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) June 27, 1996
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Newcourt Receivables Corporation
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(Exact Name of Registrant as Specified in its Charter)
Delaware
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(State or Other Jurisdiction of Incorporation)
33-98378 77-041305
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(Commission File Number) I.R.S. Employer Identification No.)
408-271-0500
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(Registrant's Telephone Number, Including Area Code)
Not Applicable
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(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 Pooling and Servicing Agreement.
4.2 Series 1996-1 Supplement to the Pooling and Ser-
vicing Agreement.
4.3 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 autho-
rized.
NEWCOURT RECEIVABLES CORPORATION
DATED: June 26, 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 Pooling and Servicing Agreement
4.2 Series 1996-1 Supplement to Pooling
and Servicing Agreement
4.3 Class A Trust Indenture
20 Monthly Servicer's Certificate
NEWCOURT RECEIVABLES CORPORATION (Seller)
NEWCOURT CREDIT GROUP INC. (Servicer)
UNDERWRITING AGREEMENT
(STANDARD TERMS)
April 11, 1996
First Union Capital Markets Corp.
301 South College Street, TW-10
Charlotte, North Carolina 28288-0610
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 "In-
denture") 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 Trust-
ee") and will be secured pursuant to a Pooling, Collater-
al Agency and Servicing Agreement (the "Pooling Agree-
ment") described in the applicable Terms Agreement among
the Seller, Newcourt Credit Group Inc., as servicer (the
"Servicer"), the Collateral Agent and Chemical Bank
Delaware, as issue 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 desig-
nated in the applicable Terms Agreement will be sold in a
public offering through the underwriters listed on Sched-
ule 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 re-
ferred to herein as an "Underwriter" or, collectively.
all such Underwriters may be referred to as the "Under-
writers", 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 Agree-
ment" 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 "Commis-
sion") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder (col-
lectively, 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 Commis-
sion, including all material Incorporated by refer-
ence therein and including all information if any)
deemed to be part of the registration statement at
the time it was declared effective by the Commis-
sion, is referred to in this Agreement as the "Reg-
istration Statement". Copies of the Registration
Statement, together with any post-effective amend-
ments 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 reversed 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 Pro-
spectus 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 Pro-
spectus 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 effective-
ness of the Registration Statement has been issued
and no proceeding for that purpose has been insti-
tuted 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 (1)
that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualifi-
cation (Form T-1) of the Indenture Trustee under the
Trust Indenture Act or (ii) any Underwriters' Infor-
mation (as defined in Section 10(b) hereof) con-
tained 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 Agree-
ment 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 incorporate I on.
are duly qualified to do business and are in good
standing as foreign corporations in each jurisdic-
tion in which their respective ownership or lease of
property or the conduct of their respective busi-
nesses 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 mate-
rial 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
issued, are fully paid and nonassessable and, except
to the extent set forth in the Registration State-
ment, are owned by the Servicer directly or indi-
rectly through one or more wholly-owned subsidiar-
ies, free and clear of any claim, lien, encumbrance,
security interest, restriction upon voting or trans-
fer 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 consti-
tute a valid and binding agreement of the Seller and
the Servicer enforceable against them in accordance
with its terms; (ii) the Indenture. when duly exe-
cuted 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 constitute valid
and binding obligations of the Trust entitled to the
benefits of the Indenture and enforceable in accor-
dance 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
OF any of its subsidiaries or any statute or any
order, rule or regulation of an, court or governmen-
tal agency or body having jurisdiction over the
Servicer or any of its subsidiaries or any of their
properties or assets, and except for the registra-
tion of the Notes under the Securities Act, the
qualification of the Indenture under the Trust
Indenture Act, such consents, approvals, authoriza-
tions, 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 Agree-
ment or the Transaction Agreements. the issuance and
sale of the Notes and the consummation of the trans-
actions 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 pro-
ceedings 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 knowl-
edge, no such proceedings are threatened or contem-
plated by government authorities or threatened by
others.
(l) Neither the Servicer nor any of its sub-
sidiaries (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 materi-
al indenture, mortgage, deed of trust. loan agree-
ment 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 (finan-
cial 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 re-
quired 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 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 Term
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 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 title on the same or such other date as the Repre-
sentative 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 permit-
ted 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 regis-
tered in the name of Cede & Co. as nominee of The Deposi-
tory 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 Agree-
ment:
(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 there-
of 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 satis-
factory, to the Representative of such timely filing.
(b) During the period that a prospectus relat-
ing 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 supple-
ment 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 Commis-
sion for any amendment or supplier to the Registra-
tion Statement of the Final Prospectus or for any
additional information, (iii) of the issuance by the
Commission of any stop order suspending the effec-
tiveness of the Registration Statement or the initi-
ation 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 re-
spect 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 mis-
leading, or if it shall be necessary to amend or
supplement the Final Prospectus to comply with the
Securities Act, the Seller promptly A,Ill 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 Represen-
tative shall reasonably request and will continue
such qualification in effect so tone, 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 famish to the Representa-
tive, 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 exhib-
its thereto) and, during the prospectus delivery
period, as many copies of any Preliminary Final
Prospectus and the Final Prospectus and any supple-
ment thereto as the Underwriters may reasonably
request.
(g) For a period from the date of this Agree-
ment until the retirement of the Notes, or until
such time as the Underwriters shall cease to main-
tain a secondary market in the Notes, whichever
first occurs. the Seller will deliver to the Under-
writers (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 "Trust-
ees"), (iii) all documents required to be distribut-
ed to Noteholders of the Trust and (iv) all docu-
ments filed with the Commission pursuant to the
Exchange Act or any order of the Commission thereun-
der, in each case as provided to the Trustees or
filed with the Commission, as soon as such state-
ments and reports are finished 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 Repre-
sentative as soon as practicable an earnings state-
ment covering, a period of at least twelve months
beginning with the first fiscal quarter of the Trust
occurring after the effective date of the Registra-
tion 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 collat-
eralized 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 Market 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 (reg-
istration number 33-98378).
Section 6. Conditions to the Obligations of
the Underwriters. The respective obligations of the
several Underwriters hereunder are subject to the accura-
cy, when made and on the Closing Date, of the representa-
tions 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 obliga-
tions 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 pre-
scribed 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 initi-
ated or threatened by the Commission, and all re-
quests for additional information from the Commis-
sion 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, Transaction Agreements,
the Notes, the Registration Statement, the Prelimi-
nary Final Prospectus and the Final Prospectus, and
all other legal matters relating to such agreements
and the transactions contemplated hereby and there-
by, 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) John Stevenson shall have furnished to the
Representative his written opinion, as Secreta to
the Servicer, addressed to the Underwriters and
dated the Closing Date, in form and substance rea-
sonable 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 rea-
sonably 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 opin-
ion, as counsel to the Issuer Trustee, addressed to
the Underwriters and dated the Closing Date, in form
and substance reasonably satisfactory to the Under-
writers.
(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 Underwrit-
ers.
(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 circumstanc-
es under which they are 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 Transac-
tion 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
compiled in all material respects with all agree-
ments 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, 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 contem-
plated 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 other-
wise), results of operations or business of the
Servicer, the Seller or the Trust except as set
forth in or contemplated by the Registration State-
ment 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 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 trad-
ing 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 de-
clared 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 condi-
tions (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 Repre-
sentative, 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 concurrent-
ly with the execution of the applicable Terms Agree-
ment (the "initial letter"), the Seller shall have
furnished to the Underwriters a letter (the
"bringdown letter") of such accountants, addressed
to the Underwriters and dated the Closing Date (i)
confirming that they are independent public accoun-
tants 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 devel-
opments 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, 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 Agree-
ment, (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 possi-
ble upgrading), its rating of the Notes or any of
the Seller's other debt securities.
(n) The Trust Certificate shall have been duly
authenticated by the Issuer Trustee in accordance
with the Pooling Agreement and delivered and paid
for in accordance with the Pooling Agreement.
All opinions, letters, evidence and certifi-
cates 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 ar-
rangements for the purchase of such Notes by other per-
sons satisfactory to the Seller and the Representative,
including any of the Underwriters, but if no such ar-
rangements are made by the Closing Date, then each re-
maining 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 Term Agreement; provided, however, that the remaining
non-defaulting Underwriter 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 prin-
cipal 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 satis-
factory 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 Agree-
ment 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 per-
mitted 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, lia-
bility or action arises out of or is based upon (ii) any
untrue statement or alleged untrue statement of a materi-
al fact contained in the Registration Statement as origi-
nally 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 supple-
ment 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 reasonable 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 filed or in
an amendment thereof or supplement thereto, or in any
Preliminary Final Prospectus or the Final Prospectus or
in any amendment thereof or supplement thereto in reli-
ance upon and in conformity with the Underwriters' Infor-
mation.
(b) Each Underwriter, severally and not joint-
ly, 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 Registra-
tion 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 amend-
ment 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 omission or alleged omission was made in reli-
ance 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 there-
in (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 com-
mencement of that action; provided, however, that the
failure to notify the indemnifying party shall not re-
lieve 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, however, 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 reason-
ably 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 Representa-
tive 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 agree-
ments 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 lia-
bility 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 indemnifica-
tion 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, contrib-
ute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liabili-
ty, or any action In respect thereof, (i) in such propor-
tion 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 Under-
writers 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 hereun-
der (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 state-
ment of a material fact or the omission or alleged omis-
sion 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 Underwrit-
ers agree that it could not be just and equitable if
contributions pursuant to this Section 11 were to be
determined by pro rata allocation (even if the Underwrit-
ers 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
of any action. Notwithstanding the provisions of this
Section 11, no Underwriter shall be required to contrib-
ute any amount in excess of the amount by which the total
price at which the Notes underwritten by it and distrib-
uted to the public were offered to the public less the
amount of any damages which such Underwriter has other-
wise paid or become liable to pay by reason of any untrue
or alleged untrue statement or omission or alleged omis-
sion. 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 ex-
pressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corpora-
tion, other than the Underwriters, the Seller and the
Servicer and their respective successors and the control-
ling persons and officers and directors referred to in
Sections 10 and 11 and their heirs and legal representa-
tives, 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 Under-
writers to pay (i) the costs incident to the authoriza-
tion, issuance, sale., preparation and delivery of the
Notes and any taxes payable in that connection, (ii) the
costs, incident to the preparation, printing and filing
under the Securities Act of the Registration Statement
and any amendments and exhibits thereto, (iii) the costs
of distributing the Registration Statement as originally
filed and each amendment thereto and any post-effective
amendments thereof (including, in each case, exhibits),
any Preliminary Final Prospectus and the Final Prospec-
tus, all as provided in this Agreement; (iv) the costs of
reproducing and distributing this Agreement and any other
underwriting and selling group documents by mail, telex
or other means of communications; (v) the fees and ex-
penses of qualifying the Notes under the securities laws
of the several jurisdictions as provided in Section 5(c)
and of preparing, printing and distributing Blue Sky
Memoranda and Local Investment Surveys (including the
related reasonable and documented fees and expenses of
counsel to the Underwriters); (vi) any fees charged by
rating agencies for rating the Notes; (vii) all fees and
expenses of the Issuer Trustee and the Indenture Trustee
and their respective counsel, (viii) any transfer taxes
payable in connection with its sale of the Notes, pursu-
ant to this Agreement; and (ix) 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 and the expenses of advertising any offering of
the Notes made by the Underwriters.
Section 14. Survival. The respective indemni-
ties, rights of contribution, representations, warranties
and agreements of the Seller, the Servicer and the Under-
writers 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 here-
under shall be in writing and, if sent to the Underwrit-
ers 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; 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, 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, Atten-
tion: 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 Under-
writers 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, Ap-
pointment 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 Underwrit-
er that it has notified the Process Agent of such decli-
nation 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 pro-
ceeding. 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 jurisdiction, suit on the judg-
ment 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 offer pursuant to
any judgment expressed in or converted into any currency
other than the Obligation Currency or any other realiza-
tion 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 here-
under, 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 Obli-
gation 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 counter-
parts 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.
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:
Title:
NEWCOURT CREDIT GROUP INC.
By: /s/ Daniel A. Jauernig
______________________________________
Name:
Title:
The foregoing Agreement is hereby confirmed
and accepted as of the date hereof.
FIRST UNION CAPITAL MARKETS CORP.
By: /s/ Christopher R. Snyder
_________________________________
Name:
Title:
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 "Underwrit-
ers" for the purpose of this Agree-
ment and for the purposes of the
above referenced Underwriting Agree-
ment as such Underwriting Agreement
is incorporated herein and made a
pari hereof,
Indenture Trustee: _____________________________________
Terms of the Notes:
Distribution Dates: The ____ calendar day of each month,
commencing ________ __, ____.
Note Ratings: ____ by Standard & Poor's Rating 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
Location of Closing:
_____________________________________
Payment for the
Notes: [Wire transfer of same day funds]
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 pur-
chase 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 Under-
writers named in
Schedule I hereto
By:_____________________________________
Name:
Title:
Accepted:
Newcourt Receivables Corporation
By:______________________________________
Name:
Title:
Newco Credit Group Inc.
By:______________________________________
Name:
Title:
Newcourt Receivables Asset Trust
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 6.79% ASSET BACKED NOTES, SERIES 1996-1
TERMS AGREEMENT
Dated: April 11, 1996
To: First Union Capital Markets Corp.
("First Union").
Re: Underwriting Agreement dated April 11,
1996, which is incorporated herein in
its entirety and made a part hereof.
Series Designation: Series 1996-1.
Underwriters: First Union.
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 on
April 22, 1996.
Note Ratings: AAA by Standard & Poor's Ratings Group.
Credit Enhancement
Provider: None.
Supplement: Series 1996-1 Supplement, dated as of
April 15, 1996, among the Seller, the
Servicer, the Collateral Agent, the Is-
suer Trustee and the Indenture Trustee.
Purchase Price: The purchase price payable by the Under-
writer for the Series 1996-1 Class A
Notes covered by this Agreement will be
99.6000% of the principal amounts to be
issued.
Registration Statement: 33-98378.
Closing Date: April 15, 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: $5,202,470 Principal Amount of Class B
7.53% Asset Backed Notes, Series 1996-1.
$5,202,470 Principal Amount of Class C
9.05% Asset Backed Notes, Series 1996-1.
Other Modifications
to the Underwriting
Agreement: All references in the Underwriting
Agreement to the Representative shall
refer to First Union.
Section 8 of the Underwriting Agreement
shall not apply.
All references in the Underwriting
Agreement to Underwriters shall refer to
First Union.
Section 13 of the Underwriting Agreement
shall be modified as set forth in the
letter agreement dated as of April 11,
1996 among the Seller, the Servicer and
First Union.
The Underwriter 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:
Title:
NEWCOURT CREDIT GROUP INC.
By:/s/ Daniel A. Jauernig
Name:
Title:
Accepted:
FIRST UNION CAPITAL MARKETS CORP.
By:/s/ Christopher R. Snyder
Name:
Title:
First Union Capital Markets Corp.
April 10, 1996
The Underwriter agrees subject to the terms and provisions
of the above referenced Underwriting Agreement which is incorpo-
rated herein in its entirety and made a part hereof, to purchase
the principal amount of the above referenced Series of Notes set
forth opposite its name on Schedule I hereto.
FIRST UNION CAPITAL MARKETS CORP.
By:/s/ Christopher R. Snyder
Name:
Title:
Accepted:
NEWCOURT RECEIVABLES CORPORATION
By:/s/ Daniel A. Jauernig
Name:
Title:
NEWCOURT CREDIT GROUP INC.
By:/s/ Daniel A. Jauernig
Name:
Title:
NEWCOURT RECEIVABLES ASSET TRUST
By: Chemical Bank Delaware,
as Issuer Trustee
By:/s/ John J. Cashin
Name:
Title:
SCHEDULE I
UNDERWRITER
$119,656,814 Principal Amount of Class A 6.79% Asset Backed
Notes, Series 1996-1
Principal Amount
First Union Capital Markets Corp. $ 119,656,814
_________________________________________________________
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 . . . . . . . . . . . . . . . .
Section 1.2 Other Definitional Provisions . . . . . . .
Section 1.3 Compliance Certificates and Opinions . . .
Section 1.4 Form of Documents Delivered to
Collateral Agent or Issuer Trustee . . . .
Section 1.5 Acts of Indenture Trustees . . . . . . . .
Section 1.6 Acts of Noteholders . . . . . . . . . . .
Section 1.7 Designated Representatives . . . . . . . .
Section 1.8 Controlling Party . . . . . . . . . . . . .
Section 1.9 Business Day Certificate . . . . . . . . .
ARTICLE II
CREATION OF TRUST; TRANSFER OF TRUST ASSETS . 51
Section 2.1 Creation of Trust; Transfer of Trust
Assets . . . . . . . . . . . . . . . . . .
Section 2.2 Acceptance by Issuer Trustee . . . . . . .
Section 2.3 Grant of Security Interest . . . . . . . .
Section 2.4 Representations and Warranties of Seller
Relating to Seller . . . . . . . . . . . .
Section 2.5 Representations and Warranties of Seller
Relating to the Agreement and the
Contracts . . . . . . . . . . . . . . . .
Section 2.6 Covenants of Seller . . . . . . . . . . . .
Section 2.7 Release of Lien on Equipment . . . . . . .
Section 2.8 Hedging of Contracts After the Related
Addition Date . . . . . . . . . . . . . . .
ARTICLE III
ADMINISTRATION AND SERVICING OF CONTRACTS . . 76
Section 3.1 Appointment and Acceptance; Duties . . . .
Section 3.2 Collection of Payments . . . . . . . . . .
Section 3.3 Servicer Advances . . . . . . . . . . . . .
Section 3.4 Realization Upon Defaulted Contract . . . .
Section 3.5 Maintenance of Insurance Policies . . . . .
Section 3.6 Representations and Warranties of Servicer
Section 3.7 Covenants of Servicer . . . . . . . . . . .
Section 3.8 Servicing Compensation . . . . . . . . . .
Section 3.9 Payment of Certain Expenses by Servicer . .
Section 3.10 Monthly Report; Annual Report . . . . . . .
Section 3.11 Annual Statement as to Compliance . . . . .
Section 3.13 Tax Treatment . . . . . . . . . . . . . . .
Section 3.14 Adjustments . . . . . . . . . . . . . . . .
POOLING, COLLATERAL AGENCY AND SERVICING AGREE-
MENT, dated as of April 15, 1996, among NEWCOURT RECEIV-
ABLES CORPORATION, a Delaware corporation, as Seller (the
"Seller"), NEWCOURT CREDIT GROUP INC., an Ontario corpo-
ration, 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 appli-
cable Cutoff Date for such Class of Notes to and
including the last day of the calendar month immedi-
ately preceding such Distribution Date.
"ADCB" shall mean, on any date of determina-
tion, 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 calcu-
lating 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 Addi-
tional Contracts are transferred to the Trust pursu-
ant 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 Con-
tracts due and payable after such date of determina-
tion 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 Con-
tract 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 corre-
lative to the foregoing.
"Aggregate Principal Amount" shall mean, with
respect to any group of Notes, at any date of deter-
mination, 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 Supple-
ment.
"Allocated Series Discounted Contract Balance"
means, with respect to any Contract and Series, at
any time of determination, the present value (dis-
counted 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 trans-
ferred 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 Dis-
tribution Date, the sum of (i) all amounts on depos-
it 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 Con-
tracts.
"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 determi-
nation, each Contract (i) that was charged off by
the Servicer as uncollectible in accordance with its
usual and customary practices during the six preced-
ing 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 Distri-
bution Date, as of the Cut Off Date for such Con-
tracts) 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 Dis-
count 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 Con-
tract 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 Con-
tract 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 speci-
fied 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 Distri-
bution 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 Collec-
tion Period shall be the period beginning on the
initial Cut Off Date and ending on, but not includ-
ing, 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, Recov-
eries and Expired Lease Proceeds, all as related to
amounts attributable to the Contracts in the Con-
tract 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 counter-
part (for UCC purposes) of the Contract, the origi-
nal certificate of title or other title document
with respect to the related Equipment (if applica-
ble), and otherwise such documents, if any, that the
Servicer keeps on file in accordance with its cus-
tomary 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 aggregat-
ing 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 princi-
pal 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 Enhance-
ment 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 agree-
ment, including, as applicable, schedules, subsched-
ules, supplements and amendments to a master condi-
tional sales agreement, pursuant to which specified
assets were conditionally sold to an Obligor at
specified monthly, quarterly or semi-annual pay-
ments.
