be responsible for insuring the
Trust Estate or for the payment of taxes, charges, assessments or liens upon the
Trust Estate or for the maintenance of the Trust Estate, except that (i) in the
event the Collateral Trustee enters into possession of all or any part of the
Trust Estate, the Collateral Trustee shall preserve such portion of the Trust
Estate in its possession and (ii) the Collateral Trustee will promptly, and at
its own expense, take such action as may be necessary to remove and discharge
(by bonding or otherwise) any Collateral Trustee's Lien on any part of the Trust
Estate or any other Lien on any part of the Trust Estate resulting from claims
against it individually.
(b) The Collateral Trustee shall not be required to ascertain or
inquire as to the performance by either of the Grantors of any of the covenants
or agreements contained herein or in any Collateral Trust Document. Whenever it
is necessary, or in the opinion of the Collateral Trustee advisable, for the
Collateral Trustee to ascertain the amount of Interests then held by a Holder,
the Collateral Trustee may rely on a certificate of such Holder (or the Agent or
the applicable Trustee on behalf of such Holder) as to such amount.
(c) PNC Bank, National Association shall, in its individual capacity
and at its own cost and expense, promptly take all action as may be necessary to
discharge any Collateral Trustee's Liens or any other Lien resulting from claims
against it individually.
(d) The Collateral Trustee shall not be personally liable for any acts,
omissions,
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errors of judgment or mistakes of fact or law made, taken or omitted
to be made or taken by it in accordance with this Agreement or any other
Collateral Trust Document (including, without limitation, acts, omissions,
errors or mistakes with respect to the Shared Interest Collateral), except for
those arising out of or in connection with the Collateral Trustee's gross
negligence or willful misconduct. Notwithstanding anything set forth herein to
the contrary, the Collateral Trustee shall have a duty of reasonable care with
respect to any notes and instruments which are delivered to the Collateral
Trustee or its designated representatives and are in the Collateral Trustee's or
its designated representatives' possession and control.
3.18. Delegation of Duties. The Collateral Trustee may execute any of
the trusts or powers hereof and perform any duty hereunder either directly or by
or through agents, nominees or attorneys-in-fact, provided that the Collateral
Trustee shall obtain a written acknowledgment from such agents, nominees or
attorneys-in-fact that they shall be liable to the Holders for losses or damages
incurred by any such Holder as a result of such agent's, nominee's or
attorney-in-fact's gross negligence or willful misconduct as and to the extent
the Collateral Trustee would be liable for such losses or damages if the actions
or omissions of such agents, nominees or attorneys-in-fact constituting such
gross negligence or willful misconduct had been actions or omissions of the
Collateral Trustee. The Collateral Trustee shall be entitled to advice of
counsel concerning all matters pertaining to such trusts, powers and duties. The
Collateral Trustee shall not be responsible for the negligence or misconduct of
any agents, nominees or attorneys-in-fact selected by it without gross
negligence or willful misconduct.
3.19. Reliance by Collateral Trustee. (a) Whenever in the
administration of the trusts under this Agreement the Collateral Trustee shall
deem it necessary or desirable that a matter be proved or established with
respect to any of the Grantors in connection with the taking, suffering or
omission of any action hereunder by the Collateral Trustee, such matter (unless
other evidence in respect thereof is specifically prescribed under this
Agreement) may be deemed to be conclusively provided or established by a
certificate of a Responsible Officer of such Grantor(s) or any officer of the
Agent or the Issuer Trustee or the SSC Master Trust Trustee, as applicable, in
each case, delivered to the Collateral Trustee, and such certificate shall be
full warranty to the Collateral Trustee for any action taken, suffered or
omitted in reliance thereon; subject, however, to the provisions of Section 3.20
of this Agreement. Without in any way limiting the foregoing, all certificates,
notices or directions required to be delivered by any of the Grantors, the Agent
or any Trustee to the Collateral Trustee pursuant to the terms hereof shall in
all cases be signed by a Responsible Officer of such Person, if such Person is a
Grantor, or, otherwise, by any officer thereof.
(b) The Collateral Trustee may consult with counsel, accountants and
other experts, and any opinion or advice of any such counsel, any such
accountant, and any such other expert shall be full and complete authorization
and protection in respect of any action taken or suffered by the Collateral
Trustee hereunder in accordance therewith. The Collateral Trustee shall have the
right at any time to seek instructions concerning the administration of the
Trust Estate from any court of competent jurisdiction.
