EXECUTION COPY
MASTER SPREAD ACCOUNT AGREEMENT,
dated as of June 20, 1996
among
ATLANTIC AUTO THIRD FUNDING CORPORATION,
FINANCIAL SECURITY ASSURANCE INC.
and
THE CHASE MANHATTAN BANK,
as Trustee and as Collateral Agent
TABLE OF CONTENTS
Page
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ARTICLE I.
DEFINITIONS
Section 1.01. Definitions. . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.02. Rules of Interpretation. . . . . . . . . . . . . . . . . . 12
ARTICLE II.
REVERSIONARY HOLDERS; SERIES SUPPLEMENTS; THE COLLATERAL
Section 2.01. Reversionary Holders.. . . . . . . . . . . . . . . . . . . 12
Section 2.02. Series Supplements.. . . . . . . . . . . . . . . . . . . . 13
Section 2.03. Creation and Grant of Security Interest by
the Seller.. . . . . . . . . . . . . . . . . . . . . . . 14
Section 2.04. Priority.. . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 2.05. Seller Remains Liable. . . . . . . . . . . . . . . . . . . 15
Section 2.06. Maintenance of Collateral. . . . . . . . . . . . . . . . . 16
Section 2.07. Termination and Release of Rights. . . . . . . . . . . . . 16
Section 2.08. Non-Recourse Obligations of Seller and the
Reversionary Holders.. . . . . . . . . . . . . . . . . . 18
ARTICLE III.
SPREAD ACCOUNTS
Section 3.01. Establishment of Spread Accounts; Initial
Deposits into Spread Accounts. . . . . . . . . . . . . . 18
Section 3.02. Investments. . . . . . . . . . . . . . . . . . . . . . . . 19
Section 3.03. Distributions; Priority of Payments. . . . . . . . . . . . 20
Section 3.04. General Provisions Regarding Spread
Accounts.. . . . . . . . . . . . . . . . . . . . . . . . 24
Section 3.05. Reports by the Collateral Agent. . . . . . . . . . . . . . 25
ARTICLE IV.
THE COLLATERAL AGENT
Section 4.01. Appointment and Powers.. . . . . . . . . . . . . . . . . . 25
Section 4.02. Performance of Duties. . . . . . . . . . . . . . . . . . . 26
Section 4.03. Limitation on Liability. . . . . . . . . . . . . . . . . . 26
Section 4.04. Reliance upon Documents. . . . . . . . . . . . . . . . . . 27
Section 4.05. Successor Collateral Agent.. . . . . . . . . . . . . . . . 27
Section 4.06. Indemnification. . . . . . . . . . . . . . . . . . . . . . 29
Section 4.07. Compensation and Reimbursement.. . . . . . . . . . . . . . 30
Section 4.08. Representations and Warranties of the
Collateral Agent.. . . . . . . . . . . . . . . . . . . . 30
Section 4.09. Waiver of Setoffs. . . . . . . . . . . . . . . . . . . . . 31
Section 4.10. Control by the Controlling Party.. . . . . . . . . . . . . 31
ARTICLE V.
COVENANTS OF THE SELLER
Section 5.01. Preservation of Collateral.. . . . . . . . . . . . . . . . 31
Section 5.02. Opinions as to Collateral. . . . . . . . . . . . . . . . . 32
Section 5.03. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 5.04. Waiver of Stay or Extension Laws; Marshalling
of Assets. . . . . . . . . . . . . . . . . . . . . . . . 33
Section 5.05. Noninterference, etc.. . . . . . . . . . . . . . . . . . . 33
Section 5.06. Seller Changes.. . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE VI.
CONTROLLING PARTY; INTERCREDITOR PROVISIONS
Section 6.01. Appointment of Controlling Party.. . . . . . . . . . . . . 34
Section 6.02. Controlling Party's Authority. . . . . . . . . . . . . . . 35
Section 6.03. Rights of Secured Parties. . . . . . . . . . . . . . . . . 36
Section 6.04. Degree of Care.. . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE VII.
REMEDIES UPON DEFAULT
Section 7.01. Remedies upon a Default. . . . . . . . . . . . . . . . . . 37
Section 7.02. Waiver of Default. . . . . . . . . . . . . . . . . . . . . 37
Section 7.03. Restoration of Rights and Remedies.. . . . . . . . . . . . 37
Section 7.04. No Remedy Exclusive. . . . . . . . . . . . . . . . . . . . 37
ARTICLE VIII.
MISCELLANEOUS
Section 8.01. Further Assurances.. . . . . . . . . . . . . . . . . . . . 38
Section 8.02. Waiver.. . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 8.03. Amendments, Waivers. . . . . . . . . . . . . . . . . . . . 38
Section 8.04. Severability.. . . . . . . . . . . . . . . . . . . . . . . 39
Section 8.05. Nonpetition Covenant.. . . . . . . . . . . . . . . . . . . 39
Section 8.06. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 8.07. Term of this Agreement.. . . . . . . . . . . . . . . . . . 41
Section 8.08. Assignments, Third-Party Rights;
Reinsurance. . . . . . . . . . . . . . . . . . . . . . . 42
Section 8.09. Consent of Controlling Party.. . . . . . . . . . . . . . . 42
Section 8.10. Trial by Jury Waived . . . . . . . . . . . . . . . . . . . 42
Section 8.11. Governing Law. . . . . . . . . . . . . . . . . . . . . . . 43
Section 8.12. Consents to Jurisdiction.. . . . . . . . . . . . . . . . . 43
Section 8.13. Limitation of Liability. . . . . . . . . . . . . . . . . . 44
Section 8.14. Determination of Adverse Effect. . . . . . . . . . . . . . 44
Section 8.15. Counterparts.. . . . . . . . . . . . . . . . . . . . . . . 44
Section 8.16. Headings.. . . . . . . . . . . . . . . . . . . . . . . . . 44
MASTER SPREAD ACCOUNT AGREEMENT
MASTER SPREAD ACCOUNT AGREEMENT, dated as of June 20, 1996 (the
"Agreement"), by and among ATLANTIC AUTO THIRD FUNDING CORPORATION, a Delaware
corporation (the "Seller"), FINANCIAL SECURITY ASSURANCE INC., a New York stock
insurance company ("Financial Security") and THE CHASE MANHATTAN BANK, a New
York banking corporation, in its capacities as Trustee under each Securitization
Agreement referred to below, in such capacity as agent for the
Certificateholders and Financial Security with respect to the related Series
(the "Trustee") and as Collateral Agent (as defined below).
RECITALS
1. Atlantic Auto Grantor Trust 1996-A (the "Series 1996-A Trust") was
formed pursuant to a Pooling and Servicing Agreement dated as of June 20, 1996,
as such agreement may be supplemented, amended or modified from time to time
(the "Series 1996-A Securitization Agreement") among the Seller, Atlantic Auto
Finance Corporation, a Delaware corporation ("Atlantic"), in its capacity as
Servicer (the "Servicer"), and the Trustee, in its capacities as Trustee, Backup
Servicer and Collateral Agent.
2. Pursuant to the Series 1996-A Securitization Agreement, the Seller
assigned to the Trustee all of its right, title and interest in and to the
Receivables and certain other property of the Series 1996-A Trust Estate.
3. The Seller requested that Financial Security issue the Series 1996-A
Policy to the Trustee to guarantee payment of the Guaranteed Distributions (as
defined in such Policy) on each Distribution Date in respect of the Series 1996-
A Certificates.
4. In partial consideration of the issuance of the Series 1996-A Policy,
the Seller has agreed that Financial Security shall have certain rights as
Controlling Party, to the extent set forth herein with respect to the
Receivables and the Series 1996-A Trust Estate.
5. In order to secure the performance of the Secured Obligations, the
Seller, in its capacity as the agent of the Reversionary Holders, has agreed to
pledge the Collateral to the Collateral Agent for the benefit of Financial
Security and for the benefit of the Trustees on behalf of the Trusts, upon the
terms and conditions set forth herein.
6. It is contemplated that Atlantic and/or the Seller or any other
Affiliate of Atlantic may in the future enter into one or more additional
Securitization Agreements pursuant to which
the Seller, Atlantic or such other Affiliate of Atlantic will sell or pledge all
or a portion of its right, title and interest in and to pools of Receivables
and/or other financial assets or property to a Trust or other Person and in
connection therewith Financial Security in its discretion may issue additional
Policies with respect to certain guaranteed distributions or scheduled payments
with respect to the corresponding additional Series. In connection with any
such issuance of additional Policies, it is contemplated that Financial Security
will obtain certain Controlling Party rights with respect to the related Series,
and that, in connection with each such additional Series, the parties hereto
will enter into a Series Supplement hereto pursuant to which Atlantic and/or the
Seller will assign, or cause to be assigned, additional Collateral pursuant to
the terms hereof.
AGREEMENTS
In consideration of the premises, and for other good and valuable
consideration, the adequacy, receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.01. DEFINITIONS. Unless defined in this Agreement, capitalized
terms used in this Agreement shall have the meaning given such terms in the
applicable Securitization Agreement or Series Supplement, as identifiable from
the context in which such term is used. The following terms shall have the
following respective meanings:
"AGREEMENT" means this Master Spread Account Agreement, as amended,
supplemented as otherwise modified from time to time in accordance with the
terms hereof.
"ATLANTIC" means Atlantic Auto Finance Corporation, a Delaware corporation.
"AUTHORIZED OFFICER" means, (i) with respect to Financial Security, the
Chairman of the Board, the President, the Executive Vice President or any
Managing Director of Financial Security, (ii) with respect to the Trustees or
the Collateral Agent, any Vice President, Second Vice President or Trust Officer
thereof, and (iii) with respect to the Seller, the President, any Vice President
or the Controller or any other officer or employee having similar functions.
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"CERTIFICATEHOLDERS" means the holders of the Certificates of a Series as
more particularly described in the Securitization Agreement with respect to such
Series.
"CERTIFICATES" means the "certificates", "notes" or other obligations
issued or arising under a Securitization Agreement.
"CHASE MANHATTAN BANK" means The Chase Manhattan Bank, a New York banking
corporation.
"COLLATERAL" means the Series 1996-A Collateral, and with respect to any
other Series, all collateral delivered hereunder with respect to each of such
Series, as specified in the related Series Supplement.
"COLLATERAL AGENT" means, initially, Chase Manhattan Bank, in its capacity
as collateral agent on behalf of the Secured Parties, including its successors
in interest, until a successor Person shall have become the Collateral Agent
pursuant to Section 4.05 hereof, and thereafter "Collateral Agent" shall mean
such successor Person.
"COLLATERAL AGENT FEE" means, with respect to the Series 1996-A
Certificates, the annual fee payable to the Collateral Agent for services
rendered as the Collateral Agent, which Collateral Agent Fee is included in the
fees paid to Chase Manhattan Bank pursuant to the Series 1996-A Pooling and
Servicing Agreement.
"COLLECTION ACCOUNT" means the Collection Account applicable to any Series,
as specified in the related Securitization Agreement.
"CONTROLLING PARTY" means, with respect to a Series, at any time, the
Person designated as the Controlling Party at such time pursuant to Section 6.01
hereof.
"DEEMED CURED" means, as of a Determination Date, with respect to a Trigger
Event that has occurred with respect to a Series, that no Trigger Event with
respect to such Series shall have occurred as of such Determination Date or as
of any of the two consecutively preceding Determination Dates.
"DEFAULT" means with respect to any Series, at any time, (i) if Financial
Security is then the Controlling Party with respect to such Series, any
Insurance Agreement Event of Default with respect to such Series, and (ii) if
the Trustee is then the Controlling Party with respect to such Series, any
Servicer Termination Event with respect to such Series.
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"DEFICIENCY CLAIM DATE" means, with respect to any Distribution Date, the
fourth Business Day preceding such Distribution Date.
