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ADMINISTRATION AGREEMENT
among
▇▇▇▇▇▇ EQUIPMENT ASSET RECEIVABLES TRUST 1999-2,
as Issuer,
▇▇▇▇▇▇ FINANCIAL, INC.
as Administrator
▇▇▇▇▇▇ FUNDING CORPORATION,
as Trust Depositor,
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
as Indenture Trustee
Dated as of December [ ], 1999
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TABLE OF CONTENTS
SECTION 1. DUTIES OF THE ADMINISTRATOR.......................................................................2
SECTION 2. RECORDS...........................................................................................6
SECTION 3. COMPENSATION......................................................................................7
SECTION 4. ADDITIONAL INFORMATION TO BE FURNISHED TO THE ISSUER..............................................7
SECTION 5. INDEPENDENCE OF THE ADMINISTRATOR.................................................................7
SECTION 6. NO JOINT VENTURE..................................................................................7
SECTION 7. OTHER ACTIVITIES OF ADMINISTRATOR.................................................................7
SECTION 8. TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF ADMINISTRATOR.......................................7
SECTION 9. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL...................................................8
SECTION 10. NOTICES...........................................................................................9
SECTION 11. AMENDMENTS.......................................................................................10
SECTION 12. SUCCESSORS AND ASSIGNS...........................................................................10
SECTION 13. GOVERNING LAW....................................................................................11
SECTION 14. HEADINGS.........................................................................................11
SECTION 15. COUNTERPARTS.....................................................................................11
SECTION 16. SEVERABILITY.....................................................................................11
SECTION 17. NOT APPLICABLE TO ▇▇▇▇▇▇ FINANCIAL IN OTHER CAPACITIES...........................................11
SECTION 18. LIMITATION OF LIABILITY OF OWNER TRUSTEE AND INDENTURE TRUSTEE...................................11
SECTION 19. THIRD-PARTY BENEFICIARY..........................................................................11
SECTION 20. SURVIVABILITY....................................................................................12
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This Administration Agreement, dated as of Decemeber [ ], 1999, is
among ▇▇▇▇▇▇ Equipment Asset Receivables Trust 1999-2 (the "ISSUER"), ▇▇▇▇▇▇
Financial, Inc. ( together with its successors and assigns "▇▇▇▇▇▇
FINANCIAL") in its capacity as administrator (the "ADMINISTRATOR"), ▇▇▇▇▇▇
Funding Corporation (together with its successors and assigns, the "TRUST
DEPOSITOR") and Norwest Bank Minnesota, National Association, not in its
individual capacity but solely as Indenture Trustee (together with its
successors and assigns, the "INDENTURE TRUSTEE").
W I T N E S S E T H:
WHEREAS, the Issuer is issuing [ ]% Class A-1 Receivable-Backed
Notes, [ ]% Class A-2 Receivable-Backed Notes, [ ]% Class A-3
Receivable-Backed Notes, [ ]% Class A-4 Receivable-Backed Notes, [ ]% Class B
Receivable-Backed Notes, [ ]% Class C Receivable-Backed Notes, [ ]% Class D
Receivable-Backed Notes and [ ]% Class E Receivable-Backed Notes
(collectively, the "NOTES") pursuant to the Indenture, dated as of the date
hereof (the "INDENTURE"), between the Issuer and the Indenture Trustee
(capitalized terms used herein that are not otherwise defined shall have the
meanings ascribed thereto in the Sale and Servicing Agreement as defined in
the Indenture);
WHEREAS, the Issuer has entered into certain agreements in
connection with the issuance of the Notes and of certain beneficial ownership
interests of the Issuer, including (i) a Sale and Servicing Agreement, dated
as of the date hereof (the "SALE AND SERVICING AGREEMENT"), among the Issuer,
the Indenture Trustee, the Trust Depositor, ▇▇▇▇▇▇ Financial and ▇▇▇▇▇▇
Financial Leasing, as Originators and ▇▇▇▇▇▇ Financial, as Servicer
thereunder, and (ii) the Indenture, and (iii) the other Transaction Documents;
WHEREAS, pursuant to the Transaction Documents, the Issuer and the
Owner Trustee are required to perform certain duties in connection with (i)
the Notes and the Collateral therefor pledged pursuant to the Indenture and
(ii) the beneficial ownership interests in the Issuer evidenced by the
Certificates (the registered holders of such interests being referred to
herein as the "OWNERS");
WHEREAS, the Issuer and the Owner Trustee desire to have the
Administrator perform certain of the duties of the Issuer and the Owner
Trustee referred to in the preceding clause and to provide such additional
services consistent with the terms of this Agreement and the Transaction
Documents as the Issuer and the Owner Trustee may from time to time request;
and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and
the Owner Trustee on the terms set forth herein;
NOW, THEREAFTER, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
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Section 1. Duties of the Administrator.