(c) The Collateral Trustee may rely, and shall be fully protected in
acting, upon
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any resolution, statement, certificate, instrument, opinion, report, notice,
request, consent, order, bond or other paper or document which it has no
reasonable reason to believe to be other than genuine and to have been signed
or presented by the proper party or parties or, in the case of cables,
telecopies and telexes, to have been sent by the proper party or parties. In the
absence of its gross negligence or willful misconduct, the Collateral Trustee
may conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished to
the Collateral Trustee and conforming to the requirements of this Agreement or
any other Collateral Trust Document.
(d) If the Collateral Trustee has been requested or directed to take
action under this Agreement, including, without limitation, pursuant to Section
3.3, the Collateral Trustee shall not be under any obligation to exercise any of
the rights or powers vested in the Collateral Trustee by this Agreement or any
Collateral Trust Document unless the Collateral Trustee shall have been provided
adequate security and indemnity against the costs, expenses and liabilities
which may be incurred by it in compliance with such request or direction,
including such reasonable advances as may be requested by the Collateral
Trustee.
3.20. Limitations on Duties of Collateral Trustee. (a) The Collateral
Trustee shall be obligated to perform such duties and only such duties as are
specifically set forth in this Agreement or in any other Collateral Trust
Document, and no implied covenants or obligations shall be read into this
Agreement or any other Collateral Trust Document against the Collateral Trustee.
The Collateral Trustee shall exercise the rights and powers vested in it by this
Agreement or by any other Collateral Trust Document, and the Collateral Trustee
shall not be liable with respect to any action taken or omitted to be taken by
it in accordance with the direction of the Agent or the Issuer Trustee or the
SSC Master Trust Trustee, as the case may be, in accordance with the terms of
this Agreement.
(b) Except as herein otherwise expressly provided, the Collateral
Trustee shall not be under any obligation to take any action which is
discretionary with the Collateral Trustee under the provisions hereof or under
any Collateral Trust Document.
3.21. Monies to be Held in Trust. All monies received under or
pursuant to any provision of this Agreement or any Collateral Trust Document
shall be held in trust for the purposes for which they were paid or are held.
3.22. Resignation and Removal of the Collateral Trustee. (a) The
Collateral Trustee may at any time (and, if the Collateral Trustee shall at any
time cease to be an "Eligible Institution" (as defined in the Indenture), the
Collateral Trustee shall at such time), by giving thirty (30) days' prior
written notice to each of the Grantors, the Master Servicers, the Company, the
Trust Seller, the Agent, the Seller, the Issuer, and the Trustees, resign and be
discharged of the responsibilities hereby created, such resignation to become
effective upon the appointment of a successor Collateral Trustee or Collateral
Trustees (each of which Collateral Trustees shall be an Eligible Collateral
Trustee) by the Agent and the Trustees and the acceptance of such appointment by
such successor Collateral Trustee or Collateral Trustees (which acceptance shall
(i) be in writing, (ii) be signed by such successor Collateral Trustee and
delivered to each of the Agent
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and the Trustees and (iii) expressly acknowledge such successor Collateral
Trustee's agreement to be party to, and bound by, the terms of this Agreement,
including, without limitation, this Section 3.22). The Collateral Trustee may
be removed at any time and a successor Collateral Trustee appointed by the
affirmative vote of the Agent and the Trustees, which successor Collateral
Trustee shall, upon its acceptance of such appointment, deliver a written
acceptance thereof as set forth in the parenthetical in the immediately
preceding sentence; provided, that the Collateral Trustee shall be entitled to
its fees and expenses to the date of removal. If no successor Collateral Trustee
or Collateral Trustees shall be appointed and approved within thirty (30) days
from the date of the giving of the aforesaid notice of resignation or within
thirty (30) days from the date of such removal, the Collateral Trustee, the
Agent, the Issuer Trustee or the SSC Master Trust Trustee may apply to any court
of competent jurisdiction to appoint a successor Collateral Trustee or
Collateral Trustees (any of which shall be an Eligible Collateral Trustee) to
act until such time, if any, as a successor Collateral Trustee or Collateral
Trustees shall have been appointed as above provided. Any successor Collateral
Trustee or Collateral Trustees so appointed by such court shall immediately and
without further act be superseded by any successor Collateral Trustee or
Collateral Trustees appointed by the Agent and the Trustees.