"DELIVERY" means with respect to the Collateral:
(a) with respect to bankers' acceptances, commercial paper,
negotiable certificates of deposit and other obligations that constitute
"instruments" within the meaning of Section 9-105(l)(i) of the UCC (other
than certificated securities) and are susceptible of physical delivery,
transfer thereof to the Collateral Agent by physical delivery to the
Collateral Agent, indorsed to, or registered in the name of, the Collateral
Agent or its nominee or indorsed in blank and such additional or
alternative procedures as may hereafter become appropriate to effect the
complete transfer of ownership of any such Collateral to the Collateral
Agent free and clear of any adverse claims, consistent with changes in
applicable law or regulations or the interpretation thereof;
(b) with respect to a "certificated security" (as defined in Section
8-102(1)(a) of the UCC), transfer thereof:
(i) by physical delivery of such certificated security to the
Collateral Agent, provided that if the certificated security is in
registered form, it shall be indorsed to, or registered in the name
of, the Collateral Agent or indorsed in blank;
(ii) by physical delivery of such certificated security to a
"financial intermediary" (as defined in Section 8-313(4) of the UCC)
of the Collateral Agent specially indorsed to or issued in the name of
the Collateral Agent;
(iii) by the sending by a financial intermediary, not a "clearing
corporation" (as defined in Section 8-102(3) of the UCC), of a
confirmation of the purchase and the making by such financial
intermediary of entries on its books and records identifying as
belonging to the Collateral Agent of (A) a specific certificated
security in the financial intermediary's possession, (B) a quantity of
securities that constitute or are part of a fungible bulk of
certificated securities in the financial intermediary's possession, or
(C) a quantity of securities that constitute or are part of a fungible
bulk of securities shown on the account of the financial intermediary
on the books of another financial intermediary; or
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(iv) by the making by a clearing corporation of appropriate
entries on its books reducing the appropriate securities account of
the transferor and increasing the appropriate securities account of
the Collateral Agent or a Person designated by the Collateral Agent by
the amount of such certificated security, provided that in each case:
(A) the clearing corporation identifies such certificated security for
the sole and exclusive account of the Collateral Agent or the Person
designated by the Collateral Agent, (B) such certificated security
shall be subject to the clearing corporation's exclusive control, (C)
such certificated security is in bearer form or indorsed in blank or
registered in the name of the clearing corporation or custodian bank
or a nominee or either of them, (D) custody of such certificated
security shall be maintained by such clearing corporation or a
"custodian bank" (as defined in Section 8-102(4) of the UCC) or the
nominee of either subject to the control of the clearing corporation
and (E) such certificated security is shown on the account of the
transferor thereof on the books of the clearing corporation prior to
the making of such entries; and such additional or alternative
procedures as may hereafter become appropriate to effect the complete
transfer of ownership of any such Collateral to the Collateral Agent
free and clear of any adverse claims, consistent with changes in
applicable law or regulations or the interpretation thereof;
(c) with respect to any security issued by the U.S. Treasury, the
Federal Home Loan Mortgage Corporation or by the Federal National Mortgage
Association that is a book-entry security held through the Federal Reserve
System pursuant to Federal book entry regulations, the following
procedures, all in accordance with applicable law, including applicable
federal regulations and Articles 8 and 9 of the UCC: book-entry
registration of such property to an appropriate book-entry account
maintained with a Federal Reserve Bank by a financial intermediary which is
also a "depositary" pursuant to applicable federal regulations and issuance
by such financial intermediary of a deposit advice or other written
confirmation of such book-entry registration to the Collateral Agent of the
purchase by the financial intermediary on behalf of the Collateral Agent of
such book-entry security; the making by such financial intermediary of
entries in its books and records identifying such book-entry security held
through the Federal Reserve System pursuant to Federal book-entry
regulations as belonging to the Collateral Agent and indicating that such
financial intermediary holds such book-entry security solely
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an agent for the Collateral Agent; and such additional or alternative
procedures as may hereafter become appropriate to effect complete transfer
of ownership of any such Collateral to the Collateral Agent free of any
adverse claims, consistent with changes in applicable law or regulations or
the interpretation thereof;
(d) with respect to any item of Collateral that is an "uncertificated
security" (as defined in Section 8-102(1)(b) of the UCC) and that is not
governed by clause (c) above, transfer thereof:
(i) by registration of the transfer thereof to the Collateral
Agent, on the books and records of the issuer thereof;
(ii) by the sending of a confirmation by a financial
intermediary of the purchase, and the making by such financial
intermediary of entries on its books and records identifying as
belonging to the Collateral Agent (A) a quantity of securities
which constitute or are part of a fungible bulk of uncertificated
securities registered in the name of the financial intermediary
or (B) a quantity of securities which constitute or are part of a
fungible bulk of securities shown on the account of the financial
intermediary on the books of another financial intermediary; or
(iii) by the making by a clearing corporation of appropriate
entries on its books reducing the appropriate account of the
transferor and increasing the account of the Collateral Agent or
a person designated by the Collateral Agent by the amount of such
uncertificated security, provided that in each case: (A) the
clearing corporation identifies such uncertificated security for
the sole and exclusive use of the Collateral Agent or the Person
designated by the Collateral Agent, (B) such uncertificated
security is registered in the name of the clearing corporation or
a custodian bank or a nominee of either, and (C) such
uncertificated security is shown on the account of the transferor
on the books of the clearing corporation prior to the making of
such entries; and
(e) in each case of delivery contemplated herein, the Collateral
Agent shall make appropriate notations on its records, and shall cause same
to be made of the records of
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its nominees, indicating that such securities are held in trust pursuant to
and as provided in this Agreement.
"FINAL TERMINATION DATE" means, with respect to a Series, the date that is
the later of (i) the Insurer Termination Date with respect to such Series and
(ii) the Trustee Termination Date with respect to such Series.
"FINANCIAL SECURITY DEFAULT" means, with respect to any Series, any one of
the following events shall have occurred and be continuing:
(a) Financial Security shall have failed to make a payment required
under the related Policy;
(b) Financial Security shall have (i) filed a petition or commenced
any case or proceeding under any provision or chapter of the United States
Bankruptcy Code or any other similar federal or state law relating to
insolvency, bankruptcy, rehabilitation, liquidation or reorganization,
(ii) made a general assignment for the benefit of its creditors, or
(iii) had an order for relief entered against it under the United States
Bankruptcy Code or any other similar federal or state law relating to
insolvency, bankruptcy, rehabilitation, liquidation or reorganization which
is final and nonappealable; or
(c) a court of competent jurisdiction, the New York Department of
Insurance or other competent regulatory authority shall have entered a
final and nonappealable order, judgment or decree (i) appointing a
custodian, trustee, agent or receiver for Financial Security or for all or
any material portion of its property or (ii) authorizing the taking of
possession by a custodian, trustee, agent or receiver of Financial Security
(or the taking of possession of all or any material portion of the property
of Financial Security).
"GUARANTEED DISTRIBUTIONS" shall have the meaning set forth in the related
Policy.
"INITIAL SPREAD ACCOUNT DEPOSIT" means, with respect to the Series 1996-A
Certificates, an amount equal to 1% of the Series 1996-A Initial Balance or
$472,549.58.
"INSURANCE AGREEMENT" means, with respect to any Series, the Insurance and
Indemnity Agreement among Financial Security and/or Atlantic and/or the Seller
and such other parties as may be named therein, pursuant to which Financial
Security issued a Policy to the Trustee.
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"INSURER SECURED OBLIGATIONS" means, with respect to a Series, all amounts
and obligations which may at any time be owed to or on behalf of Financial
Security (or any agents, accountants or attorneys for Financial Security) under
the Insurance Agreement related to such Series or under any Transaction Document
in respect of such Series, regardless of whether such amounts are owed now or in
the future, whether liquidated or unliquidated, contingent or noncontingent.
"INSURER TERMINATION DATE" means, with respect to any Series, the date
which is the latest of (i) the date of the expiration of all Policies issued in
respect of such Series, (ii) the date on which Financial Security shall have
received payment and performance in full of all Insurer Secured Obligations with
respect to such Series and (iii) the latest date any payment referred to above
could be avoided as a preference or otherwise under the United States Bankruptcy
Code or any other similar federal or state law relating to insolvency,
bankruptcy, rehabilitation, liquidation or reorganization, as specified in an
Opinion of Counsel delivered to the Collateral Agent and the Trustee.
"LIEN" means any security interest, lien, change, pledge, preference,
equity or encumbrance of any kind, including tax liens, mechanics' liens and any
liens that attach by operation of the law.
"MONTHLY PERIOD" means, with respect to a Determination Date or a
Distribution Date, the calendar month immediately preceding the month in which
such Determination Date or Distribution Date occurs (such calendar month being
referred to as the "related" Monthly Period with respect to such Determination
Date or Distribution Date).
"NON-CONTROLLING PARTY" means with respect to a Series at any time, the
Secured Party that is not the Controlling Party at such time.
"OPINION OF COUNSEL" means a written opinion of counsel acceptable, as to
form, substance and issuing counsel, to the Controlling Party.
"POLICY" means the Series 1996-A Policy and any insurance policy
subsequently issued by Financial Security with respect to a Series.
"REQUISITE AMOUNT" means, with respect to Series 1996-A, as of any
Determination Date after giving effect to any distributions of principal on the
Series 1996-A Class A Certificates to be made on the related Distribution Date,
the greater of (a) the lesser of (i) 1.5% of the Series 1996-A
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Initial Balance and (ii) the greater of (A) the Series 1996-A Balance as of such
Determination Date and (B) $100,000, and (b) (i) if no Trigger Event shall have
occurred as of such Determination Date and all previous Trigger Events have been
Deemed Cured, and no Insurance Agreement Event of Default shall have occurred as
of such Determination Date, 6% of the Series 1996-A Balance as of such
Determination Date; (ii) if a Trigger Event shall have occurred as of such
Determination Date (and until such Trigger Event is Deemed Cured) and no
Insurance Agreement Event of Default shall have occurred as of such
Determination Date, 12% of the Series 1996-A Balance as of such Determination
Date; or (iii) if an Insurance Agreement Event of Default shall have occurred as
of such Determination Date, an unlimited amount.
"REVERSIONARY HOLDER" has the meaning specified in Section 2.01 hereof.
"SCHEDULED PAYMENTS" shall have the meaning set forth in the related
Policy.
"SECURED OBLIGATIONS" means, with respect to each Series the Insurer
Secured Obligations with respect to such Series and the Trustee Secured
Obligations with respect to such Series.
"SECURED PARTIES" means Financial Security and the Trustee.
"SECURITIZATION AGREEMENT" means, with respect to the Series 1996-A
Certificates, the Series 1996-A Securitization Agreement and, for each other
Series created pursuant to a Securitization Agreement, the "Pooling and
Servicing Agreement", "Sale and Servicing Agreement", "Indenture", "Receivables
Purchase Agreement" or any other financing document related to such Series.
"SECURITY INTERESTS" means, with respect to the Series 1996-A Certificates,
the security interests and Liens in the Series 1996-A Collateral granted
pursuant to Section 2.03 hereof, and, with respect to any other Series, the
security interests and Liens in the related Collateral granted pursuant to the
related Series Supplement.
"SERIES 1996-A BALANCE" means with respect to any Determination Date, the
sum of the Class A Certificate Balance and the Class B Certificate Balance as of
the related Distribution Date, after giving effect to any distributions of
principal to be made on the Class A Certificates and Class B Certificates on
such Distribution Date.
"SERIES 1996-A CERTIFICATES" means the Series of Certificates issued
pursuant to the Series 1996-A Securitization
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Agreement (any such class of such Series of Certificates referred to herein as
"Series 1996-A Class A Certificates," or "Series 1996-A Class B Certificates").
"SERIES 1996-A CLASS B SUB-ACCOUNT" means the sub-account of the Series
1996-A Spread Account established pursuant to Section 3.01(a) hereof.
"SERIES 1996-A COLLATERAL" has the meaning specified in Section 2.03(a)
hereof.
"SERIES 1996-A INITIAL BALANCE" means $47,254,958.27.
"SERIES 1996-A INSURANCE AGREEMENT" means the Insurance Agreement related
to the Series 1996-A Certificates.
"SERIES 1996-A INSURER SECURED OBLIGATIONS" means the Insurer Secured
Obligations with respect to the Series 1996-A Certificates.
"SERIES 1996-A POLICY" means the Policy issued with respect to the Series
1996-A Class A Certificates.
"SERIES 1996-A REVERSIONARY HOLDERS" has the meaning specified in Section
2.01 hereof.
"SERIES 1996-A SECURED OBLIGATIONS" means the Secured Obligations related
to the Series 1996-A Certificates.
"SERIES 1996-A SECURITIZATION AGREEMENT" has the meaning set forth in the
first recital to this Agreement.
"SERIES 1996-A SELLER SUB-ACCOUNT" means the sub-account of the Series
1996-A Spread Account established pursuant to Section 3.01(a) hereof.