"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 Supple-
ment 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 transac-
tion 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 re-
spect 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 Equip-
ment, 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 Secu-
rity (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 re-
lated 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 delin-
quencies permitted under clause (c) above);
(e) the Contract is a valid and binding
payment obligation of the Obligor and is en-
forceable 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, coun-
terclaim or defense and, to the Seller's knowl-
edge, 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 viola-
tions 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 Equip-
ment 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 Resid-
ual Investment, if any (other than a Guaranteed
Residual Investment), and any related Subordi-
nated 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 Con-
tract is secured by a fully perfected Lien of
the first priority on the related Equipment or,
in the case of any Vendor Note, related Appli-
cable Security or (B) in the case of a Contract
secured by vehicle(s) subject to state certifi-
cate of title statutes, within 30 calendar days
of the origination or acquisition of such Con-
tract 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 in-
solvency 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 as-
signment of the Contract (other than a consent
or waiver of such restriction that has been
obtained prior to the Closing Date, with re-
spect 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 irrevo-
cable and unconditional and non-cancelable or
(y) with respect to certain Leases with Lessees
that are governmental entities or municipali-
ties, 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 Ap-
plicable Purchase Agreement, the Financing
Originator that sold such Lease to the Seller
has indemnified the Seller against such cancel-
lation in an amount at least equal to the Dis-
counted 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 Equip-
ment 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(l)(e) of
the UCC;
(t) if such Contract is a Lease, the
Lessee thereunder has represented to the relat-
ed 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 gener-
al 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 Dis-
counted 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 pro-
vides for a Prepayment Amount less than the
amount calculated in accordance with the defi-
nition 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 accor-
dance 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, depart-
ment, or instrumentality of the United States
of America; and
(z) such other criteria, if any, with
respect to Additional Contracts as are speci-
fied 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 Institu-
tion or (b) a segregated trust account with the
corporate trust department of a depository institu-
tion 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 signi-
fies 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 Obliga-
tions, 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 Re-
serve Bank who hold such investments on behalf of
their Customers, (b) which, as of any date Of deter-
mination, 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 institu-
tions 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 in-
vestment 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 institu-
tion or trust company) Of such depository in-
stitution 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 Re-
quired 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 Cate-
gory 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 commer-
cial paper of which has, at the time of the
Trust's investment or contractual commitment to
invest therein, a rating of the Highest Re-
quired Investment Category granted by each
Rating Agency;
(viii) Eligible Repurchase Obligations;
and
(ix) any negotiable instruments or securi-
ties or other investments in which the invest-
ment 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 defi-
nition 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 owner-
ship by the Financing originator of the Con-
tract) and (w) thereof, and except that the
term "Obligor" shall mean End-User" in all such
criteria;
(ii) with respect to which Secondary Con-
tract 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 (includ-
ing information technology equipment, communications
equipment, commercial equipment, industrial equip-
ment, transportation equipment, construction equip-
ment, forestry equipment or other equipment) fi-
nanced or leased by an obligor pursuant to a Con-
tract 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 inter-
est 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 determina-
tion, 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 speci-
fied 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 collec-
tions 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 disposi-
tion of Equipment in excess of the difference be-
tween (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 month-
ly at the applicable Series Discount Rate.
"Existing Contracts" means the Contracts pur-
chased 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 termi-
nated 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 Liquida-
tion 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, Soft-
ware, 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 corpo-
ration, or any other direct or indirect wholly owned
subsidiary of Newcourt Credit Group USA Inc., a
Delaware corporation, which subsidiary is incorpo-
rated under the laws of the United States or of any
state thereof and principally engaged in the financ-
ing business within the United States that is speci-
fied in a Supplement.
"First Closing Date" shall mean the Closing
Date specified in the Supplement executed in connec-
tion 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 execu-
tive, legislative, judicial, regulatory or adminis-
trative 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 Stan-
dard & Poor's, A-l+ 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 in-
struments, 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 pur-
chase 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 accep-
tances 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 Inden-
ture 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 sub-
stantial 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 simi-
lar 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 receiv-
er, liquidator, assignee, custodian, trustee, se-
questrator 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 includ-
ing 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 con-
stitutes 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 Arrange-
ment.
"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 soft-
ware license agreement, pursuant to which the Origi-
nator financed the purchase or acquisition of speci-
fied 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 semiannu-
al 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 arrange-
ment, encumbrance, lien (statutory or other), equity
interest, participation interest, preference, prior-
ity or other security agreement or preferential
arrangement of any kind or nature whatsoever, in-
cluding, 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 as-
signment 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 custom-
ary procedures in connection with the repossession,
refurbishing and disposition of any related Equip-
ment upon or after the expiration or earlier termi-
nation of such Contract and other out-of-pocket
costs related to the liquidation of any such Equip-
ment, including the attempted collection of any
amount owing pursuant to such Contract if its 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 in-
cluded 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 mean-
ing specified in Section 4.3(d)(iv)(D).
"Monthly Report" shall have the meaning speci-
fied 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 mean-
ing 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 refer-
ence 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 Inden-
ture 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 main-
taining an account with such Clearing Agency (di-
rectly 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 Applica-
ble Indenture Trustee on behalf of the Holders of
Class A Notes of any Series specifying the percent-
age 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 certifi-
cate signed by any officer of Seller or the Servicer
and delivered to the Issuer Trustee or the Collater-
al 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 Pur-
chase 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 current-
ly 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:
(ii) 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 cur-
rently 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 subordi-
nated 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 subor-
dinated to the interest of the Trust in such
Equipment.
"Permitted Transaction" shall mean any transac-
tion 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 other-
wise and (i) as to which the Rating Agency Condition
is satisfied and (ii) which in the reasonable judg-
ment 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 secu-
rity 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 collec-
tive 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 termi-
nation 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 Pay-
ment Account, if any, for such Class of Notes estab-
lished 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 Subse-
quent 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 pro-
posed transactions, that each Rating Agency shall
have notified the Seller and the Issuer Trustee in
writing that such action or series of related ac-
tions or the consummation of such proposed transac-
tion 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 transac-
tions, 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 trans-
action 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 proper-
ty, 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 Agree-
ment), 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 consti-
tuting 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 outstand-
ing or Indenture Trustees on behalf of such percent-
age 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 determina-
tion 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 Regula-
tion Z and Regulation B of the Board of Governors of
the Federal Reserve System).
"Reserve Account" shall have the meaning speci-
fied 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 frac-
tion, 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 Origi-
nator or third party residual investor shall have
advanced against all or any portion of the antici-
pated 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 employ-
ee 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 Sup-
plement:
(a) As of any Distribution Date, the
weighted average ADCB of all Contracts in re-
spect 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 prod-
uct of 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 Obli-
gor 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 collective-
ly as "Charge-Offs") and (y) Recoveries re-
ceived 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 Peri-
ods; 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 relat-
ed Supplement as the "Minimum Amount"; or
(d) Any other Restricting Event specified
in any Supplement.
"Retransfer Date" shall have the meaning speci-
fied 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 speci-
fied 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 Se-
cured 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 Class-
es 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 partic-
ular Series, the percentage equivalent of a frac-
tion, 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 aggre-
gate 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 3 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 Adjust-
ed 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 immedi-
ately preceding such Distribution Date) under the
terms of all Original Contracts in the Contract Pool
as of the last day of the Collection Period immedi-
ately 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 appli-
cable 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 Collec-
tion 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 Sched-
uled 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 speci-
fied 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 liabili-
ties 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 3 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).
"Targeted 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 associ-
ation (or publicly traded partnership) taxable as a
corporation and (ii) such action will not effect the
tax characterization as debt of Notes of any out-
standing 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 Con-
tract, on any date of determination, the sum of the
Discounted Contract Balance of such Contract (uti-
lizing, 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 Con-
tract or Excess Contract was transferred to the
Trust) and any outstanding Servicer Advances there-
on.
"Transfer Event" shall have the meaning speci-
fied 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 collec-
tive reference to this Agreement and the Supple-
ments, 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 Con-
tracts and, in the case of any Vendor Note,
related Applicable Security including all pro-
ceeds 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 Agree-
ments 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 repur-
chase 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 mean-
ing 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 Con-
tract, the equipment manufacturer, dealer or dis-
tributor, 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 Agree-
ments.
"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 Sup-
plement 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 partial-
ly 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 war-
ranties of Newcourt in this Agreement and in any Supple-
ment 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 "hereun-
der" and words of similar import when used in this Agree-
ment 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 Sec-
tion, subsection, Schedule and Exhibit references con-
tained in this Agreement or any Supplement are references
to Sections, subsections, Schedules and Exhibits in or to
this Agreement or any Supplement unless otherwise speci-
fied.
Section 1.3 Compliance Certificates and Opin-
ions. 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 re-
questing 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 condi-
tions 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 examina-
tion 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 re-
spect to the matters upon which his certificate, state-
ment 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 ac-
countant 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, state-
ment 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 Per-
sons 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 consoli-
dated 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 evi-
denced by one or more instruments of substantially simi-
lar 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 some-
times referred to as the "Act" of the Indenture Trust-
ee(s) signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appoint-
ing 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 acknowl-
edgments of deeds or administer oaths that the Person
executing such instrument acknowledged to him the execu-
tion 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 partner-
ship, 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 appoint-
ing 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 acknowl-
edgments of deeds or administer oaths that the Person
executing such instrument acknowledged to him the execu-
tion 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 partner-
ship, 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 per-
centage 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 indi-
vidual capacity, shall not be deemed an Affiliate of the
Seller. In determining whether the Collateral Agent
shall be protected in relying upon any direction deliv-
ered 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 Col-
lateral 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 Certifi-
cate") 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 Collater-
al 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 Agree-
ment 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 Collat-
eral Agent;
(v) to execute, deliver and perform its obli-
gations under the Transaction Agreements to which it
is to be a party; and
(vi) to engage in other transactions, includ-
ing 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 invest-
ments, from time to time, in the Collection Account, the
Reserve Account and each Termination Account shall con-
stitute 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 limi-
tation, 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 state-
ments 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 state-
ments 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 in-
cluded in the Transferred Assets transferred hereun-
der 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 Con-
tracts, that such Contracts have been transferred to
the Trust pursuant to this Agreement and stamp the
related Contract Files or otherwise mark such Con-
tracts with a legend to the effect that such Con-
tracts have been transferred to the Trust pursuant
hereto and (B) deliver to the Issuer Trustee a
computer file or microfiche or written list contain-
ing 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 inter-
est 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 cer-
tificate 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 applica-
ble Interest Rates and all of Seller's and the Servicer's
other obligations hereunder, and agrees that this Agree-
ment shall constitute a security agreement under applica-
ble 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 Origi-
nal 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 Secu-
rity 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 pursu-
ant 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 mandat-
ed 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 Trans-
ferred 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 state-
ments 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 state-
ments 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 Collat-
eral 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 Sec-
tion 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 Trans-
ferred 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 I to this Agreement and the file or list speci-
fied in clause (B)(y) above shall be marked as Schedule 4
to this Agreement and each such Schedule is hereby incor-
porated 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 certifi-
cate 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 perfect-
ed security interest in all of the Trust Assets, and the
Trust hereby assigns the Lien in its favor granted pursu-
ant 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 Agree-
ment shall constitute a security agreement under applica-
ble 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 ]De 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 Agree-
ment 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 custo-
dian, 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 pursu-
ant 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 Sell-
er. The Collateral Agent shall not deliver any Instru-
ment 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 per-
form the other following duties with respect to the
Instruments delivered to it hereunder:
(i) Safekeeping. To segregate the Instru-
ments from all other instruments and similar docu-
ments 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 deliv-
ered 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 con-
nection 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 present-
ly 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 re-
quirements), and has obtained or will obtain all
necessary licenses and approvals, in each jurisdic-
tion 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 obliga-
tions hereunder.
(c) Due Authorization. The execution and
delivery of this Agreement and each Purchase Agree-
ment and 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 consumma-
tion 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 reason-
ably be expected to be adversely determined, and if
adversely determined, would materially and adversely
affect the performance by the Seller of its obliga-
tions 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 proce-
dures 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 gener-
ally accepted accounting principles have been pro-
vided 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 Responsi-
ble 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 Supple-
ment, 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 cove-
nant 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 state-
ments described in Section 2.1 and, in the case of
Additional Contracts on the applicable Addition
Date, the Trust shall have a first priority perfect-
ed 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 Securi-
ty, 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 appropri-
ate, 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 Re-
quirements 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 trans-
ferred Contract on the related Cut Off Date:
(i) the ADCB of all End-User Contracts with
Obligors that are governmental entities or munici-
palities 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 Guar-
anteed 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 termi-
nation 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 repre-
sentation 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 retrans-
fer 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 peri-
od, the representations and warranties in subsections
2.5(b), 6.2(b)(ix) and 2.5(c) with respect to such Con-
tract shall be made true and correct in all material
respects with respect to such Contract as if such Con-
tract 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 Addi-
tional 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 Ineligi-
ble 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 Con-
tract 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 re-
transfer the Seller shall, on the date of retransfer of
such Ineligible Contract or Excess Contract, make a
deposit in the Collection Account (for allocation pursu-
ant 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 Collater-
al 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 respect-
ing 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 Con-
tract. 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 ac-
crued 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 applica-
ble 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 fol-
lowing the Transfer Date on which such amount has been
deposited in full into the Collection Account, the Con-
tracts in the Contract Pool (or security interests there-
in) 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 instru-
ments of transfer, in each case without recourse, repre-
sentation or warranty, as shall be prepared and reason-
ably 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 Promisso-
ry 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 collec-
tion of such Contract.
(b) Security Interests. Except for the trans-
fers 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 autho-
rizations from, the Securities and Exchange Commis-
sion 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 secu-
rities or reporting requirements laws.
(e) Compliance with Law. Seller hereby agrees
to comply in all material respects with all Require-
ments 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, mort-
gage, 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 cre-
ate, incur, assume or suffer to exist any Indebted-
ness 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 exis-
tence 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, endorse-
ment (other than endorsements of negotiable instru-
ments for deposit or collection in the ordinary
course of business), agreement to purchase or repur-
chase, 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 purchas-
es 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 liquida-
tion 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 Collater-
al Agent or the Servicer.
(m) Purchase Agreements. Seller shall not
give any material consent to any Financing Origina-
tor 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 provid-
ing benefits to such officers and other employ-
ees shall be fairly allocated among such enti-
ties, and each such entity shall bear its fair
share of the salary and benefit costs associat-
ed 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 expens-
es, 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 pro-
viders 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 be-
tween 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 busi-
ness 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 accor-
dance with its Certificate of Incorporation and
observe all necessary, appropriate and custom-
ary corporate formalities, including, but not
limited to, holding all regular and special
stockholders, and directors' meetings appropri-
ate 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, re-
cords and accounts, including, but not limited
to, payroll and intercompany transaction accounts.
(vi) Take or refrain from taking, as ap-
plicable, each of the activities specified in
the "nonsubstantive consolidation" opinion of
Skadden, Arps, Slate, Meagher & Flom delivered
on the First Closing Date, upon which the con-
clusions 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 locations)
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 jurisdic-
tion in order to continue the first priority per-
fected 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 Cali-
fornia 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 relat-
ed 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 Equip-
ment 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 re-
placed 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 instru-
ments 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 represen-
tation or warranty, express or implied, with respect to
any such Equipment in connection with such sale or trans-
fer 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 Sec-
tion 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 effec-
tive interest rate under the related hedging trans-
action and (E) a recalculation of the ADCB of the
Contract Pool and of each Series as of such Determi-
nation 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 consti-
tute 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 ser-
vice, administer and enforce the Contracts in the Con-
tract Pool on behalf of the Trust and will have full
power and authority to do any and all things in connec-
tion 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 con-
tracts that it services for itself or others. The
Servicer's duties will include collection and posting of
all payments, responding to inquiries of Obligors regard-
ing 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, poli-
cies, and procedures and will have full power and author-
ity, acting alone, to do any and all things in connection
with such managing, servicing, administration, and col-
lection that it deems necessary or desirable. If the
Servicer commences a legal proceeding to enforce a De-
faulted Contract pursuant to Section 3.4 or commences or
participates in a legal proceeding (including a bankrupt-
cy proceeding) relating to or involving a Contract in the
Contract Pool, the Trust will be deemed to have automati-
cally 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 cancel-
lation, or partial or full release or discharge, and all
other notices, demands, claims, complaints, responses,
affidavits or other documents or instruments in connec-
tion 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 replace-
ment 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 (in-
cluding 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 obli-
gated and be liable to the Trust for servicing and admin-
istering 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 ap-
pointment 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 there-
for. 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 per-
formed 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 provi-
sions of Section 3.2(e), the Servicer will not be re-
quired 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 retain-
ing 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 representa-
tions 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 clear-
ly 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 Con-
tracts. 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 collec-
tion 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 provi-
sion of a Contract in accordance with its customary and
usual practices, provided, that no such waiver, modifica-
tion 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 in-
clude 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 there-
on 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 Fi-
nancing 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 con-
verting the related Equipment, to realize upon the value
of such Contract and the related Equipment) to the full-
est 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, assess-
ments and insurance premiums relating to such Contracts
or the Equipment and remit such amounts to the appropri-
ate 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 Collec-
tions 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 depos-
ited 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 appro-
priate.
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 Trans-
fer 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 Con-
tract. 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 relat-
ing 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 repos-
sessing 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 Equip-
ment 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. Addition-
ally, the Servicer will require that each Obligor main-
tain property damage liability insurance during the term
of each Contract -Ln 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 pres-
ent, 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 relat-
ing to such Equipment, will name the Collateral Agent as
an insured thereunder and will contain a breach of war-
ranty 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 follow-
ing affects the Servicer's ability to perform its obliga-
tions 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 quali-
fied 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 prov-
inces 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 quali-
fied 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 provinc-
es and states in which the performance of its obli-
gations 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 qualifica-
tion, 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 Agree-
ment 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, agree-
ment, 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, injunc-
tion, decree, determination or award of any Govern-
mental Authority applicable to the Servicer or any
of its properties.
(e) No Consent. No consent, approval, autho-
rization, order, registration, filing, qualifica-
tion, license or permit of or with any Governmental
Authority having jurisdiction over the Servicer (Dr
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 con-
stitutes a legal, valid and binding obligation of
the Servicer, enforceable against the Servicer in
accordance with its terms, except as such enforce-
ability 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 en-
forceability 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 Agree-
ment. Without limiting the generality of the pre-
ceding 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 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 re-
quired 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 obliga-
tions 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 provid-
ed 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 re-
spect 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 out-
standing 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 Sec-
tion 2.1(b)(ii)) shall remain at all times in the
possession of the Servicer.
Section 3.8 Servicing Compensation. As com-
pensation 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 Feel") 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 Collat-
eral 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 Ex-
penses 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 mainte-
nance of the Trust Accounts. The Servicer shall be
required to pay such expenses for, its own account and
shall not be entitled to and, 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 substantial-
ly in the form of Exhibit E and such other informa-
tion 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 cumula-
tive 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 Compli-
ance. 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 knowl-
edge, 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 continu-
ing (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 ac-
countants (who may also render other services to the
Servicer) to furnish to the Issuer Trustee, the Collater-
al 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 accoun-
tants 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 imma-
terial 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 any Subor-
dinated 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 indebt-
edness 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 interests in a
Note, agrees to be bound by the provisions of this Sec-
tion 3.13. Each Noteholder will cause any Note Owner
acquiring and 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 identi-
fication 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 subse-
quently 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 appoint-
ment 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 deposi-
tory 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 depos-
it 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 Supple-
ment for a Series may require the Collateral Agent to
establish and maintain, for administrative collateral
purposes only, other Series accounts for such Series
bearing a designation clearly indicating that the funds
allocated thereto 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 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 supple-
ment 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 Institu-
tion 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 invest-
ment 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 in-
vested 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 invest-
ment 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 institu-
tion 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 Pro-
cessing of such Collections, but in no event later than
the second Business Day following such Date of Process-
ing. 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 enti-
tled 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. Notwith-
standing Sections 4.3(a) and 4.3(b), the following col-
lections (or portions thereof) are not required to be
deposited into the Collection Account:
Collections on any contracts in the Con-
tract 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 instruc-
tions shall withdraw, the amounts required to be with-
drawn from the Collection Account pursuant to this Sec-
tion in order to make the following payments or alloca-
tions from the Available Amount for the related Distribu-
tion 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 Distribu-
tion 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, to-
gether with any such amounts that were due in re-
spect 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 Avail-
able 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:
i 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 Dis-
tribution Date, together with any such amounts
that accrued in respect of prior Accrual Peri-
ods 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 re-
quired to be so allocated, such remaining Se-
ries 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;
ii 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 re-
spect 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 Prin-
cipal Amount thereof;
iii 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 Se-
ries 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 Prin-
cipal Amount thereof;
iv 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 out-
standing Series (such amount, the "Minimum
Reserve Balance"), deposit to the Reserve Ac-
count 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 para-
graph of this Section 4.3(d);
v pay to the Holders of the Class C
Notes of such Series an amount equal to inter-
est 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 allo-
cated pursuant to this clause is less than the
full amount required to be so paid, such re-
maining Series Available Amount shall be allo-
cated to the Holder of each Class C Note of
such Series pro rata based on the outstanding
principal amount thereof;
vi pay to the Holders of the Class B
Notes of such Series the lesser of (i) the
Class B Principal Payment Amount for such Se-
ries of Class B Notes for such Distribution
Date and (ii) the remaining outstanding Princi-
pal 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;
vii pay to the Holders of the Class C
Notes of such Series the lesser of (i) the
Class C Principal Payment Amount for such Se-
ries of Class C Notes for such Distribution
Date and (ii) the remaining outstanding Princi-
pal 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;
viii 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;
ix pay to the Class B Noteholders of
such Series, as an additional payment of prin-
cipal of such Class B Notes an amount equal to
the product of (i) the Applicable Class Per-
centage for such Class B Notes and (ii)
the applicable Excess Spread Amount; and
x 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; pro-
vided, that if the Series Available Amount
remaining to be allocated pursuant to this
clause is less than the fall amount required to
be so allocated, such remaining Series Avail-
able Amount shall be allocated to each Hedging
Counterparty pro rata based on the amount owing
to it;
xi pay the remaining Series Available
Amount to the Holders of the Class C Notes;
provided, that no Series Available Amount shall be allo-
cated 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
Amounts, as appropriate, for such purpose only; extent
amounts on deposit in the Reserve Account to make such
payments in full for each Series in a draw on the Reserve
Account is required, such allocated to each such Series
pro rata based Account Allocation Amount. On each Dis-
tribution 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 instruc-
tions shall withdraw, the amounts required to be with-
drawn from the Collection Account pursuant to this Sec-
tion in order to make the following payments or alloca-
tions from the Available Amount for the related Distribu-
tion 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 Distribu-
tion 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 Servic-
ing 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 Avail-
able 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 repre-
sented 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 allo-
cation 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 allo-
cation 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 repre-
sented 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 Avail-
able 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, to-
gether 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 remain-
ing outstanding Principal Amount of the Class B
Notes; provided, that if the Available Amount re-
maining to be allocated pursuant to this clause is
less than the full amount required to be so allocat-
ed, such remaining Available Amount shall be allo-
cated 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 subsec-
tion 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 Se-
ries, if more than one, in proportion to the respec-
tive 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 alloca-
tions 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 In-
vestment 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 pursu-
ant to this Agreement and this Section 4.3 in order to
satisfy applicable income tax provisions requiring with-
holding of tax, if any, with respect to payments. Any
amount so withheld from a payment pursuant to this provi-
sion 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 Hedg-
ing 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 appli-
cable law or (B) otherwise cause to be pledged securi-
ties, 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 re-
ceived, 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 ar-
rangement 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 Agen-
cy, 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 termina-
tion, as the case may be.