(b) If at any time the Collateral Trustee shall resign, be removed or
otherwise become incapable of action, or if at any time a vacancy shall occur in
the office of the Collateral Trustee for any other cause, a successor Collateral
Trustee or Collateral Trustees (any of which shall be an Eligible Collateral
Trustee) may be appointed by the Agent and the Trustee, and the powers, duties,
authority and title of the predecessor Collateral Trustee or Collateral Trustees
shall be terminated and canceled with or without procuring the resignation of
such predecessor Collateral Trustee or Collateral Trustees, and without any
other action (except as may be required by applicable law) upon delivery to such
predecessor Collateral Trustee or Collateral Trustees of written notice, duly
executed by the Agent and the Trustees, of such appointment and designation of a
successor Collateral Trustee or Collateral Trustees, which notice shall be filed
for record in each public office, if any, in which this Agreement is required to
be filed.
(c) The appointment and designation referred to in Section 3.22(b) of
this Agreement shall be full evidence of the right and authority to make the
same and of all the facts therein recited, and this Agreement shall vest in such
successor Collateral Trustee or Collateral Trustees, without any further act,
deed or conveyance, all of the estate and title of its predecessor or their
predecessors, and upon such appointment and designation the successor Collateral
Trustee or Collateral Trustees shall become fully vested with all the estates,
properties, rights, powers, trusts, duties, authority and title of its
predecessor or their predecessors; but such predecessor or predecessors shall,
nevertheless, on the written request of the Agent, the Issuer Trustee or the SSC
Master Trust Trustee, either of the Grantors, or the successor Collateral
Trustee or Collateral Trustees, execute and deliver an instrument transferring
to such successor or successors all the estates, properties, rights, powers,
trusts, duties, authorities and title of such predecessor or predecessors
hereunder and shall deliver all securities and monies held by it or them to such
successor Collateral Trustee or Collateral Trustees. Should any deed, conveyance
or other instrument in writing from either of the Grantors be required by any
successor Collateral Trustee or Collateral Trustees for more fully and certainly
vesting in such successor Collateral Trustee or Collateral Trustees the estates,
properties, rights, powers, trusts, duties, authorities and title vested
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or intended to be vested in the predecessor Collateral Trustee or Collateral
Trustees, any and all such deeds, conveyances and other instruments in writing
shall, on the request of such successor Collateral Trustee or Collateral
Trustees, be so executed, acknowledged and delivered.
(d) Any required filing for record of the instrument appointing a
successor Collateral Trustee or Collateral Trustee as hereinabove provided shall
be at the expense of the Grantors. The resignation of any Collateral Trustee or
Collateral Trustees and the instrument or instruments removing any Collateral
Trustee or Collateral Trustees, together with all other instruments, deeds and
conveyances provided for in this Article 3 shall, if required by law, be
forthwith recorded, registered and filed by and at the expense of the Grantors,
wherever this Agreement is recorded, registered and filed.
(e) Notwithstanding any provision herein to the contrary, the
Collateral Trustee shall at all times be the same Person as the Person acting as
"Trustee" pursuant to the terms of (and as defined in) the Pooling and Servicing
Agreement and as the "Trustee" pursuant to the terms of (and as defined in) the
Indenture.
3.23. Merger of the Collateral Trustee. Any corporation (i)
into which the Collateral Trustee shall be merged, or with which it shall be
consolidated, (ii) resulting from any merger or consolidation to which the
Collateral Trustee shall be a party, or (iii) succeeding to all or substantially
all of the corporate trust business of the Collateral Trustee shall, to the
extent it would constitute an "Eligible Institution" (as defined in the
Indenture) be the Collateral Trustee under this Agreement without the execution
or filing of any paper or any further act on the part of the parties hereto.
ARTICLE 4. MISCELLANEOUS.