"SERIES 1996-A SPREAD ACCOUNT" has the meaning specified in Section 3.01(a)
hereof.
"SERIES 1996-A TRUST" has the meaning provided in the first recital to this
Agreement.
"SERIES OF CERTIFICATES" or "SERIES" means the Series 1996-A Certificates
or, as the context may require, any other series of Certificates issued or
arising as described in Section 2.02 hereof, or collectively, all such series.
"SERIES SUPPLEMENT" means a supplement hereto executed by the parties
hereto in accordance with Section 2.02 hereof.
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"SERVICER TERMINATION SIDE LETTER" shall have the meaning set forth in the
Insurance Agreement.
"SPREAD ACCOUNT" has the meaning specified in Section 3.01(a) hereof.
"SPREAD ACCOUNT ELIGIBLE INVESTMENTS" means Eligible Investments held by
the Collateral Agent in a Spread Account and with respect to which the
Collateral Agent has taken Delivery.
"SPREAD ACCOUNT SHORTFALL" means, with respect to any Series and any
Distribution Date, the excess, if any, of (a) the Requisite Amount for such
Series as of the related Determination Date over (b) the amount on deposit in
the related Spread Account after making any withdrawals therefrom required by
priorities FIRST, SECOND, and THIRD of Section 3.03(b) hereof.
"TRANSACTION DOCUMENTS" means, with respect to a Series, this Agreement,
each of the applicable Securitization Agreement, the Insurance Agreement, the
Indemnification Agreement, the Receivables Purchase Agreement, the Lockbox
Agreement, the Premium Letter, the Servicer Termination Side Letter, the
Custodial Agreement, the Initial Purchaser Agreement (as defined in the
Insurance Agreement) the Stock Pledge Agreement (as defined in the Insurance
Agreement) and any other financing document related to such Series.
"TRIGGER EVENT" means, with respect to Series 1996-A, that any one of the
following events shall have occurred and shall not have terminated: (a) the
Average Delinquency Ratio as of any Determination Date is equal to or greater
than 4.0%; or (b) the Average Default Rate with respect to a Determination Date
is equal to or greater than 7.0%; or (c) the Average Net Loss Rate as of any
Determination Date is equal to or greater than 3.5%.
"TRUST" means a trust formed pursuant to a Securitization Agreement.
"TRUST ESTATE" with respect to any Series means the property assigned to
the Trustee or other Person or held in the estate of the Trust, in each case
pursuant to the related Securitization Agreement.
"TRUSTEE" means with respect to any Series, the Trustee named in the
related Securitization Agreement.
"TRUSTEE SECURED OBLIGATIONS" means, with respect to a Series, all amounts
and obligations which Atlantic or the Seller may at any time owe to or on behalf
of the Trustee, the Trust or the Certificateholders under the Securitization
Agreement with respect to such Series.
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"TRUSTEE TERMINATION DATE" means, with respect to any Series, the date
which is the latest of (i) the date on which the Trustee shall have received, as
Trustee for the holders of the Certificates of such Series, payment and
performance in full of all Trustee Secured Obligations arising out of or
relating to such Series and (ii) the date on which all payments in respect of
the Certificates shall have been made and the related Trust shall have been
terminated pursuant to the terms of the related Securitization Agreement and
(iii) the latest date any payment referred to above could be avoided as a
preference or otherwise under the United States Bankruptcy Code or any other
similar federal or state law relating to insolvency, bankruptcy, rehabilitation,
liquidation or reorganization, as specified in an Opinion of Counsel delivered
to the Collateral Agent and the Trustee.
"UNIFORM COMMERCIAL CODE" or "UCC" means the Uniform Commercial Code in
effect in the relevant jurisdiction, as the same may be amended from time to
time.
"UNREIMBURSED AMOUNTS" has the meaning specified in Section 3.03(b) hereof.
Section 1.02. RULES OF INTERPRETATION. The terms "hereof," "herein" or
"hereunder," unless otherwise modified by more specific reference, shall refer
to this Agreement in its entirety. Unless otherwise indicated in context, the
terms "Article," "Section," "Appendix," "Exhibit" or "Annex" shall refer to an
Article or Section of, or Appendix, Exhibit or Annex to, this Agreement. The
definition of a term shall include the singular, the plural, the past, the
present, the future, the active and the passive forms of such term. A term
defined herein and used herein preceded by a Series designation, shall mean such
term as it relates to the Series designated.
ARTICLE II.
REVERSIONARY HOLDERS; SERIES SUPPLEMENTS; THE COLLATERAL
Section 2.01. REVERSIONARY HOLDERS. It is anticipated that each
Securitization Agreement will require that certain amounts be deposited into a
Spread Account. With respect to any Series, the Person or Persons who will
ultimately be entitled to receive distributions of amounts released from the
related Spread Account are the "REVERSIONARY HOLDERS" with respect to such
Spread Account and Series and may be classified into different classes of
Reversionary Holders pursuant to the applicable Securitization Agreement and
Section 3.03 hereof. With respect to the Series 1996-A Certificates, the
Reversionary Holders (the "Series 1996-A Reversionary Holders") shall be the
Seller and the Class B Certificateholders.
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It is intended by the parties hereto that the Collateral shall constitute
property held in trust by the Collateral Agent, to provide for the payment of
the Secured Obligations, and that such Collateral and any property rights
appurtenant thereto shall vest in the related Reversionary Holders only when
such Collateral is released to such Reversionary Holders in accordance with
Section 3.03(b) hereof.
Notwithstanding the foregoing, each Reversionary Holder may treat the
deposit of the related Collateral into the related Spread Account as the receipt
by such Reversionary Holder of such Collateral for federal and state income
taxes, as may be required by law. With respect to the Series 1996-A Collateral,
(i) the Seller shall only treat the deposit of such Collateral into the Series
1996-A Seller Sub-account of the Series 1996-A Spread Account as the receipt by
the Seller of such Collateral for federal and state income taxes, and (ii) the
Class B Certificateholders shall only treat the deposit of such Collateral into
the Series 1996-A Class B Sub-account of the Series 1996-A Spread Account as the
receipt by the Class B Certificateholders of such Collateral for federal and
state income taxes.
The Series 1996-A Securitization Agreement and each other Securitization
Agreement in which the Seller is not itself the sole Reversionary Holder shall
provide that the Seller shall be deemed to be the agent of the related
Reversionary Holders for the purpose of perfecting the Collateral Agent's
Security Interest in the related Collateral. Each Securitization Agreement
shall additionally provide that the Reversionary Holders agree to execute and
deliver such instruments of conveyance, assignment, grant, confirmation, etc.,
as well as any financing statements, in each case, as the Controlling Party
shall consider reasonably necessary in order to perfect the Collateral Agent's
Security Interest in the related Collateral.
Section 2.02. SERIES SUPPLEMENTS. The parties hereto agree that the
Seller will have the option to enter into a Series Supplement hereto with
respect to each Series, the Secured Obligations with respect to which are to be
secured by Collateral held pursuant to the provisions of this Agreement. The
parties will enter into a Series Supplement only if the following conditions
shall have been satisfied:
(i) The Seller shall have sold or pledged all or a portion of its
right, title and interest in and to a pool of Receivables and/or other
financial assets or property to a Trust or other Person pursuant to a
Securitization Agreement;
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(ii) Financial Security shall have issued a Policy in respect of the
Guaranteed Distributions or Scheduled Payments, as the case may be, with
respect to the senior class of the Series issued or arising pursuant to
such Securitization Agreement; and
(iii) Pursuant to the related Series Supplement the related
Collateral specified herein shall be administered by the Collateral Agent
substantially on the terms set forth in Section 2.03 hereof.
Section 2.03. CREATION AND GRANT OF SECURITY INTEREST BY THE SELLER.
(a) To secure the performance of the Series 1996-A Secured Obligations and
the Secured Obligations with respect to each other Series to the extent provided
herein, the Seller, including in its capacity as agent on behalf of the
Reversionary Holders, hereby pledges, assigns, grants, transfers and conveys to
the Collateral Agent, on behalf of and for the benefit of the Secured Parties, a
lien on and security interest in (which lien and security interest is intended
to be prior to all other Liens), all of its right, title and interest in and to
the following (all being collectively referred to herein as the "Series 1996-A
Collateral" and constituting Collateral hereunder):
(i) the amounts distributed to the Series 1996-A Spread Account
pursuant to Sections 5.5(a)(vi), 5.5(a)(vii) and 5.5(a)(x) of the Series
1996-A Securitization Agreement and all rights and remedies that the
Reversionary Holders may have to enforce such distributions, whether under
the Series 1996-A Securitization Agreement or otherwise;
(ii) the Series 1996-A Spread Account established pursuant to Section
3.01 hereof, and each other account established by the Seller and
maintained by the Collateral Agent (including, without limitation, the
Initial Spread Account Deposit related thereto and all additional monies,
checks, securities, investments and other documents from time to time held
in or evidencing any such accounts);
(iii) all of the Seller's right, title and interest in its capacity
as a Series 1996-A Reversionary Holder and as agent for all other Series
1996-A Reversionary Holders, in and to investments made with proceeds of
the property described in clauses (i) and (ii) above or made with amounts
on deposit in the Series 1996-A Spread Account; and
(iv) all distributions, revenues, products, substitutions, benefits,
profits and proceeds, in whatever form, of any of the foregoing.
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(b) To effectuate the provisions and purposes of this Agreement, including
for the purpose of perfecting the security interests granted hereunder, the
Seller represents and warrants that it has, prior to the execution of this
Agreement, executed and delivered for filing Series 1996-A on the Series 1996-A
Closing Date an appropriate Uniform Commercial Code financing statement in form
sufficient to assure that upon the filing of such financial statement the
Collateral Agent, as agent for the Secured Parties, will have a first priority
perfected security interest in all Series 1996-A Collateral which can be
perfected by the filing of a financing statement. The Seller shall cause such
financing statement to be filed in New York no later than one Business Day
subsequent to the Series 1996-A Closing Date.
Section 2.04. PRIORITY. The Seller intends the security interests in
favor of the Collateral Agent, for the benefit of the Secured Parties, to be
prior to all other Liens in respect of the Collateral, and the Seller shall take
all actions necessary to obtain and maintain, in favor of the Collateral Agent,
for the benefit of the Secured Parties, a first lien on and a first priority
perfected security interest in the Collateral. Subject to the provisions hereof
specifying the rights and powers of the Controlling Party from time to time to
control certain specified matters relating to the Collateral, each Secured Party
shall have all of the rights, remedies and recourse with respect to the
Collateral afforded a secured party under the Uniform Commercial Code, and all
other applicable law in addition to, and not in limitation of, the other rights,
remedies and recourse granted to such Secured Parties by this Agreement or any
other law relating to the creation and perfection of liens on, and security
interests in, the Collateral.
Section 2.05. SELLER REMAINS LIABLE. The Security Interests are granted
as security only and shall not (i) transfer or in any way affect or modify, or
relieve the Seller from, any obligation to perform or satisfy, any term,
covenant, condition or agreement to be performed or satisfied by the Seller
under or in connection with this Agreement, the Insurance Agreement or any other
Transaction Document to which it is a party or (ii) impose any obligation on any
of the Secured Parties or the Collateral Agent to perform or observe any such
term, covenant, condition or agreement or impose any liability on any of the
Secured Parties or the Collateral Agent for any act or omission on its part
relative thereto or for any breach of any representation or warranty on its part
contained therein or made in connection therewith, except, in each case, to the
extent provided herein and in the other Transaction Documents.
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Section 2.06. MAINTENANCE OF COLLATERAL.
(a) SAFEKEEPING. The Collateral Agent agrees to (i) maintain the
Collateral (other than Spread Account Eligible Investments) received by it and
all records and documents relating thereto at the office of the Collateral Agent
specified in Section 8.06 hereof or such other address within the State of New
York (unless all filings have been made to continue the perfection of the
security interest in the Collateral to the extent such security interest can be
perfected by filing a financing statement, as evidenced by an Opinion of Counsel
delivered by the Seller to the Controlling Party), as may be approved by the
Controlling Party and (ii) take Delivery of and maintain the Spread Account
Eligible Investments and all records and documents relating thereto at its
offices within the State of New York. The Collateral Agent shall keep all
Collateral and related documentation in its possession separate and apart from
all other property that it is holding in its possession and from its own general
assets and shall maintain accurate records pertaining to the Spread Account
Eligible Investments and Spread Accounts included in the Collateral in such a
manner as shall enable the Collateral Agent and the Secured Parties to verify
the accuracy of such record-keeping. The Collateral Agent's books and records
shall at all times show that the Collateral is held by the Collateral Agent as
agent of the Secured Parties and is not the property of the Collateral Agent.