(c) Unless an alternative arrangement pursuant
to clause (x) or (y)(i) of Section 4.4(b) is being estab-
lished, the Collateral Agent, at the direction of the
Servicer shall use its best efforts to obtain a Replace-
ment Interest Rate Hedge or Qualified Substitute Arrange-
ment 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 enforce-
ability of such Replacement Interest Rate Hedge or Quali-
fied 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 replace-
ment with such Replacement Interest Rate Hedge or Quali-
fied 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 Dis-
tribution 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 speci-
fied 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 speci-
fied period and the unpaid principal amount of Class
B Notes of any Series, the Servicer;
(e) with respect to accrued interest for any speci-
fied 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 connec-
tion with any of the foregoing payments, the
Servicer.
All payments to be made by the Collateral Agent on ac-
count 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 with-
hold its consent to any such Transfer unless such trans-
fer 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 aggre-
gate 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 Partner-
ship 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, represen-
tations 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 asso-
ciation 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 with-
held 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 Reve-
nue Code of 1986, as amended (the "Code"), includ-
ing, 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 inter-
ests 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 Inden-
ture.
(b) The Seller (i) shall at all times own (x)
Class B Notes in an amount not less than 1% of the Aggre-
gate 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-Trans-
ferrable Notes").
In addition, by accepting the terms and bene-
fits 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 Con-
tracts. (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 substan-
tially 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 En-
hancement 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 Con-
tracts as of the applicable Additional Cut Off Date.
(b) The obligation of the Issuer Trustee and
the Collateral Agent to execute and deliver the Supple-
ment related to any New Issuance (as required by clause
(ii) below) is subject to the satisfaction of the follow-
ing conditions:
(i) on or before the tenth Business Day imme-
diately preceding the date upon which the New Issu-
ance 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 Princi-
pal Amount (or the method of calculating such Ini-
tial Principal Amount), (2) its Interest Rate (or
the method of allocating interest payments or other
cash flows to such Series), if any, (3) the Enhance-
ment 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 Con-
tracts, the identity of the Hedging Count Party and
the effective interest rate under the related hedg-
ing 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 Sup-
plement, satisfying the criteria specified in sub-
section 6.2(c) and otherwise in form satisfactory to
the Issuer Trustee and the Collateral Agent, execut-
ed by each party to this Agreement, (y) a Subsequent
Purchase Agreement referencing the Additional Con-
tracts and (z) the Note Documents for such New
Issuance, each satisfying the requirements of Sec-
tion 11.l(h) hereof and otherwise in form satisfac-
tory 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 Certifi-
cate, 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 speci-
fied 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 inter-
ests 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 corpo-
ration, (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, Sched-
ule 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 Con-
tracts 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 Addition-
al 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 Addi-
tional Contracts and the related transfer, (x) each
Additional Contract is, as of the Additional Cut Off
Date, an Eligible Contracts, (y) no selection proce-
dures reasonably believed by the Seller to be mate-
rially 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 there-
in 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 Issu-
ance and related Addition, than the Aggregate Prin-
cipal 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 continu-
ing; 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 limita-
tion: (i) its name or designation, (ii) an Initial Prin-
cipal 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 ac-
counts, (x) the terms of any Additional Credit Enhance-
ment with respect to such Series, (xi) the Additional
Credit Enhancement providers), if applicable, (xii) the
terms on which the Notes of such Series may be repur-
chased 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 proper-
ties 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, con-
veyance 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 trans-
fer 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 refrain-
ing from the taking of any action pursuant to this Agree-
ment 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 perfor-
mance of duties or by reason of willful misconduct here-
under. 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 gener-
al 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 Re-
vised 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 indi-
rectly, 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 proper-
ties and assets of the Servicer substantially as an
entirety shall be if the Servicer is not the surviv-
ing 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 deliv-
ered 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, merg-
er, 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 supplemen-
tal agreement is legal, valid and binding with
respect to the Servicer;
(iii) the Servicer shall have delivered notice
of such consolidation, merger, conveyance or trans-
fer 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 Collater-
al 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 perfor-
mance 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 aris-
ing hereunder.
Section 8.4 Indemnification of the Seller, the
Trust, the Issuer Trustee, the Collateral Agent and each
Indenture Trustee. The Servicer shall indemnity d harm-
less 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 Col-
lateral Agent for which the Servicer is responsible
pursuant to this Agreement, including those arising from
acts or omissions of the Servicer pursuant to this Agree-
ment, 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 indi-
rectly, 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 limita-
tion 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 fran-
chise 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 Collat-
eral Agent is unable within 120 days of the date of such
determination to appoint a Successor Servicer, the Col-
lateral 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 docu-
mentation, 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 delega-
tion 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 prin-
cipal 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 reassign-
ment of Ineligible Contracts which were the subject
of a breach of representation or warranty as provid-
ed 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, howev-
er, that an Event of Default pursuant to this Sec-
tion 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 Compa-
ny 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 speci-
fied 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 Col-
lateral 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 De-
fault, 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 immedi-
ately 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 De-
fault delivered pursuant to a Note Document. The Collat-
eral 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 Occur-
rence 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 Respon-
sible 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 Newspa-
per 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 Collat-
eral 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 Col-
lateral 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 mutual-
ly 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 Con-
tracts 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 prior-
ity 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 enti-
tled 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 Agree-
ment; 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 Applica-
ble 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 certifica-
tion 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 contin-
ues 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 incorrect-
ness 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 affect-
ed 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 Con-
trolling 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 Col-
lateral Agent and such Successor Servicer in effecting
the termination of the responsibilities and rights of the
Servicer to conduct servicing hereunder, including with-
out 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 re-
ceived 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 trans-
fer to the Successor Servicer all other records, corre-
spondence 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 subsec-
tions, 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 disor-
der, 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 obli-
gations. The Servicer shall immediately notify the
Collateral Agent in writing of any Servicer Default.
Section 10.2 Collateral Agent to Act; Appoint-
ment 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 servic-
ing functions under this Agreement until the date speci-
fied 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 speci-
fied 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 as-
sumption 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 retrans-
fer 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 obli-
gations, 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 ap-
point 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 responsibili-
ties, 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 provi-
sions 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 Collec-
tions, 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 accom-
plish 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 Con-
tracts 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 conse-
quences, 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 cove-
nants 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 Trust-
ee 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 Trust-
ee 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 finan-
cial 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 custom-
ary 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 certifi-
cates and documents to the Issuer Trustee for the Issuer
Trustee's execution thereof. In addition to the forego-
ing, 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 immu-
nities 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 coun-
sel 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 here-
under 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 liabili-
ties 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 reason-
ably 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 respon-
sibility 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 Trust-
ee makes no representations as to the validity or suffi-
ciency of this Agreement, any Note Document or any Sup-
plement 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 responsi-
bility 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 capaci-
ty 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 Trust-
ee upon its request for all reasonable expenses, dis-
bursements 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, dis-
bursement or advance as may arise from its gross negli-
gence 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 liquida-
tion 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 subsec-
tion 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 supervi-
sion 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 writ-
ten 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, with-
out 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 appoint-
ment as provided in this Section 11.8 unless at the time
of such acceptance such successor trustee shall be eligi-
ble under the provisions of Section 11.6.
(c) upon acceptance of appointment by a suc-
cessor 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 Subordi-
nated 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 Trust-
ee, shall be the successor of the Issuer Trustee hereun-
der, 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 juris-
diction 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 per-
formed 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 jurisdic-
tion) 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 instru-
ment appointing any separate trustee or co-trustee shall
refer to this Agreement and the conditions of this Arti-
cle 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 autho-
rized 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 corpora-
tion 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, en-
forceable against the Issuer Trustee in accordance
with its terms, except as such enforceability may be
limited by Insolvency Laws and except as such en-
forceability 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 ex-
pense of Seller.
Section 11.15 Not Acting in Individual Capaci-
ty. 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 indi-
vidual capacity and all Persons having any claim against
the Issuer Trustee by reason of the transactions contem-
plated 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 specifi-
cally 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 exer-
cise 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 cus-
tomarily exercised by a servicer with respect to compara-
ble 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 occur-
rence 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 Supple-
ment, 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 re-
frain 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 Agree-
ment 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 con-
formity of any such instrument to the applicable require-
ments 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 person-
ally liable for an error of judgment made in good
faith by a Responsible Officer or Responsible Offi-
cers 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 person-
ally liable with respect to any action taken, suf-
fered 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 Collat-
eral 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 Hold-
ers 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 finan-
cial 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 per-
form, or be responsible for the manner of performance of,
any of the obligations of the Servicer under this Agree-
ment.
(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 Per-
son, 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 instruc-
tions 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 re-
cording 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 Sec-
tion 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 here-
under 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 liabili-
ties which may be incurred therein or thereby;
provided, however, that nothing contained herein
shall relieve the Collateral Agent of the obliga-
tions, 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 Col-
lateral Agent, pursuant to Section 10.1, in effect-
ing the termination of the responsibilities and
rights of the Servicer to conduct servicing follow-
ing 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, con-
sent, order, approval, bond or other paper or docu-
ment, 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 investi-
gation 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 ap-
pointed 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 examina-
tion of any documents or records related to the
Contracts in the Contract Pool or the related Equip-
ment 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 Collater-
al 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 Trust-
ee 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, sub-
ject 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 applica-
ble 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 liquida-
tion 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 busi-
ness 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 supervi-
sion 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 eligi-
ble 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 Collat-
eral 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 deliv-
ered 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 Col-
lateral Agent so removed and one copy to the successor
collateral agent.
(c) Any resignation or removal of the Collat-
eral 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 succes-
sor 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 cer-
tainly 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 suc-
cessor 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 Col-
lateral 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 Collater-
al 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 per-
formed 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 col-
lateral 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-col-
lateral 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, proper-
ties, rights, remedies and trusts shall vest in and be
exercised by the Collateral Agent, to the extent permit-
ted 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 recov-
ery 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 contin-
uing, 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 other-
wise, whether for the specific performance of any cove-
nant or agreement contained in this Agreement or any
Supplement or in aid of the execution of any power grant-
ed in this Agreement or any Supplement or for the en-
forcement 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 con-
ferred 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 Responsi-
ble 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 accor-
dance 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 con-
tained herein and in the Notes. Except as set forth in
Section 12.13, the Collateral Agent makes no representa-
tions 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 affir-
mative investigation as to the occurrence of any condi-
tion 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 con-
tinuation 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 Ex-
change 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 Sell-
er, 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 Trust-
ees on behalf of the Noteholders as hereafter set forth)
shall terminate, except with respect to the duties de-
scribed 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 depos-
ited in the Note Payment Accounts sufficient to pay the
Aggregate Principal Amount of all Series plus any inter-
est 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 accor-
dance 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 dis-
solve and terminate the Trust. The occurrence of an
Insolvency Event or the withdrawal, dissolution, termina-
tion, 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 Trust-
ee, 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 Sec-
tion 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 rea-
sonable terms (which shall include the solicitation of
competitive bids from Persons who are not Affiliates of
the Seller). The proceeds received upon the sale, dispo-
sition or other liquidation of such assets shall be
deposited into the Collection Account and shall be dis-
tributed 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 Prin-
cipal 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 Princi-
pal 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 respec-
tive holders of the Class A Notes and Class B Notes on
such Distribution Date. Following any redemption, nei-
ther 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 Distribu-
tion 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 liqui-
date, in a commercially reasonable manner and on commer-
cially reasonable terms (which shall include the solici-
tation of competitive bids from Persons who are not
Affiliates of Seller), within 60 days of such Determina-
tion 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 outstand-
ing 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 Invest-
ment 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 Earn-
ings) on deposit in the Reserve Account and (iii) aggre-
gate 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 consumma-
tion of such sale, disposition or liquidation by giving
notice of the exercise thereof to the Servicer, to pur-
chase 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 Con-
tracts, or (ii) the highest price offered therefor pursu-
ant to such proposed sale, disposition or other liquida-
tion. The proceeds received upon the sale, disposition
or other liquidation of such Contracts shall be distrib-
uted 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, disposi-
tion 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 Institu-
tion (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 Termina-
tion 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 tb Section 13.1, the
Issuer Trustee, on behalf of the Trust, and the Collater-
al 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 Collater-
al 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 war-
ranty, 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 connec-
tion 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 Agree-
ment, 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 con-
sent 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 Princi-
pal 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 Percent-
age", the "Controlling Party", the "Class A Princi-
pal 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 Trust-
ee 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 irrevoca-
bly paid in full or (y) any Subordinated Noteholder in
respect of any Subordinated Note held by such Subordinat-
ed 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 reason-
able 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 pur-
poses 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 require-
ments of the Trust Indenture Act as then in effect.
(i) Upon the execution of any agreement sup-
plemental 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 Collat-
eral 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 proper-
ty 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 follow-
ing 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 state-
ment filed in accordance with paragraph (a) above seri-
ously 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 continua-
tion 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 Con-
tract 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 amend-
ments pursuant to subsection 14.1(a) an Opinion of Coun-
sel 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 part-
ners 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 Agree-
ment pursuant to any provision hereof.
SECTION 14.4 GOVERNING LAW. THIS AGREEMENTS
SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF DELA-
WARE, WITHOUT REGARD TO THE PROVISIONS TIME OF 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 (includ-
ing 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 Corpo-
ration, 10 Almaden Boulevard, Suite 500, San Jose, Cali-
fornia 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, Hart-
ford, Connecticut 06115, Attn: Corporate Trust Adminis-
tration, (d) in the case of the Issuer Trustee, to Chemi-
cal Bank Delaware, 1201 Market Street, Wilmington, Dela-
ware, 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 &
Poors, 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 whatsoev-
er 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 cooper-
ate 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 Agree-
ment 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 whatso-
ever, 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 here-
under, 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 exer-
cise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exhaus-
tive 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) Wherev-
er 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, direc-
tion, 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 registra-
tion 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, direc-
tion, 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 suffi-
cient for any purpose of this Agreement or any Supplement
and conclusive in favor of the Issuer Trustee, the Col-
lateral 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 relat-
ing to the subject matter hereof, and all prior under-
standings, written or oral, are superseded by this Agree-
ment. 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 cove-
nants 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 stop, 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 juris-
diction 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 sub-
stantially 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 other-
wise affect the meaning or interpretation of any provi-
sion 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 Keller
Title: Vice President
CHEMICAL BANK DELAWARE,
as Issuer Trustee
By:/s/ John J. Cashin
Title:
NEWCOURT RECEIVABLES CORPORATION,
as Seller,
NEWCOURT CREDIT GROUP INC.
as Servicer,
FLEET NATIONAL BANK,
as Collateral Agent,
and
CHEMICAL BANK DELAWARE,
as Issuer Trustee
SERIES 1996-1 SUPPLEMENT
Dated as of April 15, 1996
to
POOLING, COLLATERAL AGENCY AND SERVICING AGREEMENT
Dated as of April 15, 1996
SERIES 1996-1 SUPPLEMENT (as amended or supple-
mented from time to time, the "Supplement") to the Pool-
ing, 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 April 15, 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 bank-
ing association, as Collateral Agent (the "Collateral
Agent"), (iv) CHEMICAL BANK DELAWARE, a banking corpora-
tion 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 "In-
denture Trustee") under the Indenture.
SECTION 1. Series 1996-1. The initial
Series of Notes to be issued pursuant to the Indenture
shall be known as the "Series 1996-1 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 refer-
ences herein shalt 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 de-
fined herein are used herein as defined in the Agreement.
(d) Each capitalized term defined herein shall
relate only to the Series 1996-1 Notes and no other
Series of Notes issued by the Issuer.
"Class A Noteholder" shall mean the Noteholder
of any Class A Note.
"Class A Notes" shall be a collective reference
to the Series 1996-1 Class A notes issued pursuant
to the Indenture.
"Class B Noteholder" shall mean the Noteholder
of any Class B Note.
"Class B Notes" shall be a collective reference
to the Series 1996-1 Class B notes issued pursuant
to the Class B Note Purchase Agreement, dated April
10, 1996.
"Class C Noteholder" shall mean the Noteholder
of any Class C Note.
"Class C Noteholder" shall be a collective
reference to the Series 1996-1 Class B notes issued
pursuant to the Class C Note Purchase Agreement,
dated April 10, 1996, among the Seller, the Servicer
and the purchasers named therein.
"Class C Noteholder" shall mean the Noteholder
of any Class C Note.
"Class C Notes" means the Securities and Ex-
change Commission.
"Cutoff Date" shall mean February 29, 1996.
"Dollars" and "$" means lawful currency of the
United States of America.
"Effective Date" shall have the meaning speci-
fied in Section 7.
"Event of Default" shall have the meaning
specified in the Agreement.
"Excess Spread Amount" shall mean, with respect
to Class A and Class B Notes, on each Distribution
Date, an amount equal to the product of (i) .60%,
(ii) 1/12 and (iii) the Series ADCB, which shall be
available for payment of principal on the Class A
and Class B Notes, in accordance with Article IV of
the Agreement.
"Exchange Act" shall mean the Exchange Act of
1934, as amended or supplemented from time to time.
"Indenture" shall mean the Class A Trust Inden-
ture dated as of April 15, 1996 among, the Issuer,
the Seller, the Collateral Agent and the Indenture
Trustee.
"Indenture Trustee" shall mean Fleet National
Bank, a national banking association, and any suc-
cessor indenture trustee appointed under the Inden-
ture.
"Initial Class A Principal Amount" shall mean
$119,656,814.
"Initial Class B Principal Amount" shall mean
$5,202,470.
"Initial Class C Principal Amount" shall mean
$5,202,470.
"Initial Principal Amount" shall mean the sum
of the Initial Class A Principal Amount, the Initial
Class B Principal Amount and the Initial Class C
Principal Amount.
"Initial Purchaser" shall mean, with respect to
any Class B Notes or Class C Notes, as the case may
be, the parties set forth on Schedule 1 hereto.
"Institutional Investor" means (a) any Initial
Purchaser of a Class B Note or Class C Note, (b) any
Holder of a Class B Note or Class C Note holding
more than 50% of the aggregate principal amount of
the Class B Notes or 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 deal-
er, or any other similar financial institution or
entity, regardless of legal form.
"Issuer"shall mean Newcourt Receivables Asset
Trust, a Delaware business trust.
"Maturity Date" shall mean, in the case of the
Class B Notes, August 20, 2003 and, in the case of
the Class C Notes, August 20, 2003.
"Minimum Amount" shall mean $2,925,889.
"Note Event of Default" shall have meaning
assigned to it in Section 10.5(a).
"Note Register" shall have the meaning assigned
to it in Section 5.4.
"Original Contracts" shall have the meaning
assigned to it in Section 3(a).
"Principal Amount" shall mean, on any date of
determination, the sum of the Class A Aggregate
Principal Amount, the Class B Aggregate Principal
Amount and the Class C Aggregate Principal Amount on
such date of determination.
"Rating Agency" shall mean Standard & Poor's
Rating Group.
"Record Date" shalt mean, with respect to any
Distribution Date, the close of business on the last
Business Day of the preceding month.
"Required Holders" shall mean (1) 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 hold-
ing 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 1996-1" shall mean the Series 1996-1
Notes issued by Newcourt Receivables Asset Trust.
"Series Transaction Agreements" shall have the
meaning assigned to it in Section 7(a).
SECTION 3. Transfer of Trust Assets. (a)
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 Original Contracts set forth
on Schedule 2 attached hereto (the "Original Contracts"),
the related Equipment and any Applicable Security,
(b) 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 Origi-
nal Contracts set forth on Schedule 2 attached hereto,
the related Equipment and any Applicable Security to
secure the unpaid Principal Amount of the Series 1996-1
Notes issued and to be issued from time to time under the
Series 1996-1 Indenture 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 Appli-
cation from the Trust Receipts.
4.1 Distribution Prior to Event of Default or
Restricting Event. Each payment received by the Collat-
eral Agent for the Class B Noteholders or the 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 Termi-
nation 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
Note; and Class B Notes of all Series as of their respec-
tive 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. The
redemption price will be equal to the sum of the out-
standing 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 Class B
Notes, the Collateral Agent will distribute the amount so
received to the Holders of the Class B Notes on such
Distribution Date. Following any redemption, the Class A
Noteholders and the Class B Noteholders will have no
further right with respect to the Trust Assets.