4.1. Notices. All notices and other communications provided for
hereunder shall, unless otherwise stated herein, be in writing (including
telecommunications and communication by facsimile copy) and mailed, telexed,
transmitted or delivered, as to each party hereto, at its address set forth
under its name on the signature pages hereof or at such other address as shall
be designated by such party in a written notice to the other parties hereto. All
such notices and communications shall be effective upon receipt, or, in the case
of notice by mail, five (5) days after being deposited in the mails, postage
prepaid, or in the case of notice by telex, when telexed against receipt of the
answerback, or in the case of notice by facsimile copy, when verbal confirmation
of receipt is obtained, in each case addressed as aforesaid.
4.2. Agreement Absolute. The SSC Master Trust Trustee shall be deemed
to have entered into the Operative Documents in express reliance upon this
Agreement, the Issuer Trustee shall be deemed to have entered into the Issuer
Documents in express reliance upon this Agreement, and the Lenders, the
Servicing Agent and the Agent shall be deemed to have entered into the Lender
Documents in express reliance upon this Agreement. This Agreement shall be and
remain absolute and unconditional under any and all circumstances, and no acts
or omissions on the part of any party to this Agreement shall affect or impair
the agreement of any party to this
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Agreement, unless otherwise agreed to in writing by all of the parties hereto.
This Agreement shall be applicable both before and after the filing of any
petition by or against the Company, the Trust Seller, the Seller, or the
Issuer under the Bankruptcy Code and all references herein to the Company or
the Seller shall be deemed to apply to a debtor-in-possession for such party
and all allocations of payments between the Lenders, the Issuer Trustee, the
SSC Master Trust Trustee and the Master Servicer shall, subject to any court
order to the contrary, continue to be made after the filing of such petition
on the same basis that the payments were to be applied prior to the date of
the petition.
4.3. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of each of the parties hereto and their respective
successors and assigns. The successors and assigns for the Company, the Trust
Seller, the Seller and the Issuer shall include a debtor-in-possession or
trustee of or for such party. The successors and assigns for the Lenders, the
Trustees, the Agent or the Master Servicers, as the case may be, shall include
any successor Lenders, Trustees, the Agent or the Master Servicers, as the case
may be, appointed under the terms of the Lender Documents, the Issuer Documents
or the Operative Documents, as applicable. Each of the Trustees and the Master
Servicers, as the case may be, agrees not to transfer any interest it may have
in the Lender Documents, the Issuer Documents or the Operative Documents unless
such transferee has been notified of the existence of this Agreement and has
agreed to be bound hereby. In the event that the financing provided under the
Credit Agreement shall be refinanced, replaced or refunded, the Seller, the
Issuer, the Master Servicers, the Trustees, the Company, the Trust Seller and
the Collateral Trustee, hereby agree, at the request of the agent or lenders
under the credit facility that so refinances, replaces or refunds the financing
under the Credit Agreement, to execute and deliver a new intercreditor agreement
with such agent and/or lenders or substantially the same terms as herein
provided. In the event that the financing provided under the Lender Documents
shall be refinanced, replaced or refunded, each of the Lenders, the Servicing
Agent and the Agent hereby agree, at the request of the agent or purchasers
under the facility that so refinances, replaces or refunds the financing under
the Lender Documents, to execute and deliver a new intercreditor agreement with
such agent and/or purchaser on substantially the same terms as herein provided.
The Agent, the Servicing Agent, the Collateral Trustee and each of the Lenders
hereby agree that in the event that any of the Agent, the Servicing Agent or a
Lender assigns any or all of its rights or interests under the Credit Agreement,
the assignee thereof shall execute and deliver to each of the Agent, the
Trustees and the Collateral Agent a Collateral Trust and Intercreditor Agreement
Acknowledgment, substantially in the form of Exhibit A hereto, pursuant to which
such assignee shall expressly acknowledge its obligations hereunder and agree to
be bound by all of the terms hereof.
4.4. Beneficiaries. The terms and provisions of this Agreement shall be
for the sole benefit of the parties hereto and their respective successors and
assigns, and no other Person shall have any right, benefit, or priority by
reason of this Agreement.
4.5. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF DELAWARE.
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4.6. Section Titles. The article and section headings contained in this
Agreement are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
4.7. Severability. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or thereof or affecting the
validity or enforceability of such provision in any other jurisdiction.
4.8. Execution in Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which when taken together shall constitute one and the same agreement.