The Collateral Agent will promptly report to each Secured Party and the Seller
any failure on its part to hold the Collateral as provided in this Section
2.06(a) and will promptly take appropriate action to remedy any such failure.
(b) ACCESS. The Collateral Agent shall permit each of the Secured
Parties, the Reversionary Holders or their respective duly authorized
representatives, attorneys, auditors or designees, to inspect the Collateral in
the possession of or otherwise under the control of the Collateral Agent
pursuant hereto at such reasonable times during normal business hours as any
such Secured Party or Reversionary Holder may reasonably request upon not less
than two Business Days' prior written notice. The costs and expenses associated
with any such inspection will be paid by the party making such inspection.
Section 2.07. TERMINATION AND RELEASE OF RIGHTS.
(a) On the Insurer Termination Date relating to a Series, the rights,
remedies, powers, duties, authority and obligations conferred upon Financial
Security pursuant to this Agreement in respect of the Collateral related to such
Series (and, to the extent provided herein, in respect of Collateral related to
other Series) shall terminate and be of no further force and effect and all
rights, remedies, powers, duties, authority and obligations
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of Financial Security with respect to such Collateral shall be automatically
released; PROVIDED that any indemnity provided to or by Financial Security
herein shall survive such Insurer Termination Date. If Financial Security is
acting as Controlling Party with respect to a Series on the related Insurer
Termination Date, Financial Security agrees, at the expense of the Seller, to
execute and deliver such instruments as the successor Controlling Party may
reasonably request to effect such release, and any such instruments so executed
and delivered shall be fully binding on Financial Security and any Person
claiming by, through or under Financial Security.
(b) On the Trustee Termination Date related to a Series, the rights,
remedies, powers, duties, authority and obligations, if any, conferred upon the
Trustee pursuant to this Agreement in respect of the Collateral related to such
Series (and, to the extent provided herein, in respect of Collateral related to
other Series) shall terminate and be of no further force and effect and all such
rights, remedies, powers, duties, authority and obligations of the Trustee with
respect to such Collateral shall be automatically released; PROVIDED that any
indemnity provided to the Trustee herein shall survive such Trustee Termination
Date. If the Trustee is acting as Controlling Party with respect to a Series on
the related Trustee Termination Date, the Trustee agrees, at the expense of the
Seller, to execute and deliver such instruments as the Seller may reasonably
request to effectuate such release, and any such instruments so executed and
delivered shall be fully binding on the Trustee.
(c) On the Final Termination Date with respect to a Series, the rights,
remedies, powers, duties, authority and obligations conferred upon the
Collateral Agent and each Secured Party pursuant to this Agreement shall
terminate and be of no further force and effect and all rights, remedies,
powers, duties, authority and obligations of the Collateral Agent and each
Secured Party with respect to the Collateral related to such Series (and, to the
extent provided herein, in respect of Collateral related to other Series) shall
be automatically released, subject to the application of such amounts for
indemnity payments and all other amounts due and payable hereunder. On the
Final Termination Date with respect to a Series, the Collateral Agent agrees,
and each Secured Party agrees, at the expense of the Seller, to execute such
instruments of release, in recordable form if necessary, in favor of the Seller
as the Seller may reasonably request, to deliver any Collateral related to such
Series in its possession to the Seller or as otherwise provided in the related
Securitization Agreement, and to otherwise release the lien of this Agreement
and release and deliver to the Seller or as otherwise provided in the related
Securitization Agreement the Collateral related to such Series.
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Section 2.08. NON-RECOURSE OBLIGATIONS OF SELLER AND THE REVERSIONARY
HOLDERS. Notwithstanding anything herein or in the other Transaction Documents
to the contrary, the parties hereto agree that the obligations of the Seller and
the Reversionary Holders hereunder shall be recourse only to the extent of
amounts deposited in the Spread Accounts. The Seller agrees that it shall not
declare or make payment of (i) any dividend or other distribution on or in
respect of any of its common stock or (ii) any payment on account of the
purchase, redemption, retirement or acquisition of (x) any common stock of the
Seller or (y) any option, warrant or other right to acquire any common stock of
the Seller, unless (in each case) at the time of such declaration or payment
(and after giving effect thereto) no amount payable by Seller or any
Reversionary Holder under any Transaction Document is then due and owing but
unpaid.
ARTICLE III.
SPREAD ACCOUNTS
Section 3.01. ESTABLISHMENT OF SPREAD ACCOUNTS; INITIAL DEPOSITS INTO
SPREAD ACCOUNTS.
(a) On or prior to the Closing Date relating to Series 1996-A, the
Collateral Agent shall establish with respect to such Series, at its office or
at another depository institution or trust company an Eligible Account,
designated, "Spread Account - Atlantic Auto Grantor Trust Series 1996-A - The
Chase Manhattan Bank, as Collateral Agent for Financial Security Assurance Inc.
and another Secured Party" (the "Spread Account", and, with respect to the
Series 1996-A Certificates, the "Series 1996-A Spread Account"). The Series
1996-A Spread Account shall include two separate sub-accounts, which shall be
the Series 1996-A Seller Sub-account and the Series 1996-A Class B Sub-account.
All Spread Accounts established under this Agreement from time to time shall be
maintained at the same depository institution (which depository institution may
be changed from time to time in accordance with this Agreement). If any Spread
Account maintained or established with respect to a Series ceases to be an
Eligible Account, the Collateral Agent shall, within five Business Days,
establish a new Eligible Account for such Series.
(b) No withdrawals may be made of funds in any Spread Account except as
provided in Section 3.03 of this Agreement. Except as specifically provided in
this Agreement, funds in a Spread Account established with respect to a Series
shall not be commingled with funds in a Spread Account established with respect
to another Series or with any other moneys. All moneys deposited from time to
time in such Spread Account and all
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investments made with such moneys shall be held by the Collateral Agent as part
of the Collateral with respect to such Series.
(c) On the Closing Date with respect to a Series, the Collateral Agent
shall deposit the Initial Spread Account Deposit with respect to such Series, if
any, received from the Seller into the related Spread Account, which with
respect to the Series 1996-A Spread Account shall be deposited into the Series
1996-A Seller Sub-account.
(d) Each Spread Account shall be separate from each Trust, and amounts on
deposit therein will not constitute a part of the Trust Estate of any Trust.
Each Spread Account shall be maintained by the Collateral Agent at all times
separate and apart from any other account of the Seller, the Servicer or the
Trust. All income or loss on investments of funds in any Spread Account shall
be reported by the applicable Reversionary Holder as taxable income or loss of
such Reversionary Holder, provided that with respect to the Series 1996-A Spread
Account, (i) all income or loss on investments of funds in the Series 1996-A
Seller Sub-account shall be reported by the Seller as taxable income or loss of
the Seller, and (ii) all income or loss on investments of funds in the Series
1996-A Class B Sub-account shall be reported by the Class B Certificateholders
as taxable income or loss of the Class B Certificateholders.
Section 3.02. INVESTMENTS.
(a) Funds which may at any time be held in the Spread Account established
with respect to a Series shall be invested and reinvested by the Collateral
Agent, at the written direction (including, subject to the provisions hereof,
general standing instructions) of the Seller (unless a Default actually known to
a Authorized Officer of the Collateral Agent shall have occurred and be
continuing, in which case at the written direction of the Controlling Party) or
its designee received by the Collateral Agent by 1:00 P.M. New York City time on
the Business Day prior to the date on which such investment shall be made, in
one or more Spread Account Eligible Investments in the manner specified in
Section 3.02(c) hereof. If no written direction with respect to any portion of
such Spread Account is received by the Collateral Agent, the Collateral Agent
shall invest such funds overnight in such Eligible Investments as the Collateral
Agent may select, provided that the Collateral Agent shall not be liable for any
loss or absence of income resulting from such investments or for investments
made pursuant to written instructions received in accordance with this Section
3.02(a).
(b) Each investment made pursuant to this Section 3.02 on any date shall
mature not later than the Business Day immediately preceding the Distribution
Date next succeeding the day such
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investment is made, except that any investment made on the day preceding a
Distribution Date shall mature on such Distribution Date; PROVIDED that any
investment of funds in any Spread Account maintained with the Collateral Agent
(which shall be qualified as a Spread Account Eligible Investment) in any
investment as to which the Collateral Agent is the obligor, if otherwise
qualified as an Eligible Investment (including any repurchase agreement on which
the Collateral Agent in its commercial capacity is liable as principal) may
mature on the Distribution Date next succeeding the date of such investment.
(c) Subject to the other provisions hereof, the Collateral Agent shall
have sole control over each such investment and the income thereon, and any
certificate or other instrument evidencing any such investment, if any, shall be
delivered directly to the Collateral Agent or its agent, together with each
document of transfer, if any, necessary to transfer title to such investment to
the Collateral Agent in a manner complying with Section 2.06 hereof and the
requirements of the definition of "Spread Account Eligible Investments."
(d) If amounts on deposit in any Spread Account are at any time invested
in a Spread Account Eligible Investment payable on demand, the Collateral Agent
shall (i) consistent with any notice required to be given thereunder, demand
that payment thereon be made on the last day such Spread Account Eligible
Investment is permitted to mature under the provisions hereof and (ii) demand
payment of all amounts due thereunder promptly upon receipt of written notice
from the Controlling Party to the effect that such investment does not
constitute a Spread Account Eligible Investment.
(e) All moneys on deposit in a Spread Account together with any deposits
or securities in which such moneys may be invested or reinvested, and any gains
from such investments, shall constitute Collateral hereunder with respect to the
related Series subject to the Security Interests of the Secured Parties.
(f) Subject to Section 4.03 hereof, the Collateral Agent shall not be
liable by reason of any insufficiency in any Spread Account resulting from any
loss on any Eligible Investment included therein except for losses attributable
to the Collateral Agent's failure to make payments on Eligible Investments as to
which the Collateral Agent, in its commercial capacity, is obligated to make.
Section 3.03. DISTRIBUTIONS; PRIORITY OF PAYMENTS.
(a) On or before each Deficiency Claim Date with respect to any Series,
the Collateral Agent will make the following calculations on the basis of
information (including, without
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limitation, the amount of any Deficiency Claim Amount with respect to any
Series) received pursuant to Section 4.9 of the applicable Securitization
Agreement (or other section referenced in the related Series Supplement), with
respect to each such Series from the Servicer thereunder; PROVIDED, HOWEVER,
that if the Collateral Agent receives notice from Financial Security of the
occurrence of an Insurance Agreement Event of Default with respect to any
Series, such notice shall be determinative for the purposes of determining the
Requisite Amount for such Series:
FIRST, determine the amounts to be on deposit in the respective Spread
Accounts (taking into account amounts to be deposited into the related
Spread Accounts) on the next succeeding Distribution Date which will be
available to satisfy any Deficiency Claim Amount, provided that with
respect to the Series 1996-A Spread Account, such amounts shall be
determined separately for the Series 1996-A Seller Sub-account and the
Series 1996-A Class B Sub-account.
SECOND, determine (i) the amounts, if any, to be distributed from each
Spread Account related to each Series with respect to which there exists a
Deficiency Claim Amount, provided that with respect to the Series 1996-A
Spread Account, such amounts shall be determined separately for the Series
1996-A Seller Sub-account and the Series 1996-A Class B Sub-account, and
(ii) whether, following distribution from the related Spread Accounts to
the respective Trustees for deposit into the respective Collection Account
with respect to which there exists a Deficiency Claim Amount, a Deficiency
Claim Amount will continue to exist with respect to one or more Series.
THIRD, if a Deficiency Claim Amount will continue to exist with
respect to one or more Series other than the Series 1996-A Certificates
following the distributions from the related Spread Accounts contemplated
by paragraph SECOND above, determine the amount, if any, to be distributed
to the Trustee with respect to each Series from unrelated Spread Accounts
other than the Series 1996-A Spread Account in respect of such Deficiency
Claim Amount(s). This determination shall be made in accordance with the
distribution priority scheme set forth in Section 3.03(b) below.
On such Deficiency Claim Date related to a Series, the Collateral Agent
shall deliver a certificate to each Trustee in respect of which the Collateral
Agent has received a Deficiency Notice stating the amount, if any, to be
distributed to such Trustee on the next Distribution Date in respect of such
Deficiency Claim Amount.
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(b) On each Distribution Date, following the deposit into the respective
Spread Accounts (or sub-accounts thereof as specified in the related
Securitization Agreement) of the amounts required to be deposited therein
pursuant to the respective Securitization Agreements and if the Trustee has
received a Deficiency Notice with respect to one or more such Series, or with
respect to priority SIXTH below to the extent the amount referred to therein is
due and owing, the Collateral Agent shall make the following distributions in
the following order of priority:
FIRST, if with respect to any Series there exists a Deficiency Claim
Amount, from the Spread Account related to such Series (which with respect
to the Series 1996-A Spread Account shall be FIRST, from the Series 1996-A
Seller Sub-account and SECOND, from the Series 1996-A Class B Sub-account),
to the Trustee for deposit in the related Collection Account the amount of
such Deficiency Claim Amount.
SECOND, if with respect to any Series other than the Series 1996-A
Certificates there continues to exist a Deficiency Claim Amount after
deposit into the Collection Account of amounts distributed pursuant to
priority FIRST of this Section 3.03(b), from amounts, if any, on deposit in
each unrelated Spread Account other than the Series 1996-A Spread Account
in excess of the related Requisite Amount, an amount in the aggregate up to
the aggregate of the Deficiency Claim Amounts for all Series other than the
Series 1996-A Certificates, for deposit in the respective Collection
Accounts PRO RATA in accordance with the respective Deficiency Claim
Amounts.
THIRD, if with respect to any Series other than the Series 1996-A
Certificates there continues to exist a Deficiency Claim Amount after
deposit into the Collection Account of amounts distributed pursuant to
priority FIRST and SECOND of this Section 3.03(b), from each unrelated
Spread Account other than the Series 1996-A Spread Account PRO RATA in
accordance with amounts on deposit therein, an amount up to the aggregate
of the remaining Deficiency Claim Amounts for all Series other than the
Series 1996-A Certificates, to the respective Trustees for deposit in the
respective Collection Accounts PRO RATA in accordance with the respective
Deficiency Claim Amounts.
FOURTH, if with respect to one or more Series other than the Series
1996-A Certificates there exists a Spread Account Shortfall, from amounts,
if any, (1) on deposit in each Spread Account other than the Series 1996-A
Spread Account in excess of the related Requisite Amount or (2) on
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deposit in any Spread Account other than the Series 1996-A Spread Account
with respect to which the Final Termination Date shall have occurred on
such Distribution Date or a prior Distribution Date, an amount in the
aggregate up to the aggregate of the Spread Account Shortfalls for all
Series other than the Series 1996-A Certificates for deposit into each
Spread Account other than the Series 1996-A Spread Account PRO RATA in
accordance with the respective Spread Account Shortfalls.
FIFTH, if with respect to one or more Series, amounts have been
withdrawn from the related Spread Account pursuant to priority THIRD of
this Section 3.03(b) on such Distribution Date and/or prior Distribution
Dates and such amounts have not been redeposited in full into such Spread
Account pursuant to this priority FIFTH (such amounts in the aggregate for
a Series "Unreimbursed Amounts"), from amounts, if any, (1) on deposit in
each Spread Account other than the Series 1996-A Spread Account in excess
of the related Requisite Amount; or (2) on deposit in any Spread Account
other than the Series 1996-A Spread Account with respect to which the Final
Termination Date shall have occurred on such Distribution Date or a prior
Distribution Date, an amount up to the aggregate of the Unreimbursed
Amounts for all such Series for deposit into each Spread Account other than
the Series 1996-A Spread Account with respect to which there exist
Unreimbursed Amounts PRO RATA in accordance with the respective
Unreimbursed Amounts.
SIXTH, if any amounts are owed to the Trustee, Collateral Agent or
Backup Servicer for reasonable out-of-pocket expenses in connection with
the administration of the Trust, including the expenses incurred in the
transition to a successor Servicer and such amounts have not been paid,
then from amounts (if any) on deposit in the related Spread Account (which
with respect to the Series 1996-A Spread Account shall be first from the
Series 1996-A Seller Sub-account and then from the Series 1996-A Class B
Sub-account), an amount up to the amount so owed, to be paid to the
Trustee, the Collateral Agent and the Backup Servicer.
SEVENTH, any funds in a Spread Account in excess of the applicable
Requisite Amount and any funds in a Spread Account with respect to a Series
for which the Final Termination Date shall have occurred after distribution
pursuant to priorities FIRST through SIXTH will be released to the
Reversionary Holders as provided in the related Securitization Agreement
(or, if the related Securitization Agreement does not so provide, to the
Seller); PROVIDED, HOWEVER, with respect to the Series 1996-A Spread
Account, funds to be released pursuant to this priority SEVENTH shall
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be released FIRST, from the Series 1996-A Class B Sub-account to the extent
of funds on deposit therein for distribution to the Class B
Certificateholders pursuant to Section 5.5(xi)(A) of the Series 1996-A
Securitization Agreement and SECOND, from the Series 1996-A Seller Sub-
account for distribution in the following priority: (i) to the Class B
Certificateholders as required by Section 5.5(xi)(B) of the Series 1996-A
Securitization Agreement; and (ii) to the Seller pursuant to Section
5.5(xii) of the Series 1996-A Securitization Agreement, in each case, free
and clear of the Lien established hereunder.
Section 3.04. GENERAL PROVISIONS REGARDING SPREAD ACCOUNTS.
(a) Promptly upon the establishment (initially or upon any relocation) of
a Spread Account hereunder, the Collateral Agent shall advise the Seller and
each Secured Party in writing of the name and address of the depository
institution or trust company where such Spread Account has been established (if
not Chase Manhattan Bank or any successor Collateral Agent in its commercial
banking capacity), the name of the officer of the depository institution
responsible for overseeing such Spread Account, the account number and the
individuals whose names appear on the signature cards for such Spread Account.
The Seller shall cause each such depository institution or trust company to
execute a written agreement, in form and substance satisfactory to the
Controlling Party, waiving, and the Collateral Agent by its execution of this
Agreement hereby waives (except to the extent expressly provided herein), in
each case to the extent permitted under applicable law, (i) any banker's or
other statutory or similar Lien, and (ii) any right of set-off or other similar
right under applicable law with respect to such Spread Account, and any other
Spread Account, and agreeing, and the Collateral Agent by its execution of this
Agreement hereby agrees, to notify the Seller, the Collateral Agent, and each
Secured Party of any charge or claim against or with respect to such Spread
Account. The Collateral Agent shall give the Seller and each Secured Party at
least ten (10) Business Days' prior written notice of any change in the location
of such Spread Account or in any related account information. If the Collateral
Agent changes the location of any Spread Account, it shall change the location
of the other Spread Accounts, so that all Spread Accounts shall at all times be
located at the same depository institution. Anything herein to the contrary
notwithstanding, unless otherwise consented to by the Controlling Party in
writing, the Collateral Agent shall have no right to change the location of any
Spread Account.
(b) Upon the written request of the Controlling Party, the Seller, or any
Reversionary Holder, the Collateral Agent shall cause, at the expense of the
Seller, the depository institution
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at which any Spread Account is located to forward to the requesting party copies
of all monthly account statements for such Spread Account.
(c) If at any time any Spread Account ceases to be an Eligible Account,
the Collateral Agent shall notify the Controlling Party of such fact and shall
establish within five (5) Business Days of such determination in accordance with
paragraph (a) of this Section, a successor Spread Account thereto, which shall
be an Eligible Account, at another depository institution or trust company
acceptable to the Controlling Party and shall establish successor Spread
Accounts with respect to all other Spread Accounts, each of which shall be an
Eligible Account, at the same depository institution. The Seller shall cause
such depository institution to execute a written agreement under terms provided
for in paragraph (a) of this Section.
(d) No passbook, certificate of deposit or other similar instrument
evidencing a Spread Account shall be issued, and all contracts, receipts and
other papers, if any, governing or evidencing a Spread Account shall be held by
the Collateral Agent.
Section 3.05. REPORTS BY THE COLLATERAL AGENT. The Collateral Agent shall
report to the Seller, Financial Security, the Trustee and the Servicer on a
monthly basis no later than each Distribution Date with respect to the amount on
deposit in each Spread Account and the identity of the investments included
therein as of the last day of the related Monthly Period (all of which with
respect to the Series 1996-A Spread Account shall be reported separately for the
Series 1996-A Seller Sub-account and the Series 1996-A Class B Sub-account), and
shall provide accountings of deposits into and withdrawals from the Spread
Accounts, and of the investments made therein, upon the request of the Seller,
Financial Security or the Servicer (all of which with respect to the Series
1996-A Spread Account shall be reported separately for the Series 1996-A Seller
Sub-account and the Series 1996-A Class B Sub-account).
ARTICLE IV.
THE COLLATERAL AGENT
Section 4.01. APPOINTMENT AND POWERS. Subject to the terms and conditions
hereof, each of the Secured Parties hereby appoints Chase Manhattan Bank as the
Collateral Agent with respect to the Series 1996-A Collateral and the related
Collateral subsequently specified in a Series Supplement, and Chase Manhattan
Bank hereby accepts such appointment and agrees
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to act as Collateral Agent with respect to the Series 1996-A Collateral, and
upon execution of any Series Supplement, shall be deemed to accept such
appointment, and agree to act as Collateral Agent with respect to such
Collateral, in each case, for the Secured Parties, to maintain custody and
possession of such Collateral (except as otherwise provided hereunder) and to
perform the other duties of the Collateral Agent in accordance with the
provisions of this Agreement. Each Secured Party hereby authorizes the
Collateral Agent to take such action on its behalf, and to exercise such rights,
remedies, powers and privileges hereunder, as the Controlling Party may direct
and as are specifically authorized to be exercised by the Collateral Agent by
the terms hereof, together with such actions, rights, remedies, powers and
privileges as are reasonably incidental thereto. The Collateral Agent shall act
upon and in compliance with the written instructions of the Controlling Party
delivered pursuant to this Agreement promptly following receipt of such written
instructions; PROVIDED, HOWEVER, that the Collateral Agent shall not act in
accordance with any instructions (i) which are not authorized by, or in
violation of the provisions of, this Agreement, (ii) which are in violation of
any applicable law, rule or regulation or (iii) for which the Collateral Agent
has not received reasonable indemnity. Receipt of such instructions shall not
be a condition to the exercise by the Collateral Agent of its express duties
hereunder, except where this Agreement provides that the Collateral Agent is
permitted to act only following and in accordance with such instructions.
Section 4.02. PERFORMANCE OF DUTIES. The Collateral Agent shall have no
duties or responsibilities except those expressly set forth in this Agreement
and the other Transaction Documents to which the Collateral Agent is a party as
Collateral Agent or as directed by the Controlling Party in accordance with this
Agreement. The Collateral Agent shall not be required to take any discretionary
actions hereunder except at the written direction and with the indemnification
of the Controlling Party.
Section 4.03. LIMITATION ON LIABILITY. Neither the Collateral Agent nor
any of its directors, officers or employees, shall be liable for any action
taken or omitted to be taken by it or them hereunder, or in connection herewith,
except that the Collateral Agent shall be liable for its negligence, bad faith
or willful misconduct; nor shall the Collateral Agent be responsible for the
validity, effectiveness, value, sufficiency or enforceability against the Seller
of this Agreement or any of the Collateral (or any part thereof).
Notwithstanding any term or provision of this Agreement, the Collateral Agent
shall incur no liability to the Seller or the Secured Parties for any action
taken or omitted by the Collateral Agent in connection with the Collateral,
except for the negligence, bad faith or willful misconduct on the part of the
Collateral Agent, and, further,
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shall incur no liability to the Secured Parties except for negligence, bad faith
or willful misconduct in carrying out its duties to the Secured Parties.
Subject to Section 4.04 hereof, the Collateral Agent shall be protected and
shall incur no liability to any such party in relying upon the accuracy, acting
in reliance upon the contents, and assuming the genuineness of any notice,
demand, certificate, signature, instrument or other document reasonably believed
by the Collateral Agent to be genuine and to have been duly executed by the
appropriate signatory, and (absent any knowledge to the contrary) the Collateral
Agent shall not be required to make any independent investigation with respect
thereto. The Collateral Agent shall at all times be free independently to
establish to its reasonable satisfaction, but shall have no duty to
independently verify, the existence or nonexistence of facts that are a
condition to the exercise or enforcement of any right or remedy hereunder or
under any of the Transaction Documents. The Collateral Agent may consult with
counsel, and shall not be liable for any action taken or omitted to be taken by
it hereunder in good faith and in accordance with the written advice of such
counsel. The Collateral Agent shall not be under any obligation to exercise any
of the remedial rights or powers vested in it by this Agreement or to follow any
direction from the Controlling Party unless it shall have received reasonable
security or indemnity satisfactory to the Collateral Agent against the costs,
expenses and liabilities which might be incurred by it in the exercise thereof.
Section 4.04. RELIANCE UPON DOCUMENTS. In the absence of negligence, bad
faith or willful misconduct on its part, the Collateral Agent shall be entitled
to conclusively rely on any communication, instrument, paper or other document
reasonably believed by it to be genuine and correct and to have been signed or
sent by the proper Person or Persons and shall have no liability in acting, or
omitting to act, where such action or omission to act is in reliance upon any
statement or opinion contained in any such document or instrument.
Section 4.05. SUCCESSOR COLLATERAL AGENT.
(a) MERGER. Any Person into which the Collateral Agent may be converted
or merged, or with which it may be consolidated, or to which it may sell or
transfer its trust business and assets as a whole or substantially as a whole,
or any Person resulting from any such conversion, merger, consolidation, sale or
transfer to which the Collateral Agent is a party, shall (provided it is
otherwise qualified to serve as the Collateral Agent hereunder) be and become a
successor Collateral Agent hereunder and be vested with all of the title to and
interest in the Collateral and all of the trusts, powers, discretions,
immunities, privileges and other matters as was its predecessor without the
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execution or filing of any instrument or any further act, deed or conveyance on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding, except to the extent, if any, that any such action is necessary
to perfect, or continue the perfection of, the security interest of the Secured
Parties in the Collateral.
(b) RESIGNATION. The Collateral Agent and any successor Collateral Agent
may resign only (i) upon a determination that by reason of a change in legal
requirements, the performance of its duties under this Agreement would cause it
to be in violation of such legal requirements in a manner which would result in
a material adverse effect on the Collateral Agent, and the Controlling Party
does not elect to waive the Collateral Agent's obligation to perform those
duties which render it legally unable to act or elect to delegate those duties
to another Person, or (ii) with the prior written consent of the Controlling
Party. The Collateral Agent shall give not less than 60 days' prior written
notice of any such permitted resignation by registered or certified mail to the
other Secured Party and the Seller; PROVIDED, that such resignation shall take
effect only upon the date which is the latest of (i) the effective date of the
appointment of a successor Collateral Agent and the acceptance in writing by
such successor Collateral Agent of such appointment and of its obligation to
perform its duties hereunder in accordance with the provisions hereof,
(ii) delivery of the Collateral to such successor to be held in accordance with
the procedures specified in Article II hereof, and (iii) receipt by the
Controlling Party of an Opinion of Counsel to the effect described in Section
5.02 hereof. Notwithstanding the preceding sentence, if, by the contemplated
date of resignation specified in the written notice of resignation delivered as
described above, no successor Collateral Agent or temporary successor Collateral
Agent has been appointed Collateral Agent or becomes the Collateral Agent
pursuant to subsection (d) hereof, the resigning Collateral Agent may petition a
court of competent jurisdiction in New York, New York for the appointment of a
successor.
(c) REMOVAL. The Collateral Agent may be removed by the Controlling Party
at any time, with or without cause, by an instrument or concurrent instruments
in writing delivered to the Collateral Agent, the other Secured Party and the
Seller. A temporary successor may be removed at any time to allow a successor
Collateral Agent to be appointed pursuant to subsection (d) below. Any removal
pursuant to the provisions of this subsection (c) shall take effect only upon
the date which is the latest of (i) the effective date of the appointment of a
successor Collateral Agent and the acceptance in writing by such successor
Collateral Agent of such appointment and of its obligation to perform its duties
hereunder in accordance with the
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provisions hereof, (ii) delivery of the Collateral to such successor to be held
in accordance with the procedures specified in Article II hereof and
(iii) receipt by the Controlling Party of an Opinion of Counsel to the effect
described in Section 5.02 hereof.
(d) ACCEPTANCE BY SUCCESSOR. The Controlling Party shall have the sole
right to appoint each successor Collateral Agent. Every temporary or permanent
successor Collateral Agent appointed hereunder shall execute, acknowledge and
deliver to its predecessor and to each Secured Party and the Seller an
instrument in writing accepting such appointment hereunder and the relevant
predecessor shall execute, acknowledge and deliver such other documents and
instruments as will effectuate the delivery of all Collateral to the successor
Collateral Agent to be held in accordance with the procedures specified in
Article II hereof, whereupon such successor, without any further act, deed or
conveyance, shall become fully vested with all the estates, properties, rights,
powers, duties and obligations of its predecessor. Such predecessor shall,
nevertheless, on the written request of either Secured Party or the Seller,
execute and deliver an instrument transferring to such successor all the
estates, properties, rights and powers of such predecessor hereunder. In the
event that any instrument in writing from the Seller or a Secured Party is
reasonably required by a successor Collateral Agent to more fully and certainly
vest in such successor the estates, properties, rights, powers, duties and
obligations vested or intended to be vested hereunder in the Collateral Agent,
any and all such written instruments shall, at the request of the temporary or
permanent successor Collateral Agent, be forthwith executed, acknowledged and
delivered by the Seller. The designation of any successor Collateral Agent and
the instrument or instruments removing any Collateral Agent and appointing a
successor hereunder, together with all other instruments provided for herein,
shall be maintained with the records relating to the Collateral and, to the
extent required by applicable law, filed or recorded by the successor Collateral
Agent in each place where such filing or recording is necessary to effect the
transfer of the Collateral to the successor Collateral Agent or to protect or
continue the perfection of the security interests granted hereunder.
(e) Any resignation or removal of a Collateral Agent and appointment of a
successor Collateral Agent shall be effected with respect to this Agreement and
all Series Supplements simultaneously, so that at no time is there more than one
Collateral Agent acting hereunder and under all Series Supplements.
Section 4.06. INDEMNIFICATION. The Seller shall indemnify the Collateral
Agent, its directors, officers, employees and
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agents for, and hold the Collateral Agent, its directors, officers, employees
and agents harmless against, any loss, liability or expense (including the costs
and expenses of defending against any claim of liability) arising out of or in
connection with the Collateral Agent's acting as Collateral Agent hereunder,
except such loss, liability or expense as shall result from the negligence, bad
faith or willful misconduct of the Collateral Agent or its officers or agents.
The obligation of the Seller under this Section shall survive the termination of
this Agreement and the resignation or removal of the Collateral Agent. The
Collateral Agent covenants and agrees that the obligations of the Seller
hereunder and under Section 4.07 hereof shall be limited to the extent provided
in Section 2.08 hereof, and further covenants not to take any action to enforce
its rights to indemnification hereunder with respect to the Seller and to
payment under Section 4.07 hereof except in accordance with the provisions of
Section 8.05 hereof, or otherwise to assert any Lien or take any other action in
respect of the Collateral or the Trust Estate of a Series until the applicable
Final Termination Date.
Section 4.07. COMPENSATION AND REIMBURSEMENT. The Seller agrees for the
benefit of the Secured Parties and as part of the Secured Obligations (a) to pay
to the Collateral Agent, on each Distribution Date, the Collateral Agent Fee for
all services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a collateral trustee);
and (b) to reimburse the Collateral Agent upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Collateral Agent in
accordance with any provision of, or carrying out its duties and obligations
under, this Agreement (including the reasonable compensation and fees and the
expenses and disbursements of its agents, any independent certified public
accountants and independent counsel), except any expense, disbursement or
advances as may be attributable to negligence, bad faith or willful misconduct
on the part of the Collateral Agent.
Section 4.08. REPRESENTATIONS AND WARRANTIES OF THE COLLATERAL AGENT. The
Collateral Agent represents and warrants to the Seller and to each Secured Party
as follows:
(a) DUE ORGANIZATION. The Collateral Agent is a banking corporation, duly
organized, validly existing and in good standing under the laws of the State of
New York, and is duly authorized and licensed under applicable law to conduct
its business as presently conducted.
(b) CORPORATE POWER. The Collateral Agent has all requisite right, power
and authority to execute and deliver this
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Agreement and to perform all of its duties as Collateral Agent hereunder.
(c) DUE AUTHORIZATION. The execution and delivery by the Collateral Agent
of this Agreement and the other Transaction Documents to which it is a party,
and the performance by the Collateral Agent of its duties hereunder and
thereunder, have been duly authorized by all necessary corporate proceedings and
no further approvals or filings, including any governmental approvals, are
required for the valid execution and delivery by the Collateral Agent, or the
performance by the Collateral Agent, of this Agreement and such other
Transaction Documents.
(d) VALID AND BINDING AGREEMENT. The Collateral Agent has duly executed
and delivered this Agreement and each other Transaction Document to which it is
a party, and each of this Agreement and each such other Transaction Document
constitutes the legal, valid and binding obligation of the Collateral Agent,
enforceable against the Collateral Agent in accordance with its terms, except as
(i) such enforceability may be limited by bankruptcy, insolvency, reorganization
and similar laws relating to or affecting the enforcement of the rights of
creditors of federally insured depository institutions, rights generally and
(ii) the availability of equitable remedies may be limited by equitable
principles of general applicability.
Section 4.09. WAIVER OF SETOFFS. The Collateral Agent hereby expressly
waives any and all rights of setoff that the Collateral Agent may otherwise at
any time have under applicable law with respect to any Spread Account and agrees
that amounts in the Spread Accounts shall at all times be held and applied
solely in accordance with the provisions hereof.
Section 4.10. CONTROL BY THE CONTROLLING PARTY. The Collateral Agent
shall comply with notices and instructions given by the Seller only if
accompanied by the written consent of the Controlling Party, except that if any
Default shall have occurred and be continuing, the Collateral Agent shall act
upon and comply with notices and instructions given by the Controlling Party
alone in the place and stead of the Seller.
ARTICLE V.
COVENANTS OF THE SELLER
Section 5.01. PRESERVATION OF COLLATERAL. Subject to the rights, powers
and authorities granted to the Collateral Agent and the Controlling Party in
this Agreement, the Seller, on behalf of itself and as the agent of the
Reversionary Holders, shall take such action as is necessary and proper with
respect to the Collateral in order to preserve and maintain such Collateral and
to cause (subject to the rights of the Secured Parties) the Collateral Agent to
perform its obligations with respect to
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such Collateral as provided herein. The Seller will do, execute, acknowledge
and deliver, or cause to be done by the Reversionary Holders, or others,
executed, acknowledged and delivered, such instruments of transfer or take such
other steps or actions as may be necessary, or required by the Controlling
Party, to perfect the Security Interests granted hereunder in the Collateral, to
ensure that such Security Interests rank prior to all other Liens and to
preserve the priority of such Security Interests and the validity and
enforceability thereof. Upon any delivery or substitution of Collateral, the
Seller, on behalf of itself and as the agent of the Reversionary Holders, shall
be obligated to execute such documents and perform such actions (or cause the
Reversionary Holders to so execute and perform) as are necessary to create in
the Collateral Agent for the benefit of the Secured Parties a valid first
priority Lien on, and valid and perfected, first priority security interest in,
the Collateral so delivered and to deliver such Collateral to the Collateral
Agent, free and clear of any other Lien, together with satisfactory assurances
thereof, and to pay any reasonable costs incurred by any of the Secured Parties
or the Collateral Agent (including its agents) or otherwise in connection with
such delivery.
Section 5.02. OPINIONS AS TO COLLATERAL. Not more than 90 days nor less
than 30 days prior to (i) each anniversary of the date hereof during the term of
this Agreement and (ii) each date on which the Seller proposes to take any
action contemplated by Section 5.06 hereof, the Seller shall, at its own cost
and expense, furnish to each Secured Party and the Collateral Agent an Opinion
of Counsel with respect to each Series either (a) stating that, in the opinion
of such counsel, such action has been taken with respect to the execution and
filing of any financing statements and continuation statements and other actions
as are necessary to perfect, maintain and protect the lien and security interest
of the Collateral Agent (and the priority thereof), on behalf of the Secured
Parties, with respect to such Collateral against all creditors of, and
purchasers from, the Seller and the Reversionary Holders and reciting the
details of such action, or (b) stating that, in the opinion of such counsel, no
such action is necessary to maintain such perfected lien and security interest.
Such Opinion of Counsel shall further describe each execution and filing of any
financing statements and continuation statements and such other actions as will,
in the opinion of such counsel, be required to perfect, maintain and protect the
lien and security interest of the Collateral Agent, on behalf of the Secured
Parties, with respect to such Collateral against all creditors of, and
purchasers from, the Seller and the Reversionary Holders for a period, specified
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in such Opinion, continuing until a date not earlier than eighteen months from
the date of such Opinion.
Section 5.03. NOTICES. In the event that the Seller acquires knowledge of
the occurrence and continuance of any Insurance Agreement Event of Default or
Servicer Termination Event or of any event of default or like event, howsoever
described or called, under any of the Transaction Documents, the Seller shall
immediately give notice thereof to the Collateral Agent and each Secured Party.
Section 5.04. WAIVER OF STAY OR EXTENSION LAWS; MARSHALLING OF ASSETS.
The Seller, on behalf of itself and as agent for the Reversionary Holders,
covenants, to the fullest extent permitted by applicable law, that neither it
nor any Reversionary Holder will at any time insist upon, 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
Agreement or any absolute sale of the Collateral or any part thereof, or the
possession thereof by any purchaser at any sale under Article VII of this
Agreement; and the Seller, on behalf of itself and as agent for the Reversionary
Holders, to the fullest extent permitted by applicable law, for itself, each
Reversionary Holder, and all who may claim under it or them, hereby waives the
benefit of all such laws, and covenants that neither it nor any Reversionary
Holder will hinder, delay or impede the execution of any power herein granted to
the Collateral Agent, but will suffer and permit the execution of every such
power as though no such law had been enacted. The Seller, for itself, each
Reversionary Holder, and all who may claim under it or them, waives, to the
fullest extent permitted by applicable law, all right to have the Collateral
marshalled upon any foreclosure or other disposition thereof.
Section 5.05. NONINTERFERENCE, ETC. The Seller, on behalf of itself and
as agent for the Reversionary Holders, agrees that neither the Seller nor any
Reversionary Holder shall (i) waive or alter any of its rights under the
Collateral (or any agreement or instrument relating thereto) without the prior
written consent of the Controlling Party; or (ii) fail to pay any tax,
assessment, charge or fee levied or assessed against the Collateral, or to
defend any action, if such failure to pay or defend may adversely affect the
priority or enforceability of the Seller's or any Reversionary Holder's right,
title or interest in and to the Collateral or the Collateral Agent's lien on,
and security interest in, the Collateral for the benefit of the Secured Parties;
or (iii) take any action, or fail to take any action, if such action or failure
to take action would interfere with the enforcement of any rights under the
Transaction Documents.
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Section 5.06. SELLER CHANGES.
(a) CHANGE IN NAME, STRUCTURE, ETC. The Seller shall not change its name,
identity or corporate structure unless it shall have given each Secured Party
and the Collateral Agent at least 60 days' prior written notice thereof, shall
have effected any necessary or appropriate assignments or amendments thereto and
filings of financing statements or amendments thereto, and shall have delivered
to the Collateral Agent and each Secured Party an Opinion of Counsel of the type
described in Section 5.02 hereof.
(b) RELOCATION OF THE SELLER. Neither Atlantic nor the Seller shall
change its principal executive office unless it gives each Secured Party and the
Collateral Agent at least 90 days' prior written notice of any relocation of its
principal executive office. If the Seller relocates its principal executive
office or principal place of business from New York, the Seller shall give prior
notice thereof to the Controlling Party and the Collateral Agent and shall
effect whatever appropriate recordations and filings as are necessary and shall
provide an Opinion of Counsel to the Controlling Party and the Collateral Agent,
to the effect that, upon the recording of any necessary assignments or
amendments to previously-recorded assignments and filing of any necessary
amendments to the previously filed financing or continuation statements or upon
the filing of one or more specified new financing statements, and the taking of
such other actions as may be specified in such opinion, the security interests
in the Collateral shall remain, after such relocation, valid and perfected and
first in priority.
ARTICLE VI.
CONTROLLING PARTY; INTERCREDITOR PROVISIONS
Section 6.01. APPOINTMENT OF CONTROLLING PARTY. From and after the
Closing Date of a Series until the Insurer Termination Date related to such
Series, Financial Security shall be the Controlling Party with respect to such
Series and shall be entitled to exercise all the rights given the Controlling
Party hereunder with respect to such Series. From and after the Insurer
Termination Date related to such Series until the Trustee Termination Date
related to such Series, the Trustee shall be the Controlling Party with respect
to such Series. Notwithstanding the foregoing, in the event that a Financial
Security Default shall have occurred and be continuing, the Trustee shall be the
Controlling Party with respect to such Series until the applicable Trustee
Termination Date. If prior to an Insurer Termination Date, the Trustee shall
have become the Controlling Party with respect to a Series as a result of the
occurrence of a Financial Security Default and either such Financial Security
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Default is cured or for any other reason ceases to exist or the Trustee
Termination Date with respect to a Series occurs, then upon such cure or other
cessation or on such Trustee Termination Date, as the case may be, Financial
Security shall, upon notice thereof being duly given to the Collateral Agent,
again be the Controlling Party with respect to such Series.
Section 6.02. CONTROLLING PARTY'S AUTHORITY.
(a) The Seller hereby irrevocably appoints the Controlling Party, and any
successor to the Controlling Party appointed pursuant to Section 6.01 hereof,
its true and lawful attorney, with full power of substitution, in the name of
the Seller, the Secured Parties or otherwise, at the expense of the Seller, to
the extent permitted by law to exercise, at any time and from time to time while
any Insurance Agreement Event of Default has occurred and is continuing, any or
all of the following powers with respect to all or any of the Collateral related
to the relevant Series: (i) to demand, sue for, collect, receive and give
acquittance for any and all monies due or to become due upon or by virtue
thereof, (ii) to settle, compromise, compound, prosecute or defend any action or
proceeding with respect thereto, (iii) to direct the Collateral Agent to sell,
transfer, assign or otherwise deal with the same or the proceeds thereof as
fully and effectively as if the Collateral Agent were the absolute owner
thereof, and (iv) to extend the time of payment of any or all thereof and to
make any allowance or other adjustments with respect thereto.
(b) With respect to each Series and the related Collateral, each Secured
Party hereby irrevocably and unconditionally constitutes and appoints the
Controlling Party with respect to such Series, and any successor to such
Controlling Party appointed pursuant to Section 6.01 hereof from time to time,
as the true and lawful attorney-in-fact of such Secured Party for so long as
such Secured Party is the Non-Controlling Party, with full power of
substitution, to execute, acknowledge and deliver any notice, document,
certificate, paper, pleading or instrument and to do in the name of the
Controlling Party as well as in the name, place and stead of such Secured Party
such acts, things and deeds for and on behalf of and in the name of such Secured
Party under this Agreement with respect to such Series which such Secured Party
could or might do or which may be necessary, desirable or convenient in such
Controlling Party's sole discretion to effect the purposes contemplated
hereunder and, without limitation, exercise full right, power and authority to
take, or defer from taking, any and all acts with respect to the administration
of the Collateral related to such Series, and the enforcement of the rights of
the Secured Parties hereunder with respect to such Series, on behalf of and for
the benefit of such
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Controlling Party and such Non-Controlling Party, as their interests may appear.
Section 6.03. RIGHTS OF SECURED PARTIES. With respect to each Series of
Certificates and the related Collateral, the Non-Controlling Party at any time
expressly agrees that it shall not assert any rights that it may otherwise have,
as a Secured Party with respect to the Collateral, to direct the maintenance,
sale or other disposition of the Collateral or any portion thereof,
notwithstanding the occurrence and continuance of any Insurance Agreement Event
of Default or Servicer Termination Event with respect to such Series or any non-
performance by the Seller or any Reversionary Holder of any obligation owed to
such Secured Party hereunder or under any other Transaction Document, and each
party hereto agrees that the Controlling Party shall be the only Person entitled
to assert and exercise such rights.
Section 6.04. DEGREE OF CARE.
(a) CONTROLLING PARTY. Notwithstanding any term or provision of this
Agreement, the Controlling Party shall incur no liability to the Seller or any
Reversionary Holder for any action taken or omitted by the Controlling Party in
connection with the Collateral, except for any gross negligence, bad faith or
willful misconduct on the part of the Controlling Party and, further, shall
incur no liability to the Non-Controlling Party except for a breach of the terms
of this Agreement or for gross negligence, bad faith or willful misconduct in
carrying out its duties, if any, to the Non-Controlling Party. The Controlling
Party shall be protected and shall incur no liability to any such party in
relying upon the accuracy, acting in reliance upon the contents and assuming the
genuineness of any notice, demand, certificate, signature, instrument or other
document believed by the Controlling Party to be genuine and to have been duly
executed by the appropriate signatory, and (absent manifest error or actual
knowledge to the contrary) the Controlling Party shall not be required to make
any independent investigation with respect thereto. The Controlling Party
shall, at all times, be free independently to establish to its reasonable
satisfaction the existence or nonexistence, as the case may be, of any fact the
existence or nonexistence of which shall be a condition to the exercise or
enforcement of any right or remedy under this Agreement or any of the
Transaction Documents.
(b) THE NON-CONTROLLING PARTY. The Non-Controlling Party shall not be
liable to the Seller or any Reversionary Holder for any action or failure to act
by the Controlling Party or the Collateral Agent in exercising, or failing to
exercise, any rights or remedies hereunder.
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ARTICLE VII.
REMEDIES UPON DEFAULT
Section 7.01. REMEDIES UPON A DEFAULT. If a Default with respect to a
Series has occurred and is continuing, the Collateral Agent shall, at the
written direction of the Controlling Party, take whatever action at law or in
equity as may appear necessary or desirable in the judgment of the Controlling
Party to collect and satisfy all Secured Obligations, including, but not limited
to, foreclosure upon the Collateral and all other rights available to secured
parties under applicable law or to enforce performance and observance of any
obligation, agreement or covenant under any of the Transaction Documents related
to such Series.
Section 7.02. WAIVER OF DEFAULT. The Controlling Party shall have the
sole right, to be exercised in its complete discretion, to waive any Default by
a writing setting forth the terms, conditions and extent of such waiver signed
by the Controlling Party and delivered to the Collateral Agent, the other
Secured Party and the Seller. Any such waiver shall be binding upon the Non-
Controlling Party and the Collateral Agent. Unless such writing expressly
provides to the contrary, any waiver so granted shall extend only to the
specific event or occurrence which gave rise to the Default so waived and not to
any other similar event or occurrence occurring subsequent to the date of such
waiver.
Section 7.03. RESTORATION OF RIGHTS AND REMEDIES. If the Collateral Agent
has instituted any proceeding to enforce any right or remedy under this
Agreement, and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to such Collateral Agent, then and in
every such case the Seller, the Collateral Agent and each of the Secured Parties
and each Reversionary Holder shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Secured Parties shall
continue as though no such proceeding had been instituted.
Section 7.04. NO REMEDY EXCLUSIVE. No right or remedy herein conferred
upon or reserved to the Collateral Agent, the Controlling Party or either of the
Secured Parties is intended to be exclusive of any other right or remedy, and
every right or remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law, in equity or otherwise (but, in each case, shall be subject to
the provisions of this Agreement limiting such remedies), and each and every
right, power and remedy whether specifically herein given or otherwise existing
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may be exercised from time to time and as often and in such order as may be
deemed expedient by the Controlling Party, and the exercise of or the beginning
of the exercise of any right or 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.
ARTICLE VIII.
MISCELLANEOUS
Section 8.01. FURTHER ASSURANCES. Each party hereto shall take such
action and deliver such instruments to any other party hereto, in addition to
the actions and instruments specifically provided for herein, as may be
reasonably requested or required to effectuate the purpose or provisions of this
Agreement or to confirm or perfect any transaction described or contemplated
herein.
Section 8.02. WAIVER. Any waiver by any party of any provision of this
Agreement or any right, remedy or option hereunder shall only prevent and estop
such party from thereafter enforcing such provision, right, remedy or option if
such waiver is given in writing and only as to the specific instance and for the
specific purpose for which such waiver was given. The failure or refusal of any
party hereto to insist in any one or more instances, or in a course of dealing,
upon the strict performance of any of the terms or provisions of this Agreement
by any party hereto or the partial exercise of any right, remedy or option
hereunder shall not be construed as a waiver or relinquishment of any such term
or provision, but the same shall continue in full force and effect.
Section 8.03. AMENDMENTS, WAIVERS. No amendment, modification, waiver or
supplement to this Agreement or any provision of this Agreement shall in any
event be effective unless the same shall have been made or consented to in
writing by each of the parties hereto and each Rating Agency shall have
confirmed in writing that such amendment will not cause a reduction or
withdrawal of a rating on any Series; PROVIDED, HOWEVER, that, for so long as
Financial Security shall be the Controlling Party with respect to a Series,
amendments, modifications, waivers or supplements hereto relating to such
Series, the related Collateral or Spread Account or any requirement hereunder to
deposit or retain any amounts in such Spread Account or to distribute any
amounts therein as provided in Section 3.03 hereof shall be effective if made or
consented to in writing by Financial Security, the Seller and the Collateral
Agent (the consent of which shall not be withheld or delayed with respect to any
amendment that does not adversely affect the
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Collateral Agent) but shall in no circumstances require the consent of the
Trustee or the Certificateholders related to such Series or any other Series or
any Reversionary Holder.
Section 8.04. SEVERABILITY. In the event that any provision of this
Agreement or the application thereof to any party hereto or to any circumstance
or in any jurisdiction governing this Agreement shall, to any extent, be invalid
or unenforceable under any applicable statute, regulation or rule of law, then
such provision shall be deemed inoperative to the extent that it is invalid or
unenforceable, and the remainder of this Agreement, and the application of any
such invalid or unenforceable provision to the parties, jurisdictions or
circumstances other than to whom or to which it is held invalid or
unenforceable, shall not be affected thereby nor shall the same affect the
validity or enforceability of any other provision of this Agreement. The
parties hereto further agree that the holding by any court of competent
jurisdiction that any remedy pursued by the Collateral Agent, or any of the
Secured Parties, hereunder is unavailable or unenforceable shall not affect in
any way the ability of the Collateral Agent or any of the Secured Parties to
pursue any other remedy available to it or them (subject, however, to the
provisions of this Agreement limiting such remedies).
Section 8.05. NONPETITION COVENANT. Notwithstanding any prior termination
of this Agreement, each of the parties hereto agrees that it shall not, prior to
one year and one day after the Final Distribution Date with respect to each
Series, acquiesce, petition or otherwise invoke or cause the Seller or the Trust
to invoke the process of the United States of America, any State or other
political subdivision thereof or any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government
for the purpose of commencing or sustaining a case by or against the Seller or
the Trust under a Federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Seller or the Trust or all or any part of its
property or assets or ordering the winding up or liquidation of the affairs of
the Seller or the Trust. The parties agree that damages will be an inadequate
remedy for breach of this covenant and that this covenant may be specifically
enforced.
Section 8.06. NOTICES. All notices, demands, certificates, requests and
communications hereunder ("notices") shall be in writing and shall be effective
(a) upon receipt when sent through the U.S. mails, registered or certified mail,
return receipt requested, postage prepaid, with such receipt to be effective the
date of delivery indicated on the return receipt, or (b) one Business Day after
delivery to an overnight courier, or (c) on
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the date personally delivered to an Authorized Officer of the party to which
sent, or (d) on the date transmitted by legible telecopier transmission with a
confirmation of receipt, in all cases addressed to the recipient as follows:
(i) If to the Seller (for so long as Atlantic is the Servicer):
Atlantic Auto Third Funding Corporation
800 Perinton Hills Office Park
P.O. Box 1502
Fairport, New York 14450
Telecopier No.: (716) 421-1954
Confirmation: (716) 421-1955
(ii) If to Financial Security:
Financial Security Assurance Inc.
350 Park Avenue
New York, New York 10022
Attention: Surveillance Department
Re: Atlantic Grantor Trust 1996-A
6.70% Asset Backed Certificates, Class A
Telecopier No.: (212) 339-3518
(212) 339-3529
Confirmation: (212) 826-0100
(in each case in which notice or other communication to Financial
Security refers to a Default or a claim on the Policy or in which
failure on the part of Financial Security to respond shall be
deemed to constitute consent or acceptance, then with a copy to
the attention of the Senior Vice President Surveillance)
(iii) If to the Trustee:
The Chase Manhattan Bank
4 Chase Metrotech Center - 3rd Floor
Brooklyn, NY 11245
Attention: John Mynttinen
Telecopier No.: (718) 242-3529
Confirmation: (718) 242-5854
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(iv) If to the Collateral Agent:
The Chase Manhattan Bank
4 Chase Metrotech Center - 3rd Floor
Brooklyn, NY 11245
Attention: John Mynttinen
Telecopier No.: (718) 242-3529
Confirmation: (718) 242-5854
(v) If to Moody's:
Moody's Investors Service, Inc.
99 Church Street
New York, New York 10007
Telecopier No.: (212) 553-0344
(vi) If to Standard & Poor's:
Standard & Poor's Ratings Group
26 Broadway
New York, New York 10004
Telecopier No.: (212) 208-1582
A copy of each notice given hereunder to any party hereto shall also be given to
(without duplication) Financial Security, the Seller, the Trustee and the
Collateral Agent. Each party hereto may, by notice given in accordance herewith
to each of the other parties hereto, designate any further or different address
to which subsequent notices shall be sent.
Section 8.07. TERM OF THIS AGREEMENT. This Agreement shall take effect on
the Closing Date of the Series 1996-A Certificates and shall continue in effect
until the last Final Termination Date to occur with respect to each Series. On
such Final Termination Date, this Agreement shall terminate, all obligations of
the parties hereunder shall cease and terminate and the Collateral, if any, held
hereunder and not to be used or applied in discharge of any obligations of the
Seller or Atlantic in respect of the Secured Obligations or otherwise under this
Agreement, shall be released to and in favor of the related Reversionary
Holders, or, if not otherwise identified, to the Seller, provided that the
provisions of Sections 4.06, 4.07 and 8.05 hereof shall survive any termination
of this Agreement and the release of any Collateral upon such termination.
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Section 8.08. ASSIGNMENTS, THIRD-PARTY RIGHTS; REINSURANCE.
(a) This Agreement shall be a continuing obligation of the parties hereto
and shall (i) be binding upon the parties and their respective successors and
assigns, and (ii) inure to the benefit of and be enforceable by each Secured
Party and the Collateral Agent, and by their respective successors, transferees
and assigns. The Seller may not assign this Agreement, or delegate any of its
duties hereunder, without the prior written consent of the Controlling Party.
(b) Financial Security shall have the right (unless a Financial Security
Default shall have occurred and be continuing) to give participations in its
rights under this Agreement and to enter into contracts of reinsurance with
respect to any Policy issued in connection with a Series of Certificates and
each such participant or reinsurer shall be entitled to the benefit of any
representation, warranty, covenant and obligation of each party (other than
Financial Security) hereunder as if such participant or reinsurer was a party
hereto and, subject only to such agreement regarding such reinsurance or
participation, shall have the right to enforce the obligations of each such
other party directly hereunder; PROVIDED, HOWEVER, that no such reinsurance or
participation agreement or arrangement shall relieve Financial Security of its
obligations hereunder, under the Transaction Documents to which it is a party or
under any such Policy, or shall change the status of Financial Security as a
"Controlling Party". In addition, nothing contained herein shall restrict
Financial Security from assigning to any Person pursuant to any liquidity
facility or credit facility any rights of Financial Security under this
Agreement or with respect to any real or personal property or other interests
pledged to Financial Security, or in which Financial Security has a security
interest, in connection with the transactions contemplated hereby. The terms of
any such assignment or participation shall contain an express acknowledgment by
such Person of the condition of this Section and the limitations of the rights
of Financial Security hereunder.
Section 8.09. CONSENT OF CONTROLLING PARTY. In the event that the
Controlling Party's consent is required under the terms hereof or under the
terms of any Transaction Document, it is understood and agreed that, except as
otherwise provided expressly herein, the determination whether to grant or
withhold such consent shall be made solely by the Controlling Party in its sole
discretion.
Section 8.10. TRIAL BY JURY WAIVED. Each of the parties hereto waives, to
the fullest extent permitted by law, any right it may have to a trial by jury in
respect of any litigation arising directly or indirectly out of, under or in
connection
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with this Agreement, any of the other Transaction Documents or any of the
transactions contemplated hereunder or thereunder. Each of the parties hereto
(a) certifies that no representative, agent or attorney of any other party has
represented, expressly or otherwise, that such other party would not, in the
event of litigation, seek to enforce the foregoing waiver and (b) acknowledges
that it has been induced to enter into this Agreement and the other Transaction
Documents to which it is a party, by among other things, this waiver.
Section 8.11. GOVERNING LAW. This Agreement shall be governed by and
construed, and the obligations, rights and remedies of the parties hereunder
shall be determined, in accordance with the laws of the State of New York.
Section 8.12. CONSENTS TO JURISDICTION. Each of the parties hereto
irrevocably submits to the jurisdiction of the United States District Court for
the Southern District of New York, any court in the state of New York located in
the city and county of New York, and any appellate court from any thereof, in
any action, suit or proceeding brought against it and related to or in
connection with this Agreement, the other Transaction Documents or the
transactions contemplated hereunder or thereunder or for recognition or
enforcement of any judgment and each of the parties hereto irrevocably and
unconditionally agrees that all claims in respect of any such suit or action or
proceeding may be heard or determined in such New York State court or, to the
extent permitted by law, in such federal court. Each of the parties hereto
agrees that a final judgment in any such action, suit or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. To the extent permitted by applicable law,
each of the parties hereby waives and agrees not to assert by way of motion, as
a defense or otherwise in any such suit, action or proceeding, any claim that it
is not personally subject to the jurisdiction of such courts, that the suit,
action or proceeding is brought in an inconvenient forum, that the venue of the
suit, action or proceeding is improper or that this Agreement or any of the
other Transaction Documents or the subject matter hereof or thereof may not be
litigated in or by such courts. The Seller hereby irrevocably appoints and
designates Chase Manhattan Bank as its true and lawful attorney and duly
authorized agent for acceptance of service of legal process. The Seller agrees
that service of such process upon such Person shall constitute personal service
of such process upon it. Subject to Section 8.05 hereof, nothing contained in
this Agreement shall limit or affect the rights of any party hereto to serve
process in any other manner permitted by law or to start legal proceedings
relating to any of the Transaction Documents against Atlantic or the Seller or
their respective property in the courts of any jurisdiction.
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Section 8.13. LIMITATION OF LIABILITY. It is expressly understood and
agreed by the parties hereto that (a) Chase Manhattan Bank is executing this
Agreement not in its individual capacity but solely in its capacities as
collateral agent and trustee of the Trusts pursuant to the Securitization
Agreements and (b) in no case whatsoever shall Chase Manhattan Bank be
personally or corporately liable on, or for any loss in respect of, any of the
statements, representations, warranties, covenants, agreements or obligations of
the Trust hereunder, all such liability, if any, being expressly waived by the
parties hereto.
Section 8.14. DETERMINATION OF ADVERSE EFFECT. Any determination of an
adverse effect on the interest of the Secured Parties or the Certificateholders
shall be made without consideration of the availability of funds under the
Policies.
Section 8.15. COUNTERPARTS. This Agreement may be executed in two or more
counterparts by the parties hereto, and each such counterpart shall be
considered an original and all such counterparts shall constitute one and the
same instrument.
Section 8.16. HEADINGS. The headings of sections and paragraphs and the
Table of Contents contained in this Agreement are provided for convenience only.
They form no part of this Agreement and shall not affect its construction or
interpretation.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth on the first page hereof.
ATLANTIC AUTO THIRD FUNDING
CORPORATION
By /s/ Richard Harrison
-----------------------------------------------
Name: Richard Harrison
Title: President
FINANCIAL SECURITY ASSURANCE INC.
By /s/ Richard Harrison
-----------------------------------------------
Name: Richard Harrison
Title: President
THE CHASE MANHATTAN BANK
as Trustee
By /s/ John Mynttiner
-----------------------------------------------
Name: John Mynttiner
Title: Second Vice President
THE CHASE MANHATTAN BANK
as Collateral Agent
By /s/ John Mynttiner
-----------------------------------------------
Name: John Mynttiner
Title: Second Vice President