(b) The Principal Amount of the Class B Notes
and the Class C Notes shall be due and payable no later
than the Maturity Date with respect to Series 1996-1
Class B Notes and Series 1996-1 Class C Notes, respec-
tively. Amounts received by the Collateral Agent on
account of any such sale, disposition or other liquida-
tion and available for distribution to the Class B
Noteholders or the Class C Noteholders as provided in
Section 13.2(b) of the Agreement shall be distributed to
the Holders of such Class B Notes or Class C Notes in
final payment of such Class B Notes or Class C Notes.
(c) As provided in Section 13.1 of the Agree-
ment, 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
Class B Noteholders and the Class C Noteholders as pro-
vided therein shall be distributed to the Holders of the
Class B Notes and Class Notes, respectively, in final
payment of the Class B Notes and Class C Notes.
(d) The amount deposited pursuant to subsec-
tions 4.2(a), 4.2(b) and 4.2,(c) shall be paid to the
Class B Noteholders and Class C Noteholders in the manner
provided in Section 5.9.
(e) Written notice of any termination, speci-
fying the Distribution Date upon which the Class B
Noteholders or Class C Noteholders may surrender their
Class B Notes or 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 Class B Noteholders or 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 Class B Notes
and Class C Notes will be made upon presentation and
surrender of the Class B Notes or 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 Class B Notes or Class 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 and the Collateral
Agent shall pay such funds to the appropriate Noteholders
upon surrender of their Notes. In the event that all of
the Class B Noteholders or Class C Noteholders shall not
surrender their Class B Notes and Class C Notes, respec-
tively, for cancellation within six months after the date
specified in the above-mentioned written notice, the
Collateral Agent shall (live a second written notice to
the remaining Class B Noteholders or Class C Noteholders
to surrender their Class B Notes for cancellation and
receive the final distribution with respect thereto. If
within one year after the second notice all the Class B
Notes or Class C Notes shall not have been surrendered
for cancellation, the Collateral Agent may take appropri-
ate steps, or may appoint an agent to take appropriate
steps, to contact the remaining Class B Noteholders or
Class C Noteholders concerning surrender of their Class B
Notes or Class C Notes, and the cost thereof shall be
paid out of the funds in the Collection Account held for
the benefit of such Class B Noteholders or 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 Class B
Noteholders and 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 Collat-
eral Agent for the Class B Noteholders or 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 Class B Note or Class
C Note and not applied but remaining unclaimed for two
years after the date upon which such principal or inter-
est 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 Class B Note or 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 Class B
Noteholder or 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 Informa-
tion 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 calculate or recalculate 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 further
protected in relying on written notice provided by any of
the following Persons with respect to any of the follow-
ing 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 Class B Notes or 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 1996-1 Notes.
5.1 The Notes. (a) The Series 1996-1 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 1996-1 Notes out of the
Trust Assets, in accordance with Article IV of the Agree-
ment.
(b) The Series 1996-1 Notes shall consist of
the Class A Notes, the Class B Notes and the Class C
Notes.
(c) Except as set forth in Section 5.4, the
Class B Notes and Class C Notes shall be issuable in
minimum denominations of $500,000 and $500,000, respec-
tively, and any amount in excess thereof, and shall not
be subdivided.
5.2 Form, Denomination and Dating. The Class
B Notes and Class C Notes and the Issuer's form of cer-
tificate of authentication to appear on the Class B Notes
and Class C Notes shall each be substantially in the form
of (i) in the case of Class B Notes, Exhibit A hereto,
(ii) in the case of Class C Notes, Exhibit B hereto and
(iii) in the case of the Issuer's certificate of authen-
tication for such Class B Notes and Class C Notes, Exhib-
it C hereto. The Class B Notes and 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 there-
on, as may be required to comply with law, the rules of
any securities market in which such Class B Notes or
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 here-
with, be prescribed by the Issuer or by the Responsible
Officer of the Issuer Trustee executing such Class B
Notes or Class C Notes, such determination by such offi-
cers to be evidenced by his signing such Class B Notes or
Class C Notes on behalf of the Issuer. The terms of the
Class B Notes and Class C Notes set forth in Exhibit A
and Exhibit B, respectively, are part of the terms of
this Supplement.
The definitive Class B Notes and the definitive
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 Class
B Notes or the Class C Notes may be admitted to trading,
all as determined by the Responsible Officer of the
Issuer Trustee executing such Class B Notes or 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
Class B Notes and 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 Trust-
ee. Any such signature may be a facsimile and may be
imprinted or otherwise reproduced. Class B Notes and
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
Class B Notes or Class C Notes or did not hold such
offices at the respective dates of such Class B Notes or
Class C Notes. No Class B Notes or Class C Notes shall
be issued hereunder except those provided for in Section
5.3(b) hereof and any Class B Notes or, Class C Notes
issued in exchange or replacement therefor pursuant to
the terms of this Supplement. No Class B Note or Class C
Note shall be secured by or entitled to any benefit under
this Supplement or the Agreement or be valid or obligato-
ry for any purpose, unless there appears on such Class B
Note or 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 Class B Note or Class C Note shall
be conclusive evidence, and the only evidence, that such
Class B Note or Class C Note has been duly authenticated
and delivered hereunder.
(b) On the Closing Date, the Issuer shall
authenticate and deliver (i) Class B Notes for original
issue in an aggregate principal amount of $5,201,470, and
(ii) Class C Notes for original issue in an aggregate
principal amount of $5,202,470 each upon the written
order of the Seller signed by one of its Responsible
Officers. Such order shall specify the amount of the
Class B Notes and Class C Notes to be authenticated and
the date on which the original issue of such Class B
Notes and Class C Notes is to be authenticated and shall
further provide instructions concerning registration,
amounts for each Class B Noteholder and Class C
Noteholder and delivery.
(c) The aggregate principal amount of Class B
Notes outstanding at any time may not exceed $5,20.1,470
except as provided in Section 5.5 hereof. The Class B
Notes outstanding at any time shall be treated as a
single Class of Class B Notes for purposes of this Sup-
plement.
(d) The aggregate principal amount of Class C
Notes outstanding at any time may not exceed $5,201,470,
except as provided in Section 5.5 hereof. The Class C
Notes outstanding at any time shall be treated as a
single Class of Class C Notes for purposes of this Sup-
plement.
(e) The Issuer or the Issuer Trustee may
appoint Chemical Bank or another authenticating agent
reasonably acceptable to the Collateral Agent to authen-
ticate the Class B Notes and c lass C Notes. Unless
limited by the terms of such appointment, an authenticat-
ing agent may authenticate Class B Notes and Class C
Notes whenever the Issuer Trustee may do so. Each refer-
ence in this Supplement to authentication by the Issuer
Trustee includes authentication by such agent. An au-
thenticating agent has the same rights as any Note Regis-
trar or agent for service of notices and demands. The
Issuer Trustee hereby appoints Chemical Bank, New York,
as its authenticating agent for the Class B Notes and the
Class C Notes.
5.4 Registration, Transfer and Exchange of
Class B Notes and 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 Class B
Notes and Class C Notes and the registration of transfers
of such Class B Notes and Class C Notes. The Note Regis-
ter shall be kept at the principal corporate trust office
of Chemical Bank, and Chemical Bank is hereby appointed
"Note Registrar" for the purpose of registering Class B
Notes and Class C Notes and transfers of Class B Notes
and Class C Notes as herein provided. The Issuer Trustee
shall give to any Holder of a Class B Note or a Class C
Note promptly upon request therefor, a complete and
correct copy of the names and addresses of all registered
Holders of Class B Notes or Class C Notes, respectively.
Upon surrender for registration of transfer of any Class
B Note or 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
(Class B Notes or Class C Notes of a like aggregate
principal amount. At the option of any Noteholder, its
Class B Notes or Class C Notes may be exchanged for other
Class B Notes or Class C Notes of any authorized denomi-
nations and of a like aggregate principal amount, upon
surrender of the Class B Notes or Class C Notes, as
applicable, to be exchanged at the principal corporate
trust office of the Note Registrar. Whenever any Class B
Note or Class C Note is so surrendered for exchange, the
Issuer shall execute and deliver the Class B Notes or the
Class C Notes, which the Noteholder making, the exchange
is entitled to receive. Each such new Class B Note or
Class C Note shall be dated its date of authentication
and shall be entitled to such interest (or portion there-
of) as shall have been payable on the surrendered (Class
B Note or 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 Class B Notes or Class
Notes. Class B Notes and Class C shall not be trans-
ferred 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 Class B
Notes or Class C Notes, one Class B Note or Class C Note
may be in a denomination of less than $500,000.
(b) All Class B Notes or Class C Notes issued
upon any registration of transfer or exchange of Class B
Notes or 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 Class B
Notes or Class C Notes surrendered upon such registration
of transfer or exchange. Every Class B Note or Class C
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 Regis-
trar shall not be required to register the transfer of or
exchange any surrendered Class B Notes or Class C Notes
as above the five day period preceding the due date of
any payment on such Class B Notes or Class C Notes. The
Note Registrar shall rot be required to exchange or
register a transfer of any Class B Note for a period of
15 days immediately preceding the first mailing of a
notice of redemption of Class B Notes. The Note Regis-
trar shall not be required to exchange or resister a
transfer of any Class C Note for a period of 15 days
immediately preceding the first mailing of a notice of
redemption of Class C Notes. The Issuer Trustee or the
Note Registrar shall the Seller notice of any registra-
tion of transfer of a Class B Note or 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 Class B
Noteholder and each Class C Noteholder, as set forth in
the Note Register maintained by the Note Registrar in
Section 5.4(a) hereof, and to communicate with one or
more of such as Noteholders directly. Each and every
Noteholder, by receiving and holding a Class B Note or
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 sen-
tence, regardless of the source from which such informa-
tion was derived, and that none of such Persons shall be
held accountable by reason of mailing any material pursu-
ant to a request under the immediately preceding sen-
tence.
5.5 Mutilated, Destroyed, Lost or Stolen
Notes. (a) Upon notice to the Note Registrar of the
mutilation, destruction, loss or theft of any, Class B
Note or 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 Class B Note or Class C Note has been
acquired by a bona fide purchaser), a new Class B Note or
Class C Note in the same principal amount, dated the date
of such Class B Note or Class C Note and designated as
issued under this Supplement. If the Class B Note or
Class C Note being replaced has become mutilated, such
Class B Note or 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
Class B Note or 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 Class B Note or Class C Note and of the ownership
thereof.
(b) Each substitute Class B Note and Class C
Note issued pursuant to the provisions of this Section
5.5 by virtue of the fact that any Class B Note or Class
C Note is apparently destroyed, lost or stolen shall
constitute in original additional contractual obligation
of the Issuer, whether or not the apparently destroyed,
lost or stolen Class B Note or 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 Class B Notes or Class C Notes
duly authenticated and delivered hereunder. All Class B
Notes and 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 Class B Notes or
Class C Notes and shall preclude any and all other rights
or remedies notwithstanding any law or statute existing,
or hereafter enacted to the contract with respect to the
replacement or payment of negotiable instruments or other
securities without their surrender.
5.6 Temporary Notes. Until definitive Class B
Notes or Class C Notes are ready for delivery, the Issuer
Trustee, on behalf of the Issuer, shall authenticate and
deliver temporary Class B Notes and Class C Notes.
Temporary Class B Notes and Class C Notes shall be sub-
stantially in the form of definitive Class B Notes and
Class C Notes, respectively, but may have variations that
the Seller considers appropriate for temporary Class B
Notes and Class C Notes. Without unreasonable delay.,
the Issuer Trustee, on behalf of the Issuer, shall exe-
cute and furnish definitive Class B Notes and Class C
Notes and deliver them in exchange for temporary Class B
Notes and Class C Notes. Until such exchange, temporary
Class B Notes and Class C Notes shall be entitled to the
same rights, benefits and privileges as definitive Class
B Notes and Class C Notes.
5.7 Priority of Payments. (a) No payment or
distribution shall be made on or in respect of any Class
B Notes or Class C Notes, including any payment of dis-
tribution 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 provid-
ed in Section 4 hereof and Articles IV and XIII of the
Agreement.
(b) In the event that Class B Noteholders or
Class C Noteholders shall receive any payment or distri-
bution on or in respect of any Class B Notes or Class C
Notes which such Noteholders are not entitled to receive
under this Section 5.7 or under Article IV of the Agree-
ment, such Noteholders will hold any amount so received
in trust, in the case of Class B Notes, for the Holders
of the Class A Notes of all Series and, in the case of
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, Class B Noteholders
and Class C Noteholders will not "bid-in" or purchase any
part of such Trust Assets with any Class B Notes or Class
Notes unless prior to or contemporaneously with any such
purchase (i) by such 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 shill be acceptable to the Holders of such
obligations or (ii) by such 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 Class B Noteholders and the
Issuer and the Class C Noteholders, the obligations of
the Issuer to pay such Class B Noteholders or Class C
Noteholders the amounts owing under the Class B Notes or
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 Class B Notes,
amounts, if any, on deposit in the Reserve Account for
the 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 Collat-
eral Agent, as applicable, to make payments in accordance
with the terms hereof. Each Class B Noteholder, by its
acceptance of a Class B Note, agrees that it will took
solely to the income and proceeds from the Trust Assets,
in the case of payments of interest on the Class B Notes,
and to amounts on deposit in the Reserve Account exclud-
ing 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 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,
subjects to the terms and conditions thereof, remit all
amounts received by it for distribution to the Class B
Noteholders and Class C Noteholders to the Class B
Noteholders and Class C Noteholders in immediately avail-
able funds, such payment to be made in Dollars to the
account designated by each such Class B Noteholder and
Class C Noteholder at a Bank which is a member of the
Federal Reserve System, prior to the close of business in
New York 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 an Class B Noteholder
or Class C Noteholder as it appears on the Note Register.
In the event the Collateral Agent shall fall 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 Col-
lateral Agent, in its individual capacity and not as the
Collateral Agent, agrees to compensate the Class B
Noteholders and 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 Class B
Noteholders or Class C Noteholders on the due date there-
of, interest shall no longer accrue on or in respect of
any Class B Note or Class C Note on the amount so paid,
to the extent such amount is payable to the Class B
Noteholders or Class C Noteholders in reduction of the
Principal Amount of the Class B Notes or the Class C
Notes respectively.
(b) Prior to the due presentment for registra-
tion of transfer of any Class B Note or 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 Class B Note or Class C Note is registered on
the Note Register as the absolute owner of such Class B
Note or Class C Note for the purpose of receiving payment
of all amounts payable with respect to such Class B Note
or Class C Note for the purpose of receiving payment of
all amounts payable with respect to such Class B Note or
Class C Note and for all other purposes whether or not
such Class B Note or Class 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 Class B
Notes, the 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 exten-
sion.
5.10 Delivery. (a) The Indenture Trustee
shall deliver the duly authenticated Series 1996-1 Class
A Notes in accordance with Section 2.2(b) of the Inden-
ture.
(b) On the Closing Date, the Issuer shall,
pursuant to Section 5.3(b) hereof, issue and deliver (i)
Class B Notes in an aggregate denomination equal to the
Initial Class B Principal Amount and (ii) Class C Notes
in an aggregate denomination equal to the Initial Class C
Principal Amount.
5.11 Interest. Interest shall accrue in re-
spect of the outstanding Municipal Amount of the Series
1996-1 Notes as of the first day of each Accrual Period
from and including the first day of each Accrual Period
from and including the first day of such Accrual Period
to and including the las day of such Accrual Period at a
rate of 6.79% per annum, in the case of Class A Notes,
7.53% per annum, in the case of Class B Notes, and 9.05%
per annum, in the case of Class C Notes. In the case of
Class B Notes and Class C Notes, the Issuer will pay
interest on overdue principal at the rate of 8.53% per
annum and 10.05% per annum, respectively; it will pay
interest on overdue installments of interest (without
regard to any applicable grace periods) at the rate of
8.53% per annum and 10.05% per annum, respectively, to
the extent lawful.
Interest accrued during each Accrual Period on
the Class A Notes and 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 Class A Notes or 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 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 Class C Notes shall be payable solely to the
extent of Available Amounts therefor (after giving effect
to distributions of Available Amounts on such Distribu-
tion Date in accordance with the priorities specified in
Section 4.3(e) of the Agreement). If any interest that
accrues on the 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 fol-
lowing the occurrence of an Event of Default and arising
during the continuance of a Restricting Event, any such
unpaid interest on the 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 Interests 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 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
1996-1 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 1996-1
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-
1 Class A Noteholder, in accordance with Section
3.10(a) of the Agreement, and the Collateral Agent
shall forward to each Class B and Class C Noteholder
and each Rating Agency, a Monthly Report substan-
tially in the form of Exhibit D to this Supplement
prepared by the Servicer and delivered to the Inden-
ture Trustee and the Collateral Agent 5 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 sub-
clauses (i), (ii) and (iii) below, shall be stated
on the basis of an original principal amount of
$1,000 per Series 1996-1 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 1996-1 Note):
(i) the total amount distributed;
(ii) the amount of such distribution allo-
cable to principal on the Series
1996-1 Notes;
(iii) the amount of such distribution
allocable to interest on the
Series 19961 Notes;
(iv) the amount, if any, by which the
unpaid principal amount of the Notes
of each Class in the Series 1996-1
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' Fax 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 Class A Noteholder, a statement prepared by
the Servicer and delivered to the Indenture Trustee
on or before January 31 of each calendar year con-
taining the information required to be contained in
the Monthly Report to Series 1996-1 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 Class A Noteholder, together with such other
customary information (consistent with the treatment
of the Series 1996-1 Class A Notes as debt) as the
Servicer deems necessary or desirable to enable the
Class A Noteholders to prepare their tax returns
consistent with the treatment of the Class A Notes
as debt instruments.
SECTION 7. Conditions Precedent to Effec-
tiveness 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 Class Note and each Holder of a 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) agreement referencing the
Original Contracts and (iv) the Note Documents for
the issuance of the Series 1996-1 Notes, each satis-
fying the requirements of Section 11.1 of the Agree-
ment. Each of the Agreement, the Subsequent Pur-
chase Agreement, the Note Documents, the Indenture
and this Supplement (collectively, the "Series
Transaction Agreements") shall have been duly and
validly existing and delivered.
(b) Notes. The Class A Notes shall have been
duly executed in accordance with Section 2.2(a) of
the Indenture and authenticated and delivered by the
indenture Trustee in accordance with Section
2.2(b)(i) of the Indenture. The Class B Notes and
the Class C Notes shall have been duly executed,
authenticated and delivered in accordance with
Section 5 of this Supplement.
(c) Corporation Proceedings of the Seller and
Servicer. The Collateral Agent shalt have received,
with a counterpart for the Indenture Trustee, each
Holder of a Class B Note and each Holder of a Class
C Note, a copy of the resolutions in form and sub-
stance reasonably satisfactory to the Collateral
Agent of the Board of Directors of each of the
Seller and of the Servicer authorizing the execu-
tion, 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 Collater-
al Agent shall have received, with as many counter-
parts 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 corpo-
ration, 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 ap-
provals 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 Agree-
ment, 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. 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 re-
spect to the "true sale" for purposes of the bank-
ruptcy code of the Contracts from the Financing
Originator to the Seller, (ii) Local opinion of
counsel satisfactory to the Issuer Trustee to the
effect that (x) the Issuer has a valid and perfected
first priority security interest in the Original
Contracts and (y) assuming that the Vendor has a
valid and perfected security interest under applica-
ble 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 contin-
ue the perfected status of the security interest in
any Equipment against creditors of and transferees
from the Obligors a legal opinion of Skadden, Arps,
Slate, Meagher & Flom, counsel to the Seller and the
Servicer, dated the date hereof, to the effect that
a court would not order the substantive consolida-
tion of the assets and liabilities of the Seller
with those of Newcourt Credit Group USA Inc.; (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 Trust-
ee, (v) a legal opinion of Pryor, Cashman, Sherman &
Flynn, counsel to the Issuer Trustee, dated the date
hereof, (vi) 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 (vii) a legal opinion of K. Nicholas Martitsch,
counsel to the Newcourt Financial USA Inc., dated
the date hereof, substantially in the form set forth
in Exhibit F hereto.
(i) Certificates. In addition to the certifi-
cates 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 the representations and
warranties of the Seller or the Servicer, as the
case may be, contained in the Transaction Agree-
ments, 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 satis-
fied all conditions on its part to be performed or
satisfied hereunder and under such agreement 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 maybe, or
the Issuer or any change, or any development includ-
ing a prospective change, in or affecting the condi-
tion (financial or otherwise), results of opera-
tions, 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 (d) Collections with respect to the relat-
ed Original 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 an 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 Collat-
eral Agent, as to Sections 8(a), 8(b) and 8(c) hereof
only, represents and warrants, and agrees 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 authori-
ty 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 Trust-
ee in accordance with the Indenture, in the case of
the Class A Notes, and delivered and paid for pursu-
ant to the Indenture, the Class A notes will be duly
and validly issued and outstanding and will consti-
tute valid and binding obligations of the Issuer
entitled to the benefits afforded by the Agreement,
this Supplement and the Indenture and enforceable in
accordance with their terms.
(e) When authenticated by the Issuer in accor-
dance with this Supplement, in the case of the Class
B Notes and Class C Notes, and delivered and paid
for pursuant to this Supplement, the Class B Notes
and Class C Notes will be duly and validly issued
and outstanding and will constitute valid and bind-
ing obligations of the Issuer entitled to the bene-
fits afforded by the Agreement and this Supplement
and enforceable in accordance with their terms.
(f) The execution and delivery of this Supple-
ment and the consummation of the transactions con-
templated 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, agree-
ment, 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 other 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 deliv-
ery of into this Supplement, or with respect to the
issuance and delivery of the Class A Notes, Class B
Notes, the 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
Class A Notes, the Class B Notes or the Class C
Notes, (ii) seeking to prevent the issuance of the
Class A Notes, the Class B Notes or the Class C
Notes or the consummation of any of the transactions
contemplated by this Supplement, the Class A Notes,
the Class B Notes or the Class C Notes, (iii) seek-
ing any determination or ruling that, in the reason-
able 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 Class A Notes, the Class B Notes or
the 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 1996-1
Notes by the Issuer and which are due at or prior
tot he 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 Con-
tracts 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 8.95% of the ADCB of the
Initial Contracts provide for payments by the Obli-
gor thereunder on a basis other than monthly pave-
ments.
SECTION 9. Reports by the Servicer. (a)
The Servicer shall:
(i) provide to each Class B Noteholder and
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 Class B Noteholder and
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 Class B
Notes and Class C Notes such summaries of any infor-
mation, 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 Class B Noteholder and 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 other-
wise 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 re-
spect its current policies, practices or guidelines
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 effect 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 1996-1 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 First
Closing, Date, required to be filed in order to
perfect the sale of Contracts and interests in
Secondary Contracts and the related Equipment by the
Financing Originator to the Seller pursuant to the
Purchase Agreements, (ii) within 10 days following
the First 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 Trust Assets 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 First 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
Purchase Agreements, as the case may be, and which
shall be the only filings required in order to
perfect the sale of the Contracts and interests in
Secondary Contracts and the related Equipment to the
Seller under the Purchase Agreements and the trans-
fer of such assets to the Issuer, under the Agree-
ment, 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 there-
to.
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 the Supplement) and
this Supplement in all material respects.
(b) it shall not amend, supplement or other-
wise modify or terminate the Agreement or this
Supplement, unless in strict compliance with the
terms thereof of hereof;
(c) it shall give prior notice to the Collat-
eral Agent of the delegation of any of its servic-
ing, collection, enforcement or administrative
duties with respect to the Contracts;
(d) it is not change in any material respect
its current policies, practices or guidelines relat-
ing to the extension of credit to End Users or
Vendors or the terms or provisions of the Contracts
or Vendors 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, certifi-
cates, 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 documenta-
tion 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 1996-1 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 Collat-
eral 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 proce-
dures 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, A which failure
has a material adverse effect on the Class B
Noteholders or the Class C Noteholders and which
continues unremedied for a period of 60 day 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 of 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 B Noteholders or the
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 De-
fault") 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 Supple-
ment.
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 Class
B Noteholder, each 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
Class B Notes and Class C Notes shall 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 Class B Noteholder and
Class C Noteholder shall deliver a notice to the Collat-
eral Agent specifying whether such Class B Noteholder or
Class C Noteholder desires to declare an "Event of De-
fault" under the Agreement and specifying the Principal
Amount of Class B Notes or Class C Notes held by such
Noteholder or Class C Noteholder.
10.8 Remedies Cumulative. Each and every
right, power and remedy given to the Class B Noteholders
and the Class C Noteholders specifically or otherwise in
this Supplement or the Agreement in addition to every
other right, power and remedy herein or therein specifi-
cally 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 Class B Noteholders and the 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 any default on the part of the Class B
Noteholders or the Class C Noteholders or to be an acqui-
escence therein.
10.9 Discontinuance of Proceedings. Class B
Noteholders or the Class C Noteholders shall have insti-
tuted any proceeding, to enforce any right, power or
remedy under this Supplement or the Agreement by foreclo-
sure, entry or otherwise, and such proceedings shall have
been discontinued or abandoned for any reason or shall
have been determined adversely to the Class B Noteholders
or the Class C Noteholders, then and in every such case
the Class B Noteholders or the 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 Class
B Noteholders or the Class C Noteholders, as applicable,
shall continue as if no such proceedings had been insti-
tuted.
10.10 Right of Noteholders to Receive
Payments not to be Impaired. Anything in this Supplement
to the contrary notwithstanding, the right of any Class B
Noteholder or Class C Noteholder to receive distributions
of payments required pursuant to Section 4.1 or 4.3
hereof on the applicable Class B Notes or 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 Class B Noteholder or Class C Noteholder.
10.11 Limitation on Suits. (a) No Class B
Noteholder or Class C Noteholder may pursue any remedy
with respect to this Supplement, the Agreement or the
Class B notes or the Class C notes, as applicable, un-
less: (i) such Class B Noteholder or Class C Noteholder
gives to the Issuer written notice stating than a Re-
stricting 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 Class B
Noteholders holding more than 10% of the aggregate unpaid
Outstanding Principal Amount of the Class B Notes or
Class C Noteholders holding more than 10% of the aggre-
gate unpaid Outstanding Principal Amount of the 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 Agree-
ment, or the absolute state 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 Agree-
ment and the Issuer Trustee for itself and all who may
claim under it, so far as 1, or any of them now or here-
after 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 taw 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 repeated or cease to be in
force, such law shall not thereafter be deemed to consti-
tute 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 Agreement to create the Liens created therein and
for related matters. Each Class B Noteholder and Class C
Noteholder hereby appoints the Collateral Agent as its
agent and the Collateral Agent hereby accepts such ap-
pointment. The Issuer Trustee, the Issuer and the Col-
lateral Agent hereby agree that the Collateral Agent
holds a security interest in the Trust Assets for the
benefit of the Class B Noteholders, the Class C
Noteholder and the other Secured Parties pursuant to the
terms of the Agreement.
(b) Each Class B noteholder and Class C
Noteholder, by accepting a Class B Note or Class C Note,
agrees to all of the terms and provisions of the Agree-
ment as the same may be amended from time to time pursu-
ant to the provisions thereof.
(c) As more fully set forth in the Agreement,
the Class B noteholders have rights in and to the Trust
Assets which are a provided therein senior to the rights
of the holders of the Class C Notes, but junior to the
rights of the holders of the 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 accor-
dance with Article XIII of the Agreement, the Class B
Noteholders and the Class C Noteholders shall deliver to
the Collateral Agent a notice stating that each of the
Class B Noteholders and Class C Noteholders, respective-
ly, 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 Collat-
eral Agent of such notice, the Collateral Agent shall not
be deemed to hold its security interest in the Trust
Assets on behalf of the Class B Noteholders or Class C
Noteholders, as applicable.
(b) Any release of the Trust Assets made
strictly in compliance with the provisions of this Sec-
tion 11.2 shalt not be deemed to impair the Liens secur-
ing the Class B Notes and 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.
SECTION 12. Amendment and Waiver.
12.1 Requirements. This Supplement, the Class
B Notes and the Class C Notes may be amended, and the
observance of any term hereof or of the Class B Notes or
Class C Notes may be waived (either retroactively or
prospectively), in the case of Class B Notes, with (and
only with) the written consent of the Issuer Trustee, the
Holders of Class A Notes, the Rating Agency and the
Required Holders and, in the case of Class C Notes, with
(and only with) the written consent of the Issuer Trust-
ee, the Holders of the Class A Notes, the Holders of the
Class B Notes, the Rating Agency and the Required Hold-
ers, except that (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
Class B Noteholder or Class C Noteholder unless consented
to by such Noteholder in writing, and (b) no such amend-
ment or waiver may, without the written consent of the
Holder of each Class B Note or Class C Note at the time
outstanding affected thereby, (i) subject to the provi-
sions of Section 10 relating to acceleration or rescis-
sion, 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 Class B Notes or Class C Notes, (ii) change the
percentage of the principal amount of the Class B Notes
or 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 any-
thing 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 wilt provide each Holder of
the Class B Notes and Class C Notes (irrespective of the
amount of Class B Notes or 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
Class B Notes or 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 Class B Notes or Class C Notes, as applica-
ble, promptly following the date on which it is executed
and delivered by, or receives the consent or approval of,
the requisite Holders of Class B Notes or Class C Notes.
(b) Payment. The Issuer Trustee will not
directly or indirectly pay or cause to be paid any remu-
neration, whether by way of supplemental or additional
interest, fee or otherwise, or grant any security, to any
Holder of Class B Notes or Class C Notes as consideration
for or as an inducement to the entering into by any
Holder of Class B Notes or Class C Notes or any waiver or
amendment of any of the terms and provisions hereof or of
the Class B Notes or Class C Notes unless such remunera-
tion is concurrently paid, or security is concurrently
granted, on the same terms, ratably to each Holder of
Class B Notes or 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 Class B Notes and Class C Notes
and is binding upon them and upon each future Holder of
any Class B Note or Class C Note and upon the Issuer
Trustee without regard to whether such Class B Note or
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 Class B Note or Class C Note nor any delay in exer-
cising any rights hereunder or under any Class B Note or
Class C Note shall operate as a waiver of any rights of
any Holder of such Class B Note or 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
Class B Notes or Class C Notes then outstanding approved
or consented to any amendment, waiver or consent to be
given under this Supplement or the Class B Notes or Class
C Notes, or have directed the taking of any action pro-
vided herein or in the Class B Notes or Class C Notes to
be taken upon the direction of the Holders of a specified
percentage of the aggregate principal amount of Class B
Notes or Class C Notes then outstanding, the Class B
Notes or 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 Supple-
ment 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 Supple-
ment 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 trans-
fer 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 Class B Notes and the Class
C Notes will be treated as debt for federal income tax
purposes, the Class B Notes and the 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 Class B Notes or the 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 Class B Notes or the Class C Notes
shall not be discharged or satisfied by any tender, or
any recovery pursuant to any judgment, which is expressed
in 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 re-
ceipt by the Holder of any Class B Note or 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 shalt fall
short of the full amount of Dollars expressed to be
payable in respect of any such obligations.,and shalt not
be affected by judgment being obtained for any other sums
due under this Supplement, the Class B Notes or Class C
Notes.
13.4 Repurchase by Seller. Upon any repurchase
of the Series 1996-1 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 1996-1 Noteholders may surrender their Series
1996-1 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
1996-1 Noteholders, at the written request of the
Servicer, not later than the 60th day immediately preced-
ing the Distribution Date on which final payment of the
Series 1996-1 Notes shall be made.
13.6 Ratification of Agreement. As supplement-
ed by this Supplement, the Agreement is in all respects
ratified and confirmed and the Agreement as so supple-
mented by this Supplement shall be read, taken and con-
strued 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 any representation
or warranty as to the validity, legality or enforceabili-
ty of this Supplement, the Agreement, the Class B Notes
or the Class C Notes or as to the correctness of any
statement contained in any thereof, except for the repre-
sentations 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 Class B Noteholders and
the Class C Noteholders make no representation or warran-
ty 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 in-
structions 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 1996-1 Supplement to be duty 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:
NEWCOURT CREDIT GROUP INC.,
as Servicer
By:/s/ Daniel A. Jauernig
Title:
CHEMICAL BANK DELAWARE,
as Issuer Trustee
By:/s/ John J. Cashin
Title: Senior Trust Officer
FLEET NATIONAL BANK,
as Collateral Agent
By:/s/ Susan Keller
Title: Vice President
SCHEDULE 1
to
SERIES 1996-1 SUPPLEMENT
INITIAL PURCHASERS' COMMITMENTS
Initial Class B Class C Total
Purchaser Commitment Commitment Commitment
First Union Capital $5,150,445.30 $3,468,313.33 $8,618,758.63
Markets Corp.
Newcourt Receivables $52,024.70 $1,734,156.67 $1,786,181.37
Corporation
SCHEDULE 2
to
SERIES 1996-1 SUPPLEMENT
LIST OF ORIGINAL CONTRACTS
EXHIBIT A
to
SERIES 1996 SUPPLEMENT
FORM OF CLASS B NOTE
REGISTERED $__________
No. _____
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. 65118YAB3
THIS SERIES 1996-1 CLASS B NOTE HAS NOT BEEN REGIS-
TERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER
THIS SERIES 1996-1 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 TRANS-
ACTION IS EXEMPT FROM OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SERIES 1996-1 CLASS B NOTE BY ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SERIES 19961 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 1996-1 CLASS B NOTE (OR ANY
PREDECESSOR OF SUCH SERIES 1996-1 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 1996-1 CLASS B NOTES
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A
PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITU-
TIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURI-
TIES 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 ACQUIR-
ING THE SERIES 1996-1 CLASS B NOTE FOP, ITS OWN ACCOUNT,
OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED
INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF
THE SERIES 1996-1 CLASS B NOTES OF $500,000, FOR INVEST-
MENT 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 (El) TO REQUIRE THE DELIVERY OF AN OPINION OF COUN-
SEL, 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 1996-1 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 1996-1 CLASS B NOTE BY ITS
ACCEPTANCE HEREOF AGREES THAT IT WILL NOT SELL, TRADE,
ASSIGN OR OTHERWISE DISPOSE OF THIS SERIES 1996-1 CLASS B
NOTE (OR ANY INTEREST HEREIN) OR CAUSE THIS SERIES 1996-1
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 BE-
COMES SUCH AN ENTITY, LESS THAN 50 PERCENT OF THE AGGRE-
GATE VALUE OF THE ASSETS OF SUCH ENTITY ARE ATTRIBUTABLE
TO INTERESTS IN THE TRUST
THIS SERIES 1996-1 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 1996-1 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 INTER-
EST IN A SERIES 1996-1 CLASS B NOTE WILL NOT RESULT IN
ANY WITHHOLDING OBLIGATION WITH RESPECT TO ANY PAYMENTS
WITH RESPECT TO THE SERIES 1996-1 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 1996-1 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 1996-1 CLASS B NOTE MEMORANDUM,
NOTE PURCHASE AGREEMENT AND OTHER RELATED DOCUMENTS HAVE
BEEN COMPLIED WITH. THIS SERIES 1996-1 CLASS B NOTE MAY
NOT BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANS-
FERRED 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 1996-1 CLASS B 7.53% 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 Agree-
ment and the Supplement, provided, however, that the
entire unpaid principal amount of this Series 1996-1
Class B Note shall be due and payable on the earlier of
the Maturity Date of August 20, 2003 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 1996-1 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 8.53% per annum; it will pay
interest on overdue installments of interest (without
regard to any applicable grace periods) at the rate of
8.53% 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 April 22, 1996.
The principal of and interest on this Series
1996-1 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 1996-1 Class B Note shall be applied first to
interest due and payable on this Series 1996-1 Class B
Note as provided above and then to the unpaid principal
of this Series 1996-1 Class B Note.
Reference is made to the further provisions of
this Series 1996-1 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 1996-1 Class B Note.
Unless the certificate of authentication hereon
has been executed by the Issuer whose name appears below
by manual signature, this Series 1996-1 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: Chemical 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 1996-1 Class B Notes
designated above and referred to in the within-mentioned
Supplement.
CHEMICAL BANK DELAWARE, CHEMICAL BANK DELAWARE,
as Issuer Trustee as Issuer Trustee
By Chemical Bank, as Au-
thenticating
OR Agent
By: By:
Authorized Signatory Authorized Signatory
REVERSE OF NOTE
This Series 1996-1 Class B Note is one of a
duly authorized issue of Notes of the Issuer, designated
as its Series 1996-1 Class B 7.53% Asset Backed Notes
(the "Series 1996-1 Class B Notes"), issued under the
Series 1996-1 Supplement dated as of April 15, 1996 to
the Pooling Agreement (as hereinafter defined) (such
supplement, as supplemented or amended, the "Supple-
ment"), 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"), Chemical Bank
De[aware, 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 obliga-
tions thereunder of the Issuer, the Issuer Trustee, the
Seller, the Collateral Agent, the Servicer, the Indenture
Trustee and the Holders of the Series 1996-1 Class B
Notes. The Series 1996-1 Class B Notes are governed by
and subject to all terms of the Pooling Agreement and the
Supplement (which respective terms arc incorporated
herein and made a part hereof). All terms used in this
Series 1996-1 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 1996-1 Class A 6.79% Asset Backed Notes (the
"Series 1996-1 Class A Notes") and the Series 1996-1
Class C 9.05% Asset Backed Notes (the "Series 1996-1
Class C Notes" and together with the Series 1996-1 Class
A Notes and the Series 1996-1 Class B Notes, the "Series
1996-1 Notes") are issued, in the case of the Series
1996-1 Class A Notes, pursuant to the Class A Indenture
dated as of April 15, 1996, between the Issuer, the
Seller, the Collateral Agent and the Indenture Trustee,
and, in the case of the Series 1996-1 Class C Notes,
pursuant to the Supplement. The Series 1996-1 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 1996-1 Class A Notes) and (ii) senior in right
of payment to the Class C Notes of all Series including
the Series 1996-1 Class C Notes) and all other subordi-
nated indebtedness of the Issuer which is subordinated to
the Series 1996-1 Class B Notes,
The Series 1996-1 Class B Notes are and will be
equally and ratably secured by the Trust Assets pledged
as security therefor as provided in the Pooling, Collat-
eral 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 1996-1
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 1996-1 Class B Notes
shall have declared the Series 1996-1 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
1996-1 Class B Notes shall be made pro rata to the Series
1996-1 Class B Noteholders entitled thereto.
Payments of interest on this Series 1996-1
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 1996-1 Class B Note, shall be
made in accordance with Section 5.11 of the Supplement to
the Series 1996-1 Class B Noteholder. Any reduction in
the principal amount of this Series 1996-1 Class B Note
effected by any payments made on any Distribution Date
shall be binding upon all future Holders of this Series
1996-1 Class B Note and of any Series 1996-1 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 pro-
vided in the Supplement, for payment in full of the then
remaining unpaid principal amount of this Series 1996-1
Class B Note on a Distribution Date, then the Collateral
Agent will notify the Series 1996-1 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 1996-1 Class B Note at the office or offices
designated in such notice.
The Holder of this Series 1996-1 Class B Note,
by its acceptance of this Series 1996-1 Class B Note,
agrees that it will look solely to the income and pro-
ceeds from the Trust Assets and, in the case of payments
of interest on this Series 1996-1 Class B Note, to
amounts on deposit in the Reserve Account (excluding
Investment Earnings) to the extent available for distri-
bution 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 1996-1
Class B Note, except as expressly provided in the Supple-
ment and in the Pooling Agreement, provided in the Sup-
plement and in the Pooling Agreement.
The Holder of this Series 1996-1 Class B Note,
by acceptance of this Series 1996-1 Class B Note, cove-
nants 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 proceedings 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 1996-1 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 1996-1 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 1996-1 Class B Note and for all other purposes,
whether or not this Series 1996-1 Class B Note be over-
due, and none of the Issuer, the Issuer Trustee, the
Collateral Agent or the Indenture Trustee shall be af-
fected by notice to the contrary.
The Supplement and the Series 1996-1 Class B
Notes may be amended, and the observance of any term of
the Supplement or of the Series 1996-1 Class B Notes may
be waived (either retroactively or prospectively) with
(and only with) the written consent of the Holders of
Series 1996-1 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 S of the Sup-
plement, or any defined term (as it is used therein),
will be effective as to any Series 1996-1 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 1996-1
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 1996-1 Class B
Notes, (ii) change the percentage of the principal amount
of the Series 1996-1 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 1996-1 Class B Noteholders, (i) to cure any
ambiguity, to revise any exhibits or Schedules, to cor-
rect 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 1996-1 Class B Note includes any successor to the
Issuer Trustee under the Pooling Agreement.
The Series 1996-1 Class B Notes are issuable
only in registered form without coupons in denominations
as provided in the Supplement, subject to certain limita-
tions therein set forth.
No reference herein to the Pooling Agreement or
the Supplement and no provision of this Series 1996-1
Class B Note or of the Pooling Agreement or the Supple-
ment shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal
of and interest on this Series 1996-1 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 enforceabili-
ty of the Pooling Agreement, the Supplement or the Series
1996-1 Class B Notes or as to the correctness of any
statement contained in any thereof, except for the repre-
sentations 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 1996-1 Class B
Noteholders and the Seller make no representation or
warranty hereunder whatsoever.
This Series 1996-1 Class B Note shall be gov-
erned 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 shalt be governed by the internal laws of
the State of Delaware, without reference to its conflict
of law provisions and the obligations, rights and reme-
dies 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 1996-1 Class B Note and all rights
thereunder, and hereby irrevocably constitutes and ap-
points __________ attorney, to transfer said Series 1
996-1 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 1996-1 Class B
Note in every particu-
lar, without alter-
ation, enlargement or
any change whatsoever.