4.9. Resolution of Disputes In Respect of Shared Interest Collateral.
In the event that a dispute as to the allocation or disposition of any Shared
Interest Collateral shall arise which cannot be resolved in good faith by mutual
agreement between the Agent, the Trustees, then any of the Agent, the Trustees
or the Collateral Trustee may apply for resolution of such dispute to any court
of competent jurisdiction. Other than as described in the preceding sentence,
and notwithstanding any other provision of this Agreement, the Collateral
Trustee shall have no right to take any action in respect of any Shared Interest
Collateral other than as authorized by the Agent and/or either of the Trustees
pursuant to the terms of this Agreement.
4.10. Limitations on Liability. None of the members, managers,
officers, employees, agents, stockholders, holders of limited liability company
interests or directors of or in the Trust Seller, the Company or the Trust
Master Servicer or the Seller, the Issuer or the Issuer Master Servicer, past,
present or future, shall be under any liability to the Trust, the Issuer
Trustee, the SSC Master Trust Trustee, the Agent, the Servicing Agent, any
Lender, any Certificateholder, or any Noteholder or any other Person for any
action taken or for refraining from the taking of any action in such capacities
or otherwise pursuant to this Agreement or for any obligation or covenant under
this Agreement, it being understood that, with respect to the Trust Seller, the
Company and the Master Servicer, the Seller, the Issuer and the Issuer Master
Servicer, this Agreement and the obligations created hereunder shall be, to the
fullest extent permitted under applicable law, solely the limited liability
company, limited partnership or corporate obligations of the Trust Seller, the
Company or the Trust Master Servicer, the Seller, the Issuer or the Issuer
Master Servicer, as applicable. The Trust Seller, the Company, the Trust Master
Servicer and any member, manager, officer, employee, agent, stockholder, or
holder of any limited liability company interest, or director of or in the Trust
Seller, the Company or the Trust Master Servicer, as applicable, may rely in
good faith on any document of any kind prima facie properly executed and
submitted by any Person (other than the Trust Seller or any Affiliate thereof,
in the case of the Trust Seller, or the Company or any Affiliate thereof, in the
case of the Company, or the Trust Master Servicer or any Affiliate thereof, in
the case of the Trust Master Servicer) respecting any matters arising hereunder.
The Seller, the Issuer, the Issuer Master Servicer and any member, manager,
officer, employee, agent, stockholder, or holder of any limited liability
company interest, or director of or in the Seller, the Issuer or the Issuer
Master Servicer, as applicable, may rely in good faith on any
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document of any kind prima facie properly executed and submitted by any Person
(other than the Seller or any Affiliate thereof, in the case of the Seller, or
the Issuer or any Affiliate thereof, in the case of the Issuer, or the Issuer
Master Servicer or any Affiliate thereof, in the case of the Issuer Master
Servicer) respecting any matters arising hereunder.
4.11. Nature of the Obligations and Modification of Lender Documents.
Each of the Trust Seller, the Company, the Trustees, the Master Servicers, the
Seller and the Issuer acknowledges that the Obligations and other obligations
and liabilities owing under the Lender Documents are, in part, revolving in
nature and that the amount of such revolving indebtedness which may be
outstanding at any time or from time to time may be increased or reduced and
subsequently reborrowed. The terms of the Lender Documents may be modified,
extended or amended from time to time, and the amount thereof may be increased
or reduced, all without notice to or consent by any of the Trust Seller, the
Trustees, the Master Servicers, the Seller or the Issuer and without affecting
the provisions of this Agreement. Without in any way limiting the foregoing,
each of the Trust Trustees, the Master Servicers, the Seller and the Issuer
hereby agrees that the maximum amount of Obligations and other obligations and
liabilities owing under the Lender Documents may be increased at any time and
from time to time to any amount.
4.12. Nature of the Trust Claim and Modification of Operative
Documents. Each of the Seller, the Company, the Lenders, and the Agent, the
Seller, the Issuer, the Issuer Master Servicer, and the Issuer Trustee
acknowledges that the Trust Claim and other obligations and liabilities owing
under the Operative Documents may be, in part, revolving in nature and that the
amount of such revolving indebtedness which may be outstanding at any time or
from time to time may be increased or reduced and subsequently reborrowed. The
terms of the Operative Documents may be modified, extended or amended from time
to time, and the amount thereof may be increased or reduced, all without notice
to or consent by any of the Company, the Lenders, the Agent, the Seller, the
Issuer, the Issuer Master Servicer or the Issuer Trustee and without affecting
the provisions of this Agreement. Without in any way limiting the foregoing,
each of the Company, the Lenders, the Agent, the Seller, the Issuer, the Issuer
Master Servicer, and the Issuer Trustee hereby agrees that the maximum amount of
Trust Claim and other obligations and liabilities owing under the Operative
Documents may be increased at any time and from time to time to any amount.