(a) Duties with respect to the Indenture.
(i) The Administrator agrees to perform all its duties as
Administrator and the duties of the Issuer and the Owner Trustee
under the Transaction Documents. In addition, the Administrator
shall consult with the Owner Trustee regarding the duties of the
Issuer or the Owner Trustee under the Indenture. The Administrator
shall monitor the performance of the Issuer and shall advise the
Owner Trustee when action is necessary to comply with the respective
duties of the Issuer and the Owner Trustee under the Indenture. The
Administrator shall prepare for execution by the Issuer or shall
cause the preparation by other appropriate persons of, all such
documents, reports, filings, instruments, certificates and opinions
that it shall be the duty of the Issuer or the Owner Trustee to
prepare, file or deliver pursuant to the Indenture. In furtherance
of the foregoing, the Administrator shall take all appropriate
action that the Issuer or the Owner Trustee is required to take
pursuant to the Indenture including, without limitation, such of the
foregoing as are required with respect to the following matters
under the Indenture (references are to Sections of the Indenture):
(A) the duty to cause the Note Register to be kept and to
give the Indenture Trustee notice of any appointment of a new Note Registrar
and the location, or change in location, of the Note Register
(Section 2.04);
(B) the notification of Noteholders of the final principal
payment on their Notes (Section 2.07(b));
(C) the preparation of or obtaining of the documents and
instruments required for execution and authentication of the Notes
and delivery of the same to the Indenture Trustee (Section 2.02);
(D) the preparation, obtaining or filing of the
instruments, opinions and certificates and other documents
required for the release of Collateral (Section 2.12);
(E) the maintenance of an office in Wilmington, Delaware,
or the appointment of the Indenture Trustee as its agent therefor,
for registration of transfer or exchange of Notes (Section 3.02);
(F) the duty to cause newly appointed Paying Agents, if
any, to deliver to the Indenture Trustee the instrument specified in
the Indenture regarding funds held in trust (Section 3.03);
(G) the direction to the Indenture Trustee to deposit
monies with Paying Agents, if any, other than the Indenture Trustee
(Section 3.03);
(H) the obtaining and preservation of the Issuer's
qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of the Indenture, the Notes, the collateral and each
other instrument and agreement included in the Collateral (Section
3.04);
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(I) the preparation of all supplements and amendments
to the Indenture and all financing statements, continuation statements,
instruments of further assurance and other instruments and the
taking of such other action as is necessary or advisable to protect
the Collateral other than as prepared by the Servicer (Section 3.05);
(J) the delivery of certain statements as to compliance
with the Indenture (Sections 3.09);
(K) the identification to the Indenture Trustee in an
Officer's Certificate of a Person with whom the Issuer has
contracted to perform its duties under the Indenture (Section
3.07(b));
(L) the notification of the Indenture Trustee and each
Rating Agency of a Servicer Default under the Sale and Servicing
Agreement;
(M) the preparation and obtaining of documents and
instruments required for the release of the Issuer from its
obligations under the Indenture (Section 3.10(b));
(N) the monitoring of the Issuer's obligations as to the
satisfaction and discharge of the Indenture and the preparation of
an Officer's Certificate and the obtaining of the Opinion of Counsel
and the Independent Certificate relating thereto (Section 4.01);
(O) the compliance with any written directive of the
Indenture Trustee with respect to the sale of the Collateral in a
commercially reasonable manner if an Event of Default shall have
occurred and be continuing (Section 5.04);
(P) the preparation and delivery of notice to Noteholders
of the removal of the Indenture Trustee and the appointment of a
successor Indenture Trustee (Section 6.08);
(Q) the preparation of any written instruments required to
confirm more fully the authority of any co-trustee or separate
trustee and any written instruments necessary in connection with the
resignation or removal of the Indenture Trustee or any co-trustee or
separate trustee (Sections 6.08 and 6.10);
(R) the furnishing of the Indenture Trustee with the names
and addresses of Noteholders during any period when the Indenture
Trustee is not the Note Registrar (Section 7.01);
(S) the opening of one or more accounts in the Indenture
Trustee's name, the preparation and delivery of Issuer Orders,
Officer's Certificates and Opinions of Counsel and all other actions
necessary with respect to investment and reinvestment of funds in
the Trust Accounts (Sections 8.02 and 8.03);
(T) the preparation of an Issuer Request and Officer's
Certificate and the obtaining of an Opinion of Counsel and
Independent Certificates, if necessary, for the release of the
Collateral (Sections 8.04 and 8.05);
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(U) the preparation of Issuer Orders and the obtaining of
Opinions of Counsel with respect to the execution of supplemental
indentures and the mailing to the Noteholders of notices with
respect to such supplemental indentures (Sections 9.01, 9.02 and
9.03);
(V) the execution and delivery of new Notes conforming to
any supplemental indenture (Section 9.06);
(W) the duty to notify Noteholders of redemption of the
Notes or to cause the Indenture Trustee to provide such notification
(Section 10.02);
(X) the preparation and delivery of all Officer's
Certificates, Opinions of Counsel and Independent Certificates with
respect to any requests by the Issuer to the Indenture Trustee to
take any action under the Indenture (Section 11.01(a));
(Y) the preparation and delivery of Officer's Certificates
and the obtaining of Independent Certificates, if necessary, for the
release of property from the lien of the Indenture (Section
11.01(b));
(Z) the notification of the Rating Agencies, upon the
failure of the Issuer, the Owner Trustee or the Indenture Trustee to
provide notification;
(AA) the preparation and delivery to Noteholders and the
Indenture Trustee of any agreements with respect to alternate
payment and notice provisions (Section 11.06); and
(BB) the recording of the Indenture, if applicable (Section
11.14).
(ii) The Administrator will:
(A) except as otherwise expressly provided in the Indenture
or the Sale and Servicing Agreement, pay the Indenture Trustee's
fees and reimburse the Indenture Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by
the Indenture Trustee in accordance with any provision of the
Indenture (including the reasonable compensation, expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or
bad faith;
(B) indemnify the Indenture Trustee and its agents for, and
hold them harmless against, any loss, liability or expense incurred
without negligence or bad faith on their part, arising out of or in
connection with the acceptance or administration of the transactions
contemplated by the Indenture, including the reasonable costs and
expenses of defending themselves against any claim or liability in
connection with the exercise or performance of any of their powers
or duties under the Indenture; and
(C) indemnify the Owner Trustee and its agents for, and
hold them harmless against, any loss, liability or expense incurred
without negligence or bad faith on their part, arising out of or in
connection with the acceptance or administration of the
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transactions contemplated by the Trust Agreement, including the reasonable
costs and expenses of defending themselves against any claim or liability
in connection with the exercise or performance of any of their powers or
duties under the Trust Agreement (and including without limitation, an
indemnity as described above with respect to the Trust Depositor's
obligations in favor of the Owner Trustee under Section 8.02 of the Trust
Agreement).
(b) Additional Duties.
(i) In addition to the duties set forth in Section 1(a)(i),
the Administrator shall perform such calculations and shall prepare
or shall cause the preparation by other appropriate persons of, and
shall execute on behalf of the Issuer or the Owner Trustee, all such
documents, reports, filings, instruments, certificates and opinions
that the Issuer or the Owner Trustee are required to prepare, file
or deliver pursuant to the Transaction Documents or under Section
5.05 of the Trust Agreement, and at the request of the Owner Trustee
shall take all appropriate action that the Issuer or the Owner
Trustee are required to take pursuant to the Transaction Documents.
In furtherance thereof, the Owner Trustee shall, on behalf of the
Issuer, execute and deliver to the Administrator and to each
successor Administrator appointed pursuant to the terms hereof, one
or more powers of attorney substantially in the form of EXHIBIT A
hereto, appointing the Administrator the attorney-in-fact of the
Issuer for the purpose of executing on behalf of the Owner Trustee
and the Issuer all such documents, reports, filings, instruments,
certificates and opinions. Subject to Section 5, and in accordance
with the directions of the Issuer, the Administrator shall
administer, perform or supervise the performance of such other
activities in connection with the Collateral (including the
Transaction Documents) as are not covered by any of the foregoing
provisions and as are expressly requested by the Issuer and are
reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the
Transaction Documents to the contrary, the Administrator shall be
responsible for promptly notifying the Owner Trustee in the event
that any withholding tax is imposed on the Trust's payments (or
allocations of income) to an Owner as contemplated in Section
5.02(c) of the Trust Agreement. Any such notice shall specify the
amount of any withholding tax required to be withheld by the Owner
Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the
Transaction Documents to the contrary, the Administrator shall be
responsible for performance of the duties of the Owner Trustee set
forth in Section 5.05(a), (b), (c) and (d), the penultimate sentence
of Section 5.05 and Section 5.06(a) of the Trust Agreement with
respect to, among other things, accounting and reports to Owners;
PROVIDED, HOWEVER, that the Owner Trustee shall retain
responsibility for the distribution of information forms necessary
to enable each Owner to prepare its federal and state income tax
returns.
(iv) The Administrator shall satisfy its obligations with
respect to clauses (ii) and (iii) above by retaining, at the expense
of the Trust payable by the Administrator, a firm of independent
public accountants (the "ACCOUNTANTS") acceptable to the Owner
Trustee, which shall perform the obligations of the Administrator
thereunder.
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(v) The Administrator shall perform the duties of the
Administrator specified in Section 10.02 of the Trust Agreement
required to be performed in connection with the resignation or
removal of the Owner Trustee, and any other duties expressly
required to be performed by the Administrator under the Trust
Agreement.
(vi) In carrying out the foregoing duties or any of its
other obligations under this Agreement, the Administrator may enter
into transactions or otherwise deal with any of its Affiliates;
PROVIDED, HOWEVER, that the terms of any such transactions or
dealings shall be in accordance with any directions received from
the Issuer and shall be, in the Administrator's opinion, no less
favorable to the Issuer than would be available from unaffiliated
parties.
(c) Non-Ministerial Matters.
(i) With respect to matters that in the reasonable judgment
of the Administrator are non-ministerial, the Administrator shall
not take any action unless within a reasonable time before the
taking of such action, the Administrator shall have notified the
Owner Trustee of the proposed action and the Owner Trustee shall not
have withheld consent or provided an alternative direction. For the
purpose of the preceding sentence, "NON-MINISTERIAL MATTERS" shall
include, without limitation:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the Issuer
and the compromise of any action, claim or lawsuit brought by or
against the Issuer (other than in connection with the collection of
the Contracts);
(C) the amendment, change or modification of any other
Transaction Documents;
(D) the appointment of successor Note Registrars, successor
Paying Agents and successor Indenture Trustees pursuant to the
Indenture or the appointment of successor Administrators or a
successor Servicer, or the consent to the assignment by the Note
Registrar, Paying Agent or Indenture Trustee of its obligations
under the Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated to, and shall
not, (A) make any payments to the Noteholders under the Transaction
Documents, (B) sell the Collateral pursuant to clause (iv) of
Section 5.04 of the Indenture, (C) take any other action that the
Issuer directs the Administrator not to take on its behalf or (D)
take any other action which may be construed as having the effect of
varying the investment of the Holders.
Section 2. Records. The Administrator shall maintain appropriate books
of account and records relating to services performed hereunder, which books of
account and records shall be
6
accessible for inspection by the Issuer and the Owner Trustee at any time
during normal business hours.
Section 3. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement and as reimbursement for its
expenses related thereto, the Administrator shall be entitled to a monthly
fee which shall be solely an obligation of the Servicer as contemplated in
Section 5.19 of the Sale and Servicing Agreement and which shall be in an
amount as shall be agreeable to the Trust Depositor and the Administrator.
Section 4. Additional Information to be Furnished to the Issuer. The
Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
Section 5. Independence of the Administrator. For all purposes of
this Agreement, the Administrator shall be an independent contractor and
shall not be subject to the supervision of the Issuer or the Owner Trustee
with respect to the manner in which it accomplishes the performance of its
obligations hereunder. Unless expressly authorized by the Issuer, the
Administrator shall have no authority to act for or represent the Issuer or
the Owner Trustee in any way and shall not otherwise be deemed an agent of
the Issuer or the Owner Trustee.
Section 6. No Joint Venture. Nothing contained in this Agreement (i)
shall constitute the Administrator and either of the Issuer or the Owner
Trustee as members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) shall be construed to
impose any liability as such on any of them or (iii) shall be deemed to
confer on any of them any express, implied or apparent authority to incur any
obligation or liability on behalf of the others.
Section 7. Other Activities of Administrator. Nothing herein shall
prevent the Administrator or its Affiliates from engaging in other business
or, in its sole discretion, from acting in a similar capacity as an
administrator for any other Person or entity even though such person or
entity may engage in business activities similar to those of the Issuer, the
Owner Trustee or the Indenture Trustee.
Section 8. Term of Agreement; Resignation and Removal of
Administrator. This Agreement shall continue in force until the termination
of the Issuer, upon which event this Agreement shall automatically terminate.
(a) Subject to Section 8(d) and Section 8(e), the Administrator
may resign its duties hereunder by providing the Issuer with
at least 60 days' prior written notice.
(b) Subject to Section 8(d) and Section 8(e), the Issuer may
remove the Administrator without cause by providing the
Administrator with at least 60 days' prior written notice.
(c) Subject to Section 8(d) and Section 8(e), at the sole option
of the Issuer, the Administrator may be removed immediately
upon written notice of termination from the Issuer to the
Administrator if any of the following events shall occur:
7
(i) the Administrator shall default in the performance of
any of its duties under this Agreement and, after notice of such
default, shall not cure such default within ten days (or, if such
default cannot be cured in such time, shall not give within ten days
such assurance of cure as shall be reasonably satisfactory to the
Issuer);
(ii) a court having jurisdiction in the premises shall enter
a decree or order for relief, and such decree or order shall not have
been vacated within 60 days, in respect of the Administrator in any
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect or appoint a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official for the Administrator or any substantial part of its
property or order the winding-up or liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary case
under any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect, shall consent to the entry of an order for
relief in an involuntary case under any such law, or shall consent to
the appointment of a receiver, liquidator, assignee, trustee,
custodian, sequestrator or similar official for the Administrator or
any substantial part of its property, shall consent to the taking of
possession by any such official of any substantial part of its
property, shall make any general assignment for the benefit of
creditors or shall fail generally to pay its debts as they become
due.
The Administrator agrees that if any of the events specified in
clauses (ii) or (iii) above shall occur, it shall give written notice thereof
to the Issuer and the Indenture Trustee within seven days after the
occurrence of such event.
(d) No resignation or removal of the Administrator pursuant to
this Section shall be effective until (i) a successor
Administrator shall have been appointed by the Issuer and
(ii) such successor Administrator shall have agreed in
writing to be bound by the terms of this Agreement in the
same manner as the Administrator is bound hereunder.
(e) The appointment of any successor Administrator shall be
effective only after the satisfaction of the Rating Agency
Condition with respect to the proposed appointment.
(f) Subject to Section 8(d) and 8(e), the Administrator
acknowledges that upon the appointment of a Successor
Servicer pursuant to the Sale and Servicing Agreement, the
Administrator shall immediately resign (subject to Section
8(d) hereof).
Section 9. Action upon Termination, Resignation or Removal. Promptly
upon the effective date of termination of this Agreement pursuant to Section
8 or the resignation or removal of the Administrator pursuant to Section
8(a), (b) or (c) respectively, the Administrator shall be entitled to be paid
all fees and reimbursable expenses accruing to it to the date of such
termination, resignation or removal. The Administrator shall forthwith upon
such termination pursuant to Section 8 deliver to the Issuer all property and
documents of or relating to the Collateral then in the custody of the
Administrator. In the event of the resignation or removal of
8
the Administrator pursuant to Section (a), (b) or (c), respectively, the
Administrator shall cooperate with the Issuer and take all reasonable steps
requested to assist the Issuer in making an orderly transfer of the duties
of the Administrator.
Section 10. Notices. All notices, demands, certificates, requests
and communications hereunder ("notices") shall be in writing and shall be
effective (a) upon receipt when sent through the U.S. mails, registered or
certified mail, return receipt requested, postage prepaid, with such receipt
to be effective the date of delivery indicated on the return receipt, or (b)
one Business Day after delivery to an overnight courier, or (c) on the date
personally delivered to an Authorized Officer of the party to which sent, or
(d) on the date transmitted by legible telecopier transmission with a
confirmation of receipt, in all cases addressed to the recipient as follows:
(i) If to the Administrator:
▇▇▇▇▇▇ Financial, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Asset Distribution & Investments
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) If to the Trust Depositor:
▇▇▇▇▇▇ Funding Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
(iii) If to the Indenture Trustee:
Norwest Bank Minnesota, National Association
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ and Marquette Avenue
MAC ▇▇▇▇▇-▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporation Trust Services/Asset-Backed
Administration
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
9
(iv) If to the Issuer or the Owner Trustee:
Wilmington Trust Company
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Each party hereto may, by notice given in accordance herewith to each of the
other parties hereto, designate any further or different address to which
subsequent notices shall be sent.
Section 11. Amendments. This Agreement may be amended from time to
time by a written amendment duly executed and delivered by the parties
hereto, with the written consent of the Owner Trustee but without the consent
of the Noteholders and the Certificateholders, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Noteholders
or Certificateholders; provided that such amendment will not, in the Opinion
of Counsel satisfactory to the Indenture Trustee, materially and adversely
affect the interest of any Noteholder or Certificateholder. This Agreement
may also be amended by the parties hereto with the written consent of the
Owner Trustee and the Required Holders for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of Noteholders or
the Certificateholders; PROVIDED, HOWEVER, that no such amendment may (i)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on the Contracts or distributions that are
required to be made for the benefit of the Noteholders or Certificateholders
or (ii) reduce the aforesaid percentage of the holders of Notes and
Certificates which are required to consent to any such amendment, without the
consent of the Insurer and the holders of all outstanding Notes and
Certificates. Notwithstanding the foregoing, the Administrator may not amend
this Agreement without the permission of the Trust Depositor, which
permission shall not be unreasonably withheld.
Section 12. Successors and Assigns. This Agreement may not be
assigned by the Administrator unless such assignment is previously consented
to in writing by the Issuer, the Indenture Trustee and the Owner Trustee and
subject to the satisfaction of the Rating Agency Condition in respect
thereof. An assignment with such consent and satisfaction, if accepted by the
assignee, shall bind the assignee hereunder in the same manner as the
Administrator is bound hereunder. Notwithstanding the foregoing, this
Agreement may be assigned by the Administrator without the consent of the
Issuer or the Owner Trustee to a corporation or other organization that is a
successor (by merger, consolidation or purchase of assets) to the
Administrator; provided that such successor organization executes and
delivers to the Issuer, the Owner Trustee and the Indenture Trustee an
agreement, in form and substance reasonably satisfactory to the Owner Trustee
and the Indenture Trustee, in which such corporation or other organization
agrees to be bound hereunder by the terms of said assignment in the same
manner as the Administrator is bound hereunder. Subject to the foregoing,
this Agreement shall bind any successors or assigns of the parties hereto.
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Section 13. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 14. Headings. The section and subsection headings hereof
have been inserted for convenience of reference only and shall not be
construed to affect the meaning, construction or effect of this Agreement.
Section 15. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same agreement.
Section 16. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction.
Section 17. Not Applicable to ▇▇▇▇▇▇ Financial in Other Capacities.
Nothing in this Agreement shall affect any obligation ▇▇▇▇▇▇ Financial may
have in any other capacity.
Section 18. Limitation of Liability of Owner Trustee and Indenture
Trustee.
(a) Notwithstanding anything contained herein to the contrary,
this instrument has been countersigned by Wilmington Trust
Company not in its individual capacity but solely in its
capacity as Owner Trustee of the Issuer and in no event shall
Wilmington Trust Company in its individual capacity or any
beneficial owner of the Issuer have any liability for the
representations, warranties, covenants, agreements or other
obligations of the Issuer hereunder, as to all of which
recourse shall be had solely to the assets of the Issuer. For
all purposes of this Agreement, in the performance of any
duties or obligations of the Issuer hereunder, the Owner
Trustee shall be subject to, and entitled to the benefits of,
the terms and provisions of Articles Six, Seven and Eight of
the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary,
this Agreement has been countersigned by Norwest Bank
Minnesota, National Association not in its individual
capacity but solely as Indenture Trustee and in no event
shall Norwest Bank Minnesota, National Association have any
liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder or
in any of the certificates, notices or agreements delivered
pursuant hereto, as to all of which recourse shall be had
solely to the assets of the Issuer.
Section 19. Third-party Beneficiary. The Owner Trustee is a
third-party beneficiary to this Agreement and is entitled to the rights and
benefits hereunder and may enforce the provisions hereof as if it were a
party hereto.
11
Section 20. Survivability. The obligations of the Administrator
described in Section 1(a)(ii) hereof shall survive termination of this
Agreement.
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12
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
▇▇▇▇▇▇ EQUIPMENT ASSET RECEIVABLES TRUST 1999-2
By: Wilmington Trust Company, not its individual
capacity but solely as Owner Trustee
By:
---------------------------------------------------
Printed Name:
--------------------------------
Title:
---------------------------------------
▇▇▇▇▇▇ FUNDING CORPORATION, as Trust Depositor
By:
---------------------------------------------------
Printed Name:
--------------------------------
Title:
---------------------------------------
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, not in
its individual capacity but solely as Indenture Trustee
By:
---------------------------------------------------
Printed Name:
--------------------------------
Title:
---------------------------------------
▇▇▇▇▇▇ FINANCIAL, INC., as Administrator
By:
---------------------------------------------------
Printed Name:
--------------------------------
Title:
---------------------------------------
EXHIBIT A
LIMITED POWER OF ATTORNEY
State of Illinois )
) SS.
County of ▇▇▇▇ )
KNOW ALL PERSONS BY THESE PRESENTS, that Wilmington Trust Company, a
Delaware banking corporation (the "OWNER TRUSTEE"), by and through its duly
elected and authorized officer, ________________________, a
___________________, on behalf of ▇▇▇▇▇▇ Equipment Asset Receivables Trust
1999-2 (the "TRUST") as Issuer under the Administration Agreement, dated as
of December [ ], 1999 (the "ADMINISTRATION AGREEMENT"), among the Trust,
▇▇▇▇▇▇ Funding Corporation, Norwest Bank Minnesota, National Association, as
Indenture Trustee, and ▇▇▇▇▇▇ Financial, Inc., as Administrator, does hereby
nominate, constitute and appoint ▇▇▇▇▇▇ Financial, Inc., a Delaware
corporation, each of its officers from time to time and each of its employees
authorized by it from time to time to act hereunder, jointly and each of them
severally, together or acting alone, its true and lawful attorney-in-fact,
for the Issuer in their name, place and ▇▇▇▇▇, in the sole discretion of such
attorney-in-fact, to perform such calculations and prepare or cause the
preparation by other appropriate persons of, and to execute on behalf of the
Issuer, all such documents, reports, filings, instruments, certificates and
opinions that the Issuer or the Owner Trustee is required to prepare, file or
deliver pursuant to the Administration Agreement, and to take any and all
other action, as such attorney-in-fact may deem necessary or desirable in
accordance with the directions of the Owner Trustee and in connection with
its duties as Administrator or successor Administrator under the
Administration Agreement. Capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in the
Administration Agreement.
The Owner Trustee hereby ratifies and confirms the execution,
delivery and performance (whether before or after the date hereof) of the
above-mentioned documents, reports, filings, instruments, certificates and
opinions, by the attorney-in-fact and all that the attorney-in-fact shall
lawfully do or cause to be done by virtue hereof.
The Owner Trustee hereby agrees that no person or other entity
dealing with the attorney-in-fact shall be bound to inquire into such
attorney-in-fact's power and authority hereunder and any such person or
entity shall be fully protected in relying on such power of authority.
This Limited Power of Attorney may not be assigned without the prior
written consent of the Owner Trustee. It is effective immediately and will
continue until it is revoked.
This Limited Power of Attorney shall be governed and construed in
accordance with the laws of the State of Illinois without reference to
principles of conflicts of law.
A-1
Executed as of this ____ day of [_____________], 1999.
Wilmington Trust Company,
not in its individual capacity but solely as
Owner Trustee,
By:
------------------------------------------
Printed Name:
--------------------------------
Title:
---------------------------------------
A-2
CERTIFICATE OF ACKNOWLEDGMENT OF
NOTARY PUBLIC
State of Illinois )
) SS.
County of ▇▇▇▇ )
On ___________, 1999 before me, _____________________________________
[insert date] [Here insert name and title of notary]
personally appeared ___________________________________________________________
- personally known to me, or
- proved to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ties), and that by
his/her/their signature(s) on the instrument the person(s), or the entity
upon behalf of which person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature __________________________________________________ [SEAL]
A-3