EXHIBIT B
to
SERIES 1996-1 SUPPLEMENT
FORM OF CLASS C NOTE
REGISTERED $_________
No. _____
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. 65118YAC1
THIS SERIES 1996-1 CLASS B NOTE HAS NOT BEEN REGIS-
TERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER
THIS SERIES 1996-1 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 TRANS-
ACTION IS EXEMPT FROM OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SERIES 1996-1 CLASS B NOTE BY ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SERIES 19961 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 1996-1 CLASS B NOTE (OR ANY
PREDECESSOR OF SUCH SERIES 1996-1 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 1996-1 CLASS B NOTES
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A
PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITU-
TIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURI-
TIES 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 ACQUIR-
ING THE SERIES 1996-1 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 1996-1 CLASS B NOTES OF $500,000, FOR INVEST-
MENT 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 1996-1 CLASS B NOTE IS COMPLET-
ED 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 1996-1 CLASS B NOTE BY ITS
ACCEPTANCE HEREOF AGREES THAT IT WILL NOT SELL, TRADE,
ASSIGN OR OTHERWISE DISPOSE OF THIS SERIES 1996-1 CLASS B
NOTE (OR ANY INTEREST HEREIN) OR CAUSE THIS SERIES 1996-1
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 BE-
COMES SUCH AN ENTITY, LESS THAN 50 PERCENT OF THE AGGRE-
GATE VALUE OF THE ASSETS OF SUCH ENTITY ARE ATTRIBUTABLE
TO INTERESTS IN THE TRUST
THIS SERIES 1996-1 CLASS B MAY NOT BE ACQUIRED,
SOLD, TRADED OR TRANSFERRED BY A PERSON WHO IS NOT EITHER
(A)(1) 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
(1) OR (II) WHOSE OWNERSHIP OF THE SERIES 1996-1 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 INTER-
EST IN A SERIES 1996-1 CLASS B NOTE WILL NOT RESULT IN
ANY WITHHOLDING OBLIGATION WITH RESPECT TO ANY PAYMENTS
WITH RESPECT TO THE SERIES 1996-1 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 1996-1 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 19961 CLASS B NOTE MEMORANDUM,
NOTE PURCHASE AGREEMENT AND OTHER RELATED DOCUMENTS HAVE
BEEN COMPLIED WITH, THIS SERIES 1996-1 CLASS B NOTE MAY
NOT BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANS-
FERRED 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 1996-1 CLASS C 9.05% 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 princi-
pal 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 1996-1
Class C Note shall be due and payable on the earlier of
the Maturity Date of August 20, 2003 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 1996-1 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 10.05% per annum; it will pay
interest on overdue installments of interest (without
regard to any applicable grace periods) at the rate of
10.05% 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 April 22, 1996.
The principal of and interest on this Series
1996-1 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 1996-1 Class C Note shall be applied first to
accrued interest on this Series 1996-1 Class C Note as
provided ;above and then to the unpaid principal of this
Series 1996-1 Class C Note.
Reference is made to the further provisions of
this Series 1996-1 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 1996-1 Class C Note.
Unless the certificate of authentication hereon
has been executed by the Issuer whose name appears below
by manual signature, this Series 1996-1 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: Chemical 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 1996-1 Class B Notes
designated above and referred to in the within-mentioned
Supplement.
CHEMICAL BANK DELAWARE, CHEMICAL BANK DELAWARE,
as Issuer Trustee as Issuer Trustee
By Chemical Bank, as Au-
thenticating
OR Agent
By: By:
Authorized Signatory Authorized Signatory
REVERSE OF NOTE
This Series 1996-1 Class C Note's one of a duly
authorized issue of Notes of the Issuer, designated as
its Series 1996-1 Class C 9.05% Asset Backed Notes (the
"Series 1996-1 Class C Notes"), issued under the Series
1996-1 Supplement dated as of April 15, 1996 to the
Pooling Agreement (as hereinafter defined) (such supple-
ment, 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"), 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 respec-
tive 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 1996-1 Class C Notes. The Series 1996-1 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 1996-1 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 1996-1 Class A 6.79% Asset Backed Notes (the
"Series 1996-1 Class A Notes") and the Series 1996-1
Class B 7.53% Asset Backed Notes (the "Series 1996-1
Class B Notes" and together with the Series 1996-1 Class
A Notes and the Series 1996-1 Class C Notes, the "Series
1996-1 Notes") are issued, in the case of the Series
1996-1 Class A Notes, pursuant to the Class A Indenture
dated as of April 15, 1996, between the Issuer, the
Seller, the Collateral Agent and the Indenture Trustee,
and, in the case of the Series 1996-1 Class B Notes,
pursuant to the Supplement. The Series 1996-1 Class C
Notes shall be subordinated and rank Junior in right of
payment to the Class A Notes of all Series (including the
Series 1996-1 Class A Notes) and Class B Notes of all
Series (including the Series 1 996-1 Class B Notes).
The Series 1996-1 Class C Notes are and will be
equally and ratably secured by the Trust Assets pledged
as security therefor as provided in the Pooling Collater-
al 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 1996-1
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 1996-1 Class C Notes
shall have declared the Series 1996-1 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
1996-1 Class C Notes shall be made pro rata to the Series
1996-1 Class C Noteholders entitled thereto.
Payments of interest on this Series 1996-1
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 1996-1 Class C Note, shall be
made in accordance with Section 5.11 of the Supplement to
the Series 1996-1 Class C Noteholder. Any reduction in
the principal amount of this Series 1996-1 Class C Note
effected by any payments made on any Distribution Date
shall be binding upon all future Holders of this Series
1996-1 Class C Note and of any Series 1996-1 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 pro-
vided in the Supplement, for payment in full of the then
remaining unpaid principal amount of this Series 1996-1
Class C Note on a Distribution Date, then the Collateral
A(lent will notify the Series 1996-1 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 1996-1 Class C Note at the office or offices
designated in such notice.
The Holder of this Series 1996-1 Class C Note,
by its acceptance of this Series 1996-1 Class C Note,
agrees that it will took solely to the income and pro-
ceeds 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 1996-1 Class C Note, except as expressly provided
in the Supplement and in the Pooling Agreement.
The Holder of this Series 1996-1 Class C Note,
by acceptance of this Series 1996-1 Class C Note, cove-
nants 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 1996-1 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 1996-1 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 1996-1 Class C Note and for all other purposes,
whether or not this Series 1996-1 Class C Note be over-
due, and none of the Issuer, the Issuer Trustee, the
Collateral Agent or the Indenture Trustee shall be af-
fected by notice to the contrary.
The Supplement and the Series 1996-1 Class C
Notes may be amended, and the observance of any term of
the Supplement or of the Series 1996-1 Class C Notes may
be waived (either retroactively or prospectively), with
(and only with) the written consent of the Holders of the
Series 1996-1 Class A Notes, the Holders of the Series
1996-1 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 effec-
tive as to any Series 1996-1 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 1996-1 Class (7 Note at the
time outstanding affected thereby, (i) subject to the
provisions of the Supplement relating to acceleration or
rescission, change the amount of 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 1996-1 Class C Notes, (ii) chance the
percentage of the principal amount of the Series 1996-1
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 satis-
faction 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 1996-1 Class C Noteholders, (i) to cure any
ambiguity, to revise any exhibits or Schedules, to cor-
rect 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 1996-1 Class C Note includes any successor to the
Issuer Trustee under the Pooling Agreement.
The Series 1996-1 Class C Notes are issuable
only in registered form without coupons in denominations
as provided in the Supplement, subject to certain limita-
tions therein set forth.
No reference herein to the Pooling Agreement or
the Supplement and no provision of this Series 1996-1
Class C Note or of the Pooling Agreement or the Supple-
ment shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal
of and interest on this Series 1996-1 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 enforceabili-
ty of the Pooling Agreement, the Supplement or the Series
1996-1 Class C Notes or as to the correctness of any
statement contained in any thereof, except for the repre-
sentations 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 1996-1 Class C
Noteholders and the Seller make no representation or
warranty hereunder whatsoever.
This Series 1996-1 Class C Note shall be gov-
erned 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 accor-
dance 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 1996-1 Class B Note and all rights
thereunder, and hereby irrevocably constitutes and ap-
points __________ attorney, to transfer said Series 1996-
1 Class B Note on the books kept for registration there-
of, 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 1996-1 Class B
Note in every particu-
lar, without alter-
ation, enlargement or
any change whatsoever.
EXHIBIT C
to
SERIES 1996-1 SUPPLEMENT
FORM OF ISSUER'S CERTIFICATE OF AUTHENTICATION
This is one of the Series 1996-1 [Class B]
[Class C] Notes designated above and referred to in the
within-mentioned Supplement.
CHEMICAL BANK DELAWARE, CHEMICAL BANK DELAWARE,
as Issuer Trustee as Issuer Trustee
By Chemical Bank, as Au-
thenticating
OR Agent
By: By:
Authorized Signatory Authorized Signatory
EXHIBIT D
to
SERIES 1996-1 SUPPLEMENT
FORM OF MONTHLY NOTEHOLDER'S REPORT
Newcourt Receivables Asset Trust Collec- Master
Monthly Servicer Certificate - tions Reserve Trust
Accounts Account Account Distri-
bution Series
Account 1996-1
Beginning Account Balance
Collection Account
Collection form the Lockbox
Account
Add: Servicer
Add: Liquidation Proceeds
from Servicer
Add: Earnings from Eligible
Investments
Less: Collection to reimburse
Servicer Advances
Reserve Account
Add: Investment Earnings on
Reserve Account
Available Amount
(A) Unreimbursed
Servicer Advances
(B) Servicing Fee
(C) Amount owed to Hedg-
ing Counterparty
(D) Series Available
Amount to each Se-
ries 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
<TABLE>
<CAPTION>
Newcourt Receivables Asset Trust
Monthly Servicer Certificate
Portfolio Performance Tests
1 months 2 months 3 months 4 months 5 months
prior prior prior prior prior 6 months prior
Current (yes/no) (yes/no) (yes/no) (yes/no) (yes/no) (yes/no)
<S> <C> <C> <C> <C> <C> <C> <C>
Event of Default:
</TABLE>
Monthly
Delinquencies Delinquencies ADCB Delinquency
2 months prior
1 month prior
Current
Delinquency Ratio:
Maximum Delinquency Ratio:
Monthly
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 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:
Monthly
DELINQUENCIES Delinquencies ADCB Delinquency
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 Service 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 Percentage _____% _____%
EXHIBIT F
to
SERIES 1996-1 SUPPLEMENT
FORM OF OPINION OF COUNSEL TO THE SERVICER
EXHIBIT F
to
SERIES 1996-1 SUPPLEMENT
FORM OF OPINION OF COUNSEL TO NEWCOURT FINANCIAL USA INC.
TABLE OF CONTENTS
Page
SECTION 1. Series 1996-1 . . . . . . . . . . . . . . . . . . 1
SECTION 2. Definitions . . . . . . . . . . . . . . . . . . . 1
SECTION 3. Transfer of Trust Assets . . . . . . . . . . . . 3
SECTION 4. Receipt, Distribution and Application from the
Trust Receipts . . . . . . . . . . . . . . . . . . 4
4.1 Distribution Prior to Event of Default or Re-
stricting Event . . . . . . . . . . . . . . . . . . 4
4.2 Optional Purchase by Seller; Trust Termination
Payments . . . . . . . . . . . . . . . . . . . . . 4
4.3 Distribution Following an Event of Default or a
Restricting Event . . . . . . . . . . . . . . . . . 5
4.4 Unclaimed Moneys . . . . . . . . . . . . . . . . . 5
4.5 Reliance by Collateral Agent Upon Information
Provided . . . . . . . . . . . . . . . . . . . . . 5
SECTION 5. The Series 1996-1 Notes . . . . . . . . . . . . . 6
5.1 The Notes . . . . . . . . . . . . . . . . . . . . . 6
5.2 Form, Denomination and Dating . . . . . . . . . . . 6
5.3 Execution and Authentication . . . . . . . . . . . 7
5.4 Registration, Transfer and Exchange of Class B
Notes and Class C Notes . . . . . . . . . . . . . . 7
5.5 Mutilated, Destroyed, Lost or Stolen Notes . . . . 9
5.6 Temporary Notes . . . . . . . . . . . . . . . . . . 9
5.7 Priority of Payments . . . . . . . . . . . . . . . 9
5.8 Payments from Trust Assets Only . . . . . . . . . . 10
5.9 Method of Payment . . . . . . . . . . . . . . . . . 10
5.10 Delivery . . . . . . . . . . . . . . . . . . . . . 11
5.11 Interest . . . . . . . . . . . . . . . . . . . . . 11
SECTION 6. Article V of the Agreement . . . . . . . . . . . 12
SECTION 7. Conditions Precedent to Effectiveness of Supple-
ment . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 8. Representations and Warranties of the Issuer
Trustee, the Seller, the Servicer and
the Collateral Agent . . . . . . . . . . 15
SECTION 9. Reports by the Servicer . . . . . . . . . . . . . 17
SECTION 10. Covenants, Restricting Events . . . . . . 18
10.1 Covenants of the Seller . . . . . . . . . . . . . . 18
10.2 Covenants of the Servicer . . . . . . . . . . . . . 19
10.3 Covenants of the Issuer Trustee . . . . . . . . . . 19
10.4 Covenants of the Issuer . . . . . . . . . . . . . . 20
10.5 Events of Default and Restricting Events . . . . . 20
10.6 Notice to Rating, Agencies, etc. . . . . . . . . . 20
10.7 Remedies . . . . . . . . . . . . . . . . . . . . . 20
10.8 Remedies Cumulative . . . . . . . . . . . . . . . . 21
10.9 Discontinuance of Proceedings . . . . . . . . . . . 21
10.10 Right of Noteholders to Receive Payments not to
be Impaired . . . . . . . . . . . . . . . . . . . . 21
10.11 Limitation on Suits . . . . . . . . . . . . . . . 21
10.12 Undertaking for Costs . . . . . . . . . . . . . . 21
10.13 Waiver of Stay or Extension Laws . . . . . . . . 22
SECTION 11. Pooling Agreement . . . . . . . . . . . . 22
11.1 Pooling, Agreement . . . . . . . . . . . . . . . . 22
11.2 Release Upon Termination of the Issuer Trustee's
Obligations . . . . . . . . . . . . . . . . . . . . 22
11.3 Collateral Agent's Duties . . . . . . . . . . . . . 23
SECTION 12. Amendment and Waiver . . . . . . . . . . 23
12.1 Requirements . . . . . . . . . . . . . . . . . . . 23
12.2 Solicitation of Holders of Notes . . . . . . . . . 23
12.3 Binding Effect . . . . . . . . . . . . . . . . . . 24
12.4 Notes Held by Issuer Trustee, etc. . . . . . . . . 24
SECTION 13. Miscellaneous . . . . . . . . . . . . . . 24
13.1 Obligations Unaffected . . . . . . . . . . . . . . 24
13.2 Successors and Assigns . . . . . . . . . . . . . . 24
13.3 Obligation to Make Payments in Dollars . . . . . . 25
13.4 Repurchase by Seller . . . . . . . . . . . . . . . 25
13.5 Final Distribution . . . . . . . . . . . . . . . . 25
13.6 Ratification of Agreement . . . . . . . . . . . . . 25
13.7 No Representations or Warranties as to Documents . 25
13.8 Counterparts . . . . . . . . . . . . . . . . . . . 25
13.9 GOVERNING LAW . . . . . . . . . . . . . . . . . . . 25
13.10 The Trustee . . . . . . . . . . . . . . . . . . . 26
13.11 Instructions in Writing . . . . . . . . . . . . . 26
EXHIBITS
Exhibit A: Form of Class B Note
Exhibit B: Form of 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 Original Contracts
CLASS A TRUST INDENTURE
Dated as of
April 15, 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 April 15, 1996 and the Trust Indenture Act of
1939, as amended. This reconciliation does not consti-
tute 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 . 6
SECTION 1.3 Form of Documents Delivered to
Indenture Trustee . . . . . . . . . 8
SECTION 1.4 Acts of Noteholders . . . . . . . . . 8
SECTION 1.5 Written Notice of Distribution . . . . 10
ARTICLE II
THE NOTES
SECTION 2.1 Form, Denomination and Dating . . . . 11
SECTION 2.2 Execution and Authentication . . . . . 12
SECTION 2.3 Payments from Trust Assets Only . . . 13
SECTION 2.4 Method of Payment . . . . . . . . . . 14
SECTION 2.5 Termination of Interest in Trust
Assets . . . . . . . . . . . . . . . 16
SECTION 2.6 Registration, Transfer and Exchange
of Class A Notes . . . . . . . . . . 16
SECTION 2.7 Mutilated, Destroyed, Lost or Stolen
Notes . . . . . . . . . . . . . . . 18
SECTION 2.8 Payment of Expenses on Transfer . . . 19
SECTION 2.9 Priority of Payments . . . . . . . . . 19
SECTION 2.10 Cancellation of Notes . . . . . . . . 19
SECTION 2.11 Temporary Notes . . . . . . . . . . . 20
SECTION 2.12 Interest on Defaulted Payments . . . . 20
SECTION 2.13 Book-Entry Notes . . . . . . . . . . . 20
SECTION 2.14 Notices to Clearing Agent . . . . . . 21
SECTION 2.15 Definitive Notes Initially Issued as
Book-Entry Notes . . . . . . . . . . 22
SECTION 2.16 Tax Treatment . . . . . . . . . . . . 22
ARTICLE III
RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME FROM THE TRUST ASSETS
SECTION 3.1 Distribution Prior to Event of
Default or Restricting Event . . . . 23
SECTION 3.2 Optional Purchase by Seller; Trust
Termination Payments . . . . . . . . 23
SECTION 3.3 Distribution Following an Event of
Default or a Restricting Event . . . 26
SECTION 3.4 Certain Payments . . . . . . . . . . . 27
SECTION 3.5 Other Payments . . . . . . . . . . . . 27
SECTION 3.6 Unclaimed Moneys . . . . . . . . . . . 28
ARTICLE IV
COVENANTS; EVENTS OF DEFAULT AND RESTRICTING
EVENTS; REMEDIES OF INDENTURE TRUSTEE
SECTION 4.1 Covenants of the Issuer . . . . . . . 28
SECTION 4.2 Events of Default and Restricting
Events . . . . . . . . . . . . . . . 29
SECTION 4.3 Notice to Rating Agencies, etc. . . . 29
SECTION 4.4 Remedies . . . . . . . . . . . . . . . 30
SECTION 4.5 Remedies Cumulative . . . . . . . . . 30
SECTION 4.6 Discontinuance of Proceedings . . . . 30
SECTION 4.7 Judicial Proceedings Instituted by
Indenture Trustee; Indenture
Trustee May Bring Suit . . . . . . . 31
SECTION 4.8 Control by Noteholders . . . . . . . . 32
SECTION 4.9 Right of Noteholders to Receive
Payments not to be Impaired . . . . 33
SECTION 4.10 Limitation on Suits . . . . . . . . . 33
SECTION 4.11 Undertaking for Costs . . . . . . . . 34
SECTION 4.12 Waiver of Stay or Extension Laws . . . 34
ARTICLE V
DUTIES OF THE INDENTURE TRUSTEE
SECTION 5.1 Certain Notices . . . . . . . . . . . 35
SECTION 5.2 Action Upon Instructions . . . . . . . 36
SECTION 5.3 Indemnification . . . . . . . . . . . 36
SECTION 5.4 No Duties Except as Specified in
Indenture or Instructions . . . . . 37
SECTION 5.5 Directions to Collateral Agent . . . . 37
ARTICLE VI
REDEMPTION OF CLASS A NOTES
SECTION 6.1 No Redemption Prior to Maturity . . . 38
SECTION 6.2 Expected Amortization Schedule . . . . 38
SECTION 6.3 Notice of Redemption to Noteholders . 40
SECTION 6.4 Receipt of Funds . . . . . . . . . . . 40
ARTICLE VII
THE COLLATERAL AGENT AND THE INDENTURE TRUSTEE
SECTION 7.1 Acceptance of Trusts and Duties . . . 41
SECTION 7.2 Absence of Duties . . . . . . . . . . 41
SECTION 7.3 No Representations or Warranties as
to Documents . . . . . . . . . . . . 42
SECTION 7.4 No Segregation of Monies; No
Interest . . . . . . . . . . . . . . 42
SECTION 7.5 Reliance; Agents; Advice of Counsel . 42
SECTION 7.6 Capacity in Which Acting . . . . . . . 43
SECTION 7.7 Compensation . . . . . . . . . . . . . 44
SECTION 7.8 May Become Noteholder . . . . . . . . 44
SECTION 7.9 Further Assurances . . . . . . . . . . 44
SECTION 7.10 Corporate Trustee Required;
Eligibility . . . . . . . . . . . . 44
SECTION 7.11 Preferential Collection of Claims
Against the Indenture Trustee . . . 45
SECTION 7.12 Maintenance of Agencies; Note
Registrar Paying Agents; Authorized
Agents . . . . . . . . . . . . . . . 45
SECTION 7.13 Money for Note Payments to Be Held in
Trust . . . . . . . . . . . . . . . 47
ARTICLE VIII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 8.1 Noteholder Lists . . . . . . . . . . . 48
SECTION 8.2 Reports by Indenture Trustee . . . . . 48
SECTION 8.3 Reports by the Issuer . . . . . . . . 49
SECTION 8.4 Reports by Indenture Trustee . . . . . 50
ARTICLE IX
INDEMNIFICATION
SECTION 9.1 Indemnification . . . . . . . . . . . 50
ARTICLE X
SUCCESSOR ISSUER TRUSTEES; SEPARATE ISSUER TRUSTEES
SECTION 10.1 Notice of Successor Issuer Trustee . . 51
SECTION 10.2 Replacement of Indenture Trustee . . . 51
SECTION 10.3 Appointment of Separate Indenture
Trustees . . . . . . . . . . . . . . 52
SECTION 10.4 Notice of Successor Collateral Agent . 55
ARTICLE XI
SUPPLEMENTS AND AMENDMENTS TO
THIS INDENTURE AND OTHER DOCUMENTS
SECTION 11.1 Amendments; Waivers, etc. of
Operative Documents; Direction to
Collateral Agent . . . . . . . . . . 55
SECTION 11.2 Trustees and Collateral Agent
Protected . . . . . . . . . . . . . 57
SECTION 11.3 No Request Necessary for Supplement . 57
SECTION 11.4 No Request Necessary for Indenture
Supplement, Etc. . . . . . . . . . . 58
SECTION 11.5 Conformity with Trust Indenture Act . 60
SECTION 11.6 Payment for Consent . . . . . . . . . 60
SECTION 11.7 Effect of Supplemental Indenture . . . 61
SECTION 11.8 Notation on Notes in Respect of
Supplemental Indentures . . . . . . 61
SECTION 11.9 Notice to Rating Agencies . . . . . . 61
ARTICLE XII
POOLING AGREEMENT
SECTION 12.1 Pooling Agreement . . . . . . . . . . 62
SECTION 12.2 Recording, Deposit of Collateral,
etc. . . . . . . . . . . . . . . . . 62
SECTION 12.3 Trust Indenture Act Requirements . . . 63
SECTION 12.4 Release Upon Termination of the
Indenture . . . . . . . . . . . . . 64
SECTION 12.5 Collateral Agent's Duties . . . . . . 64
ARTICLE XIII
REPRESENTATIONS AND WARRANTIES
SECTION 13.1 Representations of the Seller . . . . 64
SECTION 13.2 Representations of the Issuer . . . . 66
SECTION 13.3 Representations of the Collateral
Agent . . . . . . . . . . . . . . . 67
SECTION 13.4 Additional Representation of the
Collateral Agent . . . . . . . . . . 68
SECTION 13.5 Representations of the Indenture
Trustee . . . . . . . . . . . . . . 68
ARTICLE XIV
SATISFACTION AND DISCHARGE . . . . . 70
SECTION 14.1 Satisfaction and Discharge of
Indenture . . . . . . . . . . . . . 70
SECTION 14.2 Application of Trust Money . . . . . . 71
ARTICLE XV
MISCELLANEOUS
SECTION 15.1 Indenture for Benefit of Certain
Persons . . . . . . . . . . . . . . 71
SECTION 15.2 [RESERVED] . . . . . . . . . . . . . . 72
SECTION 15.3 Notices . . . . . . . . . . . . . . . 72
SECTION 15.4 Severability . . . . . . . . . . . . . 72
SECTION 15.5 No Oral Modifications or Continuing
Waivers . . . . . . . . . . . . . . 73
SECTION 15.6 Successors and Assigns . . . . . . . . 73
SECTION 15.7 Headings . . . . . . . . . . . . . . . 73
SECTION 15.8 Governing Law; Counterpart Form . . . 73
SECTION 15.9 Non-Petition . . . . . . . . . . . . . 73
SECTION 15.10 Communication by Noteholders with
Other Noteholders . . . . . . . . . 74
SECTION 15.11 Trust Indenture Act Controls . . . . . 74
SECTION 15.12 Normal Commercial Relations . . . . . 74
SECTION 15.13 Not Acting in Individual Capacity . . 74
EXHIBITS
EXHIBIT A - Form of Class A Note
EXHIBIT B - Form of Certificate of Authentication
CLASS A TRUST INDENTURE
CLASS A TRUST INDENTURE dated as of April 15,
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 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 April
15, 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 Class.
"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 1996-1 notes issued by the Issuer and
authenticated by the Indenture Trustee hereunder.
"Clearinq 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, l1th 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 April 15, 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.
"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 1996-1" shall mean the issuance of Series
1996-1 Notes.
"Territory" shall mean Puerto Pico, 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 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 nol 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 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 Recalculate 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 --o 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. 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,
$119,656,814, 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
$119,656,814 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.
(iii) 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 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 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 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 Principal Amount of the Class A
Notes of all Series is 10% or less of the aggregate
principal amount of the 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 will 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 1996-1. 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 1996-1 to be made on the
related Distribution Date pursuant to Article IV of the
Pooling Agreement), the Principal Amount with respect to
Series 1996-1 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 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 unsaid 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) 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.
(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 hereunder 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
un-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 the benefit or advantage of, any
appraisement, valuation, stay, extension or redemption
law 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 side 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:
DISTRIBUTION DATE EXPECTED SCHEDULED
AMORTIZATION
April 20, 1996 $2,857,438
May 20, 1996 3,231,393
June 20, 1996 2,690,955
July 20, 1996 2,918,759
August 20, 1996 3,653,843
September 20, 1996 2,725,643
October 20, 1996 3,158,047
November 20, 1996 3,116,864
December 20, 1996 2,736,798
January 20, 1996 2,761,451
February 20, 1997 2,898,158
March 20, 1997 2,650,869
April 20, 1997 2,560,079
May 20, 1997 2,881,697
June 20, 1997 2,668,127
July 20, 1997 2,596,673
August 20, 1997 2,787,082
September 20, 1997 2,576,652
October 20, 1997 2,815,270
November 20, 1997 2,749,220
December 20, 1997 2,538,808
January 20, 1998 2,500,974
February 20, 1998 2,550,147
March 20, 1998 2,413,761
April 20, 1998 2,433,565
May 20, 1998 2,518,904
June 20, 1998 2,394,521
July 20, 1998 2,398,619
August 20, 1998 4,131,085
September 20, 1998 2,369,271
October 20, 1998 2,296,906
November 20, 1998 2,305,259
December 20, 1998 2,069,973
January 20, 1999 2,082,593
February 20, 1999 1,865,336
March 20, 1999 1,843,085
April 20, 1999 1,788,746
May 20, 1999 1,784,499
June 20, 1999 1,771,272
July 20, 1999 1,932,896
August 20, 1999 1,686,228
September 20, 1999 1,639,373
October 20, 1999 1,658,296
November 20, 1999 1,388,254
December 20, 1999 1,271,818
January 20, 2000 1,111,194
February 20, 2000 1,009,556
March 20, 2000 961,666
April 20, 2000 933,778
May 20, 2000 972,819
June 20, 2000 1,078,258
July 20, 2000 979,255
August 20, 2000 947,675
September 20, 2000 754,250
October 20, 2000 239,158
(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 tn 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
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 he 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 direction, 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 :he 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 Shawmut Trust Company, 14
Wall Street, 8th Floor, Window 2, New York, New York
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 tine 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
May 1, beginning with May 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 ISSUER TRUSTEES; SEPARATE ISSUER TRUSTEES
SECTION 10.1 Notice of Successor Issuer
Trustee. In the case of any appointment of a successor
to the Issuer 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 Issuer Trustee pursuant to the Pooling Agreement, the
successor Issuer 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 rna@7 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 affect 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 consent 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 shall consider to be
for the Indenture Trustee 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 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 he 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 Dr 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 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 3 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
@o 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 exiting 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 Chemical
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: 408271-0508, 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 :o 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 3.12(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, 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 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.
Exhibit A
REGISTERED $____________
No. ______
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. 651118YAA5
UNLESS THIS SERIES 1996-1 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 1996-1
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 1996-1 CLASS A
NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS
SERIES 1996-1 CLASS A NOTE AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ON THE FACE HEREOF.
NEWCOURT RECEIVABLES ASSET TRUST
SERIES 1996-1 CLASS A 6.79% 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 1996-1 Class A Note
shall be due and payable on the earlier of the Maturity
Date of August 20, 2003 and the date fixed for
redemption, if any, pursuant to Section 3.2 of the
Indenture. The Issuer will pay interest on this Series
1996-1 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 7.79% per
annum; it will pay interest on overdue installments of
interest (without regard to any applicable grace periods)
at the rate of 7.79% 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 April 22, 1996.
The principal of and interest on this Series
1996-1 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 1996-1 Class A Note shall be applied first to
interest due and payable on this Series 1996-1 Class A
Note as provided above and t:hen to the unpaid principal
of this Series 1996-1 Class A Note.
Reference is made to the further provisions of
this Series 1996-1 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 1996-1 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 1996-1
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: Chemical 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 1996-1 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 1996-1 Class A Note is one of a
duly authorized issue of Notes of the Issuer, designated
as its Series 1996-1 Class A 6.7/9% Asset Backed Notes
(the "Series 1996-1 Class A Notes"), issued under the
Class A Indenture dated as of April 15, 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 1996-1 Class A Notes. The Series 1996-1
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 1996-1. 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 1996-1 Class B 7.53% Asset Backed Notes (the
"Series 1996-1 Class B Notes") and the Series 1996-1
Class C 9.05% Asset Backed Notes (the "Series 1996-1
Class C Notes" and together with the Series 1996-1 Class
A Notes and the Series 1996-1 Class B Notes, the "Series
1996-1 Notes") are issued pursuant to respective Note
Purchase Agreements, each dated April 10, 1996, among the
Seller, Newcourt Credit Group Inc., as Servicer (the
"Servicer"), the Trust and the purchasers named therein.
The Series 1996-1 Class B Notes and the Series 1996-1
Class Notes are subordinated in right of payment to the
Series 1996-1 Class A Notes.
The Series 1996-1 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
April 15, 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
1996-1 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 1996-1 Class A Notes
shall have declared the Series 1996-1 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
1996-1 Class A Notes shall be made pro rata to the Series
1996-1 Class A Noteholders entitled thereto.
Payments of interest on this Series 1996-1
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 1996-1 Class A Note, shall be
made in accordance with Section 2.4 of the Indenture to
the Series 1996-1 Class A Noteholder. Any reduction in
the principal amount of this Series 1996-1 Class A Note
effected by any payments made on any Distribution Date
shall be binding upon all future Holders of this Series
1996-1 Class A Note and of any Series 1996-1 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
1996-1 Class A Note on a Distribution Date, then the
Indenture Trustee will notify the Series 1996-1 Class A
Noteholder b, 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 1996-1 Class A Note at the
office or offices designated in such notice.
The Holder of this Series 1996-1 Class A Note,
by its acceptance of this Series 1996-1 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 1996-1 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 1996-1 Class A Note or
beneficial interest therein, (i) express their intention
that the Series 1996-1 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 1996-1 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 1996-1 Class A Note,
by acceptance of this Series 1996-1 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 1996-1 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 1996-1 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 1996-1 Class A Note and for all other purposes,
whether or not this Series 1996-1 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
1996-1 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 1996-1 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 1996-1 Class A Note shall be
conclusive and binding upon such Holder and upon all
future Holders of this Series 1996-1 Class A Note and of
any Series 1996-1 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 1996-1 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 1996-1 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 1996-1 Class A Note includes any successor to the
Issuer Trustee under the Indenture.
The Series 1996-1 Class A Notes are issuable
only in registered form without coupons in denominations
as provided in the Indenture, subject to certain
imitations therein set forth.
No reference herein to the Indenture or the
Pooling Agreement and no provision of this Series 1996-1
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 1996-1 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 1996-1 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 1996-1 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--l Class A Note and all rights
thereunder, and hereby irrevocably constitutes and
appoints attorney, to transfer said Series 1996-1 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 1996-1 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 1996-1 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
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: Chemical Bank Delaware,
as Issuer Trustee
By:/s/ John J. Cashin
Title:
NEWCOURT RECEIVABLES CORPORATION
By:/s/ Daniel A. Jauernig
Title:
FLEET NATIONAL BANK,
as Collateral Agent
By:/s/ Susan Keller
Title: Vice President
FLEET NATIONAL BANK,
as Indenture Trustee
By:/s/ Susan 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:
<TABLE>
<CAPTION>
Newcourt Receivables Master
Asset Trust Monthly Servicer Trust
Certificate - Accounts Collection Reserve Distribution Series Series
Account Account Account 1996-1 1996-2
<S> <C> <C> <C> <C> <C>
Beginning Account Balances 0.00 1,300,617.54 0.00
Investment Earnings 0.00 0.00
Collection Account
Collections [4.3 a] 3,397,915.52
Add: Servicer Advances [4.3 b] 0.00
Add: Liquidation Proceeds
from Servicer 0.00
Less: Collections to reimburse
Servicer Advances [4.3 c] 0.00
Less: Investment Earnings to
Newcourt [4.2 e] 0.00 0.00
Available Amount (3,397,915.52) 3,397,915.52
Payments on Payment Date
(A) Unreimbursed
Servicer Advances [4.3 d i] 0.00 0.00
(B) Servicing Fee
[4.3 d ii] (65,030.88) 65,030.88
(C) Amount owed to
Hedging Counterparty
[4.3 d iii] 0.00 0.00
(D) Series Available Amount
to each Series of
Notes [4.3 d iv] 3,332,884.64 3,332,884.64 0.00
(1) Class A Inter-
est [4.3 d iv A] (677,058.14) 677,058.14 0.00
(2)Class B Inter-
est [4.3 d iv B] (32,645.50) 32,645.50 0.00
(3)Class A Prin-
cipal [4.3 d iv C] (2,598,744.55) 2,598,744.55 0.00
(4)Reserve Ac-
count [4.3 d iv D] 24,898.73 (24,898.73) (24,898.73) 0.00
(5)Class C Inter-
est [4.3 d iv E] (24,436.45) 24,436.45 0.00
(6)Class B Prin-
cipal [4.3 d iv F] 0.00 0.00 0.00
(7)Class C Prin-
cipal [4.3 d iv G] 0.00 0.00 0.00
(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 24,898.73
Distributions to Noteholders (3,397,915.52) 65,030.88 3,332,884.64 0.00
Ending Balance 0.00 1,275,718.81 0.00
</TABLE>
<TABLE>
<CAPTION>
Newcourt Receivables Asset Trust
Monthly Servicer Certificate - Schedules
<S> <C> <C>
Class A Interest Schedule Series 1996-1 Series 1996-2
Opening Class A Principal Balance 119,656,814.00 0.00
Class A Interest Rate 6.79% 0.00%
30/360*Class A Interest Rate 0.57% 0.00%
Current Class A Interest Distribution 677,058.14 0.00
Prior Class A Interest Arrearage 0.00 0.00
Class A Interest Due 677,058.14 0.00
Class A Principal Schedule Series 1996-1 Series 1996-2
Opening Class A Principal Balance 119,656,814.00 0.00
Prior Months Series ADCB 130,061,754.00 0.00%
Current Months Series ADCB 128,291,084.65 0.00
Difference 1,770,669.35 0.00
Class A Share 92.00% 0.00%
Scheduled Principal Due 1,629,015.80 0.00
Current Prepayments 755,041.53 0.00
Current Defaults 214,687.22 0.00
Class A Total Due 2,598,744.55 0.00
Prior Class A Arrearage 0.00 0.00
Class A Principal Due 2,598,744.55 0.00
Class A Principal Distribution 2,598,744.55 0.00
Current Class A Arrearage 0.00 0.00
Interim Class A Principal
Balance after Current Distribution 117,058,069.45 0.00
Accelerated Class A Distribution Amount 0.00 0.00
Ending Class A Principal Balance
after Current Distribution 117,058,069.45 0.00
Class B Interest Schedule Series 1996-1 Series 1996-2
Opening Class B Principal Balance 5,202,470 0.00
Class B Interest Rate 7.53% 0.00%
30/360* Class B Interest Rate 0.63% 0.00%
Current Class B Interest Distribution 32,645.50 0.00
Prior Class B Interest Arrearage 0.00 0.00
Class B Interest Due 33,645.50 0.00
Class B Principal Schedule
Opening Class B Principal Balance 5,202,470.00 0.00
Prior Months Series ADCB 130,061,754.00 0.00
Current Months Series ADCB 128,291,084.65 0.00
Difference 1,770,669.35 0.00
Class B Share 4.00% 0.00%
Scheduled Principal Due 70,826.77 0.00
Current Prepayments 0.00 0.00
Current Defaults 0.00 0.00
Class B Total Due 70,826.77 0.00
Prior Class B Arrearage 0.00 0.00
Class B Principal Due 70,826.77 0.00
Class B Principal Distribution 0.00 0.00
Current Class B Arrearage 70,826.77 0.00
Interim Class B Principal Balance after Current
Distribution 5,202,470.00 0.00
Accelerated Class B Distribution Amount 0.00 0.00
Ending Class B Principal Balance after Current
Distribution 5,202,470.00 0.00
Class C Interest Schedule
Opening Class C Principal Balance 5,202,470.00 0.00
Class C Interest Rate 9.05% 0.00%
30/360* Class C Interest Rate 0.75% 0.00%
Current Class C Interest Distribution 39,235.29 0.00
Prior Class C Interest Arrearage 0.00 0.00
Class C Interest Due 39,235.29 0.00
Class C Principal Schedule
Opening Class C Principal Balance 5,202,470.00 0.00
Prior Months Series ADCB 130,061,754.00 0.00
Current Months Series ADCB 128,291,084.65 0.00
Difference 1,770,669.35 0.00
Class C Share 4.00% 0.00%
Scheduled Principal Due 70,826.77 0.00
Prior Class C Arrearage 0.00 0.00
Class C Principal Due 70,826.77 0.00
Class C Principal Distribution 0.00 0.00
Current Class C Arrearage 70,826.77 0.00
Interim Class C Principal Balance after Current
Distribution 5,202,470.00 0.00
Accelerated Class C Distribution Amount 0.00 0.00
Ending Class C Principal Balance after Current
Distribution 5,202,470.00 0.00
</TABLE>
Newcourt Receivables Asset Trust
Monthly Servicer Certificate - Restricting Events
Restricting Event Calculations
(1) Event of Default under the Servicing Agreement (Yes/No) no
(a) ADCB Delinquencies
3 Month Rolling Avg. ADCB 42,452,398
Delinquency Ratio 0.78%
Maximum Delinquency Ratio 2.00%
(b) Annualized AD B Defaulted Contracts Ratio 0.33%
Maximum Default Ratio 1.00%
(c) Reserve plus APB Subordination no
(d) Restricting Event under any Indenture no
Portfolio Performance Tests
1 month 2 months 3 months 4 months 5 months
prior prior prior prior prior
Current: (yes/no) (yes/no) (yes/no) (yes/no) (yes/no)
Event of Default: no no no no no no
Monthly Weighted
Delinquencies Delinquencies ADCB Delinquency Average
0
2 months prior 0 0 0.00% 0.00%
1 month prior 0 0 0.00% 0.00%
Current 998,846 127,357,194 0.78% 0.78%
____ ____
0.26% 0.78%
Delinquency Ratio: 0.78%
Maximum Delinquency Ratio: 2.00%
Charge-Offs
0
Monthly
Charge-Offs ADCB Defaults
5 months prior 0 0 0.00%
4 months prior 0 0 0.00%
3 months prior 0 0 0.00%
2 months prior 0 0 0.00%
1 month prior 0 0 0.00%
Current 34,687 127,357,194 0.03%
______ ___________ ____
34,687 127,357,194 0.00%
Average ADCB 21,226,199
Annualized Maximum Charge-Off Ratio: 1.00%
1% of Average ADCB 212,262
Sum of Charge-Offs*2 69,374
Annualized Charge-Off Ratio: 0.33%
Enhancement Floor
0
Enhancement Floor 2,925,889
Amounts on deposit in the Reserve Account 1,275,719
ADCB less Aggregate Principal Amount
of Class A Notes 10,299,125
11,574,844
Newcourt Receivables Asset Trust
Monthly Servicer Certificate - Certificate Schedules
CERTIFICATE FACTORS
Series 1996-1 Series 1996-2
Class A
Current A Balance 117,058,069 0
Initial A Balance 119,656,814 0
Certificate Factor: 0.9782816835 0
Class B
Current B Balance 5,202,470 0
Initial B Balance 5,202,470 0
Certificate Factor: 1.0000000000 0
Class C
Current C Balance 5,202,470 0
Initial C Balance 5,202,470 0
Certificate Factor: 1.0000000000 0
DELINQUENCIES
Monthly
Delinquencies ADCB Delinquencies
Current 120,394,597 127,357,194 94.53%
31-60 Days Past Due 5,963,751 127,357,194 4.68%
61-90 Days Past Due 998,846 127,357,194 0.78%
Newcourt Receivables Asset Trust
Monthly Servicer Certificate - Schedules
Servicing Fee Schedule
Contract Pool ADCB 130,061,754.00 0.00
Servicing Rate 0.60% 0.60%
Monthly Servicing Rate 0.05% 0.05%
Prior Servicing Fee Arrearage 0.00 0.00
Current Servicer Fee 65,030.88 0.00
Servicer Fee Due 65,030.88 0.00
Current Servicing Fee Arrearage 0.00 0.00
Reserve Account Schedule
Series 1995-1 Series 1996-1
Prior Month Balance 1,300,617.54 0.00
Series ADCB 127,357,194.16 0.00
Required Balance
(Series ADCB *1.00%) 1,273,571.94 0.00
Deposit/(Release)
from Reserve Account (24,898.73) 0.00
Ending Reserve Account Balance 1,275,718.81 0.00
<TABLE>
<CAPTION>
Newcourt Receivables Asset Trust
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 1,275,719.27
Investment Earnings 989.22 378.46 0.00
Collection Account
Collections [4.3 a] 3,484,185.43
Add: Servicer Advances [4.3 b] 265,916.68
Add: Liquidation Proceeds from Servicer
Less: Collections to reimburse
Servicer Advances [4.3 c] 0.00 0.00
Less: Investment Earnings to Newcourt
[4.2 e] (989.22) (378.46)
Available Amount (3,750,102.11) 3,750,102.11
Payments on Payment Date
(A) Unreimbursed Servicer Advances
[4.3 d i] 0.00 0.00
(B) Servicing Fee [4.3 d ii] (64,145.54) 64.145.54
(C) Amount owed to Hedging
Counterparty [4.3 d iii] 0.00 0.00
(D) Series Available Amount to each
Series of Notes [4.3 d iv] 3,685,956.57 3,685,956.57 0.00
(1) Class A Interest
[4.3 d iv A] (662,353.58) 662,353.58 0.00
(2) Class B Interest
[4.3 d iv B] (32,645.50) 32,645.50 0.00
(3) Class A Principal
[4.3 d iv C] (2,990,957.49) 2,990,957.49 0.00
(4) Reserve Account
[4.3 d iv D] 12,586.22 (12,586.22) (12,586.22) 0.00
(5) Class C Interest
[4.3 d iv E] 0.00 0.00 0.00
(6) Class B Principal
[4.3 d iv F] 0.00 0.00 0.00
(7) Class C Principal
[4.3 d iv G] 0.00 0.00 0.00
(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 12,586.22
Distribution to Noteholders (3,750,102.11) 64,145.54 3,685,956.57 0.00
Ending Balance 0.00 1,263,133.05 0.00
</TABLE>
Newcourt Receivables Asset Trust
Monthly Servicer Certificate - Schedules
Series 1996-1 Series 1996-2
Class A Interest Schedule
Opening Class A Principal Balance 117,058,069.45 0.00
Class A Interest Rate 6.79% 0.00%
30/360*Class A Interest Rate 0.57% 0.00%
Current Class A Interest Distribution 662,353.58 0.00
Prior Class A Interest Arrearage 0.00 0.00
Class A Interest Due 662,353.58 0.00
Class A Principal Schedule
Series 1996-1 Series 1996-2
Opening Class A Principal Balance 117,058,069.45 0.00
Prior Months Series ADCB 128,291,084.65 0.00
Current Months Series ADCB 126,313,305.15 0.00
Difference 1,977,779.50 0.00
Class A Share 92.00% 0.00%
Scheduled Principal Due 1,819,557.14 0.00
Current Prepayments 728,306.71 0.00
Current Defaults 443,093.64 0.00
Class A Total Due 2,990,957.49 0.00
Prior Class A Arrearage 0.00 0.00
Class A Principal Due 2,990,957.49 0.00
Class A Principal Distribution 2,990,957.49 0.00
Current Class A Arrearage 0.00 0.00
Interim Class A Principal 114,067,111.96 0.00
Balance after Current Distribution
Accelerated Class A Distribution Amount 0.00 0.00
Ending Class A Principal Balance
after Current Distribution 114,067,111.96 0.00
Class B Interest Schedule Series 1996-1 Series 1996-2
Opening Class B Principal Balance 5,202,470 0.00
Class B Interest Rate 7.53% 0.00%
30/360*Class B Interest Rate 0.63% 0.00%
Current Class B Interest Distribution 32,645.50 0.00
Prior Class B Interest Arrearage 0.00 0.00
Class B Interest Due 32,645.50 0.00
Opening Class B Principal Balance 5,202,470.00 0.00
Prior Months Series ADCB 128,291,084.65 0.00
Current Months Series ADCB 126,313,305.15 0.00
Difference 1,977,779.50 0.00
Class B Share 4.00% 0.00%
Scheduled Principal Due 79,111.18 0.00
Current Prepayments 0.00 0.00
Current Defaults 0.00 0.00
Class B Total Due 79,111.18 0.00
Prior Class B Arrearage 70,826.77 0.00
Class B Principal Due 149,937.95 0.00
Class B Principal Distribution 0.00 0.00
Current Class B Arrearage 149,937.95 0.00
Interim Class B Principal Balance
after Current Distribution 5,202,470.00 0.00
Accelerated Class B Distribution Amount 0.00 0.00
Ending Class B Principal Balance
after Current Distribution 5,202,470.00 0.00
Class C Interest Schedule
Opening Class C Principal Balance 5,202,470.00 0.00
Class C Interest Rate 9.05% 0.00%
30/360*Class C Interest Rate 0.75% 0.00%
Current Class C Interest Distribution 39,235.29 0.00
Prior Class C Interest Arrearage 14,798.84 0.00
Class C Default Rate 10.05%
30/360*Class C Interest Default Rate 0.84%
Interest on Interest Arrearage 123.94
Class C Interest Due 54,158.07 0.00
Class C Interest Paid 0.00 0.00
Class C Interest Arrearage 54,158.07 0.00
Class C Principal Schedule
Opening Class C Principal Balance 5,202,470.00 0.00
Prior Months Series ADCB 128,291,084.65 0.00
Current Months Series ADCB 126,313,305.15 0.00
Difference 1,977,779.50 0.00
Class C Share 4.00% 0.00%
Scheduled Principal Due 79,111.18 0.00
Prior Class C Arrearage 70,826.77 0.00
Class C Principal Due 149,937.95 0.00
Class C Principal Distribution 0.00 0.00
Current Class C Arrearage 149,937.95 0.00
Interim Class C Principal
Balance after Current Distribution 5,202,470.00 0.00
Accelerated Class C Distribution Amount 0.00 0.00
Ending Class C Principal Balance
After Current Distribution 5,202,470.00 0.00
Newcourt Receivables Asset Trust
Monthly Servicer Certificate - Schedules
Servicing Fee Schedule
Contracting Pool ADCB 128,291,084.65 0.00
Servicing Rate 0.60% 0.60%
Monthly Servicing Rate 0.05% 0.05%
Prior Servicing Fee Arrearage 0.00 0.00
Current Servicer Fee 64,145.54 0.00
Servicer Fee Due 64,145.54 0.00
Current Servicing Fee Arrearage 0.00 0.00
Reserve Account Schedule
Series 1995-1 Series 1996-1
Prior Month Balance 1,275,719.27 0.00
Series ADCB 126,313,305.15 0.00
Required Balance (Series ADCB *1.00%) 1,263,133.05 0.00
Deposit/(Release) from Reserve Account (12,586.22) 0.00
Ending Reserve Account Balance 1,263,133.05 0.00
Newcourt Receivables Asset Trust
Monthly Servicer Certificate - Restricting Events
Restricting Event Calculations
(1) Event of Default under the Servicing Agreement (Yes/No) no
(a) ADCB Delinquencies
3 Month Rolling Avg. ADCB 84,166,366
Delinquency Ratio 0.73%
Maximum Delinquency Ratio 2.00%
(b) Annualized ADCB Defaulted Contracts Ratio 0.40%
Maximum Default Ratio 1.00%
(c) Reserve plus APB Subordination no
(d) Restricting Event under any Indenture no
Portfolio Performance Tests
1 month 2 months 3 months 4 months 5 months
prior prior prior prior prior
Current: (yes/no) (yes/no) (yes/no) (yes/no) (yes/no)
Event of Default: no no no no no no
Monthly Weighted
Delinquencies Delinquencies ADCB Delinquency Average
0
2 months prior 0 0 0.00% 0.00%
1 month prior 998,846 127,357,194 0.78% 0.40%
Current 841,986 125,141,905 0.67% 0.33%
0.49% 0.73%
Delinquency Ratio: 0.73%
Maximum Delinquency Ratio: 2.00%
Monthly
Charge-Offs Charge-Offs ADCB Defaults
0
5 months prior 0 0 0.00%
4 months prior 0 0 0.00%
3 months prior 0 0 0.00%
2 months prior 0 0 0.00%
1 month prior 34,687 127,357,194 0.03%
Current 50,037 125,141,905 0.04%
84,724 252,499,099 0.01%
Average ADCB 42,083,183
Annualized Maximum Charge-Off Ratio: 1.00%
1% of Average ADCB 420,083,183
Sum of Charge-Offs * 2 169,447
Annualized Charge-Off Ratio: 0.40%
Enhancement Floor
0
Enhancement Floor 2,925,889
Amounts on deposit in the Reserve
Account 1,263,133
ADCB less Aggregate Principal Amount
of Class A Notes 11,074,793
12,337,926
Newcourt Receivables Asset Trust
Monthly Servicer Certificate - Certificate Schedules
CERTIFICATE FACTORS
Series 1996-1 Series 1996-2
Class A
Current A Balance 114,067,112 0
Initial Balance 119,656,814 0
Certificate Factor: 0.9532855518 0
Class B
Current B Balance 5,202,470 0
Initial B Balance 5,202,470 0
Certificate Factor: 1.0000000000 0
Class C
Current C Balance 5,202,470 0
Initial C Balance 5,202,470 0
Certificate Factor: 1.0000000000 0
DELINQUENCIES
Monthly
Delinquencies ADCB Delinquencies
Current 118,964,632 125,141,905 95.06%
31-60 Days Past Due 5,335,288 125,141,905 4.26%
61-90 Days Past Due 841,986 125,141,905 0.67%
NEWCOURT - TREASURY
Monthly Servicer Certificate - Inputs May 1996
Accounts
- --------
Collection Account
Beginning Balance 0.00
Sum of Deposits from Collections 4,565,730.50
Add: Servicer Advances 1,543,920.92
Add: Liquidation Proceeds from Servicer 0.00
Add: Earnings from Eligible Investments 13,770.02
Less: Collections to reimburse Servicer Advances 0.00
Reserve Account
- ---------------
Beginning Balance 1,263,133.05
Add: Investment Earnings on Reserve Account 6,191.77
Distribution Account
- --------------------
Beginning Balance 0.00
Unreimbursed Servicer Advances from Prior Month 265,916.68
Prior Month Servicing Fee Arrearage 0.00
Amount Owed to Hedging Counterparty 0.00
Series 1996-1 Series 1996-2
------------- -------------
Class 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 149,937.95 0.00
Class C Interest Arrearage 54,158.07 0.00
Class C Principal Arrearage 149,937.95 0.00
Initial A Balance 119,656,814.00 0.00
Initial B Balance 5,202,470.00 0.00
Initial C Balance 5,202,470.00 0.00
Minimum Credit Enhancement + 2,925,889.00 0.00
Restricting Event Calculations
- ------------------------------
<TABLE>
<CAPTION>
<C> <C> <C> <C> <C> <C> <C> <C>
Current 1 Month Prior 2 Months Prior 3 Months Prior 4 Months Prior 5 Months Prior 6 Months Prior
------- ------------- -------------- -------------- -------------- -------------- --------------
31 - 60 Days Past Due 5,567,100 5,335,288 5,963,751 0 0 0 0
61 - 90 Days Past Due 740,468 841,986 998,846 0 0 0 0
90 Days Past Due 724,549 443,094 214,687 0 0 0 0
Delinquent (60+ days
past due) 1,465,016 1,285,079 1,213,534 0 0 0 0
Delinquency Ratio 2.00%
Gross Charge-Offs 632,132 188,037 214,687 0 0 0 0
Recoveries 624,792 138,000 180,000 0 0 0 0
Charge-Offs - Net
of Recoveries 7,340 50,037 34,687 0 0 0 0
Charge-Off Ratio 1.00%
Contract Pool ADCB 122,329,074 125,141,905 127,357,194 0 0 0 0
(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>
Schedules
Class A Interest Schedule
- -------------------------
Series 1996-1 Series 1996-2
------------- -------------
Prior Months Series ADCB 126,313,305.15 0.00
Current Months Series ADCB 123,057,617.79 0.00
Prepayments 728,544.09 0.00
Defaults 724,548.56 0.00
Opening Class A Principal Balance 114,067,111.96 0.00
Opening Class B Principal Balance 5,202,470.00 0.00
Opening Class C Principal Balance 5,202,470.00 0.00
Series Allocations
Series 1996-1 Series 1996-2
Series Expected Cash Flow 3,307,926.18 0.00
Series Arrearage 149,937.95 0.00
Aggregate Series Expected Cash Flow 3,307,926.18 0.00
Aggregate Series Arrearages 149,937.95 0.00
Series Allocation Percentage 100.00% 0.00%
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
Master Trust
Collection Reserve Distribution Series Series
Newcourt Receivables Asset Trust Account Account Account 1996-1 1996-2
Monthly Servicer Certificate- Accounts ------------- ------------- ------------- -------- ---------
Beginning Account Balances 0.00 1,263,133.05 0.00
Investment Earnings 13,770.02 6,191.77
Collection Account
Collections [4.3a] 4,565,730.50
Add: Servicer Advances [4.3b] 1,543,920.92
Add: Liquidation Proceeds from Servicer 0.00
Less: Collections to reimburse Servicer
Advances [4.3c] 0.00
Less: Investment Earnings to Newcourt [4.2e] (13,770.02) (6,191.77)
Available Amount (6,109,651.42) 6,109,651.42
- ----------------
Payments on Payment Date
- ------------------------
(A) Unreimbursed Servicer Advances [4.3 d i] (265,916.68) 265,916.68
(B) Servicing Fee [4.3 d ii] (63,156.65) 63,156.65
(C) Amount owed to Hedging Counterparty
[4.3 d iii] 0.00 0.00
(D) Series Available Amount to each Series
of Notes [4.3 d iv] 5,780,578.09 5,780,578.09 0.00
(1)Class A Interest [4.3 d iv A] (645,429.74) 645,429.74 0.00
(2)Class B Interest [4.3 d iv B] (32,645.50) 32,645.50 0.00
(3)Class A Principal [4.3 d iv C] (4,448,325.02) 4,448,325.02 0.00
(4)Reserve Account [4.3 d iv D] 32,556.87 (32,556.87) (32,556.87) 0.00
(5)Class C Interest [4.3 d iv E] (93,846.94) 93,846.94 0.00
(6)Class B Principal [4.3 d iv F] (280,165.44) 280,165.44 0.00
(7)Class C Principal [4.3 d iv G] (280,165.44) 280,165.44 0.00
(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 32,556.87
Distributions to Noteholders (6,109,651.42) 329,073.33 5,780,578.09 0.00
Ending Balance 0.00 1,230,576.18 0.00
</TABLE>
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Newcourt Receivables Asset Trust
Monthly Servicer Certificate - Schedules
Class A Interest Schedule Series 1996-1 Series 1996-2
Opening Class A Principal Balance 114,067,111.96 0.00
Class A Interest Rate 6.79% 0.00%
30/360* Class A Interest Rate 0.57% 0.00%
Current Class A Interest Distribution 645,429.74 0.00
Prior Class A Interest Arrearage 0.00 0.00
Class A Interest Due 645,429.74 0.00
Class A Principal Schedule Series 1996-1 Series 1996-2
Opening Class A Principal Balance 114,067,111.96 0.00
Prior Months Series ADCB 126,313,305.15 0.00
Current Months Series ADCB 123,057,617.79 0.00
-------------- ----
Difference 3,255,687.36 0.00
Class A Share 92.00% 0.00%
Scheduled Principal Due 2,995,232.37 0.00
Current Prepayments 728,544.09 0.00
Current Defaults 724,548.56 0.00
Class A Total Due 4,448,325.02 0.00
Prior Class A Arrearage 0.00 0.00
Class A Principal Due 4,448,325.02 0.00
Class A Principal Distribution 4,448,325.02 0.00
Current Class A Arrearage 0.00 0.00
Interim Class A Principal Balance after
Current Distribution 109,618,786.94 0.00
Accelerated Class A Distribution Amount (0.00) 0.00
Ending Class A Principal Balance after
Current Distribution 109,618,786.94 0.00
Class B Interest Schedule Series 1996-1 Series 1996-2
Opening Class B Principal Balance 5,202,470 0.00
Class B Interest Rate 7.53% 0.00%
30/360* Class B Interest Rate 0.63% 0.00%
Current Class B Interest Distribution 32,645.50 0.00
Prior Class B Interest Arrearage 0.00 0.00
Class B Interest Due 32,645.50 0.00
Class B Principal Schedule
Opening Class B Principal Balance 5,202,470.00 0.00
Prior Months Series ADCB 126,313,305.15 0.00
Current Months Series ADCB 123,057,617.79 0.00
-------------- ----
Difference 3,255,687.36 0.00
Class B Share 4.00% 0.00%
Scheduled Principal Due 130,227.49 0.00
Current Prepayments 0.00 0.00
Current Defaults 0.00 0.00
Class B Total Due 130,227.49 0.00
Prior Class B Arrearage 149,937.95 0.00
Class B Principal Due 280,165.44 0.00
Class B Principal Distribution 280,165.44 0.00
Current Class B Arrearage 0.00 0.00
Interim Class B Principal Balance after Current Distribution 4,922,304.56 0.00
Accelerated Class B Distribution Amount (0.00) 0.00
Ending Class B Principal Balance after Current Distribution 4,922,304.56 0.00
Class C Interest Schedule
Opening Class C Principal Balance 5,202,470.00 0.00
Class C Interest Rate 9.05% 0.00%
30/360* Class C Interest Rate 0.75% 0.00%
Current Class C Interest Distribution 39,235.29 0.00
Prior Class C Interest Arrearage 54,158.07 0.00
Class C Default Rate 10.05%
30/360* Class C Interest Default Rate 0.84%
Interest on Interest Arrearage 453.57
Class C Interest Due 93,846.94 0.00
Class C Interest Paid 93,846.94 0.00
Class C Interest Arrearage 0.00 0.00
Class C Principal Schedule
Opening Class C Principal Balance 5,202,470.00 0.00
Prior Months Series ADCB 126,313,305.15 0.00
Current Months Series ADCB 123,057,617.79 0.00
-------------- ----
Difference 3,255,687.36 0.00
Class C Share 4.00% 0.00%
Scheduled Principal Due 130,227.49 0.00
Prior Class C Arrearage 149,937.95 0.00
Class C Principal Due 280,165.44 0.00
Class C Principal Distribution 280,165.44 0.00
Current Class C Arrearage 0.00 0.00
Interim Class C Principal Balance after Current Distribution 4,922,304.56 0.00
Accelerated Class C Distribution Amount (0.00) 0.00
Ending Class C Principal Balance after Current Distribution 4,922,304.56 0.00
Newcourt Receivables Asset Trust
Monthly Servicer Certificate - Schedules
Servicing Fee Schedule
Contract Pool ADCB 126,313,305.15 0.00
Servicing Rate 0.60% 0.60%
Monthly Servicing Rate 0.05% 0.05%
Prior Servicing Fee Arrearage 0.00 0.00
Current Servicer Fee 63,156.65 0.00
Servicer Fee Due 63,156.65 0.00
Current Servicing Fee Arrearage 0.00 0.00
0.00
Reserve Account Schedule
Series 1995-1 Series 1996-1
Prior Month Balance 1,263,133.05 0.00
Series ADCB 123,057,617.79 0.00
Required Balance (Series ADCB* 1.00%) 1,230,576.18 0.00
Deposit/(Release) from Reserve Account (32,556.87) 0.00
Ending Reserve Account Balance 1,230,576.18 0.00
------------ ----
</TABLE>
Newcourt Receivables Asset Trust
Monthly Servicer Certificate - Restricting Events
Restricting Event Calculations
(1) Event of Default under the Servicing
Agreement (Yes/No) no
(a) ADCB Delinquencies
3 Month Rolling Avg. ADCB 124,942,724
Delinquency Ratio 0.69%
Maximum Delinquency Ratio 2.00%
(b) Annualized ADCB Defaulted Contracts Ratio 0.29%
Maximum Default Ratio 1.00%
(c) Reserve plus APB Subordination no
(d) Restricting Event under any Indenture no
<TABLE>
<CAPTION>
Portfolio Performance Tests:
<S> <C> <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>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
Monthly Weighted
Delinquencies Delinquencies ADCB Delinquency Average
------------- ---- ----------- -------
0
2 months prior 998,846 127,357,194 0.78% 0.27%
1 month prior 841,986 125,141,905 0.67% 0.22%
Current 740,468 122,329,074 0.61% 0.20%
----- -----
0.69% 0.69%
Delinquency Ratio: 0.69%
Maximum Delinquency Ratio: 2.00%
</TABLE>
Monthly
Charge-Offs Charge-Offs ADCB Defaults
0
5 months prior 0 0 0.00%
4 months prior 0 0 0.00%
3 months prior 0 0 0.00%
2 months prior 34,687 127,357,194 0.03%
1 month prior 50,037 125,141,905 0.04%
Current 7,340 122,329,074 0.01%
----- ----------- -----
92,064 374,828,173 0.01%
Average ADCB 62,471,362
Annualized Maximum Charge-Off Ratio: 1.00%
-----
1% of Average ADCB 624,714
Sum of Charge-Offs * 2 184,128
Annualized Charge-Off Ratio: 0.29%
Enhancement Floor
0 Enhancement Floor 2,925,889
Amounts on deposit in the Reserve Account 1,230,576
ADCB less Aggregate Principal Amount
of Class A Notes 12,710,287
13,940,863
Newcourt Receivables Asset Trust
Monthly Servicer Certificate - Certificate Schedules
Certificate Factors
Series 1996-1 Series 1996-2
Class A
Current A Balance 109,618,787 0
Initial A Balance 119,656,814 0
Certificate Factor: 0.9161098585 0
Class B
Current B Balance 4,922,305 0
Initial B Balance 5,202,470 0
Certificate Factor: 0.9461476098 0
Class C
Current C Balance 4,922,305 0
Initial C Balance 5,202,470 0
Certificate Factor: 0.9461476102 0
Delinquencies
Monthly
Delinquencies ADCB Delinquencies
------------- ---- -------------
Current 116,021,506 122,329,074 94.84%
31 - 60 Days Past Due 5,567,100 122,329,074 4.55%
61 - 90 Days Past Due 740,468 122,329,074 0.61%