4.13. Nature of the Issuer Claim and Modification of Issuer Documents.
Each of the Trust Seller, the Company, the SSC Master Trust Trustee, the Trust
Master Servicer, the Lenders, and the Agent acknowledges that the Issuer Claims
and other obligations and liabilities owing under the Issuer Documents may be,
in part, revolving in nature and that the amount of such revolving indebtedness
which may be outstanding at any time or from time to time may be increased or
reduced and subsequently reborrowed. The terms of the Issuer Documents may be
modified, extended or amended from time to time, and the amount thereof may be
increased or reduced, all without notice to or consent by any of the Trust
Seller, the Company, the SSC Master Trust Trustee, the Trust Master Servicer,
the Lenders or the Agent and without affecting the provisions of this Agreement.
Without in any way limiting the foregoing, each of the Trust Seller, the
Company, the SSC Master Trust Trustee, the Trust Master Servicer, the Lenders
and the Agent
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hereby agrees that the maximum amount of Issuer Claims and other obligations
and liabilities owing under the Issuer Documents may be increased at any time
and from time to time to any amount.
4.14. Insolvency Proceeding. To and until the date which is one year
and one day after the later of (i) the Collection Date of the last outstanding
Series under the Pooling and Servicing Agreement and (ii) the Indenture
Termination Date, none of the parties hereto shall file or institute or join any
other Person in the filing or institution of any bankruptcy, dissolution or
insolvency proceeding against the Trust Seller or the Seller or the Issuer.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
ING (U.S.) CAPITAL CORPORATION,
as Agent, as a Lender and as Grantor
By:
---------------------------------------
Name:
Title:
Address: ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
PNC BANK, NATIONAL ASSOCIATION,
as Servicing Agent, and as a Lender and
as Grantor
By:
---------------------------------------
Name:
Title:
Address: PNC Bank Center
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Amended and Restated Collateral Trust and Intercreditor Agreement
PNC BANK, NATIONAL
ASSOCIATION, not in its
individual capacity but
solely as SSC Master
Trust Trustee, as Issuer
Trustee, and as Grantor
By:
---------------------------------------
Name:
Title:
Address: c/o PNC Bank, DE
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
PNC BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Collateral Trustee
By:
---------------------------------------
Name:
Title:
Address: c/o PNC Bank, DE
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Amended and Restated Collateral Trust and Intercreditor Agreement
▇.▇. ▇▇▇▇▇▇▇▇▇ S.S.C. LIMITED
PARTNERSHIP
By: ▇.▇. ▇▇▇▇▇▇▇▇▇ & Company, Inc.,
its general partner
By:
---------------------------------------
Name:
Title:
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Amended and Restated Collateral Trust and Intercreditor Agreement
▇.▇. ▇▇▇▇▇▇▇▇▇ RECEIVABLES I LLC,
as Trust Seller
By: ▇.▇. ▇▇▇▇▇▇▇▇▇ S.S.C. Limited
Partnership, its manager
By: ▇.▇. ▇▇▇▇▇▇▇▇▇ & Company, Inc.,
as general partner
By:
---------------------------------------
Name:
Title:
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇▇▇ RECEIVABLES II LLC,
as Borrower and as Seller
By: ▇.▇. ▇▇▇▇▇▇▇▇▇ S.S.C. Limited
Partnership, a member
By: ▇.▇. ▇▇▇▇▇▇▇▇▇ & Company, Inc.,
its general partner
By:
---------------------------------------
Name:
Title:
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Amended and Restated Collateral Trust and Intercreditor Agreement
▇.▇. ▇▇▇▇▇▇▇▇▇ RECEIVABLES III LLC,
as Issuer
By: ▇. ▇. ▇▇▇▇▇▇▇▇▇ Receivables II LLC,
a member
By: ▇.▇. ▇▇▇▇▇▇▇▇▇ S.S.C. Limited
Partnership, a member
By: ▇.▇. ▇▇▇▇▇▇▇▇▇ & Company, Inc.,
its general partner
