SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of Earliest Event Reported) September 17, 1996
Newcourt Receivables Corporation
(Exact Name of Registrant as Specified in its Charter)
Delaware
(State or Other Jurisdiction of Incorporation)
33-98378 77-041305
(Commission File Number) (I.R.S. Employer
Identification No.)
408-271-0500
(Registrant's Telephone Number, Including Area Code)
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Index to Exhibits appears at page 4.
ITEM 5. OTHER EVENTS.
The Registrant is filing final forms of the exhibits
listed in Item 7(c) below.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
EXHIBIT NO. DOCUMENT DESCRIPTION
1.1 Underwriting Agreement.
1.2 Terms Agreement.
4.1 Purchase Agreement
4.2 Pooling and Servicing Agreement.
4.3 Series 1996-2 Supplement to the Pooling and
Servicing Agreement.
4.4 Class A Trust Indenture
20 Monthly Servicer's Certificate.
SIGNATURES
Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be
signed on its behalf by the undersigned hereunto duly
authorized.
NEWCOURT RECEIVABLES CORPORATION
DATED: September 24, 1996 By: /s/ Daniel A. Jauernig
Daniel A. Jauernig
Vice President and Chief Financial
Officer and Director
INDEX TO EXHIBITS
EXHIBIT NO. Document Description
1.1 Underwriting Agreement.
1.2 Terms Agreement.
4.1 Purchase Agreement
4.2 Pooling and Servicing Agreement.
4.3 Series 1996-2 Supplement to the Pooling and
Servicing Agreement.
4.4 Class A Trust Indenture
20 Monthly Servicer's Certificate.
NEWCOURT RECEIVABLES CORPORATION (Seller)
NEWCOURT CREDIT GROUP INC. (Servicer)
UNDERWRITING AGREEMENT
(STANDARD TERMS)
September 12, 1996
First Union Capital Markets Corp.
301 South College Street, TW-10
Charlotte, North Carolina 28288-0610
Deutsche Morgan Grenfell/C.J. Lawrence Inc.
31 West 52nd Street
New York, New York 10019
Lehman Brothers Inc.
Three World Financial Center
New York, New York 10285
Ladies and Gentlemen:
Newcourt Receivables Corporation, a Delaware
corporation (the "Seller"), proposes to cause the Newcourt
Receivables Asset Trust (the "Trust") to issue the asset backed
notes designated in the applicable Terms Agreement (as
hereinafter defined) (the "Notes"). The Notes will be issued
pursuant to an indenture (the "Indenture") described in the
applicable Terms Agreement among the Trust, Fleet National Bank,
as collateral agent (the "Collateral Agent") and the trustee
identified in the applicable Terms Agreement (the "Indenture
Trustee") and will be secured pursuant to a Pooling, Collateral
Agency and Servicing Agreement (the "Pooling Agreement")
described in the applicable Terms Agreement among the Seller,
Newcourt Credit Group Inc., as servicer (the "Servicer"), the
Collateral Agent and Chase Manhattan Bank Delaware (formerly
Chemical Bank Delaware), as issuer trustee (the "Issuer
Trustee"), as supplemented by the Series Supplement, dated the
date specified in the applicable Terms Agreement, among the
Seller, the Servicer, the Collateral Agent and the Issuer Trustee
(the "Supplement"). The Series of Notes designated in the
applicable Terms Agreement will be sold in a public offering
through the underwriters listed on Schedule I to the applicable
Terms Agreement, one or more of which may act as representative
of such underwriters (any underwriter through which Notes are
sold shall be referred to herein as an "Underwriter" or,
collectively, all such Underwriters may be referred to as the
"Underwriters"; any representatives thereof may be referred to
herein as a "Representative"). Notes of any Series sold to the
Underwriters shall be sold pursuant to a Terms Agreement by and
among the Seller, the Servicer and the Representative, a form of
which is attached hereto as Exhibit A (a "Terms Agreement"),
which incorporates by reference this Underwriting Agreement (the
"Agreement", which may include the applicable Terms Agreement if
the context so requires). The term "applicable Terms Agreement"
means the Terms Agreement dated the date hereof. To the extent
not defined herein, capitalized terms used herein have the
meanings assigned to such terms in the Pooling Agreement. Unless
otherwise stated herein or in the applicable Terms Agreement, as
the context otherwise requires or if such term is otherwise
defined in the Pooling Agreement, each capitalized term used or
defined herein or in the applicable Terms Agreement shall relate
only to the Series of Notes designated in the applicable Terms
Agreement and no other Series of Asset Backed Notes issued by the
Trust.
Section 1. Representations and Warranties. Upon the
execution of the applicable Terms Agreement, the Seller and the
Servicer, represent and warrant to each Underwriter that:
(a) The Seller has prepared and filed with the
Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"),
a registration statement on Form S-3 (registration number
33-98378), including a form of prospectus, relating to the
Notes. The registration statement, as amended, has been
declared effective by the Commission. If any post-effective
amendment has been filed with respect thereto, prior to the
execution and delivery of the applicable Terms Agreement,
the most recent such amendment has been declared effective
by the Commission. Such registration statement, as amended
at the time it was declared effective by the Commission,
including all material incorporated by reference therein and
including all information (if any) deemed to be part of the
registration statement at the time it was declared effective
by the Commission, is referred to in this Agreement as the
"Registration Statement". Copies of the Registration
Statement, together with any post-effective amendments have
been furnished to the Underwriters. The Seller proposes to
file with the Commission pursuant to Rule 424 ("Rule 424")
under the Securities Act a supplement (the "Prospectus
Supplement") to the form of prospectus included in the
Registration Statement (such prospectus, in the form it
appears in the Registration Statement or in the form most
recently revised and filed with the Commission pursuant to
Rule 424 is hereinafter referred to as the "Basic
Prospectus") relating to the Notes and the plan of
distribution thereof. The Basic Prospectus and the
Prospectus Supplement, together with any amendment thereof
or supplement thereto, is hereinafter referred to as the
"Final Prospectus". Except to the extent that the
Representative shall agree in writing to a modification, the
Final Prospectus shall be in all substantial respects in the
form furnished to the Underwriters prior to the execution of
the relevant Terms Agreement. Any preliminary form of the
Prospectus Supplement which has heretofore been filed
pursuant to Rule 424 is hereinafter called a "Preliminary
Final Prospectus";
(b) The Registration Statement, including such
amendments thereto as may have been required on the date of
the applicable Terms Agreement, relating to the Notes, has
been filed with the Commission and such Registration
Statement as amended has become effective. No stop order
suspending the effectiveness of the Registration Statement
has been issued and no proceeding for that purpose has been
instituted or, to the knowledge of the Seller or the
Servicer, threatened by the Commission;
(c) The Registration Statement conforms, and any
amendments or supplements thereto and the Final Prospectus
will conform, in all material respects to the requirements
of the Securities Act and the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), and do not and will
not, as of the applicable effective date as to the
Registration Statement and any amendment thereto, as of the
applicable filing date as to the Final Prospectus and any
supplement thereto, and as of the Closing Date, contain an
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading; provided,
however, that this representation and warranty shall not
apply to (i) that part of the Registration Statement which
shall constitute the Statement of Eligibility and
Qualification (Form T-1) of the Indenture Trustee under the
Trust Indenture Act or (ii) any Underwriters' Information
(as defined in Section 10(b) hereof) contained therein. The
Indenture conforms in all respects to the requirements of
the Trust Indenture Act and the rules and regulations of the
Commission thereunder.
(d) The representations and warranties of the Seller
in Sections 2.4 and 2.5 of the Pooling Agreement and Section
8 of the Supplement will be true and correct as of the
Closing Date.
(e) The representations and warranties of the Servicer
in Section 3.6 of the Pooling Agreement and Section 8 of the
Supplement will be true and correct as of the Closing Date.
(f) The Servicer and each of its subsidiaries have
been duly incorporated and are validly existing as
corporations in good standing under the laws of their
respective jurisdictions of incorporation, are duly
qualified to do business and are in good standing as foreign
corporations in each jurisdiction in which their respective
ownership or lease of property or the conduct of their
respective businesses requires such qualification, and have
all power and authority necessary to own or hold their
respective properties and to conduct the businesses in which
they are engaged, except where the failure to so qualify or
have such power or authority could not have, individually or
in the aggregate, a material adverse effect on the condition
(financial or otherwise), results of operations, business or
prospects of the Servicer and its subsidiaries taken as a
whole.
(g) All the outstanding shares of capital stock of the
Seller have been duly authorized and validly issued, are
fully paid and nonassessable and, except to the extent set
forth in the Registration Statement, are owned by the
Servicer directly or indirectly through one or more wholly-
owned subsidiaries, free and clear of any claim, lien,
encumbrance, security interest, restriction upon voting or
transfer or any other claim of any third party.
(h) (i) each of the Pooling Agreement and the
Supplement, when duly executed by the Seller and the
Servicer and delivered by such parties, will constitute a
valid and binding agreement of the Seller and the Servicer
enforceable against them in accordance with its terms; (ii)
the Indenture, when duly executed by the Issuer Trustee and
delivered by the Issuer Trustee, will constitute a valid and
binding agreement if the trust enforceable against the Trust
in accordance with its terms; (iii) the Notes, when duly
executed, authenticated, issued and delivered as provided in
the Indenture, will be duly and validly issued and
outstanding and will constitute valid and binding
obligations of the Trust entitled to the benefits of the
Indenture and enforceable in accordance with its terms; and
(iv) the Indenture, the Pooling Agreement, the Supplement
(collectively, the "Transaction Agreements") and the Notes
conform to the descriptions thereof contained in the Final
Prospectus.
(i) The execution, delivery and performance of this
Agreement, the Transaction Agreements to which the Servicer
or its subsidiary, as the case may be, is a party and the
issuance and sale of the Notes, the consummation of the
transactions contemplated hereby and thereby will not
conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Servicer or any
of its subsidiaries is a party or by which the Servicer or
any of its subsidiaries is bound or to which any of the
property or assets of the Servicer or any of its
subsidiaries is subject, nor will such actions result in any
violation of the provisions of the charter or by-laws of the
Servicer or any of its subsidiaries or any statute or any
order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Servicer or any
of its subsidiaries or any of their properties or assets;
and except for the registration of the Notes under the
Securities Act, the qualification of the Indenture under the
Trust Indenture Act, such consents, approvals,
authorizations, registrations or qualifications as may be
required under the Exchange Act and applicable state
securities laws in connection with the purchase and
distribution of the Notes by the Underwriters and the filing
of any financing statements required to perfect the Trust's
interest in the Trust Assets, no consent, approval,
authorization or order of, or filing or registration with,
any such court or governmental agency or body is required
for the execution, delivery and performance of this
Agreement or the Transaction Agreements, the issuance and
sale of the Notes and the consummation of the transactions
contemplated hereby and thereby.
(j) There are no contracts or other documents which
are required to be described in the Final Prospectus or
filed as exhibits to the Registration Statement by the
Securities Act and which have not been so described or
filed.
(k) There are no legal or governmental proceedings
pending to which the Servicer or any of its subsidiaries is
a party or of which any property or assets of the Servicer
or any of its subsidiaries is the subject which,
individually or in the aggregate, if determined adversely to
the Servicer or any of its subsidiaries, are reasonably
likely to have a material adverse effect on the condition
(financial or otherwise), results of operations, business or
prospects of the Servicer and its subsidiaries taken as a
whole; and to the best of the Servicer's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(l) Neither the Servicer nor any of its subsidiaries
(i) is in violation of its charter or by-laws, (ii) is in
default in any material respect, and no event has occurred
which, with notice or lapse of time or both, would
constitute such a default, in the due performance or
observance of any term, covenant or condition contained in
any material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a
party or by which it is bound or to which any of its
property or assets is subject or (iii) is in violation in
any respect of any law, ordinance, governmental rule,
regulation or court decree to which it or its property or
assets may be subject, except any violation or default that
could not have a material adverse effect on the condition
(financial or otherwise), results of operations, business or
prospects of the Servicer and its subsidiaries taken as a
whole.
(m) Each of this Agreement and the applicable Terms
Agreement have been duly authorized, executed and delivered
by each of the Seller and the Servicer; and
(n) Neither the Trust nor the Seller is required to be
registered under the Investment Company Act of 1940, as
amended.
Section 2. Purchase and Sale. Subject to the terms
and conditions and in reliance upon the covenants,
representations and warranties herein set forth, the Seller
agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Seller, the
principal amount of Notes set forth opposite such Underwriter's
name in Schedule I to the applicable Terms Agreement. The
purchase price for the Notes shall be as set forth in the
applicable Terms Agreement.
Section 3. Delivery and Payment. Unless otherwise
provided in the applicable Terms Agreement, payment for the Notes
shall be made to the Seller or to its order by wire transfer of
same day funds at the office of Simpson Thacher & Bartlett in New
York, New York at 10:00 A.M., New York City time, on the Closing
Date (as hereinafter defined) specified in the Terms Agreement,
or at such other time on the same or such other date as the
Representative and the Seller may agree upon. The time and date
of such payment for the Notes as specified in the applicable
Terms Agreement are referred to herein as the "Closing Date." As
used herein, the term "Business Day" means any day other than a
day on which banks are permitted or required to be closed in New
York City.
Unless otherwise provided in the applicable Terms
Agreement, payment for the Notes shall be made against delivery
to the Representative for the respective accounts of the several
Underwriters of the Notes registered in the name of Cede & Co. as
nominee of The Depository Trust Company and in such denominations
as the Representative shall request in writing not later than two
full Business Days prior to the Closing Date. The Seller shall
make the Notes available for inspection by the Representative in
New York, New York not later than one full Business Day prior to
the Closing Date.
Section 4. Offering by Underwriters. It is understood
that the several Underwriters propose to offer the Notes for sale
to the public, which may include selected dealers, as set forth
in the Final Prospectus.
Section 5. Covenants of the Seller. The Seller
covenants and agrees with the Underwriters that upon the
execution of the applicable Terms Agreement:
(a) Immediately following the execution of such
applicable Terms Agreement, the Seller will prepare a
Prospectus Supplement setting forth the amount of Notes
covered thereby and the terms thereof not otherwise
specified in the Basic Prospectus, the price at which such
Notes are to be purchased by the Underwriters, the initial
public offering price, the selling concessions and
allowances, and such other information as the Seller deems
appropriate. The Seller will file such Prospectus
Supplement with the Commission pursuant to Rule 424 within
the time prescribed therein and will provide evidence
satisfactory to the Representative of such timely filing.
(b) During the period that a prospectus relating to
the Notes is required to be delivered under the Securities
Act in connection with sales of such Notes (such period
being hereinafter sometimes referred to as the "prospectus
delivery period"), before filing any amendment or supplement
to the Registration Statement or the Final Prospectus, the
Seller will furnish to the Representative a copy of the
proposed amendment or supplement for review and will not
file any such proposed amendment or supplement to which the
Representative reasonably objects.
(c) During the prospectus delivery period, the Seller
will advise the Representative promptly after it receives
notice thereof, (i) when any amendment to the Registration
Statement shall have become effective; (ii) of any request
by the Commission for any amendment or supplement to the
Registration Statement or the Final Prospectus or for any
additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of
the Registration Statement or the initiation or threatening
of any proceeding for that purpose, (iv) of the issuance by
the Commission of any order preventing or suspending the use
of any Preliminary Final Prospectus or Final Prospectus or
the initiation or threatening of any proceedings for that
purpose and (v) of any notification with respect to any
suspension of the qualification of the Notes for offer and
sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; and will use its best
efforts to prevent the issuance of any such stop order or
suspension and, if any is issued, will promptly use its best
efforts to obtain the withdrawal thereof.
(d) If, at any time during the prospectus delivery
period, any event occurs as a result of which the Final
Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not
misleading, or if it shall be necessary to amend or
supplement the Final Prospectus to comply with the
Securities Act, the Seller promptly will prepare and file
with the Commission, an amendment or a supplement which will
correct such statement or omission or effect such
compliance.
(e) The Seller will endeavor to qualify the Notes for
offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Representative shall reasonably request
and will continue such qualification in effect so long as
reasonably required for distribution of the Notes; provided,
however, that the Seller shall not be obligated to qualify
to do business in any jurisdiction in which it is not
currently so qualified; and provided, further, that the
Seller shall not be required to file a general consent to
service of process in any jurisdiction.
(f) The Seller will furnish to the Representative,
without charge, two copies of the Registration Statement
(including exhibits thereto), one of which will be signed,
and to each Underwriter conformed copies of the Registration
Statement (without exhibits thereto) and, during the
prospectus delivery period, as many copies of any
Preliminary Final Prospectus and the Final Prospectus and
any supplement thereto as the Underwriters may reasonably
request.
(g) For a period from the date of this Agreement until
the retirement of the Notes, or until such time as the
Underwriters shall cease to maintain a secondary market in
the Notes, whichever first occurs, the Seller will deliver
to the Underwriters (i) the annual statements of compliance,
(ii) the annual independent certified public accountants'
reports furnished to the Issuer Trustee and the Indenture
Trustee (collectively, the "Trustees"), (iii) all documents
required to be distributed to Noteholders of the Trust and
(iv) all documents filed with the Commission pursuant to the
Exchange Act or any order of the Commission thereunder, in
each case as provided to the Trustees or filed with the
Commission, as soon as such statements and reports are
furnished to the Trustees or filed or as soon thereafter as
practicable.
(h) To the extent, if any, that the rating provided
with respect to the Notes by the rating agency or agencies
that initially rate the Notes is conditional upon the
furnishing of documents or the taking of any other actions
by the Seller, the Seller shall furnish such documents and
take any such other actions.
(i) The Seller will cause the Trust to make generally
available to Noteholders and to the Representative as soon
as practicable an earnings statement covering a period of at
least twelve months beginning with the first fiscal quarter
of the Trust occurring after the effective date of the
Registration Statement, which shall satisfy the provisions
of Section 11(a) of the Securities Act and Rule 158 of the
Commission promulgated thereunder.
(j) For a period of 90 days from the date hereof, the
Seller will not offer for sale, sell, contract to sell or
otherwise dispose of, directly or indirectly, or file a
registration statement for, or announce any offering of, any
securities collateralized by, or evidencing an ownership
interest in, any asset-backed securities of the Seller or
the Trust (other than the Notes purchased hereunder) without
the prior written consent of the Underwriters.
(k) Without First Union Capital Markets Corp.'s prior
written consent, the Seller will not, and the Servicer will
not cause the Seller to, offer and sell the securities
registered under the Securities Act on the registration
statement on Form S-3 (registration number 33-98378).
Section 6. Conditions to the Obligations of the
Underwriters. The respective obligations of the several
Underwriters hereunder are subject to the accuracy, when made and
on the Closing Date, of the representations and warranties of the
Seller and the Servicer contained herein, to the accuracy of the
statements of the Seller and the Servicer made in any
certificates pursuant to the provisions hereof, to the
performance by the Seller and the Servicer of their respective
obligations hereunder and under the applicable Terms Agreement
and to each of the following additional terms and conditions:
(a) The Final Prospectus shall have been filed with
the Commission pursuant to Rule 424 in the manner and within
the applicable time period prescribed for such filing by the
rules and regulations of the Commission under the Securities
Act and in accordance with Section 5(a) of this Agreement;
and, prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceedings for such
purpose shall have been initiated or threatened by the
Commission; and all requests for additional information from
the Commission with respect to the Registration Statement
shall have been complied with to the reasonable satisfaction
of the Representative.
(b) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this
Agreement, the Transaction Agreements, the Notes, the
Registration Statement, the Preliminary Final Prospectus and
the Final Prospectus, and all other legal matters relating
to such agreements and the transactions contemplated hereby
and thereby shall be reasonably satisfactory in all material
respects to counsel for the Underwriters, and the Seller
shall have furnished to such counsel all documents and
information that they may reasonably request to enable them
to pass upon such matters.
(c) Skadden, Arps, Slate, Meagher & Flom shall have
furnished to the Representative their written opinion, as
U.S. counsel to the Seller and the Servicer, addressed to
the Underwriters and dated the Closing Date, in form and
substance reasonably satisfactory to the Underwriters.
(d) (x) John Stevenson shall have furnished to the
Representative his written opinion, as Secretary to the
Servicer, addressed to the Underwriters and dated the
Closing Date, in form and substance reasonably satisfactory
to the Underwriters and (y) K. Nicholas Martitsch shall have
furnished to the Representative his written opinion, as
senior counsel to Newcourt Financial USA Inc., addressed to
the Underwriters and dated the Closing Date, in form and
substance reasonably satisfactory to the Underwriters.
(e) Skadden, Arps, Slate, Meagher & Flom shall have
furnished to the Representative their written opinion, as
U.S. counsel to the Seller and the Servicer, addressed to
the Underwriters and dated the Closing Date, in form and
substance reasonably satisfactory to the Underwriters, with
respect to the characterization of the transfer of the
Assets by the Financing Originators to the Seller pursuant
to the Purchase Agreement as a sale and the non-
consolidation of the Newcourt USA and the Seller.
(f) The Representative shall have received from
Simpson Thacher & Bartlett, counsel for the Underwriters,
such opinion or opinions, dated the Closing Date, with
respect to such matters as the Underwriters may require, and
the Seller shall have furnished to such counsel such
documents as they reasonably request for enabling them to
pass upon such matters.
(g) Pryor, Cashman, Sherman & Flynn shall have
furnished to the Representative their written opinion, as
counsel to the Issuer Trustee, addressed to the Underwriters
and dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriters.
(h) Day, Berry & Howard shall have furnished to the
Representative their written opinion, as counsel to the
Indenture Trustee, addressed to the Underwriters and dated
the Closing Date, in form and substance reasonably
satisfactory to the Underwriters.
(i) Each of the Seller and the Servicer shall have
furnished to the Representative a certificate, dated the
Closing Date, of any of its Chairman of the Board, President
or Vice President and its chief financial officer stating
that (i) such officers have carefully examined the
Registration Statement and the Final Prospectus, (ii) the
Final Prospectus does not contain any untrue statement of a
material fact or omit to state a material fact required to
be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading, (iii) the
representations and warranties of the Servicer or the
Seller, as the case may be, contained in this Agreement, the
Purchase Agreement and the Transaction Agreements are true
and correct in all material respects on and as of the
Closing Date, (iv) the Servicer or the Seller, as the case
may be, has complied in all material respects with all
agreements and satisfied in all material respects all
conditions on its part to be performed or satisfied
hereunder and under such agreements at or prior to the
Closing Date, (v) no stop order suspending the effectiveness
of the Registration Statement has been issued and is
outstanding and no proceedings for that purpose have been
instituted and not terminated or, to the best of his or her
knowledge, are contemplated by the Commission, and
(vi) since the date of its most recent financial statements,
there has been no material adverse change in the financial
position or results of operations of the Servicer or the
Seller, as applicable, or the Trust or any change, or any
development including a prospective change, in or affecting
the condition (financial or otherwise), results of
operations or business of the Servicer, the Seller or the
Trust except as set forth in or contemplated by the
Registration Statement and the Final Prospectus.
(j) Subsequent to the date of this Agreement, there
shall not have occurred (i) any change, or any development
involving a prospective change, in or affecting particularly
the business or properties of the Seller or the Servicer
which materially impairs the investment quality of the
Notes; (ii) trading in securities generally on the New York
Stock Exchange, the American Stock Exchange or the over-the-
counter market shall have been suspended or limited, or
minimum prices shall have been established on either of such
exchanges or such market by the Commission, by such exchange
or by any other regulatory body or governmental authority
having jurisdiction, or trading in securities of the Seller
or the Servicer on any exchange or in the over-the-counter
market shall have been suspended or (iii) a general
moratorium on commercial banking activities shall have been
declared by Federal or New York State authorities or (iv) an
outbreak or escalation of hostilities or a declaration by
the United States of a national emergency or war or such a
material adverse change in general economic, political or
financial conditions (or the effect of international
conditions on the financial markets in the United States
shall be such) as to make it, in the judgment of the
Representative, impracticable or inadvisable to proceed with
the public offering or the delivery of the Notes on the
terms and in the manner contemplated in the Final
Prospectus.
(k) With respect to the letter of Ernst & Young LLP,
delivered to the Underwriters concurrently with the
execution of the applicable Terms Agreement (the "initial
letter"), the Seller shall have furnished to the
Underwriters a letter (the "bring-down letter") of such
accountants, addressed to the Underwriters and dated the
Closing Date (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are
in compliance with the applicable requirements relating to
the qualifications of accountants under Rule 2-01 of
Regulation S-X of the Commission, (ii) stating, as of the
date of the bring-down letter (or with respect to matters
involving changes or developments since the respective dates
as of which specified financial information is given in the
Final Prospectus, as of a date not more than five days prior
to the date of such bring-down letter), the conclusions and
findings of such firm with respect to the financial
information and other matters covered by its initial letter
and (iii) confirming in all material respects the
conclusions and findings set forth in its initial letter.
(l) The Underwriters shall receive evidence
satisfactory to them that, on or before the Closing Date,
UCC-1 financing statements have been or are being filed in
each office in each jurisdiction in which such financing
statements are required to perfect the first priority
security interests created by the Pooling Agreement
reflecting the interest of the Collateral Agent in the
Receivables and the proceeds thereof.
(m) Subsequent to the execution and delivery of this
Agreement and the applicable Terms Agreement, (i) no
downgrading shall have occurred in the rating accorded the
Notes or any of the Seller's other debt securities by any
"nationally recognized statistical rating organization", as
that term is defined by the Commission for purposes of Rule
436(g)(2) of the Securities Act and (ii) no such
organization shall have publicly announced that it has under
surveillance or review (other than an announcement with
positive implications of a possible upgrading), its rating
of the Notes or any of the Seller's other debt securities.
All opinions, letters, evidence and certificates
mentioned above or elsewhere in this Agreement shall be deemed to
be in compliance with the provisions hereof only if they are in
form and substance reasonably satisfactory to counsel for the
Underwriters.
Section 7. Termination. The obligations of the
Underwriters hereunder may be terminated by the Representative,
in its absolute discretion, by notice given to and received by
the Seller and the Servicer prior to delivery of and payment for
the Notes if, prior to that time, any of the events described in
Section 6(i) or Section 6(m) shall have occurred.
Section 8. Defaulting Underwriters. (a) If, on the
Closing Date, any Underwriter or Underwriters default in the
performance of its or their obligations under this Agreement, the
Representative may make arrangements for the purchase of such
Notes by other persons satisfactory to the Seller and the
Representative, including any of the Underwriters, but if no such
arrangements are made by the Closing Date, then each remaining
non-defaulting Underwriter shall be severally obligated to
purchase the Notes which the defaulting Underwriter or
Underwriters agreed but failed to purchase on the Closing Date in
the respective proportions which the principal amount of Notes
set forth opposite the name of each remaining non-defaulting
Underwriter in Schedule I to the Term Agreement bears to the
aggregate principal amount of Notes set forth opposite the names
of all the remaining non-defaulting Underwriters in Schedule I to
the Terms Agreement; provided, however, that the remaining
non-defaulting Underwriters shall not be obligated to purchase
any of the Notes on the Closing Date if the aggregate principal
amount of Notes which the defaulting Underwriter or Underwriters
agreed but failed to purchase on such date exceeds one-eleventh
of the aggregate principal amount of the Notes to be purchased on
the Closing Date, and any remaining non-defaulting Underwriter
shall not be obligated to purchase in total more than 110% of the
principal amount of the Notes which it agreed to purchase on the
Closing Date pursuant to the terms of Section 2. If the
foregoing maximums are exceeded and the remaining Underwriters or
other underwriters satisfactory to the Representative and the
Seller do not elect to purchase the Notes which the defaulting
Underwriter or Underwriters agreed but failed to purchase, this
Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Seller, except that the
provisions of Sections 9 and 13 shall not terminate and shall
remain in effect. As used in this Agreement, the term
"Underwriter" includes, for all purposes of this Agreement unless
the context otherwise requires, any party not listed in Schedule
I to the Terms Agreement who, pursuant to this Section 8,
purchases Notes which a defaulting Underwriter agreed but failed
to purchase.
(b) Nothing contained herein shall relieve a
defaulting Underwriter of any liability it may have for damages
caused by its default. If other Underwriters are obligated or
agree to purchase the Notes of a defaulting Underwriter, either
the Representative or the Seller may postpone the Closing Date
for up to seven full business days in order to effect any changes
that in the opinion of counsel for the Seller or counsel for the
Underwriters may be necessary in the Registration Statement, the
Final Prospectus or in any other document or arrangement, and the
Seller agrees to file promptly any amendment or supplement to the
Registration Statement or the Final Prospectus that effects any
such changes.
Section 9. Reimbursement of Underwriters' Expenses.
If (i) the Seller shall fail to tender the Notes for delivery to
the Underwriters for any reason permitted under this Agreement or
(ii) the Underwriters shall decline to purchase the Notes for any
reason permitted under this Agreement, the Seller shall reimburse
the Underwriters for the fees and expenses of their counsel and
for such other out-of-pocket expenses as shall have been
reasonably incurred by them in connection with this Agreement and
the proposed purchase of the Notes, and upon demand the Seller
shall pay the full amount thereof to the Representative. If this
Agreement is terminated pursuant to Section 8 by reason of the
default of one or more Underwriters, the Seller shall not be
obligated to reimburse any defaulting Underwriter on account of
those expenses.
Section 10. Indemnification. (a) The Servicer and
the Seller shall, jointly and severally, indemnify and hold
harmless each Underwriter and each person, if any, who controls
any Underwriter within the meaning of the Securities Act
(collectively referred to for the purposes of this Section 10 as
the Underwriter) against any loss, claim, damage or liability,
joint or several, or any action in respect thereof, to which that
Underwriter may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or
action arises out of or is based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement as originally filed or in any amendment
thereof or supplement thereto, or in any Preliminary Final
Prospectus or the Final Prospectus or in any amendment thereof or
supplement thereto or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and
shall reimburse each Underwriter for any legal or other expenses
reasonably incurred by that Underwriter directly in connection
with investigating or preparing to defend or defending against or
appearing as a third party witness in connection with any such
loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that neither the Servicer nor the
Seller shall be liable in any such case to the extent that any
such loss, claim, damage, liability or action arises out of or is
based upon an untrue statement or alleged untrue statement in or
omission or alleged omission from any Registration Statement as
originally filed or in any amendment thereof or supplement
thereto, or in any Preliminary Final Prospectus or the Final
Prospectus or in any amendment thereof or supplement thereto in
reliance upon and in conformity with the Underwriters'
Information.
(b) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Seller, each of its directors,
each officer of the Seller who signed the Registration Statement
and each person, if any, who controls the Seller within the
meaning of the Securities Act (collectively referred to for the
purposes of this Section 10 as the Seller), against any loss,
claim, damage or liability, joint or several, or any action in
respect thereof, to which the Seller may become subject, under
the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of or is based upon (i)
any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement as originally filed
or in any amendment thereof or supplement thereto, or in any
Preliminary Final Prospectus or the Final Prospectus or in any
amendment thereof or supplement thereto or (ii) the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with the
written information furnished to the Seller through the
Representative by or on behalf of such Underwriter specifically
for use therein (the "Underwriters' Information"), and shall
reimburse the Seller for any legal or other expenses reasonably
incurred by the Seller in connection with investigating or
preparing to defend or defending against or appearing as third
party witness in connection with any such loss, claim, damage or
liability (or any action in respect thereof) as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party
under this Section 10 of notice of any claim or the commencement
of any action, the indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under this
Section 10, notify the indemnifying party in writing of the claim
or the commencement of that action; provided, however, that the
failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section 10 except
to the extent it has been materially prejudiced by such failure;
and, provided, further, that the failure to notify the
indemnifying party shall not relieve it from any liability which
it may have to an indemnified party otherwise than under this
Section 10. If any such claim or action shall be brought against
an indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such
claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 10 for any legal or
other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs
of investigation; provided, however, that the Representative
shall have the right to employ counsel to represent jointly the
Representative and the other Underwriters (and their respective
controlling persons who may be subject to liability arising out
of any claim in respect of which indemnity may be sought under
this Section 10) if, in the reasonable judgment of the
Representative, it is advisable for the Representative and the
other Underwriters and controlling persons to be jointly
represented by separate counsel, and in that event the fees and
expenses of such separate counsel shall be paid by the Seller and
the Servicer. Each indemnified party, as a condition of the
indemnity agreements contained in Sections 10(a) and 10(b), shall
use all reasonable efforts to cooperate with the indemnifying
party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall
not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment of the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold
harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
The obligations of the Servicer, the Seller and the
Underwriters in this Section 10 are in addition to any other
liability which the Servicer, the Seller or the Underwriters, as
the case may be, may otherwise have.
Section 11. Contribution. If the indemnification
provided for in this Section 11 is unavailable or insufficient to
hold harmless an indemnified party under Section 10(a) or (b),
then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or
liability, or any action in respect thereof, (i) in such
proportion as shall be appropriate to reflect the relative
benefits received by the Servicer and the Seller on the one hand
and the Underwriters on the other from the offering of the Notes
or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Servicer and the
Seller on the one hand and the Underwriters on the other with
respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or any action in respect
thereof, as well as any other relevant equitable considerations.
The relative benefits received by the Servicer and the Seller on
the one hand and the Underwriters on the other with respect to
such offering shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Notes purchased
hereunder (before deducting expenses) received by the Seller bear
to the total underwriting discounts and commissions received by
the Underwriters with respect to the Notes purchased hereunder,
in each case as set forth in the table on the cover page of the
Final Prospectus. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied
by the Servicer or the Seller on the one hand or the Underwriters
on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Servicer, the
Seller and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 11 were to be
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or
liability referred to above in this Section 11 shall be deemed to
include, for purposes of this Section 11, any legal or other
expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such claim or any
action. Notwithstanding the provisions of this Section 11, no
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Notes
underwritten by it and distributed to the public were offered to
the public less the amount of any damages which such Underwriter
has otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations
to indemnify and contribute as provided in this Section 11 are
several in proportion to their respective underwriting
obligations and not joint.
Section 12. Persons Entitled to Benefit of Agreement.
This Agreement shall inure to the benefit of and be binding upon
the Underwriters, the Seller, the Servicer, and their respective
successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or
corporation, other than the Underwriters, the Seller and the
Servicer and their respective successors and the controlling
persons and officers and directors referred to in Sections 10 and
11 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein.
Section 13. Expenses. The Seller and the Servicer,
jointly and severally, agrees with the Underwriters to pay (i)
any fees charged by rating agencies for rating the Notes; (ii)
all fees and expenses of the Issuer Trustee and the Indenture
Trustee and their respective counsel; (iii) any transfer taxes
payable in connection with its sale of the Notes pursuant to this
Agreement; and (iv) all other costs and expenses incident to the
performance of the obligations of the Seller and the Servicer
under this Agreement; provided that, except as otherwise provided
in this Section 13, the Underwriters shall pay their own costs
and expenses, including, the costs and expenses of their counsel,
the expenses of advertising any offering of the Notes made by the
Underwriters and the costs and expenses of KPMG Peat Marwick
incurred in connection with the delivery of certain comfort
letter(s); and provided, further, that the Underwriters shall pay
the costs of printing the Prospectus Supplement and the Basic
Prospectus for use in connection with the distribution of the
Notes.
Section 14. Survival. The respective indemnities,
rights of contribution, representations, warranties and
agreements of the Seller, the Servicer and the Underwriters
contained in this Agreement or made by or on their behalf,
respectively, pursuant to this Agreement, shall survive the
delivery of and payment for the Notes and shall remain in full
force and effect, regardless of any termination or cancellation
of this Agreement or any investigation made by or on behalf of
any of them or any person controlling any of them.
Section 15. Notices. All communication hereunder
shall be in writing and, (i) if sent to the Underwriters will be
mailed, delivered or telecopied and confirmed to them at First
Union Capital Markets Corp., Asset Securitization Division, 301
South College Street, TW-10, Charlotte, North Carolina, 28288-
0610, Telecopy Number: (704) 374-3254, with a copy to Lehman
Brothers Inc., 3 World Financial Center, New York, New York
10285, Attention: Asset Backed Finance Group; provided, however,
that any notice to an Underwriter pursuant to Section 9(c) shall
be delivered or sent by mail, delivery or telecopy to such
Underwriter at its address set forth in its acceptance telex to
the Representative, which address will be supplied to any other
party hereto by the Representative upon request; (ii) if sent to
the Seller, will be mailed, delivered or telecopied and confirmed
to them at the address of the Seller set forth in the
Registration Statement, Attention: Chief Financial Officer; and
(iii) if sent to the Servicer, will be mailed, delivered or
telecopied and confirmed to them at the address of the Servicer
set forth in the Registration Statement, Attention: Vice
President and Treasurer. Any such statements, requests, notices
or agreements shall take effect at the time of receipt thereof.
The Seller and the Servicer shall be entitled to act and rely
upon any request, consent, notice or agreement given or made on
behalf of the Underwriters by the Representative.
Section 16. Governing Law. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
Section 17. Submission to Jurisdiction; Appointment of
Agent for Service; Currency Indemnity. (a) To the fullest
extent permitted by applicable law, each of the Seller and the
Servicer irrevocably submits to the jurisdiction of any Federal
or State court in the City, County and State of New York, United
States of America, in any suit or proceeding based on or arising
under this Agreement or any Terms Agreement, and irrevocably
agrees that all claims in respect of such suit or proceeding may
be determined in any such court. Each of the Seller and the
Servicer hereby irrevocably and fully waives the defense of an
inconvenient forum to the maintenance of such suit or proceeding.
Each of the Seller and the Servicer hereby irrevocably designates
and appoints CT Corporation (the "Process Agent"), as its
authorized agent upon whom process may be served in any such suit
or proceeding, it being understood that the designation and
appointment of CT Corporation as such authorized agent shall
become effective immediately without any further action on the
part of the Seller or the Servicer. Each of the Seller and the
Servicer represents to each Underwriter that it has notified the
Process Agent of such designation and appointment and that the
Process Agent has accepted the same in writing. Each of the
Seller and the Servicer hereby irrevocably authorizes and directs
the Process Agent to accept such service. Each of the Seller and
the Servicer further agrees that service of process upon the
Process Agent and written notice of said service to the Seller or
the Servicer, as the case may be, mailed by first class mail or
delivered to the Process Agent at its principal office, shall be
deemed in every respect effective service of process upon the
Seller or the Servicer, as the case may be, in any such suit or
proceeding. Nothing herein shall affect the right of any
Underwriter or any person controlling any Underwriter to serve
process in any other manner permitted by law. Each of the Seller
and the Servicer agrees that a final action in any such suit or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other lawful
manner.
(b) The obligation of the parties to make payments
hereunder is in U.S. dollars (U.S. dollars and such other
currencies referred to above being called the "Obligation
Currency") and such obligation shall not be discharged or
satisfied by any tender or recovery pursuant to any judgment
expressed in or converted into any currency other than the
Obligation Currency or any other realization in such other
currency, whether as proceeds of set-off, security, guarantee,
distributions, or otherwise, except to the extent to which such
tender, recovery or realization shall result in the effective
receipt by the party which is to receive such payment of the full
amount of the Obligation Currency expressed to be payable
hereunder, and the party liable to make such payment agrees to
indemnify the party which is to receive such payment (as an
additional, separate and independent cause of action) for the
amount (if any) by which such effective receipt shall fall short
of the full amount of the Obligation Currency expressed to be
payable hereunder and such obligation to indemnify shall not be
affected by judgment being obtained for any other sums due under
this Agreement or the applicable Terms Agreement.
Section 18. Counterparts. This Agreement may be
executed in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
Section 19. Headings. The headings herein are
inserted for convenience of reference only and are not intended
to be part of, or to affect the meaning or interpretation of,
this Agreement.
Section 20. Effectiveness. This Agreement shall
become effective upon execution and delivery of the applicable
Terms Agreement.
[This page intentionally left blank.]
If you are in agreement with the foregoing, please sign
the counterpart hereof and return it to the Seller, whereupon
this letter and your acceptance shall become a binding agreement
among the Seller, the Servicer and the several Underwriters.
Very truly yours,
NEWCOURT RECEIVABLES CORPORATION
By: /s/ Daniel A. Jauernig
Name: Daniel A. Jauernig
Title:
By: /s/ K. Nicholas Martitsch
Name: K. Nicholar Martitsch
Title:
NEWCOURT CREDIT GROUP INC.
By: /s/ Daniel A. Jauernig
Name: Daniel A. Jauernig
Title:
By: /s/ Geoffrey Ichii
Name: Geoffrey Ichii
Title:
The foregoing Agreement is hereby confirmed
and accepted as of the date hereof.
FIRST UNION CAPITAL MARKETS CORP.
By: /s/ Scott H. Shannon
Name: Scott H. Shannon
Title: Vice President
DEUTSCHE MORGAN GRENFELL/C.J. LAWRENCE INC.
By: /s/ Victor T. Mahoney
Name: Victor T. Mahoney
Title: Vice President
By: /s/ Gregory V. Petretti
Name: Gregory V. Petretti
Title: Vice President
LEHMAN BROTHERS INC.
By: /s/ William E. Lighten
Name: William E. Lighten
Title: Managing Director
Exhibit A
Form of Terms Agreement
NEWCOURT RECEIVABLES ASSET TRUST
CLASS A __% ASSET BACKED NOTES, SERIES ____
TERMS AGREEMENT
Dated: _____ __, ____
To: _____________________________.
Re: Underwriting Agreement dated ________ __, ___
Series Designation: Series _____
Underwriters: The Underwriters named on Schedule I
attached hereto are the "Underwriters"
for the purpose of this Agreement and
for the purposes of the above referenced
Underwriting Agreement as such
Underwriting Agreement is incorporated
herein and made a part hereof.
Indenture Trustee: ________________________________________
Terms of the Notes:
Distribution Dates: The __ calendar day of each month,
commencing ________ __, ____.
Note Ratings: ___ by Standard & Poor's Ratings Group
___ by Moody's Investors Service Inc.
Credit Enhancement
Provider: _____________________________________________
Supplement: ________________________________________
Purchase Price: ________________________________________
Underwriting Commissions,
Concessions and Discounts: ___________________________________
Closing Date: _______ __, ____, __.__ [a.m./p.m.],
[New York] Time
Newcourt Credit Group Inc.
Location of Closing: ___________________________________
By:
Payment for the [Wire transfer of same day funds]
Notes:
Name:
Title:
Blue Sky Fees: [Up to $_______]
Opinion Modifications: [None] [Specify]
Other securities being
offered concurrently: [None] [Specify]
Other Modifications
to the Underwriting
Agreement: [None] [Specify]
The Underwriters agree, severally and not jointly, subject
to the terms and provisions of the above referenced Underwriting
Agreement which is incorporated herein in its entirety and made a
part hereof, to purchase the respective principal amounts of the
above referenced Series of Notes set forth opposite their names
on Schedule I hereto.
[Representative]
As Representative of the
Underwriters named in Schedule I
hereto.
By:
Name:
Title:
Accepted:
Newcourt Receivables Corporation
By:
Name:
Title:
SCHEDULE I
UNDERWRITERS
$_________ Principal Amount of Class A __% Asset Backed Notes,
Series _____
Principal Amount
[Representative]
[Other Underwriters]
NEWCOURT RECEIVABLES ASSET TRUST
CLASS A 6.87% ASSET BACKED NOTES, SERIES 1996-2
TERMS AGREEMENT
Dated: September 12, 1996
To: First Union Capital Markets Corp. ("First
Union"), Deutsche Morgan Grenfell/CJ
Lawrence Inc. ("Deutsche Morgan") and
Lehman Brothers Inc. ("Lehman")
Re: Underwriting Agreement dated September 12,
1996, which is incorporated herein in its
entirety and made a part hereof.
Series Designation: Series 1996-2.
Underwriters: First Union, Deutsche Morgan and Lehman
Indenture Trustee: Fleet National Bank.
Terms of the Notes: See Annex A attached hereto.
Distribution Dates: The 20th calendar day of each month (if
such day is not a Business Day, the next
succeeding Business Day), commencing
September 20, 1996.
Note Ratings: AAA by Standard & Poor's Ratings Group.
Credit Enhancement
Provider: None.
Supplement: Series 1996-2 Supplement, dated as of
September 17, 1996, among the Seller,
the Servicer, the Collateral Agent, the
Issuer Trustee and the Indenture
Trustee.
Purchase Price: The purchase price payable by the
Underwriter for the Series 1996-2 Class
A Notes covered by this Agreement will
be 100% of the principal amounts to be
issued.
Registration Statement: 33-98378.
Closing Date: September 17, 1996, 9:00 a.m., New York
Time.
Location of Closing: Simpson Thacher & Bartlett, 425
Lexington Avenue, New York, New York
10017.
Payment for the
Notes: Wire transfer of same day funds.
Blue Sky Fees: Up to $8,000.
Opinion Modifications: None. Specify.
Other securities being
offered concurrently: $7,383,081 Principal Amount of Class B
7.54% Asset Backed Notes, Series 1996-2.
$7,383,081 Principal Amount of Class C
9.22% Asset Backed Notes, Series 1996-2.
Other Modifications
to the Underwriting
Agreement: All references in the Underwriting
Agreement to the Representative shall
refer to First Union. First Union
hereby acknowledges that all
compensation owed to them, as
Underwriter, has been disclosed in the
Prospectus.
Each Underwriter severally agrees subject to the terms and
provisions of the above referenced Underwriting Agreement, to
purchase the principal amount of the above referenced Series of
Notes set forth opposite its name on Schedule I hereto.
NEWCOURT RECEIVABLES CORPORATION
By: /s/ Daniel A. Jauernig
Name: Daniel A. Jauernig
Title:
By: /s/ K. Nicholas Martitsch
Name: K. Nicholas Martitsch
Title:
NEWCOURT CREDIT GROUP INC.
By: /s/ Daniel A. Jauernig
Name: Daniel A. Jauernig
Title:
By: /s/ Geoffrey Ichii
Name: Geoffrey Ichii
Title:
Accepted:
FIRST UNION CAPITAL MARKETS CORP.
By: /s/ Scott H. Shannon
Name: Scott H. Shannon
Title: Vice President
DEUTSCHE MORGAN GRENFELL/CJ
LAWRENCE INC.
By: /s/ Victor T. Mahoney
Name: Victor T. Mahoney
Title: Vice President
By: /s/ Gregory V. Petretti
Name: Gregory V. Petretti
Title: Vice President
LEHMAN BROTHERS INC.
By: /s/ William E. Lighten
Name: William E. Lighten
Title: Managing Director
SCHEDULE I
UNDERWRITERS
$169,810,862 Principal Amount of Class A 6.87% Asset Backed
Notes, Series 1996-2
Principal Amount
First Union Capital Markets Corp.
$56,603,620.67
Deutsche Morgan Grenfell/CJ Lawrence Inc.
$56,603,620.67
Lehman Brothers Inc.
$56,603,620.67
NEWCOURT RECEIVABLES CORPORATION
as Buyer
and
NEWCOURT FINANCIAL USA INC.
as Seller
PURCHASE AGREEMENT
Dated as of September 17, 1996
PURCHASE AGREEMENT
TABLE OF CONTENTS
ARTICLE I
GENERAL
Section 1.1 Definitions . . . . . . . . . . . . . 2
Section 1.2 Other Definitional Provisions . . . . 10
ARTICLE II
SALE AND CONVEYANCE OF CONTRACTS
Section 2.1 Sale . . . . . . . . . . . . . . . . . 11
ARTICLE III
CONSIDERATION AND PAYMENT
Section 3.1 Purchase Price . . . . . . . . . . . . 16
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Financing Originator's
Representations and Warranties . . . . 17
Section 4.2 Financing Originator's
Representations and Warranties
Regarding Series 1996-2 Contracts . . 20
Section 4.3 Representations and Warranties
of the Buyer . . . . . . . . . . . . . 26
ARTICLE V
COVENANTS
Section 5.1 Financing Originator Covenants . . . . 29
Section 5.2 Covenant Regarding Sale Treatment . . 31
ARTICLE VI
REPURCHASE OBLIGATION
Section 6.1 Mandatory Repurchase . . . . . . . . . 32
Section 6.2 Conveyance of Reassigned Contracts . . 34
Section 6.3 Adjustments. . . . . . . . . . . . . . 34
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.1 Conditions to the Buyer's
Obligations Regarding Contracts . . . 36
Section 7.2 Conditions Precedent to
the Financing Originators'
Obligations . . . . . . . . . . . . . 36
ARTICLE VIII
TERM AND TERMINATION
Section 8.1 Termination . . . . . . . . . . . . . 38
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1 Amendment . . . . . . . . . . . . . . 39
Section 9.2 Governing Law . . . . . . . . . . . . 39
Section 9.3 Notices . . . . . . . . . . . . . . . 39
Section 9.4 Severability of Provisions . . . . . . 40
Section 9.5 Assignment . . . . . . . . . . . . . . 40
Section 9.6 Further Assurances . . . . . . . . . . 41
Section 9.7 No Waiver; Cumulative Remedies . . . . 41
Section 9.8 Counterparts . . . . . . . . . . . . . 41
Section 9.9 Binding Effect; Third-Party
Beneficiaries . . . . . . . . . . . . 42
Section 9.10 Merger and Integration. . . . . . . 42
Section 9.11 Headings . . . . . . . . . . . . . . . 42
Section 9.12 Schedules and Exhibits . . . . . . . . 42
Section 9.13 No Bankruptcy Petition Against
the Buyer . . . . . . . . . . . . . . 42
Section 9.14 Merger or Consolidation of,
or Assumption of the
Obligations of, the Financing
Originator . . . . . . . . . . . . . . 42
Section 9.15 Protection of Right, Title
and Interest to Contracts
and Equipment . . . . . . . . . . . . 43
Exhibit A Form of Contract
Exhibit B Form of Intercreditor Agreement
Schedule I List of Contracts
Schedule II List of Instruments
Schedule III List of PBCC Contracts
PURCHASE AGREEMENT, dated as of September 17,
1996 (this "Agreement"), by and between NEWCOURT
FINANCIAL USA INC., a Delaware corporation (the
"Financing Originator"), and NEWCOURT RECEIVABLES
CORPORATION, a Delaware corporation (the "Buyer").
W I T N E S S E T H :
WHEREAS; the Buyer desires to purchase from the
Financing Originator and the Financing Originator desires
to sell to the Buyer certain contracts originated or
purchased by the Financing Originator in its normal
course of business, together with, among other things the
related rights of payment thereunder and the interest of
the Financing Originator in the related equipment and
other interests securing the payments to be made under
such contracts; and
WHEREAS, each of the Buyer and the Financing
Originator is a wholly owned subsidiary of Newcourt
Credit Group USA Inc., a Delaware corporation, which in
turn is a wholly owned subsidiary of Newcourt Credit
Group Inc., an Ontario corporation.
NOW, THEREFORE, it is hereby agreed by and
between the Buyer and the Financing Originator as
follows:
ARTICLE I
GENERAL
Section 1.1 Definitions. For all purposes of
this Agreement, except as otherwise expressly provided
herein or unless the context otherwise requires,
capitalized terms used herein shall have the following
meanings assigned to them:
"ADCB" shall have the meaning ascribed to such
term in the Pooling Agreement.
"Affiliate" shall have the meaning ascribed to
such term in the Pooling Agreement.
"Agreement" shall mean this Purchase Agreement,
as the same shall be amended, supplemented or modified
from time to time.
"Applicable Security" shall have the meaning
ascribed to such term in the Pooling Agreement.
"Business Day" shall have the meaning ascribed
to such term in the Pooling Agreement.
"Category I Contract" shall mean any Series
1996-2 Contract which is an End-User Contract with an
Obligor that is a governmental entity or municipality.
"Category II Contract" shall mean any Series
1996-2 Contract which is an End-User Contract which
finances, or leases or is related to Software.
"Category III Contract" shall mean the
Guaranteed Residual Investment associated with any Series
1996-2 Contract.
"Category IV Contract" shall mean each Series
1996-2 Contract which is an End-User Contract and which
in the reasonable judgment of the Financing Originator is
a "true-lease."
"Closing Date" shall mean September 17, 1996.
"Contract" shall have the meaning ascribed to
such term in the Pooling Agreement.
"Contract Files" shall have the meaning
ascribed to such term in the Pooling Agreement.
"Contract Specification Certificate" shall have
the meaning set forth in Section 2.1.2 hereof.
"Credit Guidelines" shall have the meaning
ascribed to such term in the Pooling Agreement.
"CSA" shall have the meaning ascribed to such
term in the Pooling Agreement.
"Cut-Off Date" means July 31, 1996.
"Defaulted Contract" shall have the meaning
ascribed to such term in the Pooling Agreement.
"Discount Rate" shall mean, as of any date of
determination, the weighted average of the Series
Discount Rates for each Series outstanding on such date.
"Discounted Contract Balance" shall have the
meaning ascribed to such term in the Pooling Agreement.
"Eligible Secondary Contract" shall mean, (i)
each Secondary Contract as to which all of the
representations and warranties of the Financing
Originator in Section 4.2.2 hereof are true, complete and
correct except clauses 4.2.2(b); (h) (with respect to
ownership by the Financing Originator of the Contract)
and (w), and except that the term "Obligor" shall mean
"End-User" in each case, (ii) each Secondary Contract and
proceeds thereof in which the Financing Originator has a
duly perfected first priority lien; and (iii) each
Secondary Contract where the transfer of the Financing
Originator's security interest therein to the Buyer has
created a valid first priority security interest in such
Secondary Contract and the proceeds thereof in favor of
the Buyer which has been duly perfected.
"End-User" shall have the meaning ascribed to
such term in the Pooling Agreement.
"End-User Contract" shall have the meaning
ascribed to such term in the Pooling Agreement.
"Equipment" shall have the meaning ascribed to
such term in the Pooling Agreement.
"Excess Concentration Amount" shall have the
meaning specified in the Pooling Agreement.
"Excluded Amounts" means (i) any collections on
or with respect to the Series 1996-2 Contracts or related
Equipment, which collections are attributable to any
taxes, fees or other charges imposed by any Governmental
Authority, (ii) any collections representing
reimbursements or insurance premiums or payments for such
services that were not financed by the Financing
Originator and (iii)any proceeds from the sale or other
disposition of Equipment in excess of the difference
between (x) the Discounted Contract Balance of the
related Series 1996-2 Contract as of the Cut-Off Date,
over (y) the present value as of the Cut-Off Date of all
amounts actually received by the Buyer in respect of such
Series 1996-2 Contract, discounted monthly at the
Applicable Series Discount Rate.
"Filing Locations" shall mean the States of
California, Delaware, each State in which a Vendor is
located (as defined in the Relevant UCC State) and each
jurisdiction where Equipment is located (as defined in
the Relevant UCC State).
"Financing Agreement" shall have the meaning
ascribed to such term in the Pooling Agreement.
"Financing Originator" shall mean Newcourt
Financial USA Inc., a Delaware corporation.
"Governmental Authority" shall have the meaning
ascribed to such term in the Pooling Agreement.
"Guaranteed Residual Investment" shall have the
meaning ascribed to such term in the Pooling Agreement.
"Insolvency Event" shall have the meaning
ascribed to such term in the Pooling Agreement.
"Insolvency Laws" shall mean the Bankruptcy
Code of the United States of America and all other
applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency,
reorganization, suspension of payments, or similar debtor
relief laws from time to time in effect affecting the
rights of creditors generally.
"Insurance Proceeds" shall have the meaning
ascribed to such term in the Pooling Agreement.
"IPA" shall have the meaning ascribed to such
term in the Pooling Agreement.
"Issuer Trustee" shall mean the institution
executing the Pooling Agreement as Issuer Trustee, or its
successor in interest, or any successor trustee appointed
as herein provided.
"Lease" shall have the meaning ascribed to such
term in the Pooling Agreement.
"Lessee" shall mean, with respect to any Lease,
the End-User with respect to such Lease.
"Lien" shall mean any mortgage, pledge,
hypothecation, assignment for security, security
interest, encumbrance, levy, lien or charge of any kind,
whether voluntarily incurred or arising by operation of
law or otherwise, affecting any Property, including any
agreement to grant any of the foregoing, any conditional
sale or other title retention agreement, any lease in the
nature of a security interest, and the filing of or
agreement to file or deliver any financing statement
(other than a precautionary financing statement with
respect to a lease that is not in the nature of a
security interest) under the UCC or comparable law of any
jurisdiction.
"Liquidation Proceeds" shall mean with respect
to a Defaulted Contract, proceeds from the sale, lease or
re-lease of the Equipment, proceeds of the related
Insurance Policy and any other recoveries with respect to
such Defaulted Contract and the related Equipment, net of
Liquidation Expenses and amounts, if any, so received
that are required to be refunded to the Obligor on such
Contract.
"Newcourt" shall mean Newcourt Credit Group
Inc., an Ontario corporation.
"Obligor" shall mean, with respect to any
Series 1996-2 Contract, the Person or Persons obligated
to make payments with respect to such Series 1996-2
Contract, including any guarantor thereof.
"Officer's Certificate" shall mean a
certificate signed by any officer of a party hereto.
"Opinion of Counsel" shall mean a written
opinion of counsel acceptable to the Buyer and the
applicable Financing Originators, which counsel may be an
employee of the applicable Financing Originator or the
Buyer.
"PBCC" shall mean Pitney Bowes Credit
Corporation, a Delaware Corporation.
"PBCC Contract" shall mean each Series 1996-2
Contract listed on Schedule III hereto which the
Financing Originator purchased from PBCC pursuant to the
Asset Purchase Agreement, dated as of May 31, 1996.
"Permitted Liens" shall mean (a) with respect
to any Series 1996-2 Contract:
(i) Liens for state, municipal or other local
taxes if such taxes shall not at the time be
due and payable or if the Financing Originator
shall currently be contesting the validity
thereof in good faith by appropriate
proceedings and shall have set aside on its
books adequate reserves with respect thereto,
(ii) Liens in favor of the Buyer created under
this Agreement and (iii) Liens in favor of
third parties which are subordinate to the Lien
of the Buyer created under this Agreement on
terms having substantially similar effect to
those annexed hereto as Exhibit B;
and (b) with respect to the related Equipment:
(i) materialmen's, warehousemen's, mechanics'
and other liens arising by operation of law in
the ordinary course of business for sums not
due, (ii) Liens for state, municipal or other
federal taxes if such taxes shall not at the
time be due and payable or if the Financing
Originator shall currently be contesting the
validity thereof in good faith by appropriate
proceedings and shall have set aside on its
books adequate reserves with respect thereto,
(iii) Liens in favor of the Buyer created
pursuant to this Agreement and (iv) Liens in
favor of third parties which are subordinate to
the Lien of the Buyer created under this
Agreement on terms having substantially similar
effect to those annexed hereto as Exhibit B.
"Person" means any individual, sole
proprietorship, partnership, joint venture, trust,
unincorporated organization, association, corporation,
institution, public benefit corporation, inn, joint stock
company, estate, entity or Governmental Authority.
"Prepayment Amount" shall have the meaning
specified in the Pooling Agreement.
"Prepaid Contract" shall have the meaning
specified in the Pooling Agreement.
"Pooling Agreement" shall mean the Pooling and
Servicing Agreement dated as of April 15, 1996 by and
among the NRC, as seller, Newcourt, as Servicer, Fleet
National Bank, as collateral agent, and Chemical Bank
Delaware, as issuer trustee.
Program Agreement" shall have the meaning
specified in the Pooling Agreement.
"Purchase Price" shall have the meaning
specified in Section 3.1.1 hereof.
"Recoveries" shall mean any and all recoveries
on account of a Defaulted Contract, including, without
limitation, any and all cash proceeds or rents realized
from the sale, lease or re-lease of repossessed Equipment
or other property, Insurance Proceeds, amounts
representing late fees and penalties and amounts received
pursuant to a Program Agreement (including, without
limitation, amounts received from any "ultimate net loss
pool" that may have been created under such Program
Agreement), but in each case net of Liquidation Expenses.
"Relevant UCC State" shall mean each
jurisdiction as to which the UCC in effect therein
governs the perfection of the ownership interest or
security interest of the Buyer pursuant to this
Agreement.
"Required Lease Cancellation Payment" shall
have the meaning set forth in Section 6.3.2 hereof.
"Requirements of Law" for any Person shall mean
the certificate of incorporation or articles of
association and by-laws or other organizational or
governing documents of such Person, and any material law,
treaty, rule or regulation, or determination of or
settlement with an arbitrator or Governmental Authority,
in each case applicable to or binding upon such Person or
to which such Person is subject.
"Resale Contracts" shall have the meaning
specified in Section 6.1.2 hereof.
"Resale Date" shall have the meaning specified
in Section 6.1.2 hereof.
"Residual Investment" shall have the meaning
ascribed to such term in the Pooling Agreement.
"Sale Papers" shall have the meaning set forth
in Section 4.1(a) hereof.
"Scheduled Payment" shall have the meaning
ascribed to such term in the Pooling Agreement.
"Secondary Contract" shall have the meaning
ascribed to such term in the Pooling Agreement.
"Secured Obligations" shall have the meaning
set forth in Section 2.1.7 hereof.
"Secured or Unsecured Note" shall have the
meaning ascribed to such term in the Pooling Agreement.
"Series Discount Rate" shall have the meaning
specified in the Pooling Agreement.
"Series 1996-2 Assets" shall mean the
following:
(i) the Series 1996-2 Contracts specified
in Schedule I attached hereto, and all monies
due or to become due in payment of such Series
1996-2 Contracts on and after the Cut-Off Date,
any Prepayment Amounts, any payments in respect
of a casualty or early termination, and any
Recoveries received with respect thereto, but
excluding any Scheduled Payments due prior to
the Cut-Off Date and any Excluded Amounts;
(ii) the Equipment and the Applicable
Security, as appropriate, related to the Series
1996-2 Contracts including all proceeds from
any sale or other disposition of such
Equipment;
(iii) the related Contract Files;
(iv) all payments made or to be made in
the future with respect to the Series 1996-2
Contracts or the Obligor thereunder under any
Program Agreements or Vendor Assignments with
the Financing Originator and under any
guarantee or similar credit enhancement with
respect to the Series 1996-2 Contracts;
(v) all Insurance Proceeds with respect
to the Series 1996-2 Contracts; and
(vi) all income and proceeds of the
foregoing;
provided, that Series 1996-2 Assets shall not
include any Residual Investment other than a
Guaranteed Residual Investment.
"Series 1996-2 Contracts" means the Contracts
listed on Schedule I hereto
"Servicer" means Newcourt, in its capacity as
the Servicer under the Pooling Agreement, or any
subservicer or successor servicer under the Pooling
Agreement.
"Subordinated Residual Interest" shall have the
meaning ascribed to such term in the Pooling Agreement.
"Termination Date" shall have the meaning set
forth in Section 8.1 hereof.
"Trust" shall mean the trust created pursuant
to the Pooling Agreement and known as the "Newcourt
Receivables Asset Trust."
"UCC" shall mean the Uniform Commercial Code,
as amended from time to time, as in effect in any
specified jurisdiction.
"Vendor" shall have the meaning ascribed to
such term in the Pooling Agreement.
"Vendor Assignments" shall have the meaning
ascribed to such term in the Pooling Agreement.
"Vendor Note" shall have the meaning ascribed
to such term in the Pooling Agreement.
Section 1.2 Other Definitional Provisions.
The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement or any Sale
Paper shall refer to this Agreement as a whole and not to
any particular provision of this Agreement; and Section,
Subsection, Schedule and Exhibit references contained in
this Agreement are references to Sections, Subsections,
Schedules and Exhibits in or to this Agreement unless
otherwise specified. All capitalized terms used and not
otherwise defined herein shall have the respective
meanings assigned thereto in the Pooling Agreement. In
the event that any term or provision contained herein
shall conflict with or be inconsistent with any term or
provision contained in the Pooling Agreement, the terms
and provisions contained herein shall govern with respect
to this Agreement.
[END OF ARTICLE I]
ARTICLE II
SALE AND CONVEYANCE OF CONTRACTS
Section 2.1 Sale.
2.1.1 The Financing Originator, in
consideration for the Purchase Price and upon the terms
and subject to the conditions set forth herein, does
hereby sell, assign, transfer, set-over, and otherwise
convey to the Buyer, without recourse (except to the
extent expressly provided herein), and the Buyer does
hereby purchase from the Financing Originator, on the
terms and subject to the conditions specifically set
forth herein, all of the Financing Originator's right,
title and interest in, to and under the Series 1996-2
Assets. The foregoing sale, transfer, assignment, set-
over and conveyance does not constitute and is not
intended to result in a creation or an assumption by the
Buyer of any obligation of the Financing Originator in
connection with the Series 1996-2 Contracts, or any
agreement or instrument relating thereto, including,
without limitation, any obligation to any Obligor or End-
User, or any other Person in respect of services not
financed by the Financing Originator, or (i) any taxes,
fees, or other charges imposed by any Governmental
Authority and (ii) any insurance premiums which remain
owing with respect to any Series 1996-2 Contract at the
time such Series 1996-2 Contract is sold hereunder.
Schedule I may be in the form of a computer file,
microfiche or written list and shall contain a true and
complete list prepared as of the Cut-Off Date, of all
End-User Contracts identified by contract type and
number, State to which invoices are delivered, general
description of Equipment subject to each End-User
Contract and the Discounted Contract Balance as of the
Cut-Off Date and which shall have attached to it a list
showing the Scheduled Payments for each End-User Contract
as of the Cut-Off Date. Schedule I is hereby
incorporated into this Agreement and made a part hereof.
2.1.2 On the Closing Date the Financing
Originator shall deliver an Officer's Certificate of a
Vice President or a more senior officer stating the
following with respect to the Series 1996-2 Contracts
("Contract Specification Certificate") sold to the Buyer
on the Closing Date:
(a) the ADCB as of the Cut Off Date of all Category
I Contracts listed on Schedule I;
(b) the ADCB as of the Cut Off Date of all Category
II Contracts listed on Schedule I;
(c) the aggregate nominal principal amount as of
the Cut Off Date of all Category III Contracts listed on
Schedule I; and
(d) the ADCB as of the Cut Off Date of all Category
IV Contracts listed on Schedule I.
2.1.3 The Financing Originator and the Buyer
hereby agree that in the event that the purchase of any
one or more Series 1996-2 Contracts on the Closing Date
would result in an Excess Concentration Amount as
determined by the Buyer, then the Buyer may in its sole
discretion choose not to purchase such Series 1996-2
Contracts.
2.1.4 (a) The Financing Originator agrees to
record and file in each Filing Location within 30 days
after the Closing Date, at its own expense, financing
statements (including any continuation statements with
respect to such financing statements when applicable)
with respect to the Series 1996-2 Assets described in
Section 2.1.1 meeting the requirements of law of the
applicable Filing Location in such manner and in such
Filing Locations as are necessary to perfect (to the
extent governed by the law of such Filing Locations) and
protect the interests of the Buyer created hereby under
the law of such Filing Location and against all creditors
of and purchasers from the Financing Originator, and to
deliver file-stamped copies of such financing statements
or continuation statements or other evidence of such
filings, which may, for purposes of this Section 2.1.4,
consist of telephone confirmations of such filings with
the file stamped copy to be provided to the Buyer as soon
as reasonably practicable after receipt thereof by the
Financing Originator.
(b) The Financing Originator shall deliver all
Instruments to the Buyer on the Closing Date. Pursuant
to Section 2.1(b)(ii) of the Pooling Agreement, the Buyer
is required to deliver any Instrument to the Issuer
Trustee. Accordingly, the Buyer hereby authorizes and
directs the Financing Originator to deliver any
Instruments to the Issuer Trustee on behalf of and for
the account of the Buyer, and agrees that such delivery
shall satisfy the condition set forth in the first
sentence of this Subsection 2.1.4(b). On or before the
Closing Date, the Financing Originator shall deliver to
the Buyer a computer file, microfiche or written list
containing a true and complete list, labeled on the first
page thereof as "Schedule II" and prepared as of the Cut-
Off Date, of all Series 1996-2 Contracts which are
Instruments identified by contract type and number.
Schedule II is hereby incorporated into this Agreement
and made a part hereof.
2.1.5 The Buyer shall not purchase Series
1996-2 Contracts from the Financing Originator if an
Insolvency Event shall have occurred with respect to the
Financing Originator.
2.1.6 In connection with the sale and
conveyance of Series 1996-2 Assets, the Financing
Originator agrees, at its own expense, on or prior to the
Closing Date, to indicate or cause to be indicated
clearly and unambiguously in its accounting records that
such Series 1996-2 Assets have been sold to the Buyer
pursuant to this Agreement as of the Closing Date.
2.1.7 It is the express intent of the
Financing Originator and the Buyer that the conveyance of
Series 1996-2 Assets described in Section 2.1.1 on the
Closing Date be construed as a sale of such Series 1996-2
Assets by the Financing Originator to the Buyer. It is,
further, not the intention of the Financing Originator or
the Buyer that such conveyance be deemed a grant of a
security interest in the Series 1996-2 Assets by the
Financing Originator to the Buyer to secure a debt or
other obligation of the Financing Originator to the
Buyer. However, in the event that, notwithstanding the
intent of the parties, the Series 1996-2 Assets are held
to continue to be property of the Financing Originator,
then (i) this Agreement also shall be deemed to be and
hereby is a security agreement within the meaning of the
UCC; and (ii) the conveyance by the Financing Originator
provided for in this Agreement shall be deemed to be and
the Financing Originator hereby grants to the Buyer a
security interest in and to all of the Financing
Originator's right, title and interest in, to and under
(A) the Series 1996-2 Contracts and all rights (but not
the obligations) relating to such Series 1996-2 Contracts
and all amounts due or to become due after the Cut-Off
Date, including all Scheduled Payments thereunder due on
or after the Cut-Off Date, any Prepayment Amounts, any
payments in respect of a casualty or early termination,
and any Recoveries received with respect thereto but
excluding any Scheduled Payments due prior to the Cut-Off
Date or any Excluded Amounts (B) the related Equipment
and Applicable Security, if any, (C) the related Contract
Files, (D) all payments made or to be made with respect
to each such Series 1996-2 Contract or the Obligor
thereunder, under any Program Agreements or Vendor
Assignments with the Financing Originator and under any
other guarantee or similar credit enhancement with
respect to the Series 1996-2 Contracts, (E) all Insurance
Policies and any Insurance Proceeds related to the Series
1996-2 Contracts and (F) all income and proceeds of the
foregoing to secure (1) the rights of the Buyer and (2) a
loan to the Financing Originator in the amount of the
Purchase Price as set forth in this Agreement (the
"Secured Obligations"). The Financing Originator and the
Buyer shall, to the extent consistent with this
Agreement, take such actions as may be necessary to
ensure that, if this Agreement were deemed to create a
security interest in the Series 1996-2 Assets described
in Section 2.1.1, such security interest would be deemed
to be a perfected security interest of first priority
(subject to Permitted Liens) in favor of the Buyer under
applicable law and will be maintained as such throughout
the term of this Agreement; provided that with respect to
any item of Equipment with respect to which title thereto
or a security interest therein is required to be noted on
a certificate of title or otherwise recorded, the
Financing Originator shall not be required to note the
name of the Collateral Agent on the certificate of title;
provided further, that to the extent financing statements
or similar filings are required with respect to any item
of related Equipment, the Financing Originator shall be
required to record such filings in the Filing Locations.
The Financing Originator and the Buyer may rely upon an
Opinion of Counsel addressed to them as to what is
required to provide the Buyer with such security
interest; and any such Opinion of Counsel shall permit
the Issuer Trustee and the applicable Indenture Trustee,
on behalf of the Noteholders, the Noteholders (in the
case of any Series issued in a private placement exempt
from the registration requirements of the Securities
Act), the Collateral Agent, and the Rating Agencies to
rely on it.
2.1.8 Immediately upon the release to the
Buyer by the Trustee, pursuant to Section 2.2(e) of the
Pooling Agreement, of Excluded Amounts, the Buyer hereby
irrevocably agrees to release to the Financing Originator
such Excluded Amounts, which release shall be automatic
and shall require no further act by the Buyer, provided,
that the Buyer shall execute and deliver such instruments
of release and assignment, or otherwise confirming the
foregoing release of any Excluded Amounts, as may be
reasonably requested by the Financing Originator.
[END OF ARTICLE II]
ARTICLE III
CONSIDERATION AND PAYMENT
Section 3.1 Purchase Price.
3.1.1 As consideration for the sale to the
Buyer by the Financing Originator of the Series 1996-2
Assets on the Closing Date, the Buyer shall pay (or cause
to be paid) to the Financing Originator an amount (the
"Purchase Price") equal to the ADCB of the Series 1996-2
Contracts on the Closing Date.
3.1.2 The Purchase Price shall be payable to
the Financing Originator on the Closing Date in cash.
[END OF ARTICLE III]
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Financing Originator's
Representations and Warranties. The Financing Originator
hereby represents and warrants to the Buyer as of the
Closing Date that:
(a) Organization and Good Standing. The
Financing Originator is a corporation duly organized and
validly existing in good standing under the laws of the
State of Delaware and has full corporate power, authority
and legal right to own its property and conduct its
business as such properties are presently owned and as
such business is presently conducted and to execute,
deliver and perform its obligations under this Agreement
and each other document or instrument to be delivered by
the Financing Originator hereunder (collectively, the
"Sale Papers").
(b) Due Qualification. The Financing
Originator is duly qualified to do business and is in
good standing (or is exempt from such requirements), and
has obtained all necessary licenses and approvals, in
each jurisdiction in which failure to so qualify or to
obtain such licenses and approvals would have a material
adverse effect on its ability to perform its obligations
under the Sale Papers.
(c) Due Authorization. The execution and
delivery of the Sale Papers, and the consummation of the
transactions provided for herein and therein have been
duly authorized by the Financing Originator by all
necessary corporate action on the part of the Financing
Originator.
(d) No Conflict. The execution and delivery
of the Sale Papers, the performance of the transactions
contemplated thereby and the fulfillment of the terms
thereof, will not conflict with, result in any breach of
any of the material terms and provisions of, or
constitute (with or without notice or lapse of time or
both) a default under, any indenture, contract agreement,
mortgage, deed of trust, or other instrument to which the
Financing Originator is a party or by which it or any of
its property is bound.
(e) No Violation. The execution and delivery
of the Sale Papers, the performance of the transactions
contemplated by the Sale Papers and the fulfillment of
the terms thereof, will not conflict with or violate, in
any material respect, any Requirements of Law applicable
to the Financing Originator.
(f) No Proceedings. There are no proceedings
or investigations pending or, to the best knowledge of
the Financing Originator, threatened against it before
any court, regulatory body, administrative agency, or
other tribunal or governmental instrumentality (i)
asserting the invalidity of the Sale Papers, (ii) seeking
to prevent the consummation of any of the transactions
contemplated thereby, (iii) seeking any determination or
ruling that, in the reasonable judgment of the Financing
Originator, could reasonably be expected to be adversely
determined, and if adversely determined, would materially
and adversely affect the performance by the Financing
Originator of its obligations under the Sale Papers, (iv)
seeking any determination or ruling that would materially
and adversely affect the validity or enforceability
thereof, or (v) seeking any determination or ruling that
would materially and adversely affect the payment or
enforceability of the Series 1996-2 Contracts.
(g) All Consents Required. All approvals,
authorizations, consents, orders or other actions of any
Governmental Authority required in connection with the
execution and delivery of the Sale Papers, the
performance of the transactions contemplated by the Sale
Papers and the fulfillment of the terms hereof and
thereof, have been obtained.
(h) Bulk Sales. The execution, delivery and
performance of this Agreement do not require compliance
with any "bulk sales" law by the Financing Originator.
(i) Solvency. The transactions contemplated
under the Sale Papers do not and will not render the
Financing Originator insolvent.
(j) Selection Procedures. No selection
procedures believed by the Financing Originator to be
materially adverse to the interests of the Buyer, the
Trust or the Noteholders were utilized by the Financing
Originator in selecting the Series 1996-2 Contracts.
(k) Use of Proceeds. No proceeds of the sale
of any Series 1996-2 Contract hereunder received by the
Financing Originator will be used by the Financing
Originator to purchase or carry any margin security.
(l) Not an Investment Company. The Financing
Originator is not an "investment company" within the
meaning of the Investment Company Act of 1940, as
amended, or is exempt from all provisions of such Act.
(m) Other Names. The legal name of the
Financing Originator is as set forth in this Agreement
and within the preceding five years the Financing
Originator has not used, and the Financing Originator
currently does not use, any tradenames, fictitious names,
assumed names or "doing business as" names other than
Confederation Leasing, Ltd.
(n) Taxes. To the best of the Financing
Originator's knowledge, the Financing Originator has
filed all tax returns required to be filed in the normal
course of business and has paid or made adequate
provision for the payment of all taxes, assessments and
other governmental charges due from the Financing
Originator or is contesting any such tax, assessment or
other governmental charge in good faith through
appropriate proceedings; no tax lien has been filed and,
to the best of the Financing Originator's knowledge, no
claim is being asserted with respect to any such tax, fee
or other charge.
(o) Place of Business. The principal
executive offices of the Financing Originator are in San
Jose, California and the offices where the Financing
Originator keeps its records concerning the Series 1996-2
Contracts are in San Jose, California, Indianapolis,
Indiana and Toronto, Ontario.
The representations and warranties set forth in
this Section 4.1 shall survive the sale, transfer and
assignment of the Series 1996-2 Contracts to the Buyer.
Upon discovery by the Financing Originator or the Buyer
of a material breach of any of the foregoing
representations and warranties, the party discovering
such breach shall give prompt written notice thereof to
the other and to the Issuer Trustee, the Indenture
Trustee, the Collateral Agent, and the Rating Agencies
immediately upon obtaining knowledge of such breach.
Section 4.2 Financing Originator's
Representations and Warranties Regarding Series 1996-2
Contracts.
4.2.1 Binding Obligation; Valid Transfer and
Security Interest. The Financing Originator hereby
represents and warrants to the Buyer as of the Cut-Off
Date that:
(a) Each of the Sale Papers constitutes a
legal, valid and binding obligation of the Financing
Originator, enforceable against the Financing
Originator in accordance with its terms, except as
such enforceability may be limited by Insolvency
Laws and except as such enforceability may be
limited by general principles of equity (whether
considered in a suit at law or in equity) or by an
implied covenant of good faith and fair dealing.
(b) This Agreement constitutes either (A) a
valid transfer to the Buyer of all right, title and
interest of the Financing Originator in, to and the
Series 1996-2 Assets (other than any Residual
Investment that is not a Guaranteed Residual
Investment), and such property will be held by the
Buyer free and clear of any Lien of any Person
claiming through or under the Financing Originator
or its Affiliates, except for Permitted Liens, or
(B) a grant of a security interest (as defined in
Relevant UCC State) in such property to the Buyer.
Upon the filing of the financing statements, the
Buyer shall have a first priority perfected security
interest in such property, subject only to Permitted
Liens except with respect to any item of Equipment
that is a vehicle subject to vehicle registration
statutes. If this Agreement constitutes the grant
of a security interest in the Secured Obligations,
neither the Financing Originator nor any Person
claiming through or under the Financing Originator
shall have any claim, except for the interest of the
Financing Originator in such property as a debtor
for purposes of the UCC as in effect in the Relevant
UCC State.
(c) Schedule I to this Agreement is, as of the
Cut Off Date, an accurate and complete listing in
all material respects of the Series 1996-2 Contracts
which are End-User Contracts and the information
contained therein is true and correct in all
material respects as of the Cut Off Date.
(d) Schedule II to this Agreement is, as of the
Cut Off Date, an accurate and complete listing in
all material respects of the Series 1996-2 Contracts
which are Instruments.
(e) Schedule III to this Agreement is, as of
the Cut Off Date, an accurate and complete listing
in all material respects of the PBCC Contracts.
(f) Each End-User Contract has been transferred
to the Buyer free and clear of any Lien of any
Person (other than Permitted Liens) and in
compliance, in all material respects, with all
Requirements of Law applicable to the Financing
Originator and with respect to each Series 1996-2
Contract, all material consents, licenses, approvals
or authorizations of or registrations or
declarations with any Governmental Authority
required to be obtained, effected or given by the
Financing Originator in connection with the transfer
of such Series 1996-2 Contract to the Buyer have
been duly obtained, effected or given and are in
full force and effect; provided, however, that the
Financing Originator and the Buyer have agreed that
the certificates of title to any vehicles included
in the Equipment will not be re-registered to
indicate the sale of such vehicles to the Buyer or
the transfer from the Financing Originator to the
Buyer of the Financing Originator's security
interest in such vehicles.
4.2.2 Eligibility of Contracts. The Financing
Originator hereby represents and warrants to the Buyer as
of the Cut-Off Date, with respect to each Series 1996-2
Contract sold hereunder, that:
(a) the information delivered hereunder
(including without limitation, in the Contract
Specification Certificate) with respect to such
Series 1996-2 Contract, any related Secondary
Contract and any related Equipment is true and
correct in all material respects;
(b) immediately prior to the transfer of such
Series 1996-2 Contract to the Buyer, such Series
1996-2 Contract was owned by the Financing
Originator free and clear of any adverse claim;
(c) except as otherwise stated on Schedule I,
such Series 1996-2 Contract did not have a Scheduled
Payment that was a delinquent payment for more than
60 days, and such Series 1996-2 Contract is not
otherwise a Defaulted Contract;
(d) no provision of such Series 1996-2
Contract has been waived, altered or modified in any
respect, except by instruments or documents
contained in the Contract File (other than payment
delinquencies permitted under clause (c) above);
(e) such Series 1996-2 Contract is a valid and
binding payment obligation of the related Obligor
and is enforceable in accordance with its terms
(except as may be limited by applicable Insolvency
Laws, and the availability of equitable remedies);
(f) such Series 1996-2 Contract is not and
will not be subject to rights of rescission, setoff,
counterclaim or defense and, to the Financing
Originator's knowledge, no such rights have been
asserted or threatened with respect to such Series
1996-2 Contract;
(g) such Series 1996-2 Contract, at the time
it was made, did not violate the laws of the United
States or any state;
(h)(A) such Series 1996-2 Contract and any
related Equipment have not been sold, transferred,
assigned or pledged by the Financing Originator to
any other person (other than the sale of the related
Equipment to the End-User in connection with CSAs,
Secured Notes and "non-true leases" and a related
Residual Investment (other than a Guaranteed
Residual Investment, and any related Subordinated
Residual Interest) and, with respect to a "true
lease," any related Equipment is free and clear of
any Liens of any third parties except for any
Subordinated Residual Interest and Permitted Liens
and (B) either (1) such Series 1996-2 Contract is
secured by a fully perfected first priority security
interest in the related Equipment, or in the case of
a Vendor Note, the related Applicable Security or
(2) in the case of a Series 1996-2 Contract secured
by vehicle(s) subject to state certificate of title
statutes, either (x) within 30 calendar days of the
origination or acquisition of such Series 1996-2
Contract by the Financing Originator an application
was filed in the appropriate state office to note
the Financing Originator's interest on the
certificate of title for such vehicle and such
interest will be so noted within 180 days of such
acquisition or origination or (y) a certificate of
title on which such Financing Originator's interest
has been noted has been obtained;
(i) if such Series 1996-2 Contract constitutes
either "chattel paper" or an "instrument" (as
defined in the Relevant UCC State), there is not
more than one "secured party's original" or "payee's
original" counterpart of such Series 1996-2
Contract;
(j) all filings necessary to evidence the
conveyance or transfer of such Series 1996-2
Contract and security interest in any related
Equipment or Applicable Security to the Buyer have
been made in all appropriate jurisdictions;
(k) to the Financing Originator's knowledge,
the Obligor under such Series 1996-2 Contract is not
subject to bankruptcy or other insolvency proceedings;
(l) the related billing address is in the
United States and such Series 1996-2 Contract is a
U.S. dollar-denominated obligation;
(m) such Series 1996-2 Contract does not
require the prior written consent of the related
Obligor or contain any other restriction on the
transfer or assignment thereof (other than a consent
or waiver of such restriction that has been obtained
prior to the Closing Date);
(n) either (x) the obligations of the Obligor
under such Series 1996-2 Contract are irrevocable
and unconditional and non-cancelable or (y) with
respect to certain Leases with Lessees that are
governmental entities or municipalities, if such
Lease is cancelled, in accordance with its terms,
either (1) the Vendor that assigned such Lease to
the Financing Originator is unconditionally
obligated to repurchase such Lease from the
Financing Originator for a purchase price not less
than the Discounted Contract Balance of such Lease
(as of the date of repurchase) plus interest thereon
at the Discount Rate through the Distribution Date
following the date of repurchase or (2) the
Financing Originator has provided to the Buyer the
indemnity required under Section 6.3.2;
(o) such Series 1996-2 Contract has an
original maturity of not greater than the term
specified in Schedule I;
(p) no adverse selection procedure was used in
selecting such Series 1996-2 Contract;
(q) the Obligor under such Series 1996-2
Contract is required to maintain casualty insurance
or to self-insure with respect to the related
Equipment in accordance with the Servicer's normal
requirements;
(r) such Series 1996-2 Contract or Secondary
Contract constitutes "chattel paper," evidence of an
"account," an "instrument" or a "general intangible"
as defined in the Relevant UCC State;
(s) such Series 1996-2 Contract is not a
"consumer lease" as defined in Section 2A-103(1)(e)
of the UCC of the Relevant UCC State;
(t) if such Series 1996-2 Contract is a Lease,
the related Lessee has represented to the Financing
Originator or to the related Vendor that it has
accepted the related Equipment and that it has had a
reasonable opportunity to inspect and test such
Equipment and the Financing Originator has not been
notified of any defects therein;
(u) such Series 1996-2 Contract is not subject
to any guarantee by the Financing Originator (or any
Affiliate thereof) nor has the Financing Originator
established any specific credit reserve with respect
to the related Obligor;
(v) if such Series 1996-2 Contract is a Lease,
then it is a "triple net lease" under which the
related End-User is responsible for the maintenance
of the related Equipment in accordance with general
industry standards applicable to such item of
Equipment;
(w) if such Series 1996-2 Contract is a Vendor
Note, (A) such Vendor Note is secured by an Eligible
Secondary Contract having a Discounted Contract
Balance equal to the outstanding principal amount of
such Vendor Note (assuming the interest rate
specified in such Vendor Note is the "Series
Discount Rate" for purposes of calculating such
Discounted Contract Balance);
(x) no provision of such Series 1996-2
Contract provides for a Prepayment Amount less than
the amount calculated in accordance with the
definition thereof, unless either (I) the related
Vendor has indemnified the Financing Originator in
an amount equal to the excess of the "Prepayment
Amount" as calculated in accordance with the
definition thereof over the amount otherwise payable
(under the terms of such Series 1996-2 Contract, or
under applicable law) upon a prepayment under such
Series 1996-2 Contract, or (II) the Financing
Originator has provided to the Buyer the indemnity
provided in Section 6.3.1;
(y) such Series 1996-2 Contract is not an
obligation of the United States of America or
agency, department, or instrumentality of the United
States of America; and
(z) if such Series 1996-2 Contract is a PBCC
Contract, such Contract and the related Vendor, if
any, have been re-underwritten by the Seller using
the standard credit underwriting procedures set
forth in the Credit Guidelines.
4.2.3 Eligible Secondary Contracts. The
Financing Originator hereby represents and warrants to
the Buyer as of the Closing Date that each Series 1996-2
Contract which is a Secondary Contract is an Eligible
Secondary Contract.
4.2.4 Notice of Breach. The representations
and warranties set forth in this Section 4.2 shall
survive the sale, transfer and assignment of the Series
1996-2 Assets to the Buyer. Upon discovery by the
Financing Originator or the Buyer of a material breach of
any of the representations and warranties set forth in
this Section 4.2, the party discovering such breach shall
give written notice thereof to the other and to the
Issuer Trustee, the Indenture Trustee, the Collateral
Agent and the Rating Agencies immediately upon obtaining
knowledge of such breach. The Financing Originator
agrees to cooperate with the Buyer in attempting to cure
any such breach.
Section 4.3 Representations and Warranties of
the Buyer. The Buyer hereby represents and warrants to
the Financing Originator as of the Closing Date, that:
4.3.1 Organization and Good Standing. The
Buyer is a corporation duly organized and validly
existing in good standing under the laws of the State of
Delaware, and has full corporate power, authority and
legal right to own its properties and conduct its
business as such properties are presently owned and such
business is presently conducted, and to execute, deliver
and perform its obligations under the Sale Papers.
4.3.2 Due Qualification. The Buyer is duly
qualified to do business and is in good standing as a
foreign corporation (or is exempt from such
requirements), and has obtained or will obtain all
necessary licenses and approvals, in each jurisdiction in
which failure to so qualify or to obtain such licenses
and approvals would have a material adverse effect on its
ability to perform its obligations under the Sale Papers.
4.3.3 Due Authorization. The execution and
delivery of the Sale Papers and the consummation of the
transactions provided for in the Sale Papers have been
duly authorized by the Buyer by all necessary corporate
action on the part of the Buyer.
4.3.4 No Conflicts. The execution and
delivery of the Sale Papers, the performance of the
transactions contemplated under the Sale Papers and the
fulfillment of the terms thereof will not conflict with,
result in any breach of any of the material terms and
provisions of, or constitute (with or without notice or
lapse of time or both) a default under, any indenture,
contract, agreement, mortgage, deed of trust, or other
instrument to which the Buyer is a party or by which it
or any of its property is bound.
4.3.5 No Violation. The execution and
delivery of the Sale Papers, the performance of the
transactions contemplated by the Sale Papers, and the
fulfillment of the terms of the Sale Papers will not
conflict with or violate, in any material respect, any
Requirements of Law applicable to the Buyer.
4.3.6 No Proceedings. There are no
proceedings or investigations pending or, to the best
knowledge of the Buyer, threatened against the Buyer,
before any court, regulatory body, administrative agency,
or other tribunal or governmental instrumentality (i)
asserting the invalidity of the Sale Papers, (ii) seeking
to prevent the consummation of any of the transactions
contemplated thereby, (iii) seeking any determination or
ruling that, in the reasonable judgment of the Buyer,
could reasonably be expected to be adversely determined,
and if adversely determined, would materially and
adversely affect the performance by the Buyer of its
obligations under the Sale Papers, (iv) seeking any
determination or ruling that would materially and
adversely affect the validity or enforceability thereof
or (v) seeking any determination or ruling that would
materially and adversely affect the payment or
enforceability of the Series 1996-2 Contracts taken as a
whole.
4.3.7 All Consents Required. All approvals,
authorizations, consents, orders or other actions of any
Person or of any Governmental Authority required in
connection with the execution and delivery of the Sale
Papers, the performance of the transactions contemplated
by the Sale Papers, and the fulfillment of or terms of
the Sale Papers have been obtained.
4.3.8 Solvency. The transactions under this
Agreement do not and will not render the Buyer insolvent.
4.3.9 Binding Obligation. Each of the Sale
Papers to which it is a party, and the consummation of
the transactions provided for therein, constitutes a
legal, valid and binding obligation of the Buyer,
enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar
laws now or hereinafter in effect, affecting the
enforcement of creditors' rights in general and as such
enforceability may be limited by general principles of
equity (whether considered in a proceeding at law or in
equity).
The representations and warranties set forth in
this Section 4.3 shall survive the sale, transfer and
assignment of the Series 1996-2 Assets to the Buyer.
Upon discovery by the Buyer or the Financing Originator
of a material breach of any of the foregoing
representations and warranties, the party discovering
such breach shall give written notice to the other and to
the Trustee, the Indenture Trustee, and the Collateral
Agent immediately upon obtaining knowledge of such
breach.
[END OF ARTICLE IV]
ARTICLE V
COVENANTS
Section 5.1 Financing Originator Covenants.
The Financing Originator hereby covenants with respect to
each Series 1996-2 Contract, that:
(a) Security Interests. Except for the
transfers hereunder and any Residual Investment that
is not a Guaranteed Residual Investment, the
Financing Originator will not sell, pledge, assign
or transfer to any other Person, or grant, create,
incur, assume or suffer to exist any Lien on such
Series 1996-2 Contract or any related Secondary
Contract, Equipment or Applicable Security or any
interest therein. The Financing Originator shall
immediately notify the Buyer of the existence of any
Lien, other than Permitted Liens, on such Series
1996-2 Contract or any related Secondary Contract,
Equipment or Applicable Security; and the Financing
Originator shall defend the right, title and
interest of the Buyer in, to and under such Series
1996-2 Contract and any related Secondary Contract,
Equipment and Applicable Security, against all
claims of third parties; provided, however, that
nothing in this Section 5.1(a) shall prevent or be
deemed to prohibit the Financing Originator from
suffering Permitted Liens to exist upon such Series
1996-2 Contract or any related Secondary Contract or
Equipment.
(b) Delivery of Collections. In the event the
Financing Originator receives any payments in
respect of such Series 1996-2 Contract, the
Financing Originator agrees to deposit such amounts
into the Collection Account within two Business Days
of the Date of Processing.
(c) Compliance with Law. The Financing
Originator hereby agrees to comply in all material
respects with all Requirements of Law applicable to
the Financing Originator.
(d) Merger; Sales. The Financing Originator
shall not enter into any transaction of merger or
consolidation, or liquidate or dissolve itself (or
suffer any liquidation or dissolution), or acquire
or be acquired by any Person, or convey, sell, lease
or otherwise dispose of all or substantially all of
its property or business, except as provided for in
Section 9.14.
(e) Location of Records. The Financing
Originator (i) shall not move outside the State of
California, the location of its chief executive
office or the location of the Contract Files from
the location(s) thereof on the Closing Date without
45 days' prior written notice to the Buyer, the
Issuer Trustee and the Collateral Agent which notice
shall state whether, as a result of such relocation,
the applicable provisions of the UCC and the
Personal Property Security Act (Ontario), if
applicable, would require or make advisable the
filing of any amendment of any previously filed
financing or continuation statement or of any new
financing statement; (ii) shall promptly take all
actions required (including but not limited to all
filings and other acts necessary or advisable under
the UCC of the Relevant UCC State and the Personal
Property Security Act (Ontario), if applicable), of
each relevant jurisdiction. The Financing Originator
shall give the Buyer, the Issuer Trustee and the
Collateral Agent prompt notice of a change within
the State of California of the location of its chief
executive office; and (iii) shall at all times
maintain each office from which it services
Contracts and its principal executive office within
the United States of America and Canada, provided,
the Financing Originator shall not relocate its
principal executive office to within the
jurisdiction of the Court of Appeals of the United
States for the 10th Circuit unless the Rating Agency
Condition shall have been satisfied with respect
thereto.
(f) Contracts not to be Evidenced by
Instruments. The Financing Originator will take no
action to cause any Series 1996-2 Contract which is
not, as of the Closing Date, evidenced by any
Instrument, to be so evidenced except in connection
with the enforcement or collection of such Series
1996-2 Contract.
(g) Delivery of Instruments. Following the
Closing Date, the Financing Originator shall deliver
to the Buyer all Series 1996-2 Contracts which shall
become evidenced by Instruments in order to continue
the first priority perfected security interest of
the Buyer in such Series 1996-2 Contracts. Pursuant
to Section 2.1(b)(ii) of the Pooling Agreement, the
Buyer is required to deliver any Instrument to the
Issuer Trustee. Accordingly, the Buyer hereby
authorizes and directs the Financing Originator to
deliver any Instruments to the Issuer Trustee, on
behalf of and for the account of the Buyer, and
agrees that such delivery shall satisfy the
condition set forth in the first sentence of this
Subsection 5.1(g).
Section 5.2 Covenant Regarding Sale Treatment.
The Buyer and the Financing Originator agree to treat all
conveyances hereunder for all purposes (including,
without limitation, tax and financial accounting
purposes) as a sale on all relevant books, records, tax
returns, financial statements and other applicable
documents.
[END OF ARTICLE V]
ARTICLE VI
REPURCHASE OBLIGATION
Section 6.1 Mandatory Repurchase.
6.1.1 Breach of Warranty. On and after the
Closing Date, in the event that any of the
representations and warranties of the Financing
Originator with respect to a Series 1996-2 Contract set
forth in Section 4.2.1 or Section 4.2.2 shall not have
been true and correct as of the Closing Date, then no
later than 90 days after receipt by the Financing
Originator of written notice of such breach given by the
Buyer, the Financing Originator shall accept a retransfer
of each such Series 1996-2 Contract, or in the case of a
breach with respect to a Secondary Contract, the related
Vendor Note, on the terms and conditions set forth below;
provided, however, that no such retransfer shall be
required to be made with respect to any such Series 1996-
2 Contract if, on any day within such 90 day period, the
representations and warranties in Section 4.2.1 and
Section 4.2.2 with respect to the Series 1996-2 Contract
shall then be true and correct in all material respects
as if such Series 1996-2 Contract had been sold to the
Buyer on such day. Notwithstanding anything contained in
this Section 6.1.1 to the contrary, in the event of a
breach with respect to (i) any Series 1996-2 Contract
having been sold to the Buyer free and clear of any Lien
of any Person claiming through or under the Financing
Originator or its Affiliates and in compliance in all
material respects with all Requirements of Law applicable
to the Financing Originator, or (ii) with respect to the
transfer of the Financing Originator's security interest
in such Series 1996-2 Contract being effective to create
in favor of the Buyer a duly perfected security interest
in such Series 1996-2 Contract and in compliance in all
material respects with all Requirements of Law applicable
to the Financing Originator, immediately upon the earlier
to occur of the discovery of such breach by the Financing
Originator or receipt by the Financing Originator of
written notice of such breach given by the Buyer, the
Financing Originator shall repurchase and the Buyer shall
resell, without recourse, representation or warranty, all
of the Buyer's right, title, and interest in each such
Series 1996-2 Contract including any Vendor Note related
to the Secondary Contract as to which the breach applied.
In consideration of such resale the Financing Originator
shall, on the date of the resale of such Series 1996-2
Contract, pay to the Buyer an amount equal to the
Discounted Contract Balance of such Series 1996-2
Contract on the date of repurchase plus any outstanding
Servicer Advances thereon. The interest rate applied in
calculating such Discounted Contract Balance shall be the
Discount Rate on the date of repurchase. Upon each
resale to the Financing Originator of a Series 1996-2
Contract pursuant to this Section 6.1.1, the Buyer shall
automatically and without further action be deemed to
sell, transfer, assign and set-over to the Financing
Originator, without recourse, representation or warranty,
all right, title and interest of the Buyer, in, to and
under such Series 1996-2 Contract and all monies due or
to become due with respect thereto, the related Equipment
and all proceeds of such Series 1996-2 Contract and
Liquidation Proceeds and Insurance Proceeds relating
thereto and rights to security for any such Series 1996-2
Contract, and all proceeds and products of the foregoing.
The obligation of the Financing Originator to accept
resale of any such Series 1996-2 Contract shall
constitute the sole remedy respecting any breach of the
representations and warranties set forth in Section 4.2.1
and Section 4.2.2 with respect to such Series 1996-2
Contract or related Secondary Contract.
6.1.2 Reassignment of Contracts. On and after
the Closing Date, in the event of a breach by the
Financing Originator of any of the representations and
warranties set forth in Section 4.1, which breach could
reasonably be expected to have a material adverse effect
on the rights of the Noteholders or of the Collateral
Agent under the Pooling Agreement or the ability of the
Buyer to perform its obligations under the Pooling
Agreement, the Buyer by notice then given in writing to
the Financing Originator, may direct the Financing
Originator to accept resale of all of the Series 1996-2
Contracts purchased from the Financing Originator (the
"Resale Contracts") and the Financing Originator shall be
obligated to accept resale of such Series 1996-2
Contracts on a date specified by the Buyer (such date,
the "Resale Date") occurring within the period of 60 days
after such notice on the terms and conditions set forth
below; provided, however, that no such resale shall be
required to be made if, at any time during such
applicable period, the representations and warranties
contained in Section 4.1 shall then be true and correct
in all material respects. The Financing Originator shall
pay to the Buyer on the Resale Date an amount equal to
the Financing Originator's pro rata share (as reasonably
determined by the Buyer) of the amount actually payable
by the Buyer to the Trust pursuant to Section 2.5(f) of
the Pooling Agreement. On the Resale Date, the Resale
Contracts and all monies due or to become due with
respect thereto, and all proceeds thereof, all rights to
security for any such Series 1996-2 Contracts, and all
proceeds and products of the foregoing, shall be
transferred to the Financing Originator. If the Buyer
gives a notice directing the Financing Originator to
accept a resale as provided above, the obligation of the
Financing Originator to accept a resale of the Resale
Contracts pursuant to this Section 6.1.2 shall constitute
the sole remedy respecting a breach of the
representations and warranties contained in Section 4.1
available to the Buyer.
Section 6.2 Conveyance of Reassigned
Contracts. Upon any reconveyance of Series 1996-2
Contracts by the Buyer to the Financing Originator
pursuant to either Section 6.1.1 or Section 6.1.2, the
Buyer shall execute and deliver to the Financing
Originator instruments of sale and assignment in such
form as shall reasonably be requested by the Financing
Originator, in order to vest in the Financing Originator,
or its designee or assignee, all right, title and
interest of the Buyer in, to and under such Series 1996-2
Contracts, any related Secondary Contracts and any
Equipment, provided, that any such reconveyance shall
expressly state that it is made by the Buyer without any
recourse, representation or warranty. Subject to the
foregoing, the Buyer shall execute such other documents
or instruments of conveyance or take such other actions
as the Financing Originator may reasonably require to
effect any repurchase of Series 1996-2 Contracts pursuant
to Section 6.1.1 or Section 6.1.2.
Section 6.3 Adjustments.
6.3.1 The Financing Originator hereby agrees
that, with respect to each Series 1996-2 Contract (i)
which provides for a Prepayment Amount less than the
amount calculated in accordance with the definition
thereof and (ii) as to which the related Vendor has not
agreed to indemnify the Buyer or any assignee of the
Buyer in an amount at least equal to the excess of the
"Prepayment Amount" as calculated in accordance with the
definition thereof over the amount otherwise payable upon
prepayment of such Series 1996-2 Contract, the Financing
Originator shall indemnify the Buyer or the Trust as
assignee thereof, in an amount equal to the amount
specified in the foregoing clause (ii).
6.3.2 The Financing Originator hereby agrees
that if, with respect to any Lease with Lessees that are
governmental entities or municipalities, (i) such Lease
may be cancelled in accordance with its terms and (ii)
the Vendor that assigned such Lease to the Financing
Originator is not unconditionally obligated to repurchase
such Lease from the Financing Originator for a purchase
price not less than the Discounted Contract Balance of
such Lease as of the date of repurchase (assuming that
the interest rate to be applied in calculating the
Discounted Contract Balance of such Lease is the Discount
Rate on the date of repurchase) plus interest at the
Discount Rate through the date of repurchase (such
amount, the "Required Lease Cancellation Payment") then
the Financing Originator shall indemnify the Buyer or the
Trust as assignee thereof against such cancellation in an
amount equal to the difference between the amount, if
any, received from the related Vendor and the Required
Lease Cancellation Payment.
[END OF ARTICLE VI]
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.1 Conditions to the Buyer's
Obligations Regarding Contracts. The obligations of the
Buyer to purchase Series 1996-2 Contracts from the
Financing Originator on the Closing Date shall be subject
to the satisfaction of the following conditions:
7.1.1 All representations and warranties of
the Financing Originator shall be true and correct on the
Closing Date;
7.1.2 All information concerning the Series
1996-2 Contracts provided to the Buyer shall be true and
correct in all material respects as of the Closing Date;
7.1.3 On the Closing Date, the Financing
Originator shall have substantially performed all
obligations required to be performed by it on or prior to
the Closing Date pursuant to the provisions of this
Agreement;
7.1.4 All corporate and legal proceedings and
all instruments in connection with the transactions
contemplated by this Agreement shall be satisfactory in
form and substance to the Buyer, and the Buyer shall have
received from the Financing Originator copies of all
documents (including, without limitation, records of
corporate proceedings) relevant to the transactions
herein contemplated as the Buyer may reasonably have
requested.
Section 7.2 Conditions Precedent to the
Financing Originators' Obligations. The obligations of
the Financing Originator to sell Series 1996-2 Contracts
to the Buyer on the Closing Date shall be subject to the
satisfaction of the following conditions:
7.2.1 All representations and warranties of
the Buyer contained in this Agreement shall be true and
correct on the Closing Date;
7.2.2 Payment or provision for payment of the
Purchase Price to the Financing Originator in accordance
with the provisions of Section 3.1 hereof shall have been
made; and
7.2.3 All corporate and legal proceedings and
all instruments in connection with the transactions
contemplated by this Agreement shall be satisfactory in
form and substance to the Financing Originator, and the
Financing Originator shall have received from the Buyer
copies of all documents (including, without limitation,
records of corporate proceedings) relevant to the
transactions herein contemplated as the Financing
Originator may reasonably have requested.
[END OF ARTICLE VII]
ARTICLE VIII
TERM AND TERMINATION
Section 8.1 Termination. This Agreement shall
commence as of the date of execution and delivery hereof
and shall continue in full force and effect until the
earlier of (a) the maturity of the Series 1996-2
Contracts and (b) such date as shall be specified in a
written notice of either party to the other (which shall
be given not less than one Business Day prior to such
specified date); (any such date set forth in clause (a)
or (b) hereof being a "Termination Date"); provided,
however, that the termination of this Agreement pursuant
to this Section 8.1 shall not discharge any Person from
obligations incurred prior to any such termination of
this Agreement, including, without limitation, any
obligations to repurchase Series 1996-2 Contracts sold
prior to such termination pursuant to Section 6.1 hereof,
or to make the payments required under Section 6.3
hereof.
[END OF ARTICLE VIII]
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1 Amendment. This Agreement and any
other Sale Papers and the rights and obligations of the
parties hereunder may not be changed orally, but only by
an instrument in writing signed by the Buyer and the
Financing Originator. The Buyer shall provide not less
than 10 Business Days prior written notice of any such
amendment to the Trustee, and upon entering into any such
amendment the Buyer shall provide prompt written notice
thereof and a copy of such amendment to the Rating
Agencies.
Section 9.2 Governing Law. THIS AGREEMENT AND
THE OTHER SALE PAPERS SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, 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 9.3 Notices. All demands, notices and
communications hereunder shall be in writing and shall be
deemed to have been duly given if personally delivered at
or mailed by registered mail, return receipt requested, to:
9.3.1 in the case of the Buyer, to:
Newcourt Receivables Corporation
Ten Almaden Boulevard
Suite 500
San Jose, CA 95113
Attention: K. Nicholas Martitsch
9.3.2 in the case of the Financing Originator, to:
Newcourt Financial USA Inc.
Ten Almaden Boulevard
Suite 500
San Jose, CA 95113
Attention: K. Nicholas Martitsch
or, as to each party, at such other address as shall be
designated by such party in a written notice to each
other party.
Section 9.4 Severability of Provisions. If
any one or more of the covenants, agreements, provisions
or terms of the Sale Papers shall for any reason
whatsoever be held invalid, then such covenants,
agreements, provisions, or terms shall be deemed
severable from the remaining covenants, agreements,
provisions, or terms of the Sale Papers and shall in no
way affect the validity or enforceability of the other
provisions of the Sale Papers.
Section 9.5 Assignment.
9.5.1 Notwithstanding anything to the contrary
contained herein, this Agreement may not be assigned by
the Buyer or the Financing Originator except as permitted
by this Section 9.5 or the Pooling Agreement.
Simultaneously with the execution and delivery of this
Agreement, the Buyer shall assign all of its right, title
and interest herein to the Trust as provided in Section
2.1 of the Pooling Agreement and the Trust shall assign
all of its right, title and interest herein to the
Collateral Agent as provided in Section 2.3 of the
Pooling Agreement, to each of which assignments the
Financing Originator hereby expressly consents. The
Financing Originator agrees to perform its obligations
hereunder for the benefit of the Trust. The Collateral
Agent or the Controlling Party may enforce the provisions
of this Agreement, exercise the rights of the Buyer and
enforce the obligations of the Financing Originator
hereunder without the consent of the Buyer. This
Agreement may not be assigned by the Financing Originator
except in connection with a merger or consolidation of
the Financing Originator with or into, or disposition of
the Financing Originator's properties and assets to,
another Person, provided, however, that any such merger,
consolidation or disposition shall satisfy the
requirements of Section 9.14, upon not less than 10
Business Days prior written notice to the Buyer, the
Trustee, the Collateral Agent and each Rating Agency.
Except for the foregoing assignments by the Buyer and the
Financing Originator, no assignment of this Agreement
shall occur or be effective unless the Rating Agency
Condition shall have been satisfied with respect thereto.
9.5.2 In connection with any assignment of
this Agreement by the Financing Originator, the Financing
Originator shall deliver to the Buyer an Officer's
Certificate that such assignment complies with this
Section 9.5, and shall cause such assignee (i) to execute
an agreement supplemental hereto, in form and substance
satisfactory to the Financing Originator, pursuant to
which such assignee shall expressly assume and agree to
the performance of every covenant and obligation of the
Financing Originator hereunder, (ii) to provide for the
delivery of an Opinion of Counsel that such supplemental
agreement is legal, valid and binding with respect to
such assignee, and (iii) to take such other actions and
execute such other instruments as may reasonably be
required to effectuate such assignment.
Section 9.6 Further Assurances. The Buyer and
the Financing Originator agree to do and perform, from
time to time, any and all acts and to execute any and all
further instruments required or reasonably requested by
the other party more fully to effect the purposes of the
Sale Papers, including, without limitation, the execution
of any financing statements or continuation statements or
equivalent documents relating to the Series 1996-2
Contracts for filing under the provisions of the UCC or
other laws of any applicable jurisdiction.
Section 9.7 No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the
part of the Buyer or the Financing Originator, any right,
remedy, power or privilege hereunder, shall operate as a
waiver thereof; nor shall any single or partial exercise
of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein
provided are cumulative and not exhaustive of any rights,
remedies, powers and privilege provided by law.
Section 9.8 Counterparts. The Sale Papers may
be executed in two or more counterparts including telefax
transmission thereof (and by different parties on
separate counterparts), each of which shall be an
original, but all of which together shall constitute one
and the same instrument.
Section 9.9 Binding Effect; Third-Party
Beneficiaries. The Sale Papers shall inure to the
benefit of and the obligations thereunder shall be
binding upon the parties hereto and their respective
successors and permitted assigns. Any permitted assigns
shall be third-party beneficiaries of this Agreement.
Section 9.10 Merger and Integration. Except
as specifically stated otherwise herein, the Sale Papers
set forth the entire understanding of the parties
relating to the subject matter hereof, and all prior
understandings, written or oral, are superseded by the
Sale Papers. The Sale Papers may not be modified,
amended, waived or supplemented except as provided herein.
Section 9.11 Headings. The headings herein
are for purposes of reference only and shall not
otherwise affect the meaning or interpretation of any
provision hereof.
Section 9.12 Schedules and Exhibits. The
schedules and exhibits attached hereto and referred to
herein shall constitute a part of this Agreement and are
incorporated into this Agreement for all purposes.
Section 9.13 No Bankruptcy Petition Against
the Buyer. The Financing Originator hereby covenants and
agrees that, prior to the date which is one year and one
day after the payment in full of all Notes of all Series,
it will not institute against or join any other Person in
instituting against the Buyer any bankruptcy,
reorganization, arrangement, insolvency or liquidation
proceedings or other similar proceeding under the laws of
the United States or any state of the United States.
Section 9.14 Merger or Consolidation of, or
Assumption of the Obligations of, the Financing
Originator. The Financing Originator shall not
consolidate with or merge into any other corporation or
convey or transfer its properties and assets
substantially as an entirety to any Person, unless:
(i) the corporation formed by such
consolidation or into which the Financing Originator
is merged or the Person which acquires by conveyance
or transfer the properties and assets of the
Financing Originator substantially as an entirety
shall be a corporation organized and existing under
the laws of the United States of America or any
State or the District of Columbia and, if the
Financing Originator is not the surviving entity,
shall expressly assume, by an agreement supplemental
hereto, executed and delivered to the Buyer in form
satisfactory to the Buyer, the performance of every
covenant and obligation of the Financing Originator
hereunder (to the extent that any right, covenant or
obligation of the Financing Originator, as
applicable hereunder, is inapplicable to the
successor entity, such successor entity shall be
subject to such covenant or obligation, or benefit
from such right, as would apply, to the extent
practicable, to such successor entity); and
(ii) the Financing Originator shall have
delivered to the Buyer an Officer's Certificate that
such consolidation, merger, conveyance or transfer
and such supplemental agreement comply with this
Section 9.14 and that all conditions precedent
herein provided for relating to such transaction
have been complied with and an Opinion of Counsel
that such supplemental agreement is legal, valid and
binding with respect to the successor entity and
that the entity surviving such consolidation,
conveyance or transfer is organized and existing
under the laws of the United States of America or
any State or the District of Columbia. The Rating
Agencies shall receive prompt written notice of such
merger or consolidation of the Financing Originator.
Section 9.15 Protection of Right, Title and
Interest to Contracts and Equipment.
(a) The Financing Originator shall cause this
Agreement, all amendments hereto and/or all financing
statements and continuation statements and any other
necessary documents covering the Financing Originator's
and the Buyer's right, title and interest in, to and
under the Series 1996-2 Assets (except for any item of
Equipment with respect to which title thereto or a
security interest therein is required to be noted on a
certificate of title or otherwise recorded) to be
promptly recorded, registered and filed, and at all times
to be kept recorded, registered and filed, all in such
manner and in such places as may be required by law fully
to preserve and protect the right, title and interest of
the Buyer hereunder to the Series 1996-2 Assets and
proceeds thereof. Notwithstanding the foregoing, the
Financing Originator and the Buyer have agreed that the
certificates of title to any vehicles included in the
Equipment will not be re-registered to indicate the sale
of such vehicles to the Buyer or the transfer from the
Financing Originator to the Buyer of the Financing
Originator's security interest in such vehicles. The
Financing Originator shall deliver to the Buyer file-
stamped copies of, or filing receipts for, any document
recorded, registered or filed as provided above, as soon
as available following such recording, registration or
filing. The Buyer shall cooperate fully with the
Financing Originator in connection with the obligations
set forth above and will execute any and all documents
reasonably required to fulfill the intent of this
subsection 9.15(a).
(b) Within 30 days after the Financing
Originator makes any change in its name, identity or
corporate structure which would make any financing
statement or continuation statement filed in accordance
with paragraph (a) above materially misleading within the
meaning of Section 9-402(7) of the UCC as in effect in
the Relevant UCC State, the Financing Originator shall
give the Buyer written notice of any such change and
shall file such financing statements or amendments as may
be necessary or advisable to continue the perfection of
the Buyer's security interest in the Series 1996-2
Contracts and the proceeds thereof.
[END OF ARTICLE IX]
IN WITNESS WHEREOF, the Buyer and the Financing
Originator have caused this Agreement to be duly executed
by their respective officers as of the day and year first
above written.
NEWCOURT RECEIVABLES CORPORATION,
as Buyer
By:/s/ Daniel A. Jauernig
________________________
Name: Daniel A. Jauernig
Title: Vice President and Chief
Financial Officer
By:/s/ K. Nicholas Martitsch
________________________
Name: K. Nicholas Martitsch
Title: Assistant Secretary
NEWCOURT FINANCIAL USA INC.,
as Seller
By:/s/ Daniel A. Jauernig
__________________________
Name: Daniel A. Jauernig
Title: Treasurer
By:/s/ K. Nicholas Martitsch
___________________________
Name: K. Nicholas Martitsch
Title: Assistant Secretary
EXHIBIT A
FORM OF CONTRACT
EXHIBIT B
FORM OF INTERCREDITOR AGREEMENT
Schedule I
LIST OF CONTRACTS
Schedule II
LIST OF INSTRUMENTS
Schedule III
LIST OF PBCC CONTRACTS
POOLING, COLLATERAL AGENCY AND SERVICING AGREEMENT,
dated as of April 15, 1996, among NEWCOURT RECEIVABLES
CORPORATION, a Delaware corporation, as Seller (the "Seller"),
NEWCOURT CREDIT GROUP INC., an Ontario corporation, as Servicer
(the "Servicer"), FLEET NATIONAL BANK, a national banking
association, as Collateral Agent (the "Collateral Agent"), and
CHEMICAL BANK DELAWARE, a banking corporation organized and
existing under the laws of Delaware, not in its individual
capacity but solely as Issuer Trustee (the "Issuer Trustee").
In consideration of the mutual agreements herein
contained, each party agrees as follows for the benefit of the
other parties and for the benefit of the Noteholders:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Whenever used in this
Agreement, the following words and phrases shall have the
following meanings:
"Accrual Period" shall mean the period from and
including the first day of each calendar month to and
including the last day of such calendar month, except that
the Accrual Period immediately preceding the initial
Distribution Date for a Class of Notes shall mean the period
from but excluding the applicable Cutoff Date for such Class
of Notes to and including the last day of the calendar month
immediately preceding such Distribution Date.
"ADCB" shall mean, on any date of determination, the
sum of the Discounted Contract Balances of each Contract
included in the group of Contracts for which an ADCB
determination is being made as of the date of such
determination. For purposes of calculating such sum on any
date other than the last day of a Collection Period, the
Discounted Contract Balance of any Contract shall be as of
the last day of the preceding Collection Period or, with
respect to any Contract transferred to the Trust after such
last day, the Discounted Contract Balance on the Cut Off
Date for such Contract.
"Addition" shall have the meaning specified in Section
6.2.
"Addition Date" shall mean, with respect to any
Additional Contracts, the date on which such Additional
Contracts are transferred to the Trust pursuant to Section
6.2.
"Additional Contracts" shall mean the Contracts
transferred to the Trust after the First Closing Date, as
specified in the related Supplement.
"Additional Cut Off Date" shall mean each date on and
after which Collections on an Additional Contract are to be
transferred to the Trust, as specified in the related
assignment.
"Additional Series Enhancement" shall have for any
applicable Series the meaning specified in the related
Supplement.
"Adjusted Scheduled Payments" shall mean, for all
Contracts in the Contract Pool as of the date for which a
Series ADCB determination is being made, all remaining
Scheduled Payments under such Contracts due and payable
after such date of determination excluding (x) each
Scheduled Payment either becoming due after such date of
determination or due and payable after the applicable Cut
Off Date that has not been received by the Servicer, under
each of the Defaulted Contracts in the Contract Pool and (y)
each Scheduled Payment, or part thereof, becoming due after
such date of determination for any Contract in the Contract
Pool for which a Prepayment has been received by the
Servicer.
"Affiliate" of any specified Person, shall mean any
other Person directly or indirectly controlling or
controlled by or under direct or indirect common control
with such specified Person. For purposes of this
definition, "control" when used with respect to any
specified Person means the power to direct the management
and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Aggregate Principal Amount" shall mean, with respect
to any group of Notes, at any date of determination, the sum
of the Principal Amounts of such Notes on such date of
determination.
"Agreement" shall mean this Pooling, Collateral Agency
and Servicing Agreement and all amendments hereof and
supplements hereto, including any Supplement.
"Allocated Series Discounted Contract Balance" means,
with respect to any Contract and Series, at any time of
determination, the present value (discounted monthly at the
applicable Series Discount Rate) of the product of (1) the
applicable Series Allocation Percentage and (2) the
remaining Adjusted Scheduled Payments becoming due under
such Contract after such date of determination.
"Applicable Class Percentage" means, for any Contract
and for any outstanding Class of Notes of any Series, the
ratio that the Initial Principal Amount of such Class of
Notes of such Series bears to the sum of the Initial
Principal Amount of the outstanding Notes of all Classes of
such Series.
"Applicable Indenture" shall mean, with respect to the
Class A Notes of any Series, the indenture specified in the
related Supplement.
"Applicable Indenture Trustee" shall mean, with respect
to the Class A Notes of any Series, the Indenture Trustee
under the Applicable Indenture.
"Applicable Purchase Agreement" means, with respect to
any Contract, the Subsequent Purchase Agreement pursuant to
which such Contract was transferred to the Seller.
"Applicable Security" means, with respect to a Vendor
Note, any (i) Secondary Contracts securing such Vendor Note
and (ii) Equipment securing such Vendor Note or a related
Secondary Contract.
"Authorized Newspaper" shall mean The New York Times or
the Wall Street Journal.
"Available Amount" shall mean, as of any Distribution
Date, the sum of (i) all amounts on deposit in the
Collection Account as of the immediately preceding
Determination Date on account of Scheduled Payments due on
or before and Prepayments received on or before the last day
of the Collection Period immediately preceding such
Distribution Date (other than Excluded Amounts and any
Investment Earnings credited to the Collection Account),
(ii) any amounts received from any Hedging Counterparty
during the preceding Collection Period and (iii) Recoveries
on account of previously Defaulted Contracts.
"Business Day" shall mean each day which is neither a
Saturday, a Sunday nor any other day on which banking
institutions in New York, New York, Hartford, Connecticut,
Toronto, Ontario, Canada (or, with respect to any Series,
any additional city specified in the related Supplement) are
authorized or obligated by law or required by executive
order to be closed.
"Business Trust Statute" shall mean Chapter 38 of
Title 12 of the Delaware Code, 12 Del Code 3801 et seq., as
the same may be amended from time to time.
"Canadian Filing Location" means Ontario, Canada.
"Casualty Loss" means, with respect to any item of
Equipment, the loss, theft, damage beyond repair or
governmental condemnation or seizure of such item of
Equipment.
"Charge-Off" shall mean on any date of determination,
each Contract (i) that was charged off by the Servicer as
uncollectible in accordance with its usual and customary
practices during the six preceding Collection Periods
(whether or not such Contract was a Defaulted Contract) or
(ii) under which the related Obligor was the subject of an
Insolvency Event during such six Collection Periods.
"Class" shall mean, with respect to any Series, any one
or more of the classes of Notes of such Series as specified
in the related Supplement.
"Class A Notes" shall mean the Class of Notes of any
Series the right of which to receive payments is senior to
the rights of all other Classes of Notes of such Series as
specified in the related Supplement or Supplements.
"Class A Principal Payment Amount" shall mean, with
respect to any Distribution Date and any Series of Class A
Notes, the sum of (i) the product of (A) the Applicable
Class Percentage for such Notes and (B) the excess of (1)
the Series ADCB as of the last day of the second Collection
Period preceding such Distribution Date (or, in the case of
Contracts that were first added to the Contract Pool during
the Collection Period immediately preceding such
Distribution Date, as of the Cut Off Date for such
Contracts) over (2) the Series ADCB as of the last day of
the Collection Period immediately preceding such
Distribution Date (without giving effect, in the case of
clauses (1) and (2), to Scheduled Payments expected to have
been received on or after the last day of the applicable
Collection Period referred to in such clause under each
Contract in the Contract Pool which became a Defaulted
Contract or a Prepaid Contract during such Collection
Period) and (ii) the sum of the following amounts: the
present value (discounted monthly at the applicable Series
Discount Rate) of the product of (x) each Scheduled Payment
expected to have been received on or after the last day of
the Collection Period immediately preceding such
Distribution Date under each Contract in the Contract Pool
which became a Defaulted Contract or a Prepaid Contract
during such Collection Period and (y) the Series Allocation
Percentage as of the last day of the Collection Period
immediately preceding such Distribution Date (the sum of (i)
and (ii), the "Expected Class A Payment") and (iii) the
aggregate amount of Expected Class A Payments which were not
paid on each preceding Distribution Date.
"Class B Notes" shall mean the Class or Classes of
Notes of any Series the right of which to receive payments
is junior to the rights of the Class A Notes of all Series
as specified in the related Supplement or Supplements.
"Class B Principal Payment Amount" for a Series of
Class B Notes means, for any Distribution Date, the sum of
(i) the product of (A) the Applicable Class Percentage for
such Notes and (B) the excess of (1) the Series ADCB as of
the last day of the second Collection Period preceding such
Distribution Date (or, in the case of Contracts that were
first added to the Contract Pool during the Collection
Period immediately preceding such Distribution Date, as of
the Cut Off Date for such Contracts) over (2) the Series
ADCB as of the last day of the Collection Period immediately
preceding such Distribution Date (without giving effect, in
the case of clauses (1) and (2), to Scheduled Payments
expected to have been received on or after the last day of
the applicable Collection Period referred to in such clause
under each Contract in the Contract Pool which became a
Defaulted Contract or a Prepaid Contract during such
Collection Period) and (ii) from and after the date the
Class A Notes of each Series have been paid in full, the sum
of the following amounts: the present value (discounted
monthly at the applicable Series Discount Rate) of the
product of (x) each Scheduled Payment expected to have been
received on or after the last day of the Collection Period
immediately preceding such Distribution Date under each
Contract in the Contract Pool which became a Defaulted
Contract or a Prepaid Contract during such Collection Period
and (y) the Series Allocation Percentage as of the last day
of the Collection Period immediately preceding such
Distribution Date (the sum of (i) and (ii), the "Expected
Class B Payment") and (iii) the aggregate amount of Expected
Class B Payments which were not paid on each preceding
Distribution Date.
"Class C Notes" shall mean the Class or Classes of
Notes of any Series the right of which to receive payments
is junior to the rights of the Class A Notes and the Class B
Notes of all Series as specified in the related Supplement
or Supplements.
"Class C Principal Payment Amount" for a Series of
Class C Notes means, for any Distribution Date, the sum of
(i) the product of (A) the Applicable Class Percentage for
such Notes and (B) the excess of (1) the Series ADCB as of
the last day of the second Collection Period preceding such
Distribution Date (or, in the case of Contracts that were
first added to the Contract Pool during the Collection
Period immediately preceding such Distribution Date, as of
the Cut Off Date for such Contracts) over (2) the Series
ADCB as of the last day of the Collection Period immediately
preceding such Distribution Date (without giving effect, in
the case of clauses (1) and (2), to Scheduled Payments
expected to have been received on or after the last day of
the applicable Collection Period referred to in such clause
under each Contract in the Contract Pool which became a
Defaulted Contract or a Prepaid Contract during such
Collection Period) and (ii), from and after the date the
Class A Notes and Class B Notes of each Series have been
paid in full, the sum of the following amounts: the present
value (discounted monthly at the applicable Series Discount
Rate) of the product of (x) each Scheduled Payment expected
to have been received on or after the last day of the
Collection Period immediately preceding such Distribution
Date under each Contract in the Contract Pool which became a
Defaulted Contract or a Prepaid Contract during such
Collection Period and (y) the Series Allocation Percentage
as of the last day of the Collection Period immediately
preceding such Distribution Date (the sum of (i) and (ii),
the "Expected Class C Payment") and (iii) the aggregate
amount of Expected Class C Payments which were not paid on
each preceding Distribution Date.
"Closing Date" shall mean, with respect to any Series,
the date specified as such in the related Supplement.
"Collateral Agent" shall mean the institution executing
this Agreement as Collateral Agent, or its successor in
interest, or any successor collateral agent appointed as
herein provided.
"Collection Account" shall have the meaning specified
in subsection 4.2(a).
"Collection Period" shall, unless otherwise specified
in the related Supplement, mean a period beginning on the
first day of a calendar month and ending on, but not
including the first day of the next calendar month, provided
that the first Collection Period shall be the period
beginning on the initial Cut Off Date and ending on, but not
including, the first day of the calendar month immediately
following the calendar month in which the First Closing Date
occurs.
"Collections" shall mean all payments received on or
with respect to the Contracts in the Contract Pool or the
related Equipment, including, without limitation, Scheduled
Payments, Prepayments, Recoveries and Expired Lease
Proceeds, all as related to amounts attributable to the
Contracts in the Contract Pool or the related Equipment, but
excluding any Excluded Amounts.
"Commitment Termination Date" shall mean the date which
is eighteen months from the First Closing Date.
"Contract" shall mean each End-User Contract and each
Vendor Note but, unless otherwise expressly specified herein
or in a Supplement, shall not refer to any Secondary
Contract.
"Contract Files" shall mean, with respect to each
Contract, the fully executed original counterpart (for UCC
purposes) of the Contract, the original certificate of title
or other title document with respect to the related
Equipment (if applicable), and otherwise such documents, if
any, that the Servicer keeps on file in accordance with its
customary procedures, evidencing ownership of such Equipment
(if applicable) and all other documents originally delivered
to the Seller or held by the Servicer with respect to any
Contract.
"Contract Pool" as of any date shall mean the Original
Contracts and the Additional Contracts, other than any such
Contracts which (i) have been transferred to the Seller
pursuant to Sections 2.5(e) or 2.5(f) or (ii) have been paid
(or prepaid) in full.
"Controlling Party" means Indenture Trustees
representing the Holders of Class A Notes aggregating more
than 66-2/3% of the Aggregate Principle Amount of all Class
A Notes outstanding (and if no Class A Notes remain
outstanding, the Holders of Notes aggregating more than 50%
of the Aggregate Principal Amount of all Series
outstanding).
"Corporate Trust Office" shall mean the principal
office of the Issuer Trustee at which at any particular time
its corporate trust business shall be administered, which
office at the date of the execution of this Agreement is
located at 1201 Market Street, Wilmington, Delaware 19801.
"Credit Enhancement" shall mean, with respect to any
Series, the letter of credit, cash collateral or reserve
account, surety bond, insurance policy, guaranteed rate
agreement, interest rate swap or any other contract,
arrangement or agreement for the benefit of the Noteholders
of such Series (or Noteholders of a Class within such
Series), or any combination of the foregoing, as designated
in the applicable Supplement, including any Series
Enhancement or additional subordination provisions that
require that distributions of principal or interest be made
with respect to the Notes of such Class or Classes before
distributions are made to one or more other Classes of such
Series.
"Credit Enhancer" shall mean, with respect to any
Series, the Person, if any, designated as such in the
related Supplement.
"Credit Guidelines" shall mean Newcourt's Credit Manual
dated as of May, 1995, as amended or supplemented from time
to time.
"CSA" shall mean each conditional sales agreement,
including, as applicable, schedules, subschedules,
supplements and amendments to a master conditional sales
agreement, pursuant to which specified assets were
conditionally sold to an Obligor at specified monthly,
quarterly or semi-annual payments.
"Custodian" shall have the meaning specified in Section
2.6(o).
"Custody Agreement" shall have the meaning specified in
Section 2.6(o).
"Cut Off Date" shall mean with respect to each Original
Contract, the date specified in the Supplement executed in
connection with the first issuance of Notes on and after
which Collections on such Original Contract are to be
transferred to the Trust, and with respect to each
Additional Contract, the related Additional Cut Off Date.
"Date of Processing" shall mean, with respect to any
transaction, the date on which such transaction is first
recorded on the related Financing Originator's or Servicer's
computer master file of Contracts (without regard to the
effective date of such recordation).
"Defaulted Contract" means a Contract in the Contract
Pool as to which (i) the Servicer has determined in its sole
discretion, in accordance with its customary and usual
practices, that such Contract is not collectible, or (ii)
all or part of a Scheduled Payment thereunder is more than
90 days delinquent.
"Determination Date" shall mean with respect to any
Distribution Date, the third day prior to such Distribution
Date or, if such third day is not a Business Day, the next
succeeding Business Day.
"Discounted Contract Balance" means with respect to any
Contract, (i) as of the related Cut Off Date, the present
value of all of the remaining Scheduled Payments becoming
due under such Contract after the applicable Cut Off Date
discounted monthly at the applicable Series Discount Rate
and (ii) as of any other date of determination, the sum of
(x) the present value for each Series of the product of (a)
the applicable Series Allocation Percentage for such Series
and (b) all of the remaining Scheduled Payments becoming due
under such Contract after such date of determination
discounted monthly at the Series Discount Rate for such
Series and (y) the aggregate amount of all Scheduled
Payments due and payable under such Contract after the
applicable Cut Off Date and prior to such date of
determination (other than Scheduled Payments related to
Defaulted Contracts and Prepaid Contracts) that have not
then been received by the Servicer.
The "Discounted Contract Balance" for each Contract shall be
calculated assuming:
(i) all payments due in any Collection Period are
due on the last day of the Collection Period;
(ii) payments are discounted on a monthly basis
using a 30 day month and a 360 day year; and
(iii) all security deposits and drawings under
letters of credit, if any, issued in support of a
Contract are applied to reduce Scheduled Payments
in inverse order of the due date thereof.
"Distribution Date" shall mean the twentieth day of
each calendar month or, if such twentieth day is not a
Business Day, the next succeeding Business Day.
"Dollar" and "$" means lawful currency of the United
States of America.
"Eligible Contract" shall mean at any date of
determination, each Contract with respect to which each of
the following is true:
(a) the information with respect to the Contract,
any Secondary Contract securing the obligations under
such Contract, and the Equipment, if any, subject to
the Contract delivered under the Applicable Purchase
Agreement is true and correct in all material respects;
(b) immediately prior to the transfer of such
Contract and any related Equipment (or security
interest therein) or Applicable Security (or security
interest therein) to the Trust, such Contract was owned
by the Seller free and clear of any adverse claim
(other than with respect to any Residual Investment
(other than a Guaranteed Residual Investment) or
related Subordinated Residual Interest);
(c) the Contract did not have a Scheduled Payment
that was a delinquent payment for more than 60 days,
and the Contract is not otherwise a Defaulted Contract;
(d) no provision of the Contract has been waived,
altered or modified in any respect, except by
instruments or documents contained in the Contract File
(other than payment delinquencies permitted under
clause (c) above);
(e) the Contract is a valid and binding payment
obligation of the Obligor and is enforceable in
accordance with its terms (except as may be limited by
applicable Insolvency Laws and the availability of
equitable remedies);
(f) the Contract is not and will not be subject to
rights of rescission, setoff, counterclaim or defense
and, to the Seller's knowledge, no such rights have
been asserted or threatened with respect to the
Contract;
(g) the Contract, at the time it was made, did not
violate the laws of the United States or any state,
except for any such violations which would not
materially and adversely affect the collectibility of
the Contracts in the Contract Pool taken as a whole;
(h) (i) the Contract and any related Equipment
have not been sold, transferred, assigned or pledged by
the Seller to any other Person (other than the sale of
the Equipment to the End-User in connection with CSAs,
Secured Notes and "non-true leases" and other than the
Residual Investment, if any (other than a Guaranteed
Residual Investment), and any related Subordinated
Residual Interest) and, with respect to a Contract
which is a "true lease," any Equipment related to such
true lease is free and clear of any Liens of any third
parties (except for any Permitted Liens) and (ii)
either (A) such Contract is secured by a fully
perfected Lien of the first priority on the related
Equipment or, in the case of any Vendor Note, related
Applicable Security or (B) in the case of a Contract
secured by vehicle(s) subject to state certificate of
title statutes, within 30 calendar days of the
origination or acquisition of such Contract by a
Financing Originator an application was filed in the
appropriate state office to note such Financing
Originator's interest on the certificate of title for
such vehicle and such interest will be so noted within
180 days of such acquisition or origination;
(i) if the Contract constitutes either "chattel
paper" or an "instrument" for purposes of the UCC,
there is not more than one "secured party's original"
counterpart of the Contract;
(j) all filings necessary to evidence the
conveyance or transfer of the Contract and interest in
the related Equipment or Applicable Security, as
applicable, to the Trust have been made in all 40
appropriate jurisdictions;
(k) the Obligor is not, to the Seller's knowledge,
subject to bankruptcy or other insolvency proceedings;
(l) the Obligor's billing address is in the United
States and the Contract is a U.S. dollar denominated
obligation;
(m) the Contract does not require the prior
written consent of an Obligor or contain any other
restriction on the transfer or assignment of the
Contract (other than a consent or waiver of such
restriction that has been obtained prior to the Closing
Date, with respect to an Original Contract, or the
Addition Date, with respect to an Additional Contract);
(n) either (x) the obligations of the related
Obligor under such Contract are irrevocable and
unconditional and non-cancelable or (y) with respect to
certain Leases with Lessees that are governmental
entities or municipalities, if such Lease is cancelled
in accordance with its terms, either (1) the Vendor
that assigned such Lease to a Financing Originator is
unconditionally obligated to repurchase such Lease from
such Financing Originator for a purchase price not less
than the Discounted Contract Balance of such Lease (as
of the date of purchase) plus interest thereon at the
weighted average of the Series Discount Rates through
the Distribution Date following such date of repurchase
or (2) pursuant to the Applicable Purchase Agreement,
the Financing Originator that sold such Lease to the
Seller has indemnified the Seller against such
cancellation in an amount at least equal to the
Discounted Contract Balance of such Lease (as of the
date of purchase) plus interest thereon at the weighted
average of the Series Discount Rates through the
Distribution Date following such cancellation less any
amounts paid by the Vendor pursuant to clause (1);
(o) the Contract has an original maturity of not
greater than the term specified in this Agreement;
(p) no adverse selection procedure was used in
selecting the Contract for the Contract Pool;
(q) the Obligor under the Contract is required to
maintain casualty insurance or to self-insure with
respect to the related Equipment in accordance with the
Servicer's normal requirements;
(r) the Contract constitutes chattel paper, an
account, an instrument or a general intangible as
defined under the UCC;
(s) the Contract is not a "consumer lease" as
defined in Section 2A 103(1)(e) of the UCC;
(t) if such Contract is a Lease, the Lessee
thereunder has represented to the related Vendor or
Financing Originator that such Lessee has accepted the
related Equipment and has had a reasonable opportunity
to inspect and test such Equipment and the Vendor or
Financing Originator has not been notified of any
defects therein;
(u) the Contract is not subject to any guarantee
by Newcourt nor has the Seller or either Financing
Originator established any specific credit reserve with
respect to the related Obligor;
(v) if such Contract is a Lease, such Lease is a
"triple net lease" under which the Obligor is
responsible for the maintenance of the related
Equipment in accordance with general industry standards
applicable to such item of Equipment;
(w) if such Contract is a Vendor Note, such Vendor
Note is secured by an Eligible Secondary Contract
having an aggregate Discounted Contract Balance for
such Eligible Secondary Contract equal to the
outstanding principal amount of such Vendor Note
(assuming the interest rate specified in such Vendor
Note is the "Series Discount Rate" for purposes of
calculating such Discounted Contract Balance);
(x) no provision of such Contract provides for a
Prepayment Amount less than the amount calculated in
accordance with the definition of Prepayment Amount
(unless otherwise indemnified by the Vendor or the
Financing Originator in an amount equal to the excess
of the "Prepayment Amount" as calculated in accordance
with the definition thereof over the amount otherwise
payable upon a prepayment under such Contract);
(y) such Contract is not an obligation of the
United States of America or agency, department, or
instrumentality of the United States of America; and
(z) such other criteria, if any, with respect to
Additional Contracts as are specified in a Supplement;
provided, that Contracts with respect to which any of the
statements in clauses (c), (o) or (x) above are not true
shall also be "Eligible Contracts" if the Seller shall have
received confirmation from each Rating Agency that such fact
will not result in a Ratings Effect.
"Eligible Deposit Account" shall mean either (a) a
segregated account with a Qualified Institution or (b) a
segregated trust account with the corporate trust department
of a depository institution organized under the laws of the
United States or any one of the states thereof, including
the District of Columbia (or any domestic branch of a
foreign bank), and acting as a trustee for funds deposited
in such account, so long as any of the securities of such
depository institution shall have a credit rating from each
Rating Agency in one of its short-term credit rating
categories which signifies investment grade.
"Eligible Investments" with respect to any Distribution
Date shall mean negotiable instruments or securities or
other investments maturing on or before such Distribution
Date (a) which, except in the case of demand or time
deposits, investments in money market funds and Eligible
Repurchase Obligations, are represented by instruments in
bearer or registered form or ownership of which is
represented by book entries by a Clearing Agency or by a
Federal Reserve Bank in favor of depository institutions
eligible to have an account with such Federal Reserve Bank
who hold such investments on behalf of their customers, (b)
which, as of any date of determination, mature by their
terms on or prior to the Distribution Date immediately
following such date of determination and (c) which evidence:
(i) direct obligations of, and obligations fully
guaranteed as to full and timely payment by, the United
States of America (or by any agency thereof to the
extent such obligations are backed by the full faith
and credit of the United States of America);
(ii) demand deposits, time deposits or
certificates of deposit of depository institutions or
trust companies incorporated under the laws of the
United States of America or any state thereof and
subject to supervision and examination by federal or
state banking or depository institution authorities;
provided, however, that at the time of the Trust's
investment or contractual commitment to invest therein,
the commercial paper, if any, and short-term unsecured
debt obligations (other than such obligation whose
rating is based on the credit of a Person other than
such institution or trust company) of such depository
institution or trust company shall have a credit rating
from each Rating Agency in the Highest Required
Investment Category granted by such Rating Agency;
(iii) commercial paper, or other short term
obligations, having, at the time of the Trust's
investment or contractual commitment to invest therein,
a rating in the Highest Required Investment Category
granted by each Rating Agency;
(iv) demand deposits, time deposits or
certificates of deposit that are fully insured by the
FDIC;
(v) notes that are payable on demand or bankers'
acceptances issued by any depository institution or
trust company referred to in (ii) above;
(vi) investments in money market funds having, at
the time of the Trust's investment or contractual
commitment to invest therein, a rating of the Highest
Required Investment Category from each Rating Agency or
whose portfolio is limited to the investments described
in clause (i) of this definition;
(vii) time deposits (having maturities of not more
than 90 days) by an entity the commercial paper of
which has, at the time of the Trust's investment or
contractual commitment to invest therein, a rating of
the Highest Required Investment Category granted by
each Rating Agency;
(viii) Eligible Repurchase Obligations; and
(ix) any negotiable instruments or securities or
other investments in which the investment by the Trust
therein has been approved in writing by the Rating
Agency.
"Eligible Repurchase Obligations" shall mean repurchase
obligations with respect to any security that is a direct
obligation of, or fully guaranteed by, the United States of
America or any agency or instrumentality thereof the
obligations of which are backed by the full faith and credit
of the United States of America, in either case entered into
with a depository institution or trust company (acting as
principal) described in clause (b)(ii) of the definition of
Eligible Investments.
"Eligible Secondary Contract" shall mean each Secondary
Contract
(i) that satisfies all the criteria set forth
in the definition of "Eligible Contract" except clauses
(b), (h) (with respect to ownership by the Financing
Originator of the Contract) and (w) thereof, and except
that the term "Obligor" shall mean "End-User" in all
such criteria;
(ii) with respect to which Secondary Contract
and the proceeds thereof the Financing Originator has a
duly perfected first priority lien; and
(iii) the transfer of the Financing Originator's
security interest with respect to which has created a
valid first priority Lien in such Secondary Contract
and the proceeds thereof in favor of the Seller which
has been duly perfected.
"End-User" shall mean any party that uses the Financed
Item pursuant to an End-User Contract.
"End-User Contract" shall mean any CSA, Secured or
Unsecured Note, Lease, IPA, or other Financing Agreement
covering Financed Items originated or purchased by either of
the Financing Originators.
"Equipment" means the tangible assets (including
information technology equipment, communications equipment,
commercial equipment, industrial equipment, transportation
equipment, construction equipment, forestry equipment or
other equipment) financed or leased by an Obligor pursuant
to a Contract and/or, unless the context otherwise requires,
a security interest in such assets.
"Event of Default" shall have, with respect to each
Series, the meaning specified in Section 9.1.
"Excess Concentration Amount" means, at any date of
determination, an amount equal to the sum of (i) the
Discounted Contract Balances of all Excess Contracts in the
Trust, together with accrued interest thereon through such
date of determination at the weighted average of the Series
Discount Rates and (ii) the outstanding principal amount of
any Servicer Advances with respect thereto.
"Excess Contract", as of any date of determination,
means each Contract selected by the Servicer at such time as
there shall be a breach of any of the representations and
warranties set forth in Section 2.5(c), the removal of which
pursuant to Section 2.5(e) shall remedy such breach.
"Excess Spread Amount" for the Class A Notes and Class
B Notes of a Series means, such portion of the Series
Available Amount available to pay the Class C Noteholders of
such Series which is specified in the Supplement related to
such Series of Notes. The Excess Spread Amount for the
Class C Notes of a Series shall be an amount equal to the
portion of the Series Available Amount, if any, remaining
after payment of the Excess Spread Amount for the Class A
Notes and Class B Notes of such Series. The Excess Spread
Amount specified for any Series of Class A Notes, Class B
Notes and Class C Notes may increase or decrease from time
to time in connection with the issuance of additional Series
depending upon the amount, if any, of the "Excess Spread
Amount" deductible from the Series Available Amount
available to pay the Class C Noteholders of such additional
Series.
"Excluded Amounts" means (i) any collections on deposit
in the Collection Account or otherwise received by the
Servicer on or with respect to the Contract Pool or related
Equipment, which collections are attributable to any taxes,
fees or other charges imposed by any Governmental Authority,
(ii) any collections representing reimbursements of
insurance premiums or payments for services that were not
financed by the Financing Originator and (iii) any proceeds
from the sale or other disposition of Equipment in excess of
the difference between (x) the Discounted Contract Balance
of the related Contract as of the applicable Cutoff Date,
over (y) the present value as of the applicable Cutoff Date
of all amounts actually received by the Trust in respect of
such Contract, discounted monthly at the applicable Series
Discount Rate.
"Existing Contracts" means the Contracts purchased by
the Seller under the Original Purchase Agreement and owned
by the Seller on the First Closing Date.
"Expired Lease" means any Lease that has terminated
other than on its scheduled expiration date.
"Expired Lease Proceeds" means any and all cash
proceeds or rents realized from the sale or re-lease of
Equipment under an Expired Lease (net of Liquidation
Expenses).
"FDIC" shall mean the Federal Deposit Insurance
Corporation, or any successor thereto.
"Filing Locations" is a collective reference to the UCC
Filing Locations and the Canadian Filing Location.
"Final Trust Termination Date" shall mean December 31, 2015.
"Financed Items" shall mean Equipment, Software,
Services and other property and services that are permitted
to be financed under Contracts in accordance with the Credit
Guidelines.
"Financing Agreement" shall mean each financing
agreement covering Financed Items other than a CSA, a
Secured or Unsecured Note, a Lease or an IPA.
"Financing Originator" shall mean any of Newcourt
Financial USA Inc., a Delaware corporation, Newcourt
Transportation USA Inc., a Delaware corporation, or any
other direct or indirect wholly owned subsidiary of Newcourt
Credit Group USA Inc., a Delaware corporation, which
subsidiary is incorporated under the laws of the United
States or of any state thereof and principally engaged in
the financing business within the United States that is
specified in a Supplement.
"First Closing Date" shall mean the Closing Date
specified in the Supplement executed in connection with the
first issuance of Notes.
"Governmental Authority" shall mean the United States
of America, any state or other political subdivision thereof
and any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to
government.
"Guaranteed Residual Investment" shall mean each
Residual Investment that is made in the form of a full
recourse loan to the Vendor, repayable by the Vendor at the
expiration or termination of the related Contract, together
with interest thereon, and secured by a security interest in
the Equipment covered by the Contract.
"Hedged Contract" shall mean on any date of
determination each Contract in the Contract Pool that is the
subject of an Interest Rate Hedge on such date of
determination.
"Hedging Counterparty" shall mean any Person that
provides an Interest Rate Hedge as provided in subsection
4.4(a) or if any Replacement Interest Rate Hedge or
Qualified Substitute Arrangement is obtained pursuant to
subsection 4.4(b), any obligor with respect to such
Replacement Interest Rate Hedge or Qualified Substitute
Arrangement.
"Highest Required Investment Category" shall mean (i)
with respect to ratings assigned by Standard & Poor's, A-1+
for short-term instruments and AAA for long-term instruments
and (ii) with respect to ratings assigned by Moody's, A-2 or
P-1 for one month instruments, A-1 or P-1 for three month
instruments, AA3 or P-1 for six month instruments and AAA or
P-1 for instruments with a term in excess of six months.
"Indebtedness" shall mean, with respect to any Person
at any date, (a) all indebtedness of such Person for
borrowed money or for the deferred purchase price of
property or services (other than current liabilities
incurred in the ordinary course of business and payable in
accordance with customary trade practices) or which is
evidenced by a note, bond, debenture or similar instrument,
(b) all obligations of such Person under capital leases, (c)
all obligations of such Person in respect of acceptances
issued or created for the account of such Person and (d) all
liabilities secured by any Lien on any property owned by
such Person even though such Person has not assumed or
otherwise become liable for the payment thereof.
"Indenture Event of Default" under any Indenture shall
have the meaning assigned thereto in such Indenture.
"Indenture Trustee" shall mean an indenture trustee
under an indenture pursuant to which the Class A Notes of
any outstanding Series have been issued.
"Indentures" is a collective reference to each
indenture under which the Class A Notes of any Series are
issued.
"Ineligible Contract" shall have the meaning specified
in subsection 2.5(e).
"Initial Principal Amount" shall mean the initial
principal payable in respect of the Notes of any Class of
any Series pursuant to Article IV as set forth in the
Supplement related to such Series.
"Insolvency Event" means, with respect to a specified
Person, (a) the filing of a decree or order for relief by a
court having jurisdiction in the premises in respect of such
Person or any substantial part of its property in an
involuntary case under any applicable Insolvency Law now or
hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar
official for such Person or for any substantial part of its
property, or ordering the winding-up or liquidation of such
Person's affairs, and such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days;
or (b) the commencement by such Person of a voluntary case
under any applicable Insolvency Law now or hereafter in
effect, or the consent by such Person to the entry of an
order for relief in an involuntary case under any such law,
or the consent by such Person to the appointment of or
taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official for
such Person or for any substantial part of its property, or
the making by such Person of any general assignment for the
benefit of creditors, or the failure by such Person
generally to pay its debts as such debts become due, or the
taking of action by such Person in furtherance of any of the
foregoing.
"Insolvency Laws" shall mean the Bankruptcy Code of the
United States of America and all other applicable
liquidation, conservatorship, bankruptcy, moratorium,
rearrangement, receivership, insolvency, reorganization,
suspension of payments, or similar debtor relief laws from
time to time in effect affecting the rights of creditors
generally including without limitation with respect to the
Servicer, all similar laws of Canada.
"Instrument" shall mean a Contract which is evidenced
by an "instrument" (as defined in Article 9 of the UCC),
other than an instrument which constitutes part of chattel
paper
"Insurance Policy" means, with respect to any Contract,
an insurance policy covering physical damage to or loss of
the related Equipment.
"Insurance Proceeds" means, depending on the context,
any amounts payable or any payments made, to the Servicer
under any Insurance Policy.
"Interest Rate" shall mean with respect to any Series
of Notes (or, for any Series with more than one Class, for
each Class of such Series), the rate (or formula on the
basis of which such rate shall be determined) per annum
stated for such Series in the related Supplement, which rate
shall be calculated in each case on the basis set forth in
the related Supplement.
"Interest Rate Hedge" shall mean any interest rate
hedge agreement executed and delivered pursuant to Section
4.4(a), in each case as supplemented from time to time
between the Issuer Trustee and the relevant Hedging
Counterparty, or any Replacement Interest Rate Hedge or
Qualified Substitute Arrangement.
"Internal Revenue Code" shall mean the Internal Revenue
Code of 1986, as amended from time to time.
"Investment Earnings" shall mean any earnings (net of
losses and investment expenses) on funds in the Collection
Account and the Reserve Account, which earnings shall be
paid to Newcourt as provided in Sections 4.3(d) and 4.3(e).
"IPA" shall mean each installment payment agreement,
including as applicable, schedules, subschedules,
supplements and amendments to a software license agreement,
pursuant to which the Originator financed the purchase or
acquisition of specified assets by an Obligor for specified
monthly, quarterly or semiannual payments.
"Issuer Trustee" shall mean the institution executing
this Agreement as Issuer Trustee, or its successor in
interest, or any successor trustee appointed as herein
provided.
"Lease" shall mean each agreement, including, both
operating and financing agreements, and, as applicable,
schedules, subschedules, supplements and amendments to a
master lease, pursuant to which the Originator, as lessor,
leases specified assets to a Lessee at a specified monthly,
quarterly or semiannual rental.
"Lessee" means, with respect to any Lease, the Obligor
with respect to such Lease.
"Lien" shall mean any mortgage, deed of trust, pledge,
hypothecation, assignment, deposit arrangement, encumbrance,
lien (statutory or other), equity interest, participation
interest, preference, priority or other security agreement
or preferential arrangement of any kind or nature
whatsoever, including, without limitation, any conditional
sale or other title retention agreement, any financing lease
having substantially the same economic effect as any of the
foregoing; provided, however, that any assignment pursuant
to Section 7.2 shall not be deemed to constitute a Lien.
"Liquidation Expenses" means, with respect to any
Contract, the aggregate amount of all out-of-pocket expenses
reasonably incurred by the Servicer (including amounts paid
to any subservicer) and any reasonably allocated costs of
internal counsel, in each case in accordance with the
Servicer's customary procedures in connection with the
repossession, refurbishing and disposition of any related
Equipment upon or after the expiration or earlier
termination of such Contract and other out-of-pocket costs
related to the liquidation of any such Equipment, including
the attempted collection of any amount owing pursuant to
such Contract if it is a Defaulted Contract.
"Liquidation Proceeds" means, with respect to a
Defaulted Contract, proceeds from the sale, lease or
re-lease of the Equipment, proceeds of the related Insurance
Policy and any other recoveries with respect to such
Defaulted Contract and the related Equipment, net of
Liquidation Expenses and amounts, if any, so received that
are required to be refunded to the Obligor on such Contract.
"Lockbox" shall mean the post office boxes listed on
Schedule 2 to which the Obligors are instructed to remit
payments on the Contracts included in the Contract Pool
and/or such other post office boxes as may be established
from time to time.
"Lockbox Account" shall mean the intervening account
used by a Lockbox Processor for deposit of funds received in
a Lockbox prior to their transfer to the Collection Account.
"Lockbox Processor" shall mean the depositary
institution or processing company (which may be the
Collateral Agent) which processes payments on the Contracts
sent by the Obligors thereon forwarded to a Lockbox.
"Maturity Date" shall mean, with respect to any Series,
the date, if any, specified as such in the related
Supplement.
"Minimum Deposit" shall mean, with respect to any
Series, an amount equal to the lesser of (x) 1% of the
Series ADCB for such Series and (y) the amount by which
amounts then on deposit therein are less than the Minimum
Reserve Balance.
"Minimum Reserve Balance" shall have the meaning
specified in Section 4.3(d)(iv)(D).
"Monthly Report" shall have the meaning specified in
Section 3.10.
"Moody's" shall mean Moody's Investors Service, Inc.,
or any successor thereto.
"Net Pool Balance" shall have the meaning specified in
Section 6.2(b)(x).
"New Issuance" shall have the meaning specified in
Section 6.2.
"Newcourt Advance" shall have the meaning specified in
Section 6.2(b)(xii).
"Non-Transferrable Notes" shall have the meaning
specified in Section 6.1.
"Note" shall mean any one of the notes of any Series
executed and authenticated in accordance with the Note
Documents for such Series.
"Note Agreements" shall be a collective reference to
each Supplement under which a Series of Subordinated Notes
has been issued and is outstanding.
"Note Documents" for any Series of Notes, is a
collective reference to (i) with respect to the Class A
Notes of such Series, the Applicable Indenture for such
Class A Notes, (ii) with respect to the Class B Notes of
such Series, the Note Agreement for such Class B Notes and
(iii) with respect to the Class C Notes, if any, of such
Series, the Note Agreement for such Class C Notes.
"Noteholder" or "Holder" shall mean the Person in whose
name a Note is registered in the Note Register.
"Note Owner" shall mean, with respect to a Book-Entry
Note, the Person who is the owner of such Book-Entry Note,
as reflected on the books of the Clearing Agency, or on the
books of a Person maintaining an account with such Clearing
Agency (directly or as an indirect participant, in
accordance with the rules of such Clearing Agency), and in
any event the Person who is the beneficial owner of a Note.
"Note Payment Account" for a Class of Notes shall mean
the account or accounts specified in any of the Note
Documents related to such Notes, into which deposits
hereunder are to be made for payment to the Owners of such
Notes.
"Note Register" shall mean (i) for any Class A Note,
the note register maintained in accordance with the
Applicable Indenture and (ii) for any Subordinated Note, the
note register maintained in accordance with the Note
Agreement pursuant to which such Subordinated Note was
issued.
"Notice of Default" shall mean a written notice from a
Holder of a Subordinated Note or the Applicable Indenture
Trustee on behalf of the Holders of Class A Notes of any
Series specifying the percentage of the Principal Amount of
Notes of such Holder or Class desiring to declare an "Event
of Default" under the Pooling Agreement.
"Obligor" shall mean, with respect to any Contract, the
Person or Persons obligated to make payments with respect to
such Contract, including any guarantor thereof.
"Officer's Certificate" shall mean a certificate signed
by any officer of Seller or the Servicer and delivered to
the Issuer Trustee or the Collateral Agent, as the case may
be.
"Opinion of Counsel" shall mean a written opinion of
counsel, who may be counsel (including internal counsel) for
Seller or the Servicer and who shall be reasonably
acceptable to the Issuer Trustee or the Collateral Agent, as
the case may be.
"Original Contract" shall mean each Contract identified
by account number and Contract Balance in a computer file or
list delivered to the Issuer Trustee by the Seller on or
prior to the First Closing Date pursuant to Section 2.1.
"Original Purchase Agreement" means the Purchase
Agreement dated as of December 28, 1995, as amended and
restated prior to the First Closing Date, between Newcourt
Financial USA Inc. and the Seller, as further amended from
time to time.
"Originator" shall mean, with respect to each Contract,
the party that is the original lessor or financing party
thereunder.
"Partnership Notes" shall mean each Class of Notes that
does not have the benefit of an opinion to the effect that
such Notes will be treated as debt for federal income tax
purposes.
"Permitted Liens" shall mean (a) with respect to
Contracts in the Contract Pool:
(i) Liens for state, municipal or other local taxes if
such taxes shall not at the time be due and payable or
if the Seller shall currently be contesting the
validity thereof in good faith by appropriate
proceedings and shall have set aside on its books
adequate reserves with respect thereto, (ii) Liens in
favor of the Seller created pursuant to a Purchase
Agreement and transferred to the Trust pursuant hereto,
(iii) Liens in favor of the Issuer Trustee created
pursuant to this Agreement and (iv) Liens in favor of
the Collateral Agent created pursuant to this
Agreement;
and (b) with respect to the related Equipment:
(i) materialmen's, warehousemen's, mechanics' and other
liens arising by operation of law in the ordinary
course of business for sums not due, (ii) Liens for
state, municipal or other local taxes if such taxes
shall not at the time be due and payable or if the
Seller shall currently be contesting the validity
thereof in good faith by appropriate proceedings and
shall have set aside on its books adequate reserves
with respect thereto, (iii) Liens in favor of the
Seller created pursuant to a Purchase Agreement and
transferred to the Issuer Trustee pursuant hereto, (iv)
Liens in favor of the Trust created pursuant to this
Agreement; (v) Liens in favor of the Collateral Agent
created pursuant to this Agreement, (vi) Subordinated
Residual Investments, (vii) with respect to Equipment
which is the subject of a Lease under which Sun Data is
the lessor, Liens in favor of SouthTrust Bank of
Alabama which are subordinated to the interest of the
Trust in such Equipment, (viii) other subordinated
liens which are subordinated to the prior payment of
the Notes on terms described herein and (ix) Liens
granted by the End-Users which are subordinated to the
interest of the Trust in such Equipment.
"Permitted Transaction" shall mean any transaction or
series of related transactions pursuant to which the Seller
finances an interest in the Trust Assets pursuant to the
transfer of a Note or otherwise and (i) as to which the
Rating Agency Condition is satisfied and (ii) which in the
reasonable judgment of the Seller as evidenced by an
Officer's Certificate delivered to the Collateral Agent,
each Indenture Trustee and each Rating Agency, could not
reasonably be expected to have a material adverse effect on
the interests of the Noteholders.
"Permitted Vendor Percentage" shall mean, with respect
to any Vendor, the percentage equivalent of a fraction, the
numerator of which is the ADCB of all Contracts in the
Contract Pool in which a security interest only has been
transferred to the Seller, which security interest only was
transferred to the Seller and the denominator of which is
the ADCB of all Contracts in the Contract Pool, which
percentage equivalent shall not cause a Ratings Effect with
respect to any Series of Class A Notes.
"Person" shall mean any legal person, including any
individual, corporation, limited liability company,
partnership, limited liability partnership, joint venture,
association, joint-stock company, trust, unincorporated
organization, governmental entity or other entity of similar
nature.
"Placement Agency Agreement" shall be a collective
reference to each placement agency agreement under which
Subordinated Notes are issued.
"Prepaid Contract" shall mean any Contract that has
terminated or been prepaid in full prior to its scheduled
expiration date (including because of a Casualty Loss),
other than a Defaulted Contract.
"Prepayment Amount" shall have the meaning specified in
Section 3.2(b).
"Prepayments" shall mean any and all partial and full
prepayments on a Contract (including, with respect to any
Contract and any Collection Period, any Scheduled Payment
(or portion thereof) which is due in a subsequent Collection
Period which the Servicer has received, and expressly
permitted the related Obligor to make, in advance of its
scheduled due date and which will be applied to such
Scheduled Payment on such due date, and any and all cash
proceeds or rents realized from the sale, lease, re-lease or
re-financing of Equipment under a Prepaid Contract, net of
Liquidation Expenses), Liquidation Proceeds, amounts
received in respect of Transfer Deposit Amounts and payments
upon an optional termination of the Trust.
"Principal Amount" shall mean, with respect to a Class
of Notes, the aggregate Initial Principal Amount thereof
reduced by (i) the aggregate amount of any distributions
applied in reduction of such principal amount and (ii) the
aggregate amount of any distributions then on deposit in the
Note Payment Account, if any, for such Class of Notes
established in accordance with the Applicable Indenture or
the related Note Documents and to be applied in reduction of
such principal amount in accordance with such Applicable
Indenture or the related Note Documents.
"Program Agreement" shall mean each vendor finance
program agreement pursuant to which End-User Contracts
originated by a Vendor are assigned or pledged to a
Financing Originator.
"Publication Date" shall have the meaning specified in
Section 9.2(a).
"Purchase Agreements" is a collective reference to the
Original Purchase Agreement and the Subsequent Purchase
Agreements.
"Qualified Institution" shall have the meaning
specified in Section 4.2(a).
"Qualified Substitute Arrangement" shall have the
meaning specified in Section 4.4(b).
"Rating Agency" shall mean, with respect to each
Series, the rating agency or agencies, if any, selected by
the Seller from Moody's or Standard & Poor's and designated
as a "Rating Agency" in the related Supplement, and, with
respect to Eligible Investments, unless the context
otherwise requires, each of Moody's and Standard & Poor's.
"Rating Agency Condition" shall mean, with respect to
any action or series of related actions or proposed
transaction or series of related proposed transactions, that
each Rating Agency shall have notified the Seller and the
Issuer Trustee in writing that such action or series of
related actions or the consummation of such proposed
transaction or series of related transactions will not
result in a reduction or withdrawal of the rating of any
outstanding Series or Class with respect to which it is a
Rating Agency.
"Ratings Effect" shall mean, with respect to any action
or series of related actions or proposed transaction or
series of related proposed transactions, a reduction or
withdrawal of the rating of any outstanding Series or Class
with respect to which a Rating Agency has previously issued
a rating as a result of such action or series of related
actions or the consummation of such proposed transaction or
series of related transactions.
"Record Date" shall mean with respect to any Series,
any date specified as such in the applicable Supplement.
"Recoveries" shall mean any and all recoveries on
account of a Defaulted Contract, including, without
limitation, any and all cash proceeds or rents realized from
the sale, lease, re-lease or re-financing of repossessed
Equipment or other property, Insurance Proceeds, amounts
representing late fees and penalties and amounts received
pursuant to a Program Agreement (including, without
limitation, amounts received from any "ultimate net loss
pool" that may have been created under such Program
Agreement), but in each case net of Liquidation Expenses.
"Released Amounts" means, with respect to any payment
or collection received with respect to any Receivable on any
Business Day (whether such payment or collection is received
by the Servicer, the Issuer Trustee or the Seller), an
amount equal to that portion of such payment or collection
constituting Excluded Amounts.
"Replacement Interest Rate Hedge" shall mean any
interest rate swap or cap having substantially the same
terms and conditions as the Interest Rate Hedge and
otherwise satisfying the conditions set forth in Section 4.4.
"Request for Instrument Release" shall have the meaning
specified in Section 2.3(h).
"Required Holders" shall have, for any Series, the
meaning specified in the related Supplement.
"Required Percentage of Holders" shall mean (i) prior
to the payment in full of the principal amount of and
accrued interest on the Class A Notes of all Series, Class A
Noteholders holding Class A Notes evidencing more than 50%
of the Aggregate Principal Amount of Class A Notes of all
Series then outstanding or Indenture Trustees on behalf of
such percentage of Class A Noteholders, (ii) from and after
the payment in full of the principal amount of and accrued
interest on the Class A Notes of all Series, Class B
Noteholders holding Class B Notes evidencing more than 50%
of the Aggregate Principal Amount of the Class B Notes of
all Series outstanding and (iii) from and after the payment
in full of the principal amount of and accrued interest on
the Class A Notes and Class B Notes of all Series, Class C
Noteholders holding Class C Notes evidencing more than 50%
of the Aggregate Principal Amount of the Class C Notes of
all Series outstanding.
"Requirements of Law" for any Person shall mean the
certificate of incorporation or articles of association and
by-laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation, or
order or determination of an arbitrator or Governmental
Authority, in each case applicable to or binding upon such
Person or to which such Person is subject, whether Federal,
state or local (including, without limitation, usury laws,
the Federal Truth in Lending Act and Regulation Z and
Regulation B of the Board of Governors of the Federal
Reserve System).
"Reserve Account" shall have the meaning specified in
Section 4.2(b).
"Reserve Account Allocation Amount" shall mean, with
respect to each Series in respect of which a draw on the
Reserve Account is required to be made on a Distribution
Date, an amount equal to the product of (i) all amounts on
deposit in the Reserve Account on such Distribution Date and
(ii) a fraction, the numerator of which is the Series ADCB
of such Series and the denominator of which is the sum of
the Series ADCB of each Series in respect of which a draw on
the Reserve Account is required to be made on such
Distribution Date.
"Residual Investment" shall mean, with respect to
certain Leases, any funds that a Financing Originator or
third party residual investor shall have advanced against
all or any portion of the anticipated residual value of the
leased Equipment upon the expiration of such Lease in
accordance with its terms, and in excess of the discounted
present value of the rental payments due under such Lease.
"Responsible Officer" shall mean any officer of the
Issuer Trustee with direct responsibility for the
administration of this Agreement and also, with respect to a
particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and
familiarity with the particular subject. The term
"Responsible Officer", when used herein with respect to any
Person other than the Issuer Trustee, means an officer or
employee of such Person corresponding to any officer or
employee described in the preceding sentence.
"Restricting Event" shall mean, with respect to any
Series, any of the following events and any other events
specified as such in the related Supplement:
(a) As of any Distribution Date, the weighted
average ADCB of all Contracts in respect of which,
during the three preceding Collection Periods, a
Scheduled Payment is more than 60 days past due exceeds
2.0% of the weighted average ADCB of the Contract Pool
during such three Collection Periods; or
(b) As of any Distribution Date, the product of
(i) two multiplied by (ii) the difference between (x)
the ADCB of the sum of (A) all Contracts which were
charged-off by the Servicer as uncollectible in
accordance with its usual and customary practices
during the six preceding Collection Periods (whether or
not such Contract was a Defaulted Contract) and (B) all
Contracts under which the related Obligor was the
subject of an Insolvency Event during such six
Collection Periods (Contracts which were the subject of
an event described in clause (A) or (B) being referred
to collectively as "Charge-Offs") and (y) Recoveries
received during such six Collection Periods on account
of Charge-Offs, exceeds 1% of the weighted average ADCB
of all Contracts in the Contract Pool during such six
Collection Periods; or
(c) As of any Distribution Date, after giving
effect to the allocations to be made on such date, the
sum of the following for any Series: (i) the applicable
Series Allocation Percentage of amounts on deposit in
the Reserve Account plus (ii) the difference between
the Series ADCB for such Series of the Contract Pool
and the Aggregate Principal Amount of Class A Notes of
such Series is less than, for such Series, the amount
specified in the related Supplement as the "Minimum
Amount"; or
(d) Any other Restricting Event specified in any
Supplement.
"Retransfer Date" shall have the meaning specified in
subsection 2.5(f).
"Scheduled Payment" means, with respect to any
Contract, the monthly or quarterly or semi-annual rent or
financing (whether principal or principal and interest)
payment scheduled to be made by the related Obligor under
the terms of such Contract after the related Cut Off Date;
it being understood that (i) Scheduled Payments do not
include any Excluded Amounts and (ii) the interest component
of rent or financing payments scheduled to be made under a
Contract which has been hedged pursuant to an Interest Rate
Hedge shall be the amount payable under the Interest Rate
Hedge for such Contract for the term of such Interest Rate
Hedge.
"Secondary Contract" shall mean, with respect to a
Vendor Note, each End-User Contract securing such Vendor
Note.
"Secured or Unsecured Note" shall mean each promissory
note with or without a related security interest, pursuant
to which the purchase of specified assets by a Obligor is
financed for specified monthly, quarterly or semiannual
payments.
"Secured Parties" shall mean the Collateral Agent, the
Indenture Trustees, the Noteholders of each Series and each
provider of Credit Enhancement from time to time identified
as an additional Secured Party in a Supplement.
"Seller" shall mean NRC, or any successor thereto.
"Series" shall mean any series of Notes, which may
include within any such Series a Class or Classes of Notes
subordinate to another such Class or Classes of Notes.
"Series ADCB" for a Series of Notes as of any date of
determination means the sum of (1) the present value
(discounted monthly at the applicable Series Discount Rate)
of the product of (x) the applicable Series Allocation
Percentage and (y) the Adjusted Scheduled Payments and (2)
the product of (x) the applicable Series Allocation
Percentage and (y) all Scheduled Payments due and payable
after the applicable Cut Off Date and prior to such date of
determination under such Contracts that have not been
received by the Servicer.
"Series Allocation Percentage" shall mean, with respect
to any allocation or payment and any particular Series, the
percentage equivalent of a fraction, the numerator of which
is the sum of the Series Expected Cash Flow and the Series
Arrearage and the denominator of which is the sum of (i) the
aggregate of the Series Expected Cash Flows for all Series
of Notes then outstanding and (ii) the aggregate of the
Series Arrearages for all Series of Notes then outstanding,
in each case without giving effect to any limitation based
on insufficient available funds.
"Series Arrearage" shall mean, with respect to a
particular Series, for any Distribution Date, the amount by
which on the previous Distribution Date, the principal of
and interest on the Class A Notes and Class B Notes of such
Series were not paid in accordance with the allocations set
forth herein.
"Series Available Amount" means, with respect to any
Series as of any Distribution Date, the product of (i) the
applicable Series Allocation Percentage and (ii) the
Available Amounts remaining to be allocated after payment of
amounts set forth in subsection 4.3(d)(i) through (iii).
"Series Discount Rate" shall mean, with respect to a
Series at any date of determination, the sum of (1) the
weighted average of the Class A Interest Rate and the
Subordinated Note Rate applicable to the Notes issued in
connection with such Series and (2) the Servicing Fee
Percentage.
"Series Enhancement" shall have for any Series the
meaning specified in the related Supplement.
"Series Expected Cash Flow" shall mean, for any
Distribution Date, (i) with respect to the first Series of
Notes, the aggregate amount of the Adjusted Scheduled
Payments scheduled to be made during the Collection Period
immediately preceding such Distribution Date (and any other
Scheduled Payments due and payable after the applicable Cut
Off Date and prior to the last day of such Collection Period
that have not been received by the Servicer prior to the
last day of the second Collection Period immediately
preceding such Distribution Date) under the terms of all
Original Contracts in the Contract Pool as of the last day
of the Collection Period immediately preceding such
Distribution Date and (ii) with respect to each other Series
of Notes, the aggregate amount of the Adjusted Scheduled
Payments scheduled to be made during the Collection Period
immediately preceding such Distribution Date (and any other
Scheduled Payments due and payable after the applicable Cut
Off Date and prior to the last day of such Collection Period
that have not been received by the Servicer prior to the
last day of the second Collection Period immediately
preceding such Distribution Date) under the terms of the
Additional Contracts sold to the Trust in connection with
the issuance of such Series and in the Contract Pool as of
the last day of the Collection Period immediately preceding
such Distribution Date.
"Servicer" shall mean initially Newcourt and its
permitted successors and assigns, and thereafter any Person
appointed as successor as herein provided to service the
Trust Assets.
"Servicer Advance" means an advance of Scheduled
Payments made by the Servicer pursuant to Section 3.3.
"Servicer Default" shall have the meaning specified in
Section 10.1.
"Services" shall mean, in connection with the financing
of Software by an Originator, the support and consulting
services related to such Software the procurement of which
was also financed by such Originator pursuant to a Contract.
"Servicing Fee" shall have the meaning specified in
Section 3.8.
"Servicing Fee Percentage" shall mean .60%.
"Software" shall mean the computer software programs
financed or leased by an Obligor pursuant to a Contract.
"Solvent" shall mean, as to any Person at any time,
that (a) the fair value of the Property of such Person is
greater than the amount of such Person's liabilities
(including disputed, contingent and unliquidated
liabilities) as such value is established and liabilities
evaluated for purposes of Section 101(31) of the Bankruptcy
Code; (b) the present fair saleable value of the Property of
such Person in an orderly liquidation of such Person is not
less than the amount that will be required to pay the
probable liability of such Person on its debts as they
become absolute and matured; (c) such Person is able to
realize upon its Property and pay its debts and other
liabilities (including disputed, contingent and unliquidated
liabilities) as they mature in the normal course of
business; (d) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such
Person's ability to pay as such debts and liabilities
mature; and (e) such Person is not engaged in business or a
transaction, and is not about to engage in a business or a
transaction, for which such Person's property would
constitute unreasonably small capital.
"Standard & Poor's" shall mean Standard & Poor's
Ratings Services, a division of McGraw Hill, Inc., or any
successor thereto.
"Subordinated Noteholder" shall mean a Holder of a
Subordinated Note.
"Subordinated Note Rate" shall mean, for a Series, the
rate that is equivalent to the pre-tax yield of 800 basis
points over the yield of the U.S. Treasury security having a
maturity nearest to the weighted average life of the Class A
Notes of such Series. The Subordinated Note Rate for a
Series shall be specified in the related Supplement.
"Subordinated Notes" shall be the collective reference
to the Class B Notes and Class C Notes of each Series.
"Subordinated Residual Interest" shall mean, with
respect to a Residual Investment (other than a Guaranteed
Residual Investment), a security interest in the subject
Equipment to secure such Residual Investment, which security
interest is subordinated to the Lien on such item of
Equipment securing the payment of the related Contract.
"Subsequent Purchase Agreement" shall mean a Purchase
Agreement among the Seller and one or both of the Financing
Originators, as amended from time to time, pursuant to which
Contracts (including Original Contracts) other than Existing
Contracts will be acquired by the Seller.
"Successor Servicer" shall have the meaning specified
in Section 10.2.
"Supplement" shall mean, with respect to any Series, a
supplement to this Agreement complying with the terms of
Section 6.2(c), executed by the parties hereto and the
applicable Indenture Trustee in conjunction with the
issuance of any Series (or, in the case of the issuance of
Notes on the First Closing Date, the supplement executed in
connection with such issuance).
"Targetted Holders" shall mean each holder of a right
to receive interest or principal with respect to a
Partnership Note, including any holder of a right to receive
any amount in respect of the Non-Transferable Notes.
"Tax Opinion" shall mean, with respect to any action,
an Opinion of Counsel to the effect that, for federal income
tax purposes, (i) following such action the Trust will not
be deemed to be an association (or publicly traded
partnership) taxable as a corporation and (ii) such action
will not effect the tax characterization as debt of Notes of
any outstanding Series or Class issued by the Trust for
which an Opinion of Counsel has been provided that such
Notes are debt.
"Termination Account" shall have the meaning specified
in Section 13.2(c).
"Termination Notice" shall have the meaning specified
in Section 10.1.
"Transfer" shall have the meaning specified in Section 6.1.
"Transfer Date" shall mean the Business Day immediately
preceding each Distribution Date.
"Transfer Deposit Amount" shall mean, with respect to
each Ineligible Contract or Excess Contract, on any date of
determination, the sum of the Discounted Contract Balance of
such Contract (utilizing, for purposes of calculating the
Discounted Contract Balance, the Series Discount Rate of the
Series to which such Ineligible Contract or Excess Contract
relates at the time such Ineligible Contract or Excess
Contract was transferred to the Trust) and any outstanding
Servicer Advances thereon.
"Transfer Event" shall have the meaning specified in
subsection 9.1(f).
"Transferred Assets" shall mean all right, title and
interest of the transferring party in, to and under the
following:
"Transaction Agreements" shall mean a collective
reference to this Agreement and the Supplements, the
Subsequent Purchase Agreements, the Note Documents and the
Indentures.
(i) the Original Contracts and Additional
Contracts, and all monies due or to become due in payment of such
Contracts on and after the related Cut Off Date, any Prepayment
Amounts, any payments in respect of a casualty or early
termination, and any Recoveries received with respect thereto,
but excluding any Scheduled Payments due prior to the related Cut
Off Date and any Excluded Amounts;
(ii) the Equipment related to such Contracts and,
in the case of any Vendor Note, related Applicable
Security including all proceeds from any sale or other
disposition of such Equipment;
(iii) the Contract Files;
(iv) all payments made or to be made in the future
with respect to such Contracts or the Obligor
thereunder under any Program Agreements or Vendor
Agreements with the related Financing Originator and
under any guarantee or similar credit enhancement with
respect to such Contracts;
(v) all Insurance Proceeds with respect to each
such Contract;
(vi) Each Purchase Agreement, including, without
limitation, the obligation of each Financing Originator
party thereto to repurchase Contracts under certain
circumstances as specified therein;
(vii) each Assignment; and
(viii) all income and proceeds of the foregoing;
; provided, that Transferred Assets shall not include any
Residual Investment other than a Guaranteed Residual
Investment.
"Trust" shall mean the trust created by this Agreement
and known as the "Newcourt Receivables Asset Trust", a
business trust established pursuant to the Business Trust
Statute.
"Trust Assets" shall have the meaning specified in
Section 2.1.
"Trust Termination Date" shall have the meaning
specified in subsection 13.1.
"Trustee Incumbency Certificate" shall have the meaning
specified in Section 1.7.
"Trustee Representatives" shall have the meaning
specified in Section 1.7.
"UCC" shall mean the Uniform Commercial Code as the
same may, from time to time, be in effect in the State of
New York provided, however, in the event that, by reason of
mandatory provisions of law, any and all of the attachment,
perfection or priority of the Lien of the Trust in and to
the Collateral is governed by the Uniform Commercial Code as
in effect in a jurisdiction other than the State of New York
the term "UCC" shall mean the Uniform Commercial Code as in
effect in such other jurisdiction for purposes of the
provisions hereof relating to such attachment, perfection or
priority and for purposes of definitions related to such
provisions.
"UCC Filing Locations" means the States of California,
Delaware and each State in which a Vendor is located (as
defined in the UCC in such State).
"Unreimbursed Servicer Advances" means, at any time,
the amount of all previous Servicer Advances (or portions
thereof) as to which the Servicer has not been reimbursed as
of such time pursuant to Sections 4.3(c), (d) or (e) and
which the Servicer has determined in its sole discretion
will not be recoverable from Collections with respect to the
related Contract.
"Vendor" shall mean, with respect to a Contract, the
equipment manufacturer, dealer or distributor, or software
licensor or distributor, or other Person that provided
financing under such Contract in connection with the
acquisition or use by an End-User of such party's Equipment,
Software, Services or other products.
"Vendor Agreements" shall mean the collective reference
to Vendor Assignments and Program Agreements.
"Vendor Assignment" shall mean each assignment
agreement pursuant to which an individual End-User Contract
originated by a Vendor is assigned or pledged to a Financing
Originator.
"Vendor Note" shall mean limited recourse promissory
notes payable by Vendors and secured by the Vendor's
interest in Secondary Contracts and by the Equipment, if
any, related thereto.
Section 1.2 Other Definitional Provisions.
(a) All terms defined in this Agreement or in any
Supplement shall have the defined meanings when used in any
certificate or other document made or delivered pursuant hereto
or thereto unless otherwise defined therein.
(b) As used in this Agreement or in any Supplement and
in any certificate or other document made or delivered pursuant
hereto or thereto, accounting terms not defined in Section 1.1,
and accounting terms partially defined in Section 1.1 to the
extent not defined, shall have the meanings given to them under
generally accepted accounting principles. To the extent that the
definitions of accounting terms herein are inconsistent with the
meaning of such terms under generally accepted accounting
principles, the definitions contained herein shall control.
(c) The agreements, representations and warranties of
Newcourt in this Agreement and in any Supplement in its capacity
as Servicer shall be deemed to be the agreements, representations
and warranties of Newcourt solely in its capacity as Servicer for
so long as it acts in such capacity under this Agreement.
(d) The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement or any
Supplement shall refer to this Agreement or any Supplement as a
whole and not to any particular provision of this Agreement or
any Supplement; and Section, subsection, Schedule and Exhibit
references contained in this Agreement or any Supplement are
references to Sections, subsections, Schedules and Exhibits in or
to this Agreement or any Supplement unless otherwise specified.
SECTION 1.3 Compliance Certificates and Opinions.
Upon any application or request by an Indenture Trustee, the
Seller or the Servicer to the Collateral Agent or by an Indenture
Trustee or the Collateral Agent to the Issuer Trustee to take or
refrain from taking any action under any provision of this
Agreement, the requesting Person shall furnish to the Collateral
Agent or the Issuer Trustee, as the case may be, a certificate
stating that, in the opinion of the signer(s), all conditions
precedent, if any, provided for in this Agreement relating to the
proposed action have been complied with except that, in the case
of any such application or request as to which the furnishing of
such document is specifically required by any provision of this
Agreement, no additional certificate need be furnished.
Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Agreement shall
include:
(i) a statement that each Person making such
certificate or opinion has read such covenant or condition
and the definitions in this Agreement relating thereto;
(ii) a brief statement as to the nature and scope of
the examination or investigation upon which the
statements or opinions contained in such certificate or
opinion are based;
(iii) a statement that, in the opinion of each such
Person, such Person has made such examination or
investigation as is necessary to enable him or her or it to
express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(iv) a statement as to whether or not, in the opinion
of each such Person, such condition or covenant has been
complied with.
Any certificate, statement or opinion of an officer of
a Person may be based, insofar as it relates to legal matters,
upon a certificate or opinion of or representations by counsel,
unless such Person knows that the certificate or opinion or
representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that
the same are erroneous. Any certificate, statement or opinion of
counsel may be based, insofar as it relates to factual matters or
information which is in the possession of a Person, upon the
certificate, statement or opinion of or representations by an
officer or officers of such Person, unless such counsel knows
that the certificate, statement or opinion or representations
with respect to the matters upon which his certificate, statement
or opinion may be based as aforesaid are erroneous, or in the
exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of
a Person or of counsel thereto may be based, insofar as it
relates to accounting matters, upon a certificate or opinion of
or representations by an accountant or firm of accountants
employed by such Person or the Seller on behalf of such Person,
unless such officer or counsel, as the case may be, knows that
the certificate or opinion or representations with respect to the
accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the
exercise of reasonable care should know that the same are
erroneous.
SECTION 1.4 Form of Documents Delivered to Collateral
Agent or Issuer Trustee. In any case where several matters are
required to be certified by, or covered by an opinion of, any
specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person,
or that they be so certified or covered by only one document, but
one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to other
matters and any such Person may certify or give an opinion as to
such matters in one or several documents.
Where any Person is required to make, give or execute
two or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Agreement,
they may, but need not, be consolidated and form one instrument.
SECTION 1.5 Acts of Indenture Trustees. (a) Any
direction, consent, waiver or other action provided by this
Agreement to be given or taken by the Indenture Trustees, or any
of them, may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such
Indenture Trustee(s) in person or by an agent or proxy duly
appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument
or instruments are delivered to the Collateral Agent and, where
it is hereby expressly required pursuant to this Agreement, to
the Issuer Trustee, the Servicer or the Seller. Such instrument
or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the
Indenture Trustee(s) signing such instrument or instruments.
Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of
this Agreement and conclusive in favor of the Collateral Agent,
the Issuer Trustee, the Servicer and the Seller, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any Person
of any such instrument or writing may be proved (i) by the
certificate of any notary public or other officer of any
jurisdiction authorized to take acknowledgments of deeds or
administer oaths that the Person executing such instrument
acknowledged to him the execution thereof, or (ii) by an
affidavit of a witness to such execution sworn to before any such
notary or such other officer, and where such execution is by an
officer of a corporation or association or a member of a
partnership, on behalf of such corporation, association or
partnership, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of
the Person executing the same, may also be proved in any other
reasonable manner which the Collateral Agent deems sufficient.
SECTION 1.6 Acts of Noteholders. (a) The Collateral
Agent recognizes and agrees that in lieu of the Indenture
Trustees, certain notices and demands hereunder may be delivered
by a specified percentage of Noteholders of a Class. Any such
notice delivered by one or more Noteholders of any Class may be
embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Noteholders in person
or by an agent or proxy duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to
the Collateral Agent and, where it is hereby expressly required
pursuant to this Agreement, to the Issuer Trustee, the Servicer
or the Seller. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any
purpose of this Agreement and conclusive in favor of the
Collateral Agent, the Issuer Trustee, the Servicer and the
Seller, if made in the manner provided in this Section 1.6.
(b) The fact and date of the execution by any Person
of any such instrument or writing may be proved (i) by the
certificate of any notary public or other officer of any
jurisdiction authorized to take acknowledgments of deeds or
administer oaths that the Person executing such instrument
acknowledged to him the execution thereof, or (ii) by an
affidavit of a witness to such execution sworn to before any such
notary or such other officer, and where such execution is by an
officer of a corporation or association or a member of a
partnership, on behalf of such corporation, association or
partnership, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of
the Person executing the same, may also be proved in any other
reasonable manner which the Collateral Agent deems sufficient.
(c) In determining whether a specified percentage of
Noteholders have given a direction, Notes owned by the Seller,
the Servicer, the Issuer Trustee, or any Affiliate of any
thereof, shall be disregarded and deemed not to be outstanding
for purposes of any such determination; provided that, for the
purposes of this Section 1.6(c), the Issuer Trustee, acting in
its individual capacity, shall not be deemed an Affiliate of the
Seller. In determining whether the Collateral Agent shall be
protected in relying upon any direction delivered by the
Noteholders of any Class, only Notes which the Collateral Agent
knows to be so owned shall be so disregarded. Notwithstanding
the foregoing, (i) if any such Person owns 100% of the Notes of
any Class, such Class of Notes shall not be so disregarded as
aforesaid, and (ii) if any amount of such Class of Notes so owned
by any such Person have been pledged in good faith, such Class of
Notes shall not be disregarded as aforesaid if the pledgee
establishes to the satisfaction of the Collateral Agent the
pledgee's right so to act with respect to such Notes and that the
pledgee is not the Seller, the Servicer, the Issuer Trustee or
any Affiliate of any thereof.
SECTION 1.7 Designated Representatives. With the
delivery of the related Supplement, the Indenture Trustee party
thereto shall furnish to the Collateral Agent and the Issuer
Trustee, and from time to time thereafter may furnish to the
Collateral Agent and the Issuer Trustee at its discretion or upon
the Collateral Agent's or the Issuer Trustee's request (which
request shall not be made more than one time in any twelve-month
period), a certificate (a "Trustee Incumbency Certificate") of
the Secretary or an Assistant Secretary of such Indenture Trustee
certifying as to the incumbency and specimen signatures of the
officers of such Indenture Trustee and the attorney-in-fact and
agents of such Indenture Trustee ("Trustee Representatives")
authorized to give written notices, demands and directions on
behalf of such Indenture Trustee hereunder. Until the Collateral
Agent and the Issuer Trustee receives a subsequent Trustee
Incumbency Certificate, it shall be entitled to rely on the last
Trustee Incumbency Certificate delivered to it hereunder.
SECTION 1.8 Controlling Party. Subject to the terms
and conditions hereof, the Controlling Party shall have full
right, power and authority to act, on its own behalf and on
behalf of the Secured Parties which are not then acting as
Controlling Party, with respect to the exercise of the remedies
granted to the Controlling Party and the Collateral Agent
hereunder, and the Controlling Party is authorized to direct the
Collateral Agent in the exercise of, or to refrain from directing
the Collateral Agent in the exercise of, the remedies granted to
the Collateral Agent hereunder. The Controlling Party shall have
the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Collateral Agent;
provided, however, that
(a) such direction shall not be in conflict with any
rule of law or with this Collateral Agreement and would not
involve the Collateral Agent in personal liability or
expense, and
(b) the Collateral Agent may take any other action
deemed proper by the Collateral Agent which is not
inconsistent with such direction.
SECTION 1.9 Business Day Certificate. On the date of
execution and delivery of this Agreement (with respect to the
remainder of calendar year 1996) and thereafter, within 15 days
prior to the end of each calendar year while this Agreement
remains in effect (with respect to the succeeding calendar
years), the Seller shall deliver to the Issuer Trustee and
Collateral Agent an Officers' Certificate specifying the days on
which banking institutions in the City of Hartford, Connecticut
and Toronto, Ontario, Canada are authorized or obligated by law
or required by executive order to be closed.
ARTICLE II
CREATION OF TRUST; TRANSFER OF TRUST ASSETS
Section 2.1 Creation of Trust; Transfer of Trust
Assets. (a) The Trust shall be created upon the execution and
delivery of this Agreement and the filing by the Issuer Trustee
of an appropriately completed Certificate of Trust under the
Business Trust Statute. The purpose of the Trust is, and the
Trust shall have the power and authority, to engage in the
following:
(i) to issue the Class A Notes pursuant to the
Indentures, and the Class B Notes and Class C Notes pursuant
to the applicable Supplement, and to sell the Notes in
public or private offerings;
(ii) with the proceeds of the sale of the Notes to
acquire the Transferred Assets from the Seller;
(iii) to pay interest and principal on the Notes;
(iv) to assign, grant, transfer, pledge, mortgage and
convey the Trust Assets to the Collateral Agent;
(v) to execute, deliver and perform its obligations
under the Transaction Agreements to which it is to be a
party; and
(vi) to engage in other transactions, including
entering into agreements, that are necessary, suitable or
convenient to accomplish the foregoing or are incidental
thereto or connected therewith.
The Trust is hereby authorized to engage in the
foregoing. The Trust shall not engaged in any activity other
than in connection with the foregoing or other than as required
or authorized by the terms of this Agreement or the other
Transaction Agreements to which it is a party.
The Seller does hereby sell, transfer, assign and set
over to the Trust all right, title and interest of the Seller in,
to and under the Transferred Assets.
Such property, together with all monies and investments
on deposit excluding earnings on such investments, from time to
time, in the Collection Account, the Reserve Account and each
Termination Account shall constitute the corpus of the Trust
(collectively, the "Trust Assets"). The foregoing transfer,
assignment, set-over and conveyance does not constitute and is
not intended to result in the creation or an assumption by the
Trust, the Issuer Trustee or any Noteholder of any obligation of
the Seller, the Servicer or any other Person in connection with
the Contracts in the Contract Pool or any agreement or instrument
relating thereto, including, without limitation, any obligation
to any Obligors or insurers, or in connection with any Purchase
Agreement. The parties hereto intend that the Trust constitute a
business trust under the Business Trust Statute and that this
Agreement constitute the governing instrument of such business
trust.
(b) In connection with such sale, transfer, assignment
and set-over, the Seller agrees as follows:
(i) Within 10 days following the First Closing Date,
the Seller shall (x) record and file, at the Seller's
expense, in each Filing Location, financing statements
(including any continuation statements with respect to such
financing statements when applicable) with respect to the
Transferred Assets meeting the requirements of applicable
law in each Filing Location and in such manner as is
necessary to perfect (to the extent governed by the law of
each Filing Location) the Lien of the Trust in the
Transferred Assets and (y) cause file-stamped copies of such
financing statements or continuation statements or other
evidence of such filings (which may, for purposes of this
Section 2.1(b), consist of telephone confirmations of such
filings with the file-stamped copy to be provided to the
Issuer Trustee as soon as practicable) to be delivered to
the Issuer Trustee within 10 days following the First
Closing Date, each applicable Addition Date and each date of
filing of any continuation statements filed pursuant to this
Section 2.1(b). Except as provided in subsection (ii)
below, the Seller will not be required to deliver the
Contract Files to the Issuer Trustee, but instead the
Contract Files will be held by the Servicer in accordance
with the provisions hereof.
(ii) On or prior to the First Closing Date and each
applicable Addition Date, the Seller shall deliver to the
Issuer Trustee each Instrument included in the Transferred
Assets transferred hereunder on such date, in order to
perfect the Lien of the Trust in the Transferred Assets.
(iii) The Seller shall, at its own expense, on or prior
to (x) the First Closing Date in the case of the Original
Contracts, and (y) the applicable Addition Date, in the case
of Additional Contracts (A) indicate in its books and
records, including the appropriate computer files relating
to the Contracts, that such Contracts have been transferred
to the Trust pursuant to this Agreement and stamp the
related Contract Files or otherwise mark such Contracts with
a legend to the effect that such Contracts have been
transferred to the Trust pursuant hereto and (B) deliver to
the Issuer Trustee a computer file or microfiche or written
list containing a true and complete list of (x) all
Contracts then being transferred to the Trust, identified by
[contract] number and by the Discounted Contract Balance as
of the related Cut Off Date and (y) all Instruments then
being delivered to the Issuer Trustee, identified by account
number. The file or list specified in clause (B)(x) above
shall be marked as Schedule 1 to this Agreement and the file
or list specified in clause (B)(y) above shall be marked as
Schedule 4 to this Agreement and each such Schedule is
hereby incorporated into and made a part of this Agreement.
(iv) The Seller shall, at its own expense, on or prior
to (x) the First Closing Date in the case of the Original
Contracts, and (y) the applicable Addition Date, in the case
of Additional Contracts, deliver to the Servicer the related
Contract Files to be held by the Servicer, provided that, in
the case of an Instrument, any related Contract File to be
held by the Servicer shall include only copies of such
Instruments.
(v) With respect to any item of Equipment with respect
to which title thereto or a security interest therein is
required to be noted on a certificate of title or otherwise
recorded, the Seller shall not be required to note the name
of the Trust, the Collateral Agent or the Issuer Trustee on
the certificate of title, provided, that to the extent
financing or similar filings are required with respect to
any item of related Equipment, the Seller shall be required
to record such filings in the Filing Locations.
(c) To the extent that the Seller retains or is deemed
to retain any interest in the Transferred Assets or the related
Equipment or any other property included in the Transferred
Assets, the Seller hereby grants to the Trust, a first priority
perfected security interest in all of the Transferred Assets to
secure a loan in an amount equal to the unpaid principal amount
of the Notes, the interest accruing thereon at the applicable
Interest Rates and all of Seller's and the Servicer's other
obligations hereunder, and agrees that this Agreement shall
constitute a security agreement under applicable law.
Section 2.2 Acceptance by Issuer Trustee.
(a) The Issuer Trustee hereby acknowledges its
acceptance, on behalf of the Trust, of the Trust Assets, and
declares that it shall maintain such right, title and interest,
upon the trust herein set forth in accordance with the terms of
this Agreement. The Issuer Trustee further acknowledges that,
prior to or contemporaneously with the execution and delivery of
this Agreement, the Seller delivered to the Issuer Trustee the
computer file or microfiche or written list with respect to the
Original Contracts described in Section 2.1(b). On the First
Closing Date, and on each applicable Addition Date, the Issuer
Trustee shall execute and deliver to the Seller a receipt
evidencing the Issuer Trustee's receipt of the Instruments listed
on the Schedule 4 delivered hereunder on such date.
(b) In connection with the sale, transfer and
assignment of the Contracts and related Applicable Security to
the Seller pursuant to the Purchase Agreements and to the Trust
pursuant hereto, the Issuer Trustee hereby appoints the Servicer,
and the Servicer accepts such appointment, to act as the
custodian of the Contract Files.
(c) The Issuer Trustee hereby agrees not to disclose
to any Person any of the account numbers or other information
contained in the computer files or microfiche or written lists
delivered to the Issuer Trustee by the Seller pursuant to
Sections 2.1 and 2.6, except as is required in connection with
the performance of its duties hereunder or in enforcing the
rights of the Noteholders, or to a Successor Servicer appointed
pursuant to Section 10.2, any successor trustee appointed
pursuant to Section 11.8, any co-trustee or separate trustee
appointed pursuant to Section 11.10 or as mandated by any
Requirement of Law applicable to the Issuer Trustee. The Issuer
Trustee agrees to take such measures as shall be reasonably
requested by the Seller to protect and maintain the security and
confidentiality of such information, and, in connection
therewith, shall allow Seller to inspect the Issuer Trustee's
security and confidentiality arrangements from time to time
during normal business hours.
(d) The Issuer Trustee shall have no power to create,
assume or incur indebtedness or other liabilities in the name of
the Trust other than as contemplated in this Agreement.
(e) Upon giving effect to the release of Released
Amounts to the Trust pursuant to Section 2.3(k), the Trust shall
release to the Seller from the Transferred Assets an amount equal
to the Released Amounts immediately upon identification thereof,
which release shall be automatic and shall require no further act
by the Issuer Trustee, provided that the Issuer Trustee shall
execute and deliver such instruments of release and assignment,
or otherwise confirm the foregoing release of any Released
Amounts, as may be reasonably requested by the Transferor. Upon
such release of Released Amounts, such Released Amounts shall not
constitute and shall not be included in the Transferred Assets.
Section 2.3 Grant of Security Interest. (a) The
Trust hereby grants to the Collateral Agent for the benefit of
the Secured Parties a first priority perfected security interest
in all of the Trust Assets to secure a loan in an amount equal to
the unpaid principal amount of the Notes issued and to be issued
from time to time under the Indentures and the related
Supplement, the interest accruing thereon at the applicable
Interest Rates, and agrees that this Agreement shall constitute a
security agreement under applicable law.
(b) Within 10 days following the First Closing Date,
the Seller on behalf of the Trust shall record and file, at the
Seller's expense, in each Filing Location, financing statements
(including any continuation statements with respect to such
financing statements when applicable) with respect to the Trust
Assets meeting the requirements of applicable law in each Filing
Location and in such manner as is necessary to perfect (to the
extent governed by the law of each Filing Location) the Lien of
the Collateral Agent in the Trust Assets, and shall cause
file-stamped copies of such financing statements or continuation
statements or other evidence of such filings (which may, for
purposes of this Section 2.3, consist of telephone confirmations
of such filings with the file-stamped copy to be provided to the
Collateral Agent as soon as practicable) to the Collateral Agent
within 10 days following the First Closing Date, each applicable
Addition Date and each date of filing of any continuation
statements filed pursuant to this Section 2.3. Except as
provided below, the Issuer Trustee will not be required to
deliver the Contract Files to the Collateral Agent but instead
the Contract Files will be held by the Servicer as custodian for
the Collateral Agent in accordance with the provisions hereof.
In order to perfect the Lien of the Collateral Agent in the
Transferred Assets, on the First Closing Date and on each
applicable Addition Date, the Issuer Trustee, or the Seller for
the account of the Issuer Trustee, shall deliver to the
Collateral Agent each Instrument listed on the Schedule 4
delivered to the Issuer Trustee on such date.
(c) The Seller shall, at its own expense, on or prior
to (x) the First Closing Date in the case of the Original
Contracts, and (y) the applicable Addition Date, in the case of
Additional Contracts (A) indicate in its books and records,
including the appropriate computer files relating to the
Contracts, that a Lien on such Contracts has been transferred to
the Collateral Agent pursuant to this Agreement and stamp the
related Contract Files or otherwise mark such Contracts with a
legend to the effect that such Lien has been transferred to the
Collateral Agent pursuant hereto and (B) deliver to the
Collateral Agent a computer file or microfiche or written list
containing a true and complete list of (x) all Contracts then
being transferred to the Trust, identified by account number and
by the Discounted Contract Balance as of the related Cut Off Date
and (y) all Instruments then being delivered to the Issuer
Trustee, identified by contract number. As provided in Section
2.1, the file or list specified in clause (B)(x) above shall be
marked as Schedule 1 to this Agreement and the file or list
specified in clause (B)(y) above shall be marked as Schedule 4 to
this Agreement and each such Schedule is hereby incorporated into
and made a part of this Agreement.
(d) With respect to any item of Equipment with respect
to which title thereto or a security interest therein is required
to be noted on a certificate of title or otherwise recorded, the
Seller shall not be required to note the name of the Collateral
Agent on the certificate of title, provided, that to the extent
financing or similar filings are required with respect to any
item of related Equipment, the Seller shall be required to record
such filings in the Filing Locations.
(e) To the extent that the Seller retains or is deemed
to retain any interest in the Contracts in the Contract Pool or
the related Equipment or any other property included in the Trust
Assets, the Seller hereby grants to the Collateral Agent, a first
priority perfected security interest in all of the Trust Assets,
and the Trust hereby assigns the Lien in its favor granted
pursuant to Section 2.1(c), to secure, in each case, a loan in an
amount equal to the unpaid principal amount of the Notes, the
interest accruing thereon at the applicable Interest Rates and
all of Seller's and the Servicer's other obligations hereunder,
and agrees that this Agreement shall constitute a security
agreement under applicable law.
(f) The Collateral Agent hereby acknowledges that,
pursuant to Section 2.3 (b), on the First Closing Date and on
each applicable Addition Date and pursuant to this Agreement, the
Collateral Agent will be given possession of the Instruments
specified on the related Schedule 4 to this Agreement, a copy of
which will be delivered to the Collateral Agent simultaneously
with the delivery of the Instruments specified thereon. On and
after the First Closing Date for so long as this Agreement shall
remain in effect, the Collateral Agent shall hold the Instruments
now and from time to time hereafter delivered to it in its sole
custody or control as custodian, unless and until released from
the Lien of the Collateral Agent and otherwise in accordance with
this Agreement.
(g) Upon delivery to the Collateral Agent of the
Instruments, as specified in Section 2.3(b), the Collateral Agent
shall review the same and verify that each Instrument identified
on the related Schedule 4 has been delivered to the Collateral
Agent and shall provide to the Issuer Trustee, a receipt
indicating that all the Instruments listed on the related
Schedule 4 have been delivered.
(h) Upon the purchase of any Instrument pursuant to
Section 6.1.1, or Section 6.1.2 of the related Purchase
Agreement, or upon the payment in full of any Instrument, which
shall be evidenced by delivery from the Servicer to the
Collateral Agent of the request for release in the form annexed
hereto as Exhibit G ("Request for Instrument Release"), the
Collateral Agent shall promptly release the Instrument specified
in such request to the Servicer for the account of the Issuer
Trustee and the Seller and the security interest in such
Instrument granted by the Trust to the Collateral Agent pursuant
to Section 2.3 and the security interest in such Instrument and
the related Transferred Assets granted by the Seller to the Trust
shall terminate without any further action by the Collateral
Agent, the Issuer Trustee or the Seller. The Collateral Agent
shall not deliver any Instrument to any Person unless the
Collateral Agent shall have received a properly executed Request
for Instrument Release of the Servicer and shall have received
evidence of payment of the Instrument.
(i) The Collateral Agent shall have and perform the
other following duties with respect to the Instruments delivered
to it hereunder:
(i) Safekeeping. To segregate the Instruments
from all other instruments and similar documents in its
possession, to identify the Instruments as being held and to
hold the Instruments for and on behalf of the other Secured
Parties. The Collateral Agent will promptly report to the
Issuer Trustee any failure on its part to hold the
Instruments delivered to it hereunder as herein provided and
promptly take appropriate action to remedy any such failure.
(ii) Administration; Reports. In general, to
attend to all non-discretionary details in connection with
maintaining custody of the Instruments as may be expressly
provided herein or as may be required or customary for a
custodian of similar instruments.
(j) The Collateral Agent shall permit the Issuer
Trustee or the Servicer on its behalf and its duly authorized
agents, attorneys or auditors, upon reasonable prior notice, to
inspect the Instruments delivered to it hereunder at such
reasonable times as they may reasonably request.
(k) The Collateral Agent hereby agrees to release to
the Trust from the Transferred Assets an amount equal to the
Released Amounts immediately upon identification thereof, which
release shall be automatic and shall require no further act by
the Collateral Agent, provided that the Collateral Agent shall
execute and deliver such instruments of release and assignment,
or otherwise confirm the foregoing release of any Released
Amounts, as may be reasonably requested by the Issuer Trustee.
Section 2.4 Representations and Warranties of Seller
Relating to Seller. The Seller hereby represents and warrants as
of the First Closing Date and on each Addition Date that:
(a) Organization and Good Standing. The Seller is a
corporation duly organized and validly existing in good
standing under the laws of the State of Delaware, and has
full corporate power, authority and legal right to own its
properties and conduct its business as such properties are
presently owned and such business is presently conducted,
and to execute, deliver and perform its obligations under
this Agreement and each Purchase Agreement and to direct the
Issuer Trustee to execute and deliver the Notes.
(b) Due Qualification. The Seller is duly qualified
to do business and is in good standing as a foreign
corporation (or is exempt from such requirements), and has
obtained or will obtain all necessary licenses and
approvals, in each jurisdiction in which failure to so
qualify or to obtain such licenses and approvals would have
a material adverse effect on its ability to perform its
obligations hereunder.
(c) Due Authorization. The execution and delivery of
this Agreement and each Purchase Agreement and the
consummation of the transactions provided for herein and
therein have been duly authorized by the Seller by all
necessary corporate action on the part of the Seller.
(d) No Conflict. The execution and delivery of this
Agreement and each Purchase Agreement, the performance of
the transactions contemplated hereby and thereby and the
fulfillment of the terms hereof and thereof will not
conflict with, result in any breach of any of the material
terms and provisions of, or constitute (with or without
notice or lapse of time or both) a default under, any
indenture, contract, agreement, mortgage, deed of trust, or
other instrument to which the Seller is a party or by which
it or any of its property is bound.
(e) No Violation. The execution and delivery of this
Agreement and each Purchase Agreement, the performance of
the transactions contemplated hereby and thereby and the
fulfillment of the terms hereof and thereof will not
conflict with or violate, in any material respect, any
Requirements of Law applicable to the Seller.
(f) No Proceedings. There are no proceedings or
investigations pending or, to the best knowledge of the
Seller, threatened against the Seller, before any court,
regulatory body, administrative agency, or other tribunal or
governmental instrumentality (i) asserting the invalidity of
this Agreement, any Purchase Agreement or the Notes, (ii)
seeking to prevent the issuance of the Notes or the
consummation of any of the transactions contemplated by this
Agreement, any Purchase Agreement or the Notes, (iii)
seeking any determination or ruling that, in the reasonable
judgment of the Seller, could reasonably be expected to be
adversely determined, and if adversely determined, would
materially and adversely affect the performance by the
Seller of its obligations under this Agreement or any
Purchase Agreement or (iv) seeking to impose income taxes on
the Trust.
(g) All Consents Required. All approvals,
authorizations, consents, orders or other actions of any
Person or of any Governmental Authority required in
connection with the execution and delivery of this
Agreement, and the Notes, the performance of the
transactions contemplated by this Agreement, and the
fulfillment of or terms hereof, have been obtained.
(h) Bulk Sales. The execution, delivery and
performance of this Agreement do not require compliance with
any "bulk sales" law by Seller.
(i) Solvency. The transactions under this Agreement
do not and will not render the Seller insolvent.
(j) Selection Procedures. No selection procedures
believed by Seller to be materially adverse to the interests
of the Trust or the Noteholders were utilized by the Seller
in selecting the Contracts in the Contract Pool.
(k) Taxes. The Seller has filed or caused to be filed
all tax returns which, to its knowledge, are required to be
filed and has put all taxes shown to be due and payable on
such returns or on any assessments made against it or any of
its property and all other taxes, fees or other charges
imposed on it or any of its property by any Governmental
Authority (other than any amount of tax due the validity of
which is currently being contested in good faith by
appropriate proceedings and with respect to which reserves
in accordance with generally accepted accounting principles
have been provided on the books of the Seller); no tax lien
has been filed and, to the Seller's knowledge, no claim is
being asserted, with respect to any such tax, fee or other
charge.
The representations and warranties set forth in this Section 2.4
shall survive the transfer of the Trust Assets to the Trust, and
termination of the rights and obligations of the Servicer
pursuant to Section 10.1. Upon discovery by the Seller, the
Servicer or a Responsible Officer of the Issuer Trustee or the
Collateral Agent of a breach of any of the foregoing
representations and warranties, the party discovering such breach
shall give prompt written notice to the others and any Credit
Enhancer. For the purposes of the representations and warranties
contained in this Section 2.4 and made by Seller on the First
Closing Date, "Notes" shall mean the Notes issued on the First
Closing Date. The Seller hereby represents and warrants, with
respect to any Series, as of the Closing Date with respect to
such Series, unless otherwise stated in the related Supplement,
that the representations and warranties of Seller set forth in
this Section 2.4 will be true and correct as of such date (for
the purposes of such representations and warranties, "Notes"
shall mean the Notes issued on such Closing Date).
Section 2.5 Representations and Warranties of Seller
Relating to the Agreement and the Contracts.
(a) Binding Obligation; Valid Transfer and Security
Interest. The Seller hereby represents and warrants to the Trust
that, as of the First Closing Date and, with respect to any
Series issued after the First Closing Date, unless otherwise
stated in the related Supplement, as of the Closing Date for such
Series and as of each Addition Date:
(i) This Agreement and each Purchase Agreement
constitutes a legal, valid and binding obligation of the
Seller, enforceable against the Seller in accordance with
its terms, except as such enforceability may be limited by
Insolvency Laws and except as such enforceability may be
limited by general principles of equity (whether considered
in a suit at law or in equity) or by an implied covenant of
good faith and fair dealing.
(ii) This Agreement constitutes either (A) a valid
transfer to the Trust of all right, title and interest of
Seller in, to and under the Trust Assets (other than any
Residual Investment that is not a Guaranteed Residual
Investment), and such property will be held by the Trust
free and clear of any Lien of any Person claiming through or
under the Seller or its Affiliates, except for (x) the Lien
of the Collateral Agent and (y) Permitted Liens, or (B) a
grant of a security interest in such property to the Trust.
Upon the filing of the financing statements described in
Section 2.1 and, in the case of Additional Contracts on the
applicable Addition Date, the Trust shall have a first
priority perfected security interest in such property,
subject only to the Lien of the Collateral Agent and
Permitted Liens. Neither the Seller nor any Person claiming
through or under Seller shall have any claim to or interest
in the Collection Account or the Reserve Account except in
accordance with the provisions of Article IV and, if this
Agreement constitutes the grant of a security interest in
such property, except for the interest of Seller in such
property as a debtor for purposes of the UCC as in effect in
the State of Delaware.
(b) Eligibility of Contracts. The Seller hereby
represents and warrants to the Trust as of the First Closing Date
that (i) as of the initial Cut Off Date, Schedule 1 to this
Agreement and the computer file or microfiche or written list
delivered pursuant to Section 2.1 is an accurate and complete
listing in all material respects of all the Contracts and
Secondary Contracts in the Contract Pool as of the Cut Off Date
and the information contained therein with respect to the
identity of such Contracts and Secondary Contracts and the
amounts owing thereunder is true and correct in all material
respects as of the Cut Off Date, (ii) each such Contract is an
Eligible Contract and each Secondary Contract (or interest
therein) is an Eligible Secondary Contract, (iii) each such
Contract and the Seller's interest in the related Equipment and
Applicable Security, as appropriate, has been transferred to the
Trust free and clear of any Lien of any Person (other than
Permitted Liens) and in compliance, in all material respects,
with all Requirements of Law applicable to the Seller and (iv)
with respect to each such Contract, all material consents,
licenses, approvals or authorizations of or registrations or
declarations with any Governmental Authority required to be
obtained, effected or given by Seller in connection with the
transfer of such Contract and the related Equipment and
Applicable Security to the Trust have been duly obtained,
effected or given and are in full force and effect. On each
Addition Date on which Additional Contracts are transferred by
Seller to the Trust, Seller shall be deemed to represent and
warrant to the Trust that (i) each Additional Contract
transferred on such day is an Eligible Contract, (ii) each such
Additional Contract and the Seller's interest in the related
Equipment and Applicable Security, as appropriate, has been
transferred to the Trust free and clear of any Lien of any Person
(other than Permitted Liens) and in compliance, in all material
respects, with all Requirements of Law applicable to Seller or
the Originator thereof, (iii) with respect to each such
Additional Contract, all material consents, licenses, approvals
or authorizations of or registrations or declarations with any
Governmental Authority required to be obtained, effected or given
by the Seller in connection with the transfer of such Contract
and the related Equipment and Applicable Security to the Trust
have been duly obtained, effected or given and are in full force
and effect and (iv) the representations and warranties set forth
in subsection 2.5(a) are true and correct with respect to each
Contract transferred on such day as if made on such day.
(c) Excess Concentration Amounts. The Seller hereby
represents and warrants to the Trust as of each Closing Date that
after giving effect to all transfers of Contracts to the Trust on
such Closing Date, based on the Discounted Contract Balance of
each such newly transferred Contract on the related Cut Off Date:
(i) the ADCB of all End-User Contracts with Obligors
that are governmental entities or municipalities does not
exceed 1% of the ADCB of the Contract Pool;
(ii) the ADCB of all End-User Contracts which finance,
lease or are related to Software does not exceed 20% of the
ADCB of the Contract Pool;
(iii) the aggregate principal amount of Guaranteed
Residual Investments included in the Contract Pool does not
exceed 5% of the ADCB of the Contract Pool; and
(iv) in the Seller's reasonable judgment, the
Discounted Contract Balance of End-User Contracts in the
Contract Pool that are "true leases" does not exceed 10% of
the ADCB of the Contract Pool.
(d) Notice of Breach. The representations and
warranties set forth in this Section 2.5 shall survive the
transfer of the respective Contracts and related Equipment, or
interests therein, to the Trust, and termination of the rights
and obligations of the Servicer pursuant to Section 10.1. Upon
discovery by the Seller, the Servicer or a Responsible Officer of
the Issuer Trustee or the Collateral Agent of a breach of any of
the foregoing representations and warranties, the party
discovering such breach shall give prompt written notice to the
others and any Credit Enhancer.
(e) Retransfer of Ineligible Contracts and Excess
Contracts. In the event of a breach of any representation or
warranty set forth in subsection 2.5(b) or 6.2(b)(ix) with
respect to a Contract in the Contract Pool (each such Contract,
an "Ineligible Contract"), or set forth in subsection 2.5(c)
which renders a Contract an Excess Contract, in no later than 90
days after the earlier of knowledge of such breach on the part of
the Seller and receipt by the Seller of written notice of such
breach given by the Issuer Trustee, the Collateral Agent or the
Servicer, the Seller shall accept a retransfer of each such
Contract (and any related Equipment or Applicable Security)
selected by the Servicer to which such breach relates at such
time as there is a breach of any such representation or warranty
on the terms and conditions set forth below; provided, however,
that no such retransfer shall be required to be made with respect
to such Ineligible Contract or Excess Contract, as the case may
be (and such Contract shall cease to be an Ineligible Contract or
Excess Contract, as the case may be) if, on or before the
expiration of such 90-day period, the representations and
warranties in subsections 2.5(b), 6.2(b)(ix) and 2.5(c) with
respect to such Contract shall be made true and correct in all
material respects with respect to such Contract as if such
Contract had been transferred to the Trust on such day.
Notwithstanding anything contained in this subsection 2.5(e) to
the contrary, in the event of breach of any representation and
warranty set forth in subsection 2.5(a), with respect to each
Original Contract or Additional Contract and the related
Equipment having been conveyed to the Trust free and clear of any
Lien of any Person claiming through or under the Seller and its
Affiliates (other than Permitted Liens) and in compliance in all
material respects, with all Requirements of Law applicable to the
Seller, immediately upon the earlier to occur of the discovery of
such breach by the Seller or receipt by the Seller of written
notice of such breach given by the Issuer Trustee, the Collateral
Agent or the Servicer, the Seller shall repurchase and the Trust
shall convey, without recourse, representation or warranty, all
of the Trust's right, title and interest in such Ineligible
Contract. In any of the foregoing instances, the Seller shall
accept a retransfer of each such Ineligible Contract or Excess
Contract, and there shall be deducted from the ADCB of the
Contract Pool the Discounted Contract Balance of each such
Ineligible Contract or Excess Contract. On and after the date of
such retransfer, each Ineligible Contract or Excess Contract so
retransferred shall not be included in the ADCB of the Contract
Pool or of any group of Contracts. In consideration of such
retransfer the Seller shall, on the date of retransfer of such
Ineligible Contract or Excess Contract, make a deposit in the
Collection Account (for allocation pursuant to Article IV) in
immediately available funds in an amount equal to the Transfer
Deposit Amount. Upon each retransfer to the Seller of such
Ineligible Contract or Excess Contract, the Trust and the
Collateral Agent shall automatically and without further action
be deemed to transfer, assign and set-over to the Seller, without
recourse, representation or warranty, all the right, title and
interest of the Trust or the Collateral Agent, respectively, in,
to and under such Contract and all monies due or to become due
with respect thereto, the related Equipment and all proceeds of
such Contract and Liquidation Proceeds and Insurance Proceeds
relating thereto and all rights to security for any such
Contract, and all proceeds and products of the foregoing. The
Issuer Trustee, on behalf of the Trust, and the Collateral Agent
shall execute such documents and instruments of transfer as may
be prepared by the Seller and take such other actions as shall
reasonably be requested by the Seller to effect the transfer of
such Ineligible Contract pursuant to this subsection. The
obligation of the Seller to accept retransfer of any Ineligible
Contract or Excess Contract shall constitute the sole remedy
respecting any breach of the representations and warranties set
forth in subsection 2.5(b), 6.2(b)(ix) and 2.5(c) with respect to
such Contract available to Noteholders, or the Issuer Trustee on
their behalf or the Collateral Agent on behalf of the Secured
Parties.
(f) Retransfer of Trust Portfolio. In the event of a
breach of any of the representations and warranties set forth in
subsection 2.5(a) hereof which breach could reasonably be
expected to have a material adverse affect on the rights of the
Noteholders or of the Collateral Agent hereunder or on the
ability of the Seller to perform its obligations hereunder,
either the Collateral Agent, or, so long as any Series of Class A
Notes remains outstanding, the Controlling Party, by notice then
given in writing to the Seller, the Issuer Trustee and the
Servicer (and to the Collateral Agent, if given by the
Controlling Party), may direct the Seller to accept retransfer of
all of the Contracts in the Contract Pool and the Seller shall be
obligated to accept retransfer of such Contracts on a
Distribution Date specified by the Seller (such date, the
"Retransfer Date") occurring within the period of 60 days after
such notice on the terms and conditions set forth below;
provided, however, that no such retransfer shall be required to
be made if, on or before expiration of such applicable period,
the representations and warranties contained in subsection 2.5(a)
shall be made true and correct in all material respects. The
Seller shall deposit on the Retransfer Date an amount equal to
the deposit amount provided in the next sentence for such
Contracts in the Collection Account for distribution to the
Noteholders pursuant to Section 13.3. The deposit amount for
such retransfer will be equal to the sum of (i) the Aggregate
Principal Amount of the Notes of all Series at the end of the
Business Day preceding the Distribution Date on which the
retransfer is scheduled to be made, plus (ii) an amount equal to
all interest accrued but unpaid on the Notes at the applicable
Interest Rate through such Distribution Date, plus (iii) an
amount sufficient to pay all unreimbursed amounts owing to each
Credit Enhancer (to the extent set forth in the applicable
Supplement) less (iv) the amount, if any, available in the
Collection Account and the Reserve Account on such Transfer Date.
On the Retransfer Date immediately following the Transfer Date on
which such amount has been deposited in full into the Collection
Account, the Contracts in the Contract Pool (or security
interests therein) and all monies due or to become due with
respect thereto, the related Equipment (or security interests
therein) and all proceeds thereof, all rights to security for any
such Contracts, and all proceeds and products of the foregoing,
shall be transferred to the Seller, and the Issuer Trustee, on
behalf of the Trust, and the Collateral Agent shall execute and
deliver such instruments of transfer, in each case without
recourse, representation or warranty, as shall be prepared and
reasonably requested by the Seller to vest in the Seller, or its
designee or assignee, all right, title and interest of the Trust
and the Collateral Agent in, to and under the Contracts in the
Contract Pool, all monies due or to become due with respect
thereto, the related Equipment and all proceeds thereof and
Insurance Proceeds relating thereto. If the Collateral Agent or
the Noteholders give a notice directing the Seller to accept a
retransfer as provided above, the obligation of Seller to accept
a retransfer of the Contracts in the Contract Pool pursuant to
this subsection 2.5(e) shall constitute the sole remedy
respecting a breach of the representations and warranties
contained in subsection 2.5(a) available to the Noteholders or
the Collateral Agent on behalf of the Secured Parties.
Section 2.6 Covenants of Seller. The Seller hereby
covenants that:
(a) Contracts Not to be Evidenced by Promissory Notes.
The Seller will take no action to cause any Contract which
is not, as of the related Closing Date, evidenced by an
Instrument, to be so evidenced except in connection with the
enforcement or collection of such Contract.
(b) Security Interests. Except for the transfers
hereunder and any Residual Investment that is not a
Guaranteed Residual Investment, the Seller will not sell,
pledge, assign or transfer to any other Person, or grant,
create, incur, assume or suffer to exist any Lien on any
Contract in the Contract Pool or related Equipment, whether
now existing or hereafter transferred to the Trust, or any
interest therein, and the Seller will not sell, pledge,
assign or suffer to exist any Lien on its interest as
beneficial owner of the Trust. The Seller will immediately
notify the Issuer Trustee and the Collateral Agent of the
existence of any Lien on any Contract in the Contract Pool
or related Equipment; and the Seller shall defend the right,
title and interest of the Trust in, to and under the
Contracts in the Contract Pool and the related Equipment,
against all claims of third parties; provided, however, that
nothing in this subsection 2.6(b) shall prevent or be deemed
to prohibit the Seller from suffering to exist Permitted
Liens upon any of the Contracts in the Contract Pool or any
related Equipment.
(c) Delivery of Collections. The Seller agrees to pay
to the Servicer promptly (but in no event later than two
Business Days after receipt) all Collections received by
Seller in respect of the Contracts in the Contract Pool.
(d) Regulatory Filings. The Seller shall make any
filings, reports, notices, applications and registrations
with, and seek any consents or authorizations from, the
Securities and Exchange Commission and any state securities
authority on behalf of the Trust as may be necessary or that
Seller deems advisable to comply with any federal or state
securities or reporting requirements laws.
(e) Compliance with Law. Seller hereby agrees to
comply in all material respects with all Requirements of Law
applicable to Seller.
(f) Activities of Seller. The Seller shall not engage
in any business or activity of any kind, or enter into any
transaction or indenture, mortgage, instrument, agreement,
contract, lease or other undertaking, which is not directly
related to the transactions contemplated and authorized by
this Agreement or the Purchase Agreements or which is
otherwise a Permitted Transaction.
(g) Indebtedness. The Seller shall not create, incur,
assume or suffer to exist any Indebtedness or other
liability whatsoever, except (i) Indebtedness owing from
time to time to Newcourt Credit Group USA Inc. and incurred
to finance a portion of the purchase price of Contracts, the
payment of which Indebtedness is subordinated to the prior
payment in full of the Notes, (ii) obligations incurred
under this Agreement, (iii) liabilities incident to the
maintenance of its corporate existence in good standing or
(iv) obligations incident to a Permitted Transaction.
(h) Guarantees. The Seller shall not become or remain
liable, directly or contingently, in connection with any
Indebtedness or other liability of any other Person, whether
by guarantee, endorsement (other than endorsements of
negotiable instruments for deposit or collection in the
ordinary course of business), agreement to purchase or
repurchase, agreement to supply or advance funds, or
otherwise except incident to a Permitted Transaction.
(i) Investments. The Seller shall not make or suffer
to exist any loans or advances to, or extend any credit to,
or make any investments (by way of transfer of property,
contributions to capital, purchase of stock or securities or
evidences of indebtedness, acquisition of the business or
assets, or otherwise) in, any Person except (i) for
purchases of Contracts pursuant to the Purchase Agreements,
(ii) for investments in Eligible Investments in accordance
with the terms of this Agreement or (iii) pursuant to a
Permitted Transaction.
(j) Merger; Sales. The Seller shall not enter into
any transaction of merger or consolidation, or liquidate or
dissolve itself (or suffer any liquidation or dissolution),
or acquire or be acquired by any Person, or convey, sell,
lease or otherwise dispose of all or substantially all of
its property or business, except as provided for in this
Agreement.
(k) Distributions. The Seller shall not declare or
pay, directly or indirectly, any dividend or make any other
distribution (whether in cash or other property) with
respect to the profits, assets or capital of the Seller or
any Person's interest therein, or purchase, redeem or
otherwise acquire for value any of its capital stock now or
hereafter outstanding, except that so long as no Event of
Default has occurred and is continuing and no Event of
Default would occur as a result thereof or after giving
effect thereto and the Seller would continue to be Solvent
as a result thereof and after giving effect thereto, the
Seller may declare and pay dividends on its capital stock.
(l) Agreements. The Seller shall not become a party
to, or permit any of its properties to be bound by, any
indenture, mortgage, instrument, contract, agreement, lease
or other undertaking, except this Agreement, the Purchase
Agreements and the Supplements and except incidental to a
Permitted Transaction or amend or modify the provisions of
its Certificate of Incorporation or issue any power of
attorney except to the Issuer Trustee, the Collateral Agent
or the Servicer.
(m) Purchase Agreements. Seller shall not give any
material consent to any Financing Originator or exercise any
of its rights under any Purchase Agreement unless the Rating
Agency Condition is satisfied with respect thereto.
(n) Separate Corporate Existence. The Seller shall:
(i) Maintain its own deposit account or accounts,
separate from those of any Affiliate, with commercial
banking institutions. The funds of the Seller will not
be diverted to any other Person or for other than
corporate uses of the Seller.
(ii) Ensure that, to the extent that it shares the
same officers or other employees as any of its
stockholders or Affiliates, the salaries of and the
expenses related to providing benefits to such officers
and other employees shall be fairly allocated among
such entities, and each such entity shall bear its fair
share of the salary and benefit costs associated with
all such common officers and employees.
(iii) Ensure that, to the extent that it jointly
contracts with any of its stockholders or Affiliates to
do business with vendors or service providers or to
share overhead expenses, the costs incurred in so doing
shall be allocated fairly among such entities, and each
such entity shall bear its fair share of such costs.
To the extent that the Seller contracts or does
business with vendors or service providers when the
goods and services provided are partially for the
benefit of any other Person, the costs incurred in so
doing shall be fairly allocated to or among such
entities for whose benefit the goods and services are
provided, and each such entity shall bear its fair
share of such costs. All material transactions between
Seller and any of its Affiliates shall be only on an
arm's length basis.
(iv) Maintain a principal executive and
administrative office through which its business is
conducted separate from those of its Affiliates. To
the extent that Seller and any of its stockholders or
Affiliates have offices in the same location, there
shall be a fair and appropriate allocation of overhead
costs among them, and each such entity shall bear its
fair share of such expenses.
(v) Conduct its affairs strictly in accordance
with its Certificate of Incorporation and observe all
necessary, appropriate and customary corporate
formalities, including, but not limited to, holding all
regular and special stockholders' and directors'
meetings appropriate to authorize all corporate action,
keeping separate and accurate minutes of its meetings,
passing all resolutions or consents necessary to
authorize actions taken or to be taken, and maintaining
accurate and separate books, records and accounts,
including, but not limited to, payroll and intercompany
transaction accounts.
(vi) Take or refrain from taking, as applicable,
each of the activities specified in the "non-
substantive consolidation" opinion of Skadden, Arps,
Slate, Meagher & Flom delivered on the First Closing
Date, upon which the conclusions expressed therein are
based.
(o) Location of Seller, Records; Instruments. The
Seller (x) shall not move outside the State of California,
the location of its chief executive office, without 45 days'
prior written notice to the Issuer Trustee and the
Collateral Agent and (y) shall not move or permit the
Servicer to move the location of the Contract Files from the
location(s) thereof on the First Closing Date, without 45
days' prior written notice to the Issuer Trustee and the
Collateral Agent and (z) will promptly take all actions
required (including, but not limited to, all filings and
other acts necessary or advisable under the UCC and the
Personal Property Security Act (Ontario), if applicable, of
each relevant jurisdiction in order to continue the first
priority perfected security interest of the Collateral Agent
in all Contracts in the Contract Pool. The Seller will give
the Issuer Trustee and the Collateral Agent prompt notice of
a change within the State of California of the location of
its chief executive office.
Section 2.7 Release of Lien on Equipment. At the same
time as (i) any Lease in the Contract Pool becomes an Expired
Lease and the Equipment related to such Lease is sold, (ii) any
Contract becomes an Prepaid Contract and in connection therewith
the Equipment related to such Prepaid Contract is sold, or (iii)
the Servicer substitutes or replaces any unit of Equipment as
contemplated in Section 3.1(c), the Issuer Trustee, on behalf of
the Trust, and the Collateral Agent, on behalf of the Secured
Parties, will to the extent requested by the Servicer release the
Trust's interest in the Equipment relating to such Expired Lease
or Prepaid Contract or such substituted or replaced Equipment, as
the case may be; provided that such release will not constitute a
release of the Trust's interest in the proceeds of such sale
(other than with respect to Equipment that is replaced pursuant
to Section 3.1(c)). In connection with any sale of such
Equipment, the Issuer Trustee, on behalf of the Trust, and the
Collateral Agent will execute and deliver to the Servicer any
assignments, bills of sale, termination statements and any other
releases and instruments as the Servicer may request in order to
effect such release and transfer; provided that neither the
Issuer Trustee nor the Collateral Agent will make any
representation or warranty, express or implied, with respect to
any such Equipment in connection with such sale or transfer and
assignment. Nothing in this Section 2.7 shall diminish the
Servicer's obligations pursuant to Section 3.1(d) with respect to
the proceeds of any such sale.
Section 2.8 Hedging of Contracts After the Related
Addition Date.
(a) Subject to the provisions of Section 2.8(b), the
Seller may on any Distribution Date transfer to the Trust an
Interest Rate Hedge with respect to one or more Contracts in the
Contract Pool that were not originally Hedged Contracts
hereunder.
(b) The Seller agrees that any such Interest Rate
Hedge shall be transferred to the Trust under Section 2.8(a) upon
and subject to the following conditions:
(i) On or before the Determination Date preceding
such Distribution Date, the Seller shall give the Issuer
Trustee, the Collateral Agent, the Servicer, each Rating
Agency and any Credit Enhancer entitled thereto pursuant to
the relevant Supplement written notice that such Interest
Rate Hedge will be transferred to the Trust and (x)
specifying (A) the applicable Distribution Date for such
transfer, (B) the specific Contracts in the Contract Pool
being hedged thereunder, (C) the sum of the Discounted
Contract Balances of such Contracts as of the last day of
the preceding Collection Period before giving effect to such
Interest Rate Hedge and after giving effect thereto
(utilizing the interest rate payable by the counterparty
thereunder as the amount to be received in respect of
interest thereunder), (D) the identity of the Hedging
Counterparty and the effective interest rate under the
related hedging transaction and (E) a recalculation of the
ADCB of the Contract Pool and of each Series as of such
Determination Date (after giving effect to all transactions
to occur on such date hereunder) and (y) certifying that all
conditions precedent in this Section 2.8 to such transfer
have been satisfied.
(ii) On such Distribution Date, after giving effect
to the transfer of such Interest Rate Hedge to the Trust and
the recalculation of the ADCB of the Contract Pool
(utilizing, for such Contracts as to which the Interest Rate
Hedge shall apply, the interest rate payable by the
counterparty thereunder as the amount to be received in
respect of interest thereunder), no Event of Default, or an
event which with notice or lapse of time or both would
constitute an Event of Default shall have occurred and no
Excess Concentration Amount has been caused for any Series.
(iii) On or before such Distribution Date, and before
giving effect to such transfer, the Rating Agency Condition
shall have been satisfied.
ARTICLE III
ADMINISTRATION AND SERVICING OF CONTRACTS
Section 3.1 Appointment and Acceptance; Duties.
(a) Appointment of Initial Servicer. Newcourt is
hereby appointed as Servicer and custodian pursuant to this
Agreement. Newcourt accepts the appointment and agrees to act as
the Servicer and custodian pursuant to this Agreement.
(b) General Duties. The Servicer will service,
administer and enforce the Contracts in the Contract Pool on
behalf of the Trust and will have full power and authority to do
any and all things in connection with such servicing and
administration which it deems necessary or desirable and as shall
not contravene the provisions of this Agreement. The Servicer
will manage, service, administer, and make collections on the
Contracts in the Contract Pool with reasonable care, using that
degree of skill and attention that the Servicer exercises with
respect to all comparable contracts that it services for itself
or others. The Servicer's duties will include collection and
posting of all payments, responding to inquiries of Obligors
regarding the Contracts in the Contract Pool, investigating
delinquencies, accounting for collections, furnishing monthly and
annual statements with respect to collections and payments in
accordance with Section 3.10, making Servicer Advances in its
discretion, and using its best efforts to maintain the perfected
first priority security interest of the Collateral Agent in the
Trust Assets. The Servicer will follow its customary standards,
policies, and procedures and will have full power and authority,
acting alone, to do any and all things in connection with such
managing, servicing, administration, and collection that it deems
necessary or desirable. If the Servicer commences a legal
proceeding to enforce a Defaulted Contract pursuant to Section
3.4 or commences or participates in a legal proceeding (including
a bankruptcy proceeding) relating to or involving a Contract in
the Contract Pool, the Trust will be deemed to have automatically
assigned such Contract to the Servicer for purposes of commencing
or participating in any such proceeding as a party or claimant,
and the Servicer is authorized and empowered by the Trust,
pursuant to this Section 3.1(b), to execute and deliver, on
behalf of itself and the Trust, any and all instruments of
satisfaction or cancellation, or partial or full release or
discharge, and all other notices, demands, claims, complaints,
responses, affidavits or other documents or instruments in
connection with any such proceedings. If in any enforcement suit
or legal proceeding it is held that the Servicer may not enforce
a Contract on the ground that it is not a real party in interest
or a holder entitled to enforce the Contract, then the Issuer
Trustee will, at the Servicer's expense and direction, take steps
on behalf of the Trust to enforce the Contract, including
bringing suit in the Trust's name.
(c) Consent to Assignment or Replacement. At the
request of an Obligor, the Servicer may in its sole discretion
consent to the assignment of the related Contract or the sublease
of a unit of the Equipment relating to a Contract, so long as
such Obligor remains liable for all of its obligations under such
Contract. Upon the request of any Obligor, the Servicer may, in
its sole discretion, provide for the substitution or replacement
of any unit of Equipment for a substantially similar unit of
equipment, so long as such Obligor remains liable for all of its
obligations under such Contract.
(d) Disposition Upon Termination of Contract. Upon
the termination of a Lease included in the Contract Pool as a
result of a default by the obligor thereunder, and upon any such
Lease becoming a Defaulted Contract, the Servicer will use
commercially reasonable efforts to dispose of any related
Equipment. Without limiting the generality of the foregoing, the
Servicer may dispose of any such Equipment by purchasing such
Equipment or by selling such Equipment to any of its Affiliates
for a purchase price equal to the fair market value thereof. The
Servicer will deposit any Prepayments and any Expired Lease
Proceeds of any such disposition in accordance with Section 4.3.
(e) Subservicers. The Servicer may enter into
servicing agreements with one or more subservicers (including any
Affiliate of the Servicer) to perform all or a portion of the
servicing functions on behalf of the Servicer; provided that the
Servicer shall remain obligated and be liable to the Trust for
servicing and administering the Contracts in the Contract Pool in
accordance with the provisions of this Agreement without
diminution of such obligation and liability by virtue of the
appointment of such subservicer, to the same extent and under the
same terms and conditions as if the Servicer alone were servicing
and administering such Contracts. The fees and expenses of the
subservicer (if any) will be as agreed between the Servicer and
its subservicer and neither the Issuer Trustee, the Trust, the
Collateral Agent nor the Holders will have any responsibility
therefor. All actions of a subservicer taken pursuant to such a
subservicer agreement will be taken as an agent of the Servicer
with the same force and effect as though performed by the
Servicer.
(f) Further Assurances. The Issuer Trustee and the
Collateral Agent will furnish the Servicer, and the Servicer will
furnish any subservicer, with any powers of attorney and other
documents necessary or appropriate to enable the Servicer or a
subservicer, as applicable, to carry out its servicing and
administrative duties under this Agreement.
(g) Notice to Obligors. Subject to the provisions of
Section 3.2(e), the Servicer will not be required to notify any
Obligor that such Obligor's Contract or related Equipment, or any
security interest in such Contract or such Equipment, has been
sold, transferred, assigned, or conveyed pursuant to the
Applicable Purchase Agreement or pursuant to this Agreement;
provided that, in the event that the Servicer resigns or is
replaced, then if the place for payment pursuant to any Contract
is changed, the Successor Servicer must give each related Obligor
prompt written notice of the appointment of the Successor
Servicer and the place to which such Obligor should make payments
pursuant to each such Contract.
(h) Custodial Duties. As custodian, the Servicer
shall take and retain custody of the Contract Files in accordance
with the terms and conditions of this Agreement, all for the
benefit of the Trust and subject to the Lien thereon in favor of
the Collateral Agent on behalf of the Secured Parties. In so
taking and retaining custody of the Contract Files, the Servicer
shall be deemed to be acting as the agent of the Collateral
Agent, provided, however, that the Servicer makes no
representations as to the existence, perfection or priority of
any Lien on the Contract Files or the instruments therein, and
provided, further, that the Servicer's duties as agent shall be
limited to those expressly contemplated herein. All Contract
Files shall be kept in fireproof vaults or cabinets at the
locations specified in Section 2.6(o)(ii), or at such other
office as shall be specified by prior written notice in
accordance with Section 2.6(o). All Contract Files shall be
placed together in a separate file cabinet with an appropriate
identifying label and maintained in such a manner so as to permit
retrieval and access. All Contract Files shall be clearly
segregated from any other documents or instruments maintained by
the Servicer. The Servicer shall clearly indicate that such
Contract Files are the sole property of the Trust, subject to the
Lien of the Collateral Agent. In performing its duties as
custodian, the Servicer shall use the same degree of care and
attention as it employs with respect to Contracts which are owned
by it or not otherwise included in the Contract Pool.
Section 3.2 Collection of Payments.
(a) Collection Efforts; Modification of Contracts.
The Servicer will make reasonable efforts to collect all payments
called for under the terms and provisions of the Contracts in the
Contract Pool as and when the same become due, and will follow
those collection procedures which it follows with respect to all
comparable contracts that it services for itself or others. The
Servicer may, subject to Sections 3.2(b) and (c), at the request
of an Obligor and at the Servicer's option, waive, modify or
otherwise vary any other provision of a Contract in accordance
with its customary and usual practices, provided, that no such
waiver, modification or variance shall, without the consent of
each Rating Agency, have the effect of accelerating (except as
provided in Sections 3.2(b) and (c)), delaying, reducing or
extending the date for payment of Scheduled Payments with respect
to such Contract. The Servicer may in its discretion waive any
late payment charge or any other fees that may be collected in
the ordinary course of servicing any Contract in the Contract Pool.
(b) Prepaid Contract. The Servicer may, at its option
and in accordance with its customary and usual practices, agree
to permit a Contract in the Contract Pool to become a Prepaid
Contract (which shall not include a Contract that becomes an
Prepaid Contract due to a Casualty Loss); provided, that the
Servicer will not permit the early termination or full prepayment
of a Contract unless (i) such early termination or full
prepayment would not result in the Trust receiving an amount (the
"Prepayment Amount") less than the greater of (x) the sum of (A)
the Discounted Contract Balance on the date of such prepayment
plus any accrued and unpaid interest payments thereon (at the
weighted average of the Series Discount Rates in effect on the
date of such payment) and (B) any outstanding Servicer Advances
thereon and (y) the present value of remaining Scheduled Payments
under such Contract, discounted at a rate equal to 150 basis
points over the monthly-equivalent yield of the U.S. treasury
security with a maturity closest to the remaining life of the
Contract being prepaid or (ii) if such early termination or full
prepayment would result in the Trust receiving a Prepayment
Amount from the End-User less than the amount set forth in clause
(i), either the Vendor or the Financing Originator shall have
agreed to pay the Trust the difference between the Prepayment
Amount actually paid by the End-User and the amount set forth in
clause (i) (such payment by the Vendor or Financing Originator
also to be considered a "Prepayment Amount").
(c) Acceleration. The Servicer, in its sole
discretion, may accelerate (or elect not to accelerate) the
maturity of all or any Scheduled Payments under any Contract in
the Contract Pool under which a default under the terms thereof
has occurred and is continuing (after the lapse of any applicable
grace period); provided that the Servicer is required to
accelerate the Scheduled Payments due under any Contract in the
Contract Pool (and take other action in accordance with the
Originator's past practice, including repossessing or otherwise
converting the related Equipment, to realize upon the value of
such Contract and the related Equipment) to the fullest extent
permitted by the terms of such Contract, promptly after such
Contract becomes a Defaulted Contract.
(d) Taxes and Other Amounts. To the extent provided
for in any Contract in the Contract Pool, the Servicer will make
reasonable efforts to collect all payments with respect to
amounts due for taxes, assessments and insurance premiums
relating to such Contracts or the Equipment and remit such
amounts to the appropriate Governmental Authority or insurer on
or prior to the date such payments are due.
(e) Payments to Lockbox and Lockbox Account. On or
before the First Closing Date with respect to the Original
Contracts and on or before the relevant Addition Date, with
respect to Additional Contracts, the Servicer shall have
instructed all Obligors to make all payments in respect of the
Contracts in the Contract Pool to a Lockbox or directly to a
Lockbox Account. All Collections received in a Lockbox shall,
within one Business Day of receipt thereof, be deposited in the
Lockbox Account. In the event that any payments in respect of
the Contracts are made directly to the Servicer, the Servicer
shall, within two Business Days of receipt thereof, deposit such
amounts in a Lockbox Account or in the Collection Account. The
Servicer shall cause all Collections deposited in the Lockbox
Account to be deposited in the Collection Account within two
Business Days of the date such Collections are possessed by or on
behalf of the Servicer.
(f) Reserved.
(g) Remittances. The Servicer will service all
Collections in accordance with Section 4.3 hereof. As soon as
practicable but in any event not later than the Business Day
following the date of establishment by the Servicer that any of
the collected funds received in any of the Lockboxes do not
constitute Collections on account of the Contracts in the
Contract Pool, such monies which do not constitute such
Collections shall be remitted to the Seller or Financing
Originator, as appropriate.
Section 3.3 Servicer Advances. For each Collection
Period, if the Servicer determines that any Scheduled Payment (or
portion thereof) which was due and payable pursuant to a Contract
in the Contract Pool during such Collection Period was not
received prior to the end of such Collection Period, the Servicer
may make a Servicer Advance in an amount up to the amount of such
delinquent Scheduled Payment (or portion thereof), to the extent
that in its sole discretion it determines that it can recoup such
amount from subsequent collections under the related Contract.
The Servicer will deposit any Servicer Advances into the
Collection Account on or prior to 11:00 a.m. (New York City time)
on the related Transfer Date, in immediately available funds.
The Servicer will be entitled to be reimbursed for Servicer
Advances pursuant to Sections 4.3(d) and 4.3(e).
Section 3.4 Realization Upon Defaulted Contract. The
Servicer will use its best efforts consistent with its customary
and usual practices and procedures in its servicing of contracts
to repossess or otherwise comparably convert the ownership of any
Equipment relating to a Defaulted Contract and will act as sales
and processing agent for Equipment or Applicable Security which
it repossesses. The Servicer will follow such other practices
and procedures as it deems necessary or advisable and as are
customary and usual in its servicing of contracts and other
actions by the Servicer in order to realize upon such Equipment
or Applicable Security, which practices and procedures may
include reasonable efforts to enforce all obligations of Obligors
and repossessing and selling such Equipment or Applicable
Security at public or private sale in circumstances other than
those described in the preceding sentence. Without limiting the
generality of the foregoing, the Servicer may sell any such
Equipment or Applicable Security to the Servicer or its
Affiliates for a purchase price equal to the then fair market
value thereof. In any case in which any such Equipment or
Applicable Security has suffered damage, the Servicer will not
expend funds in connection with any repair or toward the
repossession of such Equipment or Applicable Security unless it
determines in its discretion that such repair and/or repossession
will increase the Liquidation Proceeds by an amount greater than
the amount of such expenses. The Servicer will remit to the
Collection Account the Liquidation Proceeds received in
connection with the sale or disposition of Equipment or
Applicable Security relating to a Defaulted Contract in
accordance with Section 4.3(a) net of any amounts payable
to a Vendor.
Section 3.5 Maintenance of Insurance Policies. The
Servicer will use its best efforts to ensure that each Obligor
maintains an Insurance Policy with respect to the related
Equipment in an amount at least equal to the sum of the
Discounted Contract Balance of the related Contract in the
Contract Pool; provided that the Servicer, in accordance with its
customary servicing procedures, may allow Obligors to
self-insure. Additionally, the Servicer will require that each
Obligor maintain property damage liability insurance during the
term of each Contract in the Contract Pool in amounts and against
risks customarily insured against by the Obligor on equipment
owned by it. If a Lessee fails to maintain property damage
insurance, the Servicer may purchase and maintain such insurance
on behalf of, and at the expense of, the Obligor. In connection
with its activities as Servicer of the Contracts, the Servicer
agrees to present, on behalf of itself, the Trust, the Collateral
Agent, the Indenture Trustees and the Holders, claims to the
insurer under each Insurance Policy and any such liability
policy, and to settle, adjust and compromise such claims, in each
case, consistent with the terms of each Contract. The Servicer's
Insurance Policies with respect to the related Equipment will
insure against liability for personal injury and property damage
relating to such Equipment, will name the Collateral Agent as an
insured thereunder and will contain a breach of warranty clause.
Section 3.6 Representations and Warranties of
Servicer. The Servicer represents and warrants to the Trust, the
Collateral Agent and the Holders that, as of the First Closing
Date and each subsequent Closing Date and on each Addition Date,
insofar as any of the following affects the Servicer's ability to
perform its obligations pursuant to this Agreement in any
material respect:
(a) Organization and Good Standing. The Servicer is a
corporation duly organized, validly existing and in good
standing under the laws of Ontario, Canada, with all
requisite corporate power and authority to own its
properties and to conduct its business as presently
conducted and to enter into and perform its obligations
pursuant to this Agreement.
(b) Due Qualification. The Servicer is qualified to
do business as a foreign corporation, is in good standing,
and has obtained all licenses and approvals as required
under the laws of, all provinces and states in which the
ownership or lease of its property and or the conduct of its
business (other than the performance of its obligations
hereunder) requires such qualification, standing, license or
approval, except to the extent that the failure to so
qualify, maintain such standing or be so licensed or
approved would not, in the aggregate, adversely effect the
enforceability of the Contracts in the Contract Pool.
Either the Servicer is qualified to do business as a foreign
corporation, is in good standing, and has obtained all
licenses and approvals as required under the laws of all
provinces and states in which the performance of its
obligations pursuant to this Agreement requires such
qualification, standing, license or approval or the Servicer
will have delegated its duties hereunder (in accordance with
Section 8.7) to subservicers which, when taken together with
the Servicer are, in the aggregate, qualified to do business
as a foreign corporation, are in good standing, and have
obtained all licenses and approvals as required under the
laws of, all provinces and states in which the performance
by the Servicer of its obligations pursuant to this
Agreement requires such qualification, standing, license or
approval, except to the extent that the failure to so
qualify, maintain such standing or be so licensed or
approved would not, in the aggregate, materially and
adversely affect the ability of the Servicer to comply with
this Agreement or to perform its obligations hereunder or
adversely effect the enforceability of the Contracts in the
Contract Pool.
(c) Power and Authority. The Servicer has the
corporate power and authority to execute and deliver this
Agreement and to carry out its terms. The Servicer has duly
authorized the execution, delivery and performance of this
Agreement by all requisite corporate action.
(d) No Violation. The consummation of the
transactions contemplated by, and the fulfillment of the
terms of, this Agreement by the Servicer (with or without
notice or lapse of time) will not (i) conflict with, result
in any breach of any of the terms or provisions of, or
constitute a default under, the articles of incorporation or
by-laws of the Servicer, or any term of any indenture,
agreement, mortgage, deed of trust or other instrument to
which the Servicer is a party or by which it is bound, (ii)
result in the creation or imposition of any Lien upon any of
its properties pursuant to the terms of any such indenture,
agreement, mortgage, deed of trust or other instrument, or
(iii) violate any law, regulation, order, writ, judgment,
injunction, decree, determination or award of any
Governmental Authority applicable to the Servicer or any of
its properties.
(e) No Consent. No consent, approval, authorization,
order, registration, filing, qualification, license or
permit of or with any Governmental Authority having
jurisdiction over the Servicer or any of its properties is
required to be obtained by or with respect to the Servicer
in order for the Servicer to enter into this Agreement or
perform its obligations hereunder.
(f) Binding Obligation. This Agreement constitutes a
legal, valid and binding obligation of the Servicer,
enforceable against the Servicer in accordance with its
terms, except as such enforceability may be limited by (i)
applicable Canadian Insolvency Laws and (ii) general
principles of equity (whether considered in a suit at law or
in equity) or implied covenants of good faith and fair
dealing.
(g) No Proceedings. There are no proceedings or
investigations pending, or, to the best of the Servicer's
knowledge, threatened against the Servicer, before any
Governmental Authority (i) asserting the invalidity of this
Agreement, (ii) seeking to prevent the consummation of any
of the transactions contemplated by this Agreement or (iii)
seeking any determination or ruling that might (in the
reasonable judgment of the Servicer) materially and
adversely affect the performance by the Servicer of its
obligations under, or the validity or enforceability of,
this Agreement.
Section 3.7 Covenants of Servicer. The Servicer
hereby covenants that:
(a) Contract Files. The Servicer will, at its own
cost and expense, maintain all Contract Files in accordance
with the terms of the Custodian Agreement. Without limiting
the generality of the preceding sentence, the Servicer will
not dispose of any documents constituting the Contract Files
in any manner which is inconsistent with the performance of
its obligations as the Servicer pursuant to this Agreement
and will not dispose of any Contract except as contemplated
by this Agreement.
(b) Compliance with Law. The Servicer will comply, in
all material respects, with all laws and regulations of any
Governmental Authority applicable to the Servicer or the
Contracts in the Contract Pool and related Equipment and
Contract Files or any part thereof; provided that the
Servicer may contest any such law or regulation in any
reasonable manner which will not materially and adversely
affect the value of (or the rights of the Trust on behalf of
the Holders or the Collateral Agent on behalf of the Secured
Parties, with respect to) the Trust Assets.
(c) Preservation of Security Interest. The Servicer
will execute and file such financing and continuation
statements and any other documents reasonably requested by
the Issuer Trustee or the Collateral Agent to be filed or
which may be required by any law or regulation of any
Governmental Authority to preserve and protect fully the
interest of the Collateral Agent in, to and under the Trust
Assets; provided that the Servicer will not be required to
file any financing or continuation statements with respect
to the Equipment in any jurisdiction other than the Filing
Locations.
(d) Obligations with Respect to Contracts;
Modifications. The Servicer will duly fulfill and comply
with, in all material respects, all obligations on the part
of the Seller to be fulfilled or complied with under or in
connection with each Contract in the Contract Pool and will
do nothing to impair the rights of the Collateral Agent and
the Holders in, to and under the Trust Assets. The Servicer
will perform such obligations under the Contracts in the
Contract Pool and will not change or modify the Contracts,
except as otherwise provided herein and except insofar as
any such failure to perform, change or modify would not
materially and adversely affect the value of (or the rights
of the Trust, on behalf of the Holders, or the Collateral
Agent, on behalf of the Secured Parties, with respect to)
the Contracts or the related Equipment.
(e) No Bankruptcy Petition. Prior to the date that is
one year and one day after the payment in full of all
amounts owing in respect of all outstanding Notes, the
Servicer will not institute against the Seller, or the
Trust, or join any other Person in instituting against the
Seller or the Trust, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other
similar proceedings under the laws of the United States or
any state of the United States. This Section 3.7(e) will
survive the termination of this Agreement.
(f) Location of Contract Files. The Contract Files
(other than Instruments as set forth in Section 2.1(b)(ii))
shall remain at all times in the possession of the Servicer.
Section 3.8 Servicing Compensation. As compensation
for its servicing activities hereunder and reimbursement for its
expenses as set forth in Section 3.9, the Servicer shall be
entitled to receive a monthly servicing fee in respect of any
Collection Period (or portion thereof) prior to the termination
of the Trust pursuant to Section 13.1 (with respect to each
Collection Period, the "Servicing Fee") equal to one-twelfth of
the product of (A) the Servicing Fee Percentage and (B) the ADCB
of the Contract Pool as of the first day of such Collection
Period.
Section 3.9 Payment of Certain Expenses by Servicer.
The Servicer will be required to pay all expenses incurred by it
in connection with its activities under this Agreement, including
fees and disbursements of independent accountants, the Issuer
Trustee, the Collateral Agent, taxes imposed on the Servicer,
expenses incurred in connection with payments and reports
pursuant to this Agreement, and all other fees and expenses not
expressly stated under this Agreement for the account of the
Trust or the Seller, but excluding Liquidation Expenses incurred
as a result of activities contemplated by Section 3.4. The
Servicer will be required to pay all reasonable fees and expenses
owing to the Issuer Trustee or the Collateral Agent in connection
with the maintenance of the Trust Accounts. The Servicer shall
be required to pay such expenses for its own account and shall
not be entitled to any payment therefor other than the Servicing
Fee.
Section 3.10 Monthly Report; Annual Report.
(a) Monthly Report. With respect to each Distribution
Date and the related Collection Period, the Servicer will provide
to the Issuer Trustee, the Collateral Agent, each Indenture
Trustee and each Rating Agency, on the related Determination
Date, a monthly statement (a "Monthly Report"), signed by a
Responsible Officer of the Servicer and substantially in the form
of Exhibit E and such other information as may be specified in a
Supplement.
(b) Annual Summary Statement. The Servicer will
provide to the Issuer Trustee, the Collateral Agent, each
Indenture Trustee, each Rating Agency and each Credit Enhancer,
on or prior to January 31 of each year, commencing January 31,
1997, a cumulative summary of the information required to be
included in the Monthly Reports for the Collection Periods ending
during the immediately preceding calendar year.
Section 3.11 Annual Statement as to Compliance. The
Servicer will provide to the Issuer Trustee, the Collateral
Agent, each Indenture Trustee, each Rating Agency and each Credit
Enhancer, on or prior to March 31 of each year, commencing March
31, 1997, an annual report signed by a Responsible Officer of the
Servicer stating that (a) a review of the activities of the
Servicer, and the Servicer's performance pursuant to this
Agreement, for the period ending on the last day of the
immediately preceding calendar year has been made under such
Person's supervision and (b) to the best of such Person's
knowledge, based on such review, the Servicer has performed or
has caused to be performed in all material respects all of its
obligations under this Agreement throughout such year and no
Servicer Default has occurred and is continuing (or, if a
Servicer Default has so occurred and is continuing, specifying
each such event, the nature and status thereof and the steps
necessary to remedy such event, and, if a Servicer Default
occurred during such year and no notice thereof has been given to
the Issuer Trustee or the Collateral Agent, specifying such
Servicer Default and the steps taken to remedy such event).
Section 3.12 Annual Independent Public Accountant's
Servicing Reports. The Servicer will cause a firm of nationally
recognized independent public accountants (who may also render
other services to the Servicer) to furnish to the Issuer Trustee,
the Collateral Agent, each Rating Agency, each Indenture Trustee
and each Credit Enhancer, on or prior to March 31 of each year,
commencing March 31, 1997, (i) a report relating to the previous
calendar year to the effect that (a) such firm has reviewed
certain documents and records relating to the servicing of the
Contracts in the Contract Pool, and (b) based on such
examination, such firm is of the opinion that the Monthly Reports
for such year were prepared in compliance with this Agreement,
except for such exceptions as it believes to be immaterial and
such other exceptions as will be set forth in such firm's report
and (ii) a report covering the preceding calendar year to the
effect that such accountants have applied certain agreed-upon
procedures to certain documents and records relating to the
servicing of Contracts under this Agreement, compared the
information contained in the Servicer's certificates delivered
during the period covered by such report with such documents and
records and that no matters came to the attention of such
accountants that caused them to believe that such servicing was
not conducted in compliance with Article III, Article IV and
Article VIII of this Agreement, except for such exceptions as
such accountants shall believe to be immaterial and such other
exceptions as shall be set forth in such statement. A copy of
such report may be obtained by any Noteholder by a request in
writing to the applicable Indenture Trustee, in the case of a
Holder of Class A Notes, or the Issuer Trustee, in the case of a
Holder of any Subordinated Note, addressed to its Corporate Trust
Office.
Section 3.13 Tax Treatment. The Seller has structured
this Agreement and the Notes to facilitate a secured,
credit-enhanced financing on favorable terms with the intention
that the Notes will constitute indebtedness of the Seller for
federal income and state and local tax purposes. The Seller, the
Servicer, each Holder and each Note Owner agree to treat and to
take no action inconsistent with the treatment of the Notes (or
any beneficial interest therein) as indebtedness for purposes of
federal, state, local and foreign income or franchise taxes and
any other tax imposed on or measured by income. Each Holder, by
accepting its Note, and each Note Owner, by acquiring a
beneficial interest in a Note, agrees to be bound by the
provisions of this Section 3.13. Each Noteholder will cause any
Note Owner acquiring an interest in a Note through it to comply
with this Agreement as to treatment as indebtedness under
applicable tax law, as described in this Section 3.13.
Furthermore, subject to Section 11.11, the Issuer Trustee shall
not file tax returns or obtain an employer identification number
on behalf of the Trust.
Section 3.14 Adjustments. If (i) the Servicer makes a
deposit into the Collection Account in respect of a Collection of
a Contract in the Contract Pool and such Collection was received
by the Servicer in the form of a check which is not honored for
any reason or (ii) the Servicer makes a mistake with respect to
the amount of any Collection and deposits an amount that is less
than or more than the actual amount of such Collection, the
Servicer shall appropriately adjust the amount subsequently
deposited into the Collection Account to reflect such dishonored
check or mistake. Any Scheduled Payment in respect of which a
dishonored check is received shall be deemed not to have been
paid.
ARTICLE IV
RIGHTS OF NOTEHOLDERS AND ALLOCATION
AND APPLICATION OF COLLECTIONS
Section 4.1 Rights of Holders. The Notes shall
represent indebtedness of the Trust secured by the Trust Assets
and an obligation of the Trust to pay the Noteholders interest
and principal on the Notes out of the Trust Assets, which, with
respect to each Series, shall consist of the right to receive, to
the extent necessary to make the required principal, interest and
any other payments with respect to the Notes of such Series at
the times and in the amounts specified in the related Supplement,
the portion of Collections allocable to Noteholders of such
Series pursuant to this Agreement and such Supplement, funds on
deposit in the Collection Account allocable to Noteholders of
such Series pursuant to this Agreement and such Supplement and
funds available pursuant to any related Enhancement. By
acceptance of the Notes each Noteholder of every Series shall be
deemed to have appointed the Collateral Agent as its agent
pursuant to the terms hereof and shall be deemed to have
authorized the Collateral Agent to accept such appointment as
agent by the Noteholders of each subsequent Series and agrees
that the lien created hereunder in favor of the Collateral Agent
shall secure the Notes of each Series equally and ratably.
Section 4.2 Establishment of Accounts.
(a) The Collection Account. The Servicer shall cause
to be established and maintained in the name of the Collateral
Agent on behalf of the Secured Parties, with an office or branch
of a depository institution or trust company (which may include
the Collateral Agent) organized under the laws of the United
States of America or any one of the states thereof and located in
the state designated by the Servicer a segregated corporate trust
account (the "Collection Account") bearing a designation clearly
indicating that the funds deposited therein are held in trust for
the benefit of the Secured Parties; provided, however, that at
all times such depository institution or trust company shall be
(a) the corporate trust department of the Collateral Agent or (b)
a depository institution organized under the laws of the United
States of America or any one of the states thereof or the
District of Columbia (or any domestic branch of a foreign bank),
(i)(A) which has either (1) a long-term unsecured debt rating
acceptable to the Rating Agencies or (2) a short-term unsecured
debt rating or certificate of deposit rating acceptable to the
Rating Agencies, (B) the parent corporation of which has either
(1) a long-term unsecured debt rating acceptable to the Rating
Agencies or (2) a short-term unsecured debt rating or certificate
of deposit rating acceptable to the Rating Agencies or (C) is
otherwise acceptable to the Rating Agencies and (ii) whose
deposits are insured by the Federal Deposit Insurance Corporation
(any such depository institution or trust company, a "Qualified
Institution"). The Supplement for a Series may require the
Collateral Agent to establish and maintain, for administrative
purposes only, other Series accounts for such Series bearing a
designation clearly indicating that the funds allocated thereto
are held in trust for the benefit of the Noteholders of such
Series. Pursuant to authority granted to it pursuant to
subsection 3.1(b), the Servicer shall have the revocable power to
instruct the Collateral Agent to make withdrawals and payments
from a related Collection Account for the purposes of carrying
out its duties hereunder and under any Supplement hereto.
(b) Establishment of the Reserve Account. The
Servicer, for the benefit of the Noteholders, shall cause to be
established and maintained in the name of the Collateral Agent on
behalf of the Noteholders, with a Qualified Institution
designated by the Servicer (which may include the Collateral
Agent), a segregated trust account within the corporate trust
department of such Qualified Institution (the "Reserve Account"),
bearing a designation clearly indicating that the funds deposited
therein are held in trust for the benefit of the Noteholders.
The Collateral Agent shall possess all right, title and interest
in all funds on deposit from time to time in the Reserve Account
and in all proceeds thereof excluding interest on funds in
deposit. Pursuant to the authority granted to it pursuant to
subsection 3.1(b), the Servicer shall have the revocable power to
instruct the Collateral Agent to make withdrawals and payments
from the Reserve Account for the purposes of carrying out its
duties hereunder and under any supplement hereto.
(c) Failure of Institution to Qualify. If any
institution with which any of the accounts established pursuant
to this Section 4.2 are established ceases to be a Qualified
Institution, the Servicer or the Collateral Agent (as the case
may be) shall within 10 Business Days establish a replacement
account at a Qualified Institution after notice thereof.
(d) Amounts in Reserve Account. Amounts on deposit in
the Reserve Account on any Business Day will be invested, at the
written direction of the Servicer to the Collateral Agent, in
Eligible Investments maturing or available for withdrawal on the
next Transfer Day. Earnings from such investments (net of losses
and investment expenses) shall be paid to Newcourt as provided in
Sections 4.3(d) and(e). Any investment instructions to the
Collateral Agent shall be in writing and include a certification
that the proposed investment is an Eligible Investment that
matures at or prior to the date required by this Agreement.
(e) Amounts in Collection Account. Amounts on deposit
in the Collection Account on any Business Day will be invested,
at the written direction of the Servicer to the Collateral Agent,
in Eligible Investments maturing or available for withdrawal on
the next Business Day; provided that any portion of such funds
that are allocable to a particular Collection Period may be
invested in Eligible Investments maturing on the Transfer Date
preceding the Distribution Date on which such funds will be
included in the "Available Amount". Earnings from such
investments received (net of losses and investment expenses)
shall be paid to Newcourt. Any investment instructions to the
Collateral Agent shall be in writing and include a certification
that the proposed investment is an Eligible Investment that
matures at or prior to the date required by this Agreement.
(f) Identification of Accounts. Schedule 3, which is
hereby incorporated into and made a part of this Agreement,
identifies the Collection Account by setting forth the account
number of such account, the account designation of such account
and the name of the institution with which such account has been
established. Such information with respect to the Reserve
Account shall be set forth in the Supplement (or a schedule
thereto) executed in connection with the issuance of the related
Series.
Section 4.3 Collections and Allocations.
(a) Collections. The Servicer shall, subject to
subsections 4.3(c) and 4.3(d), transfer, or cause to be
transferred, all Collections on deposit in the form of available
funds in the Lockbox Account to the Collection Account as
promptly as possible after the Date of Processing of such
Collections, but in no event later than the second Business Day
following such Date of Processing. The Servicer shall promptly
(but in no event later than two Business Days after the Date of
Processing thereof) deposit all Collections received directly by
it in the Collection Account.
The Servicer shall allocate such amounts to each Series
of Notes in accordance with this Article IV and shall instruct
the Collateral Agent to withdraw the required amounts from the
Collection Account and to pay such amounts to the Holder or to
the other Persons entitled thereto in accordance with this
Article IV. The Servicer shall make such deposits or payments on
the date indicated therein, if applicable, by wire transfer in
immediately available funds or as otherwise provided in the
Supplement for any Series with respect to such Series.
(b) Initial Deposits. On the First Closing Date and
on each Addition Date thereafter, the Servicer will deposit (in
immediately available funds) into the Collection Account all
Collections received after the applicable Cut Off Date and
through and including the First Closing Date or Addition Date, as
the case may be, in respect of Contracts being transferred to the
Trust on such date.
(c) Amounts Exempt from Deposit. Notwithstanding
Sections 4.3(a) and 4.3(b), the following collections (or
portions thereof) are not required to be deposited into the
Collection Account:
Collections on any Contracts in the Contract Pool
on which (and to the extent that) the Servicer has
previously made a Servicer Advance which has not been
reimbursed, which amounts the Servicer may retain (as a
reimbursement of such Servicer Advance).
(d) Allocations and Payments Prior to an Event of
Default or a Restricting Event. On each Determination Date prior
to an Event of Default or a Restricting Event, the Servicer,
pursuant to monthly payment instructions and notification, shall
instruct the Collateral Agent to withdraw, and on the succeeding
Distribution Date the Collateral Agent acting in accordance with
such instructions shall withdraw, the amounts required to be
withdrawn from the Collection Account pursuant to this Section in
order to make the following payments or allocations from the
Available Amount for the related Distribution Date (in each case,
such payment or transfer to be made only to the extent funds
remain available therefor after all prior payments and transfers
for such Distribution Date have been made), in the following
order of priority:
(i) pay to the Servicer, the amount of any
Unreimbursed Servicer Advance;
(ii) pay to the Servicer the monthly Servicing Fee for
the preceding monthly period together with any amounts in
respect of the Servicing Fee that were due in respect of
prior monthly periods that remain unpaid;
(iii) pay to each Hedging Counterparty the amount owing
to such Hedging Counterparty under the related Interest Rate
Hedge for the Accrual Period immediately preceding such
Distribution Date, together with any such amounts that were
due in respect of prior Accrual Periods that remain unpaid
(excluding, in each case, any amounts owing in respect of
termination payments, liquidated damages and gross-ups);
provided that if the Available Amount remaining to be
allocated pursuant to this Section 4.3(d)(iii) is less than
the full amount required to be so allocated, such remaining
Available Amount shall be allocated to each Hedging
Counterparty pro rata based on the amount owing to it;
(iv) allocate to each Series of Notes the applicable
Series Available Amount for application as follows:
(A) pay to the Applicable Indenture Trustee on
behalf of the Class A Noteholders of such Series an
amount equal to interest accrued in respect of the
related Class A Notes for the Accrual Period
immediately preceding such Distribution Date, together
with any such amounts that accrued in respect of prior
Accrual Periods for which no allocation was previously
made; provided that if the Series Available Amount
remaining to be allocated pursuant to this clause is
less than the full amount required to be so allocated,
such remaining Series Available Amount shall be
allocated to the Holder of each Class A Note of such
Series pro rata based upon the outstanding Principal
Amount thereof;
(B) pay to the Holders of the Class B Notes of
such Series an amount equal to the interest accrued
thereon for the Accrual Period immediately preceding
such Distribution Date, together with any amounts that
accrued in respect of prior Accrual Periods for which
no allocation was previously made; provided, that if
the Series Available Amount remaining to be allocated
pursuant to this clause is less than the full amount
required to be so paid, such remaining Series Available
Amount shall be paid to the Holder of each Class B Note
of such Series pro rata based on the outstanding
Principal Amount thereof;
(C) pay to the Applicable Indenture Trustee on
behalf of the Holders of Class A Notes of each Series
the lesser of (A) the Class A Principal Payment Amount
for such Series for such Distribution Date and (B) the
remaining outstanding Principal Amount of the Class A
Notes of such Series; provided, that if the Series
Available Amount remaining to be allocated pursuant to
this clause is less than the full amount required to be
so paid, such remaining Series Available Amount shall
be paid to the Holder of each Class A Note of such
Series pro rata based on the outstanding Principal
Amount thereof;
(D) to the extent that the amount then maintained
in the Reserve Account is less than 1% of the sum of
the Series ADCB for all outstanding Series (such
amount, the "Minimum Reserve Balance"), deposit to the
Reserve Account an amount equal to the Series
Allocation Percentage of such insufficiency, provided,
that to the extent the amount on deposit in the Reserve
Account exceeds the Minimum Reserve Balance, such
excess shall be paid to Newcourt to the extent and as
required by the last paragraph of this Section 4.3(d);
(E) pay to the Holders of the Class C Notes of
such Series an amount equal to interest accrued in
respect of such Series of Class C Notes for the Accrual
Period immediately preceding such Distribution Date,
together with any such amounts that accrued in respect
of prior Accrual Periods for which no allocation was
previously made; provided, that if the Series Available
Amount remaining to be allocated pursuant to this
clause is less than the full amount required to be so
paid, such remaining Series Available Amount shall be
allocated to the Holder of each Class C Note of such
Series pro rata based on the outstanding principal
amount thereof;
(F) pay to the Holders of the Class B Notes of
such Series the lesser of (i) the Class B Principal
Payment Amount for such Series of Class B Notes for
such Distribution Date and (ii) the remaining
outstanding Principal Amount of the Class B Notes of
such Series; provided, that if the Series Available
Amount remaining to be allocated pursuant to this
clause is less than the full amount required to be so
paid, such remaining Series Available Amount shall be
allocated to the Holder of each Class B Note of such
Series pro rata based on the outstanding Principal
Amount thereof;
(G) pay to the Holders of the Class C Notes of
such Series the lesser of (i) the Class C Principal
Payment Amount for such Series of Class C Notes for
such Distribution Date and (ii) the remaining
outstanding Principal Amount of the Class C Notes of
such Series; provided, that if the Series Available
Amount remaining to be allocated pursuant to this
clause is less than the full amount required to be so
paid, such remaining Series Available Amount shall be
allocated to the Holder of each Class C Note of such
Series pro rata based on the outstanding Principal
Amount thereof;
(H) pay to the Applicable Indenture Trustee on
behalf of the Holders of the Class A Notes of such
Series, as an additional payment of principal of such
Class A Notes an amount equal to the product of (i) the
Applicable Class Percentage for such Class A Notes and
(ii) the applicable Excess Spread Amount;
(I) pay to the Class B Noteholders of such
Series, as an additional payment of principal of such
Class B Notes an amount equal to the product of (i) the
Applicable Class Percentage for such Class B Notes and
(ii) the applicable Excess Spread Amount; and
(J) pay to each Hedging Counterparty an amount
equal to the product of (1) the amounts owing to it in
respect of termination payments, liquidated damages and
gross-ups and (2) the applicable Series Allocation
Percentage; provided, that if the Series Available
Amount remaining to be allocated pursuant to this
clause is less than the full amount required to be so
allocated, such remaining Series Available Amount shall
be allocated to each Hedging Counterparty pro rata
based on the amount owing to it;
(K) pay the remaining Series Available Amount to
the Holders of the Class C Notes;
provided, that no Series Available Amount shall be allocated
pursuant to any of clauses (iv)(E), (F), (G), (H), (I), (J) or
(K) above to the extent that any allocation having priority over
such clause has not been made in full for any other Series of
Notes; any such remaining Series Available Amount shall be deemed
to constitute Series Available Amounts for such other Series,
allocated among such other Series, if more than one, in
proportion to the respective Series Allocation Percentages of
such other Series.
Prior to the occurrence of an Event of Default or a
Restricting Event, to the extent specified by the Servicer, if
the Available Amounts or Series Available Amounts, as applicable,
are less than the amount required to make in full the payments
and allocations set forth in Sections 4.3(d)(i) through
(d)(iv)(C) above, amounts held in the Reserve Account shall be
withdrawn in order for any of such payments or allocations to be
made and such amounts will be considered as Available Amounts or
Series Available Amounts, as appropriate, for such purpose only;
provided, to the extent amounts on deposit in the Reserve Account
are insufficient to make such payments in full for each Series in
respect of which a draw on the Reserve Account is required, such
amounts shall be allocated to each such Series pro rata based
upon the Reserve Account Allocation Amount. On each Distribution
Date, after giving effect to all payments and allocations to be
made on such date, amounts on deposit in the Reserve Account in
excess of the Minimum Reserve Balance shall be paid first, to
Newcourt in reimbursement of the outstanding Newcourt Advance and
second, to the holders of the Class C Notes.
(e) Allocations and Payments after an Event of Default
or a Restricting Event. On each Determination Date after the
occurrence of an Event of Default or on each Determination Date
after the occurrence, but only during the continuance, of a
Restricting Event, the Servicer, pursuant to monthly payment
instructions and notification, shall instruct the Collateral
Agent to withdraw, and on the succeeding Distribution Date the
Collateral Agent acting in accordance with such instructions
shall withdraw, the amounts required to be withdrawn from the
Collection Account pursuant to this Section in order to make the
following payments or allocations from the Available Amount for
the related Distribution Date (in each case, such payment or
transfer to be made only to the extent funds remain available
therefor after all prior payments and transfers for such
Distribution Date have been made), in the following order of
priority:
(i) pay to the Collateral Agent the amount of any
unpaid fees and expenses to which the Collateral Agent is
entitled under Section 12.4;
(ii) pay to the Servicer, the amount of any
Unreimbursed Servicer Advance;
(iii) pay to the Servicer the monthly Servicing Fee for
the preceding monthly period together with any amounts in
respect of the Servicing Fee that were due in respect of
prior monthly periods that remain unpaid;
(iv) pay to each Hedging Counterparty the amount owing
to such Hedging Counterparty under the applicable Interest
Rate Hedge for the Accrual Period immediately preceding such
Distribution Date, together with any such amounts that were
due in respect of prior Accrual Periods that remain unpaid
(excluding, in each case, any amounts owing in respect of
termination payments, liquidated damages and gross-ups);
provided that if the Available Amount remaining to be
allocated pursuant to this Section 4.3(e)(iii) is less than
the full amount required to be so allocated, such remaining
Available Amount shall be allocated to each Hedging
Counterparty pro rata based on the amount owing to it;
(v) pay to each Applicable Indenture Trustee on behalf
of the Holders of the Class A Notes represented thereby an
amount equal to interest accrued in respect of such Class A
Notes for the Accrual Period immediately preceding such
Distribution Date, together with any such amounts that
accrued in respect of prior Accrual Periods for which no
allocation was previously made; provided, that if the
Available Amount remaining to be allocated pursuant to this
clause is less than the full amount required to be so
allocated, such remaining Available Amount shall be
allocated to each Series of Class A Notes pro rata based on
the Outstanding Principal Amount thereof;
(vi) pay to the Holders of the Class B Notes of each
Series an amount equal to interest accrued in respect of
such Class B Notes for the Accrual Period immediately
preceding such Distribution Date, together with any such
amounts that accrued in respect of prior Accrual Periods for
which no allocation was previously made; provided, that if
the Available Amount remaining to be allocated pursuant to
this clause is less than the full amount required to be so
allocated, such remaining Available Amount shall be
allocated to each Series of Class B Notes pro rata based on
the outstanding Principal Amount thereof;
(vii) pay to each Applicable Indenture Trustee on behalf
of the Holders of the Class A Notes represented thereby the
remaining outstanding Principal Amount of such Class A
Notes; provided, that if the Available Amount remaining to
be allocated pursuant to this subsection is less than the
full amount required to be so allocated, such remaining
Available Amount shall be allocated to each Series of Class
A Notes pro rata based on the outstanding Principal Amount
thereof;
(viii) pay to Newcourt the outstanding amount of the
Newcourt Advance;
(ix) pay to the Holders of Class C Notes of each Series
an amount equal to interest accrued in respect of such Class
C Notes for the Accrual Period immediately preceding such
Distribution Date, together with any such amounts that
accrued in respect of prior Accrual Periods for which no
allocation was previously made; provided, that if the
Available Amount remaining to be allocated pursuant to this
clause is less than the full amount required to be so
allocated, such remaining Available Amount shall be
allocated to each Series of Class C Notes pro rata based on
the outstanding Principal Amount thereof;
(x) pay to the Class B Noteholders the remaining
outstanding Principal Amount of the Class B Notes; provided,
that if the Available Amount remaining to be allocated
pursuant to this clause is less than the full amount
required to be so allocated, such remaining Available Amount
shall be allocated to each Series of Class B Notes pro rata
based on the outstanding Principal Amount thereof;
(xi) pay to the Holders of Class C Notes of each
Series the remaining outstanding principal amount of such
Class C Notes; provided, that if the Available Amount
remaining to be allocated pursuant to this clause is less
than the full amount required to be so allocated, such
remaining Available Amount shall be allocated to each Series
of Class C Notes pro rata based on the outstanding Principal
Amount thereof;
(xii) pay to each Hedging Counterparty an amount equal
to the amounts owing to it in respect of termination
payments, liquidated damages and gross-ups; provided, that
if the Available Amount remaining to be allocated pursuant
to this subsection is less than the full amount required to
be so allocated, such remaining Available Amount shall be
allocated to each Hedging Counterparty pro rata based on the
amount owing to it; and
(xiii) pay any remaining Series Available Amounts to the
Holders of the Class C Notes of each Series; provided, that
no Series Available Amount shall be allocated pursuant to
this subsection to the extent that allocations set forth in
Sections 4.3(e)(i) through (ix) above have not been made in
full for any other Series of Notes but any remaining Series
Available Amount to such extent shall be deemed to
constitute Series Available Amounts for such other Series,
allocated among such other Series, if more than one, in
proportion to the respective Series Allocation Percentages
of such other Series.
Following the occurrence of an Event of Default, and
notwithstanding the occurrence or continuance of a Restricting
Event, amounts on deposit in the Reserve Account shall be treated
as Available Funds and allocated as provided above in this
Section 4.3(e); provided, that (i), before giving effect to any
allocations or payments on such Distribution Date, Investment
Earnings in the Reserve Account shall be paid to Newcourt and
(ii), after giving effect to the withdrawal of Investment
Earnings, amounts on deposit in the Reserve Account on the first
Distribution Date following such Event of Default (and prior to
any allocations or payments of Available Amounts on such date) in
excess of the Minimum Reserve Balance shall be paid first, to
Newcourt in reimbursement of the outstanding Newcourt Advance and
second, to the Holders of the Class C Notes.
Following the occurrence, but only during the
continuance, of a Restricting Event, and prior to the occurrence
of an Event of Default, amounts on deposit in the Reserve Account
shall be treated as Available Funds and allocated as provided
above in this Section 4.3(e); provided, that (i), before giving
effect to any allocations or payments on such Distribution Date,
Investment Earnings in the Reserve Account shall be paid to
Newcourt and (ii), after giving effect to the withdrawal of
Investment Earnings, amounts on deposit in the Reserve Account,
before giving effect to any allocations or payments on such
Distribution Date, in excess, in the aggregate, of the Minimum
Reserve Balance shall be paid first, to Newcourt in reimbursement
of the outstanding Newcourt Advance and second, to the Holders of
the Class C Notes.
(f) The Collateral Agent or other appropriate party
(the "Withholding Party") is expressly empowered to make any
necessary adjustment to the amounts paid pursuant to this
Agreement and this Section 4.3 in order to satisfy applicable
income tax provisions requiring withholding of tax, if any, with
respect to payments. Any amount so withheld from a payment
pursuant to this provision shall be remitted by the Withholding
Party to the appropriate taxing authority in accordance with law
on behalf of the party from whom withheld.
Section 4.4 Interest Rate Hedges. (a) The Servicer
may from time to time designate Persons to become additional
Hedging Counterparties hereunder, provided that (i) when
designating such additional Hedging Counterparty, the Servicer
shall deliver to the Issuer Trustee, each Rating Agency and the
Collateral Agent an Opinion of Counsel as to the due
authorization, execution and delivery and validity and
enforceability of the Interest Rate Hedge with such additional
Hedging Counterparty and (ii) at the time of such designation,
the long term unsecured debt or long term certificate of deposit
rating assigned to such additional Hedging Counterparty, shall be
AAA by Standard & Poor's and Aaa by Moody's.
(b) In the event that the long term unsecured debt or
long term certificate of deposit rating of a Hedging Counterparty
is withdrawn or reduced below AAA by Standard & Poor's or is
withdrawn or reduced below Aaa by Moody's, then within 30 days
after receiving notice of such decline in the creditworthiness,
either (x) such Hedging Counterparty, at its own expense, will
obtain a Replacement Interest Rate Hedge or (y) the Collateral
Agent, at the written direction of the Servicer, shall either (i)
with the prior written confirmation of the Rating Agency that
such action will not result in a reduction or withdrawal of the
rating of any Class of Notes, use its reasonable efforts to (A)
cause such Hedging Counterparty to pledge securities which
qualify as Eligible Investments in the manner provided by
applicable law or (B) otherwise cause to be pledged securities,
which shall be held by the Collateral Agent, its custodian, or
its agent free and clear of the Lien of any third party, in a
manner conferring on the Collateral Agent a perfected first Lien
in such securities securing the Hedging Counterparty's
performance of its obligations under the Interest Rate Hedge, or
(ii) provided that a Replacement Interest Rate Hedge or Qualified
Substitute Arrangement meeting the requirements of Section 4.4(c)
has been obtained, (A) provide written notice to the Hedging
Counterparty of its intention to terminate the Interest Rate
Hedge within such 30-day period and (B) terminate the Interest
Rate Hedge within such 30-day period, request the payment to it
of all amounts due to the Trust under the Interest Rate Hedge
through the termination date and deposit any such amounts so
received, on the day of receipt, to the Collection Account, or
(iii) use reasonable efforts to establish any other arrangement
satisfactory to the Rating Agency including collateral,
guarantees or letters of credit, which arrangement will result in
the Rating Agency not reducing or withdrawing the then rating of
any Class of Notes (a "Qualified Substitute Arrangement");
provided, however, that in the event at any time any alternative
arrangement established pursuant to clause (x) or (y)(i) or
(y)(iii) above shall cease to be satisfactory to the Rating
Agency, then the provisions of this Section 4.4(b) shall again be
applied and in connection therewith the 30-day period referred to
above shall commence on the date the Servicer receives notice of
such cessation or termination, as the case may be.
(c) Unless an alternative arrangement pursuant to
clause (x) or (y)(i) of Section 4.4(b) is being established, the
Collateral Agent, at the direction of the Servicer shall use its
best efforts to obtain a Replacement Interest Rate Hedge or
Qualified Substitute Arrangement meeting the requirements of this
Section 4.4(c) during the 30-day period referred to in Section
4.4(b). The Collateral Agent shall not at any time terminate the
Interest Rate Hedge unless, prior to such termination, the
Servicer has obtained (i) a Replacement Interest Rate Hedge or
Qualified Substitute Arrangement, (ii) to the extent applicable,
an Opinion of Counsel as to the due authorization, execution,
delivery, validity and enforceability of such Replacement
Interest Rate Hedge or Qualified Substitute Arrangement, as the
case may be, and (iii) a letter from the Rating Agency confirming
that the termination of the Interest Rate Hedge and its
replacement with such Replacement Interest Rate Hedge or
Qualified Substitute Arrangement will not adversely affect its
rating of any Class of Notes.
(d) The Servicer shall notify the Issuer Trustee, the
Collateral Agent and the Rating Agency within five Business Days
after obtaining knowledge that the long term unsecured debt or
the long term certificate of deposit rating of a Hedging
Counterparty has been withdrawn or reduced by Standard & Poor's
or Moody's.
(e) Notwithstanding the foregoing, the Servicer may at
any time obtain a Replacement Interest Rate Hedge, provided that
the Servicer delivers to the Collateral Agent (i) an Opinion of
Counsel as to the due authorization, execution and delivery and
validity and enforceability of such Replacement Interest Rate
Hedge and (ii) a letter from the Rating Agency confirming that
the termination of the then current Interest Rate Hedge and its
replacement with such Replacement Interest Rate Hedge will not
adversely affect its rating of any Class of Notes.
(f) The Issuer Trustee and the Collateral Agent hereby
appoint each Hedging Counterparty to perform the duties of the
calculation agent under the related Interest Rate Hedge.
Section 4.5 Reliance by Collateral Agent Upon
Information Provided. In connection with the payments required
to be made by the Collateral Agent pursuant to Section 4.3 or
otherwise provided in this Agreement, the Collateral Agent shall
be fully protected in relying, on any Distribution Date, on the
Monthly Statement provided by the Servicer pursuant to Section
3.10, for such Distribution Date. The Collateral Agent shall
have no obligation to verify, calculate or re-calculate any
amount forth in any Monthly Statement. In the absence of a
Monthly Statement specifying the amounts to be paid by the
Collateral Agent, the Collateral Agent shall be fully protected
in relying upon written notice provided by any of the following
Persons with respect to any of the following information and
shall have no obligation to verify, calculate or re-calculate any
amount set forth in any such written notice:
(a) with respect to the amount of Unreimbursed Servicer
Advances and unpaid Servicing Fee for any period, the
Servicer;
(b) with respect to amounts owing to a Hedging Counterparty,
either the Servicer or such Hedging Counterparty;
(c) with respect to accrued interest for any specified
period and the unpaid principal amount of Class A Notes of
any Series, either the Servicer or the Applicable Indenture
Trustee for such Class A Notes;
(d) with respect to accrued interest for any specified
period and the unpaid principal amount of Class B Notes of
any Series, the Servicer;
(e) with respect to accrued interest for any specified
period and the unpaid principal amount of Class C Notes of
any Series, the Servicer; and
(f) with respect to payment to Newcourt or any other matters
required to be determined in connection with any of the
foregoing payments, the Servicer.
All payments to be made by the Collateral Agent on account of the
Notes of any Series shall be made to such account or accounts as
(i) in the case of the Class A Notes of any Series, shall be
notified to the Collateral Agent by the Applicable Indenture
Trustee for such Note Owners, (ii) in the case of the Class B
Notes of any Series, shall be specified in the Note Agreement for
such Class B Notes and (iii) in the case of the Class C Notes of
any Series, shall be specified in the Note Agreement for such
Class C Notes.
[THE REMAINDER OF ARTICLE IV IS RESERVED AND
SHALL BE SPECIFIED IN ANY SUPPLEMENT
WITH RESPECT TO ANY SERIES]
ARTICLE V
[ARTICLE V IS RESERVED AND SHALL
BE SPECIFIED IN ANY SUPPLEMENT
WITH RESPECT TO ANY SERIES]
ARTICLE VI
THE PARTNERSHIP NOTES; NEW ISSUANCES
Section 6.1 Note Transfer Restrictions.
(a) Unless otherwise provided in the related
Supplement, no sale, assignment, participation, transfer or other
disposition (a "Transfer") (i) of any Class B Note (or any
interest therein) shall be made unless the Seller shall have
granted its prior written consent to such Transfer, provided,
that the Seller shall not withhold its consent to any such
Transfer unless such transfer would, in the reasonable opinion of
the Seller or the Servicer, result in the Trust being deemed to
be an association or a publicly traded partnership taxable as a
corporation or (ii) of any Class C Note by the original Holder
thereof (other than the Seller) shall be made unless the Seller,
in its unfettered discretion, shall have granted its prior
written consent to such Transfer. In no event shall a Transfer
of a Partnership Note be permitted to a partnership, subchapter S
corporation or grantor trust unless less than 50 percent of the
aggregate value of the assets of such entity are attributable to
interests in the Trust. Moreover, no Transfer of a Partnership
Note shall be permitted except to a Person who is either (A)(i) a
citizen or resident of the United States, (ii) a corporation,
partnership or other entity organized in or under the laws of the
United States or any political subdivision thereof or (iii) a
Person not described in (i) or (ii) whose ownership of the
Partnership Note is effectively connected with such Person's
conduct of a trade or business within the United States (within
the meaning of the Code) and its ownership of any interest in a
Partnership Note will not result in any withholding obligation
with respect to any payments with respect the Partnership Notes
by any Person (other than withholding, if any, under Section 1446
under the Code) or (B) an estate or trust the income of which is
includable in gross income for United States Federal income tax
purposes. Persons other than those described in clause A(iii)
above shall provide a certification of non-foreign status signed
under penalties of perjury to the Seller, the Servicer and the
Issuer Trustee. If any Transfer is made to a Person described in
clause (A)(iii) above, such Person shall furnish to the Seller,
the Servicer and the Issuer Trustee, a properly executed U.S.
Internal Revenue Service Form 4224 and a new Form 4224 upon the
expiration or obsolescence of any previously delivered form (and
such other certifications, representations or Opinions of Counsel
as may be requested by the Seller, the Servicer or the Issuer
Trustee). Finally, no subsequent Transfer of a Partnership Note
is permitted unless (i) such Transfer is of a Partnership Note
with a denomination of at least $500,000 and (ii) the Seller and
the Servicer each consent in writing to the proposed Transfer,
which consent shall be granted unless either the Seller or the
Servicer, acting pursuant to an Opinion of Counsel, determines
that such Transfer would create a material risk that the Trust
would be classified for Federal or any applicable state tax
purposes as an association or publicly traded partnership taxable
as a corporation; provided, that any attempted Transfer that
would cause the number of Targeted Holders to exceed ninety-nine
shall be void; and provided, further, that there shall not at any
time be more than 99 Targeted Holders of Partnership Notes or
such other number as may be consented to by the Seller which
consent may be withheld in its sole and absolute discretion. The
Seller and Servicer shall not approve a Transfer of a Partnership
Note and consent will be deemed to be reasonably withheld if,
acting pursuant to an Opinion of Counsel such Persons determine
such Transfer creates a material risk that the Trust would be
taxable as a corporation for federal income tax purposes. Any
Holder of a Partnership Note which wishes to effect a Transfer
must deliver to the Seller and the Servicer the following
representation prior to the Transfer:
The Purchaser has neither acquired nor will it sell, trade,
assign or otherwise dispose of the Note(s) (or any interest
therein) or cause the Note(s) (or any interest therein) to
be marketed on or through (i) an "established securities
market" within the meaning of section 7704(b)(1) of the
Internal Revenue Code of 1986, as amended (the "Code"),
including, without limitation, an over-the-counter market or
an interdealer quotation system that regularly disseminates
firm buy or sell quotations or (ii) a "secondary market"
within the meaning of section 7704(b)(2) of the Code,
including a market wherein the Notes (or any interests
therein) are regularly quoted by any person making a market
in such interests and a market wherein any person regularly
makes available bid or offer quotes with respect to the
Notes (or any interest therein) and stands ready to effect
buy or sell transactions at the quoted prices for itself or
on behalf of others.
If the Seller and Servicer do not object to the Transfer within
five Business Days of the receipt of the above representation,
such Transfer may be recorded by the transfer agent and registrar
under the Applicable Indenture.
(b) The Seller (i) shall at all times own (x) Class B
Notes in an amount not less than 1% of the Aggregate Principal
Amount of all Class B Notes and (y) Class C Notes in an amount
not less than 33.3% of the Aggregate Principal Amount of the
Class C Notes (the Subordinated Notes referred to in clauses (x)
and (y), the "Non-Transferrable Notes").
In addition, by accepting the terms and benefits hereof
each Holder from time to time of Class B Notes and Class C Notes
(other than the Seller) agrees that (i) Class C Notes held by any
such Person may not be sold without the consent of the Seller (in
its unfettered discretion) and (ii) Class B Notes held by any
such Person may not be sold without the consent of the Seller,
provided, that the Seller shall not withhold its consent to any
such transfer of Class B Notes described in this clause (ii)
unless determined to be appropriate under other provisions of
this Agreement or such transfer would, in the reasonable opinion
of the Seller, result in the Trust being deemed to be an
association or a publicly traded partnership taxable as a
corporation.
Any sale, assignment, pledge or transfer in violation
of the foregoing restrictions shall be void, but any permitted
assignment shall be recognized by the Issuer Trustee and
Collateral Agent upon written notice thereof.
Section 6.2 New Issuances; Addition of Contracts. (a)
The Seller may from time to time prior to the Commitment
Termination Date, at its sole discretion, subject to the
conditions specified in subsection 6.2(b) below, direct the
Issuer Trustee in writing to issue additional Series of Notes
subject to the conditions specified in this Section 6.2 (each
such issuance, a "New Issuance"). Any such Series of Notes shall
be substantially in the form specified in the related Supplement
and shall bear, upon its face, the designation for the Series to
which it belongs, as selected by the Seller. Except as specified
in the related Supplement, all Notes in the same Class of any
Series shall rank pari passu and be equally and ratably entitled
as provided herein to the benefits hereof (except that the
Additional Credit Enhancement provided for any Notes of any
Series, if any, shall not be available for any other Series)
without preference, priority or distinction on delivery, all in
accordance with terms and provisions of this Agreement and the
related Supplement. In connection with each New Issuance, the
Seller shall, subject to the conditions specified in subsection
6.2(b) below, transfer additional Eligible Contracts and
Applicable Security to the Trust (each such transfer, an
"Addition") as Additional Contracts as of the applicable
Additional Cut Off Date.
(b) The obligation of the Issuer Trustee and the
Collateral Agent to execute and deliver the Supplement related to
any New Issuance (as required by clause (ii) below) is subject to
the satisfaction of the following conditions:
(i) on or before the tenth Business Day immediately
preceding the date upon which the New Issuance is to occur
(unless the parties to be notified agree to a shorter notice
period), the Seller shall have given the Issuer Trustee, the
Collateral Agent, the Servicer, each Indenture Trustee, the
Rating Agency and those providers of Credit Enhancement, if
any, requesting such notice, written notice of the New
Issuance and the related Addition, specifying (A) the
designation of the Series to be issued and, with respect to
such Series: (1) its Initial Principal Amount (or the
method of calculating such Initial Principal Amount), (2)
its Interest Rate (or the method of allocating interest
payments or other cash flows to such Series), if any, (3)
the Enhancement Provider(s), if any, with respect to such
Series and (4) the date upon which the New Issuance is to
occur and (B) with respect to the related Additional
Contracts, (1) the applicable Addition Date, (2) the
Additional Cut Off Date (which shall be the last day of a
Collection Period), (3) the approximate number of Additional
Contracts expected to be added, (4) the approximate
Discounted Contract Balances expected to be outstanding with
respect to the Additional Contracts to be added as of the
Additional Cut Off Date with respect thereto and (5) if such
Additional Contracts are to be Hedged Contracts, the
identity of the Hedging Counterparty and the effective
interest rate under the related hedging transaction, and if
such Additional Contracts are not Hedged Contracts, the
effective interest rate as calculated in accordance with the
definition of "Discounted Contract Balance";
(ii) the Seller shall have delivered to the Issuer
Trustee and the Collateral Agent (x) a Supplement,
satisfying the criteria specified in subsection 6.2(c) and
otherwise in form satisfactory to the Issuer Trustee and the
Collateral Agent, executed by each party to this Agreement,
(y) a Subsequent Purchase Agreement referencing the
Additional Contracts and (z) the Note Documents for such New
Issuance, each satisfying the requirements of Section
11.1(h) hereof and otherwise in form satisfactory to the
Issuer Trustee and the Collateral Agent and executed by each
party thereto;
(iii) if such Series has the benefit of an Additional
Credit Enhancement, the Seller shall have delivered to the
Collateral Agent any applicable Credit Enhancement agreement
executed by each of the parties to such agreement;
(iv) the Issuer Trustee shall have received
confirmation from the Rating Agency that neither the New
Issuance nor the related Addition will result in a Ratings
Effect with respect to any other Series or Class of Notes
issued by the Trust;
(v) the Seller shall have delivered to the Issuer
Trustee, each Indenture Trustee and those providers of
Credit Enhancement, if any, which shall have requested
copies thereof, an Officer's Certificate, dated the date
upon which the New Issuance is to occur, (x) as to the
matters referred to in clauses (vi), (vii), (ix), (x), (xi),
(y) to the effect that the Seller reasonably believes that
the New Issuance and related Addition will not, based on the
facts known to the officer executing the same at the time of
the certification, cause an Event of Default or a
Restricting Event to occur with respect to any Series and
(z) as to the satisfaction of all of the conditions set
forth in this Section 6.2(b);
(vi) Within the time period specified in the applicable
Supplement, if any (otherwise as specified in subsection
2.1(b)(i)), the Seller shall have taken such actions as are
necessary to perfect Trust's and the Collateral Agent's
respective interests in such Additional Contracts and any
related Equipment or Applicable Security to the extent
specified in subsection 2.1(b) and shall deliver to the
Issuer Trustee and the Collateral Agent Opinions of Counsel
specified in the Supplement;
(vii) the Seller shall have deposited in the Collection
Account, Collections with respect to the related Additional
Contracts since the related Additional Cut Off Date;
(viii) the Seller shall have delivered to the Issuer
Trustee, the Collateral Agent, each Indenture Trustee, the
Rating Agency and certain providers of Credit Enhancement,
if any, an Opinion of Counsel acceptable to the Issuer
Trustee that for Federal income tax purposes (x) following
the New Issuance the Trust will not be deemed to be an
association (or publicly traded partnership) taxable as a
corporation, (y) the New Issuance will not affect the tax
characterization as debt of Notes of any outstanding Series
or Class issued by the Trust for which an Opinion of Counsel
has been provided that such Notes are debt for Federal
income tax purposes and (z) the Class A Notes of such new
Series will, as of their issuance date, be characterized as
debt for Federal income tax purposes;
(ix) the Seller shall be deemed to represent and
warrant that (v) as of the Addition Date, Schedule 2 to the
Supplement and the computer file or microfiche or written
list delivered pursuant to Section 2.1 is an accurate and
complete listing in all material respects of all the
Additional Contracts as of the Additional Cut Off Date and
the information contained therein with respect to the
identity of such Additional Contracts is true and correct in
all material respects as of the Additional Cut Off Date, (w)
as of the Addition Date, the representations and warranties
set forth in Section 2.5 are true and correct with respect
to the Additional Contracts and the related transfer, (x)
each Additional Contract is, as of the Additional Cut Off
Date, an Eligible Contracts, (y) no selection procedures
reasonably believed by the Seller to be materially adverse
to the interests of the Noteholders were utilized in
selecting the Additional Contracts from the available
Eligible Contracts and (z) as of the Addition Date, the
Seller is not insolvent and will not be rendered insolvent
by transferring any such Additional Contract or security
interest therein to the Trust;
(x) the sum of (i) the excess of (x) the ADCB over (y)
the Excess Concentration Amount for the Addition (such
excess, the "Net Pool Balance") and (ii) the aggregate
amounts (other than Investment Earnings) on deposit in the
Reserve Account shall not be less, after giving effect to
such New Issuance and related Addition, than the Aggregate
Principal Amount;
(xi) immediately prior to the New Issuance and after
giving effect thereto, no Restricting Event or Event of
Default shall have occurred or be continuing; and
(xii) Newcourt shall have deposited into the Reserve
Account the applicable Minimum Deposit (the aggregate
outstanding amount deposited by Newcourt into the Reserve
Account (after giving effect to reimbursements pursuant to
Sections 4.3(d) and (e)) at any time, the "Newcourt
Advance").
Upon satisfaction of such conditions, and any additional
conditions specified in the Supplement or Note Documents to be
executed in connection with such New Issuance, the Issuer Trustee
shall execute such Series of Notes dated the related Closing Date
pursuant to the Applicable Indenture and Note Agreements for such
Series. There is no limit to the number of New Issuances that
may be issued under this Agreement.
(c) In conjunction with a New Issuance, the parties
hereto shall execute a Supplement, which shall specify the
relevant terms with respect to any newly issued Series of Notes,
which may include without limitation: (i) its name or
designation, (ii) an Initial Principal Amount or the method of
calculating the Initial Principal Amount, (iii) the Interest Rate
(or formula for the determination thereof), (iv) the Closing
Date, (v) the Rating Agency rating such Series, (vi) the name of
the Clearing Agency, if any, (vii) the interest payment date or
dates and the date or dates from which interest shall accrue,
(viii) the method of allocating amounts to such Series (which
shall be consistent with Article IV) and, if applicable, the
method by which the principal amount of Notes of such Series
shall amortize or accrue, (ix) the names of any accounts to be
used by such Series and the terms governing the operation of any
such accounts, (x) the terms of any Additional Credit Enhancement
with respect to such Series, (xi) the Additional Credit
Enhancement provider(s), if applicable, (xii) the terms on which
the Notes of such Series may be repurchased or remarketed to
other investors, (xiii) any deposit into any account provided for
such Series, (xiv) the number of Classes of such Series, and if
more than one Class, the rights and priorities of each such Class
and (xvii) any other relevant terms of such Series. The terms of
such Supplement may modify or amend the terms of this Agreement
solely as applied to such new Series.
ARTICLE VII
OTHER MATTERS RELATING TO SELLER
Section 7.1 Liability of Seller. The Seller shall be
liable in accordance herewith to the extent, and only to the
extent, of the obligations specifically undertaken by the Seller
hereunder.
Section 7.2 Merger or Consolidation of, or Assumption
of the Obligations of, Seller, etc.
(a) Seller shall not consolidate with or merge into
any other Person or convey or transfer its properties and assets
substantially as an entirety to any Person, unless:
(i) the Person formed by such consolidation or into
which Seller is merged or the Person which acquires by
conveyance or transfer the properties and assets of Seller
substantially as an entirety shall be, if Seller is not the
surviving entity, organized and existing under the laws of
the United States of America or any State or the District of
Columbia and shall expressly assume, by an agreement
supplemental hereto, executed and delivered to the Issuer
Trustee and the Collateral Agent, in form satisfactory to
each of the Issuer Trustee and the Collateral Agent, the
performance of every covenant and obligation of Seller, as
applicable hereunder, and shall benefit from all the rights
granted to Seller, as applicable hereunder;
(ii) the Seller shall have delivered to the Issuer
Trustee, the Collateral Agent, each Indenture Trustee and
each Credit Enhancer (x) an Officer's Certificate of the
Seller and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance or transfer and such
supplemental agreement comply with this Section 7.2 and that
all conditions precedent herein provided for relating to
such transaction have been complied with and, in the case of
the Opinion of Counsel, that such supplemental agreement is
legal, valid and binding with respect to Seller and (y) a
Tax Opinion; and
(iii) the Seller shall have delivered notice of such
consolidation, merger, conveyance or transfer to each Rating
Agency and, with respect to each Series that is rated by a
Rating Agency, the Rating Agency Condition shall have been
satisfied and, with respect to each other Series, the
consent thereto of the Required Holders has been obtained.
(b) The obligations of the Seller hereunder shall not
be assignable nor shall any Person succeed to the obligations of
Seller hereunder except for mergers, consolidations, assumptions
or transfers in accordance with the provisions of the foregoing
paragraph.
Section 7.3 Limitation on Liability of Seller. Except
as expressly provided herein, neither the Seller nor any of the
directors, officers, employees and agents of the Seller shall be
under any liability to the Trust, the Issuer Trustee, the
Collateral Agent, the Noteholders or any other Person for any
action taken or for refraining from the taking of any action
pursuant to this Agreement whether arising from express or
implied duties under this Agreement, it being expressly
understood that all such liability is expressly waived and
released as a condition of, and as consideration for, the
execution of this Agreement and any Supplement and the issuance
of the Notes; provided, however, that this provision shall not
protect Seller or any such Person against any liability which
would otherwise be imposed by reason of willful misfeasance, bad
faith or gross negligence in the performance of duties or by
reason of willful misconduct hereunder. The Seller and any
director, officer, employee and agent of the Seller may rely in
good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters
arising hereunder.
Section 7.4 Liabilities. Notwithstanding Section 3803
of the Business Trust Statute, a creditor of the Trust may seek
personal satisfaction from the Seller to the extent that the
Trust Assets are insufficient to satisfy the creditor's claims as
though this Agreement created a partnership under the Delaware
Revised Uniform Limited Partnership Act in which the Seller is
the general partner. Moreover, the Seller agrees to be liable to
and to indemnify and hold harmless the Trust, the Issuer Trustee
and the Collateral Agent from and against any loss, liability,
reasonable expense, damage or injury suffered or sustained by
reason of any acts or omissions or alleged acts or omissions
arising out of or based upon the arrangement created by this
Agreement as though this Agreement created a partnership under
the Delaware Revised Uniform Limited Partnership Act in which the
Seller is a general partner and pursuant to which it agreed to
provide the foregoing indemnity; provided, however, that the
Seller shall not be liable to or indemnify or hold harmless the
Issuer Trustee or any of its officers, directors, employees or
agents as to any loss, liability, expense, damage or injury
suffered or sustained by reason of fraud, negligence or willful
misconduct on the part of the Issuer Trustee or any of its
officers, directors, employees or agents or be liable to or
indemnify or hold harmless the Collateral Agent or any of its
officers, directors, employees or agents as to any loss,
liability, expense, damage or injury suffered or sustained by
reason of fraud, negligence or willful misconduct on the part of
the Collateral Agent or any of its officers, directors, employees
or agents; and provided further, however, that, in no event will
the Seller be liable, directly or indirectly, for or in respect
of any indebtedness evidenced or created by any Note, recourse as
to which shall be limited solely to the assets of the Trust
allocated for the payment thereof as provided in this Agreement
and any applicable Supplement. The indemnification contained in
this Section 7.4 shall survive the resignation or removal of the
Issuer Trustee or the Collateral Agent, as the case may be, and
the termination of the Trust.
ARTICLE VIII
OTHER MATTERS RELATING TO THE SERVICER
Section 8.1 Liability of the Servicer. The Servicer
shall be liable in accordance herewith only to the extent of the
obligations specifically undertaken by the Servicer in such
capacity herein.
Section 8.2 Merger or Consolidation of, or Assumption
of the Obligations of, the Servicer. The Servicer shall not
consolidate with or merge into any other Person or convey or
transfer its properties and assets substantially as an entirety
to any Person, unless:
(i) the Person formed by such consolidation or into
which the Servicer is merged or the Person which acquires by
conveyance or transfer the properties and assets of the
Servicer substantially as an entirety shall be if the
Servicer is not the surviving entity, organized and existing
under the laws of the United States of America or any State
or the District of Columbia or of Canada or any Province or
Territory thereof and shall expressly assume, by an
agreement supplemental hereto, executed and delivered to the
Issuer Trustee and the Collateral Agent in form satisfactory
to each of the Issuer Trustee and the Collateral Agent, the
performance of every covenant and obligation of the Servicer
hereunder, and shall benefit from all the rights granted to
the Servicer, as applicable hereunder;
(ii) the Servicer has delivered to the Issuer
Trustee, the Collateral Agent and each Credit Enhancer an
Officer's Certificate and an Opinion of Counsel each stating
that such consolidation, merger, conveyance or transfer and
such supplemental agreement comply with this Section 8.2 and
that all conditions precedent herein provided for relating
to such transaction have been complied with and, in the case
of the Opinion of Counsel, that such supplemental agreement
is legal, valid and binding with respect to the Servicer;
(iii) the Servicer shall have delivered notice of such
consolidation, merger, conveyance or transfer to each of the
Rating Agencies; and
(iv) after giving effect thereto, no Event of Default
or an event which with notice or lapse of time or both would
constitute an Event of Default shall have occurred.
Section 8.3 Limitation on Liability of the Servicer
and Others. Except as provided herein, neither the Servicer nor
any of the directors or officers or employees or agents of the
Servicer shall be under any liability to the Trust, the Issuer
Trustee, the Collateral Agent, the Noteholders or any other
Person for any action taken or for refraining from the taking of
any action pursuant to this Agreement whether arising from
express or implied duties under this Agreement; provided,
however, that this provision shall not protect the Servicer or
any such Person against any liability which would otherwise be
imposed by reason of its willful misfeasance, bad faith or gross
negligence in the performance of duties or by reason of its
willful misconduct hereunder. The Servicer and any director or
officer or employee or agent of the Servicer may rely in good
faith on any document of any kind prima facie properly executed
and submitted by any Person respecting any matters arising
hereunder.
Section 8.4 Indemnification of the Seller, the Trust,
the Issuer Trustee, the Collateral Agent and each Indenture
Trustee. The Servicer shall indemnify and hold harmless the
Seller, the Trust, the Issuer Trustee, each Indenture Trustee and
the Collateral Agent from and against any loss, liability,
expense, damage or injury suffered or sustained by reason of any
acts, omissions or alleged acts or omissions of the Servicer with
respect to activities of the Trust, the Issuer Trustee or the
Collateral Agent for which the Servicer is responsible pursuant
to this Agreement, including those arising from acts or omissions
of the Servicer pursuant to this Agreement, including, but not
limited to any judgment, award, settlement, reasonable attorneys'
fees and other costs or expenses incurred in connection with the
defense of any actual or threatened action, proceeding or claim.
In addition, the Servicer shall indemnify and hold harmless the
Issuer Trustee from and against any loss, liability, expense,
damage or injury suffered or sustained by reason of any acts or
omissions or alleged acts or omissions of the Issuer Trustee
pursuant to this Agreement or arising out of the Trust created
hereby. Notwithstanding the foregoing, (i) the Servicer shall
not indemnify the Seller, the Trust, the Issuer Trustee or the
Collateral Agent if such acts, omissions or alleged acts
constitute fraud, negligence or breach of fiduciary duty by such
Person; (ii) the Servicer shall not indemnify the Seller, the
Trust, the Collateral Agent (or, directly or indirectly, any
Noteholders or any Note Owners) for any liabilities, costs or
expenses of the Seller or the Trust with respect to any action
taken by the Collateral Agent at the request of any Noteholders;
(iii) the Servicer shall not indemnify the Seller or the Trust
(or, directly or indirectly, any Noteholders or any Note Owners)
as to any losses, claims or damages incurred by any of them in
their capacities as investors, including without limitation
losses incurred as a result of Defaulted Contracts which are
written off as uncollectible; and (iv) the Servicer shall not
indemnify the Trust, the Collateral Agent (or, directly or
indirectly, any Noteholders or the Note Owners) for any
liabilities, costs or expenses of the Trust, the Issuer Trustee,
the Collateral Agent (or, directly or indirectly, any Noteholders
or the Note Owners) arising under any tax law, including without
limitation any federal, state or local income or franchise taxes
or any other tax imposed on or measured by income (or any
interest or penalties with respect thereto or arising from a
failure to comply therewith) required to be paid by the Trust,
such Noteholders or such Note Owners in connection herewith to
any taxing authority. The provisions of this indemnity shall run
directly to and be enforceable by an injured party subject to the
limitations hereof.
Any indemnification pursuant to this Section shall not
be payable from the Trust Assets.
The obligations of the Servicer under this Section 8.4
shall survive the termination of the Trust and the resignation or
removal of the Issuer Trustee.
Section 8.5 The Servicer Not to Resign. The Servicer
shall not resign from the obligations and duties hereby imposed
on it except upon determination that (i) the performance of its
duties hereunder is or becomes impermissible under applicable law
and (ii) there is no reasonable action which the Servicer could
take to make the performance of its duties hereunder permissible
under applicable law. Any such determination permitting the
resignation of the Servicer shall be evidenced as to clause (i)
above by an Opinion of Counsel to such effect delivered to the
Issuer Trustee and the Collateral Agent. No such resignation
shall become effective until the Collateral Agent or a Successor
Servicer shall have assumed the responsibilities and obligations
of the Servicer in accordance with Section 10.2. If the
Collateral Agent is unable within 120 days of the date of such
determination to appoint a Successor Servicer, the Collateral
Agent shall serve as Successor Servicer hereunder subject to the
provisions of Section 10.2 hereof.
Section 8.6 Access to Certain Documentation and
Information Regarding the Contracts. The Servicer shall provide
to the Collateral Agent access to the documentation regarding the
Contracts in the Contract Pool and the related Equipment in such
cases where the Collateral Agent is required in connection with
the enforcement of the rights of the Noteholders, or by
applicable statutes or regulations to review such documentation,
such access being afforded without charge but only (i) upon
reasonable request, (ii) during normal business hours, (iii)
subject to the Servicer's normal security and confidentiality
procedures and (iv) at offices designated by the Servicer.
Section 8.7 Delegation of Duties. Any delegation of
duties permitted under Article VIII shall not relieve the
Servicer of its liability and responsibility with respect to such
duties, and shall not constitute a resignation within the meaning
of Section 8.5.
Section 8.8 Examination of Records. The Servicer
shall clearly and unambiguously identify each Contract in the
Contract Pool and the related Equipment in its computer or other
records to reflect that such Contracts and Equipment have been
transferred by the Seller to the Trust pursuant to this
Agreement.
ARTICLE IX
EVENTS OF DEFAULT
Section 9.1 Events of Default. If any one of the
following events (or any other events specified in any
Supplement) shall occur with respect to any Series:
(a) failure to pay the then outstanding principal
amount of any Note, if any, on its related Maturity Date; or
(b) (i) failure on the part of Seller to make any
payment or deposit required by the terms of this Agreement
or any Supplement within three Business Days after the date
such payment or deposit is required to be made or (ii)
failure on the part of the Seller, the Trust or the Issuer
Trustee to observe or perform any other covenants or
agreements of such Person set forth in this Agreement, any
Supplement, any Indenture or any Note Document which failure
has a material adverse effect on the Noteholders and which
continues unremedied for a period of 60 days after written
notice; provided, that no such 60-day cure period shall
apply in the case of a failure by the Seller to accept
reassignment of Ineligible Contracts which were the subject
of a breach of representation or warranty as provided in
Section 2.4(b) or (d) and further provided, that only a five
day cure period shall apply in the case of a failure by the
Seller, the Trust or the Issuer Trustee to observe its
covenant not to grant a security interest or otherwise
intentionally create a Lien on the Contracts; or
(c) any representation or warranty made by the Seller,
the Trust or the Issuer Trustee in this Agreement, any
Supplement, any Indenture or any Note Document or any
information required to be given by the Seller to the
Collateral Agent to identify the Contracts pursuant to
Section 2.1 or 2.6, shall prove to have been incorrect in
any material respect when made or when delivered, which
continues to be incorrect in any material respect for a
period of 60 days after written notice and as a result of
which the interests of the Noteholders are materially and
adversely affected and continue to be materially and
adversely affected for such period; provided, however, that
an Event of Default pursuant to this Section 9.1(c) shall
not be deemed to have occurred hereunder if the Seller has
repurchased the related Contract, or all of such Contracts,
if applicable, during such period in accordance with the
provisions hereof; or
(d) the occurrence of an Insolvency Event relating to
Newcourt, the Seller, the Trust or the Servicer; or
(e) the Trust shall become an "investment company"
within the meaning of the Investment Company Act of 1940, as
amended; or
(f) the Seller or any other Person Transfers any
portion of the Non-Transferrable Notes or any economic
interest in the Non-Transferrable Notes in violation of the
restrictions on transfer in this Agreement (a "Transfer
Event"); or
(g) an additional Event of Default as specified in any
Supplement;
then, and in any such event described in subparagraph (a), (b),
(c), (f) or, unless otherwise specified in the related
Supplement, (g), after the applicable grace period set forth in
such subparagraphs, either the Collateral Agent or the Required
Percentage of Holders, by written notice to the Seller, the
Servicer and the Issuer Trustee (and the Collateral Agent, if
such notice is given by the Required Percentage of Holders) may
declare that an event of default (an "Event of Default") has
occurred as of the date of such notice and in the case of any
event described in subparagraph (d) or (e) an Event of Default
shall be deemed to have occurred without any notice or other
action on the part of the Collateral Agent or the Noteholders
immediately upon the occurrence of such event. Upon the
occurrence of an Event of Default, the principal amount of and
unpaid interest on the Notes of all Classes and all Series shall
be immediately due and payable, whereupon such amount shall be
immediately due and payable, without presentment, demand, protest
or other notice, all of which are hereby waived. Notice of any
Event of Default shall be given by the Servicer to the Rating
Agencies.
In determining whether the Required Percentage of
Holders desires to declare the occurrence of an Event of Default,
the Collateral Agent may conclusively rely, without independent
investigation, upon the information supplied to the Collateral
Agent in each Notice of Default delivered pursuant to a Note
Document. The Collateral Agent shall promptly notify the Issuer
Trustee and each Indenture Trustee of any such acceleration or
any rescission thereof.
Upon the occurrence of an Event of Default, Available
Amounts shall be allocated and paid as provided in Section 4.4.
Subject to the provisions of Sections 9.2 and 10.1 (if,
applicable), the Collateral Agent shall not be required to take
any further action upon the occurrence and during the continuance
of an Event of Default.
Section 9.2 Additional Rights Upon the Occurrence of
Certain Events. (a) If an Insolvency Event occurs with respect
to the Seller or a Transfer Event occurs, on the day of the
Insolvency Event or Transfer Event, the Seller shall promptly
give notice to the Collateral Agent thereof. Within 15 days
after a Responsible Officer of the Collateral Agent receives
notice of the Insolvency Event or Transfer Event, the Collateral
Agent shall (i) publish a notice in an Authorized Newspaper that
the Insolvency Event or Transfer Event, as the case may be, has
occurred and that the Collateral Agent intends to sell, dispose
of or otherwise liquidate the Trust Assets in a commercially
reasonable manner and on commercially reasonable terms and (ii)
send written notice to the Noteholders describing the provisions
of this Section 9.2 and requesting instructions from such
Holders. If after 30 days from the day notice pursuant to clause
(i) above is first published (the "Publication Date"), the
Collateral Agent shall not have received written instructions
from the Controlling Party to the effect that the Collateral
Agent shall not sell, dispose of, or otherwise liquidate the
Trust Assets, the Collateral Agent, subject to the following
proviso, shall, or shall instruct the Servicer to, proceed to
take such preparatory actions as the Collateral Agent may deem
appropriate in order to sell, dispose of, or otherwise liquidate
the Trust Assets in a commercially reasonable manner and on
commercially reasonable terms, which shall include the
solicitation of competitive bids. The Collateral Agent may
obtain a prior determination from any bankruptcy trustee,
conservator or receiver that the terms and manner of any proposed
sale, disposition or liquidation are commercially reasonable.
The provisions of Sections 9.1 and 9.2 shall not be deemed to be
mutually exclusive.
(b) The proceeds from the sale, disposition or
liquidation of the Trust Assets pursuant to subsection (a) above
shall be treated as Collections on the Contracts in the Contract
Pool and shall be allocated and deposited in accordance with the
provisions of Article IV. On the day following the Distribution
Date on which such proceeds are scheduled to be distributed to
the Noteholders, the Trust shall terminate.
Section 9.3 Limitation on Suits. No Holder shall have
any right by virtue of any provisions of this Agreement to
institute any suit, action or proceeding in equity or at law upon
or under or with respect to this Agreement, unless such Holder
previously shall have made, and unless the Holders of Notes
aggregating more than 66-2/3% of the Principal Amount of any
Series affected shall have made, written request upon the
Collateral Agent to institute such action, suit or proceeding in
its own name as Collateral Agent hereunder and shall have offered
to the Collateral Agent such reasonable indemnity as it may
require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Collateral Agent, for 60
days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such
action, suit or proceeding; it being understood and intended, and
being expressly covenanted by each Holder with every other Holder
and the Collateral Agent, that no one or more Holders shall have
the right in any manner whatever by virtue or by availing itself
or themselves of any provisions of this Agreement to affect,
disturb or prejudice the rights of the Holders of any other of
the Notes, or to obtain or seek to obtain priority over or
preference to any other such Holder, or to enforce any right
under this Agreement, except in the manner herein provided and
for the equal, ratable and common benefit of all Holders. For
the protection and enforcement of the provisions of this Section
9.3, each and every Holder and the Collateral Agent shall be
entitled to such relief as can be given either at law or in
equity.
ARTICLE X
SERVICER DEFAULTS
Section 10.1 Servicer Defaults. If any one of the
following events (a "Servicer Default") shall occur and be
continuing:
(a) any failure by the Servicer to make any payment,
transfer or deposit or to give instructions or notice to the
Issuer Trustee or the Collateral Agent pursuant to Article
IV or to make any required drawing, withdrawal, or payment
under any Credit Enhancement, or to deliver any required
Monthly Report hereunder on or before the date occurring two
Business Days after the date such payment, transfer,
deposit, withdrawal or drawing, or such instruction or
notice or report is required to be made or given, as the
case may be, under the terms of this Agreement; or
(b) failure on the part of the Servicer duly to
observe or perform in any material respect any other
covenants or agreements of the Servicer set forth in this
Agreement or any Supplement which has a material adverse
effect on the Noteholders, which continues unremedied for a
period of 30 days after the first to occur of (i) the date
on which written notice of such failure requiring the same
to be remedied shall have been given to the Servicer by the
Collateral Agent, or to the Servicer and the Collateral
Agent by the Noteholders or the Applicable Indenture Trustee
on behalf of such Holders of Notes aggregating not less than
25% of the Principal Amount of any Series adversely affected
thereby and (ii) the date on which a Responsible Officer of
the Servicer becomes aware thereof and such failure
continues to materially adversely affect such Noteholders
for such period; or
(c) any representation, warranty or certification made
by the Servicer in this Agreement or any Supplement or in
any certificate delivered pursuant to this Agreement or any
Supplement shall prove to have been incorrect when made,
which has a material adverse effect on the Noteholders and
which continues to be incorrect in any material respect for
a period of 30 days after the first to occur of (i) the date
on which written notice of such incorrectness requiring the
same to be remedied shall have been given to the Servicer
and the Issuer Trustee by the Collateral Agent, or to the
Servicer, the Issuer Trustee and the Collateral Agent by the
Noteholders or by the Applicable Indenture Trustee on behalf
of Holders of Notes aggregating not less than 25% of the
Principal Amount of any Series adversely affected thereby
and (ii) the date on which a Responsible Officer of the
Servicer becomes aware thereof, and such incorrectness
continues to materially adversely affect such Holders for
such period; or
(d) an Insolvency Event shall occur with respect to
the Servicer; or
(e) the Servicer delegates any of its duties hereunder
except to the extent such delegation is permitted hereunder
and such delegation continues unremedied for 15 days;
then, so long as such Servicer Default shall not have been
remedied, either the Collateral Agent, or the Controlling Party,
by written notice to the Servicer and the Issuer Trustee (and to
the Collateral Agent and Credit Enhancers if given by the
Noteholders) (a "Termination Notice"), may terminate all of the
rights and obligations of the Servicer as Servicer under this
Agreement. After receipt by the Servicer of such Termination
Notice, and on the date that a Successor Servicer shall have been
appointed by the Collateral Agent pursuant to Section 10.2, all
authority and power of the Servicer under this Agreement shall
pass to and be vested in a Successor Servicer; and, without
limitation, the Collateral Agent is hereby authorized and
empowered (upon the failure of the Servicer to cooperate) to
execute and deliver, on behalf of the Servicer, as attorney-in-
fact or otherwise, all documents and other instruments upon the
failure of the Servicer to execute or deliver such documents or
instruments, and to do and accomplish all other acts or things
necessary or appropriate to effect the purposes of such transfer
of servicing rights. Subject to Section 12.2(c), the Servicer
agrees to cooperate with the Collateral Agent and such Successor
Servicer in effecting the termination of the responsibilities and
rights of the Servicer to conduct servicing hereunder, including
without limitation, the transfer to such Successor Servicer of
all authority of the Servicer to service the Trust Assets
provided for under this Agreement, including, without limitation,
all authority over all Collections which shall on the date of
transfer be held by the Servicer for deposit, or which have been
deposited by the Servicer, in any Collection Account, Reserve
Account or Termination Account, or which shall thereafter be
received with respect to the Trust Assets, and in assisting the
Successor Servicer and in enforcing all rights to Insurance
Proceeds. The Servicer shall promptly transfer the Contract
Files and its electronic records relating to the Contracts in the
Contract Pool to the Successor Servicer in such electronic form
as the Successor Servicer may reasonably request and shall
promptly transfer to the Successor Servicer all other records,
correspondence and documents necessary for the continued
servicing of the Contracts in the Contract Pool in the manner and
at such times as the Collateral Agent or the Successor Servicer
shall reasonably request. To the extent that compliance with
this Section 10.1 shall require the Servicer to disclose to the
Successor Servicer information of any kind which the Servicer
reasonably deems to be confidential, the Successor Servicer shall
be required to enter into such customary licensing and
confidentiality agreements as the Servicer shall deem necessary
to protect its interest. The Servicer shall, on the date of any
servicing transfer, transfer all of its rights and obligations,
if any, in respect of any Enhancement to the Successor Servicer.
In connection with any servicing transfer, all reasonable costs
and expenses (including reasonable attorneys' fees) incurred in
connection with transferring the Contracts in the Contract Pool
and the other Trust Assets to the Successor Servicer and amending
this Agreement to reflect such succession as Successor Servicer
pursuant to this Section 10.1 and Section 10.2 shall be paid by
the Servicer (unless the Collateral Agent is acting as the
Servicer, in which case the original Servicer) upon presentation
of reasonable documentation of such costs and expenses.
Notwithstanding the foregoing, a delay in or failure of
performance referred to in subsection 10.1(a) for a period of
five Business Days, or under subsection 10.1(b), (c) or (e) for a
period of 60 days, in each case in addition to any grace period
specified in such subsections, shall not constitute a Servicer
Default if such delay or failure could not have been prevented by
the exercise of reasonable diligence by the Servicer and such
delay or failure was caused by an act of God or public enemy,
acts of declared or undeclared war, public disorder, rebellion,
riot or sabotage, epidemics, landslides, lightning, fire,
hurricanes, tornadoes, earthquakes, nuclear disasters or
meltdowns, floods, power outages, bank closings, communications
malfunction, computer malfunction or other electronic system
malfunction or similar causes. The preceding sentence shall not
relieve the Servicer from using its best efforts to perform its
obligations in a timely manner in accordance with the terms of
this Agreement and the Servicer shall provide the Issuer Trustee,
the Collateral Agent, the Seller and certain providers of Credit
Enhancement with an Officer's Certificate giving prompt notice of
such failure or delay by it, together with a description of the
cause of such failure or delay and its efforts so to perform its
obligations. The Servicer shall immediately notify the
Collateral Agent in writing of any Servicer Default.
Section 10.2 Collateral Agent to Act; Appointment of
Successor. (a) On and after the receipt by the Servicer of a
Termination Notice pursuant to Section 10.1, the Servicer shall
continue to perform all servicing functions under this Agreement
until the date specified in the Termination Notice or otherwise
specified by the Collateral Agent in writing or, if no such date
is specified in such Termination Notice or otherwise specified by
the Collateral Agent, until a date mutually agreed upon by the
Servicer and the Collateral Agent. The Collateral Agent shall as
promptly as possible after the giving of a Termination Notice
appoint a successor servicer (the "Successor Servicer"), and such
Successor Servicer shall accept its appointment by a written
assumption in a form acceptable to the Collateral Agent and the
Issuer Trustee. If the Collateral Agent within 60 days of
receipt of a Termination Notice is unable to obtain any bids from
eligible Servicers and the Servicer delivers an Officer's
Certificate to the effect that it cannot in good faith cure the
Servicer Default which gave rise to a transfer of servicing, then
the Collateral Agent shall offer the Seller the right to accept
retransfer of all the Trust Assets and the Seller may accept
retransfer of all the Trust Assets, provided, however, that if
the long-term unsecured debt obligations of the Seller are not
rated at the time of such purchase at least investment grade by
each rating agency providing a rating in respect of such long-
term unsecured debt obligations, no such retransfer shall occur
unless the Seller shall deliver an Opinion of Counsel reasonably
acceptable to the Collateral Agent that such retransfer would not
constitute a fraudulent conveyance of the Seller. The retransfer
deposit amount for such a retransfer shall be equal to the sum of
the Aggregate Principal Amount of all Series on the applicable
Distribution Date plus accrued and unpaid interest thereon at the
applicable Interest Rate (together with, if applicable, interest
on interest amounts that were due and not paid on a prior date),
through the date of such retransfer. In the event that a
Successor Servicer has not been appointed and has not accepted
its appointment at the time when the Servicer ceases to act as
Servicer, the Collateral Agent without further action shall
automatically be appointed the Successor Servicer.
Notwithstanding the above, the Collateral Agent shall, if it is
legally unable so to act, petition a court of competent
jurisdiction to appoint any established financial institution
having a net worth of not less than $50,000,000 and whose regular
business includes the servicing of Contracts as the Successor
Servicer hereunder.
(b) Upon its appointment, the Successor Servicer shall
be the successor in all respects to the Servicer with respect to
servicing functions under this Agreement and shall be subject to
all the responsibilities, duties and liabilities relating thereto
placed on the Servicer by the terms and provisions hereof, and
all references in this Agreement to the Servicer shall be deemed
to refer to the Successor Servicer. Any Successor Servicer, by
its acceptance of its appointment, will automatically agree to be
bound by the terms and provisions of any Credit Enhancement to
the extent that such terms apply to the Servicer.
(c) In connection with such appointment and
assumption, the Collateral Agent shall be entitled to such
compensation, or may make such arrangements for the compensation
of the Successor Servicer out of Collections, as it and such
Successor Servicer shall agree; provided, however, that no such
compensation shall be in excess of the Servicing Fee.
(d) All authority and power granted to the Servicer
under this Agreement shall automatically cease and terminate upon
termination of the Trust pursuant to Section 13.1 and shall pass
to and be vested in the Seller and, without limitation, the
Seller is hereby authorized and empowered to execute and deliver,
on behalf of the Servicer, as attorney-in-fact or otherwise, all
documents and other instruments, and to do and accomplish all
other acts or things necessary or appropriate to effect the
purposes of such transfer of servicing rights. The Servicer
agrees to cooperate with the Seller in effecting the termination
of the responsibilities and rights of the Servicer to conduct
servicing on the Contracts in the Contract Pool.
Section 10.3 Notification. Upon the Servicer becoming
aware of the occurrence of any Servicer Default, the Servicer
shall give prompt written notice thereof to the Collateral Agent
and the Collateral Agent shall give notice to the Indenture
Trustees and the Issuer Trustee. Upon any termination or
appointment of a Successor Servicer pursuant to this Article X,
the Collateral Agent shall give prompt written notice thereof to
the Indenture Trustees and the Issuer Trustee. A copy of any
notice given pursuant to this Section 10.3 shall be delivered to
each Rating Agency.
Section 10.4 Waiver of Past Defaults. The Controlling
Party may, on behalf of all Noteholders, waive any default by the
Servicer or the Seller in the performance of its obligations
hereunder and its consequences, except a default in the failure
to make any required deposits or payments in accordance with
Article IV, provided, however, that no such waiver shall affect
any rights of, or obligations to, any Credit Enhancer hereunder.
Upon any such waiver of a past default, such default shall cease
to exist, and any default arising therefrom shall be deemed to
have been remedied for every purpose of this Agreement. No such
waiver shall extend to any subsequent or other default or impair
any right consequent thereon except to the extent expressly so
waived.
ARTICLE XI
THE ISSUER TRUSTEE
Section 11.1 Duties of Issuer Trustee.
(a) The Issuer Trustee undertakes to perform such
duties and only such duties as are specifically set forth in this
Agreement, and no implied duties or covenants shall be read into
this Agreement against the Issuer Trustee.
(b) The Issuer Trustee, upon receipt of all
resolutions, certificates, statements, opinions, reports,
documents, orders or other instruments furnished to the Issuer
Trustee which are specifically required to be furnished pursuant
to any provision of this Agreement, shall examine them to
determine whether they conform to the requirements of this
Agreement. The Issuer Trustee shall give prompt written notice
to each Indenture Trustee and, for so long as the Issuer Trustee
shall be the registrar for the Subordinated Notes, each Holder of
a Class B Note or Class C Note, of any material lack of
conformity of any such instrument to the applicable requirements
of this Agreement discovered by the Issuer Trustee which would
entitle a specified percentage of the Holders to take any action
pursuant to this Agreement. Notwithstanding the foregoing, the
Issuer Trustee shall have no obligation to independently
calculate, recompute, verify or confirm any information received
from the Servicer or the Collateral Agent.
(c) No provision of this Agreement shall be construed
to relieve the Issuer Trustee from liability for its own grossly
negligent action, its own grossly negligent failure to act or its
own misconduct; provided, however, that the Issuer Trustee shall
not be personally liable for an error of judgment made in good
faith by a Responsible Officer or Responsible Officers of the
Issuer Trustee, unless it shall be proved that the Issuer Trustee
was negligent in ascertaining the pertinent facts.
(d) The Issuer Trustee shall not be required to expend
or risk its own funds or otherwise incur financial liability in
the performance of any of its duties hereunder, or in exercise of
any of its rights or powers, if there is reasonable ground for
believing that the repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it,
and none of the provisions contained in this Agreement shall in
any event require the Issuer Trustee to perform, or be
responsible for the manner of performance of, any of the
obligations of the Seller, the Servicer or the Collateral Agent
under this Agreement.
(e) Except for actions expressly authorized by this
Agreement, the Issuer Trustee shall take no action reasonably
likely to impair the interests of the Trust in the Trust Assets
now existing or hereafter arising or to impair the value of any
Contract in the Contract Pool.
(f) Except as expressly provided in this Agreement,
the Issuer Trustee shall have no power to vary the corpus of the
Trust, including, without limitation, the power to (i) accept any
substitute obligation for a Contract initially assigned to the
Trust under Section 2.1 or 6.2, (ii) add any other investment,
obligation or security to the Trust or (iii) withdraw from the
Trust any Contracts, except for a withdrawal permitted under
subsection 2.4(d) or 2.4(e), Article IV, or Section 9.2 or 13.1.
(g) If the Seller has agreed to transfer any of its
Contracts to another Person, upon the written request of the
Seller, the Issuer Trustee, on behalf of the Trust, will enter
into such intercreditor agreements with the transferee of such
Contracts as the Seller shall request; provided, that the Seller
shall have delivered to the Issuer Trustee (i) an Officer's
Certificate to the effect that such intercreditor agreements (x)
are customary and necessary to identify the rights of the Trust
and such other Person, as the case may be, in the Seller's
Contracts and (y) could not reasonably be expected to adversely
affect the interests of the Noteholders and (ii) an Opinion of
Counsel on any matters relating to such intercreditor agreement,
reasonably requested by the Issuer Trustee and in form and
substance satisfactory to the Issuer Trustee.
(h) The Issuer Trustee is authorized and directed to
execute and deliver on behalf of the Trust each Note Document and
each Supplement to which the Trust is to be a party and each
certificate or other document attached as an exhibit to or
contemplated by any Note Document or any Supplement to which the
Trust is to be a party, or an amendment thereto or other
agreement, in each case, in such form as the Seller shall approve
as evidenced conclusively by the delivery of such certificates
and documents to the Issuer Trustee for the Issuer Trustee's
execution thereof. In addition to the foregoing, the Issuer
Trustee is authorized, but shall not be obligated, to take all
actions required of the Trust pursuant to this Agreement, any
Note Document or any Supplement. The Issuer Trustee is further
authorized from time to time to take such action as the Seller
directs in writing with respect to this Agreement, any Note
Document or any Supplement and shall, upon the written direction
of the Seller, execute and deliver any amendment to this
Agreement (subject to Section 14.1) or any Note Document or
Supplement as may be presented by the Seller for execution and
delivery by the Issuer Trustee; provided that the Issuer Trustee
may, but shall not be obligated to, enter into any such amendment
which affects the Issuer Trustee's own rights, duties or
immunities under this Agreement or otherwise.
Section 11.2 Certain Matters Affecting the Issuer
Trustee. Except as otherwise provided in Section 11.1:
(a) the Issuer Trustee may rely on and shall be
protected in acting on, or in refraining from acting in
accordance with, any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document believed
by it to be genuine and to have been signed or presented to
it pursuant to this Agreement by the proper party or
parties;
(b) the Issuer Trustee may consult with counsel and
any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken
or suffered or omitted by it hereunder in good faith and in
accordance with such Opinion of Counsel;
(c) the Issuer Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Agreement, or to institute, conduct or defend any litigation
hereunder or in relation hereto, at the request, order or
direction of any of the Noteholders or any Credit Enhancer,
pursuant to the provisions of this Agreement, unless such
Holders or such Credit Enhancer shall have offered to the
Issuer Trustee reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred
therein or thereby;
(d) the Issuer Trustee shall not be liable for any
action taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Agreement;
(e) the Issuer Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys or a
custodian, and the Issuer Trustee shall not be responsible
for any misconduct or negligence on the part of any such
agent, attorney or custodian appointed with due care by it
hereunder;
(f) the Issuer Trustee shall not be required to make
any initial or periodic examination of any documents or
records related to the Contracts in the Contract Pool or the
related Equipment for the purpose of establishing the
presence or absence of defects, the compliance by the Seller
with its representations and warranties or for any other
purpose;
(g) the right of the Issuer Trustee to perform any
discretionary act enumerated in this Agreement or any
Supplement shall not be construed as a duty, and the Issuer
Trustee shall not be answerable for other than its
negligence or willful misconduct in the performance of any
such act;
(h) the Issuer Trustee shall not be required to take
any action hereunder or under Indenture or Supplement if the
Issuer Trustee shall have reasonably determined, or shall
have been advised by counsel, that such action is likely to
result in liability on the part of the Issuer Trustee or is
contrary to the terms hereof or of any Indenture or
Supplement or is otherwise contrary to law;
(i) the Issuer Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in
accordance with the instructions of the Seller, the
Servicer, the Collateral Agent or the Noteholders;
(j) under no circumstances shall the Issuer Trustee be
liable for indebtedness evidenced by or arising under this
Agreement, or any of the Note Documents or Supplements,
including the principal of and interest on the Notes; and
(k) the Issuer Trustee shall not be liable for the
default or misconduct of the Seller, the Servicer, the
Indenture Trustees or the Collateral Agent under any of this
Agreement, the Indentures, the Note Agreements or the
Supplements or otherwise and the Issuer Trustee shall have
no obligation or liability to perform the obligations of the
Trust under this Agreement or otherwise that are required to
be performed by the Seller, the Servicer, the Collateral
Agent or the Indenture Trustee under this Agreement, the
Indentures, the Note Agreements or the Supplements.
Section 11.3 Issuer Trustee Not Liable for Recitals in
Notes. The Issuer Trustee assumes no responsibility for the
correctness of the recitals contained herein and in the Notes.
Except as expressly set forth in this Agreement or any Note
Document, the Issuer Trustee makes no representations as to the
validity or sufficiency of this Agreement, any Note Document or
any Supplement or of the Notes or of any Contract or related
document. The Issuer Trustee shall not be accountable for the
use or application by the Seller of any of the Notes or of the
proceeds thereof, or for the use or application of any funds paid
to the Seller in respect of the Contracts in the Contract Pool or
deposited in the Collection Account or the Reserve Account or
Termination Account, or withdrawn from the Collection Account or
the Reserve Account or Termination Account, by the Servicer. The
Issuer Trustee shall have no duty to conduct any affirmative
investigation as to the occurrence of any condition requiring the
repurchase of any Contract by the Seller pursuant to this
Agreement, any Note Document or any Supplement or the eligibility
of any Contract for purposes of this Agreement, any Note Document
or any Supplement. The Issuer Trustee shall have no
responsibility for filing any financing or continuation statement
in any public office at any time or to otherwise perfect or
maintain the perfection of any security interest or lien granted
to it or the Trust hereunder or to prepare or file any Securities
and Exchange Commission filing for the Trust or to record this
Agreement or any Supplement.
Section 11.4 Issuer Trustee May Own Notes. The Issuer
Trustee in its individual or any other capacity may become the
owner or pledgee of Notes, and may deal with the Seller, the
Servicer, the Collateral Agent, any Indenture Trustee or any
Credit Enhancer, with the same rights as it would have if it were
not the Issuer Trustee.
Section 11.5 Servicer to Pay Issuer Trustee's Fees and
Expenses. The Servicer covenants and agrees to pay to the Issuer
Trustee from time to time, and the Issuer Trustee shall be
entitled to receive, reasonable compensation (which shall not be
limited by any provision of law in regard to the compensation of
a trustee of an express trust) for all services rendered by it in
the execution of the trust hereby created and in the exercise and
performance of any of the powers and duties hereunder of the
Issuer Trustee, and, subject to Section 8.4, the Servicer will
promptly pay or reimburse the Issuer Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or
made by the Issuer Trustee in accordance with any of the
provisions of this Agreement (including the reasonable fees and
expenses of its agents and counsel) except any such expense,
disbursement or advance as may arise from its gross negligence or
bad faith.
The obligations of the Servicer under this Section 11.5
shall survive the termination of the Trust and the resignation or
removal of the Issuer Trustee.
In the case of a sale, disposition or liquidation of
the Trust Assets pursuant to subsection 9.2(a), the Issuer
Trustee shall be entitled to retain from any amounts
distributable to the Seller pursuant to any Supplement with
respect to any Series from the proceeds of such sale, disposition
or liquidation an amount equal to the Issuer Trustee's expenses
in connection with such sale, disposition or liquidation and the
performance by the Issuer Trustee of the procedures set forth in
subsection 9.2(a).
Section 11.6 Eligibility Requirements for Issuer
Trustee. The Issuer Trustee hereunder shall at all times be a
corporation organized and doing business under the laws of the
United States of America or any state thereof authorized under
such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 and subject to
supervision or examination by Federal or state authority. If
such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purpose of this
Section 11.6, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. In addition, no institution shall qualify as a
Successor Issuer Trustee hereunder unless its long-term debt
obligations are rated at least investment grade by each Rating
Agency. In case at any time the Issuer Trustee shall cease to be
eligible in accordance with the provisions of this Section 11.6,
the Issuer Trustee shall resign immediately in the manner and
with the effect specified in Section 11.7.
Section 11.7 Resignation or Removal of Issuer Trustee.
(a) The Issuer Trustee may at any time resign and be discharged
from the trust hereby created by giving written notice thereof to
the Seller and the Servicer. Upon receiving such notice of
resignation, the Seller shall (i) promptly appoint a successor
trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Issuer Trustee and
one copy to the successor trustee and (ii) provide written notice
to each Rating Agency of such resignation. If no successor
trustee shall have been so appointed and have accepted within 30
days after the giving of such notice of resignation, the
resigning Issuer Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
(b) If at any time the Issuer Trustee shall cease to
be eligible in accordance with the provisions of Section 11.6 and
shall fail to resign after written request therefor by the
Seller, or if at any time the Issuer Trustee shall be legally
unable to act, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Issuer Trustee or of its property shall be
appointed, or any public officer shall take charge or control of
the Issuer Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation, then the Seller
may, but shall not be required to, remove the Issuer Trustee and
promptly appoint a successor trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the
Issuer Trustee so removed and one copy to the successor trustee.
(c) Any resignation or removal of the Issuer Trustee
and appointment of a successor trustee pursuant to any of the
provisions of this Section 11.7 shall not become effective until
acceptance of appointment by the successor trustee as provided in
Section 11.8 and any liability of the Issuer Trustee arising
hereunder shall survive such appointment of a successor trustee.
Section 11.8 Successor Issuer Trustee. (a) Any
successor trustee appointed as provided in Section 11.7 shall
execute, acknowledge and deliver to the Seller and to its
predecessor Issuer Trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal
of the predecessor Issuer Trustee shall become effective and such
successor trustee, without any further act, deed or conveyance,
shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if
originally named as Issuer Trustee herein. The predecessor Issuer
Trustee shall, upon payment of all amounts due it pursuant to
Section 11.5, deliver to the successor trustee all documents and
statements held by it hereunder; and Seller and the predecessor
Issuer Trustee shall execute and deliver such instruments and do
such other things as may reasonably be required for fully and
certainly vesting and confirming in the successor trustee all
such rights, powers, duties and obligations.
(b) No successor trustee shall accept appointment as
provided in this Section 11.8 unless at the time of such
acceptance such successor trustee shall be eligible under the
provisions of Section 11.6.
(c) Upon acceptance of appointment by a successor
trustee as provided in this Section 11.8, such successor trustee
shall mail notice of such succession hereunder to each Indenture
Trustee and to each Subordinated Noteholder, and also to each
Rating Agency.
Section 11.9 Merger or Consolidation of Issuer
Trustee. Any Person into which the Issuer Trustee may be merged
or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which
the Issuer Trustee shall be a party, or any Person succeeding to
all or substantially all of the corporate trust business of the
Issuer Trustee, shall be the successor of the Issuer Trustee
hereunder, provided such corporation shall be eligible under the
provisions of Section 11.6, without the execution or filing of
any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding.
Section 11.10 Appointment of Co-Issuer Trustee or
Separate Issuer Trustee. (a) Notwithstanding any other
provisions of this Agreement, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any
part of the Trust may at the time be located, the Issuer Trustee
shall have the power and may execute and deliver all instruments
to appoint one or more Persons to act as a co-trustee or
co-trustees, or separate trustee or separate trustees, of all or
any part of the Trust, and to vest in such Person or Persons, in
such capacity and for the benefit of the Noteholders, such title
to the Trust Assets, or any part thereof, and, subject to the
other provisions of this Section 11.10, such powers, duties,
obligations, rights and trusts as the Issuer Trustee may consider
necessary or desirable. No co-trustee or separate trustee
hereunder shall be required to meet the terms of eligibility as a
successor trustee under Section 11.6 and no notice to Noteholders
of the appointment of any co-trustee or separate trustee shall be
required under Section 11.8.
(b) Every separate trustee and co-trustee shall, to
the extent permitted by law, be appointed and act subject to the
following provisions and conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon the Issuer Trustee shall be
conferred or imposed upon and exercised or performed by the
Issuer Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the
Issuer Trustee joining in such act), except to the extent
that under any laws of any jurisdiction in which any
particular act or acts are to be performed (whether as
Issuer Trustee hereunder or as successor to the Servicer
hereunder), the Issuer Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the
holding of title to the Trust or any portion thereof in any
such jurisdiction) shall be exercised and performed singly
by such separate trustee or co-trustee, but solely at the
direction of the Issuer Trustee;
(ii) no trustee hereunder shall be liable by reason of
any act or omission of any other trustee hereunder; and
(iii) the Issuer Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the
Issuer Trustee shall be deemed to have been given to each of the
then separate trustees and co-trustees, as effectively as if
given to each of them. Every instrument appointing any separate
trustee or co-trustee shall refer to this Agreement and the
conditions of this Article XI. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be
vested with the estates or property specified in its instrument
of appointment, either jointly with the Issuer Trustee or
separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every
provision of this Agreement relating to the conduct of, affecting
the liability of, or affording protection to, the Issuer Trustee.
Every such instrument shall be filed with the Issuer Trustee and
a copy thereof given to the Servicer.
(d) Any separate trustee or co-trustee may at any time
constitute the Issuer Trustee its agent or attorney-in-fact with
full power and authority, to the extent not prohibited by law, to
do any lawful act under or in respect to this Agreement on its
behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Issuer Trustee, to the extent
permitted by law, without the appointment of a new or successor
trustee.
Section 11.11 Tax Returns. As set forth in Section
3.13, the Issuer Trustee shall not file any federal tax returns
on behalf of the Trust; provided, however, that if the Trust
shall be required to file tax returns or is otherwise determined
necessary by the Issuer Trustee that the Trust should file tax
returns, the Servicer, as soon as practicable after it is made
aware of such requirement or determination, shall prepare or
cause to be prepared, and the Issuer Trustee is authorized
hereunder to sign, any tax returns required or determined
necessary to be filed by the Trust and, to the extent possible,
the Servicer shall deliver such returns to the Issuer Trustee at
least five days before such returns are due to be filed. In
executing any tax return on behalf of the Trust, the Issuer
Trustee shall be entitled to assume that any such return
presented to it for execution is true and accurate and shall not
be required to recalculate or otherwise take any action to verify
the truth or accuracy thereof. The Servicer shall prepare or
shall cause to be prepared all tax information required by law to
be distributed to Noteholders and shall deliver such information
to the Issuer Trustee at least five days prior to the date it is
required by law to be so distributed to Holders. The Issuer
Trustee and the Collateral Agent, upon written request, will
furnish the Servicer with all such information known to the
Issuer Trustee or the Collateral Agent, as the case may be, as
may be reasonably required in connection with the preparation of
all tax returns of the Trust. In no event shall the Issuer
Trustee, the Collateral Agent or the Servicer be liable for any
liabilities, costs or expenses of the Trust, the Noteholders or
the Note Owners arising under any tax law, including without
limitation federal, state or local income or excise taxes or any
other tax imposed on or measured by income (or any interest or
penalty with respect thereto or arising from a failure to comply
therewith). Nothing in this Section 11.11 shall be construed as
inconsistent with the characterization of the Notes as
indebtedness of Seller for purposes of federal, state and local
income or franchise taxes and any other tax imposed upon or
measured by income, as expressed in Section 3.13.
Section 11.12 Representations and Warranties of Issuer
Trustee. The Issuer Trustee represents and warrants that:
(i) The Issuer Trustee is a banking corporation
organized, existing and in good standing under the laws of
the State of Delaware;
(ii) The Issuer Trustee is an entity that satisfies the
eligibility requirements of Section 11.6;
(iii) The Issuer Trustee has full power, authority and
right to execute, deliver and perform this Agreement, and
has taken all necessary action to authorize the execution,
delivery and performance by it of this Agreement;
(iv) This Agreement has been duly executed and
delivered by the Issuer Trustee; and
(v) This Agreement constitutes a legal, valid and
binding obligation of the Issuer Trustee, enforceable
against the Issuer Trustee in accordance with its terms,
except as such enforceability may be limited by Insolvency
Laws and except as such enforceability may be limited by
general principles of equity (whether considered in a suit
at law or in equity) or by an implied covenant of good faith
and fair dealing.
Section 11.13 Maintenance of Office or Agency. The
Issuer Trustee will maintain at its expense in the City of
Wilmington, Delaware, an office or offices or agency or agencies
where notices and demands to or upon the Issuer Trustee in
respect of the Notes and this Agreement may be served. The
Issuer Trustee initially appoints its Corporate Trust Office as
its office for such purposes. The Issuer Trustee will give
prompt written notice to the Servicer, each Indenture Trustee and
each Subordinated Noteholder of any change in the location of
such office or agency.
Section 11.14 Requests for Agreement. A copy of this
Agreement may be obtained by any Holder by a request in writing
to the Issuer Trustee addressed to the Corporate Trust Office and
will be provided at the expense of Seller.
Section 11.15 Not Acting in Individual Capacity.
Except as provided in this Article XI, in accepting the trusts
hereby created Chemical Bank Delaware acts solely as Issuer
Trustee hereunder and not in its individual capacity and all
Persons having any claim against the Issuer Trustee by reason of
the transactions contemplated by this Agreement or otherwise
shall look only to the Trust Assets for payment or satisfaction
thereof.
ARTICLE XII
THE COLLATERAL AGENT
Section 12.1 Duties of Collateral Agent.
(a) Prior to the occurrence of a Servicer Default of
which a Responsible Officer of the Collateral Agent has
knowledge, and following the cure of such Servicer Default, the
Collateral Agent undertakes to perform such duties and only such
duties as are specifically set forth in this Agreement and the
Applicable Indentures, and no implied duties or covenants shall
be read into this Agreement or such Applicable Indentures against
the Collateral Agent. If a Responsible Officer of the Collateral
Agent has received notice that a Servicer Default has occurred
(which has not been cured or waived), the Collateral Agent shall
exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in the
exercise of such rights and powers, as a prudent person would
exercise or use under the circumstances in the conduct of such
person's own affairs, provided, however, that if the Collateral
Agent shall assume the duties of the Servicer pursuant hereto,
the Collateral Agent in performing such duties shall use the
degree of skill and attention customarily exercised by a servicer
with respect to comparable Contracts that it services for itself
or others.
(b) In the event that the Collateral Agent shall have
knowledge of an Event of Default under this Agreement or any
Indenture, as promptly as practicable after, and in any event
within 90 days after, the occurrence of such Event of Default,
the Collateral Agent shall provide written notice to the Issuer
Trustee, the Seller, the Servicer, each Rating Agency, the Credit
Enhancers and each Applicable Indenture Trustee of such Event of
Default known to the Collateral Agent, unless such Event of
Default shall have been cured or waived. Subject to the terms of
this Agreement and any Supplement, the Collateral Agent shall
take such action, or refrain from taking such action, with
respect to any such Event of Default (including with respect to
the exercise of any rights or remedies under the Applicable
Indenture) as the Collateral Agent shall be instructed in writing
by the Controlling Party. Subject to the provisions of this
Section 12.1 and Section 12.2 hereof, if the Collateral Agent
shall not have received instructions as above provided within 20
calendar days after notice of such Event of Default to the
Applicable Indenture Trustee, the Collateral Agent may, subject
to instructions thereafter received pursuant to the preceding
provisions of this Section 12.1, take such action, or refrain
from taking such action, but shall be under no duty to take or
refrain from taking any action, with respect to any such Event of
Default as it shall determine advisable in the best interests of
the Secured Parties and shall use the same degree of care and
skill in connection therewith as a prudent man would use under
the circumstances in the conduct of his own affairs. In the
event the Collateral Agent shall at any time foreclose the Lien
of this Agreement or otherwise enforce this Agreement, the
Collateral Agent shall forthwith notify the Indenture Trustees,
the Issuer Trustee, each Rating Agency and the Credit Enhancers.
For all purposes of this Agreement, in the absence of actual
knowledge on the part of a Responsible Officer of the Collateral
Agent, the Collateral Agent shall not be deemed to have knowledge
of any Event of Default under this Agreement or any Indenture
(other than the failure to pay any amount on a Class A Note when
due) unless notified in writing by any Indenture Trustee, the
Issuer Trustee, any Credit Enhancer or one or more Noteholders.
(c) The Collateral Agent, upon receipt of all
resolutions, certificates, statements, opinions, reports,
documents, orders or other instruments furnished to the
Collateral Agent which are specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them
to determine whether they conform to the requirements of this
Agreement. The Collateral Agent shall give prompt written notice
to the Issuer Trustee and each Indenture Trustee of any material
lack of conformity of any such instrument to the applicable
requirements of this Agreement discovered by the Collateral Agent
which would entitle a specified percentage of the Holders to take
any action pursuant to this Agreement. Notwithstanding the
foregoing, the Collateral Agent shall have no obligation to
independently calculate, recompute, verify or confirm any
information received from the Servicer.
(d) No provision of this Agreement shall be construed
to relieve the Collateral Agent from liability for its own
grossly negligent action, its own grossly negligent failure to
act or its own misconduct; provided, however, that:
(i) the Collateral Agent shall not be personally
liable for an error of judgment made in good faith by a
Responsible Officer or Responsible Officers of the
Collateral Agent, unless it shall be proved that the
Collateral Agent was negligent in ascertaining the pertinent
facts;
(ii) the Collateral Agent shall not be personally
liable with respect to any action taken, suffered or omitted
to be taken by it in good faith in accordance with the
direction of the Controlling Party relating to the time,
method and place of conducting any proceeding for any remedy
available to the Collateral Agent, or exercising any trust
or power conferred upon the Collateral Agent, under this
Agreement; and
(iii) the Collateral Agent shall not be charged with
knowledge of any failure by the Servicer to comply with the
obligations of the Servicer referred to in Section 10.1 or
any Event of Default unless a Responsible Officer of the
Collateral Agent obtains actual knowledge of such failure or
Event of Default or the Collateral Agent receives written
notice of such failure from the Servicer, the Issuer
Trustee, any Indenture Trustee or any Holders of (or
Indenture Trustee on behalf of Holders of) Notes aggregating
not less than 10% of the Principal Amount of any Series.
(e) The Collateral Agent shall not be required to
expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties hereunder, or
in exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of such funds
or adequate indemnity against such risk or liability is not
reasonably assured to it, and none of the provisions contained in
this Agreement shall in any event require the Collateral Agent to
perform, or be responsible for the manner of performance of, any
of the obligations of the Servicer under this Agreement.
(f) Except for actions expressly authorized by this
Agreement, the Collateral Agent shall take no action reasonably
likely to impair the interests of the Trust in the Trust Assets
now existing or hereafter arising or to impair the value of any
Contract in the Contract Pool.
(g) If the Seller has agreed to transfer any of its
Contracts to another Person, upon the written request of Seller,
the Collateral Agent will enter into such intercreditor
agreements with the transferee of such Contracts as requested by
the Seller; provided, that the Seller shall have delivered to the
Collateral Agent (i) an Officer's Certificate to the effect that
such intercreditor agreements (x) are customary and necessary to
identify the rights of the Trust and such other Person, as the
case may be, in the Seller's Contracts and (y) could not
reasonably be expected to adversely affect the interests of the
Noteholders and (ii) an Opinion of Counsel on any matters
relating to such intercreditor agreement, reasonably requested by
the Collateral Agent, in form and substance satisfactory to the
Collateral Agent.
(h) Except in accordance with written instructions
furnished pursuant to Section 12.1(b), 12.2(e) and 12.12, the
Collateral Agent shall have no duty (i) to see to any recording
or filing of, or necessary to perfect a security interest in, the
Trust Assets or any other document, or to see to the maintenance
of any such recording or filing, (ii) to see to any insurance,
whether or not the Servicer or the Seller shall be in default
with respect thereto, (iii) to see to the payment or discharge of
any Lien of any kind against any part of the Trust Assets or (iv)
to confirm, verify or inquire into the failure to receive any
financial statements required to be delivered under the Pooling
Agreement.
Section 12.2 Certain Matters Affecting the Collateral
Agent. Except as otherwise provided in Section 12.1:
(a) the Collateral Agent may rely on and shall be
protected in acting on, or in refraining from acting in
accordance with, any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document believed
by it to be genuine and to have been signed or presented to
it pursuant to this Agreement by the proper party or
parties;
(b) the Collateral Agent may consult with counsel and
any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken
or suffered or omitted by it hereunder in good faith and in
accordance with such Opinion of Counsel;
(c) the Collateral Agent shall be under no obligation
to exercise any of the rights or powers vested in it by this
Agreement, or to institute, conduct or defend any litigation
hereunder or in relation hereto, at the request, order or
direction of any of the Noteholders, Indenture Trustees or
any Credit Enhancer, pursuant to the provisions of this
Agreement, unless such Holders, such Indenture Trustees or
such Credit Enhancer shall have offered to the Collateral
Agent reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or
thereby; provided, however, that nothing contained herein
shall relieve the Collateral Agent of the obligations, upon
the occurrence of any Servicer Default (which has not been
cured) of which a Responsible Officer of the Collateral
Agent has knowledge, to exercise such of the rights and
powers vested in it by this Agreement or any Enhancement,
and to use the same degree of care and skill in their
exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs;
provided, further, that the Collateral Agent shall have no
such obligations in the event that the Servicer fails to
cooperate with the Collateral Agent, pursuant to Section
10.1, in effecting the termination of the responsibilities
and rights of the Servicer to conduct servicing following
the occurrence of a Servicer Default;
(d) the Collateral Agent shall not be liable for any
action taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Agreement;
(e) the Collateral Agent shall not be bound to make
any investigation into the facts of matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing so to
do by the Controlling Party, provided, however, that if the
payment within a reasonable time to the Collateral Agent of
the costs, expenses or liabilities likely to be incurred by
it in the making of such investigation shall be, in the
opinion of the Collateral Agent, not reasonably assured to
the Collateral Agent by the security afforded to it by the
terms of this Agreement, the Collateral Agent may require
reasonable indemnity against such cost, expense or liability
as a condition to so proceeding;
(f) the Collateral Agent may execute any of the trusts
or powers hereunder or perform any duties hereunder either
directly or by or through agents, including co-collateral
agents, or attorneys or a custodian, and the Collateral
Agent shall not be responsible for any misconduct or
negligence on the part of any such agent, attorney or
custodian appointed with due care by it hereunder;
(g) except as may be required pursuant to subsection
12.1(a), the Collateral Agent shall not be required to make
any initial or periodic examination of any documents or
records related to the Contracts in the Contract Pool or the
related Equipment for the purpose of establishing the
presence or absence of defects, the compliance by the Seller
with its representations and warranties or for any other
purpose;
(h) the right of the Collateral Agent to perform any
discretionary act enumerated in this Agreement or any
Supplement shall not be construed as a duty, and the
Collateral Agent shall not be answerable for other than its
gross negligence or willful misconduct (subject to Section
12.1(d)) in the performance of any such act;
(i) the Collateral Agent shall not be liable with
respect to any action taken or omitted to be taken by it in
accordance with the instructions of the Controlling Party;
(j) under no circumstances shall the Collateral Agent
be liable for indebtedness evidenced by or arising under
this Agreement, or any of the Note Documents or Supplements,
including the principal of and interest on the Notes; and
(k) the Collateral Agent shall not be liable for the
default or misconduct of the Seller, the Servicer, the
Indenture Trustees or the Issuer Trustee under any of this
Agreement, the Indentures, the Note Agreements or the
Supplements or otherwise.
Section 12.3 Collateral Agent May Own Notes. The
Collateral Agent in its individual or any other capacity may
become the owner or pledgee of Notes, and may deal with the
Seller, the Servicer, the Issuer Trustee or any Credit Enhancer,
with the same rights as it would have if it were not the
Collateral Agent.
Section 12.4 Servicer to Pay Collateral Agent's Fees
and Expenses. The Servicer covenants and agrees to pay to the
Collateral Agent from time to time, and the Collateral Agent
shall be entitled to receive, reasonable compensation for all
services rendered by it in the execution of the collateral agency
hereby created and in the exercise and performance of any of the
powers and duties hereunder of the Collateral Agent, and, subject
to Section 8.4, the Servicer will promptly pay or reimburse the
Collateral Agent upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Collateral
Agent in connection with the closing of the transactions
contemplated by the applicable Note Documents and in accordance
with any of the provisions of this Agreement including any
expenses, disbursements and advances incurred in connection with
the appointment of a Successor Servicer (including the reasonable
fees and expenses of its agents and counsel) except any such
expense, disbursement or advance as may arise from its gross
negligence or bad faith and except as provided in the following
sentence. If the Collateral Agent is appointed Successor
Servicer pursuant to Section 10.2, the provisions of this Section
12.4 shall not apply to the expenses, disbursements and advances
made or incurred by the Collateral Agent in its capacity as
Successor Servicer.
The obligations of the Servicer under this Section 12.5
shall survive the termination of the Trust and the resignation or
removal of the Collateral Agent.
In the case of a sale, disposition or liquidation of
the Trust Assets pursuant to subsection 9.2(a), the Collateral
Agent shall be entitled to retain from any amounts distributable
to the Seller pursuant to any Supplement with respect to any
Series from the proceeds of such sale, disposition or liquidation
an amount equal to the Collateral Agent's expenses in connection
with such sale, disposition or liquidation and the performance by
the Collateral Agent of the procedures set forth in subsection
9.2(a).
Section 12.5 Eligibility Requirements for Collateral
Agent. The Collateral Agent hereunder shall at all times be a
corporation organized and doing business under the laws of the
United States of America or any state thereof authorized under
such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $100,000,000 and subject to
supervision or examination by Federal or state authority. If
such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purpose of this
Section 12.5, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. In addition, no institution shall qualify as a
successor Collateral Agent hereunder unless its long-term debt
obligations are rated at least investment grade by each Rating
Agency. In case at any time the Collateral Agent shall cease to
be eligible in accordance with the provisions of this Section
12.5, the Collateral Agent shall resign immediately in the manner
and with the effect specified in Section 12.6.
Section 12.6 Resignation or Removal of Collateral
Agent. (a) The Collateral Agent may at any time resign and be
discharged from the trust hereby created by giving written notice
thereof to the Seller, the Issuer Trustee and the Servicer. Upon
receiving such notice of resignation, the Seller shall (i)
promptly appoint a successor collateral agent by written
instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Collateral Agent and one copy to the
successor collateral agent and (ii) provide written notice to
each Rating Agency of such resignation. If no successor
collateral agent shall have been so appointed and have accepted
within 30 days after the giving of such notice of resignation,
the resigning Collateral Agent may petition any court of
competent jurisdiction for the appointment of a successor
collateral agent.
(b) If at any time the Collateral Agent shall cease to
be eligible in accordance with the provisions of Section 12.5 and
shall fail to resign after written request therefor by the
Seller, or if at any time the Collateral Agent shall be legally
unable to act, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Collateral Agent or of its property shall be
appointed, or any public officer shall take charge or control of
the Collateral Agent or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then the
Seller may, but shall not be required to, remove the Collateral
Agent and promptly appoint a successor collateral agent by
written instrument, in duplicate, one copy of which instrument
shall be delivered to the Collateral Agent so removed and one
copy to the successor collateral agent.
(c) Any resignation or removal of the Collateral Agent
and appointment of a successor collateral agent pursuant to any
of the provisions of this Section 12.6 shall not become effective
until acceptance of appointment by the successor collateral agent
as provided in Section 12.7 and any liability of the Collateral
Agent arising hereunder shall survive such appointment of a
successor collateral agent.
Section 12.7 Successor Collateral Agent. (a) Any
successor collateral agent appointed as provided in Section 12.6
shall execute, acknowledge and deliver to the Seller and to its
predecessor Collateral Agent an instrument accepting such
appointment hereunder, and thereupon the resignation or removal
of the predecessor Collateral Agent shall become effective and
such successor collateral agent, without any further act, deed or
conveyance, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor hereunder, with
like effect as if originally named as Collateral Agent herein.
The predecessor Collateral Agent shall, upon payment of all
amounts due it pursuant to Section 12.4, deliver to the successor
collateral agent all documents and statements held by it
hereunder; and Seller and the predecessor Collateral Agent shall
execute and deliver such instruments and do such other things as
may reasonably be required for fully and certainly vesting and
confirming in the successor collateral agent all such rights,
powers, duties and obligations.
(b) No successor collateral agent shall accept
appointment as provided in this Section 12.7 unless at the time
of such acceptance such successor collateral agent shall be
eligible under the provisions of Section 12.5.
(c) Upon acceptance of appointment by a successor
collateral agent as provided in this Section 12.7, such successor
collateral agent shall mail notice of such succession hereunder
to each Indenture Trustee and to each Rating Agency, and also to
the Issuer Trustee who shall mail notice of such succession
hereunder to each Subordinated Noteholder.
Section 12.8 Merger or Consolidation of Collateral
Agent. Any Person into which the Collateral Agent may be merged
or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which
the Collateral Agent shall be a party, or any Person succeeding
to all or substantially all of the corporate trust business of
the Collateral Agent, shall be the successor of the Collateral
Agent hereunder, provided such corporation shall be eligible
under the provisions of Section 12.5, without the execution or
filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
Section 12.9 Appointment of Co-Collateral Agent or
Separate Collateral Agent. (a) Notwithstanding any other
provisions of this Agreement, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any
part of the Trust may at the time be located, the Collateral
Agent shall have the power and may execute and deliver all
instruments to appoint one or more Persons to act as a
co-collateral agent or co-collateral agents, or separate
collateral agent or separate collateral agents, with respect to
all or any part of the Trust Assets, and to vest in such Person
or Persons, in such capacity and for the benefit of the
Noteholders, such security interest in the Trust Assets, or any
part thereof, and, subject to the other provisions of this
Section 12.9, such powers, duties, obligations, rights and trusts
as the Collateral Agent may consider necessary or desirable. No
co-collateral agent or separate collateral agent hereunder shall
be required to meet the terms of eligibility as a successor
collateral agent under Section 12.5 and no notice to Noteholders
of the appointment of any co-collateral agent or separate
collateral agent shall be required under Section 12.7.
(b) Every separate collateral agent and co-collateral
agent shall, to the extent permitted by law, be appointed and act
subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon the Collateral Agent shall be
conferred or imposed upon and exercised or performed by the
Collateral Agent and such separate collateral agent or
co-collateral agency jointly (it being understood that such
separate collateral agent or co-collateral agent is not
authorized to act separately without the Collateral Agent
joining in such act), except to the extent that under any
laws of any jurisdiction in which any particular act or acts
are to be performed, the Collateral Agent shall be
incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations
shall be exercised and performed singly by such separate
collateral agent or co-collateral agent, but solely at the
direction of the Collateral Agent;
(ii) no collateral agent hereunder shall be liable by
reason of any act or omission of any other collateral agent
hereunder; and
(iii) the Collateral Agent may at any time accept the
resignation of or remove any separate collateral agent or
co-collateral agent.
(c) Any notice, request or other writing given to the
Collateral Agent shall be deemed to have been given to each of
the then separate collateral agents and co-collateral agents, as
effectively as if given to each of them. Every instrument
appointing any separate collateral agent or co-collateral agent
shall refer to this Agreement and the conditions of this Article
XII. Each separate collateral agent and co-collateral agent,
upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of
appointment, either jointly with the Collateral Agent or
separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every
provision of this Agreement relating to the conduct of, affecting
the liability of, or affording protection to, the Collateral
Agent. Every such instrument shall be filed with the Issuer
Trustee and a copy thereof given to the Servicer.
(d) Any separate collateral agent or co-collateral
agent may at any time constitute the Collateral Agent its agent
or attorney-in-fact with full power and authority, to the extent
not prohibited by law, to do any lawful act under or in respect
to this Agreement on its behalf and in its name. If any separate
collateral agent or co-collateral agent shall die, become
incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be
exercised by the Collateral Agent, to the extent permitted by
law, without the appointment of a new or successor collateral
agent.
Section 12.10 Collateral Agent May Enforce Claims
Without Possession of Notes. All rights of action and claims
under this Agreement or the Notes may be prosecuted and enforced
by the Collateral Agent without the possession of any of the
Notes, or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Collateral
Agent shall be brought in its own name as collateral agent. Any
recovery of judgment shall, after provision for the payment of
the reasonable compensation, expenses, disbursements and advances
of the Collateral Agent, its agents and counsel, be for the
ratable benefit of the Noteholders in respect of which such
judgment has been obtained.
Section 12.11 Suits for Enforcement. If a Servicer
Default of which a Responsible Officer of the Collateral Agent
has knowledge shall occur and be continuing, the Collateral
Agent, in its discretion, may, subject to the provisions of
Section 10.1, proceed to protect and enforce its rights and the
rights of the Noteholders under this Agreement or any Supplement
by a suit, action or proceeding in equity or at law or otherwise,
whether for the specific performance of any covenant or agreement
contained in this Agreement or any Supplement or in aid of the
execution of any power granted in this Agreement or any
Supplement or for the enforcement of any other legal, equitable
or other remedy as the Collateral Agent, being advised by
counsel, shall deem most effectual to protect and enforce any of
the rights of the Collateral Agent or such Holders.
Section 12.12 Rights of Controlling Party to Direct
Collateral Agent. The Controlling Party shall have the right to
direct the time, method, and place of conducting any proceeding
for any remedy available to the Collateral Agent, or exercising
any trust or power conferred on the Collateral Agent; provided,
however, that, subject to Section 12.1, the Collateral Agent
shall have the right to decline to follow any such direction if
the Collateral Agent being advised by counsel determines that the
action so directed may not lawfully be taken, or if the
Collateral Agent in good faith shall, by a Responsible Officer or
Responsible Officers of the Collateral Agent, determine that the
proceedings so directed would be illegal or involve it in
personal liability or be unduly prejudicial to the rights of
Noteholders not parties to such direction; and provided further
that nothing in this Agreement shall impair the right of the
Collateral Agent to take any action deemed proper by the
Collateral Agent and which is not inconsistent with such
direction.
Section 12.13 Representations and Warranties of
Collateral Agent. The Collateral Agent represents and warrants
that:
(i) The Collateral Agent is a national banking
association organized, existing and in good standing under
the laws of the United States of America;
(ii) The Collateral Agent is an entity that satisfies
the eligibility requirements of Section 12.5;
(iii) The Collateral Agent has full power, authority and
right to execute, deliver and perform this Agreement, and
has taken all necessary action to authorize the execution,
delivery and performance by it of this Agreement;
(iv) This Agreement has been duly executed and
delivered by the Collateral Agent; and
(v) This Agreement constitutes a legal, valid and
binding obligation of the Collateral Agent, enforceable
against the Collateral Agent in accordance with its terms,
except as such enforceability may be limited by Insolvency
Laws and except as such enforceability may be limited by
general principles of equity (whether considered in a suit
at law or in equity) or by an implied covenant of good faith
and fair dealing.
Section 12.14 Collateral Agent Not Liable for Recitals
in Notes. The Collateral Agent assumes no responsibility for the
correctness of the recitals contained herein and in the Notes.
Except as set forth in Section 12.13, the Collateral Agent makes
no representations as to the validity or sufficiency of this
Agreement or of the Notes or of any Contract or related document.
The Collateral Agent shall not be accountable for the use or
application by the Seller of any of the Notes or of the proceeds
thereof, or for the use or application of any funds paid to the
Seller in respect of the Contracts in the Contract Pool or
deposited in the Collection Account or the Reserve Account or
Termination Account, or withdrawn from the Collection Account or
the Reserve Account or Termination Account, by the Servicer. The
Collateral Agent shall have no duty to conduct any affirmative
investigation as to the occurrence of any condition requiring the
repurchase of any Contract by the Seller pursuant to this
Agreement or any Supplement or the eligibility of any Contract
for purposes of this Agreement or any Supplement. The Collateral
Agent shall have no responsibility for filing any financing or
continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security
interest or lien granted to it hereunder (unless the Collateral
Agent shall have become the Successor Servicer) or to prepare or
file any Securities and Exchange Commission filing for the Trust
or to record this Agreement or any Supplement.
ARTICLE XIII
TERMINATION
Section 13.1 Termination of Trust. (a) The
respective obligations and responsibilities of the Seller, the
Servicer, the Collateral Agent and the Issuer Trustee created
hereby (other than the obligation of the Collateral Agent to make
payments to the Indenture Trustees on behalf of the Noteholders
as hereafter set forth) shall terminate, except with respect to
the duties described in Sections 7.4, 8.4 and 11.5 and
subsections 2.4(c) and 13.3(b), upon the earlier of (i) the day,
if any, designated by the Seller after the Distribution Date
following the date on which funds shall have been deposited in
the Note Payment Accounts sufficient to pay the Aggregate
Principal Amount of all Series plus any interest accrued on the
Notes through such Distribution Date in full and (ii) the day on
which final payment is made under the Notes (any such day under
either the preceding clause (i) or this clause (ii) is referred
to as a "Trust Termination Date"); but in no event later than the
Final Trust Termination Date.
(b) Notwithstanding Section 13.1(a), in accordance
with Section 3803(b) of the Business Trust Statute, this
Agreement (other than Sections 7.4, 8.4 and 11.5 and subsections
2.5(e) and (f)) and the Trust shall dissolve and terminate upon
the occurrence of an Insolvency Event with respect to the Seller
or upon the withdrawal of the Seller, unless within 90 days
thereof, the Issuer Trustee shall have received written
instructions from owners of Partnership Notes (which for this
purpose shall exclude the Seller) owning not less than 51% of the
aggregate principal amount of the Partnership Notes not owned
(beneficially or of record) by the Seller, not to dissolve and
terminate the Trust. The occurrence of an Insolvency Event or
the withdrawal, dissolution, termination, death or incapacity of
any owner of a Partnership Note, other than the Seller, or any
other Holder shall not (x) operate to terminate this Agreement or
the Trust, nor entitle the legal representatives or heirs of such
Holder or the owners of such Notes to claim an accounting or to
take any action or proceeding in any court for a partition or
winding up of all or any part of the Trust nor (z) otherwise
affect, the rights, obligations and liabilities of the parties
hereto.
(c) Except as provided in Section 13.1(b), neither the
Seller nor any other owner of a Partnership Note shall be
entitled to revoke or terminate the Trust. Upon a termination of
the trust, the Issuer Trustee shall cause the Certificate of
Trust to be cancelled by filing a certificate of cancellation
thereof, promptly following such termination, in accordance with
the provisions of the Business Trust Statute.
(d) Promptly after the occurrence of any Insolvency
Event with respect to the Seller, (i) the Seller shall give the
Collateral Agent, the Issuer Trustee, each Indenture Trustee, the
Rating Agencies and each Credit Enhancer notice of such
Insolvency Event, (ii) the Issuer Trustee shall, upon the receipt
of such written notice from the Seller, give prompt written
notice to the owners of the Class B Notes and the Class C Notes
of the occurrence of such event and (iii) each Indenture Trustee
shall, upon receipt of written notice of such Insolvency Event
from the Issuer Trustee or the Seller, give prompt written notice
to the Noteholders of the occurrence of such event; provided that
any failure to give notice required by this sentence shall not
prevent or delay, in any manner, a termination of the Trust
pursuant to Section 13.1(b). Upon a termination pursuant to
Section 13.1(b), the Issuer Trustee shall direct the Collateral
Agent promptly to sell the assets of the Trust (other than the
Collection Account, the Reserve Account, the Termination Accounts
and the Note Payment Account) in a commercially reasonable manner
and on commercially reasonable terms (which shall include the
solicitation of competitive bids from Persons who are not
Affiliates of the Seller). The proceeds received upon the sale,
disposition or other liquidation of such assets shall be
deposited into the Collection Account and shall be distributed in
accordance with Section 4.3(e). In the event that the proceeds
received upon such sale, disposition or other liquidation are
less than the sum of (i) the Principal Amount with respect to any
Series on the date on which final payment to the Noteholders is
to be made and (ii) unpaid interest thereon at the Interest Rate
for such Series as of such date, the Servicer will make a
withdrawal or drawing or take other action permitted by any
applicable Enhancement, and shall pay all amounts thereby
obtained to the Applicable Indenture Trustee for deposit in the
Note Payment Account on such date, and the amount so withdrawn
shall be distributed to the Holders of Notes of each Series in
final payment thereof pursuant to the terms of the Applicable
Indenture; provided, that if the Servicer fails to make such
withdrawal or drawing or take such other action, then the
Collateral Agent may make such withdrawal or drawing.
Section 13.2 Optional Purchase of Notes and Final
Trust Termination Date. (a) On any Distribution Date occurring
on or after the date on which the Principal Amount of the Class A
Notes and Class B Notes of all Series is 10% or less of the
aggregate principal amount of the Class A Notes and Class B Notes
of all Series as of their respective Closing Dates, the Seller at
its sole option may, upon not less than 30 and not more than 60
days notice to the Issuer Trustee, the Servicer, the Collateral
Agent, each Indenture Trustee and the Noteholders, purchase
without penalty or premium all, but not less than all, of the
Class A Notes and Class B Notes of all Series. The redemption
price will be equal to the sum of the outstanding principal
amount of the Class A Notes and Class B Notes of all Series,
together with accrued interest thereon through the day preceding
the date of redemption, and shall be payable to the respective
holders of the Class A Notes and Class B Notes on such
Distribution Date. Following any redemption, neither the Class A
Noteholders nor the Class B Noteholders will have any further
rights with respect to the Trust Assets. The Class C Notes may
not be optionally redeemed prior to the payment in full of the
Class A Notes and Class B Notes of each Series.
(b) The Principal Amount of each Series shall be due
and payable no later than the Maturity Date with respect to such
Series. If on the Determination Date in the third month
immediately preceding the month in which such Maturity Date
occurs (after giving effect to all transfers, withdrawals,
deposits and drawings to occur on the next Distribution Date and
the payment of principal on the Notes of such Series to be made
on such Distribution Date pursuant to Article IV), the Principal
Amount of the Notes of such Series would be greater than zero,
the Servicer shall sell, dispose of, or otherwise liquidate, in a
commercially reasonable manner and on commercially reasonable
terms (which shall include the solicitation of competitive bids
from Persons who are not Affiliates of Seller), within 60 days of
such Determination Date, an amount of Contracts in the Contract
Pool and related Equipment (or interests therein) equal to the
product of (i) the Series Allocation Percentage for such Series
and the ADCB on such Determination Date provided, that the
Servicer shall give the Seller at least 15 days' advance written
notice of such sale, disposition or other liquidation. The
proceeds of such sale, disposition or liquidation shall be
applied on the first Distribution Date following receipt to the
repayment of the outstanding Principal Amount of the Class A
Notes of such Series (determined after giving effect to any
payments on such Distribution Date under Article IV hereof) plus
unpaid interest thereon to the date of payment at the Interest
Rate for such Series of Class A Notes. Any remaining proceeds
shall be held in the Termination Account for such Series and
applied on each Distribution Date first, to the Class B Notes of
such Series to the extent that after giving effect to such
application the sum of (i) the ADCB and (ii) aggregate amounts
(other than Investment Earnings) on deposit in the Reserve
Account and (iii) aggregate amounts on deposit in the Termination
Accounts shall not be less than the sum of the Principal Amounts
of all Series of Class A Notes and second, to the Class C Notes
of such Series to the extent that after giving effect to such
application the sum of (i) the ADCB and (ii) aggregate amounts
(other than Investment Earnings) on deposit in the Reserve
Account and (iii) aggregate amounts on deposit in the Termination
Accounts shall not be less than the sum of the Principal Amounts
of all Series of Class B Notes. Amounts on deposit in each
Termination Account shall be applied solely as provided in this
Section 13.2. The Contracts to be sold hereunder shall be chosen
at random by the Servicer. The Seller shall have the option,
exercisable at any time after the Servicer has obtained an offer
from any Person that is not an Affiliate of the Seller and prior
to the consummation of such sale, disposition or liquidation by
giving notice of the exercise thereof to the Servicer, to
purchase such Contracts for cash (payable in immediately payable
funds on the Maturity Date) for the lesser of (i) 100% of the
Discounted Contract Balance of such Contracts, or (ii) the
highest price offered therefor pursuant to such proposed sale,
disposition or other liquidation. The proceeds received upon the
sale, disposition or other liquidation of such Contracts shall be
distributed to the Holders of the Notes of each Series in final
payment thereof. Proceeds received in excess of the amount to be
applied to a Series of Notes as aforesaid shall be treated as
Collections on the Contracts in the Contract Pool and shall be
allocated and deposited in accordance with the provisions of
Article IV. In the event that the proceeds received upon the
sale, disposition or other liquidation of such Contracts is less
than the sum of (i) the Principal Amount with respect to a Class
of Notes of a Series and (ii) unpaid interest thereon at the
Interest Rate for such Notes, the Servicer will make a withdrawal
or drawing or take other action permitted by any applicable
Enhancement, and shall pay all amounts thereby obtained to the
Applicable Indenture Trustee for deposit in the Note Payment
Account on such Maturity Date, and the amount so withdrawn shall
be distributed to the Holders of Notes of such Series in final
payment thereof; provided, that if the Servicer fails to make
such withdrawal or drawing or take such other action, then the
Collateral Agent may make such withdrawal or drawing.
(c) On or prior to the sale of Contracts in connection
with the payment of a Series of Notes pursuant to Subsection
13.2(b), the Servicer shall cause to be established and
maintained in the name of the Collateral Agent on behalf of the
Secured Parties, with a Qualified Institution designated by the
Servicer (which may include the Collateral Agent), a segregated
trust account within the corporate trust department of such
Qualified Institution (with respect to such Series, the
"Termination Account"), bearing a designation clearly indicating
that the funds deposited therein are held in trust for the
benefit of the Secured Parties. The Collateral Agent shall
possess all right, title and interest in all funds on deposit
from time to time in each Termination Account and in all proceeds
thereof. Pursuant to the authority granted to it pursuant to
subsection 3.1(b), the Servicer shall have the revocable power to
instruct the Collateral Agent to make withdrawals and payments
from the Termination Accounts for the purposes of carrying out
its duties hereunder and under any supplement hereto.
Section 13.3 Termination Transfer. Upon the
termination of the Trust pursuant to Section 13.1, the Issuer
Trustee, on behalf of the Trust, and the Collateral Agent, as
appropriate, shall return to the Seller or any permitted assignee
(without recourse, representation or warranty) all right, title
and interest of the Trust in, to and under the Trust Assets.
Each of the Collateral Agent and the Issuer Trustee shall execute
and deliver such instruments of transfer, in each case prepared
by the Seller and without recourse, representation or warranty,
as shall be reasonably requested by the Seller or its assignee,
to vest in such Person all right, title and interest that the
Trust had in such assets. In connection with any such request,
the Seller shall deliver to the Collateral Agent and the Issuer
Trustee an Officers' Certificate, upon which each of the
Collateral Agent and the Issuer Trustee may conclusively rely,
certifying that such transfer is authorized or permitted by this
Agreement, and that all conditions precedent to such transfer
have been satisfied.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
Section 14.1 Amendment. (a) This Agreement
(including any Supplement) may be amended from time to time by
the Servicer, the Seller, the Issuer Trustee and the Collateral
Agent, without the consent of any of the Noteholders, (i) to cure
any ambiguity, to revise any exhibits or Schedules, to correct or
supplement any provisions herein or thereon or (ii) to add any
other provisions with respect to matters or questions raised
under this Agreement which shall not be inconsistent with the
provisions of this Agreement; provided, however, that such action
shall not, as evidenced by an Opinion of Counsel delivered to the
Issuer Trustee, the Collateral Agent and the Indenture Trustee,
adversely affect in any material respect the interests of any of
the Noteholders.
(b) This Agreement and any Supplement may also be
amended from time to time by the Servicer, the Seller, the Issuer
Trustee, the Collateral Agent, with the consent of each Indenture
Trustee, Class B Noteholders representing more than 66-2/3% of
the Principal Amount of each and every Series of Class B Notes
and Class C Noteholders representing more than 66-2/3% of the
Principal Amount of each and every Series of Class C Notes, for
the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Noteholders of any
Series then issued and outstanding; provided, however, that no
such amendment under this subsection shall
(i) reduce in any manner the amount of, or delay the timing
of, distributions which are required to be made on any Note
of a Series without, in addition to each Indenture Trustee,
the consent of each Noteholder, as applicable, affected
thereby;
(ii) change the definition of (or that of any definition
included within the definition of) or the manner of
calculating the "Applicable Class Percentage", the
"Controlling Party", the "Class A Principal Payment Amount",
the "Class B Principal Payment Amount", the "Class C
Principal Payment Amount", the "Discounted Contract
Balance", the "Principal Amount", the "Series Available
Amount" or the "Series Allocation Percentage" without, in
addition to each Indenture Trustee, the consent of each
Noteholder; or
(iii) modify any of the provisions of this Section 14.1
without, in addition to each Indenture Trustee, the consent
of each Noteholder; or
(iv) modify, amend or supplement the provisions of Article
IV or Section 6.1 hereof without the consent of each
Indenture Trustee and each Noteholder; or
(v) make any Note payable in money other than Dollars
without the consent of each Indenture Trustee and each
Noteholder;
provided, however, that no such consent shall be required of (x)
any Indenture Trustee to the extent that all Class A Notes under
such Indenture and all other amounts owing to the Class A
Noteholders thereunder have been irrevocably paid in full or (y)
any Subordinated Noteholder in respect of any Subordinated Note
held by such Subordinated Noteholder to the extent that such
Subordinated Note and all other amounts owing to such
Subordinated Noteholder under the applicable Note Agreement have
been irrevocably paid in full.
(c) It shall not be necessary to obtain the consent of
Noteholders under this Section 14.1 to approve the particular
form of any proposed amendment, but it shall be sufficient if
such consent shall approve the substance thereof. The manner of
obtaining such consents and of evidencing the authorization of
the execution thereof by Noteholders shall be subject to such
reasonable requirements as the Issuer Trustee may prescribe.
(d) Any Supplement executed and delivered pursuant to
Section 6.2 and any amendments regarding the addition to or
removal of Contracts from the Trust as provided in Sections 2.5
or 6.2, executed in accordance with the provisions hereof, shall
not be considered amendments to this Agreement for the purpose of
Section 14.1.
(e) In connection with any amendment, the Issuer
Trustee may request, in addition to the Opinion of Counsel
required by subsection 14.2(d), an Opinion of Counsel from Seller
or the Servicer to the effect that the amendment is authorized or
permitted by, and complies with all requirements of, this
Agreement. For the purposes of this Section 14.2(e), such
Opinion of Counsel may not be provided by internal counsel. The
Issuer Trustee may, but shall not be obligated to, enter into any
amendment which affects the Issuer Trustee's rights, duties or
immunities under this Agreement or otherwise.
(f) In connection with any amendment, the Indenture
Trustee may request an Officers' Certificate (and, to the extent
required in the Applicable Indenture, an Opinion of Counsel,) to
the effect that such amendment shall not materially adversely
affect the interests of the Class A Noteholders and does not
require the consent of each Class A Noteholder pursuant to the
Applicable Indenture.
(g) If, in the opinion of the institution acting as
Issuer Trustee or the institution acting as the Collateral Agent,
any document required to be executed pursuant to the terms of
Section 14.1 affects any right, duty, immunity or indemnity with
respect to it under this Agreement, the Collateral Agent and the
Issuer Trustee, as the case may be, may in their discretion
decline to execute such document.
(h) Every supplemental agreement executed pursuant to
this Article shall conform to the requirements of the Trust
Indenture Act as then in effect.
(i) Upon the execution of any agreement supplemental
hereto pursuant to the provisions hereof, this Agreement shall be
and be deemed to be modified and amended in accordance therewith
and the respective rights, limitations of rights, obligations,
duties and immunities under this Agreement of the parties hereto
and beneficiaries hereof shall therefore be determined, exercised
and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of
any such supplemental agreement shall be and be deemed to be part
of the terms and conditions of this Agreement for any and all
purposes.
Section 14.2 Protection of Right, Title and Interest
to Trust. (a) The Servicer shall cause this Agreement, all
amendments hereto and/or all financing statements and
continuation statements and any other necessary documents
covering the Holders' and the Collateral Agent's right, title and
interest to the Trust Assets to be promptly recorded, registered
and filed, and at all times to be kept recorded, registered and
filed, all in such manner and in such places as may be required
by law fully to preserve and protect the right, title and
interest of the Collateral Agent hereunder to all property
comprising the Trust Assets. The Servicer shall deliver to the
Collateral Agent file-stamped copies of, or filing receipts for,
any document recorded, registered or filed as provided above, as
soon as available following such recording, registration or
filing. The Seller shall cooperate fully with the Servicer in
connection with the obligations set forth above and will execute
any and all documents reasonably required to fulfill the intent
of this subsection 14.2(a).
(b) Within 30 days after the Seller makes any change
in its name, identity or corporate structure which would make any
financing statement or continuation statement filed in accordance
with paragraph (a) above seriously misleading within the meaning
of Section 9-402 of the UCC as in effect in the state where such
financing statement or continuation statement was filed, the
Seller shall give the Issuer Trustee, the Collateral Agent and
the Rating Agencies notice of any such change and shall file such
financing statements or amendments as may be necessary to
continue the perfection of the Collateral Agent's security
interest in the Trust Assets and the proceeds thereof.
(c) The Servicer will give the Issuer Trustee and the
Collateral Agent prompt written notice of any relocation of any
office from which it services Contracts in the Contract Pool or
keeps the Contract Files or of its principal executive office and
whether, as a result of such relocation, the applicable
provisions of the UCC or any other applicable law governing the
perfection of interests in property would require the filing of
any amendment of any previously filed financing or continuation
statement or of any new financing statement and shall file such
financing statements or amendments as may be necessary to
continue the perfection of the Collateral Agent's security
interest in the Contracts in the Contract Pool and the proceeds
thereof. The Servicer will at all times maintain each office
from which it services Contracts in the Contract Pool within the
United States of America.
(d) The Servicer will deliver to the Issuer Trustee:
(i) upon the execution and delivery of each amendment of Articles
I, II, III or IV other than amendments pursuant to subsection
14.1(a) an Opinion of Counsel in the form and substance
reasonably satisfactory to the Issuer Trustee; and (ii) on or
before April 15 of each year, beginning with April 15, 1996 an
Opinion of Counsel, dated as of a date during the preceding
90-day period, in the form and substance reasonably satisfactory
to the Issuer Trustee;
Section 14.3 Limitation on Control of Trust by
Holders. No Holder shall have any right to vote (except with
respect to the Noteholders as provided in Section 14.1) or in any
manner otherwise control the operation and management of the
Trust, or the obligations of the parties hereto, nor shall
anything herein set forth, or contained in the terms of the
Notes, be construed so as to constitute the Noteholders from time
to time as partners or members of an association; nor shall any
such Holder be under any liability to any third person by reason
of any action taken by the parties to this Agreement pursuant to
any provision hereof.
SECTION 14.4 GOVERNING LAW. THIS AGREEMENT SHALL IN
ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE
PROVISIONS THEREOF GOVERNING CONFLICTS OF LAW, INCLUDING ALL
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 14.5 Notices. All demands, notices and
communications hereunder shall be in writing (including by
facsimile) and shall be deemed to have been duly given if
personally delivered (including by overnight courier) at or
mailed by registered mail, return receipt requested, (a) in the
case of the Servicer, to Newcourt Credit Group Inc., BCE Place,
181 Bay Street, Suite 3500, P.O. Box 827, Toronto, Ontario,
Canada M5J 2T3, Attn: Daniel A. Jauernig, Treasurer, with a copy
to the Seller (b) in the case of Seller, to Newcourt Receivables
Corporation, 10 Almaden Boulevard, Suite 500, San Jose,
California 95113, Attn: K. Nicholas Martitsch, with a copy to the
Servicer, (c) in the case of the Collateral Agent, to Fleet
National Bank, 777 Main Street, 11th Floor, Hartford, Connecticut
06115, Attn: Corporate Trust Administration, (d) in the case of
the Issuer Trustee, to Chemical Bank Delaware, 1201 Market
Street, Wilmington, Delaware, 19801, Attn: Corporate Trustee
Administration Department, (e) in the case of the Credit Enhancer
for a particular Series the address, if any, specified in the
Supplement relating to such Series, (f) in the case of Moody's,
to Moody's Investors Service, Inc., 99 Church Street, New York,
New York 10007, Attn: ABS Monitoring Department, 4th Floor, and
(g) in the case of Standard & Poor's, to Standard & Poor's
Ratings Group, 25 Broadway, New York, New York 10004, Attention:
Structured Finance Surveillance; or, as to each party, at such
other address as shall be designated by such party in a written
notice to each other party. Any notice required or permitted to
be mailed to a Holder shall be given by first class mail, postage
prepaid, (i) in the case of a Class A Noteholder, to the
Applicable Indenture Trustee for mailing to such Holder pursuant
to the terms of the Applicable Indenture and (ii) in the case of
a Subordinated Noteholder, at the address and in the manner
specified in the Note Agreement pursuant to which such Holder
purchased its Note. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to
have been duly given, whether or not the Holder receives such
notice.
Section 14.6 Severability of Provisions. If any one
or more of the covenants, agreements, provisions or terms of this
Agreement shall for any reason whatsoever be held invalid, then
such covenants, agreements, provisions or terms shall be deemed
severable from the remaining covenants, agreements, provisions or
terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or of
the Notes or rights of the Holders thereof or any Credit
Enhancer.
Section 14.7 Rule 144A Information. For so long as
any of the Notes of any Series or any Class are restricted
securities within the meaning of Rule 144(a)(3) under the
Securities Act of 1933, as amended, each of the Seller, the
Servicer, the Issuer Trustee, the Collateral Agent and any Credit
Enhancer agree to cooperate with each other to provide to any
Noteholders of such Series or Class and to any prospective
purchaser of Notes designated by such a Noteholder upon the
request of such Noteholder or prospective purchaser, any
information required to be provided to such holder or prospective
purchaser to satisfy the condition set forth in Rule 144A(d)(4)
under the Act.
Section 14.8 Notes Nonassessable and Fully Paid. It is
the intention of the parties to this Agreement that the Notes
shall not be liable for obligations of the Trust, that the
interests in the Trust Assets represented by the Notes shall be
nonassessable for any losses or expenses of the Trust or for any
reason whatsoever, and that Notes upon authentication thereof by
the Issuer Trustee pursuant to Sections 2.1 and 6.2 are and shall
be deemed fully paid.
Section 14.9 Further Assurances. Seller and the
Servicer agree to do and perform, from time to time, any and all
acts and to execute any and all further instruments required or
reasonably requested by the Issuer Trustee or the Collateral
Agent more fully to effect the purposes of this Agreement,
including, without limitation, the execution of any financing
statements or continuation statements relating to the Trust
Assets for filing under the provisions of the UCC of any
applicable jurisdiction.
Section 14.10 No Waiver; Cumulative Remedies. No
failure to exercise and no delay in exercising, on the part of
the Issuer Trustee, the Collateral Agent or the Noteholders, any
right, remedy, power or privilege hereunder, shall operate as a
waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exhaustive of
any rights, remedies, powers and privileges provided by law.
Section 14.11 Counterparts. This Agreement may be
executed in two or more counterparts (and by different parties on
separate counterparts), each of which shall be an original, but
all of which together shall constitute one and the same
instrument.
Section 14.12 Third-Party Beneficiaries. This
Agreement shall inure to the benefit of and be binding upon the
parties hereto, the Holders and, to the extent provided in any
Supplement, the Credit Enhancer named therein, and their
respective successors and permitted assigns. Except as otherwise
provided in this Agreement or any Supplement, no other Person
will have any right or obligation hereunder.
Section 14.13 Actions by Holders. (a) Wherever in
this Agreement a provision is made that an action may be taken or
a notice, demand or instruction given by Noteholders, such
action, notice or instruction may be taken or given by any
Noteholder, unless such provision requires a specific percentage
of Noteholders.
(b) Any request, demand, authorization, direction,
notice, consent, waiver or other act by a Holder shall bind such
Holder and every subsequent Holder of such Note, as the case may
be, issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done
or omitted to be done by the Issuer Trustee, the Collateral
Agent, the Seller or the Servicer in reliance thereon, whether or
not notation of such action is made upon such Note, as the case
may be.
(c) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this
Agreement or any Supplement to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing; and except as herein
otherwise expressly provided, such action shall become effective
when such instrument or instruments are delivered to the Issuer
Trustee and, when required, to the Collateral Agent, the Seller
or the Servicer. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any
purpose of this Agreement or any Supplement and conclusive in
favor of the Issuer Trustee, the Collateral Agent, the Seller and
the Servicer, if made in the manner provided in this Section.
(d) The fact and date of the execution by any Holder
of any such instrument or writing may be proved in any reasonable
manner which the Issuer Trustee deems sufficient.
Section 14.14 Merger and Integration. Except as
specifically stated otherwise herein, this Agreement sets forth
the entire understanding of the parties relating to the subject
matter hereof, and all prior understandings, written or oral, are
superseded by this Agreement. This Agreement may not be
modified, amended, waived or supplemented except as provided
herein.
Section 14.15 No Bankruptcy Petition. The Collateral
Agent, the Servicer, each Holder and the Issuer Trustee,
severally and not jointly, hereby covenants and agrees that,
prior to the date which is one (1) year and one (1) day after the
payment in full of all Notes, it will not institute against, or
join any other Person in instituting against, the Seller or the
Trust any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or other similar proceeding under the
laws of the United States or any state of the United States.
Nothing in this Section 14.15 shall preclude, or be deemed to
estop, the Collateral Agent, the Servicer, any Holder or the
Issuer Trustee from taking (to the extent such action is
otherwise permitted to be taken by such Person hereunder) or
omitting to take any action prior to such date in (i) any case or
proceeding voluntarily filed or commenced by or on behalf of the
Seller or the Trust under or pursuant to any such law or (ii) any
involuntary case or proceeding pertaining to the Seller or the
Trust under or pursuant to any such law.
Section 14.16 Jurisdiction. The Servicer hereby
irrevocably and unconditionally:
(i) submits for itself and its property in any legal action
arising out of this Agreement or any related document to
which it is a party, or the conduct of any party with
respect thereto, or for recognition and enforcement of any
judgment in respect thereof, to the nonexclusive general
jurisdiction of the courts of the state of New York, the
courts of the United States of America for the Southern
District of New York, and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be
brought in such courts and waives to the fullest extent
permitted by law any objection it may now or hereafter have
to the venue of any such action or proceeding in any such
court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the
same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by
registered, certified or any substantially similar form of
mail, postage prepaid, to the Servicer at its address set
forth herein or at such other address of which the parties
shall have been notified pursuant hereto; and
(iv) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by
law or shall limit the right to sue in any jurisdiction.
Section 14.17 Headings. The headings herein are for
purposes of reference only and shall not otherwise affect the
meaning or interpretation of any provision hereof.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be duly executed by their respective officers as of
the day and year first above written.
NEWCOURT RECEIVABLES CORPORATION
By: /s/ Daniel A. Jauernig
___________________________
Title:
NEWCOURT CREDIT GROUP INC.
By: /s/ Daniel A. Jauernig
___________________________
Title:
FLEET NATIONAL BANK, as Collateral
Agent
By: /s/ Susan T. Keller
___________________________
Title: Vice President
CHEMICAL BANK DELAWARE,
as Issuer Trustee
By: /s/ John Cashin
___________________________
Title: Senior Trust Officer
EXHIBIT A
[RESERVED]
EXHIBIT B
Form of Assignment of Additional Contracts
[RESERVED]
EXHIBIT C
Form of Opinion of Counsel
[RESERVED]
EXHIBIT D
[RESERVED]
<TABLE>
<CAPTION>
EXHIBIT E
FORM OF MONTHLY NOTEHOLDER'S REPORT
<S> <C> <C> <C> <C> <C>
Newcourt Receivables Asset Trust
Monthly Servicer Certificate - Accounts Master Trust
Collection Reserve Distribution Series Series
Account Account Account 1995-1 1996-1
Beginning Account Balances
Collection Account
Collections from the Lockbox Account
Add: Servicer Advances
Add: Liquidation Proceeds from Servicer
Add: Earnings from Eligible Investments
Less: Collections to reimburse Servicer Advances
Reserve Account
Add: Investment Earnings on Reserve Account
Available Amount
Payments on Payment Date
(A) Unreimbursed Servicer Advances
(B) Servicing Fee
(C) Amount owed to Hedging Counterparty
(D) Series Available Amount to each Series of Notes
(1) Class A Interest
(2) Class B Interest
(3) Class A Principal
(4) Reserve Account
(5) Pay to Hedging Counterparty
(6) Class B Principal
(7) Class C Interest
(8) Class C Principal
(9) Class A Accelerated Principal Payment
(10) Class B Accelerated Principal Payment
(11) Class C Accelerated Principal Payment
(12) Class C Additional Interest Payment
Subtotal
Distributions to Noteholders
Ending Balance
Newcourt Receivables Asset Trust
Monthly Servicer Certificate
Minimum Subordination Amount
Aggregate Discounted Contract Balance
Add: Available Amount
Add: Reserve Account
Less: Class A Principal Balance
Subordination Amount
Minimum Required Subordination Amount
Restricting Event Calculations
(1) Event of Default under the Servicing Agreement (Yes/No)
(a) Average Discounted Lease Balance greater than 30 days
delinquent Average Aggregate Discounted Contract
Balance
Delinquency Ratio
Maximum Delinquency Ratio
(b) Aggregate ADCB Defaulted Contracts Multiplier
Average Aggregate Discounted Lease Balance
Default Ratio
Maximum Default Ratio
(c) Reserve plus APB Subordination
(d) Restricting Event under any Indenture
Newcourt Receivables Asset Trust
Monthly Servicer Certificate
Portfolio Performance Tests
<S> <C> <C> <C> <C> <C> <C>
1 months prior 2 months prior 3 months prior 4 months prior 5 months prior 6 months prior
Current (yes/no) (yes/no) (yes/no) (yes/no) (yes/no) (yes/no)
Event of Default:
Monthly
Delinquencies Delinquencies ADCB Delinquency
2 months prior
1 month prior
Current
Delinquency Ratio:
Maximum Delinquency Ratio:
Monthly
Defaults Defaults ADCB Defaults
5 months prior
4 months prior
3 months prior
2 monthsprior
1 month prior
Current
Default Ratio:
Maximum Default Ratio:
Enhancement Floor
Amounts on deposit in the Reserve Account
Aggregate Principal Amount of Class B Notes
Newcourt Receivables Asset Trust
Monthly Servicer Certificate - Certificate
Schedules
Certificate Factors
Series 1995-1
Class A
Current A Balance
Initial A Balance
Certificate Factor:
Class B
Current B Balance
Initial B Balance
Certificate Factor:
Class C
Current C Balance
Initial C Balance
Certificate Factor:
Delinquencies Monthly
Delinquencies ADCB Delinquencies
Current
30 Days Past Due
60 Days Past Due
90 Days Past Due
120 Days Past Due
150 Days Past Due
Delinquent (180 + Days Past Due)
(Contract Pool Performance Test (Per Prospectus
P&S Agreement)
Newcourt Receivables Asset Trust
Monthly Servicer Certificate - Schedules
Series 1995-1 Series 1996-1
Class A Interest Schedule
Opening Class A Principal Balance % %
Class A Interest Rate % %
30/360*Class A Interest Rate
Current Class A Interest Distribution
Prior Class A Interest Arrearage
Class A Interest Due
Series 1995-1 Series 1996-1
Class A Principal Schedule
Opening Class A Principal Balance
Prior Months Series ADCB
Current Months Series ADCB ___________ __________
Difference % %
Class A Share
Scheduled Principal Due
Prepayments
Defaults
Class A Total Due
Prior Class A Arrearage
Class A Principal Due
Class A Principal Distribution
Current Class A Arrearage
Interim Class A Principal Balance after Current Distribution
Accelerated Class A Distribution Amount
Ending Class A Principal Balance after Current Distribution
Series 1995-1 Series 1996-1
Class B Interest Schedule
Opening Class B Principal Balance % %
Class B Interest Rate % %
30/360*Class B Interest Rate
Current Class B Interest Distribution
Prior Class B Interest Arrearage
Class B Interest Due
Class B Principal Schedule
Opening Class B Principal Balance
Prior Months Series ADCB __________ ___________
Current Months Series ADCB
Difference % %
Class B Share
Scheduled Principal Due
Prepayments
Defaults
Class B Total Due
Prior Class B Arrearage
Class B Principal Due
Class B Principal Distribution
Current Class B Arrearage
Interim Class B Principal Balance after Current Distribution
Accelerated Class B Distribution Amount
Ending Class B Principal Balance after Current Distribution
Class C Interest Schedule
Opening Class C Principal Balance % %
Class C Interest Rate % %
30/360*Class C Interest Rate
Current Class C Interest Distribution
Prior Class C Interest Arrearage
Class C Interest Due
Class C Principal Schedule
Opening Class C Principal Balance
Prior Months Series ADCB
Current Months Series ADCB ____________ _______________
Difference
Class C Share % %
Schedule Principal Due
Prior Class C Arrearage
Class C Principal Due
Class C Principal Distribution
Current Class C Arrearage
Interim Class C Principal Balance after Current
Distribution
Accelerated Class C Distribution Amount
Ending Class C Principal Balance after Current
Distribution
Servicing Fee Schedule
Contract Pool ADCB
Servicing Rate
Monthly Servicing Rate
Prior Servicing Fee Arrearage
Current Servicer Fee
Servicer Fee Due
Current Servicing Fee Arrearage
Reserve Account Schedule
Series 1995-1 Series 1996-1
Required Balance
Lessor of Series 1995-1 Series 1996-1
(i) $2,000,000 times ___% ___%
Series Allocation
Percentage
or
(ii) Greater of
(x) $500,000 times
Series Allocation
Percentage ___% ___%
(y) 2% of Class A
Notes times
Series Allocation ___% ___%
</TABLE>
EXHIBIT F
[RESERVED]
EXHIBIT G
REQUEST FOR INSTRUMENT RELEASE
[DATE]
To: Collateral Agent
Re: Pooling, Collateral Agency and Servicing
Agreement, dated as of April 15, 1996, by and
among Newcourt Receivables Corporation, as Seller,
Newcourt Credit Group Inc,, as Servicer, Fleet
National Bank, as Collateral Agent and Chemical
Bank Delaware, as Issuer Trustee.
In connection with the administration of the
Instruments held by you as Collateral Agent under the above-
referenced Agreement, [___________], on behalf of [_______
_______], requests the releasee, and acknowledges receipt, of the
Instrument described below, for the reason indicated:
A. Contract Number:
B. Reason for Requesting Release (check one)
1. Contract Paid in Full.
2. Contract Repurchased Pursuant o the related
Purchase Agreement and/or the Pooling Agreement.
Written evidence to the Collateral Agent of
receipt of payment from is required prior
to release.
NEWCOURT CREDIT GROUP INC.,
as Servicer
By_________________________
Name:
Title:
Date:
NEWCOURT RECEIVABLES CORPORATION,
as Seller,
NEWCOURT CREDIT GROUP INC.,
as Servicer,
FLEET NATIONAL BANK,
as Collateral Agent,
and
CHEMICAL BANK DELAWARE,
as Issuer Trustee
on behalf of the Holders
of the NEWCOURT RECEIVABLES ASSET TRUST
POOLING, COLLATERAL AGENCY AND SERVICING AGREEMENT
Dated as of April 15, 1996
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS . . . . . . . . . . . . 1
Section 1.1 Definitions . . . . . . . . . . . . . . . . 1
Section 1.2 Other Definitional Provisions . . . . . . 34
SECTION 1.3 Compliance Certificates and Opinions . . 35
SECTION 1.4 Form of Documents Delivered to
Collateral Agent or Issuer Trustee . . 36
SECTION 1.5 Acts of Indenture Trustees . . . . . . . 37
SECTION 1.6 Acts of Noteholders . . . . . . . . . . . 37
SECTION 1.7 Designated Representatives . . . . . . . 38
SECTION 1.8 Controlling Party . . . . . . . . . . . . 39
SECTION 1.9 Business Day Certificate . . . . . . . . 39
ARTICLE II
CREATION OF TRUST; TRANSFER OF TRUST ASSETS . . . 39
Section 2.1 Creation of Trust; Transfer of Trust
Assets . . . . . . . . . . . . . . . . 39
Section 2.2 Acceptance by Issuer Trustee . . . . . . 42
Section 2.3 Grant of Security Interest . . . . . . . 43
Section 2.4 Representations and Warranties of Seller
Relating to Seller . . . . . . . . . . 46
Section 2.5 Representations and Warranties of Seller
Relating to the Agreement and the
Contracts . . . . . . . . . . . . . . . 48
Section 2.6 Covenants of Seller . . . . . . . . . . . 53
Section 2.7 Release of Lien on Equipment . . . . . . 57
Section 2.8 Hedging of Contracts After the Related
Addition Date . . . . . . . . . . . . . 57
ARTICLE III
ADMINISTRATION AND SERVICING OF CONTRACTS . . . . 58
Section 3.1 Appointment and Acceptance; Duties . . . 58
Section 3.2 Collection of Payments . . . . . . . . . 61
Section 3.3 Servicer Advances . . . . . . . . . . . . 63
Section 3.4 Realization Upon Defaulted Contract . . . 63
Section 3.5 Maintenance of Insurance Policies . . . . 63
Section 3.6 Representations and Warranties of
Servicer . . . . . . . . . . . . . . . 64
Section 3.7 Covenants of Servicer . . . . . . . . . . 66
Section 3.8 Servicing Compensation . . . . . . . . . 67
Section 3.9 Payment of Certain Expenses by Servicer . 67
Section 3.10 Monthly Report; Annual Report . . . . . . 68
Section 3.11 Annual Statement as to Compliance . . . . 68
Section 3.12 Annual Independent Public Accountant's
Servicing Reports . . . . . . . . . . . 68
Section 3.13 Tax Treatment . . . . . . . . . . . . . . 69
Section 3.14 Adjustments . . . . . . . . . . . . . . . 69
ARTICLE IV
RIGHTS OF NOTEHOLDERS AND ALLOCATION
AND APPLICATION OF COLLECTIONS . . . . . . 70
Section 4.1 Rights of Holders . . . . . . . . . . . . 70
Section 4.2 Establishment of Accounts . . . . . . . . 70
Section 4.3 Collections and Allocations . . . . . . . 72
Section 4.4 Interest Rate Hedges . . . . . . . . . . 79
Section 4.5 Reliance by Collateral Agent Upon
Information Provided . . . . . . . . . 81
[THE REMAINDER OF ARTICLE IV IS RESERVED AND
SHALL BE SPECIFIED IN ANY SUPPLEMENT
WITH RESPECT TO ANY SERIES] . . . . . . . 82
ARTICLE V
[ARTICLE V IS RESERVED AND SHALL
BE SPECIFIED IN ANY SUPPLEMENT
WITH RESPECT TO ANY SERIES] . . . . . . . 82
ARTICLE VI
THE PARTNERSHIP NOTES; NEW ISSUANCES . . . . . 82
Section 6.1 Note Transfer Restrictions . . . . . . . 82
Section 6.2 New Issuances; Addition of Contracts . . 84
ARTICLE VII
OTHER MATTERS RELATING TO SELLER . . . . . . 88
Section 7.1 Liability of Seller . . . . . . . . . . . 88
Section 7.2 Merger or Consolidation of, or
Assumption of the Obligations of,
Seller, etc. . . . . . . . . . . . . . 88
Section 7.3 Limitation on Liability of Seller . . . . 89
Section 7.4 Liabilities . . . . . . . . . . . . . . . 90
ARTICLE VIII
OTHER MATTERS RELATING TO THE SERVICER . . . . 90
Section 8.1 Liability of the Servicer . . . . . . . . 90
Section 8.2 Merger or Consolidation of, or
Assumption of the Obligations of, the
Servicer . . . . . . . . . . . . . . . 90
Section 8.3 Limitation on Liability of the Servicer
and Others . . . . . . . . . . . . . . 91
Section 8.4 Indemnification of the Seller, the
Trust, the Issuer Trustee, the
Collateral Agent and each Indenture
Trustee . . . . . . . . . . . . . . . . 92
Section 8.5 The Servicer Not to Resign . . . . . . . 93
Section 8.6 Access to Certain Documentation and
Information Regarding the Contracts . . 93
Section 8.7 Delegation of Duties . . . . . . . . . . 93
Section 8.8 Examination of Records . . . . . . . . . 93
ARTICLE IX
EVENTS OF DEFAULT . . . . . . . . . . 93
Section 9.1 Events of Default . . . . . . . . . . . . 93
Section 9.2 Additional Rights Upon the Occurrence of
Certain Events . . . . . . . . . . . . 95
Section 9.3 Limitation on Suits . . . . . . . . . . . 96
ARTICLE X
SERVICER DEFAULTS . . . . . . . . . . 97
Section 10.1 Servicer Defaults . . . . . . . . . . . . 97
Section 10.2 Collateral Agent to Act; Appointment of
Successor . . . . . . . . . . . . . . . 99
Section 10.3 Notification . . . . . . . . . . . . . . 101
Section 10.4 Waiver of Past Defaults . . . . . . . . . 101
ARTICLE XI
THE ISSUER TRUSTEE . . . . . . . . . 101
Section 11.1 Duties of Issuer Trustee . . . . . . . . 101
Section 11.2 Certain Matters Affecting the Issuer
Trustee . . . . . . . . . . . . . . . . 103
Section 11.3 Issuer Trustee Not Liable for Recitals
in Notes . . . . . . . . . . . . . . . 105
Section 11.4 Issuer Trustee May Own Notes . . . . . . 105
Section 11.5 Servicer to Pay Issuer Trustee's Fees
and Expenses . . . . . . . . . . . . . 105
Section 11.6 Eligibility Requirements for Issuer
Trustee . . . . . . . . . . . . . . . . 106
Section 11.7 Resignation or Removal of Issuer
Trustee . . . . . . . . . . . . . . . . 106
Section 11.8 Successor Issuer Trustee . . . . . . . . 107
Section 11.9 Merger or Consolidation of Issuer
Trustee . . . . . . . . . . . . . . . . 107
Section 11.10 Appointment of Co-Issuer Trustee or
Separate Issuer Trustee . . . . . . . . 108
Section 11.11 Tax Returns . . . . . . . . . . . . . . . 109
Section 11.12 Representations and Warranties of Issuer
Trustee . . . . . . . . . . . . . . . . 110
Section 11.13 Maintenance of Office or Agency . . . . . 110
Section 11.14 Requests for Agreement . . . . . . . . . 110
Section 11.15 Not Acting in Individual Capacity . . . . 110
ARTICLE XII
THE COLLATERAL AGENT . . . . . . . . . 111
Section 12.1 Duties of Collateral Agent . . . . . . . 111
Section 12.2 Certain Matters Affecting the Collateral
Agent . . . . . . . . . . . . . . . . . 114
Section 12.3 Collateral Agent May Own Notes . . . . . 116
Section 12.4 Servicer to Pay Collateral Agent's Fees
and Expenses . . . . . . . . . . . . . 116
Section 12.5 Eligibility Requirements for Collateral
Agent . . . . . . . . . . . . . . . . . 116
Section 12.6 Resignation or Removal of Collateral
Agent . . . . . . . . . . . . . . . . . 117
Section 12.7 Successor Collateral Agent . . . . . . . 117
Section 12.8 Merger or Consolidation of Collateral
Agent . . . . . . . . . . . . . . . . . 118
Section 12.9 Appointment of Co-Collateral Agent or
Separate Collateral Agent . . . . . . . 118
Section 12.10 Collateral Agent May Enforce Claims
Without Possession of Notes . . . . . . 120
Section 12.11 Suits for Enforcement . . . . . . . . . . 120
Section 12.12 Rights of Controlling Party to Direct
Collateral Agent . . . . . . . . . . . 120
Section 12.13 Representations and Warranties of
Collateral Agent . . . . . . . . . . . 121
Section 12.14 Collateral Agent Not Liable for Recitals
in Notes . . . . . . . . . . . . . . . 121
ARTICLE XIII
TERMINATION . . . . . . . . . . . 122
Section 13.1 Termination of Trust . . . . . . . . . . 122
Section 13.2 Optional Purchase of Notes and Final
Trust Termination Date . . . . . . . . 123
Section 13.3 Termination Transfer . . . . . . . . . . 125
ARTICLE XIV
MISCELLANEOUS PROVISIONS . . . . . . . . 126
Section 14.1 Amendment . . . . . . . . . . . . . . . . 126
Section 14.2 Protection of Right, Title and Interest
to Trust . . . . . . . . . . . . . . . 128
Section 14.3 Limitation on Control of Trust by
Holders . . . . . . . . . . . . . . . . 129
SECTION 14.4 GOVERNING LAW . . . . . . . . . . . . . . 129
Section 14.5 Notices . . . . . . . . . . . . . . . . . 130
Section 14.6 Severability of Provisions . . . . . . . 130
Section 14.7 Rule 144A Information . . . . . . . . . . 130
Section 14.8 Notes Nonassessable and Fully Paid . . . 131
Section 14.9 Further Assurances . . . . . . . . . . . 131
Section 14.10 No Waiver; Cumulative Remedies . . . . . 131
Section 14.11 Counterparts . . . . . . . . . . . . . . 131
Section 14.12 Third-Party Beneficiaries . . . . . . . . 131
Section 14.13 Actions by Holders . . . . . . . . . . . 131
Section 14.14 Merger and Integration . . . . . . . . . 132
Section 14.15 No Bankruptcy Petition . . . . . . . . . 132
Section 14.16 Jurisdiction . . . . . . . . . . . . . . 133
Section 14.17 Headings . . . . . . . . . . . . . . . . 133
EXHIBITS
Exhibit A: RESERVED
Exhibit B: Form of Assignment of Additional Contracts
Exhibit C: Form of Opinion of Counsel with Respect to
Additional Contracts
Exhibit D: Reserved
Exhibit E: Form of Monthly Servicer's Certificate
Exhibit F: Documents and Records
Exhibit G: Form of Request for Instrument Release
SCHEDULES
Schedule 1 List of Contracts
Schedule 2 List of Lockboxes
Schedule 3 Identification of Accounts
Schedule 4 List of Instruments
SERIES 1996-2 SUPPLEMENT (as amended or supplemented
from time to time, the "Supplement") to the Pooling, Collateral
Agency and Servicing Agreement dated as of April 15, 1996 among
the Seller, the Servicer, the Collateral Agent, and the Issuer
Trustee (as amended, supplemented or otherwise modified from time
to time, the "Agreement"), dated as of September 17, 1996 among
(i) NEWCOURT RECEIVABLES CORPORATION, a Delaware corporation, as
Seller (the "Seller"), (ii) NEWCOURT CREDIT GROUP INC., an
Ontario corporation, as Servicer (the "Servicer"), (iii) FLEET
NATIONAL BANK, a national banking association, as Collateral
Agent (the "Collateral Agent"), (iv) CHASE MANHATTAN BANK
DELAWARE (formerly known as Chemical Bank Delaware), a banking
corporation organized and existing under the laws of Delaware,
not in its individual capacity but solely as Issuer Trustee (in
such capacity, the "Issuer Trustee") under the Agreement, and (v)
FLEET NATIONAL BANK, a national banking association, not in its
individual capacity but solely as Indenture Trustee (in such
capacity, the "Indenture Trustee") under the Indenture.
SECTION 1. Series 1996-2. The Series of Notes to be
issued pursuant to the Series 1996-2 Indenture shall be known as
the "Series 1996-2 Notes".
SECTION 2. Definitions.
(a) In the event that any term or provision contained
herein shall conflict with or be inconsistent with any provision
contained in the Agreement, the terms and provisions of this
Supplement shall govern.
(b) All Article, Section or subsection references
herein shall mean Articles, Sections or subsections of the
Agreement, as amended or supplemented by this Supplement, except
as otherwise provided herein.
(c) All capitalized terms not otherwise defined herein
are used herein as defined in the Agreement.
"Additional Series Contracts" shall have the meaning
assigned to it in Section 3(a).
"Additional Transferred Assets" shall have the meaning
assigned to it in Section 3(a).
"Closing Date" shall mean September 17, 1996.
"Commission" means the Securities and Exchange
Commission.
"Cutoff Date" shall mean July 31, 1996.
"Dollars" and "$" means lawful currency of the United
States of America.
"Effective Date" shall have the meaning assigned to it
in Section 7.
"Event of Default" shall have the meaning assigned to
it in the Agreement.
"Excess Spread Amount" shall mean Series Available
Amounts (excluding Excluded Amounts, Recoveries, late
payment fees, prepayment make-wholes and other non-Scheduled
Payments) remaining after distribution (iv)(G) of subsection
4.3(d) of the Agreement.
"Exchange Act" shall mean the Exchange Act of 1934, as
amended or supplement from time to time.
"Existing Contracts and Security" shall have the
meaning assigned to it in Section 3(a).
"Existing Indentures" shall be a collective reference
to each Indenture pursuant to which a Series of Class A
Notes has been heretofore issued.
"Existing Supplements" shall be a collective reference
to each Supplement pursuant to which a Series of Class B
Notes or Class C Notes has been heretofore issued.
"Indenture Trustee" shall mean Fleet National Bank, a
national banking association, and any successor indenture
trustee appointed under the Series 1996-2 Indenture.
"Initial Letter of Credit Draw" shall mean the drawing
to be made on the Letter of Credit on the Closing Date in
the amount of all Collections received by PBCC, as
determined by the Servicer, during the period from and
including the Cutoff Date to but excluding the Closing Date.
"Initial Principal Amount" shall mean the sum of the
Initial Series 1996-2 Class A Principal Amount, the Initial
Series 1996-2 Class B Principal Amount and the Initial
Series 1996-2 Class C Principal Amount.
"Initial Purchaser" shall mean, with respect to any
Series 1996-2 Class B Notes or Series 1996-2 Class C Notes,
as the case may be, the parties set forth on Schedule 1
hereto.
"Initial Series 1996-2 Class A Principal Amount" shall
mean $169,810,862.
"Initial Series 1996-2 Class B Principal Amount" shall
mean $7,383,081.
"Initial Series 1996-2 Class C Principal Amount" shall
mean $7,383,081.
"Institutional Investor" means (a) any Initial
Purchaser of a Series 1996-2 Class B Note or Series 1996-2
Class C Note, (b) any Holder of a Series 1996-2 Class B Note
or Series 1996-2 Class C Note holding more than 50% of the
aggregate principal amount of the Series 1996-2 Class B
Notes or Series 1996-2 Class C Notes, respectively, then
outstanding, and (c) any bank, trust company, savings and
loan association or other financial institution, any pension
plan, any investment company, any insurance company, any
broker or dealer, or any other similar financial institution
or entity, regardless of legal form.
"Interim Period" shall mean the period from and
including the Closing Date to but excluding November 1, 1996.
"Issuer" shall mean Newcourt Receivables Asset Trust, a
Delaware business trust."
"Letter of Credit" shall mean the direct pay letter of
credit in the amount of $1,500,000 issued by the LOC Bank
for the account of the Servicer and in favor of the
Collateral Agent having a term commencing on the Closing
Date and expiring on November 30, 1996.
"LOC Bank" shall shall mean the Bank of America
Illinois, an Illinois banking corporation.
"Maturity Date" shall mean, in the case of the Series
1996-2 Class B Notes and the Series 1996-2 Class C Notes,
June 20, 2004.
"Minimum Amount" shall mean $4,152,983.
"Note Event of Default" shall have the meaning assigned
to it in Section 10.5(a).
"Note Register" shall have the meaning assigned to it
in Section 5.4.
"PBCC" shall mean Pitney Bowes Credit Corporation, a
Delaware corporation.
"PBCC Contracts" shall be a collective reference to the
Contracts acquired by Newcourt Financial USA Inc. from
Pitney Bowes Credit Corporation pursuant to that certain
Asset Purchase Agreement, dated as of May 31, 1996, between
Pitney Bowes Credit Corporation and Newcourt Financial USA
Inc.
"Principal Amount" shall mean, on any date of
determination, the sum of the Series 1996-2 Class A
Aggregate Principal Amount, the Series 1996-2 Class B
Aggregate Principal Amount and the Series 1996-2 Class C
Aggregate Principal Amount on such date of determination.
"Rating Agency" shall mean Standard & Poor's Ratings
Services.
"Record Date" shall mean, with respect to any
Distribution Date, the close of business on the last
Business Day of the preceding month.
"Required Holders" shall mean (i) prior to the payment
in full of the principal amount of and accrued interest on
the Class A Notes of all Series, Holders of Class A Notes
holding not less than 66-2/3% of the Aggregate Principal
Amount of all Class A Notes of all Series, (ii) from and
after the payment in full of the principal amount of and
accrued interest on the Class A Notes of all Series, Holders
of Class B Notes holding not less than 66-2/3% of the
Aggregate Principal Amount of all Class B Notes of all
Series and (iii) from and after the payment in full of the
principal amount of and accrued interest on the Class A
Notes and Class B Notes of all Series, Holders of Class C
Notes holding not less than 66-2/3% of the Aggregate
Principal Amount of all Class C Notes of all Series.
"Securities Act" means the Securities Act of 1933, as
amended from time to time.
"Series 1996-2" shall mean the Series 1996-2 Notes
issued by Newcourt Receivables Asset Trust.
"Series 1996-2 Class A Noteholder" shall mean the
Noteholder of any Series 1996-2 Class A Note.
"Series 1996-2 Class A Notes" shall be a collective
reference to the Series 1996-2 Class A Notes issued pursuant
to the Series 1996-2 Indenture.
"Series 1996-2 Class B Noteholder" shall mean the
Noteholder of any Series 1996-2 Class B Note.
"Series 1996-2 Class B Notes" shall be a collective
reference to the Series 1996-2 Class B Notes issued pursuant
to the Series 1996-2 Class B Note Purchase Agreement, dated
September 17, 1996, among the Seller, the Servicer and the
purchasers named therein.
"Series 1996-2 Class C Noteholder" shall mean the
Noteholder of any Series 1996-2 Class C Note.
"Series 1996-2 Class C Notes" shall be a collective
reference to the Series 1996-2 Class C Notes issued pursuant
to the Series 1996-2 Class C Note Purchase Agreement, dated
September 17, 1996, among the Seller, the Servicer and the
purchasers named therein.
"Series 1996-2 Indenture" shall mean the Class A Trust
Indenture dated as of September 17, 1996 among the Issuer,
the Seller, the Collateral Agent and the Indenture Trustee.
"Series 1996-2 Purchase Agreement" shall mean the
Purchase Agreement, dated as of September 16, 1996, between
Newcourt Financial USA Inc., as Seller, and Newcourt
Receivables Corporation, as Buyer, relating to the purchase
by Newcourt Receivables Corporation of the Additional Series
Contracts and related Equipment and Additional Security from
Newcourt Financial USA Inc.
"Series Transaction Agreements" shall have the meaning
assigned to it in Section 7(a).
"Trust Assets" means the Transferred Assets, the
Collection Account, the Reserve Account and the Termination
Account.
SECTION 3. Transfer of Trust Assets. (a) Pursuant to
the Agreement and the Existing Supplements, the Seller has sold,
transferred, assigned and set over to the Issuer all right, title
and interest of the Seller in, to and under the Contracts
described therein, the related Equipment and Applicable Security
(such Contracts, Equipment and Applicable Security, the "Existing
Contracts and Security") and the Seller does hereby confirm such
grants. The Seller does hereby sell, transfer, assign and set
over to the Issuer all right, title and interest of the Seller
in, to and under the following (the "Additional Transferred
Assets"):
(i) the Additional Contracts set forth on Schedule 2
attached hereto (the "Additional Series Contracts"), and all
monies due or to become due in payment of the Additional
Series Contracts on and after the Cut Off Date, any
Prepayment Amounts, any payments in respect of a casualty or
early termination, and any Recoveries received with respect
thereto, but excluding any Scheduled Payments due prior to
the Cut Off Date and any Excluded Amounts;
(iii) the Equipment related to the Additional Series
Contracts and, in the case of any Vendor Note, related
Applicable Security including all proceeds from any sale or
other disposition of such Equipment;
(iv) the Contract Files;
(v) all payments made or to be made in the future with
respect to the Additional Series Contracts or the Obligor
thereunder under any Program Agreements or Vendor Agreements
with the Financing Originator and under any guarantee or
similar credit enhancement with respect to the Additional
Series Contracts;
(vi) all Insurance Proceeds with respect to each
Additional Series Contract;
(vii) the Series 1996-2 Purchase Agreement, including,
without limitation, the obligation of the Financing
Originator party thereto to repurchase the Additional Series
Contracts under certain circumstances as specified therein;
and
(viii) all income and proceeds of the foregoing;
provided, that the Additional Transferred Assets shall not
include any Residual Investment other than a Guaranteed Residual
Investment.
(b) It is the express intent of the Seller and the
Issuer that the conveyance of Additional Transferred Assets
described in Section 3(a) on the Closing Date be construed as a
sale of the Additional Transferred Assets by the Seller to the
Issuer. It is, further, not the intention of the Seller or the
Issuer that such conveyance by deemed a grant of a security
interest in the Additional Transferred Assets by the Seller to
the Issuer to secure a debt or other obligation of the Seller to
the Issuer. However, in the event that, notwithstanding the
intent of the parties, the Additional Transferred Assets are held
to continue to be property of the Seller, then (i) this
Supplement also shall be deemed to be and hereby is a security
agreement within the meaning of the UCC; and (ii) the conveyance
by the Seller provided for in Section 3(a) shall be deemed to be
and the Seller hereby grants to the Issuer a security interest in
and to all of the Seller's right, title and interest in, to and
under the Additional Transferred Assets to secure a loan deemed
to have been made in an amount equal to the ADCB of the
Additional Series Contracts. The Seller and the Issuer shall, to
the extent consistent with this Supplement, take such actions as
may be necessary to ensure that, if this Supplement were deemed
to create a security interest in the Additional Transferred
Assets, such security interest would be deemed to be a perfected
security interest of first priority (subject to Permitted Liens)
in favor of the Issuer under applicable law and will be
maintained as such throughout the term of this Supplement;
provided that with respect to any item of Equipment with respect
to which title thereto or a security interest therein is required
to be noted on a certificate of title or otherwise recorded, the
Seller shall not be required to note the name of the Issuer or
the Collateral Agent on the certificate of title; provided
further, that to the extent financing statements or similar
filings are required with respect to any item of related
Equipment, the Seller shall be required to record such filings in
the Filing Locations. The Seller and the Issuer may rely upon an
Opinion of Counsel addressed to them as to what is required to
provide the Issuer with such security interest; and any such
Opinion of Counsel shall permit the Issuer Trustee and the
applicable Indenture Trustee, on behalf of the Noteholders, the
Noteholders (in the case of any Series issued in a private
placement exempt from the registration requirements of the
Securities Act), the Collateral Agent, and the Rating Agencies to
rely on it.
(c) The Issuer hereby grants to the Collateral Agent
for the benefit of the Secured Parties a first priority perfected
security interest in all of the Trust Assets, including without
limitation, the Additional Transferred Assets, to secure the
unpaid Principal Amount of the Notes issued and to be issued from
time to time under the Series 1996-2 Indenture, each Existing
Indenture, each Existing Supplement and this Supplement and the
interest accruing thereon at the applicable Interest Rates, and
agrees that this Supplement shall constitute a security agreement
under applicable law.
SECTION 4. Receipt, Distribution and Application from
the Trust Receipts.
4.1 Distribution Prior to Event of Default or
Restricting Event. Each payment received by the Collateral Agent
for the Series 1996-2 Class B Noteholders or the Series 1996-2
Class C Noteholders pursuant to Section 4.3(d) of the Agreement
shall be promptly distributed by the Collateral Agent in
accordance with such Section 4.3(d).
4.2 Optional Purchase by Seller; Trust Termination
Payments. (a) On any Distribution Date occurring on or after the
date on which the Principal Amount of the Class A Notes and Class
B Notes of all Series is 10% or less of the aggregate principal
amount of the Class A Notes and Class B Notes of all Series as of
their respective Closing Dates, the Seller at its sole option,
upon not less than 30 and not more than 60 days' notice to the
Issuer Trustee, the Servicer, the Collateral Agent, the Indenture
Trustee and the Noteholders, may purchase without penalty or
premium all, but not less than all, of the Class A Notes and
Class B Notes of all Series, including Series 1996-2. The
redemption price will be equal to the sum of the outstanding
principal amount of the Class A Notes and Class B Notes of all
Series, together with accrued interest thereon through the day
preceding the date of redemption. Upon receipt of the redemption
price of the Series 1996-2 Class B Notes, the Collateral Agent
will distribute the amount so received to the Holders of the
Series 1996-2 Class B Notes on such Distribution Date. Following
any redemption, the Series 1996-2 Class A Noteholders and the
Series 1996-2 Class B Noteholders will have no further rights
with respect to the Trust Assets.
(b) The Principal Amount of the Series 1996-2 Class B
Notes and the Series 1996-2 Class C Notes shall be due and
payable no later than the Maturity Date with respect to Series
1996-2 Class B Notes and Series 1996-2 Class C Notes,
respectively. Amounts received by the Collateral Agent on
account of any such sale, disposition or other liquidation and
available for distribution to the Series 1996-2 Class B
Noteholders or the Series 1996-2 Class C Noteholders as provided
in Section 13.2(b) of the Agreement shall be distributed to the
Holders of such Series 1996-2 Class B Notes or Series 1996-2
Class C Notes in final payment of such Series 1996-2 Class B
Notes or Series 1996-2 Class C Notes.
(c) As provided in Section 13.1 of the Agreement, the
Issuer shall terminate (to the extent provided therein) on the
Trust Termination Date. Amounts received by the Collateral Agent
in connection with the Trust Termination Date and available for
distribution to the Series 1996-2 Class B Noteholders and the
Series 1996-2 Class C Noteholders as provided therein shall be
distributed to the Holders of the Series 1996-2 Class B Notes and
Series 1996-2 Class C Notes, respectively, in final payment of
the Series 1996-2 Class B Notes and Series 1996-2 Class C Notes.
(d) The amount deposited pursuant to subsections
4.2(a), 4.2(b) and 4.2(c) shall be paid to the Series 1996-2
Class B Noteholders and Series 1996-2 Class C Noteholders in the
manner provided in Section 5.9.
(e) Written notice of any termination, specifying the
Distribution Date upon which the Series 1996-2 Class B
Noteholders or Series 1996-2 Class C Noteholders may surrender
their Series 1996-2 Class B Notes or Series 1996-2 Class C Notes
for payment of the final distribution and cancellation shall be
given (subject to at least four Business Days' prior notice from
the Servicer to the Collateral Agent) by the Collateral Agent to
such Series 1996-2 Class B Noteholders or Series 1996-2 Class C
Noteholders mailed not later than the fifth day of the month of
such final distribution specifying (i) the Distribution Date
(which shall be the Distribution Date in the month in which the
deposit is made pursuant to Sections 13.1 or 13.2 of the
Agreement) upon which final payment of the Series 1996-2 Class B
Notes or Series 1996-2 Class C Notes will be made upon
presentation and surrender of the Series 1996-2 Class B Notes or
Series 1996-2 Class C Notes at the office or offices therein
designated, (ii) the amount of any such final payment and (iii)
that the Record Date otherwise applicable to such Distribution
Date is not applicable, payments being made only upon
presentation and surrender of the Series 1996-2 Class B Notes or
Series 1996-2 Class C Notes at the office or offices therein
specified.
(f) All funds on deposit in the Collection Account, in
the case of a final payment, pursuant to Section 13.2 of the
Agreement and, in the case of a termination of the Trust,
pursuant to Section 13.1 of the Agreement (and notwithstanding
such termination), shall continue to be held in trust for the
benefit of the Class B Noteholders and Class C Noteholders,
including the Series 1996-2 Class B Noteholders and Series 1996-2
Class C Noteholders, and the Collateral Agent shall pay such
funds to the appropriate Noteholders upon surrender of their
Notes. In the event that all of the Series 1996-2 Class B
Noteholders or Series 1996-2 Class C Noteholders shall not
surrender their Series 1996-2 Class B Notes or Series 1996-2
Class C Notes, respectively, for cancellation within six months
after the date specified in the above-mentioned written notice,
the Collateral Agent shall give a second written notice to the
remaining Series 1996-2 Class B Noteholders or Series 1996-2
Class C Noteholders to surrender their Series 1996-2 Class B
Notes for cancellation and receive the final distribution with
respect thereto. If within one year after the second notice all
the Series 1996-2 Class B Notes or Series 1996-2 Class C Notes
shall not have been surrendered for cancellation, the Collateral
Agent may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Series 1996-2 Class B
Noteholders or Series 1996-2 Class C Noteholders concerning
surrender of their Series 1996-2 Class B Notes or Series 1996-2
Class C Notes, and the cost thereof shall be paid out of the
funds in the Collection Account held for the benefit of such
Series 1996-2 Class B Noteholders or Series 1996-2 Class C
Noteholders. The Collateral Agent shall pay to the Seller upon
request any monies held by it for the payment of principal or
interest which remains unclaimed for two years. After payment to
the Seller, the Series 1996-2 Class B Noteholders and Series
1996-2 Class C Noteholders entitled to the money must look only
to the Seller for payment as general creditors unless an
applicable abandoned property law designates another Person.
4.3 Distribution Following an Event of Default or a
Restricting Event. Except as otherwise provided in Section 4.4
hereof, each payment received by the Collateral Agent for the
Series 1996-2 Class B Noteholders or Series 1996-2 Class C
Noteholders pursuant to Section 4.3(e) of the Agreement shall be
promptly distributed by the Collateral Agent in accordance with
such Section 4.3(e).
4.4 Unclaimed Moneys. Any moneys deposited with or
paid to the Collateral Agent for the payment of the principal of
or interest on any Series 1996-2 Class B Note or Series 1996-2
Class C Note and not applied but remaining unclaimed for two
years after the date upon which such principal or interest shall
have become due and payable, shall, unless otherwise required by
mandatory provisions of applicable escheat or abandoned or
unclaimed property law, be paid, upon written request therefor by
the Servicer or the Issuer Trustee, to the Servicer or the Issuer
Trustee, and the Holder of such Series 1996-2 Class B Note or
Series 1996-2 Class C Note, as a general unsecured creditor,
shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property law,
thereafter look only to the Seller for any payment which such
Series 1996-2 Class B Noteholder or Series 1996-2 Class C
Noteholder may be entitled to collect, and all liability of the
Collateral Agent with respect to such moneys shall thereupon
cease.
4.5 Reliance by Collateral Agent Upon Information
Provided. In connection with the payments required to be made by
the Collateral Agent pursuant to this Supplement, the Collateral
Agent shall be fully protected in relying, on any Distribution
Date, on the Monthly Statement provided by the Servicer pursuant
to Section 9, for such Distribution Date. The Collateral Agent
shall have no obligation to verify, calculate or re-calculate any
amount set forth in any Monthly Statement. In the absence of a
Monthly Statement specifying amounts to be paid by the Collateral
Agent, the Collateral Agent shall be fully protected in relying
on written notice provided by any of the following Persons with
respect to any of the following information and shall have no
obligation to verify, calculate or re-calculate any amount set
forth in any such written notice:
(i) with respect to accrued interest for any specified
period and the unpaid principal amount of Series
1996-2 Class B Notes or Series 1996-2 Class C
Notes of any Series, the Servicer; and
(ii) with respect to any other matters required to be
determined in connection with any such payment,
the Servicer.
SECTION 5. The Series 1996-2 Notes.
5.1 The Notes. (a) The Series 1996-2 Notes shall
represent indebtedness of the Issuer secured by the Trust Assets
and the Issuer is obligated to pay principal of and interest on
the Series 1996-2 Notes out of the Trust Assets, in accordance
with Article IV of the Agreement.
(b) The Series 1996-2 Notes shall consist of the
Series 1996-2 Class A Notes, the Series 1996-2 Class B Notes and
the Series 1996-2 Class C Notes.
(c) Except as set forth in Section 5.4, the Series
1996-2 Class B Notes and the Series 1996-2 Class C Notes shall be
issuable in minimum denominations of $500,000 and $500,000,
respectively, and any amount in excess thereof, and shall not be
subdivided.
5.2 Form, Denomination and Dating. The Series 1996-2
Class B Notes and Series 1996-2 Class C Notes and the Issuer's
form of certificate of authentication to appear on the Series
1996-2 Class B Notes and Series 1996-2 Class C Notes shall each
be substantially in the form of (i) in the case of Series 1996-2
Class B Notes, Exhibit A hereto, (ii) in the case of Series 1996-
2 Class C Notes, Exhibit B hereto and (iii) in the case of the
Issuer's certificate of authentication for such Series 1996-2
Class B Notes and Series 1996-2 Class C Notes, Exhibit C hereto.
The Series 1996-2 Class B Notes and Series 1996-2 Class C Notes
shall contain such omissions, variations and insertions as are
permitted by this Supplement, and may have such letters, numbers
or other marks of identification and such legends or endorsements
printed, lithographed or engraved thereon, as may be required to
comply with law, the rules of any securities market in which such
Series 1996-2 Class B Notes or Series 1996-2 Class C Notes may be
admitted to trading or agreements to which the Issuer is subject,
if any, or to conform to any usage in respect thereof, or as may,
consistently herewith, be prescribed by the Issuer or by the
Responsible Officer of the Issuer Trustee executing such Series
1996-2 Class B Notes or Series 1996-2 Class C Notes, such
determination by such officer to be evidenced by his signing such
Series 1996-2 Class B Notes or Series 1996-2 Class C Notes on
behalf of the Issuer. The terms of the Series 1996-2 Class B
Notes and Series 1996-2 Class C Notes set forth in Exhibit A and
Exhibit B, respectively, are part of the terms of this
Supplement.
The definitive Series 1996-2 Class B Notes and the
definitive Series 1996-2 Class C Notes shall be printed,
typewritten, lithographed or engraved or produced by any
combination of these methods or may be produced in any other
manner permitted by the rules of any securities market in which
the Series 1996-2 Class B Notes or the Series 1996-2 Class C
Notes may be admitted to trading, all as determined by the
Responsible Officer of the Issuer Trustee executing such Series
1996-2 Class B Notes or Series 1996-2 Class C Notes on behalf of
the Issuer, as evidenced by such Officer's execution of such
Notes.
5.3 Execution and Authentication. (a) The Series
1996-2 Class B Notes and Series 1996-2 Class C Notes shall be
executed on behalf of the Issuer by one of the Responsible
Officers of the Issuer Trustee, as certified by the Issuer
Trustee. Any such signature may be a facsimile and may be
imprinted or otherwise reproduced. Series 1996-2 Class B Notes
and Series 1996-2 Class C Notes bearing the signatures of
individuals who were at any time the Responsible Officers of the
Issuer Trustee shall bind the Issuer, notwithstanding that such
individuals or any of them have ceased to hold such offices prior
to the authentication and delivery of such Series 1996-2 Class B
Notes or Series 1996-2 Class C Notes or did not hold such offices
at the respective dates of such Series 1996-2 Class B Notes or
Series 1996-2 Class C Notes. No Series 1996-2 Class B Notes or
Series 1996-2 Class C Notes shall be issued hereunder except
those provided for in Section 5.3(b) hereof and any Series 1996-2
Class B Notes or Series 1996-2 Class C Notes issued in exchange
or replacement therefor pursuant to the terms of this Supplement.
No Series 1996-2 Class B Note or Series 1996-2 Class C Note shall
be secured by or entitled to any benefit under this Supplement or
the Agreement or be valid or obligatory for any purpose, unless
there appears on such Series 1996-2 Class B Note or Series 1996-2
Class C Note a certificate of authentication in the form provided
for in Section 5.2 hereof executed by the Issuer Trustee by the
manual signature of one of its Responsible Officers or any
authenticating agent thereof appointed pursuant to subparagraph
(e) below, and such certificate upon any Series 1996-2 Class B
Note or Series 1996-2 Class C Note shall be conclusive evidence,
and the only evidence, that such Series 1996-2 Class B Note or
Series 1996-2 Class C Note has been duly authenticated and
delivered hereunder.
(b) On the Closing Date, the Issuer shall authenticate
and deliver (i) Series 1996-2 Class B Notes for original issue in
an aggregate principal amount of $7,383,081, and (ii) Series
1996-2 Class C Notes for original issue in an aggregate principal
amount of $7,383,081, each upon the written order of the Seller
signed by one of its Responsible Officers. Such order shall
specify the amount of the Series 1996-2 Class B Notes and Series
1996-2 Class C Notes to be authenticated and the date on which
the original issue of such Series 1996-2 Class B Notes and Series
1996-2 Class C Notes is to be authenticated and shall further
provide instructions concerning registration, amounts for each
Series 1996-2 Class B Noteholder and Series 1996-2 Class C
Noteholder and delivery.
(c) The aggregate principal amount of Series 1996-2
Class B Notes outstanding at any time may not exceed $7,383,081
except as provided in Section 5.5 hereof. The Series 1996-2
Class B Notes outstanding at any time shall be treated as a
single Class of Series 1996-2 Class B Notes for purposes of this
Supplement.
(d) The aggregate principal amount of Series 1996-2
Class C Notes outstanding at any time may not exceed $7,383,081,
except as provided in Section 5.5 hereof. The Series 1996-2
Class C Notes outstanding at any time shall be treated as a
single Class of Series 1996-2 Class C Notes for purposes of this
Supplement.
(e) The Issuer or the Issuer Trustee may appoint The
Chase Manhattan Bank or another authenticating agent reasonably
acceptable to the Collateral Agent to authenticate the Series
1996-2 Class B Notes and Series 1996-2 Class C Notes. Unless
limited by the terms of such appointment, an authenticating agent
may authenticate Series 1996-2 Class B Notes and Series 1996-2
Class C Notes whenever the Issuer Trustee may do so. Each
reference in this Supplement to authentication by the Issuer
Trustee includes authentication by such agent. An authenticating
agent has the same rights as any Note Registrar or agent for
service of notices and demands. The Issuer Trustee hereby
appoints The Chase Manhattan Bank, New York, New York, as its
authenticating agent for the Series 1996-2 Class B Notes and the
Series 1996-2 Class C Notes.
5.4 Registration, Transfer and Exchange of Series
1996-2 Class B Notes and Series 1996-2 Class C Notes. (a) The
Issuer Trustee shall keep or shall cause to be kept a register
(herein sometimes referred to as the "Note Register") in which
provisions shall be made for the registration of Series 1996-2
Class B Notes and Series 1996-2 Class C Notes and the
registration of transfers of such Series 1996-2 Class B Notes and
Series 1996-2 Class C Notes. The Note Register shall be kept at
the principal corporate trust office of The Chase Manhattan Bank,
and The Chase Manhattan Bank is hereby appointed "Note Registrar"
for the purpose of registering Series 1996-2 Class B Notes and
Series 1996-2 Class C Notes and transfers of Series 1996-2 Class
B Notes and Series 1996-2 Class C Notes as herein provided. The
Issuer Trustee shall give to any Holder of a Series 1996-2 Class
B Note or a Series 1996-2 Class C Note promptly upon request
therefor, a complete and correct copy of the names and addresses
of all registered Holders of Series 1996-2 Class B Notes or
Series 1996-2 Class C Notes, respectively. Upon surrender for
registration of transfer of any Series 1996-2 Class B Note or
Series 1996-2 Class C Note at the principal corporate trust
office of the Note Registrar, the Issuer shall execute and
deliver or cause to be delivered at the Issuer's expense (except
as provided below) in the name of the designated transferee or
transferees, one or more new Series 1996-2 Class B Notes or
Series 1996-2 Class C Notes of a like aggregate principal amount.
At the option of any Noteholder, its Series 1996-2 Class B Notes
or Series 1996-2 Class C Notes may be exchanged for other Series
1996-2 Class B Notes or Series 1996-2 Class C Notes of any
authorized denominations and of a like aggregate principal
amount, upon surrender of the Series 1996-2 Class B Notes or
Series 1996-2 Class C Notes, as applicable, to be exchanged at
the principal corporate trust office of the Note Registrar.
Whenever any Series 1996-2 Class B Note or Series 1996-2 Class C
Note is so surrendered for exchange, the Issuer shall execute and
deliver the Series 1996-2 Class B Notes or the Series 1996-2
Class C Notes, which the Noteholder making the exchange is
entitled to receive. Each such new Series 1996-2 Class B Note or
Series 1996-2 Class C Note shall be dated its date of
authentication and shall be entitled to such interest (or portion
thereof) as shall have been payable on the surrendered Series
1996-2 Class B Note or Series 1996-2 Class C Note, as the case
may be. The Note Registrar may require payment of a sum
sufficient to cover any stamp tax or governmental charge imposed
in respect of any such transfer of Series 1996-2 Class B Notes or
Series 1996-2 Class C Notes. Series 1996-2 Class B Notes and
Series 1996-2 Class C shall not be transferred in denominations
of less than $500,000 each, provided that if necessary to enable
the registration of transfer by a Holder of its entire holding of
Series 1996-2 Class B Notes or Series 1996-2 Class C Notes, one
Series 1996-2 Class B Note or Series 1996-2 Class C Note may be
in a denomination of less than $500,000.
(b) All Series 1996-2 Class B Notes or Series 1996-2
Class C Notes issued upon any registration of transfer or
exchange of Series 1996-2 Class B Notes or Series 1996-2 Class C
Notes shall be the valid obligations of the Issuer evidencing the
same respective obligations, and entitled to the same security,
priority and benefits under this Supplement and the Agreement, as
the Series 1996-2 Class B Notes or Series 1996-2 Class C Notes
surrendered upon such registration of transfer or exchange.
Every Series 1996-2 Class B Note or Series 1996-2 Class C Note
presented or surrendered for registration of transfer or exchange
shall (if so required by the Issuer or the Note Registrar) be
duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Issuer Trustee or the Note
Registrar duly executed by the Noteholder thereof or his attorney
duly authorized in writing, and the Issuer or the Note Registrar
may require evidence satisfactory to it as to the compliance of
any such transfer with the Securities Act. The Note Registrar
shall not be required to register the transfer of or exchange any
surrendered Series 1996-2 Class B Notes or Series 1996-2 Class C
Notes as above provided during the five day period preceding the
due date of any payment on such Series 1996-2 Class B Notes or
Series 1996-2 Class C Notes. The Note Registrar shall not be
required to exchange or register a transfer of any Series 1996-2
Class B Note for a period of 15 days immediately preceding the
first mailing of a notice of redemption of Series 1996-2 Class B
Notes. The Note Registrar shall not be required to exchange or
register a transfer of any Series 1996-2 Class C Note for a
period of 15 days immediately preceding the first mailing of a
notice of redemption of Series 1996-2 Class C Notes. The Issuer
Trustee or the Note Registrar shall give the Seller notice of any
registration of transfer of a Series 1996-2 Class B Note or
Series 1996-2 Class C Note under this Section 5.4.
(c) Upon request, the Collateral Agent shall be
entitled at any time and from time to time to obtain from the
Issuer the name and address of each Series 1996-2 Class B
Noteholder and each Series 1996-2 Class C Noteholder, as set
forth in the Note Register maintained by the Note Registrar as
provided in Section 5.4(a) hereof, and to communicate with one or
more of such Noteholders directly. Each and every Noteholder, by
receiving and holding a Series 1996-2 Class B Note or Series
1996-2 Class C Note, agrees with the Issuer and the Issuer
Trustee that none of the Issuer, the Note Registrar, the
Collateral Agent, the Seller, the Issuer Trustee or any agent of
the Issuer Trustee shall be held accountable by reason of the
disclosure of any such information as to the names and addresses
of the Noteholders in accordance with the provisions of the
immediately preceding sentence, regardless of the source from
which such information was derived, and that none of such Persons
shall be held accountable by reason of mailing any material
pursuant to a request made under the immediately preceding
sentence.
5.5 Mutilated, Destroyed, Lost or Stolen Notes.
(a) Upon notice to the Note Registrar of the mutilation,
destruction, loss or theft of any Series 1996-2 Class B Note or
Series 1996-2 Class C Note, the Issuer shall at the Issuer's own
expense, upon the written request of the affected Noteholder,
execute and deliver in replacement thereof (in the absence of
notice to the Issuer or the Note Registrar that such Series 1996-
2 Class B Note or Series 1996-2 Class C Note has been acquired by
a bona fide purchaser), a new Series 1996-2 Class B Note or
Series 1996-2 Class C Note in the same principal amount, dated
the date of such Series 1996-2 Class B Note or Series 1996-2
Class C Note and designated as issued under this Supplement. If
the Series 1996-2 Class B Note or Series 1996-2 Class C Note
being replaced has become mutilated, such Series 1996-2 Class B
Note or Series 1996-2 Class C Note shall be surrendered to the
Note Registrar and a photocopy thereof shall be furnished to the
Collateral Agent by the Note Registrar. If the Series 1996-2
Class B Note or Series 1996-2 Class C Note being replaced has
been destroyed, lost or stolen, the affected Noteholder shall
furnish to the Issuer, the Note Registrar and the Issuer Trustee
such security or indemnity as may be reasonably required by them
to hold the Issuer, the Note Registrar and the Issuer Trustee
harmless and evidence satisfactory to the Issuer Trustee of the
destruction, loss or theft of such Series 1996-2 Class B Note or
Series 1996-2 Class C Note and of the ownership thereof.
(b) Each substitute Series 1996-2 Class B Note and
Series 1996-2 Class C Note issued pursuant to the provisions of
this Section 5.5 by virtue of the fact that any Series 1996-2
Class B Note or Series 1996-2 Class C Note is apparently
destroyed, lost or stolen shall constitute an original additional
contractual obligation of the Issuer, whether or not the
apparently destroyed, lost or stolen Series 1996-2 Class B Note
or Series 1996-2 Class C Note shall be enforceable at any time by
anyone and shall be entitled to all the security and benefits of
(but shall be subject to all the limitations of rights set forth
in) this Supplement and the Agreement equally and proportionately
with any and all other Series 1996-2 Class B Notes or Series
1996-2 Class C Notes duly authenticated and delivered hereunder.
All Series 1996-2 Class B Notes and Series 1996-2 Class C Notes
shall be held and owned upon the express condition that, to the
extent permitted by law, the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, defaced,
or apparently destroyed, lost or stolen Series 1996-2 Class B
Notes or Series 1996-2 Class C Notes and shall preclude any and
all other rights or remedies notwithstanding any law or statute
existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other
securities without their surrender.
5.6 Temporary Notes. Until definitive Series 1996-2
Class B Notes or Series 1996-2 Class C Notes are ready for
delivery, the Issuer Trustee, on behalf of the Issuer, shall
authenticate and deliver temporary Series 1996-2 Class B Notes
and Series 1996-2 Class C Notes. Temporary Series 1996-2 Class B
Notes and Series 1996-2 Class C Notes shall be substantially in
the form of definitive Series 1996-2 Class B Notes and Series
1996-2 Class C Notes, respectively, but may have variations that
the Seller considers appropriate for temporary Series 1996-2
Class B Notes and Series 1996-2 Class C Notes. Without
unreasonable delay, the Issuer Trustee, on behalf of the Issuer,
shall execute and furnish definitive Series 1996-2 Class B Notes
and Series 1996-2 Class C Notes and deliver them in exchange for
temporary Series 1996-2 Class B Notes and Series 1996-2 Class C
Notes. Until such exchange, temporary Series 1996-2 Class B
Notes and Series 1996-2 Class C Notes shall be entitled to the
same rights, benefits and privileges as definitive Series 1996-2
Class B Notes and Series 1996-2 Class C Notes.
5.7 Priority of Payments. (a) No payment or
distribution shall be made on or in respect of any Series 1996-2
Class B Notes or Series 1996-2 Class C Notes, including any
payment or distribution of cash, securities or other property,
after the commencement of a proceeding of the type referred to in
Section 9.1(d) of the Agreement, except directly to the
Collateral Agent for application as expressly provided in Section
4 hereof and Articles IV and XIII of the Agreement.
(b) In the event that Series 1996-2 Class B
Noteholders or Series 1996-2 Class C Noteholders shall receive
any payment or distribution on or in respect of any Series 1996-2
Class B Notes or Series 1996-2 Class C Notes which such
Noteholders are not entitled to receive under this Section 5.7 or
under Article IV of the Agreement, such Noteholders will hold any
amount so received in trust, in the case of Series 1996-2 Class B
Notes, for the Holders of the Class A Notes of all Series and, in
the case of Series 1996-2 Class C Notes, for the Holders of the
Class A Notes and Class B Notes of all Series and will forthwith
turn over such payment to the Collateral Agent in the form
received to be applied or held as provided in Article IV of the
Agreement.
(c) In connection with any foreclosure sale of all or
any part of the Trust Assets, Series 1996-2 Class B Noteholders
and Series 1996-2 Class C Noteholders will not "bid-in" or
purchase any part of such Trust Assets with any Series 1996-2
Class B Notes or Series 1996-2 Class C Notes unless prior to or
contemporaneously with any such purchase (i) by such Series 1996-
2 Class B Noteholders, the Class A Notes of all Series have been
or are being paid in full in Dollars and in immediately available
funds (or in such other form as shall be acceptable to the
Holders of such obligations or (ii) by such Series 1996-2 Class C
Noteholders, the Class A Notes and Class B Notes of all Series
have been or are being so paid in full.
(d) Nothing herein contained shall impair, as between
the Issuer and the Series 1996-2 Class B Noteholders and the
Issuer and the Series 1996-2 Class C Noteholders, the obligations
of the Issuer to pay such Series 1996-2 Class B Noteholders or
Series 1996-2 Class C Noteholders the amounts owing under the
Series 1996-2 Class B Notes or Series 1996-2 Class C Notes held
by such Noteholder.
5.8 Payments from Trust Assets Only. Except as
otherwise expressly provided in the next succeeding sentence of
this Section 5.8, all payments to be made by the Issuer or the
Collateral Agent under this Supplement or the Agreement, as
applicable, shall be made only from the income and the proceeds
from the Trust Assets and, in the case of payments of interest on
Series 1996-2 Class B Notes, amounts, if any, on deposit in the
Reserve Account for the Series 1996-2 Class B Noteholders
(excluding Investment Earnings) and, with respect to the Trust
Assets, only to the extent that the Issuer shall have sufficient
income or proceeds from the Trust Assets to enable the Issuer or
the Collateral Agent, as applicable, to make payments in
accordance with the terms hereof. Each Series 1996-2 Class B
Noteholder, by its acceptance of a Series 1996-2 Class B Note,
agrees that it will look solely to the income and proceeds from
the Trust Assets, in the case of payments of interest on the
Series 1996-2 Class B Notes, and to amounts on deposit in the
Reserve Account (excluding Investment Earnings) to the extent
available for distribution to it as provided in the Agreement and
this Supplement and that the Issuer Trustee is not personally
liable to it for any amounts payable or any liability under this
Supplement or such Series 1996-2 Class B Note, except as
expressly provided herein and in the Agreement.
5.9 Method of Payment. (a) As provided in Section
4.3 of the Agreement, the Collateral Agent shall, subject to the
terms and conditions thereof, remit all amounts received by it
for distribution to the Series 1996-2 Class B Noteholders and
Series 1996-2 Class C Noteholders to the Series 1996-2 Class B
Noteholders and Series 1996-2 Class C Noteholders in immediately
available funds, such payment to be made in Dollars to the
account designated by each such Series 1996-2 Class B Noteholder
and Series 1996-2 Class C Noteholder at a bank which is a member
of the Federal Reserve System, prior to the close of business in
New York City on the due date thereof; provided, however, that
the Collateral Agent may, at its option, pay such amounts by
check mailed to the address of any Series 1996-2 Class B
Noteholder or Series 1996-2 Class C Noteholder as it appears on
the Note Register. In the event the Collateral Agent shall fail
to make any such payment as provided in the immediately foregoing
sentence after its receipt of funds at the place and prior to the
time specified in this paragraph, the Collateral Agent, in its
individual capacity and not as the Collateral Agent, agrees to
compensate the Series 1996-2 Class B Noteholders and Series 1996-
2 Class C Noteholders for loss of use of funds. In furtherance
of the payment of the amounts referred to in this paragraph, the
Issuer has assigned to the Collateral Agent certain of its right,
title and interest in, to and under the Trust Assets. Upon
payment of any such amount by the Collateral Agent to the Series
1996-2 Class B Noteholders or Series 1996-2 Class C Noteholders
on the due date thereof, interest shall no longer accrue on or in
respect of any Series 1996-2 Class B Note or Series 1996-2 Class
C Note on the amount so paid, to the extent such amount is
payable to the Series 1996-2 Class B Noteholders or Series 1996-2
Class C Noteholders in reduction of the Principal Amount of the
Series 1996-2 Class B Notes or the Series 1996-2 Class C Notes,
respectively.
(b) Prior to the due presentment for registration of
transfer of any Series 1996-2 Class B Note or Series 1996-2 Class
C Note, the Issuer, the Issuer Trustee, the Collateral Agent and
the Indenture Trustee may deem and treat the Person in whose name
any Series 1996-2 Class B Note or Series 1996-2 Class C Note is
registered on the Note Register as the absolute owner of such
Series 1996-2 Class B Note or Series 1996-2 Class C Note for the
purpose of receiving payment of all amounts payable with respect
to such Series 1996-2 Class B Note or Series 1996-2 Class C Note
and for all other purposes whether or not such Series 1996-2
Class B Note or Series 1996-2 Class C Note shall be overdue, and
none of the Issuer, the Issuer Trustee or the Collateral Agent
shall be affected by any notice to the contrary.
(c) If any sum payable under the Series 1996-2 Class B
Notes, the Series 1996-2 Class C Notes or under this Supplement
falls due on a day which is not a Business Day, then such sum
shall be payable on the next succeeding Business Day without
additional interest as a result of such extension.
5.10 Delivery. (a) The Indenture Trustee shall
deliver the duly authenticated Series 1996-2 Class A Notes in
accordance with Section 2.2(b) of the Series 1996-2 Indenture.
(b) On the Closing Date, the Issuer shall, pursuant to
Section 5.3(b) hereof, issue and deliver (i) Series 1996-2 Class
B Notes in an aggregate denomination equal to the Initial Series
1996-2 Class B Principal Amount and (ii) Series 1996-2 Class C
Notes in an aggregate denomination equal to the Initial Series
1996-2 Class C Principal Amount.
5.11 Interest. Interest shall accrue in respect of
the outstanding Principal Amount of the Series 1996-2 Notes as of
the first day of each Accrual Period from and including the first
day of such Accrual Period to and including the last day of such
Accrual Period at a rate of 6.87% per annum, in the case of
Series 1996-2 Class A Notes, 7.54% per annum, in the case of
Series 1996-2 Class B Notes, and 9.22% per annum, in the case of
Series 1996-2 Class C Notes. In the case of Series 1996-2 Class
B Notes and Series 1996-2 Class C Notes, the Issuer will pay
interest on overdue principal at the rate of 8.54% per annum and
10.22% per annum, respectively; it will pay interest on overdue
installments of interest (without regard to any applicable grace
periods) at the rate of 8.54% per annum and 10.22% per annum,
respectively, to the extent lawful.
Interest accrued during each Accrual Period on the
Series 1996-2 Class A Notes and Series 1996-2 Class B Notes shall
be payable on the Distribution Date immediately following the
last day of such Accrual Period. If any interest that accrues on
the Series 1996-2 Class A Notes or Series 1996-2 Class B Notes
during an Accrual Period is not paid on the related Distribution
Date, such unpaid interest shall be payable on the immediately
following Distribution Date in accordance with Article IV of the
Agreement.
Interest accrued during each Accrual Period on the
Series 1996-2 Class C Notes shall be payable on the Distribution
Date immediately following the last day of such Accrual Period;
provided that on each Distribution Date following the occurrence
of an Event of Default and arising during the continuance of a
Restricting Event, accrued interest on the Series 1996-2 Class C
Notes shall be payable solely to the extent of Available Amounts
therefor (after giving effect to distributions of Available
Amounts on such Distribution Date in accordance with the
priorities specified in Section 4.3(e) of the Agreement). If
any interest that accrues on the Series 1996-2 Class C Notes
during an Accrual Period is not paid on the related Distribution
Date, such unpaid interest shall be payable on the immediately
following Distribution Date in accordance with Article IV of the
Agreement; provided that on each Distribution Date following the
occurrence of an Event of Default and arising during the
continuance of a Restricting Event, any such unpaid interest on
the Series 1996-2 Class C Notes shall be payable solely to the
extent of Available Amounts therefor (after giving effect to
distributions of Available Amounts on such Distribution Date in
accordance with the priorities specified in Section 4.3(e) of the
Agreement). Any accrued interest which is not paid on any
Distribution Date following the occurrence of an Event of Default
and arising during the continuance of a Restricting Event,
together with interest thereon at the Series 1996-2 Class C
Interest Rate, will be due on the Maturity Date; although such
amounts may be paid on earlier Distribution Dates as provided in
the preceding sentence.
Interest on the principal amount of the Series 1996-2
Notes will be calculated on the basis of a 360-day year
consisting of twelve 30-day months.
SECTION 6. Article V of the Agreement. Article V of
the Agreement shall read in its entirety as follows and shall be
applicable only to the Series 1996-2 Notes:
ARTICLE V
REPORTS TO
NOTEHOLDERS
Section 5.1 Noteholders' Statements. (a) Monthly
Statement. On each Distribution Date, the Indenture Trustee
shall forward to each Series 1996-2 Class A Noteholder, in
accordance with Section 3.10(a) of the Agreement, and the
Collateral Agent shall forward to each Series 1996-2 Class B and
Series 1996-2 Class C Noteholder and each Rating Agency, a
Monthly Report substantially in the form of Exhibit D to this
Supplement prepared by the Servicer and delivered to the
Indenture Trustee and the Collateral Agent 3 Business Days prior
to such Distribution Date setting forth, among other things, the
following information with respect to such Distribution Date
(which, in the case of subclauses (i), (ii) and (iii) below,
shall be stated on the basis of an original principal amount of
$1,000 per Series 1996-2 Note and, in the case of subclause (v)
shall be stated on an aggregate basis and on the basis of an
original principal amount of $1,000 per Series 1996-2 Note):
(i) the total amount distributed;
(ii) the amount of such distribution allocable to
principal on the Series 1996-2 Notes;
(iii) the amount of such distribution allocable to
interest on the Series 1996-2 Notes;
(iv) the amount, if any, by which the unpaid principal
amount of the Notes of each Class in the Series 1996-2
exceeds the Principal Amount of such Class as of the Record
Date with respect to such Distribution Date; and
(v) such other items as are required by Exhibit E to
the Agreement.
(b) Annual Noteholders' Tax Statement. On or before
January 31 of each calendar year, beginning with calendar year
1997, the Indenture Trustee shall distribute on behalf of the
Issuer, to each Person who at any time during the preceding
calendar year was a Series 1996-2 Class A Noteholder, a statement
prepared by the Servicer and delivered to the Indenture Trustee
on or before January 31 of each calendar year containing the
information required to be contained in the Monthly Report to
Series 1996-2 Noteholders, as set forth in Section 5.1(a)(i),
(ii), (iii) and (iv) above, aggregated for such calendar year or
the applicable portion thereof during which such Person was a
Series 1996-2 Class A Noteholder, together with such other
customary information (consistent with the treatment of the
Series 1996-2 Series 1996-2 Class A Notes as debt) as the
Servicer deems necessary or desirable to enable the Series 1996-2
Class A Noteholders to prepare their tax returns consistent with
the treatment of the Series 1996-2 Class A Notes as debt
instruments.
SECTION 7. Conditions Precedent to Effectiveness of
Supplement. This Supplement will become effective on the date
(the "Effective Date") on which the following conditions
precedent have been satisfied:
(a) Documents. The Issuer Trustee and the Collateral
Agent shall have received an original executed copy for the
Indenture Trustee, each Holder of a Series 1996-2 Class B
Note and each Holder of a Series 1996-2 Class C Note, each
executed and delivered in form and substance satisfactory to
the Collateral Agent and the Issuer Trustee, of (i) the
Agreement executed by a duly authorized officer of each
party thereto, (ii) this Supplement executed by a duly
authorized officer of each party hereto, (iii) a Subsequent
Purchase Agreement referencing the Additional Series
Contracts, (iv) the Letter of Credit and (v) the Note
Documents for the issuance of the Series 1996-2 Notes, each
satisfying the requirements of Section 11.1 of the
Agreement. Each of the Agreement, the Subsequent Purchase
Agreement, the Note Documents, the Series 1996-2 Indenture
and this Supplement (collectively, the "Series Transaction
Agreements") shall have been duly and validly executed and
delivered.
(b) Notes. The Series 1996-2 Class A Notes shall have
been duly executed in accordance with Section 2.2(a) of the
Series 1996-2 Indenture and authenticated and delivered by
the Indenture Trustee in accordance with Section 2.2(b)(i)
of the Series 1996-2 Indenture. The Series 1996-2 Class B
Notes and the Series 1996-2 Class C Notes shall have been
duly executed, authenticated and delivered in accordance
with Section 5 of this Supplement.
(c) Corporate Proceedings of the Seller and Servicer.
The Collateral Agent shall have received, with a counterpart
for the Indenture Trustee, each Holder of a Series 1996-2
Class B Note and each Holder of a Series 1996-2 Class C
Note, a copy of the resolutions in form and substance
reasonably satisfactory to the Collateral Agent, of the
Board of Directors of each of the Seller and of the Servicer
authorizing the execution, delivery and performance of each
of the Series Transaction Agreements to which the Seller or
the Servicer, respectively, is a party, certified by the
Secretary or an Assistant Secretary of the Seller or the
Servicer, as the case may be, as of the date hereof, which
certificate shall state that the resolutions thereby
certified have not been amended, modified, revoked or
rescinded as of the date of such certificate.
(d) Corporate Documents. The Collateral Agent shall
have received, with a counterpart for each Initial
Purchaser, true and complete copies of the certificate of
incorporation and by-laws of the Seller and of the Servicer,
certified as of the date hereof as true, complete and
correct copies thereof by the Secretary or an Assistant
Secretary of the Seller or the Servicer, as the case may be.
(e) Good Standing Certificates. The Collateral Agent
shall have received, with as many counterparts as the
Collateral Agent shall request, copies of certificates dated
as of a recent date from the Secretary of State or other
appropriate authority of such jurisdiction, evidencing the
good standing of each subservicer appointed by the Servicer
pursuant to Section 3.1(e) of the Agreement to perform all
or a portion of the servicing functions of the Servicer in
each State and Province where the ownership, lease or
operation of property or the conduct of business requires it
to qualify as a foreign corporation, except, with respect to
any such subservicer, where the failure to so qualify would
not have a material adverse effect on the business,
operations, properties, condition (financial or otherwise)
or prospects of such subservicer.
(f) Consents, Licenses, Approvals, Etc. The
Collateral Agent shall have received, with as many
counterparts as the Collateral Agent shall request,
certificates dated the date hereof of the President, Chief
Financial Officer or any Vice President of the Seller and of
the Servicer either (i) attaching copies of all material
consents, licenses and approvals required in connection with
the execution, delivery and performance by the Seller or the
Servicer, as the case may be, of this Supplement and the
validity and enforceability against the Seller and the
Servicer of this Supplement and the Agreement, and such
consents, licenses and approvals shall be in full force and
effect or (ii) stating that no such consents, licenses or
approvals are so required.
(g) Lien Searches. The Collateral Agent shall have
received the results of a recent search by a Person
satisfactory to the Collateral Agent, of UCC and other
filings with respect to the Seller, each Financing
Originator and such other parties as it deems necessary.
(h) Legal Opinions. (x) The Collateral Agent shall
have received, (i) a legal opinion of Skadden, Arps, Slate,
Meagher & Flom, counsel to the Seller and the Servicer,
dated the date hereof, with respect to the "true sale" for
purposes of the bankruptcy code of the Additional Series
Contracts from the Financing Originator to the Seller; (ii)
a legal opinion of Skadden, Arps, Slate, Meagher & Flom, to
the effect that (A) the Issuer has a valid and perfected
first priority security interest in the Additional Series
Contracts and (B) assuming that the Vendor has a valid and
perfected security interest under applicable law in the
related Equipment, that pursuant to Section 9-302 of the
Delaware UCC, no filing under Article 9 of the Delaware UCC
is required to continue the perfected status of the security
interest in any Equipment against creditors of and
transferees from the Obligors; (iii) a letter of Skadden,
Arps, Slate, Meagher & Flom, counsel to the Seller and the
Servicer, dated the date hereof, to the effect that the
Collateral Agent is entitled to rely on the legal opinion of
such firm, dated December 28, 1995, to the effect that a
court would not order the substantive consolidation of the
assets and liabilities of the Seller with those of Newcourt
Credit Group USA Inc. as if dated and delivered on the date
hereof; (iv) a legal opinion of Skadden, Arps, Slate,
Meagher & Flom, counsel to the Seller and the Servicer,
dated the date hereof, with respect to the tax matters set
forth in Section 6.2(b)(viii) of the Agreement, in form and
substance satisfactory to the Issuer Trustee, (v) a legal
opinion of Pryor, Cashman, Sherman & Flynn, counsel to the
Issuer Trustee, dated the date hereof, (vi) a legal opinion
of Day, Berry & Howard, counsel to the Collateral Agent and
Indenture Trustee, dated the date hereof, (vii) a legal
opinion of John P. Stevenson, counsel to the Servicer, dated
the date hereof, substantially in the form set forth in
Exhibit E and (viii) a legal opinion of K. Nicholas
Martitsch, counsel to Newcourt Financial USA Inc., dated the
date hereof, substantially in the form set forth in Exhibit
F hereto.
(y) Each of the Issuer Trustee, the Collateral
Agent and the Indenture Trustee shall have received a legal
opinion of John P. Stevenson, counsel to the Servicer, dated
the date hereof, to the effect that the modifications to the
Agreement described in subsection 11.4 hereof shall not
adversely affect in any material respect the interests of
any of the Noteholders.
(i) Certificates. In addition to the certificates
required pursuant to Section 6.2(v) of the Agreement, the
Collateral Agent shall have received certificates of each of
the Seller and the Servicer, dated the Closing Date, of any
two of the President, any Vice President, the chief
financial officer and the Treasurer of the Seller or the
Servicer, as the case may be, stating that (i) the
representations and warranties of the Seller or the
Servicer, as the case may be, contained in the Transaction
Agreements, are true and correct on and as of the Closing
Date, (ii) the Seller or the Servicer, as the case may be,
has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied
hereunder and under such agreements at or prior to the
Closing Date, (iii) the absence of any Event of Default or
Restricting Event on the Closing Date or the occurrence of
any event that, with the passage of time, would constitute
such an event and (iv) since December 31, 1995, there has
been no material adverse change in the financial position of
the Seller or the Servicer, as the case may be, or the
Issuer or any change, or any development including a
prospective change, in or affecting the condition (financial
or otherwise), results of operations, business or prospects
of the Seller or the Servicer, as the case may be, or the
Issuer except as described therein. Any officer making such
certification may rely upon his or her knowledge as to the
proceedings pending or threatened.
(j) Series Accounts. The Collateral Agent shall have
received evidence satisfactory to it that the Collection
Account and the Reserve Account shall have been established
and the Seller shall have deposited (x) Collections with
respect to the related Additional Series Contracts since the
related Cut Off Date into the Collection Account and (y) the
Minimum Deposit into the Reserve Account.
(k) Fees and Expenses. All fees and expenses to be
paid on the Closing Date shall have been received by the
appropriate Persons, provided that the Servicer shall have
received an invoice setting forth such fees and expenses in
reasonable detail.
SECTION 8. Representations and Warranties of the
Issuer Trustee, the Seller, the Servicer and the Collateral
Agent. Each of the Seller and the Servicer, jointly and
severally, the Issuer Trustee (not in its individual capacity but
solely as Issuer Trustee), as to Sections 8(a), 8(b) and 8(c)
hereof only, and the Collateral Agent, as to Sections 8(a), 8(b)
and 8(c) hereof only, represents and warrants for the benefit of
all Noteholders, and agrees in favor of all Noteholders, that:
(a) The representations and warranties of the Seller,
the Servicer, the Issuer Trustee and the Collateral Agent in the
Agreement will be true and correct as of the Closing Date.
(b) This Supplement has been duly authorized, executed
and delivered by each of the Seller, the Servicer, the Issuer
Trustee and the Collateral Agent and each such party has the
power and authority to execute and deliver this Supplement and to
carry out its terms.
(c) This Supplement constitutes the legal, valid and
binding obligation of each of the Seller, the Servicer, the
Issuer Trustee and the Collateral Agent, enforceable in
accordance with its terms against each such party.
(d) When authenticated by the Indenture Trustee in
accordance with the Series 1996-2 Indenture, in the case of the
Series 1996-2 Class A Notes, and delivered and paid for pursuant
to the Series 1996-2 Indenture, the Series 1996-2 Class A Notes
will be duly and validly issued and outstanding and will
constitute valid and binding obligations of the Issuer entitled
to the benefits afforded by the Agreement, this Supplement and
the Series 1996-2 Indenture and enforceable in accordance with
their terms.
(e) When authenticated by the Issuer in accordance
with this Supplement, in the case of the Series 1996-2 Class B
Notes and Series 1996-2 Class C Notes, and delivered and paid for
pursuant to this Supplement, the Series 1996-2 Class B Notes and
Series 1996-2 Class C Notes will be duly and validly issued and
outstanding and will constitute valid and binding obligations of
the Issuer entitled to the benefits afforded by the Agreement and
this Supplement and enforceable in accordance with their terms.
(f) The execution and delivery of this Supplement and
the consummation of the transactions contemplated by, and the
fulfillment of the terms of, this Supplement by the Seller and
the Servicer (with or without notice or lapse of time) will not
(A) conflict with, result in any breach of any of the terms or
provisions of, or constitute a default under, the articles of
incorporation or by-laws of the Seller or the Servicer, or any
term of any indenture, agreement, mortgage, deed of trust or
other instrument to which such party is a party or by which it is
bound, (B) result in the creation or imposition of any Lien upon
any of its properties pursuant to the terms of any such
indenture, agreement, mortgage, deed of trust or other
instrument, or (C) violate any law, regulation, order, writ,
judgment, injunction, decree, determination or award of any
Governmental Authority applicable to such party or any of its
properties, except any violation or default that would not have a
material adverse effect on the condition (financial or
otherwise), results of operations, business or prospects of the
Seller or the Servicer, respectively.
(g) No consent, approval, authorization, order,
registration, filing, qualification, license or permit of or with
any Governmental Authority having jurisdiction over the Seller or
the Servicer or any of their respective properties is required to
be obtained by or with respect to the Seller or the Servicer in
connection with the execution and delivery of into this
Supplement, or with respect to the issuance and delivery of the
Series 1996-2 Class A Notes, Series 1996-2 Class B Notes, the
Series 1996-2 Class C Notes and the fulfillment of or the terms
hereof or thereof.
(h) There are no proceedings or investigations pending
or, to the best knowledge of the Seller or the Servicer,
threatened against the Seller or the Servicer, before any
Governmental Authority (i) asserting the invalidity of this
Supplement, the Series 1996-2 Class A Notes, the Series 1996-2
Class B Notes or the Series 1996-2 Class C Notes, (ii) seeking to
prevent the issuance of the Series 1996-2 Class A Notes, the
Series 1996-2 Class B Notes or the Series 1996-2 Class C Notes or
the consummation of any of the transactions contemplated by this
Supplement, the Series 1996-2 Class A Notes, the Series 1996-2
Class B Notes or the Series 1996-2 Class C Notes, (iii) seeking
any determination or ruling that, in the reasonable judgment of
the Seller or the Servicer, could reasonably be expected to be
adversely determined, and if adversely determined, would
materially and adversely affect the performance by either the
Seller or the Servicer of its obligations under this Supplement,
the Series 1996-2 Class A Notes, the Series 1996-2 Class B Notes
or the Series 1996-2 Class C Notes or (iv) seeking to impose
income taxes on the Issuer.
(i) Neither the Issuer nor the Seller is an
"investment company" or under the "control" of an "investment
company" within the meaning thereof as defined in the Investment
Company Act of 1940, as amended.
(j) Any taxes, fees and other governmental charges
imposed upon the Seller or the Servicer or on the assets of the
Issuer in connection with the execution, delivery and issuance by
the Seller or the Servicer of the Series Transaction Agreements
and the issuance, delivery and of the Series 1996-2 Notes by the
Issuer and which are due at or prior to the Closing Date have
been or will have been paid by the Seller at or prior to the
Closing Date.
(k) None of the Contracts in the Contract Pool is or
may become subject to a floating interest rate provision.
(l) The aggregate principal amount of Contracts which
are subject to voluntary prepayment by an Obligor does not exceed
30% of the aggregate principal amount of Contracts in the
Contract Pool.
(m) Approximately 9.82% of the ADCB of the Initial
Contracts provide for payments by the Obligor thereunder on a
basis other than monthly payments.
(n) The modifications to the Agreement specified in
subsection 11.4 hereof are not inconsistent with the other
provisions of the Agreement and will not adversely affect in any
material respect the interests of any of the Noteholders.
(o) Each of the PBCC Contracts included in the
Contract Pool satisfy the Servicer's policies, practices and
guidelines relating to the extension of credit to End-Users and
Vendors to set forth in the Credit Guidelines.
SECTION 9. Reports by the Servicer. (a) The Servicer
shall:
(i) provide to each Series 1996-2 Class B Noteholder
and Series 1996-2 Class C Noteholder, within fifteen days
after the Issuer (or the Seller on behalf of the Issuer) is
required to file the same with the Commission, copies of the
annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing
as the Commission may from time to time by rules and
regulations prescribe) which the Issuer (or the Seller or
behalf of the Issuer) may be required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange
Act;
(ii) provide to each Series 1996-2 Class B Noteholder
and Series 1996-2 Class C Noteholder, such additional
information, documents and reports with respect to
compliance by the Issuer with the conditions and covenants
of this Supplement as may be required from time to time by
such rules and regulations; and
(iii) supply to the holders of the Series 1996-2 Class B
Notes and Series 1996-2 Class C Notes such summaries of any
information, documents and reports required to be filed by
the Issuer pursuant to clauses (i) and (ii) of this Section
9 as may be required by rules and regulations prescribed
from time to time by the Commission.
(b) Unless the Seller otherwise determines, the fiscal
year of the Issuer shall end on December 31 of such year.
(c) On each Distribution Date, the Servicer shall
provide to each Series 1996-2 Class B Noteholder and Series 1996-
2 Class C Noteholder a copy of the reports specified in Sections
3.10(a), 3.10(b), 3.11 and 3.12 of the Agreement.
SECTION 10. Covenants; Restricting Events
10.1 Covenants of the Seller. The Seller hereby
agrees that:
(a) it shall observe each and every of its respective
covenants (both affirmative and negative) contained in the
Agreement (as modified by this Supplement) and this Supplement in
all material respects;
(b) it shall not amend, supplement or otherwise modify
or terminate the Agreement or this Supplement, unless in strict
compliance with the terms thereof or hereof;
(c) it shall not change in any material respect its
current policies, practices or guidelines relating to the
extension of credit to Vendors or End Users or the terms or
provisions of the Contracts or Vendor Notes so as to adversely
affect the general quality of the Contract Pool without the prior
written consent of the Required Holders; and
(d) to the extent, if any, that the rating provided
with respect to the Series 1996-2 Notes by a Rating Agency is
conditional upon the furnishing of documents or the taking of any
other actions by the Seller, to furnish such documents and take
such other actions;
(e) it shall file or cause to be filed, any documents,
including, without limitation, financing statements, (i) within
30 days following the related Closing Date, required to be filed
in order to perfect the sale of the Additional Series Contracts
and Security by the Financing Originator to the Seller pursuant
to the Series 1996-2 Purchase Agreement, (ii) within 10 days
following the Closing Date, required to be filed in order to
create, in favor of the Issuer Trustee on behalf of the Issuer, a
perfected first priority security interest in the Additional
Series Contracts and Security under the Agreement with respect to
which an interest may be perfected by a filing under the UCC or
the Personal Property Security Act (Ontario), and (iii) within 10
days following the Closing Date, required to be filed in order to
assign such interest to the Collateral Agent; which financing
statements shall, in each case, be properly filed in each office
in each jurisdiction listed in the Agreement or the Series 1996-2
Purchase Agreement, as the case may be, and which shall be the
only filings required in order to perfect the sale of the
Additional Series Contracts and Security to the Seller under the
Series 1996-2 Purchase Agreement and the transfer of such assets
to the Issuer, under the Agreement or this Supplement, as the
case may be, in the jurisdictions listed therein; and
(f) as soon as reasonably practicable, it shall
deliver, or cause to be delivered to the Collateral Agent,
evidence reasonably satisfactory to it of each filing referred to
in the foregoing clause (e) and satisfactory evidence of the
payment of any necessary fee, tax or expense relating thereto.
10.2 Covenants of the Servicer. The Servicer hereby
covenants and agrees that:
(a) it shall observe each and every of its covenants
(both affirmative and negative) contained in the Agreement (as
modified by this Supplement) and this Supplement in all material
respects;
(b) it shall not amend, supplement or otherwise modify
or terminate the Agreement or this Supplement, unless in strict
compliance with the terms thereof or hereof;
(c) it shall give prior notice to the Collateral Agent
of the delegation of any of its servicing, collection,
enforcement or administrative duties with respect to the
Contracts;
(d) it shall not change in any material respect its
current policies, practices or guidelines relating to the
extension of credit to End Users or Vendors or the terms or
provisions of the Contracts or Vendor Notes so as to adversely
affect the general quality of the Contract Pool without the prior
written consent of the Required Holders;
(e) it shall provide to the Collateral Agent,
simultaneously with delivery to the Issuer Trustee and the
Indenture Trustee, all reports, certificates, statements and
other documents required to be delivered to the Issuer Trustee
and the Indenture Trustee pursuant to the Agreement;
(f) it shall provide at any time and from time to time
to the Collateral Agent access to documentation regarding the
Contract Pool, including the Contract Files, such access being
afforded without charge but only (A) upon reasonable request, (B)
during normal business hours, (C) subject to the Servicer's
normal security and confidentiality procedures and (D) at offices
designated by the Servicer;
(g) it shall provide notice to the Collateral Agent of
the appointment of a Successor Servicer pursuant to Section 10.2
of the Agreement; and
(h) to the extent, if any, that the rating provided
with respect to the Series 1996-2 Notes by a Rating Agency is
conditioned upon the furnishing of documents or the taking of
actions by the Servicer, to furnish such documents and take any
such other actions.
10.3 Covenants of the Issuer Trustee. (a) The
Issuer Trustee hereby covenants and agrees that it shall provide
at any time and from time to time to the Collateral Agent access
to documentation, if any, held by it regarding the Contract Pool,
such access being afforded without charge but only (i) upon
reasonable request, (ii) during normal business hours, (iii)
subject to the Servicer's normal security and confidentiality
procedures and (iv) at offices designated by the Issuer Trustee.
(b) The Issuer Trustee hereby covenants and agrees
that except as permitted under the Agreement, it will not
directly or indirectly create, incur, assume or suffer to exist
any Lien attributable to the Issuer Trustee in its individual
capacity with respect to any of the properties or assets of the
Issuer Assets and it shall, at the Issuer's own cost and expense,
promptly take such action as may be necessary to discharge duly
any such Lien. The Issuer Trustee will cause restitution to be
made to the Trust Assets in the amount of any diminution of the
value thereof as the result of any Lien thereon attributable to
it in its individual capacity.
(c) The Issuer Trustee hereby covenants and agrees to
perform and comply with each and every covenant and agreement
made by the Issuer Trustee in the Agreement as if such covenants
and agreements were fully set forth herein.
10.4 Covenants of the Issuer. The Issuer hereby
covenants and agrees to perform and comply with each and every
covenant and agreement made by the Issuer in the Agreement as if
such covenants and agreements were fully set forth herein.
10.5 Events of Default and Restricting Events.
(a) Events of Default. If any one of the following
events shall occur:
(i) failure on the part of the Seller, the Issuer or
the Issuer Trustee to observe or perform any other covenants
or agreements of such Person set forth in this Supplement,
which failure has a material adverse effect on the Series
1996-2 Class B Noteholders or the Series 1996-2 Class C
Noteholders and which continues unremedied for a period of
60 days after written notice; or
(ii) any representation or warranty made by the Seller,
the Servicer, the Collateral Agent or the Issuer Trustee in
this Supplement shall prove to have been incorrect in any
material respect when made or when delivered, which
continues to be incorrect in any material respect for a
period of 60 days after written notice and as a result of
which the interests of the Series 1996-2 Class B Noteholders
or the Series 1996-2 Class C Noteholders are materially and
adversely affected and continue to be materially and
adversely affected for such period;
then, and in any such event, after the applicable grace period
set forth in such subparagraphs, the Required Holders, by written
notice to the Collateral Agent, may declare that an event of
default (a "Note Event of Default") under this Supplement has
occurred as of the date of such notice.
(b) A "Restricting Event" under the Agreement shall
constitute a Restricting Event under this Supplement.
10.6 Notice to Rating Agencies, etc. Promptly
following its receipt of written notice of any Event of Default,
Note Event of Default or Restricting Event, the Collateral Agent
shall send a copy thereof to each Series 1996-2 Class B
Noteholder, each Series 1996-2 Class C Noteholder and each Rating
Agency.
10.7 Remedies. (a) If an Event of Default referred to
in subparagraphs (d) or (e) of Section 9.1 of the Agreement shall
have occurred, the Holders of the Series 1996-2 Class B Notes and
Series 1996-2 Class C Notes shall have the rights set forth in
Section 9.1 of the Agreement.
(b) If any other Event of Default or Note Event of
Default shall have occurred and be continuing, then and in every
such case, each Series 1996-2 Class B Noteholder and Series 1996-
2 Class C Noteholder shall deliver a notice to the Collateral
Agent specifying whether such Series 1996-2 Class B Noteholder or
Series 1996-2 Class C Noteholder desires to declare an "Event of
Default" under the Agreement and specifying the Principal Amount
of Series 1996-2 Class B Notes or Series 1996-2 Class C Notes
held by such Series 1996-2 Class B Noteholder or Series 1996-2
Class C Noteholder.
10.8 Remedies Cumulative. Each and every right, power
and remedy given to the Series 1996-2 Class B Noteholders and the
Series 1996-2 Class C Noteholders specifically or otherwise in
this Supplement or the Agreement in addition to every other
right, power and remedy herein or therein specifically given or
now or hereafter existing at law, in equity or by statute, and
each and every right, power and remedy whether specifically
herein or therein given or otherwise existing may, subject always
to the terms and conditions hereof and thereof, be exercised from
time to time and as often and in such order as may be deemed
expedient by the Series 1996-2 Class B Noteholders and the Series
1996-2 Class C Noteholders and the exercise or the beginning of
the exercise of any power or remedy shall not be construed to be
a waiver of the right to exercise at the same time or thereafter
any other right, power or remedy. No delay or omission by the
Series 1996-2 Class B Noteholders and the Series 1996-2 Class C
Noteholders in the exercise of any right, remedy or power or in
the pursuit of any remedy shall impair any such right, power or
remedy or be construed to be a waiver of any default on the part
of the Series 1996-2 Class B Noteholders or the Series 1996-2
Class C Noteholders or to be an acquiescence therein.
10.9 Discontinuance of Proceedings. In case the
Series 1996-2 Class B Noteholders or the Series 1996-2 Class C
Noteholders shall have instituted any proceeding to enforce any
right, power or remedy under this Supplement or the Agreement by
foreclosure, entry or otherwise, and such proceedings shall have
been discontinued or abandoned for any reason or shall have been
determined adversely to the Series 1996-2 Class B Noteholders or
the Series 1996-2 Class C Noteholders, then and in every such
case the Series 1996-2 Class B Noteholders or the Series 1996-2
Class C Noteholders, as applicable, the Issuer Trustee, the
Collateral Agent and the Issuer shall, subject to any
determination in such proceedings, be restored to their former
positions and rights hereunder and thereunder with respect to the
Trust Assets, and all rights, remedies and powers of the Series
1996-2 Class B Noteholders or the Series 1996-2 Class C
Noteholders, as applicable, shall continue as if no such
proceedings had been instituted.
10.10 Right of Noteholders to Receive Payments not to
be Impaired. Anything in this Supplement to the contrary
notwithstanding, the right of any Series 1996-2 Class B
Noteholder or Series 1996-2 Class C Noteholder to receive
distributions of payments required pursuant to Section 4.1 or 4.3
hereof on the applicable Series 1996-2 Class B Notes or Series
1996-2 Class C Notes when due, or to institute suit for the
enforcement of any such payment on or after the applicable
Distribution Date, shall not be impaired or affected without the
consent of such Series 1996-2 Class B Noteholder or Series 1996-2
Class C Noteholder.
10.11 Limitation on Suits. (a) No Series 1996-2
Class B Noteholder or Series 1996-2 Class C Noteholder may pursue
any remedy with respect to this Supplement, the Agreement or the
Series 1996-2 Class B Notes or the Series 1996-2 Class C Notes,
as applicable, unless: (i) such Series 1996-2 Class B Noteholder
or Series 1996-2 Class C Noteholder gives to the Issuer written
notice stating than a Restricting Event is continuing; and (ii) a
Controlling Party agrees in writing to pursue the remedy.
(b) A Noteholder may not use this Supplement or the
Agreement to prejudice the rights of another Noteholder or to
obtain a preference or priority over another Noteholder.
10.12 Undertaking for Costs. The parties hereto agree
that, in any suit for the enforcement of any right or remedy
under this Supplement or the Agreement, a court in its discretion
may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having
due regard to the merits and good faith of the claims or defenses
made by the party litigant. The provisions of this Section 10.12
do not apply to a suit by Series 1996-2 Class B Noteholders
holding more than 10% of the aggregate unpaid Outstanding
Principal Amount of the Series 1996-2 Class B Notes or Series
1996-2 Class C Noteholders holding more than 10% of the aggregate
unpaid Outstanding Principal Amount of the Series 1996-2 Class C
Notes.
10.13 Waiver of Stay or Extension Laws. (a) The
Issuer Trustee covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any
appraisement, valuation, stay, extension or redemption law
wherever enacted, now or at any time hereafter in force, in order
to prevent or hinder the enforcement of this Supplement or the
Agreement, or the absolute sale of the Trust Assets, or any part
thereof, or the possession thereof by any purchaser at any sale
under this Section 10.13 or under the Agreement; and the Issuer
Trustee for itself and all who may claim under it, so far as it
or any of them now or hereafter lawfully may, hereby waives the
benefit of all such laws. The Issuer Trustee for itself and all
who may claim under it waives, to the extent that it lawfully
may, all right to have the property in the Trust Assets
marshalled upon any foreclosure thereof, and agrees that any
court having jurisdiction to foreclose the Agreement may order
the sale of the Trust Assets as an entirety.
(b) If any law referred to in this Section 10.13 and
now in force, of which the Issuer Trustee or its successors might
take advantage despite this Section 10.13, shall hereafter be
repealed or cease to be in force, such law shall not thereafter
be deemed to constitute any part of the contract herein contained
or to preclude the application of this Section 10.13.
SECTION 11. Pooling Agreement.
11.1 Pooling Agreement. (a) In order to secure the
due and punctual payment of the obligations of the Issuer, the
Issuer Trustee, among others, has entered into the Agreement to
create the Liens created therein and for related matters. Each
Series 1996-2 Class B Noteholder and Series 1996-2 Class C
Noteholder hereby appoints the Collateral Agent as its agent and
the Collateral Agent hereby accepts such appointment. The Issuer
Trustee, the Issuer and the Collateral Agent hereby agree that
the Collateral Agent holds a security interest in the Trust
Assets for the benefit of the Series 1996-2 Class B Noteholders,
the Series 1996-2 Class C Noteholders and the other Secured
Parties pursuant to the terms of the Agreement.
(b) Each Series 1996-2 Class B Noteholder and Series
1996-2 Class C Noteholder, by accepting a Series 1996-2 Class B
Note or Series 1996-2 Class C Note, agrees to all of the terms
and provisions of the Agreement as the same may be amended from
time to time pursuant to the provisions thereof.
(c) As more fully set forth in the Agreement, the
Series 1996-2 Class B Noteholders have rights in and to the Trust
Assets which are as provided therein senior to the rights of the
holders of the Series 1996-2 Class C Notes, but junior to the
rights of the holders of the Series 1996-2 Class A Notes.
(d) As amongst the Class B Noteholders of all Series,
the Trust Assets as now or hereafter constituted shall be held
for the equal and ratable benefit of such Class B Noteholders
without preference, priority or distinction of any thereof over
any other by reason of difference in time of issuance, sale or
otherwise, as security for the Class B Notes.
(e) As amongst the Class C Noteholders of all Series,
the Trust Assets as now or hereafter constituted shall be held
for the equal and ratable benefit of such Class C Noteholders
without preference, priority or distinction of any thereof over
any other by reason of difference in time of issuance, sale or
otherwise, as security for the Class C Notes.
11.2 Release Upon Termination of the Issuer Trustee's
Obligations. (a) In the event that this Supplement shall be
satisfied and discharged in accordance with Article XIII of the
Agreement, the Series 1996-2 Class B Noteholders and the Series
1996-2 Class C Noteholders shall deliver to the Collateral Agent
a notice stating that each of the Series 1996-2 Class B
Noteholders and Series 1996-2 Class C Noteholders, respectively,
disclaims and gives up any and all rights it has in or to the
Trust Assets and any rights it has under the Agreement and, upon
and after the receipt by the Collateral Agent of such notice, the
Collateral Agent shall not be deemed to hold its security
interest in the Trust Assets on behalf of the Series 1996-2 Class
B Noteholders or Series 1996-2 Class C Noteholders, as
applicable.
(b) Any release of the Trust Assets made strictly in
compliance with the provisions of this Section 11.2 shall not be
deemed to impair the Liens securing the Series 1996-2 Class B
Notes and Series 1996-2 Class C Notes.
11.3 Collateral Agent's Duties. The Collateral Agent,
acting in its capacity as such, shall have only such duties with
respect to the Trust Assets as are set forth in the Agreement and
this Supplement.
11.4 Modification to Article III. (a) On the Closing
Date, the Servicer shall cause the LOC Bank to issue the Letter
of Credit to the Collateral Agent. On the Closing Date, the
Servicer shall determine the amount of Collections received by
PBCC during the period from and including the Cutoff Date to but
excluding the Closing Date, and shall direct the Collateral Agent
in writing to make a drawing in the amount of such Collections on
the Closing Date. The Collateral Agent shall, upon receipt of
such direction, make a drawing under the Letter of Credit in the
amount of such Collections and deposit such amount in the
Collection Account upon receipt thereof from the Letter of Credit
Bank.
(b) On the Closing Date, the Seller shall apply
proceeds from the sale of the Series 1996-2 Notes to reimburse
the Letter of Credit Bank the full amount of the Initial Letter
of Credit Draw and any drawing fees in respect of such drawing
and any other fees then payable in connection with the Letter of
Credit whether in respect of the Initial Letter of Credit Draw or
otherwise.
(c) Thereafter, until the end of the Interim Period,
the Servicer shall, on the second Business Day prior to each
Determination Date, determine the amount of Collections received
by PBCC during the prior month. Not later than the Business Day
prior to each Determination Date during the Interim Period, the
Servicer shall, by written direction, direct the Collateral Agent
to make a drawing under the Letter of Credit in the amount of
such Collections. The Collateral Agent shall, not later than one
Business Day following its receipt of such written direction,
make a drawing under the Letter of Credit for the amount stated
therein and shall deposit such amount in the Collection Account
upon receipt thereof from the Letter of Credit Bank. During the
Interim Period, the Servicer shall apply all Collections received
by it from PBCC to reimburse the Letter of Credit Bank.
(d) Following the end of the Interim Period, the
Servicer shall deposit into the Collection Account any
Collections received from PBCC within two Business Days of
receipt, as provided in Article III of the Pooling Agreement.
SECTION 12. Amendment and Waiver.
12.1 Requirements. (a) No amendment or waiver of any
of the provisions of Section 7 and 8 hereof, or any defined term
(as it is used therein), will be effective as to any Series 1996-
2 Class B Noteholder or Series 1996-2 Class C Noteholder unless
consented to by such Noteholder in writing, and (b) no such
amendment or waiver may, without the written consent of the
Holder of each Series 1996-2 Class B Note or Series 1996-2 Class
C Note at the time outstanding affected thereby, (i) subject to
the provisions of Section 10 relating to acceleration or
rescission, change the amount or time of any prepayment or
payment of principal of, or reduce the rate or change the time of
payment or method of computation of interest on the Series 1996-2
Class B Notes or Series 1996-2 Class C Notes, (ii) change the
percentage of the principal amount of the Series 1996-2 Class B
Notes or Series 1996-2 Class C Notes, the Holders of which are
required to consent to any such amendment or waiver, or (iii)
amend any of Sections 10.5, 10.7 or 12. Notwithstanding anything
in this Section 12 to the contrary, no amendment may be made to
this Supplement without satisfaction of the Rating Agency
Condition.
12.2 Solicitation of Holders of Notes. (a)
Solicitation. The Servicer will provide each Holder of the
Series 1996-2 Class B Notes and Series 1996-2 Class C Notes
(irrespective of the amount of Series 1996-2 Class B Notes or
Series 1996-2 Class C Notes then owned by it) with sufficient
information, sufficiently far in advance of the date a decision
is required, to enable such Holder to make an informed and
considered decision with respect to any proposed amendment,
waiver or consent in respect of any of the provisions hereof or
of the Series 1996-2 Class B Notes or Series 1996-2 Class C
Notes, as applicable. The Servicer will deliver executed or true
and correct copies of each amendment, waiver or consent effected
pursuant to the provisions of this Section 12 to each Holder of
outstanding Series 1996-2 Class B Notes or Series 1996-2 Class C
Notes, as applicable, promptly following the date on which it is
executed and delivered by, or receives the consent or approval
of, the requisite Holders of Series 1996-2 Class B Notes or
Series 1996-2 Class C Notes.
(b) Payment. The Issuer Trustee will not directly or
indirectly pay or cause to be paid any remuneration, whether by
way of supplemental or additional interest, fee or otherwise, or
grant any security, to any Holder of Series 1996-2 Class B Notes
or Series 1996-2 Class C Notes as consideration for or as an
inducement to the entering into by any Holder of Series 1996-2
Class B Notes or Series 1996-2 Class C Notes or any waiver or
amendment of any of the terms and provisions hereof or of the
Series 1996-2 Class B Notes or Series 1996-2 Class C Notes unless
such remuneration is concurrently paid, or security is
concurrently granted, on the same terms, ratably to each Holder
of Series 1996-2 Class B Notes or Series 1996-2 Class C Notes
then outstanding whether or not such Holder consented to such
waiver or amendment.
12.3 Binding Effect. Any amendment or waiver
consented to as provided in this Section 12 applies equally to
all Holders of Series 1996-2 Class B Notes and Series 1996-2
Class C Notes and is binding upon them and upon each future
Holder of any Series 1996-2 Class B Note or Series 1996-2 Class C
Note and upon the Issuer Trustee without regard to whether such
Series 1996-2 Class B Note or Series 1996-2 Class C Note has been
marked to indicate such amendment or waiver. No such amendment
or waiver will extend to or affect any obligation, covenant,
agreement, Note Event of Default or Event of Default not
expressly amended or waived or impair any right consequent
thereon. No course of dealing between the Issuer Trustee and the
Holder of any Series 1996-2 Class B Note or Series 1996-2 Class C
Note nor any delay in exercising any rights hereunder or under
any Series 1996-2 Class B Note or Series 1996-2 Class C Note
shall operate as a waiver of any rights of any Holder of such
Series 1996-2 Class B Note or Series 1996-2 Class C Note.
12.4 Notes Held by Issuer Trustee, etc. Solely for
the purpose of determining whether the Holders of the requisite
percentage of the aggregate principal amount of Series 1996-2
Class B Notes or Series 1996-2 Class C Notes then outstanding
approved or consented to any amendment, waiver or consent to be
given under this Supplement or the Series 1996-2 Class B Notes or
Series 1996-2 Class C Notes, or have directed the taking of any
action provided herein or in the Series 1996-2 Class B Notes or
Series 1996-2 Class C Notes to be taken upon the direction of the
Holders of a specified percentage of the aggregate principal
amount of Series 1996-2 Class B Notes or Series 1996-2 Class C
Notes then outstanding, the Series 1996-2 Class B Notes or Series
1996-2 Class C Notes directly or indirectly owned by the Issuer
Trustee, the Servicer or any of its Affiliates shall be deemed
not to be outstanding; provided that, for the proposes of this
Section 12.4, the Issuer Trustee, acting in its individual
capacity, shall not be deemed an Affiliate of the Seller.
SECTION 13. Miscellaneous
13.1 Obligations Unaffected. The obligations of the
Seller and the Servicer to the Collateral Agent, the Issuer
Trustee and the Purchasers under this Supplement shall not be
affected by reason of any invalidity, illegality or irregularity
of any of the Contracts, Vendor Notes or the related Equipment or
Applicable Security or any sale of any of the foregoing.
13.2 Successors and Assigns. (a) This Supplement
shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, except that
the Seller may not assign or transfer any of its rights under
this Supplement without the prior written consent of the Initial
Purchasers.
(b) Notwithstanding anything contained in this
Supplement to the contrary, unless an Opinion of Counsel is
delivered that the Series 1996-2 Class B Notes and the Series
1996-2 Class C Notes will be treated as debt for federal income
tax purposes, the Series 1996-2 Class B Notes and the Series
1996-2 Class C Notes may only be held by U.S. Persons.
13.3 Obligation to Make Payments in Dollars. All
payments made by or on behalf of the Issuer under this
Supplement, the Series 1996-2 Class B Notes or the Series 1996-2
Class C Notes shall be in Dollars and the obligations of the
Issuer to make payments in Dollars of any of its obligations
under this Supplement, the Series 1996-2 Class B Notes or the
Series 1996-2 Class C Notes shall not be discharged or satisfied
by any tender, or any recovery pursuant to any judgment, which is
expressed in or converted into any currency other than Dollars,
except to the extent such tender or recovery shall result in the
actual receipt by the Holder of any Series 1996-2 Class B Note or
Series 1996-2 Class C Note of the full amount of Dollars
expressed to be payable in respect of any such obligations. The
obligation of the Issuer to make payments in Dollars as aforesaid
shall be enforceable as an alternative or additional cause of
action for the purpose of recovery in Dollars of the amount, if
any, by which such actual receipt shall fall short of the full
amount of Dollars expressed to be payable in respect of any such
obligations, and shall not be affected by judgment being obtained
for any other sums due under this Supplement, the Series 1996-2
Class B Notes or Series 1996-2 Class C Notes.
13.4 Repurchase by Seller. Upon any repurchase of the
Series 1996-2 Notes by the Seller pursuant to the Agreement, the
Seller shall pay, in addition to the amounts set forth in the
Agreement, any accrued and unpaid costs hereunder.
13.5 Final Distribution. Written notice of any
termination, specifying the Distribution Date upon which the
Series 1996-2 Noteholders may surrender their Series 1996-2 Notes
for payment of the final distribution and cancellation shall be
given by the Collateral Agent to the Issuer Trustee, the
Indenture Trustee and the Series 1996-2 Noteholders, at the
written request of the Servicer, not later than the 60th day
immediately preceding the Distribution Date on which final
payment of the Series 1996-2 Notes shall be made.
13.6 Ratification of Agreement. As supplemented by
this Supplement, the Agreement is in all respects ratified and
confirmed and the Agreement as so supplemented by this Supplement
shall be read, taken and construed as one and the same
instrument.
13.7 No Representations or Warranties as to Documents.
None of the Issuer Trustee, the Collateral Agent or the Indenture
Trustee in its individual capacity makes or shall be deemed to
have made representations or warranties hereunder, including any
representation or warranty as to the validity, legality or
enforceability of this Supplement, the Agreement, the Series
1996-2 Class B Notes or the Series 1996-2 Class C Notes or as to
the correctness of any statement contained in any thereof, except
for the representations and warranties of the Issuer Trustee, the
Collateral Agent or the Indenture Trustee, made in their
respective individual capacities, under any document to which
such party is a party. The Series 1996-2 Class B Noteholders and
the Series 1996-2 Class C Noteholders make no representation or
warranty hereunder whatsoever.
13.8 Counterparts. This Supplement may be executed in
any number of counterparts, each of which so executed shall be
deemed to be an original, but all of such counterparts shall
together constitute but one and the same instrument.
13.9 GOVERNING LAW. THIS SUPPLEMENT SHALL IN ALL
RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE
PROVISIONS THEREOF GOVERNING CONFLICTS OF LAW, INCLUDING ALL
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
13.10 The Trustee. The Issuer Trustee not shall be
responsible in any manner whatsoever for or in respect of the
validity or sufficiency of this Supplement or for or in respect
of the recitals contained herein, all of which recitals are made
solely by the Seller.
13.11 Instructions in Writing. All instructions given
by the Servicer to the Indenture Trustee or Issuer Trustee
pursuant to this Supplement shall be in writing, and may be
included in a certificate delivered pursuant to Section 3.4(b) of
the Agreement.
IN WITNESS WHEREOF, the parties have caused this Series
1996-2 Supplement to be duly executed by their respective
officers as of the day and year first above written.
NEWCOURT RECEIVABLES
CORPORATION, as Seller
By: /s/ Daniel A. Jauernig
___________________________
Title:________________________
By: /s/ K. Nicholas Martitsch
___________________________
Title:_________________________
NEWCOURT CREDIT GROUP INC.,
as Servicer
By: /s/ Daniel A. Jauernig
___________________________
Title:_________________________
By: /s/ Geoffrey Ichii
___________________________
Title:_________________________
CHASE MANHATTAN BANK DELAWARE,
as Issuer Trustee
By: /s/ John J. Cashin
___________________________
Title:_________________________
FLEET NATIONAL BANK,
as Collateral Agent
By: /s/ Susan Keller
___________________________
Title:_________________________
SCHEDULE 1
to
SERIES 1996-2 SUPPLEMENT
INITIAL PURCHASERS' COMMITMENTS
Initial Series 1996- Series 1996- Total
Purchaser 2 Class B 2 Class C Commitment
Commitment Commitment
First Union Capital $7,309,250 $4,922,054 $12,231,304
Markets Corp.
Newcourt Receivables $73,831 $2,461,027 $2,534,858
Corporation
SCHEDULE 2
to
SERIES 1996-2 SUPPLEMENT
LIST OF ADDITIONAL SERIES CONTRACTS
SCHEDULE 3
to
SERIES 1996-2 SUPPLEMENT
LIST OF INSTRUMENTS
SCHEDULE 4
to
SERIES 1996-2 SUPPLEMENT
LIST OF PBCC CONTRACTS
EXHIBIT A
to
SERIES 1996-2 SUPPLEMENT
FORM OF SERIES 1996-2 CLASS B NOTE
REGISTERED $__________
No. ____
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. ____________
THIS SERIES 1996-2 CLASS B NOTE HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS SERIES 1996-2
CLASS B NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM OR NOT SUBJECT TO,
REGISTRATION.
THE HOLDER OF THIS SERIES 1996-2 CLASS B NOTE BY ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER
SUCH SERIES 1996-2 CLASS B NOTE, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS THREE YEARS AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH NEWCOURT RECEIVABLES CORPORATION (THE "SELLER") OR ANY
AFFILIATE OF THE SELLER WAS THE OWNER OF THIS SERIES 1996-2 CLASS
B NOTE (OR ANY PREDECESSOR OF SUCH SERIES 1996-2 CLASS B NOTE),
ONLY (A) TO THE SELLER, (B) PURSUANT TO A REGISTRATION STATEMENT
THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C)
FOR SO LONG AS THE SERIES 1996-2 CLASS B NOTES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES
IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) TO AN ACCREDITED INVESTOR WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN
INSTITUTIONAL INVESTOR ACQUIRING THIS SERIES 1996-2 CLASS B NOTE
FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT
OF THE SERIES 1996-2 CLASS B NOTES OF $500,000, FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN
CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES
ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
SELLER'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT
TO CLAUSES (D) AND (E) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
THE SELLER, AND IN THE CASE OF THE FOREGOING CLAUSE (D), A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE
OF THIS SERIES 1996-2 CLASS B NOTE IS COMPLETED AND DELIVERED BY
THE TRANSFEROR TO THE SELLER. THIS LEGEND WILL BE REMOVED UPON
THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.
THE HOLDER OF THIS SERIES 1996-2 CLASS B NOTE BY ITS
ACCEPTANCE HEREOF AGREES THAT IT WILL NOT SELL, TRADE, ASSIGN OR
OTHERWISE DISPOSE OF THIS SERIES 1996-2 CLASS B NOTE (OR ANY
INTEREST HEREIN) OR CAUSE THIS SERIES 1996-2 CLASS B NOTE (OR ANY
INTEREST HEREIN) TO BE MARKETED ON OR THROUGH AN "ESTABLISHED
SECURITIES MARKET" WITHIN THE MEANING OF SECTION 7704(B)(1) OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"),
INCLUDING, WITHOUT LIMITATION, AN OVER-THE-COUNTER MARKET OR AN
INTERDEALER QUOTATION SYSTEM THAT REGULARLY DISSEMINATES FIRM BUY
OR SELL QUOTATIONS.
EACH PURCHASER FURTHER REPRESENTS AND WARRANTS THAT SUCH
PURCHASER IS NOT AND WILL NOT BECOME A PARTNERSHIP, SUBCHAPTER S
CORPORATION OR GRANTOR TRUST FOR UNITED STATES FEDERAL INCOME TAX
PURPOSES OR, IF IT IS OR BECOMES SUCH AN ENTITY, LESS THAN 50
PERCENT OF THE AGGREGATE VALUE OF THE ASSETS OF SUCH ENTITY ARE
ATTRIBUTABLE TO INTERESTS IN THE TRUST.
THIS SERIES 1996-2 CLASS B MAY NOT BE ACQUIRED, SOLD, TRADED
OR TRANSFERRED BY A PERSON WHO IS NOT EITHER (A)(I) A CITIZEN OR
RESIDENT OF THE UNITED STATES, (II) A CORPORATION, PARTNERSHIP OR
OTHER ENTITY ORGANIZED IN OR UNDER THE LAWS OF THE UNITED STATES
OR ANY POLITICAL SUBDIVISION THEREOF OR (III) A PERSON NOT
DESCRIBED IN (I) OR (II) WHOSE OWNERSHIP OF THE SERIES 1996-2
CLASS B NOTES IS EFFECTIVELY CONNECTED WITH SUCH PERSON'S CONDUCT
OF A TRADE OR BUSINESS WITHIN THE UNITED STATES (WITHIN THE
MEANING OF THE CODE) AND ITS OWNERSHIP OF ANY INTEREST IN A
SERIES 1996-2 CLASS B NOTE WILL NOT RESULT IN ANY WITHHOLDING
OBLIGATION WITH RESPECT TO ANY PAYMENTS WITH RESPECT TO THE
SERIES 1996-2 CLASS B NOTES BY ANY PERSON (OTHER THAN
WITHHOLDING, IF ANY, UNDER SECTION 1446 OF THE CODE) OR (B) AN
ESTATE OR TRUST THE INCOME OF WHICH IS INCLUDIBLE IN GROSS INCOME
FOR UNITED STATES FEDERAL INCOME TAX PURPOSES.
THIS SERIES 1996-2 CLASS B NOTE WILL NOT BE ACCEPTED FOR
REGISTRATION OF TRANSFER EXCEPT UPON PRESENTATION OF EVIDENCE
SATISFACTORY TO THE ISSUER TRUSTEE AND SUCH OTHER APPROPRIATE
PARTY THAT THE RESTRICTIONS ON TRANSFER SET FORTH IN THE SERIES
1996-2 CLASS B NOTE MEMORANDUM, NOTE PURCHASE AGREEMENT AND OTHER
RELATED DOCUMENTS HAVE BEEN COMPLIED WITH. THIS SERIES 1996-2
CLASS B NOTE MAY NOT BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHOUT THE PRIOR WRITTEN CONSENT OF EACH OF THE
SELLER AND THE SERVICER AND UNLESS AND UNTIL THE ISSUER TRUSTEE
SHALL HAVE RECEIVED THE CERTIFICATIONS REQUIRED.
NEWCOURT RECEIVABLES ASSET TRUST
SERIES 1996-2 CLASS B 7.54% ASSET BACKED NOTE
Newcourt Receivables Asset Trust, a business trust
organized and existing under the laws of the State of Delaware
(herein referred to as the "Issuer"), for value received, hereby
promises to pay to _______________, or registered assigns, the
principal sum of $__________, payable on each Distribution Date
in the amounts and to the extent described in the Pooling
Agreement and the Supplement; provided, however, that the entire
unpaid principal amount of this Series 1996-2 Class B Note shall
be due and payable on the earlier of the Maturity Date of June
20, 2004 and the date fixed for redemption, if any, pursuant to
Section 13.2 of the Pooling Agreement or Section 4.2(a) of the
Supplement. The Issuer will pay interest on this Series 1996-2
Class B Note on each Distribution Date in the amounts and to the
extent described in the Pooling Agreement and the Supplement.
The Issuer will pay interest on overdue principal at the rate of
8.54% per annum; it will pay interest on overdue installments of
interest (without regard to any applicable grace periods) at the
rate of 8.54% per annum to the extent lawful. "Distribution
Date" means the twentieth day of each calendar month or, if such
twentieth day is not a Business Day, the next succeeding Business
Day, commencing September 20, 1996.
The principal of and interest on this Series 1996-2
Class B Note are payable in such coin or currency of the United
States of America as at the time of payment is legal tender for
payment of public and private debts. All payments made by the
Trust with respect to this Series 1996-2 Class B Note shall be
applied first to interest due and payable on this Series 1996-2
Class B Note as provided above and then to the unpaid principal
of this Series 1996-2 Class B Note.
Reference is made to the further provisions of this
Series 1996-2 Class B Note set forth on the reverse hereof, which
shall have the same effect as though fully set forth on the face
of this Series 1996-2 Class B Note.
Unless the certificate of authentication hereon has
been executed by the Issuer whose name appears below by manual
signature, this Series 1996-2 Class B Note shall not be entitled
to any benefit under the Pooling Agreement or the Supplement
referred to on the reverse hereof, or be valid or obligatory for
any purpose.
IN WITNESS WHEREOF, the Issuer Trustee, acting on the
Issuer's behalf, has caused this instrument to be signed,
manually or in facsimile, by its Responsible Officer.
Dated: _______ __, ____ NEWCOURT RECEIVABLES ASSET TRUST
By: Chase Manhattan Bank Delaware, not in its
individual capacity but solely as
Issuer Trustee
By: ________________________
Name:
Title:
ISSUER'S CERTIFICATE OF AUTHENTICATION
This is one of the Series 1996-2 Class B Notes
designated above and referred to in the within-mentioned
Supplement.
CHASE MANHATTAN BANK DELAWARE, CHASE MANHATTAN BANK
as Issuer Trustee DELAWARE, as Issuer Trustee
By: The Chase Manhattan Bank,
OR as Authenticating Agent
By: _________________________ By: __________________________
Authorized Signatory Authorized Signatory
REVERSE OF NOTE
This Series 1996-2 Class B Note is one of a duly
authorized issue of Notes of the Issuer, designated as its Series
1996-2 Class B 7.54% Asset Backed Notes (the "Series 1996-2 Class
B Notes"), issued under the Series 1996-2 Supplement dated as of
September 17, 1996 to the Pooling Agreement (as hereinafter
defined) (such supplement, as supplemented or amended, the
"Supplement"), among Newcourt Receivables Corporation, as Seller
(the "Seller"), Newcourt Credit Group Inc., as Servicer (the
"Servicer"), Fleet National Bank of Connecticut, as Collateral
Agent (the "Collateral Agent"), Chase Manhattan Bank Delaware
(formerly known as Chemical Bank Delaware), as Issuer Trustee
(the "Issuer Trustee") and Fleet National Bank of Connecticut, as
Indenture Trustee (the "Indenture Trustee"), to which all
supplements thereto and the Pooling Agreement reference is hereby
made for a statement of the respective rights and obligations
thereunder of the Issuer, the Issuer Trustee, the Seller, the
Collateral Agent, the Servicer, the Indenture Trustee and the
Holders of the Series 1996-2 Class B Notes. The Series 1996-2
Class B Notes are governed by and subject to all terms of the
Pooling Agreement and the Supplement (which respective terms are
incorporated herein and made a part hereof). All terms used in
this Series 1996-2 Class B Note and not otherwise defined herein
shall have the meanings assigned to them in or pursuant to the
Pooling Agreement or the Supplement, as the case may be, as so
supplemented or amended.
Two additional Classes of Notes of the Issuer, the
Series 1996-2 Class A 6.87% Asset Backed Notes (the "Series 1996-
2 Class A Notes") and the Series 1996-2 Class C 9.22% Asset
Backed Notes (the "Series 1996-2 Class C Notes" and together with
the Series 1996-2 Class A Notes and the Series 1996-2 Class B
Notes, the "Series 1996-2 Notes") are issued, in the case of the
Series 1996-2 Class A Notes, pursuant to the Series 1996-2 Class
A Trust Indenture dated as of September 17, 1996, between the
Issuer, the Seller, the Collateral Agent and the Indenture
Trustee, and, in the case of the Series 1996-2 Class C Notes,
pursuant to the Supplement. The Series 1996-2 Class B Notes
shall be (i) subordinated and rank junior in right of payment to
the Class A Notes of all Series (including the Series 1996-2
Class A Notes) and (ii) senior in right of payment to the Class C
Notes of all Series (including the Series 1996-2 Class C Notes)
and all other subordinated indebtedness of the Issuer which is
subordinated to the Series 1996-2 Class B Notes.
The Series 1996-2 Class B Notes are and will be equally
and ratably secured by the Trust Assets pledged as security
therefor as provided in the Pooling, Collateral Agency and
Servicing Agreement, dated as of April 15, 1996, among the
Seller, the Servicer, the Collateral Agent and the Issuer Trustee
(as supplemented or amended, the "Pooling Agreement").
Notwithstanding anything contrary herein, the entire
unpaid principal amount of this Series 1996-2 Class B Note shall
be due and payable on the date on which an Event of Default shall
have occurred and be continuing and, if required by the Pooling
Agreement or the Supplement, the Collateral Agent or the Required
Percentage of Holders of the Series 1996-2 Class B Notes shall
have declared the Series 1996-2 Class B Notes to be immediately
due and payable in the manner provided in Section 9.1 of the
Pooling Agreement and Section 10.7 of the Supplement. All
principal payments on the Series 1996-2 Class B Notes shall be
made pro rata to the Series 1996-2 Class B Noteholders entitled
thereto.
Payments of interest on this Series 1996-2 Class B Note
on each Distribution Date, together with the installment of
principal, if any, to the extent not in full payment of this
Series 1996-2 Class B Note, shall be made in accordance with
Section 5.11 of the Supplement to the Series 1996-2 Class B
Noteholder. Any reduction in the principal amount of this Series
1996-2 Class B Note effected by any payments made on any
Distribution Date shall be binding upon all future Holders of
this Series 1996-2 Class B Note and of any Series 1996-2 Class B
Note issued upon the registration of the transfer hereof or in
exchange hereof or in lieu hereof, whether or not noted hereon.
If funds are expected to be available, as provided in the
Supplement, for payment in full of the then remaining unpaid
principal amount of this Series 1996-2 Class B Note on a
Distribution Date, then the Collateral Agent will notify the
Series 1996-2 Class B Noteholder by notice mailed not later than
the fifth day of the month (subject to at least four Business
Days' prior notice from the Servicer to the Collateral Agent) of
such final distribution and the amount then due and payable shall
be payable only upon presentation and surrender of this Series
1996-2 Class B Note at the office or offices designated in such
notice.
The Holder of this Series 1996-2 Class B Note, by its
acceptance of this Series 1996-2 Class B Note, agrees that it
will look solely to the income and proceeds from the Trust Assets
and, in the case of payments of interest on this Series 1996-2
Class B Note, to amounts on deposit in the Reserve Account
(excluding Investment Earnings) to the extent available for
distribution to it as provided in the Pooling Agreement and the
Supplement and that the Issuer Trustee is not or shall not be
personally liable to it for any amounts payable or any liability
under the Supplement or this Series 1996-2 Class B Note, except
as expressly provided in the Supplement and in the Pooling
Agreement.
The Holder of this Series 1996-2 Class B Note, by
acceptance of this Series 1996-2 Class B Note, covenants and
agrees that it will not, until one year and one day after the
final payment on all Notes, institute against, or join any other
Person in instituting against, the Seller or the Issuer any
bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or other similar proceeding under the
laws of the United States or any state of the United States.
Prior to the due presentment for registration of
transfer of this Series 1996-2 Class B Note, the Issuer, the
Issuer Trustee, the Collateral Agent and the Indenture Trustee
may deem and treat the Person in whose name this Series 1996-2
Class B Note is registered as the absolute owner thereof for the
purposes of receiving payment of all amounts payable with respect
to this Series 1996-2 Class B Note and for all other purposes,
whether or not this Series 1996-2 Class B Note be overdue, and
none of the Issuer, the Issuer Trustee, the Collateral Agent or
the Indenture Trustee shall be affected by notice to the
contrary.
The Supplement and the Series 1996-2 Class B Notes may
be amended, and the observance of any term of the Supplement or
of the Series 1996-2 Class B Notes may be waived (either
retroactively or prospectively) with (and only with) the written
consent of the Holders of Series 1996-2 Class A Notes, the Rating
Agency and the Required Holders, except that (a) no amendment or
waiver of any of the provisions of Section 7 and 8 of the
Supplement, or any defined term (as it is used therein), will be
effective as to any Series 1996-2 Class B Noteholder unless
consented to by such Noteholder in writing, and (b) no such
amendment or waiver may, without the written consent of the
Holder of each Series 1996-2 Class B Note at the time outstanding
affected thereby, (i) subject to the provisions of the Supplement
relating to acceleration or rescission, change the amount or time
of any prepayment or payment of principal of, or reduce the rate
or change the time of payment or method of computation of
interest on the Series 1996-2 Class B Notes, (ii) change the
percentage of the principal amount of the Series 1996-2 Class B
Notes, the Holders of which are required to consent to any such
amendment or waiver, or (iii) amend any of Sections 10.5, 10.7 or
12 of the Supplement. Notwithstanding anything therein to the
contrary, no amendment may be made to the Supplement without
satisfaction of the Rating Agency Condition.
The Pooling Agreement may be amended from time to time
by the Servicer, the Seller, the Issuer Trustee and the
Collateral Agent, without the consent of any of the Series 1996-2
Class B Noteholders, (i) to cure any ambiguity, to revise any
exhibits or Schedules, to correct or supplement any provisions
therein or thereon or (ii) to add any other provisions with
respect to matters or questions raised under the Pooling
Agreement which shall not be inconsistent with the provisions of
the Pooling Agreement; provided, however, that such action shall
not adversely affect in any material respect the interests of any
of the Noteholders.
The term "Issuer Trustee" as used in this Series 1996-2
Class B Note includes any successor to the Issuer Trustee under
the Pooling Agreement.
The Series 1996-2 Class B Notes are issuable only in
registered form without coupons in denominations as provided in
the Supplement, subject to certain limitations therein set forth.
No reference herein to the Pooling Agreement or the
Supplement and no provision of this Series 1996-2 Class B Note or
of the Pooling Agreement or the Supplement shall alter or impair
the obligation of the Issuer, which is absolute and
unconditional, to pay the principal of and interest on this
Series 1996-2 Class B Note at the time, place and rate, and in
the coin or currency herein prescribed.
None of the Issuer Trustee, the Collateral Agent or the
Indenture Trustee in its individual capacity makes or shall be
deemed to have made any representation or warranty as to the
validity, legality or enforceability of the Pooling Agreement,
the Supplement or the Series 1996-2 Class B Notes or as to the
correctness of any statement contained in any thereof, except for
the representations and warranties of the Issuer Trustee, the
Collateral Agent or the Indenture Trustee, made in their
respective individual capacities, under any document to which
such party is a party. The Series 1996-2 Class B Noteholders and
the Seller make no representation or warranty hereunder
whatsoever.
This Series 1996-2 Class B Note shall be governed by
and construed in accordance with the internal laws of the State
of New York, 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. The Pooling
Agreement and the Supplement shall be governed by the internal
laws of the State of Delaware, without reference to its conflict
of law provisions and the obligations, rights and remedies of the
parties thereunder shall be determined in accordance with such
laws.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of
assignee
____________________________________
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto
__________________________________________________________
__________________________________________________________
(name and address of assignee)
the within Series 1996-2 Class B Note and all rights thereunder,
and hereby irrevocably constitutes and appoints _________
attorney, to transfer said Series 1996-2 Class B Note on the
books kept for registration thereof, with full power of
constitution in the premises.
Dated: ___________________ ___________________________________
NOTE: The signature to this
assignment must correspond with the
name of the registered owner as it
appears on the face of the within
Series 1996-2 Class B Note in every
particular, without alteration,
enlargement or any change
whatsoever.
EXHIBIT B
to
SERIES 1996-2 SUPPLEMENT
FORM OF SERIES 1996-2 CLASS C NOTE
REGISTERED $__________
No. ____
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. ___________
THIS SERIES 1996-2 CLASS C NOTE HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS SERIES 1996-2
CLASS C NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM OR NOT SUBJECT TO,
REGISTRATION.
THE HOLDER OF THIS SERIES 1996-2 CLASS C NOTE BY ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER
SUCH SERIES 1996-2 CLASS C NOTE, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS THREE YEARS AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH NEWCOURT RECEIVABLES CORPORATION (THE "SELLER") OR ANY
AFFILIATE OF THE SELLER WAS THE OWNER OF THIS SERIES 1996-2 CLASS
C NOTE (OR ANY PREDECESSOR OF SUCH SERIES 1996-2 CLASS C NOTE),
ONLY (A) TO THE SELLER, (B) PURSUANT TO A REGISTRATION STATEMENT
THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C)
FOR SO LONG AS THE SERIES 1996-2 CLASS C NOTES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES
IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) TO AN ACCREDITED INVESTOR WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN
INSTITUTIONAL INVESTOR ACQUIRING THIS SERIES 1996-2 CLASS C NOTE
FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT
OF THE SERIES 1996-2 CLASS C NOTES OF $500,000, FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN
CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES
ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
SELLER'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT
TO CLAUSES (D) AND (E) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
THE SELLER, AND IN THE CASE OF THE FOREGOING CLAUSE (D), A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE
OF THIS SERIES 1996-2 CLASS C NOTE IS COMPLETED AND DELIVERED BY
THE TRANSFEROR TO THE SELLER. THIS LEGEND WILL BE REMOVED UPON
THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.
THE HOLDER OF THIS SERIES 1996-2 CLASS C NOTE BY ITS
ACCEPTANCE HEREOF AGREES THAT IT WILL NOT SELL, TRADE, ASSIGN OR
OTHERWISE DISPOSE OF THIS SERIES 1996-2 CLASS C NOTE (OR ANY
INTEREST HEREIN) OR CAUSE THIS SERIES 1996-2 CLASS C NOTE (OR ANY
INTEREST HEREIN) TO BE MARKETED ON OR THROUGH AN "ESTABLISHED
SECURITIES MARKET" WITHIN THE MEANING OF SECTION 7704(B)(1) OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"),
INCLUDING, WITHOUT LIMITATION, AN OVER-THE-COUNTER MARKET OR AN
INTERDEALER QUOTATION SYSTEM THAT REGULARLY DISSEMINATES FIRM BUY
OR SELL QUOTATIONS.
EACH PURCHASER FURTHER REPRESENTS AND WARRANTS THAT SUCH
PURCHASER IS NOT AND WILL NOT BECOME A PARTNERSHIP, SUBCHAPTER S
CORPORATION OR GRANTOR TRUST FOR UNITED STATES FEDERAL INCOME TAX
PURPOSES OR, IF IT IS OR BECOMES SUCH AN ENTITY, LESS THAN 50
PERCENT OF THE AGGREGATE VALUE OF THE ASSETS OF SUCH ENTITY ARE
ATTRIBUTABLE TO INTERESTS IN THE TRUST.
THIS SERIES 1996-2 CLASS C MAY NOT BE ACQUIRED, SOLD, TRADED
OR TRANSFERRED BY A PERSON WHO IS NOT EITHER (A)(I) A CITIZEN OR
RESIDENT OF THE UNITED STATES, (II) A CORPORATION, PARTNERSHIP OR
OTHER ENTITY ORGANIZED IN OR UNDER THE LAWS OF THE UNITED STATES
OR ANY POLITICAL SUBDIVISION THEREOF OR (III) A PERSON NOT
DESCRIBED IN (I) OR (II) WHOSE OWNERSHIP OF THE SERIES 1996-2
CLASS C NOTES IS EFFECTIVELY CONNECTED WITH SUCH PERSON'S CONDUCT
OF A TRADE OR BUSINESS WITHIN THE UNITED STATES (WITHIN THE
MEANING OF THE CODE) AND ITS OWNERSHIP OF ANY INTEREST IN A
SERIES 1996-2 CLASS C NOTE WILL NOT RESULT IN ANY WITHHOLDING
OBLIGATION WITH RESPECT TO ANY PAYMENTS WITH RESPECT TO THE
SERIES 1996-2 CLASS C NOTES BY ANY PERSON (OTHER THAN
WITHHOLDING, IF ANY, UNDER SECTION 1446 OF THE CODE) OR (B) AN
ESTATE OR TRUST THE INCOME OF WHICH IS INCLUDIBLE IN GROSS INCOME
FOR UNITED STATES FEDERAL INCOME TAX PURPOSES.
THIS SERIES 1996-2 CLASS C NOTE WILL NOT BE ACCEPTED FOR
REGISTRATION OF TRANSFER EXCEPT UPON PRESENTATION OF EVIDENCE
SATISFACTORY TO THE ISSUER TRUSTEE AND SUCH OTHER APPROPRIATE
PARTY THAT THE RESTRICTIONS ON TRANSFER SET FORTH IN THE SERIES
1996-2 CLASS C NOTE MEMORANDUM, NOTE PURCHASE AGREEMENT AND OTHER
RELATED DOCUMENTS HAVE BEEN COMPLIED WITH. THIS SERIES 1996-2
CLASS C NOTE MAY NOT BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHOUT THE PRIOR WRITTEN CONSENT OF EACH OF THE
SELLER AND THE SERVICER AND UNLESS AND UNTIL THE ISSUER TRUSTEE
SHALL HAVE RECEIVED THE CERTIFICATIONS REQUIRED.
NEWCOURT RECEIVABLES ASSET TRUST
SERIES 1996-2 CLASS C 9.22% ASSET BACKED NOTE
Newcourt Receivables Asset Trust, a business trust
organized and existing under the laws of the State of Delaware
(herein referred to as the "Issuer"), for value received, hereby
promises to pay to _______________, or registered assigns, the
principal sum of $__________, payable on each Distribution Date
in the amounts and to the extent described in the Pooling
Agreement and the Supplement; provided, however, that the entire
unpaid principal amount of this Series 1996-2 Class C Note shall
be due and payable on the earlier of the Maturity Date of June
20, 2004 and the date fixed for redemption, if any, pursuant to
Section 13.2 of the Pooling Agreement or Section 4.2(a) of the
Supplement. The Issuer will pay interest on this Series 1996-2
Class C Note on each Distribution Date in the amounts and to the
extent described in the Pooling Agreement and the Supplement.
The Issuer will pay interest on overdue principal at the rate of
10.22% per annum; it will pay interest on overdue installments of
interest (without regard to any applicable grace periods) at the
rate of 10.22% per annum to the extent lawful. "Distribution
Date" means the twentieth day of each calendar month or, if such
twentieth day is not a Business Day, the next succeeding Business
Day, commencing September 20, 1996.
The principal of and interest on this Series 1996-2
Class C Note are payable in such coin or currency of the United
States of America as at the time of payment is legal tender for
payment of public and private debts. All payments made by the
Issuer with respect to this Series 1996-2 Class C Note shall be
applied first to accrued interest on this Series 1996-2 Class C
Note as provided above and then to the unpaid principal of this
Series 1996-2 Class C Note.
Reference is made to the further provisions of this
Series 1996-2 Class C Note set forth on the reverse hereof, which
shall have the same effect as though fully set forth on the face
of this Series 1996-2 Class C Note.
Unless the certificate of authentication hereon has
been executed by the Issuer whose name appears below by manual
signature, this Series 1996-2 Class C Note shall not be entitled
to any benefit under the Pooling Agreement or the Supplement
referred to on the reverse hereof, or be valid or obligatory for
any purpose.
IN WITNESS WHEREOF, the Issuer Trustee, acting on the
Issuer's behalf, has caused this instrument to be signed,
manually or in facsimile, by its Responsible Officer.
Dated: NEWCOURT RECEIVABLES ASSET TRUST
By: Chase Manhattan Bank Delaware, not in its
individual capacity but solely as
Issuer Trustee
By: ________________________
Name:
Title:
ISSUER'S CERTIFICATE OF AUTHENTICATION
This is one of the Series 1996-2 Class C Notes
designated above and referred to in the within-mentioned
Supplement.
CHASE MANHATTAN BANK DELAWARE, CHASE MANHATTAN BANK
as Issuer Trustee DELAWARE, as Issuer Trustee
By: The Chase Manhattan Bank,
OR as Authenticating Agent
By: _________________________ By: __________________________
Authorized Signatory Authorized Signatory
REVERSE OF NOTE
This Series 1996-2 Class C Note is one of a duly
authorized issue of Notes of the Issuer, designated as its Series
1996-2 Class C 9.22% Asset Backed Notes (the "Series 1996-2 Class
C Notes"), issued under the Series 1996-2 Supplement dated as of
September 17, 1996 to the Pooling Agreement (as hereinafter
defined) (such supplement, as supplemented or amended, the
"Supplement"), among Newcourt Receivables Corporation, as Seller
(the "Seller"), Newcourt Credit Group Inc., as Servicer (the
"Servicer"), Fleet National Bank, as Collateral Agent (the
"Collateral Agent"), Chase Manhattan Bank Delaware (formerly
known as Chemical Bank Delaware), as Issuer Trustee (the "Issuer
Trustee") and Fleet National Bank, as Indenture Trustee (the
"Indenture Trustee"), to which all supplements thereto and the
Pooling Agreement reference is hereby made for a statement of the
respective rights and obligations thereunder of the Issuer, the
Issuer Trustee, the Seller, the Collateral Agent, the Servicer,
the Indenture Trustee and the Holders of the Series 1996-2 Class
C Notes. The Series 1996-2 Class C Notes are governed by and
subject to all terms of the Pooling Agreement and the Supplement
(which respective terms are incorporated herein and made a part
hereof). All terms used in this Series 1996-2 Class C Note and
not otherwise defined herein shall have the meanings assigned to
them in or pursuant to the Pooling Agreement or the Supplement,
as the case may be, as so supplemented or amended.
Two additional Classes of Notes of the Issuer, the
Series 1996-2 Class A 6.87% Asset Backed Notes (the "Series 1996-
2 Class A Notes") and the Series 1996-2 Class B 7.54% Asset
Backed Notes (the "Series 1996-2 Class B Notes" and together with
the Series 1996-2 Class A Notes and the Series 1996-2 Class C
Notes, the "Series 1996-2 Notes") are issued, in the case of the
Series 1996-2 Class A Notes, pursuant to the Series 1996-2 Class
A Trust Indenture dated as of September 17, 1996, between the
Issuer, the Seller, the Collateral Agent and the Indenture
Trustee, and, in the case of the Series 1996-2 Class B Notes,
pursuant to the Supplement. The Series 1996-1 Series 1996-2
Class C Notes shall be subordinated and rank junior in right of
payment to the Class A Notes of all Series (including the Series
1996-2 Class A Notes) and Class B Notes of all Series (including
the Series 1996-2 Class B Notes).
The Series 1996-2 Class C Notes are and will be equally
and ratably secured by the Trust Assets pledged as security
therefor as provided in the Pooling, Collateral Agency and
Servicing Agreement, dated as of April 15, 1996, among the
Seller, the Servicer, the Collateral Agent and the Issuer Trustee
(as supplemented or amended, the "Pooling Agreement").
Notwithstanding anything contrary herein, the entire
unpaid principal amount of this Series 1996-2 Class C Note shall
be due and payable on the date on which an Event of Default shall
have occurred and be continuing and, if required by the Pooling
Agreement or the Supplement, the Collateral Agent or the Required
Percentage of Holders of the Series 1996-2 Class C Notes shall
have declared the Series 1996-2 Class C Notes to be immediately
due and payable in the manner provided in Section 9.1 of the
Pooling Agreement and Section 10.7 of the Supplement. All
principal payments on the Series 1996-2 Class C Notes shall be
made pro rata to the Series 1996-2 Class C Noteholders entitled
thereto.
Payments of interest on this Series 1996-2 Class C Note
on each Distribution Date, together with the installment of
principal, if any, to the extent not in full payment of this
Series 1996-2 Class C Note, shall be made in accordance with
Section 5.11 of the Supplement to the Series 1996-2 Class C
Noteholder. Any reduction in the principal amount of this Series
1996-2 Class C Note effected by any payments made on any
Distribution Date shall be binding upon all future Holders of
this Series 1996-2 Class C Note and of any Series 1996-2 Class C
Note issued upon the registration of the transfer hereof or in
exchange hereof or in lieu hereof, whether or not noted hereon.
If funds are expected to be available, as provided in the
Supplement, for payment in full of the then remaining unpaid
principal amount of this Series 1996-2 Class C Note on a
Distribution Date, then the Collateral Agent will notify the
Series 1996-2 Class C Noteholder by notice mailed not later than
the fifth day of the month (subject to at least four Business
Days' prior notice from the Servicer to the Collateral Agent) of
such final distribution and the amount then due and payable shall
be payable only upon presentation and surrender of this Series
1996-2 Class C Note at the office or offices designated in such
notice.
The Holder of this Series 1996-2 Class C Note, by its
acceptance of this Series 1996-2 Class C Note, agrees that it
will look solely to the income and proceeds from the Trust Assets
to the extent available for distribution to it as provided in the
Pooling Agreement and the Supplement and that the Issuer Trustee
is not or shall not be personally liable to it for any amounts
payable or any liability under the Supplement or this Series
1996-2 Class C Note, except as expressly provided in the
Supplement and in the Pooling Agreement.
The Holder of this Series 1996-2 Class C Note, by
acceptance of this Series 1996-2 Class C Note, covenants and
agrees that it will not, until one year and one day after the
final payment on all Notes, institute against, or join any other
Person in instituting against, the Seller or the Issuer any
bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or other similar proceeding under the
laws of the United States or any state of the United States.
Prior to the due presentment for registration of
transfer of this Series 1996-2 Class C Note, the Issuer, the
Issuer Trustee, the Collateral Agent and the Indenture Trustee
may deem and treat the Person in whose name this Series 1996-2
Class C Note is registered as the absolute owner thereof for the
purposes of receiving payment of all amounts payable with respect
to this Series 1996-2 Class C Note and for all other purposes,
whether or not this Series 1996-2 Class C Note be overdue, and
none of the Issuer, the Issuer Trustee, the Collateral Agent or
the Indenture Trustee shall be affected by notice to the
contrary.
The Supplement and the Series 1996-2 Class C Notes may
be amended, and the observance of any term of the Supplement or
of the Series 1996-2 Class C Notes may be waived (either
retroactively or prospectively), with (and only with) the written
consent of the Holders of the Series 1996-2 Class A Notes, the
Holders of the Series 1996-2 Class B Notes, the Rating Agency and
the Required Holders, except that (a) no amendment or waiver of
any of the provisions of Section 7 and 8 of the Supplement, or
any defined term (as it is used therein), will be effective as to
any Series 1996-2 Class C Noteholder unless consented to by such
Noteholder in writing, and (b) no such amendment or waiver may,
without the written consent of the Holder of each Series 1996-2
Class C Note at the time outstanding affected thereby, (i)
subject to the provisions of the Supplement relating to
acceleration or rescission, change the amount or time of any
prepayment or payment of principal of, or reduce the rate or
change the time of payment or method of computation of interest
on the Series 1996-2 Class C Notes, (ii) change the percentage of
the principal amount of the Series 1996-2 Class C Notes, the
Holders of which are required to consent to any such amendment or
waiver, or (iii) amend any of Sections 10.5, 10.7 or 12 of the
Supplement. Notwithstanding anything therein to the contrary, no
amendment may be made to this Supplement without satisfaction of
the Rating Agency Condition.
The Pooling Agreement may be amended from time to time
by the Servicer, the Seller, the Issuer Trustee and the
Collateral Agent, without the consent of any of the Series 1996-2
Class C Noteholders, (i) to cure any ambiguity, to revise any
exhibits or Schedules, to correct or supplement any provisions
therein or thereon or (ii) to add any other provisions with
respect to matters or questions raised under the Pooling
Agreement which shall not be inconsistent with the provisions of
the Pooling Agreement; provided, however, that such action shall
not adversely affect in any material respect the interests of any
of the Noteholders.
The term "Issuer Trustee" as used in this Series 1996-2
Class C Note includes any successor to the Issuer Trustee under
the Pooling Agreement.
The Series 1996-2 Class C Notes are issuable only in
registered form without coupons in denominations as provided in
the Supplement, subject to certain limitations therein set forth.
No reference herein to the Pooling Agreement or the
Supplement and no provision of this Series 1996-2 Class C Note or
of the Pooling Agreement or the Supplement shall alter or impair
the obligation of the Issuer, which is absolute and
unconditional, to pay the principal of and interest on this
Series 1996-2 Class C Note at the time, place and rate, and in
the coin or currency herein prescribed.
None of the Issuer Trustee, the Collateral Agent or the
Indenture Trustee in its individual capacity makes or shall be
deemed to have made any representation or warranty as to the
validity, legality or enforceability of the Pooling Agreement,
the Supplement or the Series 1996-2 Class C Notes or as to the
correctness of any statement contained in any thereof, except for
the representations and warranties of the Issuer Trustee, the
Collateral Agent or the Indenture Trustee, made in their
respective individual capacities, under any document to which
such party is a party. The Series 1996-2 Class C Noteholders and
the Seller make no representation or warranty hereunder
whatsoever.
This Series 1996-2 Class C Note shall be governed by
and construed in accordance with the internal laws of the State
of New York, 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. The Pooling
Agreement and Supplement shall be governed by and construed in
accordance with the internal laws of the State of Delaware,
without reference to its conflict of law provisions and the
obligations, rights and remedies of the parties thereunder shall
be determined in accordance with such laws.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of
assignee
____________________________________
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto
__________________________________________________________
__________________________________________________________
(name and address of assignee)
the within Series 1996-2 Class C Note and all rights thereunder,
and hereby irrevocably constitutes and appoints ________
attorney, to transfer said Series 1996-2 Class C Note on the
books kept for registration thereof, with full power of
constitution in the premises.
Dated: ___________________ ___________________________________
NOTE: The signature to this
assignment must correspond with the
name of the registered owner as it
appears on the face of the within
Series 1996-2 Class C Note in every
particular, without alteration,
enlargement or any change
whatsoever.
EXHIBIT C
to
SERIES 1996-2 SUPPLEMENT
FORM OF ISSUER'S CERTIFICATE OF AUTHENTICATION
This is one of the [Series 1996-2 Class B] [Series
1996-2 Class C] Notes designated above and referred to in the
within-mentioned Supplement.
CHASE MANHATTAN BANK CHASE MANHATTAN BANK
DELAWARE, as Issuer DELAWARE, as Issuer Trustee
Trustee
By: The Chase Manhattan Bank,
OR as Authenticating Agent
By: _________________________ By: _________________________
Authorized Signatory Authorized Signatory
EXHIBIT D
to
SERIES 1996-2 SUPPLEMENT
FORM OF MONTHLY NOTEHOLDER'S REPORT
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Newcourt Receivables Asset Trust
Monthly Servicer Certificate
- Accounts Master Trust
Collection Reserve Distribution
Account Account Account Series 1996-2
Beginning Account Balances
Collection Account
Collections from the Lockbox Account
Add: Servicer Advances
Add: Liquidation Proceeds from Servicer
Add: Earnings from Eligible Investments
Less: Collections to reimburse Servicer Advances
Reserve Account
Add: Investment Earnings on Reserve Account
Available Amount
Payments on Payment Date
(A) Unreimbursed Servicer
Advances
(B) Servicing Fee
(C) Amount owed to Hedging
Counterparty
(D) Series Available Amount
to each Series of Notes
(1) Series 1996-2
Class A Interest
(2) Series 1996-2
Class B Interest
(3) Series 1996-2
Class A Principal
(4) Reserve Account
(5) Pay to Hedging
Counterparty
(6) Series 1996-2
Class B Principal
(7) Series 1996-2
Class C Interest
(8) Series 1996-2
Class C Principal
(9) Series 1996-2
Class A
Accelerated
Principal Payment
(10) Series 1996-2
Class B
Accelerated
Principal Payment
(11) Series 1996-2
Class C
Accelerated
Principal Payment
(12) Series 1996-2
Class C Additional
Interest Payment
Subtotal
Distributions to Noteholders
Ending Balance
Newcourt Receivables Asset Trust
Monthly Servicer Certificate
Minimum Subordination Amount
Aggregate Discounted
Contract Balance
Add: Available Amount
Add: Reserve Account
Less: Series 1996-2
Class A Principal Balance
Subordination Amount
Minimum Required
Subordination Amount
Restricting Event Calculations
(1) Event of Default
under the
Servicing
Agreement (Yes/No)
(a) Average
Discounted
Lease Balance
greater than
30 days
delinquent
Average
Aggregate
Discounted
Contract
Balance
Delinquency Ratio
Maximum
Delinquency Ratio
(b) Aggregate
ADCB
Defaulted
Contracts
Multiplier
Average Aggregate
Discounted Lease
Balance
Default Ratio
Maximum Default
Ratio
(c) Reserve plus APB
Subordination
(d) Restricting
Event under
any Indenture
Newcourt
Receivables Asset Trust
Monthly Servicer
Certificate
Portfolio
Performance Tests
<S> <C> <C> <C> <C> <C> <C>
1 months prior 2 months prior 3 months prior 4 months prior 5 months prior 6 months prior
Current (yes/no) (yes/no) (yes/no) (yes/no) (yes/no) (yes/no)
Event of Default:
Monthly
Delinquencies Delinquencies ADCB Delinquency
2 months prior
1 month prior
Current
Delinquency Ratio:
Maximum Delinquency
Ratio:
Monthly
Defaults Defaults ADCB Defaults
5 months prior
4 months prior
3 months prior
2 months prior
1 month prior
Current
Default Ratio:
Maximum Default
Ratio:
Enhancement Floor
Amounts on deposit in the
Reserve Account
Aggregate Principal Amount of
Series 1996-2 Class B Notes
Newcourt Receivables
Asset Trust
Monthly Servicer
Certificate -
Certificate Schedules
CERTIFICATE FACTORS
Series 1995-1
Series 1996-2 Class A
Current A Balance
Initial A Balance
Certificate Factor:
Series 1996-2 Class B
Current B Balance
Initial B Balance
Certificate Factor:
Series 1996-2 Class C
Current C Balance
Initial C Balance
Certificate Factor:
DELINQUENCIES Monthly
Delinquencies ADCB Delinquencies
Current
30 Days Past Due
60 Days Past Due
90 Days Past Due
120 Days Past Due
150 Days Past Due
Delinquent (180
+ Days Past Due)
(Contract Pool Performance
Test (Per Prospectus P&S
Agreement)
Newcourt Receivables Asset Trust
Monthly Servicer Certificate -
Schedules
Series Series
1996-1 1996-2
Series 1996-2 Class A Interest
Schedule
% %
Opening Series 1996-2 % %
Class A Principal Balance
Series 1996-2 Class A
Interest Rate
30/360*Series 1996-2
Class A Interest Rate
Current Series 1996-2
Class A Interest
Distribution
Prior Series 1996-2 Class
A Interest Arrearage
Series 1996-2 Class A
Interest Due
Series Series
1996-1 1996-2
Series 1996-2 Class A
Principal Schedule
Opening Series 1996-2
Class A Principal Balance
Prior Months Series ADCB
Current Months Series
ADCB _______ _______
Difference % %
Series
1996-2
Class A
Share
Scheduled
Principal
Due
Prepayments
Defaults
Series
1996-2
Class A
Total Due
Prior Series 1996-2 Class
A Arrearage
Series 1996-2 Class A
Principal Due
Series 1996-2 Class A
Principal Distribution
Current Series 1996-2
Class A Arrearage
Interim Series 1996-2
Class A Principal Balance
after Current
Distribution
Accelerated Series 1996-2
Class A Distribution
Amount
Ending Series 1996-2
Class A Principal Balance
after Current
Distribution
Series Series
1996-1 1996-2
Series 1996-2 Class B Interest
Schedule
% %
Opening Series 1996-2 % %
Class B Principal Balance
Series 1996-2 Class B
Interest Rate
30/360*Series 1996-2
Class B Interest Rate
Current Series 1996-2
Class B Interest
Distribution
Prior Series 1996-2 Class
B Interest Arrearage
Series 1996-2 Class B
Interest Due
Series 1996-2 Class B
Principal Schedule
Opening Series 1996-2
Class B Principal Balance
Prior Months Series ADCB
Current Months Series
ADCB _______ _________
Difference % %
Series
1996-2
Class B
Share
Scheduled
Principal
Due
Prepayments
Defaults
Series
1996-2
Class B
Total Due
Prior Series 1996-2 Class
B Arrearage
Series 1996-2 Class B
Principal Due
Series 1996-2 Class B
Principal Distribution
Current Series 1996-2
Class B Arrearage
Interim Series 1996-2
Class B Principal Balance
after Current
Distribution
Accelerated Series 1996-2
Class B Distribution
Amount
Ending Series 1996-2
Class B Principal Balance
after Current
Distribution
Series 1996-2 Class C Interest
Schedule
% %
Opening Series 1996-2 % %
Class C Principal Balance
Series 1996-2 Class C
Interest Rate
30/360*Series 1996-2
Class C Interest Rate
Current Series 1996-2
Class C Interest
Distribution
Prior Series 1996-2 Class
C Interest Arrearage
Series 1996-2 Class C
Interest Due
Series 1996-2 Class C
Principal Schedule
Opening Series 1996-2
Class C Principal Balance
Prior Months Series ADCB
Current Months Series
ADCB ______ ______
Difference
Series % %
1996-2
Class C
Share
Schedule
Principal
Due
Prior Series 1996-2 Class
C Arrearage
Series 1996-2 Class C
Principal Due
Series 1996-2 Class C
Principal Distribution
Current Series 1996-2
Class C Arrearage
Interim Series 1996-2
Class C Principal Balance
after Current
Distribution
Accelerated Series 1996-2
Class C Distribution
Amount
Ending Series 1996-2
Class C Principal Balance
after Current
Distribution
Servicing Fee Schedule
Contract Pool ADCB
Servicing Rate
Monthly Servicing Rate
Prior Servicing Fee
Arrearage
Current Servicer Fee
Servicer Fee Due
Current Servicing Fee
Arrearage
Reserve Account Schedule
Series 1996-1 Series 1996-2
Required Balance
Lessor of Series 1996-1 Series 1996-2
(i) $2,000,000 times __% __%
Series
Allocation Percentage
or
(ii) Greater of
(x) $500,000
times
Series
Allocation
Percentage __% __%
(y) 2% of
Series 1996-2
Class A Notes
times
Series
Allocation
Percentage __% __%
</TABLE>
EXHIBIT E
to
SERIES 1996-2 SUPPLEMENT
FORM OF OPINION OF COUNSEL TO THE SERVICER
EXHIBIT F
to
SERIES 1996-2 SUPPLEMENT
FORM OF OPINION OF COUNSEL TO NEWCOURT FINANCIAL USA INC.
NEWCOURT RECEIVABLES CORPORATION,
as Seller,
NEWCOURT CREDIT GROUP INC.,
as Servicer,
FLEET NATIONAL BANK,
as Collateral Agent,
and
CHASE MANHATTAN BANK DELAWARE
(formerly known as Chemical Bank Delaware),
as Issuer Trustee
SERIES 1996-2 SUPPLEMENT
Dated as of September 17, 1996
to
POOLING, COLLATERAL AGENCY AND SERVICING AGREEMENT
Dated as of April 15, 1996
TABLE OF CONTENTS
Page
SECTION 1. Series 1996-2 . . . . . . . . . . . . . . . . . . 1
SECTION 2. Definitions . . . . . . . . . . . . . . . . . . . 1
SECTION 3. Transfer of Trust Assets . . . . . . . . . . . . 5
SECTION 4. Receipt, Distribution and Application from the
Trust Receipts . . . . . . . . . . . . . . . . 6
4.1 Distribution Prior to Event of Default or
Restricting Event . . . . . . . . . . . . . . . 6
4.2 Optional Purchase by Seller; Trust Termination
Payments . . . . . . . . . . . . . . . . . . . 7
4.3 Distribution Following an Event of Default or a
Restricting Event . . . . . . . . . . . . . . 8
4.4 Unclaimed Moneys . . . . . . . . . . . . . . . . 8
4.5 Reliance by Collateral Agent Upon Information
Provided . . . . . . . . . . . . . . . . . . . 9
SECTION 5. The Series 1996-2 Notes . . . . . . . . . . . . . 9
5.1 The Notes . . . . . . . . . . . . . . . . . . . . . 9
5.2 Form, Denomination and Dating . . . . . . . . . . . 9
5.3 Execution and Authentication . . . . . . . . . . . 10
5.4 Registration, Transfer and Exchange of Series
1996-2 Class B Notes and Series 1996-2 Class C
Notes . . . . . . . . . . . . . . . . . . . . . . 11
5.5 Mutilated, Destroyed, Lost or Stolen Notes . . . . 13
5.6 Temporary Notes . . . . . . . . . . . . . . . . . . 14
5.7 Priority of Payments . . . . . . . . . . . . . . . 14
5.8 Payments from Trust Assets Only . . . . . . . . . . 15
5.9 Method of Payment . . . . . . . . . . . . . . . . . 15
5.10 Delivery . . . . . . . . . . . . . . . . . . . . . 16
5.11 Interest . . . . . . . . . . . . . . . . . . . . . 16
SECTION 6. Article V of the Agreement . . . . . . . . . . . 17
SECTION 7. Conditions Precedent to Effectiveness of
Supplement . . . . . . . . . . . . . . . . . . 18
SECTION 8. Representations and Warranties of the Issuer
Trustee, the Seller, the
Servicer and the Collateral Agent . . . . . . . 21
SECTION 9. Reports by the Servicer . . . . . . . . . . . . . 23
SECTION 10. Covenants; Restricting Events . . . . . . . . . 24
10.1 Covenants of the Seller . . . . . . . . . . . . . 24
10.2 Covenants of the Servicer . . . . . . . . . . . . 25
10.3 Covenants of the Issuer Trustee . . . . . . . . . 25
10.4 Covenants of the Issuer . . . . . . . . . . . . . 26
10.5 Events of Default and Restricting Events . . . . . 26
10.6 Notice to Rating Agencies, etc. . . . . . . . . . 26
10.7 Remedies . . . . . . . . . . . . . . . . . . . . . 27
10.8 Remedies Cumulative . . . . . . . . . . . . . . . 27
10.9 Discontinuance of Proceedings . . . . . . . . . . 27
10.10 Right of Noteholders to Receive Payments not to
be Impaired . . . . . . . . . . . . . . . . . . 28
10.11 Limitation on Suits . . . . . . . . . . . . . . . 28
10.12 Undertaking for Costs . . . . . . . . . . . . . . 28
10.13 Waiver of Stay or Extension Laws . . . . . . . . 28
SECTION 11. Pooling Agreement . . . . . . . . . . . . . . . 29
11.1 Pooling Agreement . . . . . . . . . . . . . . . . 29
11.2 Release Upon Termination of the Issuer Trustee's
Obligations . . . . . . . . . . . . . . . . . . . 29
11.3 Collateral Agent's Duties . . . . . . . . . . . . 30
11.4 Modification to Article III . . . . . . . . . . . 30
SECTION 12. Amendment and Waiver . . . . . . . . . . . . . . 30
12.1 Requirements . . . . . . . . . . . . . . . . . . . 30
12.2 Solicitation of Holders of Notes . . . . . . . . . 31
12.3 Binding Effect . . . . . . . . . . . . . . . . . . 31
12.4 Notes Held by Issuer Trustee, etc. . . . . . . . 32
SECTION 13. Miscellaneous . . . . . . . . . . . . . . . . . 32
13.1 Obligations Unaffected . . . . . . . . . . . . . . 32
13.2 Successors and Assigns . . . . . . . . . . . . . . 32
13.3 Obligation to Make Payments in Dollars . . . . . . 32
13.4 Repurchase by Seller . . . . . . . . . . . . . . . 33
13.5 Final Distribution . . . . . . . . . . . . . . . . 33
13.6 Ratification of Agreement . . . . . . . . . . . . 33
13.7 No Representations or Warranties as to Documents . 33
13.8 Counterparts . . . . . . . . . . . . . . . . . . . 33
13.9 GOVERNING LAW . . . . . . . . . . . . . . . . . . 33
13.10 The Trustee . . . . . . . . . . . . . . . . . . . 33
13.11 Instructions in Writing . . . . . . . . . . . . . 34
EXHIBITS
Exhibit A: Form of Series 1996-2 Class B Note
Exhibit B: Form of Series 1996-2 Class C Note
Exhibit C: Form of Issuer's Certificate of Authentication
Exhibit D: Form of Monthly Noteholder's Report
Exhibit E: Form of opinion of counsel to the Servicer
Exhibit F: Form of opinion of counsel to Newcourt Financial
USA Inc.
SCHEDULES
Schedule 1: Initial Purchasers' Commitments
Schedule 2: List of Additional Series Contracts
Schedule 3: List of Instruments
Schedule 4: List of PBCC Contracts
CLASS A TRUST INDENTURE
CLASS A TRUST INDENTURE dated as of September 17, 1996
among NEWCOURT RECEIVABLES ASSET TRUST, a Delaware business trust
(the "Issuer"), FLEET NATIONAL BANK, a national banking
association, as Indenture Trustee hereunder (in such capacity,
together with its successors, the "Indenture Trustee"), NEWCOURT
RECEIVABLES CORPORATION, a Delaware corporation, as beneficiary
(in such capacity, the "Seller") of the Issuer, and FLEET
NATIONAL BANK, a national banking association, not in its
individual capacity but as Collateral Agent (the "Collateral
Agent") under the Pooling Agreement (as defined herein).
WHEREAS, all capitalized terms used herein shall have
the respective meanings set forth or referred to in Section 1.1
hereof;
WHEREAS, the Seller and Chase Manhattan Bank Delaware
(formerly Chemical Bank Delaware), as Issuer Trustee (in such
capacity, together with its successors in such capacity, the
"Issuer Trustee") have entered into the Pooling Agreement
whereby, among other things, the Issuer has been established for
the use and benefit of the Seller, subject, however, to the Lien
of the Collateral Agent, and the Issuer Trustee is authorized and
directed to execute and deliver on behalf of the Issuer this
Indenture;
WHEREAS, the Issuer desires by this Indenture, among
other things, to provide for the issuance of the Class A Notes;
WHEREAS, the obligations of the Issuer hereunder and
under the Class A Notes are secured pursuant to the Pooling
Agreement;
WHEREAS, in order to comply with the provisions of the
Trust Indenture Act, it is necessary that the Seller be a party
to this Indenture;
WHEREAS, all things have been done to make the Class A
Notes, when executed by the Issuer and authenticated, issued and
delivered hereunder, the valid, binding and legal obligations of
the Issuer; and
WHEREAS, all things necessary to make this Indenture
the valid, binding and legal obligation of the Issuer, for the
uses and purposes herein set forth and in accordance with its
terms, have been done and performed and have happened;
IT IS HEREBY COVENANTED AND AGREED by and between the
parties hereto as follows:
ARTICLE I
DEFINITIONS; CERTIFICATES, OPINIONS AND FORMS;
ACTS OF NOTEHOLDERS
SECTION 1.1. Defined Terms. All capitalized terms
used herein but not defined herein shall have the respective
meanings set forth or referred to in the Pooling, Collateral
Agency and Servicing Agreement dated as of April 15, 1996 (as
amended, supplemented or modified prior to the date hereof, the
"Base Agreement"), as modified by the Supplement thereto dated as
of September 17, 1996 (the "Related Supplement"), in each case,
among Newcourt Receivables Corporation, as Seller, Newcourt
Credit Group Inc., as Servicer, the Collateral Agent, and the
Issuer Trustee (the Base Agreement as modified by the Related
Supplement and as further amended, supplemented or otherwise
modified from time to time in accordance with the terms hereof,
the "Pooling Agreement"). Unless otherwise specified, Section
and Article references herein are to Sections and Articles of
this Indenture. In addition, as used herein the following terms
shall have the following meanings:
"Act" shall have the meaning assigned to it in subsection
1.4(a).
"Applicable Representative" of a Series of Class A Notes,
shall mean the Applicable Indenture Trustee for such Series.
"Authorized Agent" shall have the meaning assigned to it in
Section 7.12(d).
"Bank" shall mean any national bank organized under the laws
of the United States or any banking institution organized under
the laws of any United States' State, Territory or the District
of Columbia, the business of which is substantially confined to
banking and is supervised by the State or Territorial banking
commission or similar official.
"Bond Rating" means, for any day and for any corporation and
any Rating Agency, the rating of such corporation's (or if such
corporation is a commercial bank which is not rated, its holding
company's) senior long-term unsecured debt by such Rating Agency
in effect at 9:00 A.M., New York City time, on such day. If any
Rating Agency shall have changed its system of classifications
after the date hereof, the Bond Rating shall be considered to be
at or above a specified level if it is at or above the new rating
which most closely corresponds to the specified level under the
old rating system.
"Book-Entry Notes" shall mean notes evidencing a beneficial
interest in the Class A Notes, ownership and transfers of which
shall be made through book entries by the Clearing Agency as
described in Section 2.13; provided, that after the occurrence of
a condition whereupon book-entry registration and transfer are no
longer permitted and Definitive Notes are to be issued to the
Noteholders, such Class A Notes shall no longer be "Book-Entry
Notes".
"Class A Notes" shall be a collective reference to the
Series 1996-2 notes issued by the Issuer and authenticated by the
Indenture Trustee hereunder.
"Clearing Agency" shall mean an organization registered as a
"clearing agency" pursuant to Section 17A of the Securities
Exchange Act of 1934, as amended.
"Clearing Agency Participant" shall mean a broker, dealer,
bank, other financial institution or other Person for whom from
time to time a Clearing Agency effects book-entry transfers and
pledges of securities deposited with the Clearing Agency.
"Closing Date" shall mean the date of issuance of the Class
A Notes hereunder, as set forth in the Related Supplement related
to such Class A Notes.
"Collateral Agent Documents" shall have the meaning assigned
to it in Section 13.4(a).
"Corporate Trust Office" of the Indenture Trustee means the
principal office of such Person located at 777 Main Street, 11th
Floor, Hartford, Connecticut 06115, or such other office at which
the Indenture Trustee's corporate trust business shall be
administered and which the Indenture Trustee shall have specified
by notice in writing to the Issuer, the Collateral Agent, the
Seller and the Noteholders.
"Definitive Notes" shall have the meaning assigned to it in
Section 2.13.
"Depository Agreement" shall mean the Depository Agreement
dated as of April 15, 1996 among the Issuer, the Collateral Agent
and the Indenture Trustee, and any substitute or replacement
agreement providing for the depository and administration of the
Class A Notes in the form of Book-Entry Notes, as amended,
supplemented or otherwise modified from time to time.
"Direction" shall have the meaning assigned to it in
subsection 1.4(c).
"Dollars" and "$" means lawful currency of the United States
of America.
"Indenture" means this Class A Trust Indenture dated as of
September 17, 1996, as amended, supplemented or otherwise
modified from time to time.
"Indenture Event of Default" shall have the meaning assigned
to it in Section 4.2(a).
"Indenture Percentage" shall mean, with respect to any
action to be taken by Noteholders hereunder, the percentage of
the Principal Amount of Class A Notes represented by Noteholders
desiring to take such action.
"Indenture Trustee Documents" shall have the meaning
assigned to it in Section 13.5(a).
"Issuer Documents" shall have the meaning assigned to it in
Section 13.2(a).
"Majority in Interest" shall mean Noteholders representing
not less than 50% of the Outstanding Principal Amount of Class A
Notes.
"Noteholder" or "holder" means, at any time, for purposes of
this Indenture, a Person in whose name a Class A Note is
registered in the Note Register. Reference to a holder of a
given Class of Note shall mean such Person in such capacity and
not in its capacity as the holder of any other Class of Note.
"Note Payment Account" shall have the meaning assigned to it
in Section 1.5(e).
"Note Register" shall have the meaning assigned to it in
subsection 2.6(a).
"Note Registrar" shall mean any paying agent appointed
pursuant to Section 7.12, and shall initially be the Indenture
Trustee.
"Notice of Default" shall mean a written notice from a
Holder of a Subordinated Note or an Applicable Representative on
behalf of the Holders of Class A Notes of any Series specifying
the percentage of the Principal Amount of Notes of such Holder or
Class desiring to declare an "Event of Default" under the Pooling
Agreement.
"Outstanding" with respect to the Class A Notes issued and
authenticated under this Indenture, means, as of the date of
determination, all such Class A Notes, except:
(i) Class A Notes theretofore cancelled by the Note
Registrar or delivered to the Indenture Trustee or the Note
Registrar for cancellation; and
(ii) Class A Notes in exchange for or in lieu of
which other Class A Notes have been authenticated and
delivered pursuant to this Indenture.
"Paying Agent" shall mean any paying agent appointed
pursuant to Section 7.12(c), and shall initially be the Indenture
Trustee.
"Principal Amount" shall mean the principal amount of the
Class A Notes plus the premium, if any, on the Class A Notes.
"Prospectus" shall mean the Prospectus, dated April 11,
1996, describing the Asset Backed Notes issued by Newcourt
Receivables Asset Trust and any Prospectus Supplement thereto.
"Qualifying Noteholder" shall have the meaning assigned to
it in subsection 2.4(c).
"Related Pool of Contracts" shall mean Additional Contracts
purchased with the proceeds from the issuance of a Series of
Class A Notes or purchased with the proceeds from the issuance of
a Series of Class A Notes that is being refinanced.
"Related Supplement" shall mean the Supplement to the Base
Agreement dated as of the date hereof.
"Restricting Event" shall have the meaning assigned to it in
the Pooling Agreement.
"Series 1996-2" shall mean the issuance of Series 1996-2
Notes.
"Territory" shall mean Puerto Rico, the Virgin Islands and
the insular possessions of the United States.
"TIA" shall have the meaning assigned to it in subsection
8.2(a).
"Transaction Documents" shall mean the collective reference
to this Agreement, the Pooling Agreement and the Depository
Agreement.
SECTION 1.2. Compliance Certificates and Opinions.
Upon any application or request by the Issuer to the Indenture
Trustee to take or refrain from taking any action under any
provision of this Indenture or in respect of the Class A Notes,
the Seller shall furnish to the Indenture Trustee an Officer's
Certificate stating that, in the opinion of the signer(s), all
conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with except
that, in the case of any such application or request as to which
the furnishing of such document is specifically required by any
provision of this Indenture, no additional certificate need be
furnished.
Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture or in
respect of the Class A Notes shall include:
(i) a statement that each Person making such
certificate or opinion has read such covenant or condition
and the definitions in this Indenture relating thereto;
(ii) a brief statement as to the nature and scope of
the examination or investigation upon which the
statements or opinions contained in such certificate or
opinion are based;
(iii) a statement that, in the opinion of each such
Person, such Person has made such examination or
investigation as is necessary to enable him or her or it to
express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(iv) a statement as to whether or not, in the opinion
of each such Person, such condition or covenant has been
complied with.
Any certificate, statement or opinion of an officer of
the Seller may be based, insofar as it relates to legal matters,
upon a certificate or opinion of or representations by counsel,
unless such officer knows that the certificate or opinion or
representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that
the same are erroneous. Any certificate, statement or opinion of
counsel may be based, insofar as it relates to factual matters or
information which is in the possession of the Seller, upon the
certificate, statement or opinion of or representations by an
officer or officers of the Seller, unless such counsel knows that
the certificate, statement or opinion or representations with
respect to the matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the
exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of
the Seller or of counsel thereto may be based, insofar as it
relates to accounting matters, upon a certificate or opinion of
or representations by an accountant or firm of accountants
employed by the Seller, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or
representations with respect to the accounting matters upon which
his certificate, statement or opinion may be based as aforesaid
are erroneous, or in the exercise of reasonable care should know
that the same are erroneous.
SECTION 1.3. Form of Documents Delivered to Indenture
Trustee. In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person,
it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be
so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters and any such
Person may certify or give an opinion as to such matters in one
or several documents.
Where any Person is required to make, give or execute
two or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.
SECTION 1.4. Acts of Noteholders. (a) Any direction,
consent, waiver or other action provided by this Indenture in
respect of the Class A Notes to be given or taken by Noteholders
may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Noteholders in person
or by an agent or proxy duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to
the Indenture Trustee and, where it is hereby expressly required
pursuant to this Indenture, to the Issuer, the Collateral Agent
or the Seller. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Noteholders signing such
instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and conclusive in
favor of the Indenture Trustee, the Issuer, the Collateral Agent
and the Seller, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person
of any such instrument or writing may be proved (i) by the
certificate of any notary public or other officer of any
jurisdiction authorized to take acknowledgments of deeds or
administer oaths that the Person executing such instrument
acknowledged to him the execution thereof or (ii) by an affidavit
of a witness to such execution sworn to before any such notary or
such other officer, and where such execution is by an officer of
a corporation or association or a member of a partnership, on
behalf of such corporation, association or partnership, such
certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing
the same, may also be proved in any other reasonable manner which
the Indenture Trustee deems sufficient.
(c) In determining whether the Noteholders have given
any direction, consent or waiver (a "Direction") under this
Indenture, Class A Notes owned by Newcourt Credit Group Inc., the
Issuer or the Seller, or any Affiliate of Newcourt Credit Group
Inc., the Issuer or the Seller shall be disregarded and deemed
not to be outstanding for purposes of any such determination;
provided that, for the purposes of this Section 1.4(c), the
Issuer Trustee, acting in its individual capacity, shall not be
deemed an Affiliate of the Seller. In determining whether the
Indenture Trustee shall be protected in relying upon any such
Direction, only Class A Notes which the Indenture Trustee knows
to be so owned shall be so disregarded. Notwithstanding the
foregoing, (i) if any such Person owns 100% of the Class A Notes,
such Class A Notes shall not be so disregarded as aforesaid, and
(ii) if any amount of such Class A Notes so owned by any such
Person have been pledged in good faith, such Class A Notes shall
not be disregarded as aforesaid if the pledgee establishes to the
satisfaction of the Indenture Trustee the pledgee's right so to
act with respect to such Notes and that the pledgee is not
Newcourt Credit Group Inc., the Issuer or the Seller or any
Affiliate of Newcourt Credit Group Inc., the Issuer or the
Seller.
(d) The Seller, on behalf of the Issuer, may at its
option by delivery of an Officers' Certificate to the Indenture
Trustee set a record date to determine the Noteholders entitled
to give any consent, request, demand, authorization, direction,
notice, waiver or other Act. Notwithstanding Section 316(c) of
the Trust Indenture Act, such record date shall be the record
date specified in such Officers' Certificate, which shall be a
date not more than 30 days prior to the first solicitation of
Noteholders in connection therewith. If such a record date is
fixed, such consent, request, demand, authorization, direction,
notice, waiver or other Act may be given before or after such
record date, but only the Noteholders of record at the close of
business on such record date shall be deemed to be Noteholders
for the purposes of determining whether Noteholders of the
requisite proportion of Class A Notes have authorized or agreed
or consented to such consent, request, demand, authorization,
direction, notice, waiver or other Act, and for that purpose the
outstanding Class A Notes shall be computed as of such record
date; provided, however, that no such consent, request, demand,
authorization, direction, notice, waiver or other Act by the
Noteholders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this
Indenture not later than one year after the record date.
(e) Any direction, consent, waiver or other action by
the holder of any Class A Note shall bind the holder of every
Class A Note issued upon the transfer thereof or in exchange
therefor or in lieu thereof, whether or not notation of such
action is made upon such Class A Note.
(f) Except as otherwise provided in Section 1.4(c)
hereof, each Class A Note owned by or pledged to any Person shall
have an equal and proportionate benefit under the provisions of
this Indenture, without preference, priority or distinction as
among all of the Class A Notes.
SECTION 1.5. Written Notice of Distribution. (a) No
later than 3:00 P.M. (New York City time) on the Business Day
immediately preceding each Determination Date, the Indenture
Trustee shall, if previously requested to do so by the Servicer
or the Collateral Agent upon no less than two Business Days'
notice, deliver to the Servicer and the Collateral Agent a
written notice setting forth the amounts specified in clauses
"third" and "fourth" of Section 3.3 hereof.
(b) At such time as the Indenture Trustee shall have
received all amounts owing to it (and the Noteholders) pursuant
to Sections 3.2 or 3.4 hereof, as applicable, the Indenture
Trustee shall, if previously requested to do so by the Servicer
or the Collateral Agent upon no less than two Business Days'
notice, so inform the Servicer and the Collateral Agent.
(c) The Servicer and the Collateral Agent shall be
fully protected in relying on any of the information set forth in
a notification provided by the Indenture Trustee pursuant to
paragraphs (a) and (b) above and shall have no independent
obligation to verify, calculate or re-calculate any amount set
forth in any such notification.
(d) In the event the Collateral Agent shall not
receive any information set forth in paragraphs (a) or (b) above
which is required to enable the Collateral Agent to make a
distribution pursuant to Sections 3.2 or 3.4 hereof, the
Collateral Agent shall use commercially reasonable efforts to
obtain such information and, failing to receive any such
information, the Collateral Agent shall not make such
distribution(s).
(e) Prior to the First Distribution Date hereunder,
the Indenture Trustee shall notify the Collateral Agent in
writing of the account (the "Note Payment Account") into which
the Collateral Agent is to make payments under the Pooling
Agreement on account of the Class A Notes.
ARTICLE II
THE NOTES
SECTION 2.1. Form, Denomination and Dating. Subject
to Section 2.13, the Class A Notes and the Indenture Trustee's
form of certificate of authentication to appear on the Class A
Notes shall each be substantially in the form of (i) in the case
of Class A Notes, Exhibit A hereto and (ii) in the case of the
Indenture Trustee's certificate of authentication, Exhibit B
hereto. The Class A Notes shall contain such omissions,
variations and insertions as are permitted by this Indenture, and
may have such letters, numbers or other marks of identification
and such legends or endorsements printed, lithographed or
engraved thereon, as may be required to comply with law, the
rules of any securities market in which such Class A Notes may be
admitted to trading or agreements to which the Issuer is subject,
if any, or to conform to any usage in respect thereof, or as may,
consistently herewith, be prescribed by the Indenture Trustee or
by the Responsible Officer of the Issuer Trustee executing such
Class A Notes, such determination by such officer to be evidenced
by his signing the Class A Notes on behalf of the Issuer. The
terms of the Class A Notes set forth in Exhibit A, respectively,
are part of the terms of this Indenture.
The definitive Class A Notes shall be printed,
lithographed or engraved or produced by any combination of these
methods or may be produced in any other manner permitted by the
rules of any securities market in which the Class A Notes may be
admitted to trading, all as determined by the Responsible Officer
of the Issuer executing such Class A Notes, as evidenced by such
Officer's execution of such Notes.
Each Class A Note shall be issued in registered form
without coupons in denominations of $1,000 and any multiple of
$1,000 (except for one Class A Note which may be issued in a
minimum denomination of $1,000 and any multiple of $1 in excess
thereof). Each Class A Note shall be dated the date of its
authentication.
SECTION 2.2. Execution and Authentication. (a) The
Class A Notes shall be executed on behalf of the Issuer by one of
the Responsible Officers of the Issuer Trustee, as certified by
the Issuer Trustee. Any such signature may be a facsimile and
may be imprinted or otherwise reproduced. Class A Notes bearing
the signatures of individuals who were at any time the
Responsible Officers of the Issuer Trustee shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of
such Class A Notes or did not hold such offices at the respective
dates of such Class A Notes. No Class A Notes shall be issued
hereunder except those provided for in Section 2.1 hereof and any
Class A Notes issued in exchange or replacement therefor pursuant
to the terms of this Indenture. No Class A Note shall be secured
by or entitled to any benefit under this Indenture or the Pooling
Agreement or be valid or obligatory for any purpose, unless there
appears on such Class A Note a certificate of authentication in
the form provided for in Section 2.1 hereof executed by the
Indenture Trustee by the manual signature of one of its
Responsible Officers, and such certificate upon any Class A Note
shall be conclusive evidence, and the only evidence, that such
Class A Note has been duly authenticated and delivered hereunder.
(b) (i) On the Closing Date, the Indenture Trustee
shall authenticate and deliver Class A Notes for original issue
in an aggregate principal amount of $169,810,862 upon the written
order of the Seller signed by one of its Responsible Officers.
Such order shall specify the amount of the Class A Notes to be
authenticated and the date on which the original issue of the
Class A Notes is to be authenticated and shall further provide
instructions concerning registration, amounts for each Noteholder
and delivery.
(ii) The aggregate principal amount of Class A Notes
outstanding at any time may not exceed $169,810,862 except as
provided in Section 2.7 hereof. The Class A Notes outstanding at
any time shall be treated as a single Class of Class A Notes for
purposes of this Indenture.
(iv) The Indenture Trustee may appoint an
authenticating agent reasonably acceptable to the Seller to
authenticate the Class A Notes. Unless limited by the terms of
such appointment, an authenticating agent may authenticate Class
A Notes whenever the Indenture Trustee may do so. Each reference
in this Indenture to authentication by the Indenture Trustee
includes authentication by such agent. An authenticating agent
has the same rights as any Note Registrar or agent for service of
notices and demands.
SECTION 2.3. Payments from Trust Assets Only. Except
as otherwise expressly provided in the next succeeding sentence
of this Section 2.3, all payments to be made by the Issuer or the
Collateral Agent under this Indenture or the Pooling Agreement,
as applicable, shall be made only from the income and the
proceeds from the Trust Assets and only to the extent that the
Issuer shall have sufficient income or proceeds from the Trust
Assets to enable the Issuer or the Collateral Agent, as
applicable, to make payments in accordance with the terms hereof.
Each Noteholder, by its acceptance of a Class A Note, and the
Indenture Trustee, agree that it will look solely to the income
and proceeds from the Trust Assets to the extent available for
distribution to it as provided in the Pooling Agreement and this
Indenture and that none of the Collateral Agent or the Indenture
Trustee is personally liable to it for any amounts payable or any
liability under this Indenture or such Class A Note, except as
expressly provided herein and in the Pooling Agreement.
SECTION 2.4. Method of Payment. (a) Principal and
interest and other amounts due hereunder or under the Class A
Notes or in respect hereof or thereof shall be payable in Dollars
in immediately available funds prior to 10:00 A.M., New York City
time, on the due date thereof. In furtherance thereof, the
Issuer has assigned to the Collateral Agent certain of its right,
title and interest in, to and under the Trust Assets. Upon
payment of any such amount by the Collateral Agent to the Note
Payment Account on the due date thereof, interest shall no longer
accrue on or in respect of any Class A Note on the amount so
paid, to the extent such amount is payable to the Noteholders in
reduction of the principal amount of the Class A Notes.
(b) As provided in Section 4.3 of the Pooling
Agreement, the Collateral Agent shall, subject to the terms and
conditions thereof, remit all such amounts so received by it to
the Note Payment Account, in Dollars and in immediately available
funds, payment to be made in Hartford, Connecticut or New York,
New York, as designated by the Indenture Trustee, prior to 2:00
P.M., New York City time, on the due date thereof. In the event
the Collateral Agent shall fail to make any such payment after
its receipt of funds at the time and place specified in the
Pooling Agreement, other than as a result of a failure of the
Servicer or the Indenture Trustee to provide any information
requested by the Collateral Agent pursuant to Section 1.5 in
connection with any such payment, the Collateral Agent, in its
individual capacity, shall be liable to the holders of the Class
A Notes to the extent provided in Section 12.1(d) of the Pooling
Agreement.
(c) The Indenture Trustee shall, subject to the terms
and conditions hereof, remit all such amounts so received by it
(i) to any Noteholder whose Class A Notes, at any time, exceed
$1,000,000 in aggregate principal amount and who has requested
the Indenture Trustee in writing not later than 15 days prior to
the due date thereof that such amounts be remitted to such
account or accounts at such financial institution or institutions
as such Noteholders shall designate (each a "Qualifying
Noteholder" and, collectively, the "Qualifying Noteholders"), in
immediately available funds for distribution to such Qualifying
Noteholders, such payment to be made in Dollars to the account
designated by each such Qualifying Noteholder at a Bank which is
member of the Federal Reserve System, prior to the close of
business in New York on the due date thereof and (ii) to any
Noteholders other than the Qualifying Noteholders, in Dollars on
the due date thereof at the close of business at the Corporate
Trust Office of the Indenture Trustee or at any office or agency
maintained for such purpose pursuant to Section 7.12 hereof;
provided, however, that the Indenture Trustee may, at its option,
pay such amounts by check mailed to any Noteholder's address as
it appears on the Note Register. In the event the Indenture
Trustee shall fail to make any such payment as provided in the
immediately foregoing sentence after its receipt of funds at the
place and prior to the time specified in Section 2.4(b) hereof,
or in the event the Indenture Trustee shall not receive any funds
as so provided as a result of the failure of the Indenture
Trustee to provide any information requested by the Collateral
Agent pursuant to Section 1.5 in connection with any such
payment, the Indenture Trustee, in its individual capacity and
not as trustee, agrees to compensate the Noteholders for loss of
use of funds.
(d) Prior to the due presentment for registration of
transfer of any Class A Note, the Issuer, the Issuer Trustee, the
Collateral Agent and the Indenture Trustee may deem and treat the
Person in whose name any Class A Note is registered on the Note
Register as the absolute owner of such Class A Note for the
purpose of receiving payment of all amounts payable with respect
to such Class A Note and for all other purposes whether or not
such Class A Note shall be overdue, and none of the Issuer, the
Issuer Trustee, the Indenture Trustee or the Collateral Agent
shall be affected by any notice to the contrary.
(e) If any sum payable under the Class A Notes or
under this Indenture falls due on a day which is not a Business
Day, then such sum shall be payable on the next succeeding
Business Day without additional interest as a result of such
extension.
SECTION 2.5. Termination of Interest in Trust Assets.
A Noteholder shall not, as such, have any further interest in, or
other right with respect to, the Trust Assets when and if the
principal amount of and interest on and other amounts due under
all Class A Notes held by such Noteholder and all other sums due
to such Noteholder hereunder and under the Pooling Agreement
shall have been paid in full.
SECTION 2.6. Registration, Transfer and Exchange of
Class A Notes. (a) The Indenture Trustee agrees with the Issuer
that the Indenture Trustee shall keep a register (herein
sometimes referred to as the "Note Register") in which provisions
shall be made for the registration of Class A Notes and the
registration of transfers of Class A Notes. The Note Register
shall be kept at the Corporate Trust Office of the Indenture
Trustee, and the Indenture Trustee is hereby appointed "Note
Registrar" for the purpose of registering Class A Notes and
transfers of Class A Notes as herein provided. Upon surrender
for registration of transfer of any Class A Note at the Corporate
Trust Office of the Indenture Trustee, the Issuer shall execute,
and the Indenture Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new
Class A Notes and of a like aggregate principal amount. At the
option of any Noteholder, its Class A Notes may be exchanged for
other Class A Notes of any authorized denominations and of a like
aggregate principal amount, upon surrender of the Class A Notes
to be exchanged at the Corporate Trust Office of the Indenture
Trustee. Whenever any Class A Note is so surrendered for
exchange, the Issuer shall execute, and the Indenture Trustee
shall authenticate and deliver, the Class A Notes which the
Noteholder making the exchange is entitled to receive.
(b) All Class A Notes issued upon any registration of
transfer or exchange of Class A Notes shall be the valid
obligations of the Issuer evidencing the same respective
obligations, and entitled to the same security, priority and
benefits under this Indenture, as the Class A Notes surrendered
upon such registration of transfer or exchange. Every Class A
Note presented or surrendered for registration of transfer or
exchange shall (if so required by the Indenture Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Indenture Trustee duly executed by
the Noteholder thereof or his attorney duly authorized in
writing, and the Indenture Trustee may require evidence
satisfactory to it as to the compliance of any such transfer with
the Securities Act. The Indenture Trustee shall make a notation
on each new Class A Note or Class A Notes of the amount of all
payments of principal previously made on the old Class A Note or
Class A Notes with respect to which such new Class A Note is
issued and the date to which interest accrued on such old Class A
Note or Class A Notes has been paid. The Indenture Trustee shall
not be required to register the transfer of or exchange any
surrendered Class A Notes as above provided during the five day
period preceding the due date of any payment on such Class A
Notes. The Indenture Trustee shall not be required to exchange
or register a transfer of any Class A Note for a period of 15
days immediately preceding the first mailing of a notice of
redemption of Class A Notes. The Indenture Trustee shall give
the Seller notice of any such transfer of a Class A Note under
this Section 2.6.
(c) The Issuer, the Collateral Agent and the Issuer
Trustee shall be entitled at any time and from time to time to
obtain from the Indenture Trustee, at the requesting party's
expense, the name and address of each Noteholder, as set forth in
the Note Register maintained by the Note Registrar as provided in
Section 2.6(a) hereof, and to communicate with one or more of
such Noteholders directly. Each and every Noteholder, by
receiving and holding a Class A Note, agrees with the Issuer and
the Indenture Trustee that none of the Issuer, the Collateral
Agent, the Seller or the Indenture Trustee shall be held
accountable by reason of the disclosure of any such information
as to the names and addresses of the Noteholders in accordance
with the provisions of the immediately preceding sentence,
regardless of the source from which such information was derived,
and that the Indenture Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under
the immediately preceding sentence.
SECTION 2.7. Mutilated, Destroyed, Lost or Stolen
Notes. If any Class A Note shall become mutilated, destroyed,
lost or stolen, the Issuer shall, upon the written request of the
affected Noteholder, execute, and the Indenture Trustee shall
authenticate and deliver in replacement thereof (in the absence
of notice to the Issuer or the Indenture Trustee that such Class
A Note has been acquired by a bona fide purchaser), a new Class A
Note in the same principal amount, dated the date of such Class A
Note and designated as issued under this Indenture. If the Class
A Note being replaced has become mutilated, such Class A Note
shall be surrendered to the Indenture Trustee and a photocopy
thereof shall be furnished to the Collateral Agent by the
Indenture Trustee. If the Class A Note being replaced has been
destroyed, lost or stolen, the affected Noteholder shall furnish
to the Issuer and the Indenture Trustee such security or
indemnity as may be reasonably required by them to hold the
Issuer and the Indenture Trustee harmless and evidence
satisfactory to the Indenture Trustee of the destruction, loss or
theft of such Class A Note and of the ownership thereof.
Each substitute Class A Note issued pursuant to the
provisions of this Section 2.7 by virtue of the fact that any
Class A Note is apparently destroyed, lost or stolen shall
constitute an original additional contractual obligation of the
Issuer, whether or not the apparently destroyed, lost or stolen
Class A Note shall be enforceable at any time by anyone and shall
be entitled to all the security and benefits of (but shall be
subject to all the limitations of rights set forth in) this
Indenture and the Pooling Agreement equally and proportionately
with any and all other Class A Notes duly authenticated and
delivered hereunder. All Class A Notes shall be held and owned
upon the express condition that, to the extent permitted by law,
the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, defaced, or apparently
destroyed, lost or stolen Class A Notes and shall preclude any
and all other rights or remedies notwithstanding any law or
statute existing or hereafter enacted to the contrary with
respect to the replacement or payment of negotiable instruments
or other securities without their surrender.
SECTION 2.8. Payment of Expenses on Transfer. Upon
the issuance of a new Class A Note or new Class A Notes pursuant
to Section 2.7 hereof, the Issuer or the Indenture Trustee may
require from the party requesting such new Class A Note or Notes
payment of a sum sufficient to reimburse the Issuer, the
Collateral Agent or the Indenture Trustee for, or to provide
funds for, the payment of any tax or other governmental charge in
connection therewith or any charges and expenses connected with
such tax or other governmental charge paid or payable by the
Issuer or the Indenture Trustee.
SECTION 2.9. Priority of Payments. (a) The
Collateral Agent and, by acceptance of its Notes, each Noteholder
hereby agrees that no payment or distribution shall be made on or
in respect of any Class A Note, including any payment or
distribution of cash, property or securities after the occurrence
of an Event of Default, except directly to the Collateral Agent
for application as expressly provided in Article IV of the
Pooling Agreement.
(b) By the acceptance of its Notes, each Noteholder
agrees that in the event that such Noteholder shall receive any
payment or distribution on or in respect of any Class A Note
which it is not entitled to receive under this Section 2.9 or
under Article IV of the Pooling Agreement, it will hold any
amount so received in trust for the Person entitled thereto and
will forthwith turn over such payment to the Collateral Agent in
the form received to be applied or held as provided in Article IV
of the Pooling Agreement.
SECTION 2.10. Cancellation of Notes. All Class A
Notes surrendered for registration of transfer or exchange, if
surrendered to the Issuer or the Indenture Trustee or any agent
of the Issuer or the Indenture Trustee, shall be delivered to the
Indenture Trustee for cancellation or, if surrendered to the
Indenture Trustee, shall be cancelled by it; and no Class A Notes
shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Indenture. The Indenture Trustee
shall destroy cancelled Class A Notes held by it and deliver a
certificate of destruction to the Issuer and the Collateral
Agent. If the Issuer shall acquire any of the Class A Notes,
such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Class A
Notes unless and until the same are delivered to the Indenture
Trustee for cancellation.
SECTION 2.11. Temporary Notes. Until definitive Class
A Notes are ready for delivery, the Issuer Trustee, on behalf of
the Issuer, may execute and, upon the request of a Responsible
Officer of the Seller, the Indenture Trustee shall authenticate
and deliver temporary Class A Notes. Temporary Class A Notes
shall be substantially in the form of definitive Class A Notes
but may have variations that the Seller considers appropriate for
temporary Class A Notes. Without unreasonable delay, the Issuer
Trustee, on behalf of the Issuer, shall execute and furnish
definitive Class A Notes and deliver them in exchange for
temporary Class A Notes. Until such exchange, temporary Class A
Notes shall be entitled to the same rights, benefits and
privileges as definitive Class A Notes.
SECTION 2.12. Interest on Defaulted Payments. Each
Note (and all amounts payable by the Issuer thereunder and
hereunder) shall bear interest at the Class A Interest Rate (as
defined in the Prospectus) plus 1.00% (calculated on the basis of
a 30-day month, 360-day year) payable from time to time as
provided in the Pooling Agreement on any outstanding principal of
the Note and, to the extent permitted by applicable law, on any
interest and other amounts due thereunder (and hereunder) but not
paid by the maturity date (whether by acceleration or otherwise).
The Issuer, or the Collateral Agent on the Issuer's
behalf as provided in the Pooling Agreement, may pay the
defaulted interest to the Persons who are Noteholders on a
subsequent special record date. The Seller shall fix or cause to
be fixed any such special record date and payment date to the
reasonable satisfaction of the Indenture Trustee and shall
promptly mail to each Noteholder a notice that states the special
record date, the payment date and the amount of defaulted
interest to be paid.
SECTION 2.13. Book-Entry Notes. The Class A Notes,
upon original issuance, shall be issued in the form of one or
more typewritten Class A Notes representing the Book-Entry Notes,
to be delivered to the Clearing Agency in accordance with the
Clearing Agency's rules by, or on behalf of, the Seller. The
Notes of each Series shall, unless otherwise provided in the
Related Supplement, initially be registered on the Note Register
in the name of the nominee of the Clearing Agency, and no
Noteholder will receive a definitive certificate representing
such Noteholder's interest in the Class A Notes, except as
provided in Section 2.15. Unless and until definitive, fully
registered Class A Notes (the "Definitive Notes") have been
issued to Noteholders:
(a) the provisions of this Section 2.13 shall be in
full force and effect with respect to the Class A Notes;
(b) the Seller, the Servicer, the Paying Agent, the
Note Registrar, the Collateral Agent and the Issuer may deal
with the related Clearing Agency and the related Clearing
Agency Participants for all purposes (including the making
of distributions on the Class A Notes) as the authorized
representatives of such Noteholders;
(c) to the extent that the provisions of this Section
2.13 conflict with any other provisions of this Indenture,
the provisions of this Section 2.13 shall control; and
(d) the rights of the Noteholders shall be exercised
only through the Clearing Agency and the applicable Clearing
Agency Participants and shall be limited to those
established by law and agreements between such Noteholders
and the Clearing Agency and/or the Clearing Agency
Participants. Pursuant to the Depository Agreement, unless
and until Definitive Notes are issued pursuant to Section
2.15, the initial Clearing Agency will make book-entry
transfers among the Clearing Agency Participants and receive
and transmit distributions of principal and interest on the
Class A Notes to such Clearing Agency Participants.
Section 2.14. Notices to Clearing Agent. Whenever
notice or other communication to the Noteholders is required
under this Indenture, unless and until Definitive Notes shall
have been issued to the Noteholders, all such notices and
communications specified herein to be given to such Noteholders
shall be given to the Clearing Agency.
Section 2.15. Definitive Notes Initially Issued as
Book-Entry Notes. If (i)(A) the Seller advises the Indenture
Trustee in writing that the Clearing Agency is no longer willing
or able properly to discharge its responsibilities under the
related Depository Agreement, and (B) the Indenture Trustee or
the Seller is unable to locate a qualified successor, (ii) the
Seller, at its option, advises the Indenture Trustee in writing
that it elects to terminate the book-entry system through such
Clearing Agency or (iii) after the occurrence of an Event of
Default, a Majority in Interest of Noteholders advises the
Indenture Trustee and the related Clearing Agency through the
related Clearing Agency Participants in writing that the
continuation of a book-entry system through such Clearing Agency
is no longer in the best interests of the Noteholders, the
Indenture Trustee shall notify all Noteholders through such
Clearing Agency, of the occurrence of any such event and of the
availability of Definitive Notes to Noteholders requesting the
same. Upon surrender to the Indenture Trustee of the Class A
Notes by the related Clearing Agency, accompanied by registration
instructions from the related Clearing Agency for registration,
the Indenture Trustee shall issue the Definitive Notes. None of
the Seller, the Issuer, the Collateral Agent or the Indenture
Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected
in relying on, such instructions. Upon the issuance of Definitive
Notes, all references herein to obligations imposed upon or to be
performed by the Clearing Agency shall be deemed to be imposed
upon and performed by the Indenture Trustee, to the extent
applicable with respect to such Definitive Notes and the
Indenture Trustee shall recognize the holders of the Definitive
Notes as Noteholders hereunder.
SECTION 2.16. Tax Treatment. The Seller and the
Indenture Trustee, by entering into this Indenture, and the
Noteholders, by acquiring any Class A Note or interest therein,
(i) express their intention that the Class A Notes qualify under
applicable tax law as indebtedness secured by the Trust Assets,
and (ii) unless otherwise required by appropriate taxing
authorities, agree to treat the Class A Notes as indebtedness
secured by the Trust Assets for the purpose of federal income
taxes, state and local income and franchise taxes, and any other
taxes imposed upon, measured by or based upon gross or net
income.
ARTICLE III
RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME FROM THE TRUST ASSETS
SECTION 3.1. Distribution Prior to Event of Default or
Restricting Event. Each payment received by the Indenture
Trustee pursuant to Section 4.3(d) of the Pooling Agreement shall
be promptly distributed in the following order of priority:
first, so much of such installment or payment as shall
be required to pay in full the aggregate amount of interest
then due on or in respect of the Class A Notes shall be
distributed to the Class A Noteholders ratably, without
priority of any one Class A Note over any other Class A
Note, in the proportion that the aggregate amount of all
accrued but unpaid interest to the date of distribution on
each Class A Note bears to the aggregate amount of all
accrued but unpaid interest to the date of distribution on
all Class A Notes; and
second, the balance, if any, of such installment or
payment remaining thereafter shall be distributed ratably to
the Class A Noteholders to pay in full the aggregate amount
of the Class A Principal Payment Amount then due pursuant
to, on or in respect of the Class A Notes, without priority
of any one Class A Note over any other Class A Note, in the
proportion that the aggregate unpaid Principal Amount of
each Class A Note bears to the aggregate unpaid Principal
Amount of all Class A Notes.
SECTION 3.2. Optional Purchase by Seller; Trust
Termination Payments . (a) Pursuant to Section 13.2(a) of the
Pooling Agreement, on any Distribution Date occurring on or after
the date on which the Principal Amount of the Class A Notes and
Class B Notes of all Series is 10% or less of the aggregate
principal amount of the Class A Notes and Class B Notes of all
Series as of their respective Closing Dates, the Seller at its
sole option, upon not less than 30 and not more than 60 days'
notice to the Issuer, the Collateral Agent, the Indenture Trustee
and the Noteholders, may purchase without penalty or premium all,
but not less than all, of the Class A Notes of all Series. Upon
receipt of the redemption price (as provided in such Section
13.2) of the Class A Notes, the Indenture Trustee shall
distribute the amount so received to the holders of the Class A
Notes on such Distribution Date. Following any redemption, the
Class A Noteholders will have no further rights with respect to
the Trust Assets.
(b) The Principal Amount of the Class A Notes shall be
due and payable no later than the Maturity Date with respect to
Series 1996-2. As provided in Section 13.2(b) of the Pooling
Agreement, if on the Determination Date in the third month
immediately preceding the month in which such Maturity Date
occurs (after giving effect to all transfers, withdrawals,
deposits and drawings to occur on the next Transfer Date and the
payment of principal on the Notes of Series 1996-2 to be made on
the related Distribution Date pursuant to Article IV of the
Pooling Agreement), the Principal Amount with respect to Series
1996-2 would be greater than zero, the Servicer shall sell,
dispose of, or otherwise liquidate, on the terms and for the
prices set forth in such Section 13.2(b), Contracts and related
Equipment. Amounts received by the Indenture Trustee on account
of any such sale, disposition or other liquidation shall be
distributed to the Holders of the Class A Notes in final payment
thereof.
(c) As provided in Section 13.1 of the Pooling
Agreement, the Trust shall terminate (to the extent provided
therein) on the Trust Termination Date. Amounts received by the
Indenture Trustee in connection with the Trust Termination Date
shall be distributed to the Holders of the Class A Notes in final
payment thereof.
(d) The amount deposited pursuant to subsections
3.2(a), 3.2(b) and 3.2(c) shall be paid to the Noteholders in the
manner provided in Section 2.4.
(e) Written notice of any termination, specifying the
Distribution Date upon which the Noteholders may surrender their
Notes for payment of the final distribution and cancellation
(unless otherwise specified in the Related Supplement), shall be
given (subject to at least four Business Days' prior notice from
the Servicer to the Indenture Trustee) by the Indenture Trustee
to Noteholders mailed not later than the fifth day of the month
of such final distribution specifying (i) the Distribution Date
(which shall be the Distribution Date in the month in which the
deposit is made pursuant to Sections 13.1 or 13.2 of the Pooling
Agreement) upon which final payment of the Notes will be made
upon presentation and surrender of Notes (unless otherwise
specified in the Related Supplement) at the office or offices
therein designated, (ii) the amount of any such final payment and
(iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only
upon presentation and surrender of the Notes at the office or
offices therein specified (unless otherwise specified in the
Related Supplement).
(f) All funds on deposit in the Note Payment Account,
in the case of a final payment, pursuant to Section 13.2 and, in
the case of a termination of the Trust, pursuant to Section 13.1
(and notwithstanding such termination), shall continue to be held
in trust for the benefit of the Noteholders and the Indenture
Trustee shall pay such funds to the appropriate Noteholders upon
surrender of their Notes (unless otherwise specified in the
Related Supplement). In the event that all of the Noteholders
shall not surrender their Notes for cancellation within six
months after the date specified in the above-mentioned written
notice, the Indenture Trustee shall give a second written notice
to the remaining Noteholders to surrender their Notes for
cancellation and receive the final distribution with respect
thereto. If within one year after the second notice all the
Notes shall not have been surrendered for cancellation, the
Indenture Trustee may take appropriate steps, or may appoint an
agent to take appropriate steps, to contact the remaining
Noteholders concerning surrender of their Notes, and the cost
thereof shall be paid out of the funds in the Note Payment
Account held for the benefit of such Noteholders. The Indenture
Trustee shall pay to the Seller upon request any monies held by
it for the payment of principal or interest which remains
unclaimed for two years. After payment to the Seller,
Noteholders entitled to the money must look to the Seller for
payment as general creditors unless an applicable abandoned
property law designates another Person.
SECTION 3.3. Distribution Following an Event of
Default or a Restricting Event. Except as otherwise provided in
Section 3.4 hereof, each payment received by the Indenture
Trustee pursuant to Section 4.3(e) of the Pooling Agreement shall
be promptly distributed by the Indenture Trustee in the following
order of priority:
first, so much of such payment as shall be required to
reimburse the Indenture Trustee for any tax, expense, charge
or other loss incurred by the Indenture Trustee (to the
extent not previously reimbursed) (including, without
limitation, the expense of sale, taking or other proceeding,
attorneys' fees and expenses, court costs, and any other
expenditures incurred or expenditures or advances made by
the Indenture Trustee in the protection, exercise or
enforcement of any right, power or remedy or any damages
sustained by the Indenture Trustee, liquidated or otherwise,
upon the Event of Default giving rise to such expenditures
or advances) shall be applied by the Indenture Trustee in
reimbursement of such expenses;
second, so much of such payment remaining as shall be
required to reimburse the Noteholders in full for payments
made by such Noteholders pursuant to Section 5.3 hereof (to
the extent not previously reimbursed) shall be distributed
to the Noteholders, and, if the aggregate amount remaining
shall be insufficient to reimburse all such payments in
full, it shall be distributed ratably, without priority of
any Noteholder over any other Noteholder, in the proportion
that the aggregate amount of the unreimbursed payments made
by each such Noteholder pursuant to Section 5.3 hereof bears
to the aggregate amount of the unreimbursed payments made by
all Noteholders pursuant to Section 5.3 hereof;
third, so much of such payment remaining as shall be
required to pay in full the aggregate amount of all accrued
but unpaid interest to the date of distribution on the Class
A Notes shall be distributed to the Noteholders, and, if the
aggregate amount remaining shall be insufficient to pay all
such amounts in full, it shall be distributed ratably,
without priority of any one Class A Note over any other
Class A Note, in the proportion that the aggregate amount of
all accrued but unpaid interest to the date of distribution
on each Class A Note bears to the aggregate amount of all
accrued but unpaid interest to the date of distribution on
all Class A Notes; and
fourth, the balance, if any, of such payment remaining
thereafter shall be distributed to the Noteholders in order
to pay in full the outstanding aggregate amount of principal
of the Class A Notes, and if the aggregate amount remaining
shall be insufficient to pay all such amounts in full, it
shall be distributed ratably, without priority of any one
Class A Note over any other Class A Note, in the proportion
that the aggregate unpaid principal amount of each Class A
Note bears to the aggregate unpaid principal amount of all
Class A Notes.
SECTION 3.4. Certain Payments. The Indenture Trustee
will distribute, promptly upon receipt, any indemnity payment or
payment of damages received by it from the Collateral Agent in
respect of the Indenture Trustee in its individual capacity or
any Noteholder directly to the Person entitled thereto.
SECTION 3.5. Other Payments. Any payments received by
the Indenture Trustee for which no provision as to the
application thereof is made in this Indenture shall be
distributed by the Indenture Trustee (i) to the extent received
or realized at any time prior to the payment in full of all
obligations to the Noteholders hereunder or under the Pooling
Agreement, in the order of priority specified in Section 3.3
hereof, and (ii) to the extent received or realized at any time
after payment in full of all such obligations to the Noteholders,
in the following order of priority: first, in the manner
provided in the clause "first" of Section 3.3 hereof and second,
to the Collateral Agent for application pursuant to Section 4.3
of the Pooling Agreement.
SECTION 3.6. Unclaimed Moneys. Any moneys deposited
with or paid to the Indenture Trustee for the payment of the
principal of or interest on any Class A Note and not applied but
remaining unclaimed for two years after the date upon which such
principal or interest shall have become due and payable, shall,
unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property law, be paid, upon
written request therefor by the Seller, to the Seller, and the
holder of such Class A Note, as a general unsecured creditor,
shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property law,
thereafter look only to the Seller for any payment which such
Noteholder may be entitled to collect, and all liability of the
Indenture Trustee with respect to such moneys shall thereupon
cease.
ARTICLE IV
COVENANTS; EVENTS OF DEFAULT AND RESTRICTING
EVENTS; REMEDIES OF INDENTURE TRUSTEE
SECTION 4.1. Covenants of the Issuer. (a) Other than
the Lien granted by the Issuer to the Collateral Agent pursuant
to Section 2.3(a) of the Base Agreement and Section 3(b) of the
Related Supplements, the Issuer hereby covenants and agrees that
it will not directly or indirectly create, incur, assume or
suffer to exist any Lien attributable to it with respect to any
of the properties or assets of the Trust Assets and it shall, at
its own cost and expense, promptly take such action as may be
necessary to discharge duly any such Lien. The Issuer will cause
restitution to be made to the Trust Assets in the amount of any
diminution of the value thereof as the result of any Lien thereon
attributable to it, except for the Liens in favor of the
Collateral Agent described above.
(b) Each of the Issuer Trustee and the Collateral
Agent hereby covenants and agrees in favor of the Indenture
Trustee and each Class A Noteholder to perform and comply with
each and every covenant and agreement made by such Person in the
Pooling Agreement as if such covenants and agreements were fully
set forth herein.
(c) Each of the Seller and the Issuer hereby covenants
and agrees in favor of the Indenture Trustee and each Class A
Noteholder to perform and comply, and the Issuer covenants and
agrees to cause the Issuer Trustee to perform and comply, with
each and every covenant and agreement made by such Person in the
Pooling Agreement as if such covenants and agreements were fully
set forth herein.
SECTION 4.2. Events of Default and Restricting Events.
Events of Default. If any one of the following events shall
occur:
(i) failure on the part of the Seller, the Issuer or
the Collateral Agent to observe or perform any other
covenants or agreements of such Person set forth in this
Indenture or the Related Supplement, which failure has a
material adverse effect on the Class A Noteholders and which
continues unremedied for a period of 60 days after written
notice; or
(ii) any representation or warranty made by the Seller
or the Issuer in this Indenture or the Related Supplement
shall prove to have been incorrect in any material respect
when made or when delivered, which continues to be incorrect
in any material respect for a period of 60 days after
written notice and as a result of which the interests of the
Class A Noteholders are materially and adversely affected
and continue to be materially and adversely affected for
such period;
then, and in any such event, after the applicable grace period
set forth in such subparagraphs, a Majority in Interest, by
written notice to the Issuer, the Indenture Trustee and the
Collateral Agent, may declare that an event of default (an
"Indenture Event of Default") under this Indenture has occurred
as of the date of such notice.
SECTION 4.3. Notice to Rating Agencies, etc. Promptly
following its receipt of notice of any Event of Default or
Restricting Event, the Indenture Trustee shall send a copy
thereof to the Seller, the Issuer, the Collateral Agent and each
Rating Agency.
SECTION 4.4. Remedies. (a) If an Event of Default
referred to in subparagraphs (d) or (e) of Section 9.1 of the
Pooling Agreement shall have occurred, then and in every such
case the unpaid principal of all Class A Notes, together with
interest accrued but unpaid thereon, and all other amounts due to
the Noteholders hereunder, shall immediately and without further
act become due and payable, without presentment, demand, protest
or notice, all of which are hereby waived.
(b) If any other Event of Default shall have occurred
and be continuing, then and in every such case, the Indenture
Trustee shall deliver a Notice of Default to the Collateral Agent
specifying the Indenture Percentage of Class A Notes hereunder
desiring to declare an "Event of Default" under the Pooling
Agreement.
SECTION 4.5. Remedies Cumulative. Each and every
right, power and remedy given to the Indenture Trustee
specifically or otherwise in this Indenture or the Pooling
Agreement shall be cumulative and shall be in addition to every
other right, power and remedy herein or therein specifically
given or now or hereafter existing at law, in equity or by
statute, and each and every right, power and remedy whether
specifically herein or therein given or otherwise existing may,
subject always to the terms and conditions hereof and thereof, be
exercised from time to time and as often and in such order as may
be deemed expedient by the Indenture Trustee and the exercise or
the beginning of the exercise of any power or remedy shall not be
construed to be a waiver of the right to exercise at the same
time or thereafter any other right, power or remedy. No delay or
omission by the Indenture Trustee in the exercise of any right,
remedy or power or in the pursuit of any remedy shall impair any
such right, power or remedy or be construed to be a waiver of any
default on the part of the Issuer or to be an acquiescence
therein.
SECTION 4.6. Discontinuance of Proceedings. In case
the Indenture Trustee shall have instituted any proceeding to
enforce any right, power or remedy under this Indenture or the
Pooling Agreement by foreclosure, entry or otherwise, and such
proceedings shall have been discontinued or abandoned for any
reason or shall have been determined adversely to the Indenture
Trustee, then and in every such case the Indenture Trustee, the
Collateral Agent and the Issuer shall, subject to any
determination in such proceedings, be restored to their former
positions and rights hereunder and thereunder with respect to the
Trust Assets, and all rights, remedies and powers of the
Indenture Trustee shall continue as if no such proceedings had
been instituted.
SECTION 4.7. Judicial Proceedings Instituted by
Indenture Trustee; Indenture Trustee May Bring Suit. If there
shall be an Event of Default, then the Indenture Trustee, in its
own name and as trustee of an express trust, shall be entitled
and empowered to institute any suits, actions or proceedings at
law, in equity or otherwise, for the collection of the sums due
and unpaid on any Class A Note or under this Indenture, and may
file any proofs of claim and other papers or documents necessary
or advisable to that end and may vote on behalf of the
Noteholders in any election of a trustee in bankruptcy or other
Person performing similar functions, and any custodian in any
such judicial proceeding is hereby authorized by each Noteholder
to make payments to the Collateral Agent. The Indenture Trustee
may prosecute any such claim or proceeding to judgment or final
decree with respect to the whole amount of any such sums so due
and unpaid.
The Indenture Trustee shall be entitled to sue and
recover judgment as aforesaid either before, after or during the
pendency of any proceeding for the enforcement of the Lien of the
Pooling Agreement, and the right of the Indenture Trustee to
recover such judgment shall not be affected by any entry or sale
under the Pooling Agreement or by the exercise of any right,
power or remedy for the enforcement of the provisions of the
Pooling Agreement, or of the foreclosure of the Lien of the
Pooling Agreement; in case of a sale of any of the Trust Assets
and the application of the proceeds of sale to the payment of the
Class A Notes and other amounts due under this Indenture, the
Indenture Trustee, in its own name and as trustee of an express
trust, shall be entitled to enforce payment of, and to receive,
all amounts then remaining due and unpaid upon the Class A Notes
or under this Indenture, for the benefit of the holders of the
Class A Notes, and shall be entitled to recover judgment for any
portion of the same remaining unpaid, with interest as aforesaid.
No recovery of any such judgment upon any property of the Issuer
or the Seller shall affect or impair the Lien of the Pooling
Agreement or any rights, powers or remedies of the Indenture
Trustee or the Collateral Agent hereunder or thereunder, or any
rights, powers or remedies of the Noteholders.
SECTION 4.8. Control by Noteholders. (a) A Majority
in Interest of the Noteholders hereunder shall have the right to
direct the time, method and place of conducting any proceeding
for any remedy available to the Indenture Trustee, or exercising
any trust or power conferred on the Indenture Trustee, hereunder
or under the Pooling Agreement; provided, however, that
(i) such direction shall not be in conflict with any
rule of law, this Indenture or the Pooling Agreement and
would not involve the Indenture Trustee in personal
liability or expense,
(ii) the Indenture Trustee shall not determine that
the action so directed would be unjustly prejudicial to the
Noteholders not taking part in such direction, and
(iii) the Indenture Trustee may take any other action
deemed proper by the Indenture Trustee which is not
inconsistent with such direction.
(b) The Controlling Party of the Note Owners of all
Series, or the Applicable Representatives on their behalf, shall
have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Collateral Agent,
or exercising any trust or power conferred on the Collateral
Agent under the Pooling Agreement; provided, however, that
(a) such direction shall not be in conflict with any
rule of law, any Indenture or Note Purchase Agreement or the
Pooling Agreement and would not involve the Collateral Agent
in personal liability or expense,
(b) the Collateral Agent shall not determine that the
action so directed would be unjustly prejudicial to the
Noteholders not taking part in such direction, and
(c) the Collateral Agent may take any other action
deemed proper by the Indenture Trustee which is not
inconsistent with such direction.
SECTION 4.9. Right of Noteholders to Receive Payments
not to be Impaired. Anything in this Indenture to the contrary
notwithstanding, the right of any Noteholder to receive
distributions of payments required pursuant to Section 3.1 or 3.3
hereof on the applicable Class A Notes when due, or to institute
suit for the enforcement of any such payment on or after the
applicable Distribution Date, shall not be impaired or affected
without the consent of such Noteholder.
SECTION 4.10. Limitation on Suits. No Noteholder may
pursue any remedy with respect to this Indenture, the Pooling
Agreement or the Class A Notes unless:
(1) the Noteholder gives to the Indenture Trustee
written notice stating that an Event of Default is
continuing;
(2) a Majority in Interest of Class A Noteholders make
a written request to the Indenture Trustee to pursue the
remedy;
(3) the Noteholder or Noteholders offer to the
Indenture Trustee reasonable security or indemnity against
any loss, liability or expense;
(4) the Indenture Trustee does not comply with the
request within 60 days after receipt of the request and the
offer of security or indemnity; and
(5) the Majority in Interest of the Noteholders do not
give the Indenture Trustee a written direction inconsistent
with the request during such 60-day period.
A Noteholder may not use this Indenture or the Pooling
Agreement to prejudice the rights of another Noteholder or to
obtain a preference or priority over another Noteholder.
SECTION 4.11. Undertaking for Costs. The parties
hereto agree that, in any suit for the enforcement of any right
or remedy under this Indenture or the Pooling Agreement or in any
suit against the Indenture Trustee for any action taken or
omitted by it as Indenture Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having
due regard to the merits and good faith of the claims or defenses
made by the party litigant. The provisions of this Section do
not apply to a suit by the Indenture Trustee, a suit by a
Noteholder pursuant to Section 4.10 hereof or a suit by
Noteholders holding more than 10% of the aggregate unpaid
principal amount of the Class A Notes Outstanding.
SECTION 4.12. Waiver of Stay or Extension Laws. The
Issuer covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any
appraisement, valuation, stay, extension or redemption law
wherever enacted, now or at any time hereafter in force, in order
to prevent or hinder the enforcement of this Indenture or the
Pooling Agreement or the execution of any power granted herein or
therein to the Indenture Trustee, or the absolute sale of the
Trust Assets, or any part thereof, or the possession thereof by
any purchaser at any sale under this Article IV or under the
Pooling Agreement; and the Issuer for itself and all who may
claim under it, so far as it or any of them now or hereafter
lawfully may, hereby waives the benefit of all such laws. The
Issuer for itself and all who may claim under it waives, to the
extent that it lawfully may, all right to have the property in
the Trust Assets marshalled upon any foreclosure thereof, and
agrees that any court having jurisdiction to foreclose the
Pooling Agreement may order the sale of the Trust Assets as an
entirety.
If any law referred to in this Section 4.12 and now in
force, of which the Issuer or its successors might take advantage
despite this Section 4.12, shall hereafter be repealed or cease
to be in force, such law shall not thereafter be deemed to
constitute any part of the contract herein contained or to
preclude the application of this Section 4.12.
ARTICLE V
DUTIES OF THE INDENTURE TRUSTEE
SECTION 5.1. Certain Notices. (a) In the event the
Indenture Trustee shall have knowledge of an Event of Default, as
promptly as practicable after, and in any event within 90 days
after, the occurrence of any such Event of Default, the Indenture
Trustee shall transmit by mail to the Collateral Agent, the
Seller, the Issuer and the Noteholders, in accordance with
Section 313(c) of the Trust Indenture Act, notice of such Event
of Default hereunder known to the Indenture Trustee, unless such
Event of Default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of
the principal of or interest on any Class A Note, the Indenture
Trustee shall be protected in withholding such notice to any
Person if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible
Officers of the Indenture Trustee in good faith determine that
the withholding of such notice is in the interests of the
Noteholders. Subject to the terms of Sections 4.2, 4.4, 4.7 and
5.3 hereof, the Indenture Trustee shall take such action, or
refrain from taking such action, with respect to any such Event
of Default (including without limitation with respect to the
exercise of any rights or remedies hereunder or under the Pooling
Agreement) as the Indenture Trustee shall be instructed in
writing by a Majority in Interest of the Noteholders. Subject to
the provisions of Section 5.3 hereof, if the Indenture Trustee
shall not have received instructions as above provided within 20
days after notice of such Event of Default to the Noteholders,
the Indenture Trustee may, subject to instructions thereafter
received pursuant to the preceding provisions of this Section
5.1, take such action, or refrain from taking such action, but
shall be under no duty to take or refrain from taking any action,
with respect to any such Event of Default as it shall determine
advisable in the best interests of the Noteholders and shall use
the same degree of care and skill in connection therewith as a
prudent man would use under the circumstances in the conduct of
his own affairs. For all purposes of this Indenture, in the
absence of actual knowledge on the part of an officer in its
Corporate Trust Administration, the Indenture Trustee, shall not
be deemed to have knowledge of any Event of Default unless
notified in writing by the Collateral Agent, the Issuer Trustee
or one or more Noteholders.
(b) The Indenture Trustee will furnish to any
Noteholder who provides a written request to the Indenture
Trustee asking to receive the same (which written request shall
include the address of such Noteholder to which the same shall be
furnished), promptly upon receipt thereof, duplicates or copies
of all reports, notices, requests, demands, certificates,
financial statements and other instruments furnished to the
Indenture Trustee under the Pooling Agreement or received from
the Collateral Agent pursuant hereto to the extent the same shall
not have been otherwise directly distributed to the Noteholders
pursuant to the express provision of the Pooling Agreement.
SECTION 5.2. Action Upon Instructions. Subject to the
terms of Sections 4.4, 4.7, 4.8, 5.1, 5.3 and 11.1 hereof, upon
the written instructions at any time and from time to time of a
Majority in Interest of the Noteholders, the Indenture Trustee
shall take such of the following actions as may be specified in
such instructions: (i) exercise such election or option, or make
such decision or determination or give such notice, consent,
waiver or approval or exercise such right, remedy or power or
take such other action hereunder or in respect of any part or all
of the Trust Assets as shall be specified in such instructions;
(ii) take such action with respect to, or to preserve or protect,
the Trust Assets (including the discharge of Liens) as shall be
specified in such instructions and as are consistent with this
Indenture and the Pooling Agreement; and (iii) take such other
action in respect of the subject matter of this Indenture as is
consistent with the terms hereof and the Pooling Agreement.
SECTION 5.3. Indemnification. The Indenture Trustee
shall not be required to take any action or refrain from taking
any action under Sections 5.1 (other than the first sentence
thereof) or 5.2 or Article IV hereof or under the Pooling
Agreement unless the Indenture Trustee shall have been
indemnified by the Noteholders against any liability, cost or
expense (including counsel fees) which may be incurred in
connection therewith. The Indenture Trustee shall not be under
any obligation to take any action under this Indenture or the
Pooling Agreement and nothing contained in this Indenture or the
Pooling Agreement shall require the Indenture Trustee to expend
or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not
reasonably assured to it. The Indenture Trustee shall not be
required to take any action under Section 5.1 (other than the
first sentence thereof) or 5.2 or Article IV hereof or under the
Pooling Agreement, nor shall any other provision of this
Indenture be deemed to impose a duty on the Indenture Trustee to
take any action, if the Indenture Trustee shall have been advised
by counsel that such action is contrary to the terms hereof or of
the Pooling Agreement or is otherwise contrary to law.
SECTION 5.4. No Duties Except as Specified in
Indenture or Instructions. Subject to the provisions of Section
315 of the Trust Indenture Act, the Indenture Trustee shall not
have any duty or obligation to take or refrain from taking any
action under, or in connection with, this Indenture or the
Pooling Agreement or any part of the Trust Assets, except as
expressly provided by the terms of this Indenture or the Pooling
Agreement or as expressly provided in written instructions from
the Noteholders as provided in this Indenture; and no implied
duties or obligations shall be read into this Indenture or the
Pooling Agreement against the Indenture Trustee. The Indenture
Trustee agrees that it will, in its individual capacity and at
its own cost and expense (but without any right of indemnity in
respect of any such cost or expense under Section 9.1 hereof)
promptly take such action as may be necessary to duly discharge
all Liens on any part of the Trust Assets which result from
claims against it in its individual capacity not related to any
other transaction contemplated by or pursuant to any document
included in the Trust Assets.
SECTION 5.5. Directions to Collateral Agent. The
Indenture Trustee may, and upon the request of a Majority in
Interest of the Noteholders shall, give such directions or
notices to the Collateral Agent as are permitted to be given by
the Indenture Trustee under the Pooling Agreement;
provided, however, that without the consent of each Noteholder,
the Indenture Trustee will not take any action which, pursuant to
Section 11.1(a) hereof, expressly requires the consent of each
Noteholder. Any such direction or notice shall specify the
percentage of Principal Amount of Notes voting in favor of the
taking of action or the giving of direction specified in any such
direction or notice.
ARTICLE VI
REDEMPTION OF CLASS A NOTES
SECTION 6.1. No Redemption Prior to Maturity. Except
as provided in this Article VI, the Class A Notes may not be
redeemed prior to the Maturity Date.
SECTION 6.2. Expected Amortization Schedule. The
Class A Notes then outstanding shall without the requirement of
any further action on the part of the Issuer be redeemed on each
Distribution Date in an amount equal to the lesser of (i) the
Aggregate Principal Amount thereof and (ii) the applicable Class
A Principal Payment Amount for such Distribution Date for such
Class A Notes. Assuming Scheduled Payments are made on the
Related Pool of Contracts when due, it is expected (but not
required) that the Noteholders hereunder will receive on each
Distribution Date, as a reduction of the principal amount of
their Class A Notes, the amount set forth opposite such
Distribution Date on the schedule below:
Expected Scheduled
Distribution Date Amortization
Closing Date
September 20, 1996 4,369,921
October 20, 1996 4,284,623
November 20, 1996 4,567,318
December 20, 1996 4,674,593
January 20, 1997 4,615,763
February 20, 1997 6,306,905
March 20, 1997 4,562,093
April 20, 1997 4,495,523
May 20, 1997 4,908,876
June 20, 1997 4,499,804
July 20, 1997 4,189,382
August 20, 1997 4,189,856
September 20, 1997 4,784,011
October 20, 1997 3,870,932
November 20, 1997 4,117,134
December 20, 1997 3,739,672
January 20, 1998 4,013,315
February 20, 1998 4,551,796
March 20, 1998 3,907,019
April 20, 1998 3,830,494
May 20, 1998 4,177,335
June 20, 1998 3,599,085
July 20, 1998 3,358,513
August 20, 1998 3,334,780
September 20, 1998 3,121,569
October 20, 1998 3,170,753
November 20, 1998 3,156,349
December 20, 1998 2,972,531
January 20, 1999 3,212,937
February 20, 1999 3,609,471
March 20, 1999 3,044,209
April 20, 1999 2,782,468
May 20, 1999 2,999,751
June 20, 1999 2,508,847
July 20, 1999 2,327,120
August 20, 1999 2,396,287
September 20, 1999 2,199,331
October 20, 1999 2,146,513
November 20, 1999 2,096,411
December 20, 1999 2,045,458
January 20, 2000 2,273,898
February 20, 2000 2,232,660
March 20, 2000 2,697,990
April 20, 2000 1,925,350
May 20, 2000 2,706,112
June 20, 2000 1,590,049
July 20, 2000 1,209,197
August 20, 2000 1,174,791
September 20, 2000 2,131,481
October 20, 2000 1,841,832
November 20, 2000 1,766,850
December 20, 2000 1,445,912
January 20, 2001 75,996
(b) Each redemption of the Class A Notes made pursuant
to Section 6.2(a) hereof shall be applied to each Class A Note
pro rata in accordance with the then outstanding principal amount
thereof.
SECTION 6.3. Notice of Redemption to Noteholders. In
order to effect any redemption set forth in Section 3.2 hereof,
the Indenture Trustee shall give not less than 15 and not more
than 45 days' prior notice, by first class mail of redemption to
each Noteholder.
All notices of redemption shall state:
(a) that such redemption shall occur pursuant to
Section 3.2;
(b) the applicable date of payment of such redemption;
(c) the place or places where such Class A Notes are
to be surrendered for payment; and
(d) the redemption price and the amount of accrued
interest to be paid.
SECTION 6.4. Receipt of Funds. (a) On any date fixed
for redemption under Section 3.2 and 6.3 hereof, immediately
available funds in Dollars shall be deposited in the Collection
Account by the Seller or by the Servicer on behalf of the Seller
at the place and by the time and otherwise in the manner provided
in Section 2.4 hereof and Section 13.2 of the Pooling Agreement,
in an amount equal to the principal amount of Class A Notes to be
redeemed together with accrued and unpaid interest thereon to the
date fixed for such redemption. From and after the date of such
deposit, interest shall no longer accrue on the principal amount
of the Class A Notes to be redeemed. As provided in Section 2.4
hereof, upon receipt of such funds, the Collateral Agent shall
transfer such funds to the Note Payment Account by the time and
in the manner specified in Sections 4.3(d) and 13.2 of the
Pooling Agreement. Upon receipt of such funds, the Indenture
Trustee will promptly notify the Collateral Agent of the amount
thereof to be applied to the redemption of the principal amount
of the Class A Notes.
ARTICLE VII
THE COLLATERAL AGENT AND THE INDENTURE TRUSTEE
SECTION 7.1. Acceptance of Trusts and Duties. Each of
the Collateral Agent and the Indenture Trustee accepts the duties
hereby created and applicable to it and agrees to perform the
same but only upon the terms of this Indenture and agrees to
receive and disburse all monies received by it constituting part
of the Trust Assets in accordance with the terms hereof and of
the Pooling Agreement. The Collateral Agent and the Indenture
Trustee, in their individual capacities, shall not be answerable
or accountable under any circumstances, except (a) for their own
willful misconduct or gross negligence, (b) their failure to use
ordinary care in receiving, handling or disbursing funds, (c) in
the case of the Indenture Trustee, as provided in Section 2.3
hereof or the last sentence of Section 5.4 hereof, and (d) for
liabilities that may result, in the case of the Indenture
Trustee, from the inaccuracy of any representation or warranty of
the Indenture Trustee made in its individual capacity herein or
in the Pooling Agreement. Neither the Collateral Agent nor the
Indenture Trustee shall be liable for any error of judgment made
in good faith by a Responsible Officer of the Collateral Agent or
the Indenture Trustee, as the case may be, unless it is proved
that the Collateral Agent or the Indenture Trustee, as the case
may be, was negligent in ascertaining the pertinent facts. None
of the Seller, the Collateral Agent or the Indenture Trustee
shall be liable for any action or inaction of any other. The
Indenture Trustee shall not be liable for any lawful action taken
at the direction of a Majority in Interest of the holders of the
Class A Notes and otherwise in accordance herewith.
SECTION 7.2. Absence of Duties. In the case of the
Indenture Trustee, except in accordance with written instructions
furnished pursuant to Section 5.1 or 5.2 hereof, and except as
provided in, and without limiting the generality of, Sections 5.3
and 5.4 hereof and, in the case of the Collateral Agent, except
as provided in Section 4.1(b) hereof, none of the Indenture
Trustee or the Collateral Agent shall have any duty (a) to see to
any recording or filing of, or necessary to perfect an interest
in, the Trust Assets or any other document, or to see to the
maintenance of any such recording or filing, (b) to see to any
insurance, whether or not the Servicer or the Seller shall be in
default with respect thereto, (c) to see to the payment or
discharge of any Lien of any kind against any part of the Trust
Assets or (d) to confirm, verify or inquire into the failure to
receive any financial statements required to be delivered under
the Pooling Agreement. Except as expressly otherwise provided
herein and, with respect to the Seller in the Pooling Agreement,
the Noteholders and the Seller shall not have any duty or
responsibility hereunder, including, without limitation, any of
the duties mentioned in clauses (a) through (d) above.
SECTION 7.3. No Representations or Warranties as to
Documents. None of the Collateral Agent or the Indenture Trustee
in its individual capacity makes or shall be deemed to have made
any representation or warranty as to the validity, legality or
enforceability of this Indenture, the Pooling Agreement or the
Class A Notes or as to the correctness of any statement contained
in any thereof, except for the representations and warranties of
the Collateral Agent or the Indenture Trustee, made in their
respective individual capacities, under any document to which
such party is a party. The Noteholders and the Seller make no
representation or warranty hereunder whatsoever.
SECTION 7.4. No Segregation of Monies; No Interest.
Any monies paid to or retained by the Indenture Trustee pursuant
to any provision hereof and not then required to be distributed
to any Noteholder as provided in Article III hereof need not be
segregated in any manner except to the extent required by law,
and may be deposited under such general conditions as may be
prescribed by law, and the Indenture Trustee shall not (except as
otherwise provided in Section 2.4 hereof) be liable for any
interest thereon; provided, however, that any payments received
or applied hereunder by the Indenture Trustee shall be accounted
for by the Indenture Trustee so that any portion thereof paid or
applied pursuant hereto shall be identifiable as pertaining to
the transaction contemplated hereby and as to the source thereof.
SECTION 7.5. Reliance; Agents; Advice of Counsel.
None of the Issuer Trustee, the Collateral Agent or the Indenture
Trustee shall incur liability to anyone in acting upon any
signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, bond or other document or
paper believed by it to be genuine and believed by it to be
signed by the proper party or parties. The Issuer Trustee, the
Collateral Agent and the Indenture Trustee may accept a copy of a
resolution of the Board of Directors of any party to the Pooling
Agreement, certified by the Secretary or an Assistant Secretary
thereof as duly adopted and in full force and effect, as
conclusive evidence that such resolution has been duly adopted
and that the same is in full force and effect. As to the
aggregate unpaid principal amount of Class A Notes Outstanding as
of any date, the Issuer Trustee and the Collateral Agent may for
all purposes hereof rely on a certificate signed by any
Responsible Officer of the Indenture Trustee. As to any fact or
matter relating to the Issuer the manner of ascertainment of
which is not specifically described herein, the Indenture Trustee
may for all purposes hereof rely on a certificate, signed by a
duly authorized officer of the Issuer Trustee or the Collateral
Agent, as to such fact or matter, and such certificate shall
constitute full protection to the Indenture Trustee for any
action taken or omitted to be taken by it in good faith in
reliance thereon. The Indenture Trustee shall assume, and shall
be fully protected in assuming, that the Issuer is authorized to
enter into this Indenture and the Issuer Trustee is authorized to
enter into the Pooling Agreement and to take all action to be
taken by it pursuant to the provisions hereof and thereof, and
shall not inquire into the authorization of the Issuer with
respect thereto. In the administration of the trusts hereunder,
the Indenture Trustee may execute any of the trusts or powers
hereof and perform its powers and duties hereunder directly or
through agents or attorneys and may, at the expense of the Trust
Assets, consult with counsel, accountants and other skilled
persons to be selected and retained by it, and the Indenture
Trustee shall not be liable for anything done, suffered or
omitted in good faith by them in accordance with the written
advice or written opinion of any such counsel, accountants or
other skilled persons.
SECTION 7.6. Capacity in Which Acting. The Indenture
Trustee acts hereunder solely as trustee herein and not in its
individual capacity, except as otherwise expressly provided in
the Transaction Documents.
SECTION 7.7. Compensation. The Indenture Trustee
shall be entitled to reasonable compensation, including expenses
and disbursements, for all services rendered hereunder and shall
have a claim on the Trust Assets for the payment of such
compensation, to the extent that such compensation shall not be
paid by the Servicer or others. The Indenture Trustee agrees
that it shall have no right against the Issuer, the Collateral
Agent or the Noteholders for any fee as compensation for its
services as trustee under this Indenture.
SECTION 7.8. May Become Noteholder. Each of the
institutions acting as Collateral Agent or Indenture Trustee or
any agent of the Collateral Agent or the Indenture Trustee
hereunder may, in its individual or any other capacity, become
the owner or pledgee of Class A Notes with the same rights it
would have if it were not the institution acting as Collateral
Agent, Indenture Trustee or such agent, as the case may be.
SECTION 7.9. Further Assurances. At any time and from
time to time, upon the request of the Indenture Trustee, the
Issuer shall promptly and duly execute and deliver any and all
such further instruments and documents as may be specified in
such request and as are necessary to perfect, preserve or protect
the security interests and assignments created or intended to be
created by the Pooling Agreement.
SECTION 7.10. Corporate Trustee Required; Eligibility.
There shall at all times be an Indenture Trustee hereunder which
shall be eligible to act as a trustee under Section 310(a) of the
Trust Indenture Act and shall be a corporation organized and
doing business under the laws of the United States, any State
thereof or the District of Columbia having a combined capital and
surplus of at least $100,000,000, (or having a combined capital
and surplus in excess of $3,000,000 and the obligations of which,
whether now in existence or hereafter incurred, are fully and
unconditionally guaranteed by a corporation organized and doing
business under the laws of the United States, any State thereof
or the District of Columbia and having a combined capital and
surplus of at least $100,000,000), if there is such an
institution willing, able and legally qualified to perform the
duties of the Indenture Trustee hereunder upon reasonable or
customary terms. Such corporate trustee shall be authorized
under the laws of the United States of America or any State
thereof or the District of Columbia to exercise corporate trust
powers and shall be subject to supervision of examination by
Federal, State or District of Columbia authority. If such
corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this
Section 7.10, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. Subsequent to the qualification of this Indenture
under the Trust Indenture Act, the Indenture Trustee shall comply
with Section 310(b) of the Trust Indenture Act; provided,
however, that there shall be excluded from the operation of
Section 310(b)(1) of the Trust Indenture Act, each other
Indenture and any other indenture or indentures under which other
securities or certificates of interest or participation in other
securities of the Issuer are outstanding if the requirements for
such exclusion set forth in Section 310(b)(1) of the Trust
Indenture Act are met.
In case at any time the Indenture Trustee shall cease
to be eligible in accordance with the provisions of this Section
7.10, the Indenture Trustee shall resign immediately in the
manner and with the effect specified in Section 10.2 hereof.
SECTION 7.11. Preferential Collection of Claims
Against the Indenture Trustee. Subsequent to the qualification
of this Indenture under the Trust Indenture Act, the Indenture
Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship listed in Section 311(b)
of the Trust Indenture Act, and, if the Indenture Trustee shall
resign or be removed as Indenture Trustee, it shall be subject to
Section 311(a) of the Trust Indenture Act to the extent provided
therein.
SECTION 7.12. Maintenance of Agencies; Note Registrar;
Paying Agents; Authorized Agents. (a) With respect to the Class
A Notes, there shall at all times be maintained in the Borough of
Manhattan, The City of New York, an office or agency where such
Class A Notes may be presented or surrendered for registration of
transfer or for exchange, and for payment thereof and where
notices and demands to or upon the Indenture Trustee in respect
of such Class A Notes may be served. Such office or agency shall
be initially at Fleet Bank, 14 Wall Street, 8th Floor, Window 2,
New York, NY 10005. Written notice of the location of each such
other office or agency and of any change of location thereof
shall be given by the Indenture Trustee to the Collateral Agent,
the Issuer, the Issuer Trustee, the Seller and the Noteholders.
In the event that no such office or agency shall be maintained or
no such notice of location or of change of location shall be
given, presentations and demands may be made and notices may be
served at the Corporate Trust Office.
(b) There shall at all times be a Note Registrar
hereunder. As provided in Section 2.6 hereof, the Indenture
Trustee shall initially be the Note Registrar hereunder. The
Indenture Trustee may appoint one or more other institutions to
act as note registrar hereunder, and the term "Note Registrar"
shall include any such note registrars. The Note Registrar shall
furnish to the Indenture Trustee, at stated intervals of not more
than six months, and at such other times as the Indenture Trustee
may request in writing, a copy of the Note Register maintained by
the Note Registrar.
(c) The Indenture Trustee may appoint one or more
paying agents hereunder, and the term "Paying Agent" shall
include any such paying agents.
(d) Each Note Registrar, each Paying Agent and each
agent for the Indenture Trustee, unless otherwise specifically
provided herein, shall be an "Authorized Agent". Each Authorized
Agent hereunder shall be a bank or trust company, shall be a
corporation organized and doing business under the laws of the
United States or any State thereof or the District of Columbia
having a combined capital and surplus of at least $100,000,000,
(or having a combined capital and surplus in excess of $3,000,000
and the obligations of which, whether now in existence or
hereafter incurred, are fully and unconditionally guaranteed by a
corporation organized and doing business under the laws of the
United States, any State thereof or the District of Columbia and
having a combined capital and surplus of at least $100,000,000)
and having a Bond Rating of at least BBB (or its equivalent), and
shall be authorized under such laws to exercise corporate trust
powers, subject to supervision or examination by Federal, State
or District of Columbia authority. Any corporation into which
any Authorized Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any
merger, consolidation or conversion to which any Authorized Agent
shall be a party, or any corporation succeeding to the corporate
trust business of any Authorized Agent, shall be the successor of
such Authorized Agent hereunder, if such successor corporation is
otherwise eligible under this Section, without the execution or
filing of any paper or any further act on the part of the parties
hereto or such Authorized Agent or such successor corporation.
(e) Any Authorized Agent may at any time resign by
giving written notice of resignation to the Indenture Trustee,
the Issuer, the Collateral Agent and the Seller. The Issuer or
the Indenture Trustee may at any time terminate the agency of any
Authorized Agent by giving written notice of termination to such
Authorized Agent. Upon the resignation or termination of an
Authorized Agent or in case at any time any such Authorized Agent
shall cease to be eligible under this Section 7.12 (when, in
either case, no other Authorized Agent performing the functions
of such Authorized Agent shall have been appointed), the
Indenture Trustee shall, or shall promptly appoint one or more
qualified successor Authorized Agents to, perform the functions
of the Authorized Agent which has resigned or whose agency has
been terminated or who shall have ceased to be eligible under
this Section. The Indenture Trustee shall give written notice of
any such appointment made by it to the Seller and the Issuer; and
the Indenture Trustee shall mail notice of such appointment to
all Noteholders as their names and addresses appear on the Note
Register.
(f) The Issuer agrees to pay, or cause to be paid,
from time to time to each Authorized Agent reasonable
compensation for its services and to reimburse it for its
reasonable expenses.
SECTION 7.13. Money for Note Payments to Be Held in
Trust. All moneys deposited with the Indenture Trustee or any
Paying Agent for the purpose of any payment on Class A Notes
shall be deposited and held in trust for the benefit of the
Noteholders entitled to such payment, subject to the provisions
of this Section 7.13. Moneys so deposited and held in trust
shall constitute a separate trust fund for the benefit of the
Noteholders with respect to which such money was deposited. Any
Paying Agent shall provide notice to the Indenture Trustee of any
Event of Default in accordance with the provisions of Section
317(a)(2) of the Trust Indenture Act.
The Indenture Trustee may at any time, for the purpose
of obtaining the satisfaction and discharge of this Indenture or
for any other purpose, direct any Paying Agent to pay to the
Indenture Trustee all sums held in trust by such Paying Agent,
such sums to be held by the Indenture Trustee upon the same terms
as those upon which such sums were held by such Paying Agent;
and, upon such payment by any Paying Agent to the Indenture
Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
ARTICLE VIII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 8.1. Noteholder Lists. The Indenture Trustee
shall preserve in as current a form as is reasonably practicable
the most recent list available to it of the names and addresses
of the Noteholders. If the Indenture Trustee is not the sole
Note Registrar, the Issuer shall cause to be furnished to the
Indenture Trustee within 15 days after each Record Date and
within 15 days before each Payment Date, and at such other times
as the Indenture Trustee may request in writing, within 30 days
after receipt by the Issuer of any such request, a list, in such
form as the Indenture Trustee may reasonably require, of all
information in the possession or control of the Issuer as to the
names and addresses of the Noteholders as of a date not more than
15 days prior to the time such list is furnished; provided,
however, that this obligation shall be deemed satisfied in full
upon the furnishing to the Indenture Trustee of a copy of the
Note Register. The Indenture Trustee may destroy any list
furnished to it as provided in this Section 8.1 upon receipt of a
new list so furnished.
SECTION 8.2. Reports by Indenture Trustee. (a)
Subsequent to the qualification of this Indenture under the Trust
Indenture Act, the Indenture Trustee shall transmit to
Noteholders such reports concerning the Indenture Trustee and its
actions under this Indenture and the release of the Trust Assets
from the Lien of the Pooling Agreement as may be required
pursuant to the Trust Indenture Act at the times, in the manner
and to the Persons provided pursuant thereto. Reports required
pursuant to Section 313(a) of the Trust Indenture Act with
respect to any 12-month period shall cover the 12-month period
ending May 15 and shall be transmitted by mail by the next
succeeding July 15. Subsequent to the qualification of this
Indenture under the Trust Indenture Act, a copy of each such
report at the time of its mailing to the Noteholders shall be
filed with the SEC and each stock exchange (if any) on which the
Class A Notes are listed.
(b) Promptly upon receipt thereof, the Indenture
Trustee shall transmit to all Noteholders the reports and other
information which are provided to the Indenture Trustee by the
Issuer pursuant to Section 8.3 hereof.
SECTION 8.3. Reports by the Issuer. (a) The
Servicer, on behalf of the Issuer, shall:
(i) file with the Indenture Trustee, within fifteen
days after the Issuer is required to file the same with the
Securities and Exchange Commission, copies of the annual
reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the
Securities and Exchange Commission may from time to time by
rules and regulations prescribe) which the Issuer may be
required to file with the Securities and Exchange Commission
pursuant to Section 13 or 15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and the
Securities and Exchange Commission in accordance with rules
and regulations prescribed from time to time by the
Securities and Exchange Commission such additional
information, documents and reports with respect to
compliance by the Issuer with the conditions and covenants
of this Indenture as may be required from time to time by
such rules and regulations; and
(iii) supply to the Indenture Trustee (and the
Indenture Trustee shall transmit by mail to all Noteholders
described in TIA SECTION 313(c)) such summaries of any
information, documents and reports required to be filed by
the Issuer pursuant to clauses (i) and (ii) of this Section
8.3(a) as may be required by rules and regulations
prescribed from time to time by the Securities and Exchange
Commission.
(b) Unless the Seller otherwise determines, the fiscal
year of the Issuer shall end on December 31 of such year.
SECTION 8.4. Reports by Indenture Trustee. (a) If
required by TIA SECTION 313(a), within sixty days after each October 1,
beginning with October 1, 1996, the Indenture Trustee shall mail
to each Noteholder as required by TIA SECTION 313(c) a brief report
dated as of such date that complies with TIA SECTION 313(a). The
Indenture Trustee also shall comply with TIA SECTION 313(b). A copy of
any report delivered pursuant to this Section 8.4(a) shall, at
the time of its mailing to Noteholders, be filed by the Indenture
Trustee with the Securities and Exchange Commission and each
stock exchange, if any, on which the Securities are listed. The
Seller shall notify the Indenture Trustee if and when the
Securities are listed on any stock exchange.
(b) On each Distribution Date, the Indenture Trustee
shall include with each payment to each Noteholder a copy of the
Monthly Report for the related period delivered to the Indenture
Trustee pursuant to Section 3.10 of the Pooling Agreement.
ARTICLE IX
INDEMNIFICATION
SECTION 9.1. Indemnification. The Indenture Trustee
acknowledges and accepts the conditions and limitations with
respect to the Servicer's obligation to indemnify, defend and
hold the Indenture Trustee harmless as set forth in Sections 8.3
and 8.4 of the Pooling Agreement.
ARTICLE X
SUCCESSOR INDENTURE TRUSTEES; SEPARATE ISSUER TRUSTEES
SECTION 10.1. Notice of Successor Indenture Trustee.
In the case of any appointment of a successor to the Indenture
Trustee pursuant to the Pooling Agreement or any merger,
conversion, consolidation or sale of all or substantially all of
the corporate trust business of the Indenture Trustee pursuant to
the Pooling Agreement, the successor Indenture Trustee shall give
prompt written notice thereof to the Collateral Agent and each
Noteholder.
SECTION 10.2. Replacement of Indenture Trustee. The
Indenture Trustee may resign at any time by giving at least 30
days' prior written notice to the Collateral Agent, the Seller,
the Issuer and each Noteholder, such resignation to be effective
upon the acceptance of the trusteeship by a successor Indenture
Trustee. A Majority in Interest of the Noteholders may remove
the Indenture Trustee by so notifying the Indenture Trustee and
the Seller may appoint a successor Indenture Trustee. The Seller
shall remove the Indenture Trustee if:
(1) the Indenture Trustee fails to comply with
Section 7.10 hereof;
(2) the Indenture Trustee is adjudged bankrupt or
insolvent;
(3) a receiver or other public officer takes charge of
the Indenture Trustee or its property;
(4) the Indenture Trustee otherwise becomes incapable
of acting; or
(5) the Indenture Trustee shall fail to comply with
Section 310 of the Trust Indenture Act after written request
therefor by the Collateral Agent.
If the Indenture Trustee resigns or is removed or if a
vacancy exists in the office of Indenture Trustee for any reason
(the Indenture Trustee in such event being referred to herein as
the retiring Indenture Trustee), the Seller shall promptly
appoint a successor Indenture Trustee.
A successor Indenture Trustee shall deliver a written
acceptance of its appointment to the retiring Indenture Trustee,
the Collateral Agent and to the Issuer. Thereupon the
resignation or removal of the retiring Indenture Trustee shall
become effective, and the successor Indenture Trustee shall have
all the rights, powers and duties of the Indenture Trustee under
this Indenture. The successor Indenture Trustee shall mail a
notice of its succession to the Collateral Agent, the Issuer and
the Noteholders. The retiring Indenture Trustee shall promptly
transfer all property held by it as Indenture Trustee to the
successor Indenture Trustee, subject to the Lien provided for in
the Pooling Agreement.
If a successor Indenture Trustee does not take office
within 60 days after the retiring Indenture Trustee resigns or is
removed, the retiring Indenture Trustee, the Collateral Agent or
a Majority in Interest of the Noteholders may petition any court
of competent jurisdiction for the appointment of a successor
Indenture Trustee.
If the Indenture Trustee fails to comply with Section
7.10 hereof (to the extent applicable), any Noteholder who has
been a bona fide holder of a Class A Note for at least six months
may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of
the Indenture Trustee and the appointment of a successor
Indenture Trustee.
Notwithstanding the replacement of the Indenture
Trustee pursuant to this Section 10.2, the Servicer's obligations
under Section 9.1 hereof shall continue for the benefit of the
retiring Indenture Trustee.
SECTION 10.3. Appointment of Separate Indenture
Trustees. (a) At any time or times, for the purpose of meeting
any legal requirements of any jurisdiction in which any part of
the Trust Assets may at the time be located or in which any
action of the Indenture Trustee may be required to be performed
or taken or if the Indenture Trustee shall be advised by counsel
satisfactory to it that it is so necessary or prudent in the
interests of the Noteholders, or in the event the Indenture
Trustee shall have been requested to do so by a Majority in
Interest of the Noteholders, the Indenture Trustee, by an
instrument in writing signed by it, and without the concurrence
of the Issuer, may appoint one or more individuals or
corporations to act as separate trustee or separate trustees or
co-trustee, acting jointly with the Indenture Trustee, or to act
as separate trustee or trustees of all or any part of the Trust
Assets with such powers as may be provided in an agreement
supplemental hereto.
(b) The Indenture Trustee and, at the request of the
Indenture Trustee, the Issuer shall execute, acknowledge and
deliver all such instruments as may be required by the legal
requirements of any jurisdiction or by any such separate trustee
or separate trustees or co-trustee for the purpose of more fully
confirming such title, rights or duties to such separate trustee
or separate trustees or co-trustee and the Issuer hereby makes,
constitutes and appoints the Indenture Trustee its agent and
attorney-in-fact for it and in its name, place and stead to
execute, acknowledge and deliver the same in the event that the
Issuer shall not itself execute and deliver the same within 20
days after receipt by it of such request so to do. Upon the
acceptance in writing of such appointment by any such separate
trustee or separate trustees or co-trustee, it, he or they shall
be vested with such rights and duties, as shall be specified in
the instrument of appointment, jointly with the Indenture Trustee
(except insofar as local law makes it necessary for any such
separate trustee or separate trustees or co-trustee to act alone)
subject to all the terms of this Indenture. Any separate trustee
or separate trustees or co-trustee may, at any time by an
instrument in writing, constitute the Indenture Trustee its or
his attorney-in-fact and agent with full power and authority to
do all acts and things and to exercise all discretion on its or
his behalf and in its or his name. In case any such separate
trustee or co-trustee shall die, become incapable of acting,
resign or be removed, all assets, property, rights, powers,
trusts, obligations and duties of such separate trustee or
co-trustee shall, so far as permitted by law, vest in and be
exercised by the Indenture Trustee, without the appointment of a
successor to such separate trustee or co-trustee unless and until
a successor is appointed.
(c) All provisions of this Indenture which are for the
benefit of the Indenture Trustee shall extend to and apply to
each separate trustee or co-trustee appointed pursuant to the
foregoing provisions of this Section 10.3, including without
limitation Article VII hereof.
(d) Every separate trustee and co-trustee hereunder
shall, to the extent permitted by law, be appointed and act, and
the Indenture Trustee shall act, subject to the following
provisions and conditions:
(i) all rights, powers, duties and obligations
conferred upon the Indenture Trustee in respect of the
receipt, custody, investment and payment of monies shall be
exercised solely by the Indenture Trustee;
(ii) all other rights, powers, duties and obligations
conferred or imposed upon the Indenture Trustee shall be
conferred or imposed upon and exercised or performed by the
Indenture Trustee and such separate trustee or separate
trustees or co-trustee jointly except to the extent that
under any law of any jurisdiction in which any particular
act or acts are to be performed the Indenture Trustee shall
be incompetent or unqualified to perform such act or acts,
in which event such rights, powers, duties and obligations
shall be exercised and performed by such separate trustee or
separate trustees or co-trustee;
(iii) no power hereby given to, or with respect to
which it is hereby provided may be exercised by, any such
separate trustee or separate trustees or co-trustee shall be
exercised hereunder by such Person except jointly with, or
with the consent of, the Indenture Trustee; and
(iv) no trustee hereunder shall be personally liable
by reason of any act or omission of any other trustee
hereunder.
If at any time the Indenture Trustee shall deem it no longer
necessary or prudent in order to conform to any such law, or take
any such action or shall be advised by such counsel that it is no
longer legally required or necessary or prudent in the interest
of the Noteholders or in the event the Indenture Trustee shall
have been requested to do so by a Majority in Interest of the
Noteholders, the Indenture Trustee shall execute and deliver an
indenture supplemental hereto and all other instruments and
agreements necessary or proper to remove any separate trustee or
separate trustees or co-trustee.
(e) Any request, approval or consent in writing by the
Indenture Trustee to any separate trustee or separate trustees or
co-trustee shall be sufficient warrant to such separate trustee
or separate trustees or co-trustee, as the case may be, to take
such action as may be so requested, approved or consented to.
(f) Notwithstanding any other provision of this
Section 10.3, the powers of any separate trustee or separate
trustees or co-trustee appointed pursuant to this Section 10.3
shall not in any case exceed those of the Indenture Trustee
hereunder.
SECTION 10.4. Notice of Successor Collateral Agent.
In the case of any appointment of a successor to the Collateral
Agent pursuant to the Pooling Agreement or any merger,
conversion, consolidation or sale of all or substantially all of
the corporate trust business of the Collateral Agent pursuant to
the Pooling Agreement, the Indenture Trustee shall give prompt
written notice thereof to each Noteholder.
ARTICLE XI
SUPPLEMENTS AND AMENDMENTS TO
THIS INDENTURE AND OTHER DOCUMENTS
SECTION 11.1. Amendments; Waivers, etc. of Operative
Documents; Direction to Collateral Agent. (a) At any time and
from time to time, (i) the Seller, the Issuer, the Collateral
Agent and the Indenture Trustee, with the written consent of a
Majority in Interest of the Class A Notes, may execute a
supplement to this Indenture for the purpose of adding provisions
to, or changing or eliminating provisions of, this Indenture
(including any appendix or schedule hereto) and (ii) the
Indenture Trustee, with the written consent of a Majority in
Interest of the Class A Noteholders, may consent to or execute a
written amendment of or supplement to, or waiver or consent
under, the Pooling Agreement or any Supplement; provided,
however, that, without the consent of each Holder of a Class A
Note, no such amendment, supplement, waiver or consent shall
(A) reduce the amount or extend the time of payment
of any amount owing or payable under any Class A Note or
(except as provided in this Indenture) increase or reduce
the interest payable on any Class A Note (except that only
the consent of the affected Noteholder shall be required for
any decrease in an amount of or the rate of interest payable
on such Class A Note or any extension for the time of
payment of any amount payable under such Class A Note), or
alter or modify the provisions of the Pooling Agreement with
respect to the order of priorities in which distributions
thereunder shall be made or with respect to the amount or
time of payment of any such distribution;
(B) reduce, modify or amend any indemnities in favor
of any Noteholder or in favor of or to be paid by the Seller
or the Servicer, or alter the definition of "Indemnitees" to
exclude any Noteholder (except as consented to by each
Person adversely affected thereby);
(C) make any Class A Note payable in money other
than U.S. dollars;
(D) modify the provisions of this Indenture relating
to amendments, waivers and supplements of this Indenture or
the Pooling Agreement or any other document; or
(E) modify the definition of "Majority in Interest"
contained herein or the percentage of Noteholders required
to effect any modification of this Indenture.
This Section 11.1 shall not apply to any indenture or indentures
supplemental hereto to the extent permitted by, and complying
with the terms of Sections 10.3 or 11.4 hereof. Notwithstanding
the foregoing, without the consent of each Noteholder, no such
amendment, supplement, waiver or modification of the terms of any
agreement or document shall expressly permit the creation of any
Lien on the Trust Assets or any part thereof, except as herein
expressly permitted, or deprive any Noteholder of the benefit of
the Lien of the Pooling Agreement on the Trust Assets, except as
provided in Sections 5.1 and 5.2 hereof or Sections 5.1 and 5.2
of the Pooling Agreement or in connection with the exercise of
remedies under Article IV of the Pooling Agreement.
It shall not be necessary for the consent of the
Noteholders under this Section 11.1 to approve the particular
form of any proposed supplement or amendment to this Indenture or
the Pooling Agreement, but it shall be sufficient if such consent
shall approve the substance thereof.
(b) Notwithstanding the foregoing, if no Event of
Default shall have occurred and be continuing, the Indenture
Trustee may consent to any modification or amendment of, addition
to or deletion from the Pooling Agreement if, as reflected in an
Officers' Certificate (and, to the extent required herein, an
Opinion of Counsel) such modification, amendment, addition or
deletion shall not materially adversely affect the interests of
the holders of the Notes and does not require the consent of each
Noteholder pursuant to Section 11.1(a).
SECTION 11.2. Trustees and Collateral Agent Protected.
If, in the opinion of the institution acting as Issuer Trustee or
as Collateral Agent under the Pooling Agreement or the
institution acting as the Indenture Trustee hereunder, any
document required to be executed pursuant to the terms of Section
11.1 hereof adversely affects any right, duty, immunity or
indemnity with respect to it under this Indenture or the Pooling
Agreement, such Person may in its discretion decline to execute
such document.
SECTION 11.3. No Request Necessary for Supplement.
Subject to Section 6.2 of the Pooling Agreement and
notwithstanding anything contained in Section 11.1 hereof,
any Supplement executed and delivered pursuant to Section 6.2 of
the Pooling Agreement and any amendments regarding the addition
to or removal of Contracts from the Issuer as provided in
Sections 2.5 or 6.2 of the Pooling Agreement, executed in
accordance with the provisions thereof, shall not be considered
amendments to the Pooling Agreement for the purpose of Section
11.1.
SECTION 11.4. No Request Necessary for Indenture
Supplement, Etc. The Issuer (when directed in writing by the
Seller), the Collateral Agent and the Indenture Trustee may enter
into an indenture or indentures supplemental hereto and
agreements supplemental to the Pooling Agreement for one or more
of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge
any property or assets to the Indenture Trustee or to the
Collateral Agent as security for the obligations of the
Issuer;
(b) to evidence the succession of another corporation
to the Issuer, or successive successions, and the assumption
by the successor corporation of the covenants, agreements
and obligations of the Issuer Trustee or the Issuer herein,
in the Pooling Agreement and the Class A Notes;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as (in the
case of the Issuer) consented to by the Seller and as they
and the Indenture Trustee shall consider to be for the
protection of the Noteholders, and to make the occurrence,
or the occurrence and continuance, of a default in any such
additional covenants, restrictions, conditions or provisions
an Event of Default permitting the enforcement of all or any
of the several remedies provided herein or in the Pooling
Agreement; provided, however, that in respect of any such
additional covenant, restriction, condition or provision
such supplemental indenture or agreement may provide for a
particular period of grace after default (which period may
be shorter or longer than that allowed in the case of other
defaults) or may provide for an immediate enforcement upon
such an Event of Default or may limit the remedies available
to the Indenture Trustee or the Collateral Agent upon such
an Event of Default or may limit the right of the
Noteholders to waive such an Event of Default;
(d) to surrender any rights or power conferred herein
or in the Pooling Agreement upon the Issuer Trustee, the
Seller, the Collateral Agent or the Issuer; provided,
however, that no such surrender shall be given effect unless
the Issuer Trustee has obtained the written consent thereto
of the Seller;
(e) to cure any ambiguity or to correct or supplement
any provision contained herein or in the Pooling Agreement
or in any supplemental indenture or agreement which may be
defective or inconsistent with any other provision contained
herein or in the Pooling Agreement or in any supplemental
indenture or agreement; provided, however, that such cure,
correction or supplement shall not be materially adverse to
the rights or interests of the Noteholders;
(f) to provide for the issuance under this Indenture
of Class A Notes in coupon form and to provide for
exchangeability of such Class A Notes with Class A Notes
issued hereunder in fully registered form, and to make all
appropriate changes for such purpose;
(g) to correct or amplify the description of any
property at any time subject to the Lien of the Pooling
Agreement or better to assure, convey and confirm unto the
Collateral Agent any property subject or required to be
subject to the Lien of the Pooling Agreement or to subject
Additional Contracts and Equipment to the Lien of the
Pooling Agreement in accordance with the provisions thereof;
provided, however, that supplements to the Pooling Agreement
entered into for the purpose of subjecting Additional
Contracts and Equipment to the Lien of the Pooling Agreement
need only be executed by the Issuer Trustee, the Issuer and
the Collateral Agent;
(h) to modify, eliminate or add to the provisions of
this Indenture or the Pooling Agreement to the extent
required by the SEC to obtain or to continue the
qualification of this Indenture or the Pooling Agreement
(including any supplemental agreement) under the Trust
Indenture Act, or under any similar Federal statute enacted
after the date hereof, and to add to this Indenture or the
Pooling Agreement such other provisions as may be expressly
permitted by the Trust Indenture Act, excluding, however,
the provisions referred to in Section 316(a)(2) of the Trust
Indenture Act as in effect on the date hereof or any
corresponding provision in any similar Federal statute
enacted after the date hereof; provided, however, that no
such modification, elimination or addition required by the
SEC to obtain such qualification shall materially adversely
affect the rights or interests of the Noteholders hereunder
or under the Class A Notes.
The Indenture Trustee is hereby authorized to join in
the execution of any such supplemental indenture, to make any
further appropriate agreements and stipulations which may be
contained therein and to accept the conveyance, transfer,
assignment, mortgage or pledge of any property thereunder or
under the Pooling Agreement, but the Indenture Trustee shall not
be obligated to enter into any such supplemental indenture which
adversely affects the Indenture Trustee's own rights, duties or
immunities under this Indenture or otherwise, whether in its
trust or individual capacity.
Any supplemental indenture or supplemental agreement
under this Section 11.4 may be executed without the consent of
the Noteholders or the Issuer (except, with respect to Sections
11.4(c) and 11.4(d) hereof) notwithstanding any of the provisions
of Section 11.1 hereof.
Promptly after the execution by the Indenture Trustee,
and, if applicable, the Issuer of any supplemental indenture or
supplemental agreement pursuant to the provisions of this Section
11.4, the Indenture Trustee shall provide notice to the
Noteholders at their addresses as they shall appear on the Note
Register of the Note Registrar, setting forth in general terms
the substance of such supplemental indenture. Any failure of the
Indenture Trustee to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
SECTION 11.5. Conformity with Trust Indenture Act.
Every supplemental agreement executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as
then in effect.
SECTION 11.6. Payment for Consent. None of the
Issuer, the Issuer Trustee, the Seller and any of their
respective Affiliates shall, directly or indirectly, pay or cause
to be paid any consideration, whether by way of interest, fee or
otherwise, to any Noteholder for or as an inducement to any
consent, waiver or amendment of any of the terms or provisions of
this Indenture, the Pooling Agreement or the Class A Notes unless
such consideration is offered to be paid to all Noteholders that
so consent, waive or agree to amend in the time frame set forth
in solicitation documents relating to such consent, waiver or
agreement.
SECTION 11.7. Effect of Supplemental Indenture. Upon
the execution of any supplemental indenture pursuant to the
provisions hereof, this Indenture shall be and be deemed to be
modified and amended in accordance therewith and the respective
rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Indenture Trustee, the Issuer and the
Noteholders shall therefore be determined, exercised and enforced
hereunder subject in all respects to such modifications and
amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 11.8. Notation on Notes in Respect of
Supplemental Indentures. Class A Notes authenticated and
delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article may bear a notation in
form approved by the Indenture Trustee as to any matter provided
for by such supplemental indenture. If the Seller or the
Indenture Trustee shall so determine, new Class A Notes so
modified as to conform, in the opinion of the Seller and the
Indenture Trustee, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by
the Seller, authenticated by the Indenture Trustee and delivered
in exchange for the Outstanding Class A Notes.
SECTION 11.9. Notice to Rating Agencies. No less than
three Business Days (or such shorter period as the Rating
Agencies may permit) prior to its execution of each amendment,
consent, modification, supplement or waiver contemplated by
Article XI hereof, the Seller shall send a copy thereof to each
Rating Agency.
ARTICLE XII
POOLING AGREEMENT
SECTION 12.1. Pooling Agreement. (a) In order to
secure the due and punctual payment of the obligations of the
Issuer, the Issuer Trustee, among others, has entered into the
Pooling Agreement to create the Liens created therein and for
related matters. The Indenture Trustee and each Class A
Noteholder hereby appoints the Collateral Agent as its agent and
the Collateral Agent hereby accepts such appointment. The
Indenture Trustee, the Issuer and the Collateral Agent hereby
agree that the Collateral Agent holds the Trust Assets in trust
for the benefit of the Noteholders, the Indenture Trustee and the
other Secured Parties pursuant to the terms of the Pooling
Agreement.
(b) Each Noteholder, by accepting a Class A Note,
agrees to all of the terms and provisions of the Pooling
Agreement as the same may be amended from time to time pursuant
to the provisions thereof and of this Indenture.
(c) As more fully set forth in the Pooling Agreement,
the Holders of Class A Notes, and the Indenture Trustee on behalf
of such Holders, have rights in and to the Trust Assets which are
as provided therein prior to the rights of the holders of the
Class B Notes and the Class C Notes.
(d) As amongst the Class A Noteholders of all Series,
the Trust Assets as now or hereafter constituted shall be held
for the equal and ratable benefit of such Noteholders without
preference, priority or distinction of any thereof over any other
by reason of difference in time of issuance, sale or otherwise,
as security for the Class A Notes.
SECTION 12.2. Recording, Deposit of Collateral, etc.
(a) The Seller will take or cause to be taken all action
required or desirable to maintain, preserve and protect the Lien
on and in the Trust Assets granted by the Pooling Agreement
including, but not limited to, causing all financing statements,
mortgages, other instruments of further assurance, including
continuation statements covering security interests in personal
property to be promptly recorded, registered and filed, and at
all times to be kept recorded, registered and filed, and will
execute and file such financing statements and cause to be issued
and filed such continuation statements, all in such manner and in
such places as may be required by law fully to preserve and
protect the rights of the Noteholders, the Indenture Trustee, the
Collateral Agent and the other Secured Parties under this
Indenture and the Pooling Agreement to all property comprising
the Trust Assets.
(b) The Servicer, on behalf of the Issuer, will from
time to time promptly pay and discharge all mortgage and
financing and continuation statement recording and/or filing
fees, charges and taxes relating to this Indenture and the
Pooling Agreement, any amendments thereto and any other
instruments of further assurance.
SECTION 12.3. Trust Indenture Act Requirements. (a)
The Servicer, on behalf of the Issuer, will furnish to the
Indenture Trustee reports in compliance with Section 314(b) of
the Trust Indenture Act.
(b) The release of any of the Trust Assets from the
terms hereof and of the Pooling Agreement or the release of, in
whole or in part, the Liens created by the Pooling Agreement will
not be deemed to impair the Liens securing the Class A Notes in
contravention of the provisions hereof or the Pooling Agreement
if and to the extent the Trust Assets or Liens are released
pursuant to the terms of the Pooling Agreement and pursuant to
the terms hereof. The Indenture Trustee and each of the
Noteholders acknowledge that a release of the Trust Assets or
Liens strictly in accordance with the terms of the Pooling
Agreement and the terms hereof will not be deemed for any purpose
to be an impairment of the Liens securing the Class A Notes in
contravention of the terms of this Indenture or the Pooling
Agreement. To the extent applicable, without limitation, the
Servicer, on behalf of the Issuer, shall cause Section 314(d) of
the Trust Indenture Act relating to the release of property or
securities from the Liens of each hereof and of the Pooling
Agreement to be complied with. Any certificate or opinion
required by Section 314(d) of the Trust Indenture Act may be made
by an officer or employee of the Servicer on behalf of the Issuer
who is duly authorized to make such certificate or opinion,
except in cases which Section 314(d) of the Trust Indenture Act
requires that such certificate or opinion be made by an
independent person. The Issuer shall furnish to the Servicer any
power of attorney necessary to accomplish the foregoing.
SECTION 12.4. Release Upon Termination of the
Indenture. (a) In the event that this Indenture shall be
satisfied and discharged in accordance with Section 14.1 hereof,
the Indenture Trustee shall deliver to the Collateral Agent a
notice stating that the Indenture Trustee, on behalf of the
Noteholders, disclaims and gives up any and all rights it has in
or to the Trust Assets and any rights it has under the Pooling
Agreement and, upon and after the receipt by the Collateral Agent
of such notice, the Collateral Agent shall not be deemed to hold
the Trust Assets on behalf of the Indenture Trustee for the
benefit of the Noteholders.
(b) Any release of the Trust Assets made strictly in
compliance with the provisions of this Section 12.4 shall not be
deemed to impair the Liens securing the Class A Notes in
contravention of the provisions of this Indenture.
SECTION 12.5. Collateral Agent's Duties. The
Collateral Agent, acting in its capacity as such, shall have only
such duties with respect to the Trust Assets as are set forth in
the Pooling Agreement.
ARTICLE XIII
REPRESENTATIONS AND WARRANTIES
SECTION 13.1. Representations of the Seller. The
Seller represents and warrants as follows:
(a) Corporate Power. The Seller has full corporate
power, authority and legal right to execute, deliver and
perform its obligations under this Indenture and to direct
the Issuer Trustee to execute and deliver the Notes.
(b) Due Qualification. The Seller is duly qualified
to do business and is in good standing as a foreign
corporation (or is exempt from such requirements), and has
obtained or will obtain all necessary licenses and
approvals, in each jurisdiction in which failure to so
qualify or to obtain such licenses and approvals would have
a material adverse effect on its ability to perform its
obligations hereunder.
(c) Due Authorization. The execution and delivery of
this Indenture and the consummation of the transactions
provided for herein and therein have been duly authorized by
the Seller by all necessary corporate action on the part of
the Seller.
(d) No Conflict. The execution and delivery of this
Indenture, the performance of the transactions contemplated
hereby and the fulfillment of the terms hereof will not
conflict with, result in any breach of any of the material
terms and provisions of, or constitute (with or without
notice or lapse of time or both) a default under, any
indenture, contract, agreement, mortgage, deed of trust, or
other instrument to which the Seller is a party or by which
it or any of its property is bound.
(e) No Violation. The execution and delivery of this
Indenture, the performance of the transactions contemplated
hereby and the fulfillment of the terms hereof will not
conflict with or violate, in any material respect, any
Requirements of Law applicable to the Seller.
(f) No Proceedings. There are no proceedings or
investigations pending or, to the best knowledge of the
Seller, threatened against the Seller, before any court,
regulatory body, administrative agency, or other tribunal or
governmental instrumentality (i) asserting the invalidity of
this Indenture or the Notes, (ii) seeking to prevent the
issuance of the Notes or the consummation of any of the
transactions contemplated by this Indenture or the Notes or
(iii) seeking any determination or ruling that, in the
reasonable judgment of the Seller, could reasonably be
expected to be adversely determined, and if adversely
determined, would materially and adversely affect the
performance by the Seller of its obligations under this
Indenture.
(g) All Consents Required. All approvals,
authorizations, consents, orders or other actions of any
Person or of any Governmental Authority required in
connection with the execution and delivery of this Indenture
and the Notes, the performance of the transactions
contemplated by this Indenture, and the fulfillment of or
terms hereof, have been obtained.
(h) Bulk Sales. The execution, delivery and
performance of this Indenture do not require compliance with
any "bulk sales" law by Seller.
(i) Solvency. The transactions under this Indenture
do not and will not render the Seller insolvent.
(j) Validity, Etc. This Indenture constitutes a
legal, valid and binding obligation of the Seller,
enforceable against the Seller in accordance with its terms,
except as such enforceability may be limited by Insolvency
Laws and except as such enforceability may be limited by
general principles of equity (whether considered in a suit
at law or in equity) or by an implied covenant of good faith
and fair dealing.
SECTION 13.2. Representations of the Issuer. The
Issuer represents and warrants as follows:
(a) Corporate Power. It has full power, authority and
legal right to execute, deliver and perform its obligations
as Issuer under this Indenture, the Notes and the Related
Supplement (the foregoing documents, the "Issuer
Documents").
(b) Due Authorization. The execution and delivery of
the Issuer Documents and the consummation of the
transactions provided for therein have been duly authorized
by all necessary action on its part.
(c) No Conflict. The execution and delivery of the
Issuer Documents, the performance of the transactions
contemplated thereby and the fulfillment of the terms
thereof will not conflict with, result in any breach of any
of the material terms and provisions of, or constitute (with
or without notice or lapse of time or both) a default under,
any indenture, contract, agreement, mortgage, deed of trust,
or other instrument to which the Issuer is a party or by
which it or any of its property is bound.
(d) No Violation. The execution and delivery of the
Issuer Documents, the performance of the transactions
contemplated thereby and the fulfillment of the terms
thereof will not conflict with or violate, in any material
respect, any Requirements of Law applicable to the Issuer.
(e) All Consents Required. All approvals,
authorizations, consents, orders or other actions of any
Person or of any Governmental Authority required in
connection with the execution and delivery of the Issuer
Documents, the performance of the transactions contemplated
thereby and the fulfillment of the terms thereof have been
obtained.
(f) Location. The Issuer has its chief executive
office and chief place of business (as such terms are used
in Article 9 of the UCC) in Wilmington, Delaware. The
Issuer agrees that it will not change the location of such
office to a location outside of Wilmington, Delaware,
without at least 30 days prior written notice to the Seller,
the Servicer, the Collateral Agent, each of the Indenture
Trustees and the Rating Agencies.
SECTION 13.3. Representations of the Collateral Agent.
The Collateral Agent, in its individual capacity, represents and
warrants as follows:
(a) Corporate Power. It has full corporate power,
authority and legal right to execute, deliver and perform
its obligations as Collateral Agent under this Indenture and
the Related Supplement (the foregoing documents, the
"Collateral Agent Documents").
(b) Due Authorization. The execution and delivery of
the Collateral Agent Documents and the consummation of the
transactions provided for therein have been duly authorized
by all necessary corporate action on its part, either in its
individual capacity or as Collateral Agent, as the case may
be.
(c) No Conflict. The execution and delivery of the
Collateral Agent Documents, the performance of the
transactions contemplated thereby and the fulfillment of the
terms thereof, in each case in its capacity as Collateral
Agent, will not conflict with, result in any breach of any
of the material terms and provisions of, or constitute (with
or without notice or lapse of time or both) a default under,
any indenture, contract, agreement, mortgage, deed of trust,
or other instrument to which the Collateral Agent is a party
or by which it or any of its property is bound.
(d) No Violation. The execution and delivery of the
Collateral Agent Documents, the performance of the
transactions contemplated thereby and the fulfillment of the
terms thereof, in each case in its capacity as Collateral
Agent, will not conflict with or violate, in any material
respect, any Requirements of Law applicable to the
Collateral Agent.
(e) All Consents Required. All approvals,
authorizations, consents, orders or other actions of any
Person or of any Governmental Authority required in
connection with the execution and delivery of the Collateral
Agent Documents, the performance of the transactions
contemplated thereby and the fulfillment of the terms
thereof, in each case in its capacity as Collateral Agent,
have been obtained.
SECTION 13.4. Additional Representation of the
Collateral Agent. The Collateral Agent represents and warrants
in its capacity as Collateral Agent as follows:
(a) Validity, Etc. Each Collateral Agent Document
constitutes a legal, valid and binding obligation of the
Collateral Agent, enforceable against the Collateral Agent
in accordance with its terms, except as such enforceability
may be limited by Insolvency Laws and except as such
enforceability may be limited by general principles of
equity (whether considered in a suit at law or in equity) or
by an implied covenant of good faith and fair dealing.
SECTION 13.5. Representations of the Indenture
Trustee. The Indenture Trustee in its individual capacity and as
Indenture Trustee represents and warrants as follows:
(a) Organization and Corporate Power. It is a duly
organized and validly existing national banking association
in good standing under the laws of each jurisdiction where
its business so requires. It has full corporate power,
authority and legal right to execute, deliver and perform
its obligations as Indenture Trustee under this Indenture
and the Related Supplement (the foregoing documents, the
"Indenture Trustee Documents") and to authenticate the Class
A Notes.
(b) Due Authorization. The execution and delivery of
the Indenture Trustee Documents, the consummation of the
transactions provided for therein and the authentication of
the Class A Notes have been duly authorized by all necessary
corporate action on its part, either in its individual
capacity or as Indenture Trustee, as the case may be.
(c) No Conflict. The execution and delivery of the
Indenture Trustee Documents, the performance of the
transactions contemplated thereby and the fulfillment of the
terms thereof (including the authentication of the Class A
Notes), will not conflict with, result in any breach of any
of the material terms and provisions of, or constitute (with
or without notice or lapse of time or both) a default under,
any indenture, contract, agreement, mortgage, deed of trust,
or other instrument to which the Indenture Trustee is a
party or by which it or any of its property is bound.
(d) No Violation. The execution and delivery of the
Indenture Trustee Documents, the performance of the
transactions contemplated thereby and the fulfillment of the
terms thereof (including the authentication of the Class A
Notes), will not conflict with or violate, in any material
respect, any Requirements of Law applicable to the Indenture
Trustee.
(e) All Consents Required. All approvals,
authorizations, consents, orders or other actions of any
Person or of any Governmental Authority required in
connection with the execution and delivery of the Indenture
Trustee Documents, the performance of the transactions
contemplated thereby and the fulfillment of the terms
thereof (including the authentication of the Class A Notes),
have been obtained.
(f) Validity, Etc. Each Indenture Trustee Document
constitutes a legal, valid and binding obligation of the
Indenture Trustee, enforceable against the Indenture Trustee
in accordance with its terms, except as such enforceability
may be limited by Insolvency Laws and except as such
enforceability may be limited by general principles of
equity (whether considered in a suit at law or in equity) or
by an implied covenant of good faith and fair dealing.
ARTICLE XIV
SATISFACTION AND DISCHARGE
SECTION 14.1. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to
surviving rights of registration of transfer or exchange of Class
A Notes herein expressly provided for) and the Indenture Trustee,
on demand of and at the expense of the Seller (at the direction
of the Seller), shall execute and deliver to the Issuer and the
Collateral Agent proper instruments acknowledging satisfaction
and discharge of this Indenture and termination of the interests
of the Indenture Trustee and the Noteholders in the Trust Assets
pursuant to the Pooling Agreement, when
(a) either (i) all Class A Notes theretofore
authenticated and delivered (other than (A) Class A Notes
which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 2.7 hereof and
(B) Class A Notes for whose payment money has theretofore
been deposited in trust or segregated and held in trust by
the Collateral Agent and thereafter repaid to the Collateral
Agent or discharged from such trust, as provided in Section
7.13 hereof) have been delivered to the Indenture Trustee
for cancellation; or (ii) all such Class A Notes not
theretofore delivered to the Indenture Trustee for
cancellation have become due and payable and the Collateral
Agent has irrevocably deposited or caused to be deposited
with the Indenture Trustee or other trustee reasonably
satisfactory to the Indenture Trustee as trust funds in the
trust for the purpose an amount of money sufficient to pay
and discharge the entire indebtedness on such Class A Notes
not theretofore delivered to the Indenture Trustee for
cancellation, for principal and interest to the date of such
deposit;
(b) the Collateral Agent has paid or caused to be paid
all other sums payable hereunder by the Collateral Agent;
and
(c) the Collateral Agent has delivered to the
Indenture Trustee or such other trustee (i) irrevocable
instructions to apply the deposited money toward payment of
the Class A Notes on the Maturity Date and (ii) an Officers'
Certificate and an Opinion of Counsel each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Servicer to the Indenture Trustee under
Section 7.7 hereof and, if money shall have been deposited with
the Indenture Trustee or such other trustee pursuant to subclause
(ii) of Subsection (a) of this Section 14.1, the obligations of
the Indenture Trustee or such other trustee under Section 14.2
hereof and the last paragraph of Section 7.13 hereof shall
survive.
SECTION 14.2. Application of Trust Money. Subject to
the provisions of the last paragraph of Section 7.13 hereof, all
money deposited with the Indenture Trustee or other trustee
reasonably satisfactory to the Indenture Trustee pursuant to
Section 14.1 hereof shall be held in trust and applied by it, in
accordance with the provisions of the Class A Notes and this
Indenture, to the payment, either directly to the Indenture
Trustee or through any Paying Agent designated by the Collateral
Agent (including the Collateral Agent acting as its own Paying
Agent), to the Persons entitled thereto, of the principal and
interest for whose payment such money has been so deposited.
ARTICLE XV
MISCELLANEOUS
SECTION 15.1. Indenture for Benefit of Certain
Persons. Nothing in this Indenture, whether express or implied,
shall be construed to give to any Person other than the Issuer
Trustee, the Seller, the Indenture Trustee, the Issuer and the
Noteholders any legal or equitable right, remedy or claim under
or in respect of this Indenture.
SECTION 15.2. [RESERVED]
SECTION 15.3. Notices. Unless otherwise expressly
specified or permitted by the terms hereof, all notices,
requests, demands, authorizations, directions, consents, waivers
or documents provided or permitted by this Indenture to be made,
given, furnished or filed shall be in writing, mailed by
certified mail, postage prepaid, or by confirmed telex, or by
confirmed telecopy and (a) if to the Indenture Trustee, addressed
to its office at 777 Main Street, 11th Floor, Hartford,
Connecticut 06115, (b) if to the Issuer or the Issuer Trustee,
addressed to it at its office at c/o Chase Manhattan Bank
Delaware, 1201 Market Street, Wilmington, Delaware 19801,
Attention: Corporate Trustee Administration Department,
telecopy: (302) 984-4889, (c) if to the Seller, addressed to it
at its office at Ten Almaden Boulevard, Suite 500, San Jose,
California 95113 Attention: K. Nicholas Martitsch, with a copy
to the Servicer, telecopy: 408-271-0508, or (d) if to any
Noteholder, addressed to such party at such address as such party
shall have furnished by notice to the Issuer and the Indenture
Trustee. Whenever any notice in writing is required to be given
by the Issuer, the Issuer Trustee, the Indenture Trustee or any
Noteholder to any of the other of them, such notice shall be
deemed given and such requirement satisfied when such notice is
received, if such notice is received, if such notice is mailed by
certified mail, postage prepaid, or is sent by confirmed telex,
or by confirmed telecopy addressed as provided above. Any party
hereto may change the address to which notices to such Person
will be sent by giving notice of such change to the other parties
to this Indenture.
SECTION 15.4. Severability. Any provision of this
Indenture which 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, and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
SECTION 15.5. No Oral Modifications or Continuing
Waivers. No terms or provisions of this Indenture or the Class A
Notes may be changed, waived, discharged or terminated orally,
but only by an instrument in writing signed by the party or other
Person against whom enforcement of the change, waiver, discharge
or termination is sought and any other party or other Person
whose consent is required pursuant to this Indenture; and any
waiver of the terms hereof or of any Note shall be effective only
in the specific instance and for the specific purpose given.
SECTION 15.6. Successors and Assigns. All covenants
and agreements contained herein shall be binding upon, and inure
to the benefit of, each of the parties hereto and the successors
and assigns of each, all as herein provided. Any request,
notice, direction, consent, waiver or other instrument or action
by any Noteholder shall bind the successors and assigns of such
Noteholder.
SECTION 15.7. Headings. The headings of the various
Articles and Sections herein and in the table of contents hereto
are for the convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 15.8. Governing Law; Counterpart Form. This
Indenture and all Class A Notes issued hereunder shall in all
respects be governed by, and construed in accordance with, the
internal laws of the State of New York without regard to the
provisions thereof regarding conflicts of law, including all
matters of construction, validity and performance. This
Indenture may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall
be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 15.9. Non-Petition. The Indenture Trustee
hereby agrees that it will not institute against, or join any
other Person in instituting against, the Issuer or the Seller any
bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding, or other proceeding under any Federal or
State bankruptcy or similar law, for one year and a day after the
Notes of each Series are paid in full.
SECTION 15.10. Communication by Noteholders with Other
Noteholders. Noteholders may communicate with other Noteholders
with respect to their rights under this Indenture or the Class A
Notes pursuant to Section 312(b) of the Trust Indenture Act.
Every Noteholder, by receiving and holding the same, agrees with
the Issuer and the Indenture Trustee that none of the Issuer
Trustee, the Issuer, the Seller and the Indenture Trustee and any
agent of the Issuer Trustee, the Issuer, the Seller or the
Indenture Trustee shall be deemed to be in violation of any
existing law, or of any law hereafter enacted which does not
specifically refer to Section 312 of the Trust Indenture Act, by
reason of the disclosure of any such information as to the names
and addresses of the Noteholders in accordance with Section 312
of the Trust Indenture Act, regardless of the source from which
such information was derived, and that the Indenture Trustee
shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 312(b) of the Trust
Indenture Act.
SECTION 15.11. Trust Indenture Act Controls.
Subsequent to the qualification of this Indenture under the Trust
Indenture Act, this Indenture will be subject to the provisions
of the Trust Indenture Act and shall, to the extent applicable,
be governed by such provisions.
SECTION 15.12. Normal Commercial Relations. Anything
contained in this Indenture to the contrary notwithstanding, the
Seller, the Indenture Trustee, and any Noteholder, or any bank or
other affiliate of any such party, may conduct any banking or
other financial transactions, and have banking or other
commercial relationships, with the Issuer fully to the same
extent as if this Indenture were not in effect, including without
limitation the making of loans or other extensions of credit to
the Issuer for any purpose whatsoever, whether related to any of
the transactions contemplated hereby or otherwise.
Section 15.13. Not Acting in Individual Capacity.
Except as provided in Article XI of the Pooling Agreement, Chase
Manhattan Bank Delaware acts solely as Issuer Trustee hereunder
and not in its individual capacity and all Persons having any
claim against the Issuer Trustee by reason of the transactions
contemplated by this Indenture or otherwise shall look only to
the Trust Assets for payment or satisfaction thereof. For all
purposes of this Indenture, in the performance of its duties or
obligations hereunder or in the performance of any duties or
obligations of the Issuer hereunder, the Issuer Trustee shall be
subject to, and entitled to the benefits of, the terms and
provisions of Article XI of the Pooling Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed by their respective officers
thereunto duly authorized, as of the day and year first above
written, and acknowledge that this Indenture has been made and
delivered in the City of New York, and this Indenture having
become effective only upon such execution and delivery.
NEWCOURT RECEIVABLES ASSET TRUST
By: Chase Manhattan Bank Delaware,
as Issuer Trustee
By: /s/ John J. Cashin
____________________________
Title:
NEWCOURT RECEIVABLES CORPORATION
By: /s/ Daniel A. Jauernig
____________________________
Title:
By: /s/ K. Nicholas Martitsch
____________________________
Title:
FLEET NATIONAL BANK,
as Collateral Agent
By: /s/ Susan T. Keller
____________________________
Title: Vice President
FLEET NATIONAL BANK,
as Indenture Trustee
By: /s/ Susan T. Keller
____________________________
Title: Vice President
NEWCOURT CREDIT GROUP INC.,
as Servicer, solely to
acknowledge its obligations
pursuant to Sections 3.2, 6.4,
8.3, 9.1, 12.2 and 12.3 hereof
By: /s/ Daniel A. Jauernig
___________________________
Title:
By: /s/ Geoffrey Ichii
___________________________
Title:
Exhibit A
REGISTERED $__________
No. ____
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. ____________
UNLESS THIS SERIES 1996-2 CLASS A NOTE IS PRESENTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION ("DTC"), TO THE INDENTURE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
SERIES 1996-2 CLASS A NOTE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS SERIES 1996-2 CLASS A NOTE IS
PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL AMOUNT OF THIS SERIES 1996-2 CLASS A NOTE
AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
NEWCOURT RECEIVABLES ASSET TRUST
SERIES 1996-2 CLASS A [ ]% ASSET BACKED NOTE
Newcourt Receivables Asset Trust, a business trust
organized and existing under the laws of the State of Delaware
(herein referred to as the "Issuer"), for value received, hereby
promises to pay to Cede & Co., or registered assigns, the
principal sum of $__________, payable on each Distribution Date
in the amounts and to the extent described in the Pooling
Agreement and the Indenture; provided, however, that the entire
unpaid principal amount of this Series 1996-2 Class A Note shall
be due and payable on the earlier of the Maturity Date of June
20, 2004 and the date fixed for redemption, if any, pursuant to
Section 3.2 of the Indenture. The Issuer will pay interest on
this Series 1996-2 Class A Note on each Distribution Date in the
amounts and to the extent described in the Pooling Agreement and
the Indenture. The Issuer will pay interest on overdue principal
at the rate of [ ]% of per annum; it will pay interest on
overdue installments of interest (without regard to any
applicable grace periods) at the rate of [ ]% per annum to the
extent lawful. "Distribution Date" means the twentieth day of
each calendar month or, if such twentieth day is not a Business
Day, the next succeeding Business Day, commencing September 20,
1996.
The principal of and interest on this Series 1996-2
Class A Note are payable in such coin or currency of the United
States of America as at the time of payment is legal tender for
payment of public and private debts. All payments made by the
Issuer with respect to this Series 1996-2 Class A Note shall be
applied first to interest due and payable on this Series 1996-2
Class A Note as provided above and then to the unpaid principal
of this Series 1996-2 Class A Note.
Reference is made to the further provisions of this
Series 1996-2 Class A Note set forth on the reverse hereof, which
shall have the same effect as though fully set forth on the face
of this Series 1996-2 Class A Note.
Unless the certificate of authentication hereon has
been executed by the Indenture Trustee whose name appears below
by manual signature, this Series 1996-2 Class A Note shall not be
entitled to any benefit under the Indenture or the Pooling
Agreement referred to on the reverse hereof, or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer Trustee, acting on the
Issuer's behalf, has caused this instrument to be signed,
manually or in facsimile, by its authorized officer.
Dated: _______ __, 1996 NEWCOURT RECEIVABLES ASSET TRUST
By: Chase Manhattan Bank Delaware,
not in its individual capacity
but solely as Issuer Trustee
By: ________________________
Name:
Title:
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Series 1996-2 Class A Notes
designated above and referred to in the within-mentioned
Indenture.
Dated: _______ __, 1996 Fleet National Bank, not in
its individual capacity but
solely as Indenture Trustee,
By: _________________________
Authorized Signatory
REVERSE OF NOTE
This Series 1996-2 Class A Note is one of a duly
authorized issue of Notes of the Issuer, designated as its Series
1996-2 Class A [ ]% Asset Backed Notes (the "Series 1996-2
Class A Notes"), issued under the Class A Indenture dated as of
September __, 1996 (such indenture, as supplemented or amended,
the "Indenture"), among the Issuer, Newcourt Receivables
Corporation, as Seller (the "Seller"), Fleet National Bank, as
Collateral Agent (the "Collateral Agent") and Fleet National
Bank, as Indenture Trustee (the "Indenture Trustee"), to which
Indenture, all indentures supplemental thereto and the Pooling
Agreement (as hereinafter defined) reference is hereby made for a
statement of the respective rights and obligations thereunder of
the Issuer, the Seller, the Collateral Agent, the Indenture
Trustee and the Holders of the Series 1996-2 Class A Notes. The
Series 1996-2 Class A Notes are governed by and subject to all
terms of the Indenture and the Pooling Agreement (which
respective terms are incorporated herein and made a part hereof).
All terms used in this Series 1996-2 Class A Note that are not
otherwise defined herein shall have the meanings assigned to them
in or pursuant to the Indenture or the Pooling Agreement, as the
case may be, as so supplemented or amended.
Two additional Classes of Notes of the Issuer, the
Series 1996-2 Class B [ ]% Asset Backed Notes (the "Series
1996-2 Class B Notes") and the Series 1996-2 Class C [ ]% Asset
Backed Notes (the "Series 1996-2 Class C Notes" and together with
the Series 1996-2 Class A Notes and the Series 1996-2 Class B
Notes, the "Series 1996-2 Notes") are issued pursuant to
respective Note Purchase Agreements, each dated September __,
1996, among the Seller, Newcourt Credit Group Inc., as Servicer
(the "Servicer"), the Trust and the purchasers named therein.
The Series 1996-2 Class B Notes and the Series 1996-2 Class C
Notes are subordinated in right of payment to the Series 1996-2
Class A Notes.
The Series 1996-2 Class A Notes are and will be equally
and ratably secured by the Trust Assets pledged as security
therefor as provided in the Pooling, Collateral Agency and
Servicing Agreement, dated as of September __, 1996, among the
Seller, the Servicer, the Collateral Agent and the Issuer Trustee
(as supplemented or amended, the "Pooling Agreement").
Notwithstanding anything to the contrary herein, the
entire unpaid principal amount of this Series 1996-2 Class A Note
shall be due and payable on the date on which an Event of Default
shall have occurred and be continuing and, if required by the
Pooling Agreement or the Indenture, the Collateral Agent or the
Required Percentage of Holders of the Series 1996-2 Class A Notes
shall have declared the Series 1996-2 Class A Notes to be
immediately due and payable in the manner provided in Section 9.1
of the Pooling Agreement and Section 4.4 of the Indenture. All
principal payments on the Series 1996-2 Class A Notes shall be
made pro rata to the Series 1996-2 Class A Noteholders entitled
thereto.
Payments of interest on this Series 1996-2 Class A Note
on each Distribution Date, together with the installment of
principal, if any, to the extent not in full payment of this
Series 1996-2 Class A Note, shall be made in accordance with
Section 2.4 of the Indenture to the Series 1996-2 Class A
Noteholder. Any reduction in the principal amount of this Series
1996-2 Class A Note effected by any payments made on any
Distribution Date shall be binding upon all future Holders of
this Series 1996-2 Class A Note and of any Series 1996-2 Class A
Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof, whether or not noted hereon.
If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid
principal amount of this Series 1996-2 Class A Note on a
Distribution Date, then the Indenture Trustee will notify the
Series 1996-2 Class A Noteholder by notice mailed not later than
the fifth day of the month (subject to at least four Business
Days' prior notice from the Servicer to the Indenture Trustee) of
such final distribution and the amount then due and payable shall
be payable only upon presentation and surrender of this Series
1996-2 Class A Note at the office or offices designated in such
notice.
The Holder of this Series 1996-2 Class A Note, by its
acceptance of this Series 1996-2 Class A Note, agrees that it
will look solely to the income and proceeds from the Trust Assets
to the extent available for distribution to it as provided in the
Pooling Agreement and the Indenture and that none of the
Collateral Agent or the Indenture Trustee is or shall be
personally liable to it for any amounts payable or any liability
under the Indenture or this Series 1996-2 Class A Note, except as
expressly provided in the Indenture and in the Pooling Agreement.
The Seller and the Servicer, by entering into the
Pooling Agreement, and each Noteholder and each Note Owner, by
acquiring any Series 1996-2 Class A Note or beneficial interest
therein, (i) express their intention that the Series 1996-2 Class
A Notes will constitute indebtedness of the Seller for federal
income and state and local tax purposes and (ii) agree to treat
and to take no action inconsistent with the treatment of the
Series 1996-2 Class A Notes (or any beneficial interest therein)
as indebtedness for purposes of federal, state, local and foreign
income or franchise taxes and any other tax imposed on or
measured by income.
The Holder of this Series 1996-2 Class A Note, by
acceptance of this Series 1996-2 Class A Note, covenants and
agrees that it will not, until one year and one day after the
final payment on all Notes, institute against, or join any other
Person in instituting against, the Seller or the Issuer any
bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or other similar proceeding under the
laws of the United States or any state of the United States.
Prior to the due presentment for registration of
transfer of this Series 1996-2 Class A Note, the Issuer, the
Issuer Trustee, the Collateral Agent and the Indenture Trustee
may deem and treat the Person in whose name this Series 1996-2
Class A Note is registered as the absolute owner thereof for the
purposes of receiving payment of all amounts payable with respect
to this Series 1996-2 Class A Note and for all other purposes,
whether or not this Series 1996-2 Class A Note be overdue, and
none of the Issuer, the Issuer Trustee, the Indenture Trustee or
the Collateral Agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as
therein provided, (i) the Seller, the Issuer, the Collateral
Agent and the Indenture Trustee, with the written consent of a
Majority in Interest of the Series 1996-2 Class A Notes, to
execute a supplement to the Indenture for the purpose of adding
provisions to, or changing or eliminating provisions of, the
Indenture (including any appendix or schedule thereto) and (ii)
the Indenture Trustee, with the written consent of a Majority in
Interest of the Series 1996-2 Class A Noteholders, may consent to
or execute a written amendment of or supplement to, or waiver or
consent under, the Pooling Agreement or any Supplement. Any such
consent or waiver by the Holder of this Series 1996-2 Class A
Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Series 1996-2 Class A Note and of any
Series 1996-2 Class A Note issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent or waiver is made upon this
Series 1996-2 Class A Note.
The Pooling Agreement (including any Supplement) may be
amended from time to time by the Servicer, the Seller, the Issuer
Trustee and the Collateral Agent, without the consent of any of
the Series 1996-2 Class A Noteholders, (i) to cure any ambiguity,
to revise any exhibits or Schedules, to correct or supplement any
provisions therein or thereon or (ii) to add any other provisions
with respect to matters or questions raised under the Pooling
Agreement which shall not be inconsistent with the provisions of
the Pooling Agreement; provided, however, that such action shall
not adversely affect in any material respect the interests of any
of the Noteholders.
The term "Issuer Trustee" as used in this Series 1996-2
Class A Note includes any successor to the Issuer Trustee under
the Indenture.
The Series 1996-2 Class A Notes are issuable only in
registered form without coupons in denominations as provided in
the Indenture, subject to certain limitations therein set forth.
No reference herein to the Indenture or the Pooling
Agreement and no provision of this Series 1996-2 Class A Note or
of the Indenture or the Pooling Agreement shall alter or impair
the obligation of the Issuer, which is absolute and
unconditional, to pay the principal of and interest on this
Series 1996-2 Class A Note at the time, place, and rate, and in
the coin or currency herein prescribed.
None of the Issuer Trustee, the Collateral Agent or the
Indenture Trustee in its individual capacity makes or shall be
deemed to have made any representation or warranty as to the
validity, legality or enforceability of the Indenture, the
Pooling Agreement or the Series 1996-2 Class A Notes or as to the
correctness of any statement contained in any thereof, except for
the representations and warranties of the Issuer Trustee, the
Collateral Agent or the Indenture Trustee, made in their
respective individual capacities, under any document to which
such party is a party.
This Series 1996-2 Class A Note and the Pooling
Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York and the State of
Delaware, respectively, without reference to its conflict of law
provisions and the obligations, rights and remedies of the
parties hereunder and thereunder shall be determined in
accordance with such laws.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of
assignee
____________________________________
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto
__________________________________________________________
___________________________________________________________
(name and address of assignee)
the within Series 1996-2 Class A Note and all rights thereunder,
and hereby irrevocably constitutes and appoints attorney, to
transfer said Series 1996-2 Class A Note on the books kept for
registration thereof, with full power of constitution in the
premises.
Dated: ___________________ ___________________________________
___________
NOTE: The signature to this
assignment must correspond with the
name of the registered owner as it
appears on the face of the within
Series 1996-2 Class A Note in every
particular, without alteration,
enlargement or any change
whatsoever.
Exhibit B
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Series 1996-2 Class A Notes
designated above and referred to in the within-mentioned
Indenture.
Dated: _______ __, _____ Fleet National Bank, not in
its individual capacity but
solely as Indenture Trustee,
By: _________________________
Authorized Signatory
CLASS A TRUST INDENTURE
Dated as of
September 17, 1996
AMONG
NEWCOURT RECEIVABLES ASSET TRUST,
Issuer,
NEWCOURT RECEIVABLES CORPORATION,
Seller
FLEET NATIONAL BANK,
Collateral Agent
AND
FLEET NATIONAL BANK,
Indenture Trustee
Reconciliation and tie between Class A Trust Indenture dated as
of September 17, 1996 and the Trust Indenture Act of 1939, as
amended. This reconciliation does not constitute part of the
Class A Trust Indenture
Trust Indenture Act Class A Trust Indenture
of 1939 Section
310(a)(1) 7.10
(a)(2) 7.10
(a)(3) 10.3
(a)(4) Not Applicable
(a)(5) 7.10
(b) 7.10; 10.2
(c) Not Applicable
311(a) 7.11
(b) 7.11
(c) Not Applicable
312(a) 8.1
(b) 15.10
(c) 15.10
313(a) 8.2
(b) 8.2
(c) 8.2
(d) 8.2
314(a) 8.3
(b) 8.3; 12.3
(c)(1) 1.2
(c)(2) 1.2
(c)(3) Not Applicable
(d) 12.3
(e) 1.2
315(a) 5.4; 7.5
(b) 5.1
(c) 5.1
(d) 5.1; 7.1
(e) 4.11
316(a)(1)(A) 4.8
(a)(1)(B)
(a)(2) Not Applicable
(b) 4.9
(c) 1.4
317(a) 4.7
(b) 7.13
318(a) 15.11
This Cross Reference Sheet is not part of the Class A Trust
Indenture.
TABLE OF CONTENTS
Page
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
DEFINITIONS; CERTIFICATES, OPINIONS AND FORMS;
ACTS OF NOTEHOLDERS
SECTION 1.1. Defined Terms . . . . . . . . . . . . . . 2
SECTION 1.2. Compliance Certificates and Opinions . . . 5
SECTION 1.3. Form of Documents Delivered to Indenture
Trustee . . . . . . . . . . . . . . . . . 6
SECTION 1.4. Acts of Noteholders . . . . . . . . . . . 7
SECTION 1.5. Written Notice of Distribution . . . . . . 8
ARTICLE II
THE NOTES
SECTION 2.1. Form, Denomination and Dating . . . . . . 9
SECTION 2.2. Execution and Authentication . . . . . . . 10
SECTION 2.3. Payments from Trust Assets Only . . . . . 11
SECTION 2.4. Method of Payment . . . . . . . . . . . . 11
SECTION 2.5. Termination of Interest in Trust Assets . 13
SECTION 2.6. Registration, Transfer and Exchange of
Class A Notes . . . . . . . . . . . . . . 13
SECTION 2.7. Mutilated, Destroyed, Lost or Stolen
Notes . . . . . . . . . . . . . . . . . . 14
SECTION 2.8. Payment of Expenses on Transfer . . . . . 15
SECTION 2.9. Priority of Payments . . . . . . . . . . . 15
SECTION 2.10. Cancellation of Notes . . . . . . . . . . 15
SECTION 2.11. Temporary Notes . . . . . . . . . . . . . 16
SECTION 2.12. Interest on Defaulted Payments . . . . . 16
SECTION 2.13. Book-Entry Notes . . . . . . . . . . . . 16
Section 2.14. Notices to Clearing Agent . . . . . . . . 17
Section 2.15. Definitive Notes Initially Issued as
Book-Entry Notes . . . . . . . . . . . . 17
SECTION 2.16. Tax Treatment . . . . . . . . . . . . . . 18
ARTICLE III
RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME FROM THE TRUST ASSETS
SECTION 3.1. Distribution Prior to Event of Default or
Restricting Event . . . . . . . . . . . . 18
SECTION 3.2. Optional Purchase by Seller; Trust
Termination Payments . . . . . . . . . . 19
SECTION 3.3. Distribution Following an Event of
Default or a Restricting Event . . . . . 20
SECTION 3.4. Certain Payments . . . . . . . . . . . . . 21
SECTION 3.5. Other Payments . . . . . . . . . . . . . . 21
SECTION 3.6. Unclaimed Moneys . . . . . . . . . . . . . 22
ARTICLE IV
COVENANTS; EVENTS OF DEFAULT AND RESTRICTING
EVENTS; REMEDIES OF INDENTURE TRUSTEE
SECTION 4.1. Covenants of the Issuer . . . . . . . . . 22
SECTION 4.2. Events of Default and Restricting Events . 23
SECTION 4.3. Notice to Rating Agencies, etc. . . . . . 23
SECTION 4.4. Remedies . . . . . . . . . . . . . . . . . 23
SECTION 4.5. Remedies Cumulative . . . . . . . . . . . 24
SECTION 4.6. Discontinuance of Proceedings . . . . . . 24
SECTION 4.7. Judicial Proceedings Instituted by
Indenture Trustee; Indenture Trustee May
Bring Suit . . . . . . . . . . . . . . . 24
SECTION 4.8. Control by Noteholders . . . . . . . . . . 25
SECTION 4.9. Right of Noteholders to Receive Payments
not to be Impaired . . . . . . . . . . . 26
SECTION 4.10. Limitation on Suits . . . . . . . . . . . 26
SECTION 4.11. Undertaking for Costs . . . . . . . . . . 26
SECTION 4.12. Waiver of Stay or Extension Laws . . . . 27
ARTICLE V
DUTIES OF THE INDENTURE TRUSTEE
SECTION 5.1. Certain Notices . . . . . . . . . . . . . 27
SECTION 5.2. Action Upon Instructions . . . . . . . . . 28
SECTION 5.3. Indemnification . . . . . . . . . . . . . 29
SECTION 5.4. No Duties Except as Specified in
Indenture or Instructions . . . . . . . . 29
SECTION 5.5. Directions to Collateral Agent . . . . . . 29
ARTICLE VI
REDEMPTION OF CLASS A NOTES
SECTION 6.1. No Redemption Prior to Maturity . . . . . 30
SECTION 6.2. Expected Amortization Schedule . . . . . . 30
SECTION 6.3. Notice of Redemption to Noteholders . . . 31
SECTION 6.4. Receipt of Funds . . . . . . . . . . . . . 32
ARTICLE VII
THE COLLATERAL AGENT AND THE INDENTURE TRUSTEE
SECTION 7.1. Acceptance of Trusts and Duties . . . . . 32
SECTION 7.2. Absence of Duties . . . . . . . . . . . . 33
SECTION 7.3. No Representations or Warranties as to
Documents . . . . . . . . . . . . . . . . 33
SECTION 7.4. No Segregation of Monies; No Interest . . 33
SECTION 7.5. Reliance; Agents; Advice of Counsel . . . 33
SECTION 7.6. Capacity in Which Acting . . . . . . . . . 34
SECTION 7.7. Compensation . . . . . . . . . . . . . . . 34
SECTION 7.8. May Become Noteholder . . . . . . . . . . 34
SECTION 7.9. Further Assurances . . . . . . . . . . . . 35
SECTION 7.10. Corporate Trustee Required; Eligibility . 35
SECTION 7.11. Preferential Collection of Claims
Against the Indenture Trustee . . . . . . 36
SECTION 7.12. Maintenance of Agencies; Note Registrar;
Paying Agents; Authorized Agents . . . . 36
SECTION 7.13. Money for Note Payments to Be Held in
Trust . . . . . . . . . . . . . . . . . . 37
ARTICLE VIII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 8.1. Noteholder Lists . . . . . . . . . . . . . 38
SECTION 8.2. Reports by Indenture Trustee . . . . . . . 38
SECTION 8.3. Reports by the Issuer . . . . . . . . . . 39
SECTION 8.4. Reports by Indenture Trustee . . . . . . . 39
ARTICLE IX
INDEMNIFICATION
SECTION 9.1. Indemnification . . . . . . . . . . . . . 40
ARTICLE X
SUCCESSOR ISSUER TRUSTEES; SEPARATE ISSUER TRUSTEES
SECTION 10.1. Notice of Successor Issuer Trustee . . . 40
SECTION 10.2. Replacement of Indenture Trustee . . . . 40
SECTION 10.3. Appointment of Separate Indenture
Trustees . . . . . . . . . . . . . . . . 41
SECTION 10.4. Notice of Successor Collateral Agent . . 43
ARTICLE XI
SUPPLEMENTS AND AMENDMENTS TO
THIS INDENTURE AND OTHER DOCUMENTS
SECTION 11.1. Amendments; Waivers, etc. of Operative
Documents; Direction to Collateral
Agent . . . . . . . . . . . . . . . . . . 44
SECTION 11.2. Trustees and Collateral Agent Protected . 45
SECTION 11.3. No Request Necessary for Supplement . . . 45
SECTION 11.4. No Request Necessary for Indenture
Supplement, Etc. . . . . . . . . . . . . 45
SECTION 11.5. Conformity with Trust Indenture Act . . . 48
SECTION 11.6. Payment for Consent . . . . . . . . . . . 48
SECTION 11.7. Effect of Supplemental Indenture . . . . 48
SECTION 11.8. Notation on Notes in Respect of
Supplemental Indentures . . . . . . . . . 48
SECTION 11.9. Notice to Rating Agencies . . . . . . . . 48
ARTICLE XII
POOLING AGREEMENT
SECTION 12.1. Pooling Agreement . . . . . . . . . . . . 49
SECTION 12.2. Recording, Deposit of Collateral, etc. . 49
SECTION 12.3. Trust Indenture Act Requirements . . . . 50
SECTION 12.4. Release Upon Termination of the
Indenture . . . . . . . . . . . . . . . . 50
SECTION 12.5. Collateral Agent's Duties . . . . . . . . 51
ARTICLE XIII
REPRESENTATIONS AND WARRANTIES
SECTION 13.1. Representations of the Seller . . . . . . 51
SECTION 13.2. Representations of the Issuer . . . . . . 52
SECTION 13.3. Representations of the Collateral Agent . 53
SECTION 13.4. Additional Representation of the
Collateral Agent . . . . . . . . . . . . 54
SECTION 13.5. Representations of the Indenture
Trustee . . . . . . . . . . . . . . . . . 54
ARTICLE XIV
SATISFACTION AND DISCHARGE
SECTION 14.2. Application of Trust Money . . . . . . . 56
ARTICLE XV
MISCELLANEOUS
SECTION 15.1. Indenture for Benefit of Certain
Persons . . . . . . . . . . . . . . . . . 57
SECTION 15.2. [RESERVED] . . . . . . . . . . . . . . . 57
SECTION 15.3. Notices . . . . . . . . . . . . . . . . . 57
SECTION 15.4. Severability . . . . . . . . . . . . . . 57
SECTION 15.5. No Oral Modifications or Continuing
Waivers . . . . . . . . . . . . . . . . . 58
SECTION 15.6. Successors and Assigns . . . . . . . . . 58
SECTION 15.7. Headings . . . . . . . . . . . . . . . . 58
SECTION 15.8. Governing Law; Counterpart Form . . . . . 58
SECTION 15.9. Non-Petition . . . . . . . . . . . . . . 58
SECTION 15.10. Communication by Noteholders with Other
Noteholders . . . . . . . . . . . . . . . 58
SECTION 15.11. Trust Indenture Act Controls . . . . . . 59
SECTION 15.12. Normal Commercial Relations . . . . . . 59
Section 15.13. Not Acting in Individual Capacity . . . 59
EXHIBITS
EXHIBIT A - Form of Class A Note
EXHIBIT B - Form of Certificate of Authentication
Indenture Trustee
Fleet National Bank
777 Main Street, 11th Floor
Hartford, CT 06115
Re: Newcourt Receivables Asset Trust, 1996-1
Re: Newcourt Receivables Asset Trust, 1996-2
1) The Monthly Servicer Certificate for the Collection Period ended
August 31, 1996 accurately reflects the Collections made during this
reporting period in accordance with the Prospectus and Prospectus
Supplement dated April 11, 1996 (Series 1996-1) and Prospectus
Supplement dated September 17, 1996 (Series 1996-2);
2) Newcourt Credit Group Inc., as Servicer, has complied with all of the
covenants and other requirements contained in the Prospectus and
Prospectus Supplement dated April 11, 1996 (Series 1996-1) and
Prospectus Supplement dated September 17, 1996 (Series 1996-2);
3) No Event of Default or Restricting Event has occurred during the
reporting period and none is continuing as at the end of the
reporting period.
Dated at Toronto, Ontario this 17th day of September, 1996.
Newcourt Credit Group Inc.,
as Servicer
By: /s/ Daniel A. Jauernig
Daniel A. Jauernig
Senior Vice President and Treasurer
cc: Issuer Trustee, Chemical Bank Delaware
Underwriter, First Union Capital Markets Group
Standard & Poor's
Newcourt Receivables Asset Trust
Monthly Servicer Certificate-Inputs August 1996
Accounts
Collection Account
Beginning Balance 0.00
Sum of Deposits from Collections 8,150,598.17
Add: Servicer Advances 1,202,687.72
Add: Liquidation Proceeds from Servicer 0.00
Add: Earnings from Eligible Investments 25,638.65
Less: Collections to reimburse Servicer
Advances 633,799.43
Reserve Account
Beginning Balance 2,958,440.22
Add: Investment Earnings on Reserve
Account 4,942.43
Distribution Account
Beginning Balance 0.00
Unreimbursed Servicer Advances from
Prior Month 0.00
Prior Month Servicing Fee Arrearage 0.00
Amount Owed to Hedging Counterparty 0.00
Series 1996-1 Series 1996-2
Clas A Interest Arrearage 0.00 0.00
Class B Interest Arrearage 0.00 0.00
Class A Principal Arrearage 0.00 0.00
Class B Principal Arrearage 0.00 0.00
Class C Interest Arrearage 0.00 0.00
Class C Principal Arrearage 0.00 0.00
Initial A Balance 119,656,814.00 169,810,862.19
Initial B Balance 5,202,470.00 7,383,080.96
Initial C Balance 5,202,470.00 7,383,080.96
Minimum Credit Enhancement 2,925,889.00 4,152,983.04
Restricting Event Calculations
<TABLE>
Current 1 Month Prior 2 Months Prior 3 Months Prior 4 Months Prior 5 Months Prior 6 Months Prior
<C> <C> <C> <C> <C> <C> <C> <C>
31-60 Days Past Due 11,535,809 4,984,964 5,429,413 5,567,100 5,335,288 5,963,751 0
61-90 Days Past Due 1,495,513 636,137 708,654 740,468 841,986 998,846 0
90 Days Past Due 460,084 374,889 543,102 724,549 443,094 214,687 0
Delinquent (60+ days
past due) 1,955,597 1,011,026 1,251,756 1,465,017 1,285,080 1,213,533 0
Delinquency Ratio 2.00%
Gross Charge-Offs 165,884 189,272 429,472 632,132 188,037 214,687 0
Recoveries 132,000 162,200 372,639 624,792 138,000 180,000 0
Charge-Offs - Net
of Recoveries 33,884 27,072 56,833 7,340 50,037 34,687 0
Charge-Off Ratio 1.00%
Contract Pool ADCB 288,989,064 111,267,022 115,777,793 121,604,525 125,141,905 127,357,194 0
</TABLE>
<TABLE>
<S> <C> <C> <C> <C> <C>
(A) Portfolio Performance Tests: 1 Month Prior 2 Months Prior 3 Months Prior 4 Months Prior 5 Months Prior
(yes/no) (yes/no) (yes/no) (yes/no) (yes/no)
Event of Default (Yes/No) no no no no no
</TABLE>
<TABLE>
<CAPTION>
Schedules
Class A Interest Schedule
Series 1996-1 Series 1996-2 Consolidated
<S> <C> <C> <C>
Prior Months Series ADCB 111,267,021.99 184,577,024.12 295,844,046.11
Current Months Series ADCB 108,151,666.90 180,837,396.75 288,989,063.65
Prepayments 542,612.35 800,424.09 1,343,036.44
Defaults 186,299.98 273,783.97 460,083.95
Opening Class A Principal
Balance 101,897,526.10 169,810,862.19
Opening Class B Principal
Balance 4,684,747.79 7,383,080.96
Opening Class C Principal
Balance 4,684,747.79 7,383,080.96
Series Allocations
Series 1996-1 Series 1996-2
Series Expected Cash flow 3,248,714.55 4,817,169.99
Series Arrearage 0.00 0.00
Aggregate Series Expected Cash Flow 8,065,884.54 8,065,884.54
Aggregate Series Arrearages 0.00 0.00
Series Allocation Percentage 40.28% 59.72%
</TABLE>
<TABLE>
<CAPTION>
Newcourt Receivables Asset Trust August 1996
Monthly Servicer Certificate - Accounts Master Trust
Collection Reserve Distribution
Account Account Account Series 1996-1 Series 1996-2
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Beginning Account Balances 0.00 2,958,440.22 0.00
Investment Earnings 25,638.65 4,942.43
Collection Account
Collections [4.3 a] 8,150,598.17
Add: Servicer Advances [4.3 b] 1,202,687.72
Add: Liquidation Proceeds from
Servicer 0.00
Less: Collections to reimburse
Servicer Advances [4.3 c] (633,799.43)
Less: Investment Earnings to
Newcourt [4.2 e] (25,638.65) (4,942.43)
- --------------------------------------------------------------------------------------------------------------------
Available Amount (8,719,486.46) 8,719,486.46
- ----------------
Payments on Payment Date
(A) Unreimbursed Servicer
Advances [4.3 d i] 0.00 0.00
(B) Servicing Fee [4.3 d ii] (147,922.02) 147,922.02
(C) Amount owed to Hedging
Counterparty [4.3 d iii] 0.00 0.00
(D) Series Available Amount to
cash Series of Notes [4.3 d iv] 8,571,564.44 3,756,652.86 4,814,911.58
(1) Class A Interest
[4.3 d iv A] (1,548,737.35) 576,570.17 972,167.18
(2) Class B Interest
[4.3 d iv B] (75,787.15) 29,396.79 46,390.36
(3) Class A Principal
[4.3 d iv C] (6,450,833.49) 2,924,439.67 3,526,393.82
(4) Deposit Reserve
Account [4.3 d iv D] 0.00 0.00 0.00 0.00
Repayment Newcourt Advance 0.00 (68,549.58)
(5) Class C Interest
[4.3 d iv E] (92,057.48) 35,330.81 56,726.67
(6) Class B Principal
[4.3 d iv F] (202,074.48) 95,457.71 106,616.77
(7) Class C Principal
[4.3 d iv G] (202,074.48) 95,457.71 106,616.77
(8) Class A Accelerated
Principal Payment
[4.3 d iv H] 0.00 0.00 0.00
(9) Class B Accelerated
Principal Payment
[4.3 d iv I] 0.00 0.00 0.00
(10) Pay to Hedging
Counterparty [4.3 d iv J] 0.00 0.00 0.00
(11) Class C Accelerated
Principal Payment
[4.3 d iv K] 0.00 0.00 0.00
Subtotal (0.00)
Distributions to Noteholders (8,719,486.46) 147,922.02 3,756,652.86 4,814,911.58
Ending Balance (0.00) 2,889,890.64 (0.00)
</TABLE>
<TABLE>
<CAPTION>
Newcourt Receivables Asset Trust August 1996
Monthly Servicer Certificate - Schedules
<S> <C> <C>
Class A Interest Schedule Series 1996-1 Series 1996-2
Opening Class A Principal Balance 101,897,526.10 169,810,862.00
Class A Interest Rate 6.79% 6.87%
30/360* Class A Interest Rate 0.57% 0.57%
Current Class A Interest Distribution 576,570.17 972,167.18
Prior Class A Interest Arrearage 0.00 0.00
Class A Interest Due 576,570.17 972,167.18
Class A Principal Schedule
Series 1996-1 Series 1996-2
Opening Class A Principal Balance 101,897,526.10 169,810,862.00
Prior Months Series ADCB 111,267,021.99 181,911,604.81
Current Months Series ADCB 108,880,579.23 181,911,604.81
-------------- --------------
Difference 2,386,442.76 2,665,419.31
Class A Share 92.00% 92.00%
Scheduled Principal Due 2,195,527.34 2,452,185.76
Current Prepayments 542,612.35 800,424.09
Current Defaults 186,299.98 273,783.97
Class A Total Due 2,924,439.67 3,526,393.82
Prior Class A Arrearage 0.00 0.00
Class A Principal Due 2,924,439.67 3,526,393.82
Class A Principal Distribution 2,924,439.67 3,526,393.82
Current Class A Arrearage 0.00 0.00
Interim Class A Principal Balance after Current
Distribution 98,973,086.43 166,284,468.18
Accelerated Class A Distribution Amount 0.00 0.00
Ending Class A Principal Balance after Current
Distribution 98,973.086.43 166,284,468.18
Class B Interest Schedule Series 1996-1 Series 1996-2
Opening Class B Principal Balance 4,684,747.79 7,383,081.00
Class B Interest Rate 7.53% 7.54%
30/360* Class B Interest Rate 0.63% 0.63%
Current Class B Interest Distribution 29,396.79 46,390.36
Prior Class B Interest Arrearage 0.00 0.00
Class B Interest Due 29,396.79 46,390.36
Class B Principal Schedule Series 1996-1 Series 1996-2
Opening Class B Principal Balance 4,684,747.79 7,383,081.00
Prior Months Series ADCB 111,267,021.99 184,577,024.12
Current Months Series ADCB 108,880,579.23 181,911,604.81
-------------- --------------
Difference 2,386,442.76 2,665,419.31
Class B Share 4.00% 4.00%
Scheduled Principal Due 95,457.71 106,616.77
Current Prepayments 0.00 0.00
Current Defaults 0.00 0.00
Class B Total Due 95,457.71 106,616.77
Prior Class B Arrearage 0.00 0.00
Class B Principal Due 95,457.717 106,616.77
Class B Principal Distribution 95,457.71 106,616.77
Current Class B Arrearage 0.00 0.00
Interim Class B Principal Balance after
Current Distribution 4,589,290.08 7,276,464.23
Accelerated Class A Distribution Amount 0.00 0.00
Ending Class B Principal Balance after
Current Distribution 4,589,290.08 7,276,464.23
Class C Interest Schedule
Opening Class C Principal Balance 4,684,747.79 7,383,081.00
Class C Interest Rate 9.05% 9.22%
30/360* Class C Interest Rate 0.75% 0.77%
Current Class C Interest Distribution 35,330.81 56,726.67
Prior Class C Interest Arrearage 0.00 0.00
Class C Default Rate 10.05% 10.22%
30/360* Class C Interest Default Rate 0.84% 0.85%
Interest on Interest Arrearage 0.00 0.00
Class C Interest Due 35,330.81 56,726.67
Class C Interest Paid 35,330.81 56,726.67
Class C Interest Arrearage 0.00 0.00
Class C Principal Schedule
Opening Class C Principal Balance 4,684,747.79 7,383,081.00
Prior Months Series ADCB 111,267,021.99 184,577,024.12
Current Months Series ADCB 108,880,579.23 181,911,604.81
-------------- --------------
Difference 2,386,442.76 2,665,419.31
Class C Share 4.00% 4.00%
Scheduled Principal Due 95,457.71 106,616.77
Prior Class C Arrearage 0.00 0.00
Class C Principal Due 95,457.71 106,616.77
Class C Principal Distribution 95,457.71 106,616.77
Current Class C Arrearage 0.00 0.00
Interim Class C Principal Balance after
Current Distribution 4,589,290.08 7,276,464.23
Accelerated Class C Distribution Amount 0.00 0.00
Ending Class C Principal Balance after
Current Distribution 4,589,290.08 7,276,464.23
</TABLE>
Servicing Fee Schedule
Contract Pool ADCB 295,844,046.11
Servicing Rate 0.60%
Monthly Servicing Rate 0.05%
Prior Servicing Fee Arrearage 0.00
Current Servicer Fee 147,922.02
Servicer Fee Due 147,922.02
Current Servicing Fee Arrearage 0.00
Reserve Account Schedule
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Reserve Account Series 1996-1 Series 1996-2
Prior Month Balance 2,958,440.22
Series ADCB 288,989,063.65
Required Balance (Series ADCB* 1.00%) 2,889,890.64
Current Period Draw on Reserve 0.00
Required Deposit to Reserve Account 0 0
Actual Deposit to Reserve Account 0 0
Newcourt Advance Released from
Reserve Account (68,549.58)
Ending Reserve Account Balance 2,889,890.64
------------
</TABLE>
Newcourt Receivables Asset Trust
Monthly Servicer Certificate - Restricting Events August 1996
Restricting Event Calculations
(1) Event of Default under the Servicing Agreement (Yes/No) no
(a) ADCB Delinquencies
3 Month Rolling Avg. ADCB 172,011,293
Delinquency Ratio 0.55%
Maximum Delinquency Ratio 2.00%
(b) Annualized ADCB Defaulted Contracts Ratio 0.28%
Maximum Default Ratio 1.00%
(c) Reserve plus APB Subordination no
(d) Restricting Event under any Indentureno
Portfolio Performance Tests
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C>
1 month prior 2 months prior 3 months prior 4 months prior 5 months prior
Current: (yes/no) (yes/no) (yes/no) (yes/no) (yes/no)
Event of Default: no no no no no no
</TABLE>
Monthly Weighted
Delinquencies Delinquencies ADCB Delinquency Average
0
2 months prior 708,654 115,777,793 0.61% 0.14%
1 month prior 636,137 111,267,022 0.57% 0.12%
Current 1,495,513 288,989,064 0.52% 0.29%
----- -----
0.57% 0.55%
Delinquency Ratio: 0.55%
Maximum Delinquency Ratio: 2.00%
Monthly
Charge-Offs Charge-Offs ADCB Defaults
0
5 months prior 34,687 27,357,194 0.03%
4 months prior 50,037 125,141,905 0.04%
3 months prior 7,340 121,604,525 0.01%
2 months prior 56,833 115,777,793 0.05%
1 month prior 27,072 111,267,022 0.02%
Current 33,884 288,989,064 0.01%
------- ----------- -----
209,853 890,137,503 0.03%
Average ADCB 148,356,250
Annualized Maximum
Charge-Off Ratio: 1.00%
1% of Average ADCB 1,483,563
Sum of Charge-Offs *2 419,707
Annualized Charge-Off Ratio: 0.28%
Series 1996-1 Enhancement Floor
0
Enhancement Floor 2,925,889
Amounts on deposit in the Reserve Account 2,889,891
Series Allocation Percentage 40.28%
ADCB less Aggregate Principal
Amount of Class A Notes 8,449,668
---------
9,613,636
Series 1996-2 Enhancement Floor
0
Enhancement Floor 4,152,983
Amounts on deposit in the
Reserve Account 2,889,891
Series Allocation Percentage 59.72%
ADCB less Aggregate Principal
Amount of Class A Notes 14,552,928
----------
16,278,851
Newcourt Receivables Asset Trust
Monthly Servicer Certificate - Certificate Schedules August 1996
Certificate Factors
Series 1996-1 Series 1996-2
Class A
Current A Balance 98,973,086 166,284,468
Initial A Balance 119,656,814 169,810,862
Certificate Factor: 0.8271412477 0.9792334025
Class B
Current B Balance 4,589,290 7,276,464
Initial B Balance 5,202,470 7,383,081
Certificate Factor: 0.8821367696 0.9855593115
Class C
Current C Balance 4,589,290 7,276,464
Initial C Balance 5,202,470 7,383,081
Certificate Factor: 0.8821367696 0.9855593115
Delinquencies
Monthly
Delinquencies ADCB Delinquencies
Current 275,957,742 288,989,064 95.49%
31-60 Days Past Due 11,535,809 288,989,064 3.99%
61-90 Days Past Due 1,495,513 288,989,064 0.52%