By:
---------------------------------------
Name:
Title:
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇▇▇ & COMPANY, INC.,
as initial Master Servicer
By:
---------------------------------------
Name:
Title:
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Amended and Restated Collateral Trust and Intercreditor Agreement
EXHIBIT A
TO
COLLATERAL TRUST AND INTERCREDITOR AGREEMENT
FORM OF COLLATERAL TRUST AND
INTERCREDITOR AGREEMENT ACKNOWLEDGMENT
[DATE]
PNC BANK, NATIONAL ASSOCIATION,
as SSC Master Trust I Trustee
c/o PNC Bank, DE
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: _________________
PNC BANK, NATIONAL ASSOCIATION,
as Collateral Trustee
c/o PNC Bank, DE
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: _________________
PNC BANK, NATIONAL ASSOCIATION,
as Issuer Trustee
c/o PNC Bank, DE
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:__________________
ING (U.S.) CAPITAL CORPORATION,
as Agent
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: __________________
Reference is hereby made to (i) that certain Pooling and Servicing
Agreement (as the same may be amended, restated, supplemented or otherwise
modified from time to time, the "Pooling and Servicing Agreement"), dated as of
June 13, 1997, among ▇.▇. ▇▇▇▇▇▇▇▇▇ Receivables I LLC, as seller (the "Trust
Seller"), ▇.▇. ▇▇▇▇▇▇▇▇▇ & Company, Inc., as the initial
master servicer (the "Trust Master Servicer"), and PNC Bank, National
Association, as trustee (the "SSC Master Trust Trustee"), (ii) that certain
Series 1997-1 Supplement (as the same may be amended, restated, supplemented
or otherwise modified from time to time, the "Supplement"), dated as of
September 30, 1997, among the Trust Seller, the Trust Master Servicer and the
SSC Master Trust Trustee, (iii) that certain Master Trust Indenture and
Security Agreement (as the same may be amended, restated, supplemented or
otherwise modified from time to time, the "Indenture"), dated as of September
30, 1997, among ▇.▇. ▇▇▇▇▇▇▇▇▇ Receivables III LLC as issuer (the "Issuer"),
▇.▇. ▇▇▇▇▇▇▇▇▇ & Company, Inc., as the initial Master Servicer (the "Issuer
Master Servicer"), and PNC Bank, National Association, as trustee (the "Issuer
Trustee"), and (iv) that certain Amended and Restated Collateral Trust and
Intercreditor Agreement, dated as of June 13, 1997, among ING (U.S.) Capital
Corporation, as Agent and as Lender, PNC Bank, National Association, in its
separate capacities as Servicing Agent, as Lender, as Issuer Trustee, as SSC
Master Trust Trustee and as Collateral Trustee, the "Lenders" from time to
time parties thereto, the Trust Seller, the Trust Master Servicer, the Seller,
the Issuer Master Servicer, the Issuer Trustee and ▇.▇. ▇▇▇▇▇▇▇▇▇ S.S.C.
Limited Partnership (as the same may be amended, restated, supplemented or
otherwise modified from time to time, the "Intercreditor Agreement"). Unless
otherwise defined herein, capitalized terms used herein shall have the
meanings ascribed thereto in the Pooling and Servicing Agreement, the
Indenture and/or the Intercreditor Agreement, as applicable.
In accordance with Section 4.3 of the Intercreditor Agreement, the
undersigned is to become a party to the Intercreditor Agreement as [an
additional Lender] [the "Agent"] [the "Servicing Agent"] thereunder. In
connection therewith, as required pursuant to Section 4.3 of the Intercreditor
Agreement, the undersigned hereby (i) acknowledges that it has received and
reviewed a copy of the Intercreditor Agreement and (ii) agrees to bound by the
terms and provisions thereof applicable to the undersigned as [a Lender] [the
Agent] [the Servicing Agent].
IN WITNESS WHEREOF, the undersigned has executed this Collateral Trust
and Intercreditor Agreement Acknowledgment as of the date and year first above
written.
[--------------------------]
By:
--------------------------------
Name:
Title:
