1
Exhibit 4.3
EXECUTION COPY
CENTRALLY HELD EAGLE RECEIVABLES PROGRAM INC.,
Transferor,
EAGLE INDUSTRIAL PRODUCTS CORPORATION
Master Servicer,
and
CONTINENTAL BANK, NATIONAL ASSOCIATION,
Trustee
on behalf of the Certificateholders
EAGLE TRADE RECEIVABLES MASTER TRUST
POOLING AND SERVICING AGREEMENT
Dated as of January 1, 1994
2
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1 Definitions . . . . . . . . . . . . . . . . 1
Section 1.2 Other Definitional Provisions . . . . . . . 1
Section 1.3 Calculations and Payments . . . . . . . . . 2
ARTICLE II
CONVEYANCE OF RECEIVABLES; ISSUANCE OF CERTIFICATES
Section 2.1 Conveyance of Receivables . . . . . . . . . 3
Section 2.2 Declaration of Trust; Acceptance by
Trustee . . . . . . . . . . . . . . . . . 5
Section 2.3 Representations and Warranties of the
Transferor Relating to the Transferor . . 5
Section 2.4 Representations and Warranties of the
Transferor Relating to the Agreement,
any Supplement and the Receivables. . . . 10
Section 2.5 [Reserved]. . . . . . . . . . . . . . . . . 14
Section 2.6 Covenants of the Transferor . . . . . . . . 14
Section 2.7 Authentication of Certificates. . . . . . . 21
Section 2.8 Tax Treatment . . . . . . . . . . . . . . . 21
Section 2.9 Cancellation of the Certificates of any
Series. . . . . . . . . . . . . . . . . . 22
Section 2.10 Separate Corporate Existence. . . . . . . . 22
ARTICLE III
ADMINISTRATION AND SERVICING
OF RECEIVABLES
Section 3.1 Acceptance of Appointment and Other
Matters Relating to the Master
Servicer. . . . . . . . . . . . . . . . . 26
Section 3.2 Servicing Compensation. . . . . . . . . . . 28
Section 3.3 Representations, Warranties and
Covenants of the Master Servicer. . . . . 29
Section 3.4 Reports and Records for the Trustee;
Bank Account Statements . . . . . . . . . 33
Section 3.5 [Reserved]. . . . . . . . . . . . . . . . . 35
Section 3.6 Annual Independent Public Accountants'
Servicing Report. . . . . . . . . . . . . 35
Section 3.7 [Reserved] . . . . . . . . . . . . . . . . 36
Section 3.8 Notices to the Transferor . . . . . . . . . 36
i
3
Page
Section 3.9 Securities and Exchange Commission
Filing. . . . . . . . . . . . . . . . . . 36
ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND ALLOCATION
AND APPLICATION OF COLLECTIONS
Section 4.1 Rights of Certificateholders. . . . . . . . 37
Section 4.2 Establishment of Collection Account
and Excess Funding Account. . . . . . . . 37
Section 4.3 Collections and Allocations . . . . . . . . 41
Section 4.4 Payments of Interest to Investor
Certificateholders. . . . . . . . . . . . 43
Section 4.5 Payment of Principal to Investor
Certificateholders. . . . . . . . . . . . 43
Section 4.6 [Reserved]. . . . . . . . . . . . . . . . . 43
Section 4.7 Defaulted Receivables . . . . . . . . . . . 43
Section 4.8 Partial Optional Redemption or Sales
to Non-Affiliates. . . . . . . . . . . . . 43
Section 4.9 Misdirected Payments. . . . . . . . . . . . 44
ARTICLE V
DISTRIBUTIONS AND REPORTS TO
CERTIFICATEHOLDERS
Section 5.1 Distributions . . . . . . . . . . . . . . . 45
Section 5.2 Monthly Investor Certificateholders'
Statement; Annual Tax Statement . . . . . 45
ARTICLE VI
THE CERTIFICATES
Section 6.1 The Certificates. . . . . . . . . . . . . . 47
Section 6.2 Authentication of Certificates. . . . . . . 47
Section 6.3 Registration of Transfer and Exchange
of Certificates . . . . . . . . . . . . . 48
Section 6.4 Mutilated, Destroyed, Lost or Stolen
Certificates. . . . . . . . . . . . . . . 51
Section 6.5 Persons Deemed Owners . . . . . . . . . . . 52
Section 6.6 Appointment of Paying Agent . . . . . . . . 52
Section 6.7 Access to List of Certificateholders'
Names and Addresses . . . . . . . . . . . 53
Section 6.8 Authenticating Agent. . . . . . . . . . . . 53
ii
4
Page
Section 6.9 Delivery of Additional Series of
Investor Certificates . . . . . . . . . . 55
Section 6.10 [Reserved]. . . . . . . . . . . . . . . . . 57
Section 6.11 Book-Entry Certificates . . . . . . . . . . 57
Section 6.12 Notices to Clearing Agency. . . . . . . . . 58
Section 6.13 Definitive Certificates . . . . . . . . . . 58
ARTICLE VII
OTHER MATTERS RELATING
TO THE TRANSFEROR
Section 7.1 Liability of the Transferor . . . . . . . . 59
Section 7.2 Merger or Consolidation of, or
Assumption of the Obligations of,
the Transferor. . . . . . . . . . . . . . 59
Section 7.3 Limitation on Liability of the
Transferor. . . . . . . . . . . . . . . . 60
Section 7.4 Liabilities . . . . . . . . . . . . . . . . 61
ARTICLE VIII
OTHER MATTERS RELATING
TO THE MASTER SERVICER
Section 8.1 Liability of the Master Servicer. . . . . . 62
Section 8.2 Merger or Consolidation of, or
Assumption of the Obligations of,
Eagle Industrial as Master Servicer . . . 62
Section 8.3 Limitation on Liability of the Master
Servicer and Others . . . . . . . . . . . 63
Section 8.4 Master Servicer Indemnification of
the Trust and the Trustee . . . . . . . . 63
Section 8.5 The Master Servicer Not to Resign . . . . . 64
Section 8.6 Access to Certain Documentation and
Information Regarding the Receivables . . 65
Section 8.7 Delegation of Duties. . . . . . . . . . . . 65
Section 8.8 Examination of Records. . . . . . . . . . . 65
Section 8.9 Successor Master Servicer
Indemnification of Transferor . . . . . . 65
Section 8.10 Fidelity Bond and Errors and Omissions
Insurance . . . . . . . . . . . . . . . . 66
iii
5
Page
ARTICLE IX
EVENTS OF TERMINATION
Section 9.1 Events of Termination with Respect to
any Series. . . . . . . . . . . . . . . . 67
Section 9.2 [Reserved]. . . . . . . . . . . . . . . . . 69
Section 9.3 Additional Rights Upon the Occurrence of
Certain Events. . . . . . . . . . . . . . 70
ARTICLE X
MASTER SERVICER DEFAULTS
Section 10.1 Master Servicer Defaults. . . . . . . . . . 72
Section 10.2 Trustee to Act; Appointment of Successor. . 75
Section 10.3 Notification to Certificateholders. . . . . 76
Section 10.4 Waiver of Past Defaults . . . . . . . . . . 77
ARTICLE XI
THE TRUSTEE
Section 11.1 Duties of Trustee . . . . . . . . . . . . . 78
Section 11.2 Certain Matters Affecting the Trustee . . . 80
Section 11.3 Trustee Not Liable for Recitals in
Certificates. . . . . . . . . . . . . . . 82
Section 11.4 Trustee May Own Certificates. . . . . . . . 83
Section 11.5 The Master Servicer to Pay Trustee's
Fees and Expenses . . . . . . . . . . . . 83
Section 11.6 Eligibility Requirements for Trustee. . . . 84
Section 11.7 Resignation or Removal of Trustee . . . . . 84
Section 11.8 Successor Trustee . . . . . . . . . . . . . 85
Section 11.9 Merger or Consolidation of Trustee. . . . . 86
Section 11.10 Appointment of Co-Trustee or Separate
Trustee . . . . . . . . . . . . . . . . . 86
Section 11.11 Tax Returns . . . . . . . . . . . . . . . . 87
Section 11.12 Trustee May Enforce Claims Without
Possession of Certificates. . . . . . . . 88
Section 11.13 Suits for Enforcement . . . . . . . . . . . 88
Section 11.14 Rights of Certificateholders to Direct
Trustee . . . . . . . . . . . . . . . . . 89
Section 11.15 Representations and Warranties of
Trustee . . . . . . . . . . . . . . . . . 89
Section 11.16 Maintenance of Office or Agency . . . . . . 90
Section 11.17 Notices . . . . . . . . . . . . . . . . . . 90
iv
6
Page
Section 11.18 Compliance Certificates and Opinions. . . . 90
Section 11.19 Monthly Report of Trustee . . . . . . . . . 91
ARTICLE XII
TERMINATION
Section 12.1 Termination of Trust. . . . . . . . . . . . 92
Section 12.2 Optional Purchase and Series
Termination Date of Investor
Certificates of any Series. . . . . . . . 92
Section 12.3 Final Payment . . . . . . . . . . . . . . . 94
Section 12.4 Transferor's Termination Rights . . . . . . 95
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.1 Amendment . . . . . . . . . . . . . . . . . 96
Section 13.2 Protection of Right, Title and Interest
of Trust. . . . . . . . . . . . . . . . . 98
Section 13.3 Limitation on Rights of
Certificateholders. . . . . . . . . . . . 99
Section 13.4 GOVERNING LAW . . . . . . . . . . . . . . .100
Section 13.5 Notices . . . . . . . . . . . . . . . . . .100
Section 13.6 Severability of Provisions. . . . . . . . .100
Section 13.7 Assignment. . . . . . . . . . . . . . . . .101
Section 13.8 Certificates Nonassessable and Fully
Paid. . . . . . . . . . . . . . . . . . .101
Section 13.9 Further Assurances. . . . . . . . . . . . .101
Section 13.10 No Waiver; Cumulative Remedies. . . . . . .101
Section 13.11 Counterparts. . . . . . . . . . . . . . . .101
Section 13.12 Third-Party Beneficiaries . . . . . . . . .102
Section 13.13 Actions by Certificateholders . . . . . . .102
Section 13.14 Merger and Integration. . . . . . . . . . .103
Section 13.15 Headings. . . . . . . . . . . . . . . . . .103
Section 13.16 No Bankruptcy Petition Against the
Transferor. . . . . . . . . . . . . . . .103
EXHIBITS
Exhibit A: Form of Transferor Certificate (Section 6.1)
Exhibit B: Form of Daily Report (Section 3.4(b)(i))
Exhibit C: Form of Accountants Audit Letter (Section 3.6(b))
v
7
Exhibit D: Credit and Collection Policies of the Designated
Subsidiaries
Exhibit E: Form of Determination Date Statement
(Section 3.4(c))
Exhibit F: Form of Lock-Box Agreement (Section 2.6(i))
Exhibit G: List of Lock-Box Banks, Lock-Box Accounts and Post
Office Boxes (Section 2.6(i))
Exhibit H: Form of Annual Opinion of Counsel
(Section 13.2(c))
Exhibit I: Form of Rule 144A Letter (Section 6.3(e))
Exhibit J: Form of Non-Rule 144A Letter (Section 6.3(e))
SCHEDULES
Schedule 1. Identification of the Collection Account and
Excess Funding Account (Section 4.2(d))
Schedule 2. List of Days in 1994 on which Eagle Industrial is
Closed
Schedule 3. Accounting Closing Dates
Schedule 4. Location of Records of Receivables and Related
Contracts
Schedule 5. List of Eligible Airline Industry Obligors
ANNEX
Annex X Definitions
vi
8
POOLING AND SERVICING AGREEMENT, dated as of January 1,
1994, by and among CENTRALLY HELD EAGLE RECEIVABLES PROGRAM,
INC., a limited purpose corporation organized under the laws
of the State of Delaware, as Transferor, EAGLE INDUSTRIAL
PRODUCTS CORPORATION, a Delaware corporation, as Master
Servicer, and CONTINENTAL BANK, NATIONAL ASSOCIATION, a
national banking association, as Trustee.
This Pooling and Servicing Agreement shall be
applicable to the formation of the Trust and the issuance of the
Transferor Certificate and, upon the execution of any Supplement,
shall apply also to the issuance of any Series of Certificates
issued thereby.
In consideration of the mutual agreements herein
contained, each party agrees as follows for the benefit of the
other parties, for the benefit of the Certificateholders and for
the benefit of any credit enhancer with respect to any Series to
the extent provided herein:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. For all purposes of this
Agreement, except as otherwise expressly provided herein or
unless the context otherwise requires, capitalized terms not
otherwise defined herein shall have the meanings assigned to such
terms in the Definitions attached hereto as Annex X which is
incorporated by reference herein. All other capitalized terms
used herein shall have the meanings specified herein.
"Agreement" shall mean this Pooling and Servicing
Agreement as it may from time to time be amended, supplemented or
otherwise modified in accordance with the terms hereof, including
by any Supplement.
Section 1.2 Other Definitional Provisions.
(a) All terms defined in any Supplement or this
Agreement shall have the defined meanings as set forth therein or
herein when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein.
(b) The agreements, representations and
warranties of Eagle Industrial in this Agreement in its capacity
as Master Servicer shall be deemed to be the agreements,
representations and warranties of Eagle Industrial solely in such
capacity.
1
9
(c) The words "hereof," "herein" and "hereunder"
and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular
provision of this Agreement, as the case may be; and Section,
Subsection, Schedule and Exhibit references contained in this
Agreement are references to Sections, Subsections, Schedules and
Exhibits in or to this Agreement unless otherwise specified.
Section 1.3 Calculations and Payments. Unless
otherwise specified herein, expressions of a time of day refer to
such time in Chicago, Illinois. All amounts payable hereunder
shall be paid in immediately available funds.
[END OF ARTICLE I]
2
10
ARTICLE II
CONVEYANCE OF RECEIVABLES; ISSUANCE OF CERTIFICATES
Section 2.1 Conveyance of Receivables.
(a) By execution of this Agreement, the Trans-
feror does hereby grant, assign, transfer and otherwise convey to
the Trustee from time to time, without recourse (except as
specifically provided herein), and without any formal or other
instrument of assignment, all its right, title and interest,
whether now or hereafter existing or acquired, in, to and under
(i) all Receivables in each case sold or otherwise transferred to
the Transferor pursuant to the Contribution and Sale Agreement
prior to the Final Trust Termination Date and all accounts and
general intangibles (each, as defined in the UCC), and all rights
(but not the obligations thereunder) relating thereto, (ii) the
Contribution and Sale Agreement (but not the obligations there-
under) (including any rights which the Transferor may have under
the Sale and Servicing Agreement as assignee thereof pursuant to
the Contribution and Sale Agreement), (iii) all monies due or to
become due with respect to any of the foregoing, (iv) all pro-
ceeds and investments thereof of any of the foregoing, and (v)
all remittances, deposits and payments made into, and on deposit
in, any of the trust accounts subject to Section 4.9 of this
Agreement. Such property, together with all monies on deposit in
the Lock-Box Accounts, the Collection Account, the Excess Funding
Account, any Principal Funding Account or any other account
established pursuant to any Supplement (and including any invest-
ments thereof), (but excluding investment earnings in excess of
those amounts necessary to make all payments required under this
Agreement or any Supplement with respect to each such account
other than the Excess Funding Account), shall constitute the
assets of the Trust (the "Trust Assets"). The foregoing grant,
transfer, assignment and conveyance does not constitute and is
not intended to result in the creation, or an assumption by the
Trust, the Trustee or any Investor Certificateholder, of any
obligation of Eagle Industrial, any Designated Subsidiary, the
Transferor or any other Person in connection with the Receivables
or under any agreement or instrument relating thereto, including,
without limitation, any obligation to any Obligors.
(b) In connection with such grant and transfer,
the Transferor agrees to record and file on or prior to the
Initial Closing Date, at its own expense, all financing state-
ments (and the Transferor agrees to direct the Trustee to file
continuation statements with respect to such financing statements
when applicable after the Initial Closing Date) required to be
filed with respect to the Receivables now existing and hereafter
created and the other Trust Assets meeting the requirements of
3
11
applicable state law in such manner and in such jurisdictions as
are necessary under the applicable UCC to perfect the first
priority interest of the Trustee in the Receivables and the other
Trust Assets, and to deliver a file-stamped copy of such
financing statements or other evidence of such filings to the
Trustee as soon as is reasonably practicable after the Initial
Closing Date (excluding such continuation statements, which shall
be delivered promptly after filing). Upon direction of the
Transferor or the Master Servicer, the Trustee shall file any
further continuation or financing statements as required under
the applicable UCC to maintain the perfection of the interest of
the Trustee in the Trust Assets transferred and assigned here-
under. Except as otherwise provided herein or directed by
Investor Certificateholders aggregating 51% or more of the
Aggregate Invested Amount, the Trustee shall not be under any
obligation to file any other financing statements or make any
other filings under the UCC in connection with such grant,
transfer and assignment.
In connection with the grant and transfer of the
Receivables hereunder, the Transferor further agrees, at its own
expense, on or prior to each Closing Date, to cause each of Eagle
Industrial and the Designated Subsidiaries to indicate in its
books and records, computer files, tapes or disks, as required by
the Sale and Servicing Agreement and the Contribution and Sale
Agreement, that the Receivables have been conveyed, and will
continue to be conveyed, to the Trust pursuant to this Agreement
for the benefit of the Certificateholders.
(c) In connection with such grant and transfer
the Transferor agrees at its own expense to indicate in its
computer files, and to cause each Designated Subsidiary to
indicate clearly and unambiguously in its computer files, on or
before the Initial Closing Date, that the Receivables have been
transferred and will continue to be transferred to the Trust
pursuant to this Agreement.
(d) To the extent that the conveyance of
Receivables and other Trust Assets hereunder is characterized by
a court or other Governmental Authority of competent jurisdiction
as a financing, it is intended by the parties hereto that the
assignment, conveyance and transfer by the Transferor of its
right, title and interest in the Receivables and other Trust
Assets to the Trustee hereunder constitute the grant of a secur-
ity interest under Section 1-201 of the UCC (as defined in the
UCC as in effect in the State of Illinois). The Transferor
hereby grants to the Trustee on the terms and conditions of this
Agreement a first priority security interest in and against all
of the Transferor's right, title and interest in the Receivables
and the other Trust Assets, whether now or hereafter existing or
4
12
acquired, for the purpose of (i) securing the rights of the
Trustee for the benefit of the Certificateholders under this
Agreement and (ii) securing the payment and performance of the
Transferor's obligations hereunder and the right, ability and
obligation of the Trustee to make all payments required to be
made in accordance with the terms and conditions of this Agree-
ment (the "Secured Obligations"). To the extent that the convey-
ance of Receivables hereunder is characterized by a court or
other Governmental Authority of competent jurisdiction as a
financing, the parties agree that this Agreement constitutes a
"security agreement" under applicable laws.
Section 2.2 Declaration of Trust; Acceptance by
Trustee.
(a) The Trustee hereby declares that it holds and
will hold as trustee in trust under this Agreement all of its
right, title and interest in, to and under, and hereby acknowl-
edges its acceptance on behalf of the Certificateholders of all
right, title and interest in, to and under, the property, now or
hereafter existing or acquired, conveyed to the Trustee pursuant
to Section 2.1; to have and hold such property unto the Trustee
and its successors in trust under this Agreement; in trust,
nevertheless, under and subject to the terms and conditions
hereof for the benefit of all Certificateholders.
(b) The Trustee shall have no power to create,
assume or incur indebtedness or other liabilities in the name of
the Trust other than as contemplated in this Agreement.
(c) None of the Trustee, the Trust or any
Investor Certificateholder shall have any obligation or liability
to any Obligor or other customer or client of any Originator
(including, without limitation, any obligation to perform any of
the obligations of any Originator to any Obligor under any such
Receivables, related Contracts or any other related purchase
orders, invoices or other agreements or otherwise). No such
obligation or liability is intended to be assumed by the Trustee,
the Trust or any Investor Certificateholder hereunder, and any
such assumption is hereby expressly disclaimed.
Section 2.3 Representations and Warranties of the
Transferor Relating to the Transferor. The Transferor hereby
represents and warrants, as of the Initial Closing Date and, with
respect to any Series, as of the date of any Supplement and the
related Closing Date, unless otherwise stated in such Supplement,
that:
(a) Organization and Good Standing. The
Transferor is a corporation duly organized, validly existing and
5
13
in good standing under the laws of the State of Delaware, and has
the full corporate power, authority and legal right to execute,
deliver and perform its obligations under the Contribution and
Sale Agreement, this Agreement and any Supplement and to execute
and deliver to the Trustee pursuant thereto the Certificates of
any outstanding Series, and, in all material respects, to own its
property and conduct its businesses as such properties are pre-
sently owned and such businesses are presently conducted.
(b) Due Qualification. The Transferor is duly
qualified to do business and is in good standing as a foreign
corporation (or is exempt from such requirements), and has
obtained all necessary licenses and approvals with respect to the
Transferor, in each jurisdiction in which the conduct of its
business requires such qualification, except where the failure to
so qualify, to be in good standing or to obtain such licenses and
approvals would not render any Contract unenforceable by the
Transferor or the Trustee and would not have a material adverse
effect on the Investor Certificateholders.
(c) Due Authorization. The execution, delivery
and performance of the Contribution and Sale Agreement, this
Agreement and any Supplement and the execution and delivery to
the Trustee of the Certificates of any Series by the Transferor
and the consummation by the Transferor of the transactions pro-
vided for in Contribution and Sale Agreement and this Agreement
and any Supplement, have been duly authorized by all necessary
corporate action on the part of the Transferor.
(d) Binding Obligation. Each of the Contribution
and Sale Agreement, this Agreement and any Supplement constitutes
the legal, valid and binding obligation of the Transferor, en-
forceable against it in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insol-
vency, reorganization, moratorium or other similar laws now or
hereinafter in effect, affecting the enforcement of creditors'
rights in general and except as such enforceability may be
limited by general principles of equity (whether considered in a
proceeding at law or in equity).
(e) No Conflicts. The execution, delivery and
performance of this Agreement, any Supplement, the Contribution
and Sale Agreement and the Certificates of any Series, the
performance of the transactions contemplated by such agreements
and Certificates and the fulfillment of the terms thereof by the
Transferor, do not (a) contravene the Transferor's certificate of
incorporation or By-Laws, (b) violate any provision of, or
require any filing (except for certain filings required by the
UCC), registration, consent or approval under, any law, rule,
regulation, order, writ, judgment, injunction, decree, determi-
6
14
nation or award presently in effect having applicability to the
Transferor, except for such filings, registrations, consents or
approvals as have already been obtained and are in full force and
effect and except for such violations which would not materially
and adversely affect the performance by the Transferor of such
transactions and the fulfillment by the Transferor of such terms,
and except that the Transferor makes no representation or war-
ranty regarding state securities or "blue sky" laws, (c) result
in a breach of or constitute a default or require any consent
under any indenture or loan or credit agreement or any other
agreement, lease or instrument to which the Transferor is a party
or by which it or its properties are bound or affected except
those to which a consent or waiver has been obtained and is in
full force and effect, or (d) result in, or require, the creation
or imposition of any lien upon or with respect to any of the
properties now owned or hereafter acquired by the Transferor
other than as specifically contemplated by this Agreement.
(f) Taxes. The Transferor has filed all tax
returns (Federal, state and local) that are required to be filed
and has paid or made adequate provision for the payment of all
taxes, assessments and other governmental charges due from the
Transferor or is contesting any such tax, assessment or other
charge in good faith through appropriate proceedings. The
Transferor knows of no basis for any material additional tax
assessment for any fiscal year for which adequate reserves have
not been established.
(g) No Proceedings. There are no proceedings,
investigations, injunctions, writs, restraining orders or other
orders of any nature pending or, to the best knowledge of the
Transferor, threatened against the Transferor, before any court,
regulatory body, administrative agency, or other tribunal or
governmental instrumentality (a) asserting the invalidity of the
Contribution and Sale Agreement, this Agreement or any Supplement
or any Certificates, (b) seeking to prevent the issuance of any
Certificates or the consummation of any of the transactions con-
templated by the Contribution and Sale Agreement, this Agreement
or any Supplement or such Certificates, (c) seeking any determi-
nation or ruling that, in the reasonable judgment of the Trans-
feror, would materially and adversely affect the performance by
the Transferor of its obligations under such agreements, (d)
seeking any determination or ruling that would materially and
adversely affect the validity or enforceability of such agree-
ments or certificates, (e) seeking to assert any tax liability
against the Trust under the United States Federal or Illinois
income tax systems, or (f) that might adversely affect the
Transferor's performance under the Contribution and Sale
Agreement, this Agreement or any Supplement.
7
15
(h) All Consents Required. All approvals,
authorizations, consents, orders or other actions of any Person
required to be obtained by the Transferor in connection with the
execution and delivery by the Transferor of this Agreement, any
Supplement, the Contribution and Sale Agreement, the certificates
of any Series, the performance by the Transferor of the transac-
tions contemplated hereunder and thereunder and the fulfillment
by the Transferor of the terms hereof and thereof, have been ob-
tained and are in full force and effect except where the failure
to obtain such approvals, authorizations, consents, orders or
other actions or the failure of the same to be in full force and
effect would not materially and adversely affect the performance
by the Transferor of such transactions and the fulfillment by the
Transferor of such terms, and except that the Transferor makes no
representation or warranty regarding state securities or "blue
sky" laws.
(i) Place of Business. The place of business of
the Transferor and the location of its chief executive office (as
that term is used in Article 9 of the UCC) is Illinois and there
are no other such locations. The records concerning the Receiva-
bles and related Contracts are kept in offices of the Master
Servicer or of the Designated Subsidiaries acting as subservicers
located as set forth on Schedule 4.
(j) Lock-Box Banks and Accounts and Post Office
Boxes. The Lock-Box Banks are the only institutions holding any
Lock-Box Accounts for receipt of payments from Obligors in re-
spect of the Receivables and all Obligors, and only such
Obligors, have been instructed to make payments to such Lock-Box
Accounts or to the Post Office Boxes, and such instructions are
in full force and effect and all of such Lock-Box Accounts and
Post Office Boxes are listed on Exhibit G hereto; provided,
however, that if, notwithstanding instructions to the contrary
given to any Obligor, Collections from such Obligor are received
by the Master Servicer or any Designated Subsidiary, such Collec-
tions shall be deposited in the Collection Account by the Master
Servicer or such Designated Subsidiary within two Business Days
of receipt thereof; provided, however, that neither the Master
Servicer nor such Designated Subsidiary shall be considered in
breach of the obligation set forth in this sentence to the extent
that a payment received by the Master Servicer or any Designated
Subsidiary is not so deposited because such payment relates to a
Disputed Item.
(k) Event of Termination. No Event of Termina-
tion and no condition that with the giving of notice and/or the
passage of time would constitute, an Event of Termination (a
"Prospective Event of Termination") has occurred and is
continuing.
8
16
(l) Not an Investment Company. The Transferor is
not an "investment company" or a company controlled by an
"investment company" within the meaning of the Investment Company
Act of 1940, as amended, or is exempt from all provisions of such
Act.
(m) ERISA. No Plan maintained by the Transferor
or any of its ERISA Affiliates and subject to ERISA has any
"accumulated funding deficiency" (within the meaning of Section
302 of ERISA or Section 412 of the Code), whether or not waived,
that reasonably could be expected to result, directly or indi-
rectly, in any lien being imposed on the property of the Trans-
feror or the payment by the Transferor of any amount to avoid
such lien. During the preceding five years neither the Trans-
feror nor any ERISA Affiliate has failed to make any contribution
required to be made by it to any Plan or any Multiemployer Plan
where such failure could reasonably be expected to result,
directly or indirectly, in any Lien being imposed on the property
of the Transferor or the payment by the Transferor of any amount
to avoid such lien. No event requiring notice to the PBGC under
Section 302(f) of ERISA has occurred and is continuing or could
reasonably be expected to occur with respect to any such Plan, in
any case, that could reasonably be expected to result, directly
or indirectly, in any lien being imposed on the property of the
Transferor or the payment by the Transferor of any amount to
avoid such lien. No Plan Event with respect to the Transferor or
any of its ERISA Affiliates has occurred or could reasonably be
expected to occur that could reasonably be expected to result,
directly or indirectly, in any lien being imposed on the property
of the Transferor or the payment by the Transferor of any amount
to avoid such lien.
(n) No Claim or Interest. Other than the
Transferor Interest, neither the Transferor nor any Person
claiming through or under the Transferor has any claim or
interest in any Lock-Box Account other than the Lock-Box Bank.
(o) Sale and Servicing Agreement and Contribution
and Sale Agreement. The Sale and Servicing Agreement creates a
valid sale, transfer and assignment to Eagle Industrial of all
right, title and interest of the Designated Subsidiaries in and
to the Receivables transferred during the term thereof, and all
required actions and filing have been made which are necessary
under applicable law to perfect the interest of Eagle Industrial
in such Receivables. The Contribution and Sale Agreement creates
a valid contribution or sale, transfer and assignment to the
Transferor of all right, title and interest of Eagle Industrial
in and to the Receivables transferred during the term thereof,
and all required actions and filing have been made which are
9
17
necessary under applicable law to perfect the interest of the
Transferor in such Receivables.
The representations and warranties set forth in this
Section 2.3 shall survive the transfer and assignment of the
Receivables to the Trust. Upon discovery by the Transferor, the
Master Servicer or a Responsible Officer of the Trustee of a
material breach of any of the foregoing representations and
warranties, the party discovering such breach shall give written
notice thereof to the others and to the Rating Agencies within
three Business Days of such discovery.
Section 2.4 Representations and Warranties of the
Transferor Relating to the Agreement, any Supplement and the
Receivables.
(a) Representations and Warranties. The
Transferor (x) hereby represents and warrants as of the Initial
Closing Date, with respect to the Receivables created on or prior
to, and outstanding on, such date and (y) shall be deemed to re-
present and warrant as of the date of the creation and transfer
to the Trustee of any additional Receivables, with respect to all
outstanding Receivables, that, among other things:
(i) The Transferor is not insolvent and, upon the
transfer of the Receivables to the Trustee, will not be
rendered insolvent and will have adequate capital to conduct
its business.
(ii) The Transferor is the legal and beneficial
owner of all right, title and interest in and to each such
Receivable and each such Receivable has been or will be
transferred to the Trustee free and clear of any Lien. No
effective financing statement or other similar instrument
that covers all or part of any Receivable conveyed to the
Trustee, any other Trust Assets, or any interest therein is
on file in any recording office except such as may be filed
(A) in favor of Eagle Industrial in accordance with the Sale
and Servicing Agreement, (B) in favor of the Transferor
pursuant to the Contribution and Sale Agreement, and (C) in
favor of the Trustee, for the benefit of the
Certificateholders, in accordance with this Agreement or
otherwise filed by or at the direction of the Trustee.
(iii) All consents, licenses, approvals or
authorizations of, registrations or declarations with or
notice to any Governmental Authority or Person required to
be obtained, effected or given by the Transferor in
connection with the transfer by the Transferor of its
interest in the Trust Assets to the Trust have been duly
10
18
obtained, effected or given, and are in full force and
effect and such transfers do not violate any provision of,
or require any filing (except for certain filings required
by the UCC), registration, consent or approval under, any
law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award presently in effect having
applicability to the Transferor, except for such filings,
registrations, consents or approvals as have already been
obtained and are in full force and effect and except that
the Transferor makes no representation or warranty regarding
state securities or "blue sky" laws.
(iv) There are no proceedings or investigations
pending or, to the best knowledge of the Transferor,
threatened that might adversely affect the payment or
enforceability of the Receivables as a whole.
(v) The Transferor has clearly and unambiguously
marked all its books and records, computer records, files,
tapes and disks and microfiche files, if any, regarding such
Receivables as the property of the Trustee and shall
maintain such records in a manner such that the Trustee
shall have a first priority perfected interest in the
Receivables.
(vi) This Agreement constitutes either (a) a valid
grant, transfer and assignment to the Trustee of all right,
title and interest of the Transferor in the Trust Assets, or
(b) a grant of a first priority "security interest" (as
defined in the Illinois Uniform Commercial Code) in such
property to the Trustee, which in the case of existing
Receivables and Collections with respect thereto and the
proceeds thereof, is enforceable with respect to such
Receivables upon execution and delivery of this Agreement,
and which will be enforceable with respect to such
Receivables hereafter created and the proceeds thereof upon
such creation.
(vii) Each such Receivable and Collections with
respect thereto has been or will be transferred to the
Trustee free and clear of any Adverse Claim of any Person
not holding through the Trustee.
(viii) Each obligation of an Obligor conveyed
pursuant to Section 2.1 of this Agreement is, on the date of
the creation of such obligation, a Receivable (and does not
constitute "chattel paper" within the meaning of the UCC)
and each Receivable classified as an "Eligible Receivable"
by the Transferor, Master Servicer or Sub-Servicer in any
document or report delivered hereunder will satisfy the
11
19
requirements contained in the definition of Eligible
Receivable at such time.
(ix) Each Receivable is or will be at the time of
transfer to the Trustee an obligation arising out of the
performance of Eagle Industrial or a Designated Subsidiary
in accordance with the terms of the Contract giving rise to
such Receivable and neither the Receivable nor the related
Contract has been subordinated, satisfied or rescinded. The
Transferor has no knowledge of any fact that should have led
it to expect at the time of the initial creation of an
interest in any Receivable hereunder that such Receivable
would not be paid in full when due except with respect to
any sales and marketing discount then available to Obligors.
(x) Each such Receivable was purchased by Eagle
Industrial in accordance with the terms of the Sale and
Servicing Agreement and sold or contributed by Eagle
Industrial to the Transferor in accordance with the
Contribution and Sale Agreement, each of which is in full
force and effect.
(xi) The legal name of the Transferor is Centrally
Held Eagle Receivables Program, Inc., as set forth herein,
and the Transferor has no trade names, fictitious names,
assumed names or "doing business as" names.
(xii) (A) On the date on which Eagle Industrial
assigns and transfers any Receivable to the Transferor
(whereupon concurrently pursuant hereto the Transferor
transfers such Receivable to the Trustee), unless otherwise
identified by the Master Servicer in the Daily Report for
such date, such Receivable is an Eligible Receivable, and
(B) on the date of each Daily Report or Settlement Statement
which identifies a Receivable as an Eligible Receivable,
such Receivable is an Eligible Receivable.
(xiii) No acquisition of any Receivable by the
Transferor or the Trustee constitutes a fraudulent transfer
or fraudulent conveyance under the United States Bankruptcy
Code or applicable state bankruptcy or insolvency laws or is
otherwise void or voidable or subject to subordination under
similar laws or principles or for any other reason.
(xiv) The transfer of Receivables by any Designated
Subsidiary to Eagle Industrial pursuant to the Sale and
Servicing Agreement, and Eagle Industrial's concurrent
transfer of such Receivables to the Transferor pursuant to
the Contribution and Sale Agreement, constitutes a true and
valid assignment and transfer of ownership for consideration
12
20
of such Receivables under the applicable state law (and not
merely a pledge or assignment of such Receivables for
security purposes), enforceable against the creditors of any
of the above-described transferors, and any Receivables so
transferred will not constitute property of such transferor
under applicable state law.
(xv) No transaction contemplated by this Agreement
or by any other Transaction Document requires compliance
with, or will be subject to avoidance under, any bulk sales
act or similar law.
(xvi) No use of any funds obtained by the
Transferor under this Agreement will conflict with or
contravene any of Regulations G, T, U and X promulgated by
the Federal Reserve Board from time to time.
(b) Notice of Breach. The representations and
warranties set forth in this Section 2.4 shall survive the
transfer and assignment of the Trust Assets to the Trust. Upon
discovery by the Transferor, the Master Servicer or a Responsible
Officer of the Trustee of a material breach of any of the repre-
sentations and warranties set forth in this Section 2.4(a)(i)
through (xvi), the party discovering such breach shall give
written notice to the others and to the Rating Agencies within
three Business Days of such discovery.
(c) Designation of Ineligible Receivables. In
the event of a breach with respect to a Receivable of any of the
representations and warranties set forth in Section 2.4(a)(i)
through (xvi) above, or in the event that any Receivable fails to
satisfy the definition of an Eligible Receivable, such Receivable
(an "Ineligible Receivable") will be no longer considered an
Eligible Receivable and will be redesignated as an Ineligible
Receivable in any subsequent report or notice delivered hereunder
which so categories the Receivables. On and after the date of
such designation, each Ineligible Receivable will not be included
in the calculation of Aggregate Eligible Receivables, Adjusted
Eligible Receivables, any Invested Percentage, any Invested
Amount or the Transferor Amount. To the extent that the exclu-
sion of an Ineligible Receivable from the calculation of the
Transferor Amount would cause the Transferor Amount to be reduced
below the Minimum Transferor Amount, the Transferor shall make or
cause to be made a deposit in the Excess Funding Account in
immediately available funds. The amount of such deposit shall be
equal to the difference between the Minimum Transferor Amount and
the Transferor Amount after the designation of such Receivable as
an Ineligible Receivable. The obligation of the Transferor set
forth in this Section shall constitute the sole remedy respecting
any breach of the representations and warranties set forth in the
13
21
above-referenced Section or failure to meet the conditions set
forth in the definition of Eligible Receivable with respect to
such Receivable available to the Certificateholders of any
Series, the Trustee on behalf of such Certificateholders, or any
other Person, provided, that neither this sentence nor any other
provisions of this Agreement shall operate to affect any rights
which the Trustee may have, as assignee pursuant to Section 2.1
above, under the Contribution and Sale Agreement or the Sale and
Servicing Agreement.
Section 2.5 [Reserved].
Section 2.6 Covenants of the Transferor. During the
term of this Agreement, and until (i) the Aggregate Invested
Amount is reduced to zero, (ii) the Investor Certificateholders
shall have received all accrued interest on the applicable Cer-
tificates, and (iii) all amounts owed by the Transferor pursuant
to this Agreement have been paid, the Transferor covenants and
agrees as follows:
(a) Compliance with Laws, etc. The Transferor
shall (i) duly satisfy all obligations on its part to be ful-
filled under or in connection with the Receivables, (ii) maintain
in effect all qualifications required under Requirements of Law
in order to properly purchase and convey the Receivables and
other Trust Assets and (iii) comply with all Requirements of Law
in connection with purchasing and conveying the Receivables, in
each instance where the failure to so satisfy, maintain or comply
would have a material adverse effect on the Investor Certificate-
holders.
(b) Preservation of Corporate Existence. The
Transferor shall (i) preserve and maintain its corporate exis-
tence, rights, franchises and privileges in the jurisdiction of
its incorporation and (ii) qualify and remain qualified in good
standing as a foreign corporation in each jurisdiction where the
failure to preserve and maintain such existence, rights, fran-
chises, privileges and qualification would, if not remedied,
either (A) materially adversely affect the interests of the
Investor Certificateholders hereunder, or (B) materially adverse-
ly affect the ability of the Transferor or the Master Servicer to
perform its obligations hereunder.
(c) Audits. At any time and from time to time
during the Transferor's regular business hours, on reasonable
prior notice and for a purpose reasonably related to this
Agreement, the Transferor shall, in response to any reasonable
request of the Trustee, permit the Trustee, or its agents or
representatives, (i) to examine and make copies of and abstracts
from all books, records and documents (including, without limita-
14
22
tion, computer tapes and disks) in the possession or under the
control of the Transferor relating to the Receivables, and (ii)
to visit the offices and properties of the Transferor for the
purpose of examining such materials and to discuss matters relat-
ing to the Receivables or the Transferor's performance hereunder
with any of the officers or employees of the Transferor having
knowledge thereof. Any such examination or visit made pursuant
to this Section 2.6(c) shall be at the cost and expense of the
party or parties making such examination or visit.
(d) Continuous Perfection. The Transferor shall
not change its name, identity or structure in any manner which
might make any financing or continuation statement filed here-
under misleading within the meaning of Section 9-402(7) of the
UCC (or any other then applicable provision of the UCC) unless
the Transferor shall have given the Trustee, the Master Servicer
and the Rating Agencies at least 90 days' prior written notice
thereof and shall have taken all action not later than 5 days
after making such change necessary or advisable to amend such
financing statement or continuation statement so that it is not
misleading. The Transferor shall not change its place of busi-
ness or chief executive office (within the meaning of Article 9
of the UCC, or change the location of its principal records
concerning the Receivables, or the Collections from the locations
specified in Section 2.3(i) unless it has given the Trustee, the
Master Servicer and the Rating Agencies at least 60 days' prior
written notice of its intention to do so and has taken such
action as is necessary or advisable to cause the interest of the
Trustee in the Receivables and the other Trust Assets to continue
to be perfected with the priority required by this Agreement.
The Transferor will at all times maintain its principal executive
office and any other office at which it maintains records relat-
ing to the Receivables within the United States of America. The
Transferor shall provide notice to the Trustee, the Master
Servicer and the Rating Agencies confirming that UCC-1 financing
statements have been filed on or before the Initial Closing Date.
(e) Extension or Amendment of Receivables. The
Transferor shall not extend, amend or otherwise modify (or con-
sent or fail to object to such extension, amendment or modifica-
tion by Eagle Industrial or any Designated Subsidiary) the terms
of any Receivable, or amend, modify or waive any term or condi-
tion of any Contracts related thereto in any manner which would
have a substantial likelihood of having a material adverse effect
on the interests of the Investor Certificateholders.
(f) Reports. The Transferor shall furnish to the
Trustee and to each Rating Agency immediately after it has actual
knowledge of the occurrence of each Event of Termination or the
Transferor's knowledge of a Prospective Event of Termination, an
15
23
Officer's Certificate of the Transferor setting forth the details
of such Event of Termination or Prospective Event of Termination
and the action taken, or which the Transferor proposes to take,
with respect thereto.
(g) Certain Documentation. The Transferor shall
cause the Master Servicer (directly or through a Sub-Servicer) to
hold for the account of the Trustee (to the extent of its inter-
est therein) any document evidencing a Receivable and the related
Contract.
(h) Assessments. The Transferor will promptly
pay and discharge all taxes, assessments, levies and other
governmental charges imposed on it, the failure of which to pay
and discharge may materially adversely affect any of the Eligible
Receivables or the Trustee's rights with respect thereto or will
establish reserves sufficient for the payment of any such tax,
assessment or other governmental charge which it is contesting in
good faith through appropriate proceedings.
(i) Lock-Box Banks and Accounts; Post Office
Boxes. The Transferor may, provided that the conditions of this
Section 2.6(i) are satisfied, add or terminate any bank as a
Lock-Box Bank or add or terminate any Lock-Box Account or Post
Office Box from those listed in Exhibit G hereto, or make any
reasonable change in the Lock-Box Agreements or in any existing
instructions to Obligors regarding payments to be made to any
Post Office Box or Lock-Box Account which would not (i) have an
adverse impact on the Master Servicer's ability to collect
payments or (ii) cause a withdrawal or downgrade of the then
current rating of the Certificates of any Series (so long as an
Obligor remains instructed to make payments on a Receivable to a
Post Office Box or Lock-Box Account), but in each case only upon
prior written notice from the Master Servicer to the Trustee;
provided that any bank added as a Lock-Box Bank shall have short-
term debt ratings of at least A-3 by S&P or D&P, or its equiva-
lent if rated by any other applicable Rating Agency at the time
it becomes a Lock-Box Bank. The Transferor shall give notice to
the Trustee and the Master Servicer of the number of each account
to be added or terminated as a Lock-Box Account and the name and
address of each bank to be added or terminated as a Lock-Box Bank
and the number and location of each post office box to be added
or terminated as a Post Office Box, and, subject to the proviso
to the preceding sentence, upon giving of such notice, Exhibit G
shall be deemed to be amended accordingly without further action
by any Person. The Transferor will be under the obligation to
promptly procure the execution of the Lockbox Agreement by all
parties thereto. In the event that a Designated Subsidiary
enters into a Lock-Box Agreement with a Lock-Box Bank with
respect to which the Designated Subsidiary had not entered into a
16
24
Lock-Box Agreement by the end of the sixth month following the
Initial Closing Date, prior to instructing any Obligor to make
payment to a related Lock-Box Account the Master Servicer shall
deliver to the Trustee a copy of the executed Lock-Box Agreement
and obtain the Trustee's signature thereon; provided, however,
that such Lock-Box Agreement shall not materially differ in
substance from the form of Lock-Box Agreement attached hereto as
Exhibit G. The Master Servicer shall provide notice to the
Rating Agencies confirming that Lock-Box Agreements have been
executed by each Designated Subsidiary, each Lock Box Bank and
the Trustee not later than six months after the Initial Closing
Date.
(j) Further Action. The Transferor shall, from
time to time, execute and deliver to the Trustee any instruments,
financing or continuation statements or other writings necessary,
or that the Trustee may reasonably request, to maintain the per-
fection or priority of the Trustee's ownership or security inter-
est in the Receivables, the Collections and other Trust Assets
under the UCC or other applicable law. The Transferor shall,
from time to time, execute and deliver to the Obligors any bills,
statements and letters or other writings necessary, or that the
Trustee may reasonably request, to carry out the terms and provi-
sions of this Agreement and to facilitate the collection of the
Receivables. The Transferor will defend the right, title and
interest of the Trust in, to and under the Receivables, whether
now existing or hereafter created, against all claims of third
parties claiming through or under the Transferor.
(k) Additional Indebtedness. The Transferor
shall not create, incur, assume or suffer to exist any indebted-
ness (including, without limitation, any guaranty) or expense
(whether or not accounted for as a liability) except (i) indebt-
edness hereunder (including, without limitation, operating
expenses incurred by the Transferor in connection with the
performance of its obligations hereunder) and any taxes incurred
by the Transferor), under the Contribution and Sale Agreement
(including any Transferor Promissory Note), the Investor Certifi-
cates, or any agreements, contracts or instruments which relate
thereto, (ii) indebtedness or other operating expenses incurred
in the performance of its obligations under this Agreement
(including the expense to its professional advisers and its
counsel not exceeding $50,000 at any one time outstanding, other
than counsel fees, advisory fees, filing fees and other expenses
incurred in connection with the initial establishment of the
series of transactions contemplated by this Agreement, which fees
and expenses shall not be so limited), (iii) where that Person to
whom such indebtedness or expense will be owing has delivered to
the Transferor an undertaking (which is assignable and shall con-
currently be assigned to the Trustee) that it will not institute
17
25
against, or join any other Person in instituting against, the
Transferor any bankruptcy, reorganization, arrangement, insol-
vency or liquidation proceeding, or other proceeding under any
Federal or state bankruptcy or similar law, for one year and a
day after all Investor Certificates are paid in full, and (iv)
other indebtedness in the ordinary course of business not exceed-
ing $20,000 at any one time outstanding and not to exceed in the
aggregate $200,000 per annum on account of incidentals or
services supplied or furnished to the Transferor; provided, that
the obligations of the Transferor to Certificateholders
hereunder, solely with respect to the payment of interest and the
repayment of principal under such Certificate, shall be payable
solely from the Trust Assets in accordance herewith and the
Certificateholders shall not look to any other property or assets
of the Transferor or any other Person in respect of such
obligations, and such obligations shall not constitute a claim
against the Transferor or any other Person in the event that the
Trust Assets are insufficient to pay in full such interest and
principal; provided, further, that the obligations of the
Transferor to Certificateholders hereunder with respect to
amounts other than interest and principal under the Certificates
shall (subject to the proviso in the last sentence of Section
2.4(c) above, be payable from the Trust Assets or any other
assets of the Transferor, except that all such obligations of the
Transferor to Certificateholders shall (again subject to the
above-described proviso) be suspended at any time that, and for
so long as, the Transferor's assets are insufficient to pay in
full such obligations, and that all such obligations are fully
subordinated to the Transferor's obligations with respect to the
payment of interest and principal under the Investor Certificates
and the security interest of the Trustee in the Trust Assets with
respect to such interest and principal obligations.
(l) No Transfer. The Transferor agrees that it
shall not sell, assign, pledge, convey or otherwise transfer any
Trust Asset, except for the transfer of the Trust Assets to the
Trustee as provided herein, and shall defend and hold harmless
the Trustee from any Adverse Claim in or to any Eligible
Receivable transferred to the Trustee hereunder.
(m) No Other Business. The Transferor agrees to
engage in no business other than the business contemplated here-
under and under the Sale and Servicing Agreement and the Contri-
bution and Sale Agreement.
(n) Enforcement and No Modification of Sale and
Servicing Agreement or the Contribution and Sale Agreement. The
Transferor agrees to take all action necessary and appropriate to
enforce its rights and claims under the Sale and Servicing Agree-
ment and the Contribution and Sale Agreement. The Transferor
18
26
agrees not to amend or modify the Sale and Servicing Agreement or
the Contribution and Sale Agreement without the prior written
consent of the Holders of Investor Certificates evidencing frac-
tional undivided interests aggregating not less than 51% of the
Aggregate Invested Amount and without the prior written confirma-
tion from each Rating Agency that such amendment will not result
in such Rating Agency reducing or withdrawing its rating on any
outstanding Series.
(o) Separate Business. The Transferor shall at
all times (a) to the extent the Transferor's office is located in
the offices of Eagle Industrial or any Affiliate of Eagle
Industrial, pay fair market rent, if charged, for its executive
office space located in the offices of Eagle Industrial or any
Affiliate of Eagle Industrial, (b) maintain the Transferor's
books, financial statements, accounting records and other corpo-
rate documents and records separate from those of Eagle Indus-
trial or any other entity, (c) not commingle the Transferor's
assets with those of Eagle Industrial or any other entity, (d)
act solely in its corporate name and through its own authorized
officers and agents, (e) make investments directly or by brokers
engaged and paid by the Transferor or its agents (provided that
if any such agent is an Affiliate of the Transferor it shall be
compensated at a fair market rate for its services), (f) sepa-
rately manage the Transferor's liabilities from those of Eagle
Industrial or any Affiliates of Eagle Industrial and pay its own
liabilities, including all administrative expenses, from its own
separate assets, except that Eagle Industrial may pay the organi-
zational expenses of the Transferor, (g) pay from the Trans-
feror's assets all obligations and indebtedness of any kind
incurred by the Transferor and (h) have at least one Independent
Director. The Transferor shall abide by all corporate formali-
ties, including the maintenance of current minute books, and the
Transferor shall cause its financial statements to be prepared in
accordance with generally accepted accounting principles in a
manner that indicates the separate existence of the Transferor
and its assets and liabilities. The Transferor shall (i) pay all
its liabilities, (ii) not assume the liabilities of Eagle
Industrial or any Affiliate of Eagle Industrial, and (iii) not
guarantee the liabilities of Eagle Industrial or any Affiliates
of Eagle Industrial. The officers and directors of the Transferor
(as appropriate) shall make decisions with respect to the busi-
ness and daily operations of the Transferor independent of and
not dictated by any controlling entity.
(p) Corporate Documents. The Transferor shall
not amend, alter, change or repeal its Certificate of Incorpora-
tion without (i) the prior written consent of its Independent
Director, (ii) without the prior written confirmation by each
Rating Agency that such amendment, alteration, change or repeal
19
27
will not result in such Rating Agency reducing or withdrawing its
rating on any outstanding Series and (iii) without the prior
written consent of the Holders of Certificates aggregating not
less than 51% of the Invested Amount of each Series. The
Transferor shall promptly provide to the Trustee a copy of such
written confirmation together with a copy of the Certificate of
Incorporation as so amended, altered, changed or repealed.
(q) ERISA. The Transferor shall promptly give
the Trustee written notice of the following events, as soon as
possible and in any event within 30 days after the Transferor or
any of its ERISA Affiliates knows or has reason to know thereof:
(i) the occurrence or expected occurrence of any Reportable Event
with respect to any Plan to which the Transferor or any of its
ERISA Affiliates contributes, or any withdrawal by the Transferor
or any of its ERISA Affiliates from, or the termination, Reorgan-
ization or Insolvency of any Multiemployer Plan to which the
Transferor or any of its ERISA Affiliates contributes or to which
contributions have been required to be made by the Transferor or
such ERISA Affiliate during the preceding five years or (ii) the
institution of proceedings or the taking of any other action by
the PBGC or the Transferor or any of its ERISA Affiliates or any
such Multiemployer Plan with respect to the withdrawal by the
Transferor or any ERISA Affiliates from, or the termination of
any such Plan or Multiemployer Plan or the Reorganization or
Insolvency of, any such Multiemployer Plan.
(r) Keeping of Records and Books of Account. The
Transferor will keep proper books of record and account in which
full and correct entries shall be made of all financial transac-
tions and the assets and business of the Transferor in accordance
with generally accepted accounting principles consistently
applied. The Transferor will (or will cause the Master Servicer
to) implement and maintain administrative and operating proce-
dures (including, without limitation, an ability to recreate
records evidencing the Receivables in the event of the destruc-
tion of any original records) to keep and maintain all documents,
books, records and other information reasonably necessary or ad-
visable for the collection of all Receivables (including, without
limitation, records adequate to permit the daily identification
of each new Receivable and Collections of and adjustments to each
existing Receivable).
(s) Schedule of Designated Subsidiaries.
Attached to each Determination Date Statement will be a schedule
of the Designated Subsidiaries (which will be part of the Deter-
mination Date Statement), which will be an accurate and complete
listing of all Designated Subsidiaries in all material respects
as of the end of the preceding Settlement Period and the
information contained therein with respect to the identity of
20
28
each Designated Subsidiary will be true and correct in all
material respects as of such day.
(t) Accuracy of Information. All written infor-
mation furnished on and after the Initial Closing Date by the
Transferor to the Master Servicer or the Trustee pursuant to or
in connection with any Transaction Document or any transaction
contemplated herein or therein shall not contain any untrue
statement of a material fact or omit to state material facts
necessary to make the statements made not misleading, in each
case in light of the circumstances under which such statements
were made or such information was furnished.
(u) Location of Records and Offices. The
Transferor will not have or maintain, or be a partner in any
partnership which has or maintains, its jurisdictions of organi-
zation, principal place of business in the United States of
America or principal assets in the United States of America in
any of the states of Colorado, Kansas, New Mexico (other than a
manufacturing facility located in the State of New Mexico),
Oklahoma, Utah or Wyoming.
(v) No Liens. Except for the transfers hereunder
and the security interest granted pursuant to Section 2.01(d),
the Transferor will not sell, pledge, assign or transfer to any
other Person, or grant, create, incur, assume or suffer to exist
any Lien on, any Trust Asset or any other property or asset of
the Transferor, whether now existing or hereafter created, or any
interest therein, and the Transferor shall defend the right,
title and interest of the Trust in and to the Trust Assets,
whether now existing or hereafter created, against all claims of
third parties claiming through or under the Transferor.
(w) Dividends. The Transferor shall not declare
or pay any dividend except as permitted by Delaware law, and in
no event shall any dividends be paid by the Transferor more
frequently than once every fiscal quarter of the Transferor.
Section 2.7 Authentication of Certificates. Pursuant
to the request of the Transferor, the Trustee shall cause
Certificates in authorized denominations evidencing the entire
beneficial ownership of the Trust to be duly authenticated and
delivered to or upon the order of the Transferor, which authen-
tication and delivery shall occur in accordance with Section 6.2.
Section 2.8 Tax Treatment. The Transferor has entered
into this Agreement, and the Investor Certificates have been (or
will be) issued, with the intention that such Investor Certifi-
cates will qualify under applicable tax law as indebtedness. The
Transferor, the Trustee and the Master Servicer and each Investor
21
29
Certificateholder by acceptance of its Investor Certificate and
each Certificate Owner by acquiring an interest in an Investor
Certificate agrees to treat the Investor Certificates (other than
any Investor Certificate held by the Transferor) as indebtedness,
for purposes of Federal, state and local income or franchise
taxes and for any other tax imposed on or measured by income. In
accordance with the foregoing, except as otherwise required by
law the Transferor agrees that it will report its income for such
Federal, state, and local income or franchise taxes, or for other
taxes on or measured by income, on the basis that it is the owner
of the Receivables. Furthermore, unless otherwise required by
law, the Trustee hereby agrees to treat the Trust as a security
device only, and shall not file tax returns or obtain an employer
identification number on behalf of the Trust.
Section 2.9 Cancellation of the Certificates of any
Series. The Transferor or any of its Affiliates may (with the
consent of the Holders of the Certificates being acquired)
acquire any Certificate of any Series and deliver it to the
Trustee for cancellation under this Section. Upon such delivery,
the Trustee shall cause the Transfer Agent and Registrar to
cancel such Investor Certificate and such Investor Certificate
shall be disposed of in a manner satisfactory to the Trustee. As
a result of such delivery and cancellation, the Transferor Amount
shall be increased by the principal amount of such Investor
Certificate and the Invested Percentages with respect to such
Series, and any other defined term herein (including in the
applicable Supplement), the definition of which depends upon an
assumption that such Investor Certificate had been issued as a
part of such Series, shall be recomputed on the basis of the
assumption that such Investor Certificate had not been issued as
part of such Series. Upon such delivery, such Certificate shall
be accompanied by an Officer's Certificate of the Transferor
stating the recomputed amounts of the defined terms referred to
in the preceding sentence.
Section 2.10 Separate Corporate Existence. The
Transferor hereby acknowledges that the Trustee and the Investor
Certificateholders are, and will be, entering into the transac-
tions contemplated by the Transaction Documents in reliance upon
the Transferor's identity as a legal entity separate from the
Designated Subsidiaries, Eagle Industrial and any other Person.
Therefore, from and after the Initial Closing Date, the Trans-
feror shall take all reasonable steps to continue its identity as
a separate legal entity and to make it apparent to third Persons
that the Transferor is an entity with assets and liabilities dis-
tinct from those of the Designated Subsidiaries, Eagle Industrial
and any other Person, and that the Transferor is not a division
of the Designated Subsidiaries, Eagle Industrial or any other
Person. Without limiting the generality of the foregoing, the
22
30
Transferor shall take such actions as shall be required in order
that:
(i) The Transferor will be a limited purpose corpo-
ration whose primary activities will be restricted to those
contemplated by its Certificate of Incorporation;
(ii) Not less than one member of the Transferor's
Board of Directors will be an Independent Director. The
Transferor's Board of Directors will not approve, or take
any other action to cause the filing of, a voluntary bank-
ruptcy petition with respect to the Transferor unless the
Independent Director and all other members of the Trans-
feror's Board of Directors unanimously approve the taking of
such action in writing prior to the taking of such action;
(iii) The Transferor will restrict its Independent
Director from at any time serving as a trustee in bankruptcy
for any Affiliate;
(iv) The Transferor will compensate each of its em-
ployees, consultants and agents from the Transferor's own
funds for services provided to the Transferor, it being
understood that this clause (iv) shall not limit payments of
the Servicing Fee. The Transferor will not act as agent for
the Master Servicer and will engage no agents other than a
Master Servicer for the Receivables, which Master Servicer
will be fully compensated for its services hereunder by
payment of the Servicing Fee, placement agents for the
placement of Certificates and accountants and attorneys who,
except to the extent provided otherwise below in clause (v),
will be compensated by the Transferor for their fees and
other charges as agreed to by the Transferor and such place-
ment agents, accountants or attorneys (as applicable);
(v) The Transferor will not incur any material
indirect or overhead expenses for items shared between the
Transferor and any Affiliate, other than shared items of
expenses not reflected in the Servicing Fee, such as legal,
auditing and other professional services, that will be
allocated on a basis reasonably related to the actual use or
the value of services rendered, it being understood that
Eagle Industrial will pay all expenses relating to the
preparation, negotiation, execution and delivery of the
Transaction Documents, including, without limitation, legal,
commitment, agency and other fees; provided, further, that
other than pursuant to this Agreement, the Transferor will
not engage in any other transactions with the Master
Servicer;
23
31
(vi) The Transferor's operating expenses or liabili-
ties will not be paid by any Affiliate, including guarantees
or advancements of funds from the Master Servicer, recogniz-
ing that certain organizational expenses of the Transferor
and expenses relating to creation and initial implementation
of the transactions contemplated by the Transaction Docu-
ments, however, have been or shall be paid by Eagle
Industrial;
(vii) The Transferor will conduct its business at an
office separate from the offices of each Affiliate, which
office of the Transferor may consist of office space shared
with an Affiliate, a portion of which is allocated solely to
the Transferor and is clearly demarcated as being allocated
solely to the Transferor.
(viii) The Transferor will maintain corporate records
and books of account separate from those of every Affiliate
and telephone numbers, mailing addresses, stationery and
other business forms that are separate and distinct from
those of every Affiliate and will only conduct business
under its own name;
(ix) Any financial statements of any Affiliate which
are consolidated to include the Transferor will contain
detailed notes clearly stating that the Transferor is a
separate corporate entity and that its assets will be
available first and foremost to satisfy the claims of its
own creditors;
(x) The Transferor's assets and liabilities will be
maintained in a manner that facilitates their identification
and segregation from those of any Affiliate and, in a manner
such that it will not be difficult or costly to segregate or
ascertain, and otherwise identify the individual assets and
liabilities of the Transferor on the one hand, from those of
Eagle Industrial or any Designated Subsidiary on the other
hand;
(xi) The Transferor will strictly observe corporate
formalities in its dealings with each Affiliate, and funds
or other assets of the Transferor will not be commingled
with those of any Affiliates (other than funds in the
Collection Account payable to the Transferor as Holder of
the Transferor Certificate). The Transferor shall not
maintain joint bank accounts or other depository accounts to
which any Affiliate (other than Eagle Industrial in its
capacity as Master Servicer) has independent access;
24
32
(xii) The Transferor shall not, directly or indirect-
ly, be named and shall not enter into an agreement to be
named as a direct or contingent beneficiary or loss payee on
any insurance policy with respect to any loss relating to
the property of an Affiliate;
(xiii) Any transaction between the Transferor and an
Affiliate will be fair and equitable to the Transferor, will
be the type of transaction which would be entered into by a
prudent Person in the position of the Transferor with an
Affiliate, and will be on terms which are at least as
favorable as may be obtained from a Person which is not an
Affiliate;
(xiv) Any Affiliate that renders or otherwise fur-
nishes services to the Transferor will be compensated by the
Transferor at market rates for such services;
(xv) Neither the Transferor nor any Affiliate will be
or will hold itself out to be responsible for the debts of
the other; and
(xvi) The duly elected Board of Directors of the
Transferor and the Transferor's duly appointed officers
shall at all times have sole authority to control decisions
and actions with respect to the daily business affairs of
the Transferor.
The covenants set forth in this Section 2.10 shall survive
the transfer and assignment of the Receivables to the Trustee.
Upon discovery by the Transferor or the Master Servicer or the
Trustee of a breach of any of the foregoing covenants, the party
discovering such breach shall give written notice to the other
parties to this Agreement immediately following such discovery.
[END OF ARTICLE II]
25
33
ARTICLE III
ADMINISTRATION AND SERVICING
OF RECEIVABLES
Section 3.1 Acceptance of Appointment and Other
Matters Relating to the Master Servicer.
(a) Eagle Industrial agrees to act, and is hereby
appointed by the Transferor and the Trustee to act, as the Master
Servicer under this Agreement, and all Certificateholders, in-
cluding the Transferor, by their acceptance of the Certificates
consent to Eagle Industrial's acting as Master Servicer. The
Master Servicer shall supervise the servicing and administration
of the Receivables and shall supervise the collection of payments
due under the Receivables in accordance with (i) prudent stan-
dards and its customary and usual servicing procedures for
servicing receivables owned by it and comparable to the Receiva-
bles and in accordance with the Credit and Collection Policy and
(ii) the standard set forth in clause (iii) of the definition of
"Eligible Master Servicer" in Annex X hereto (which standard the
Master Servicer represents is not inconsistent with the standard
set forth in clause (i) above) and shall have full power and
authority, acting alone or through any Person designated by it
(each, a "Sub-Servicer"), to do any and all things in connection
with such servicing and administration which it may deem neces-
sary or desirable; provided, however, that if Eagle Industrial is
no longer the Master Servicer, the Master Servicer shall service
the Receivables in accordance with the standards that would be
employed by a prudent institution in servicing comparable receiv-
ables for its own account. Pursuant to the Sale and Servicing
Agreement, the Master Servicer will designate one or more of the
Designated Subsidiaries the initial Sub-Servicers, and in such
capacity such Designated Subsidiaries will be responsible on a
daily basis for servicing, managing and accepting or collecting
payments on the Receivables; provided, however, that such Sub-
Servicers and the Master Servicer will hold such collections in
trust for the benefit of the Certificateholders. Servicing
activities performed by the Sub-Servicers with respect to the
Receivables shall include collecting and recording payments,
communicating with Obligors, investigating payment delinquencies,
providing billing records to Obligors and maintaining internal
records. Managerial and custodial services performed by the Sub-
Servicers shall include providing assistance in any inspections
of the documents and records relating to the Receivables by the
Trustee to the extent provided in this Agreement, maintaining the
agreements, documents and files relating to the Receivables as
custodian and providing related data processing and reporting
services for Certificateholders and on behalf of the Trustee to
the extent provided in this Agreement. Without limiting the
26
34
generality of the foregoing and subject to Article X, the Master
Servicer is hereby authorized and empowered (i) to instruct the
Trustee to make withdrawals and payments from the Collection
Account and Excess Funding Account and any other applicable
account established pursuant to this Agreement (including any
Supplement) as set forth in this Agreement (including any
Supplement), (ii) to execute and deliver, on behalf of the
Trustee for the benefit of the Certificateholders, any and all
instruments of satisfaction or cancellation, or of partial or
full release or discharge, and all other comparable instruments,
with respect to the Receivables and, after the delinquency of any
Receivable and to the extent permitted under and in compliance
with applicable law and regulations, to commence enforcement
proceedings with respect to such Receivable, and (iii) to make
any filings, reports, notices, applications, registrations with,
and to seek any consent or authorizations from, the Securities
and Exchange Commission and any state securities authority on
behalf of the Trust as may be necessary or advisable to comply
with any Federal or state securities or reporting requirements or
laws.
(b) The Master Servicer shall not, and no
Successor Master Servicer shall, be obligated to use separate
servicing procedures (except as may be specified herein), offices
or employees for servicing the Receivables from the procedures,
offices or employees used by the Master Servicer or such Succes-
sor Master Servicer, as the case may be, in connection with
servicing other receivables of the same type.
(c) The Master Servicer shall, on behalf of the
Transferor, the Trustee and the Investor Certificateholders,
enforce their respective rights and interest in and under the
Receivables and the related Contracts. If Eagle Industrial is
not the Master Servicer, Eagle Industrial shall promptly deliver
to the Master Servicer, and the Master Servicer shall hold in
trust for the Transferor, the Trustee and the Investor Certifi-
cateholders in accordance with their respective interests, all
books and records, files, documents, instruments and records
(including, without limitation, computer tapes or disks and
microfiche lists) that evidence or relate to Receivables.
(d) In the event that the Transferor is unable
for any reason to transfer Receivables to the Trustee in accor-
dance with the provisions of this Agreement (including, without
limitation, by reason of any court of competent jurisdiction
ordering that the Transferor not transfer any additional
Receivables to the Trustee) then, in any such event, (A) the
Master Servicer agrees to allocate and pay to the Trustee, after
the date of such inability, all Collections with respect to
Receivables transferred to the Trustee prior to the occurrence of
27
35
such event; and (B) the Master Servicer agrees to have such
amounts applied as Collections in accordance with Section 4.3.
(e) Obligors shall be instructed by the Trans-
feror, the Master Servicer or a Designated Subsidiary to make all
payments on the Receivables to Lock-Box Accounts maintained by
Lock-Box Banks pursuant to Lock-Box Agreements or to Post Office
Boxes to which Lock-Box Banks have access. The Master Servicer
(and each Sub-Servicer) or, in the event that there is a succes-
sor Master Servicer, Eagle Industrial (and each Sub-Servicer),
shall have the power revocable by the Trustee to instruct each
Lock-Box Bank to make withdrawals from the Lock-Box Accounts and
Post Office Boxes in accordance with this Agreement. All Collec-
tions on Receivables of amounts due and owing will, pending
instructions by the Master Servicer for transfer to the Collec-
tion Account, be deposited in or held in the Lock-Box Account by
the Master Servicer or Sub-Servicer for the benefit of the
Trustee and shall be remitted to the Collection Account not later
than one Business Day after such deposits become available funds;
provided, however, that the Master Servicer shall not be consid-
ered in breach of the obligation set forth in this sentence to
the extent that a payment received by the Master Servicer is not
so deposited because such payment relates to a Disputed Item.
Section 3.2 Servicing Compensation. As compensation
for its servicing activities hereunder and reimbursement for its
expenses as set forth in the immediately following paragraph, the
Master Servicer shall be entitled to receive a servicing fee in
respect of each day prior to the Final Trust Termination Date
(the "Servicing Fee"), equal to the product of (i) one-twelfth,
(ii) the Servicing Fee Percentage and (iii) the average Unpaid
Balances determined by averaging the aggregate Unpaid Balances at
the end of each Business Day of the preceding Settlement Period.
The share of the Servicing Fee allocable to each Series
with respect to any date of payment shall be equal to the product
of (i) one-twelfth, (ii) the Servicing Fee Percentage and (iii)
the Invested Amount of such Series at the end of the last day of
the preceding Settlement Period, as appropriate, on each Business
Day of such measuring period as specified in the applicable
Supplement. The remainder of the Servicing Fee shall be paid by
the Transferor, or retained by the Master Servicer as provided in
Section 4.3(b), and in no event shall the Trust, the Trustee or
the Investor Certificateholders be liable for the share of the
Servicing Fee to be paid by the Transferor. Any Servicing Fees
shall be payable to the Master Servicer solely pursuant to the
terms of, and to the extent amounts are available for payment as
provided in, the Supplement relating to any Series. In the event
a Successor Master Servicer is appointed pursuant to Section 10.2
hereto, the Servicing Fee with respect to such Successor Master
28
36
Servicer shall, unless otherwise agreed, be at least .50% per
annum of the average Unpaid Balances determined by averaging the
aggregate Unpaid Balances on the first and last Business Days of
each Settlement Period; provided, however, that in no event shall
the Servicing Fee equal an amount that would exceed 110% of the
costs and expenses incurred by such Successor Master Servicer.
The Master Servicer's expenses include the amounts due
to the Trustee pursuant to Section 11.5, the reasonable fees and
disbursements of independent accountants, all other expenses
incurred by the Master Servicer in connection with its activities
hereunder, and all other fees and expenses of the Trust not
expressly stated herein to be for the account of the Certificate-
holders; provided that in no event shall the Master Servicer be
liable for any Federal, state or local tax, or any interest or
penalties with respect thereto, assessed on the Trust, the
Trustee or the Certificateholders except as expressly provided
herein. For so long as Eagle Industrial is the Master Servicer,
in the event that the Master Servicer fails to pay the amounts
due to the Trustee pursuant to Section 11.5, the Trustee shall be
entitled to deduct and receive such amounts from the Servicing
Fee, prior to the payment thereof to the Master Servicer. The
Master Servicer shall be required to pay expenses for its own
account and shall not be entitled to any payment or reimbursement
therefor other than the Servicing Fee.
Section 3.3 Representations, Warranties and Covenants
of the Master Servicer. Eagle Industrial, as initial Master
Servicer, and any Successor Master Servicer by its appointment
hereunder, hereby represent and warrant, in the case of the
initial Master Servicer, as of the Initial Closing Date and, with
respect to any Series as of the date of any Supplement and the
related Closing Date, and in the case of any Successor Master
Servicer, as of the date of its appointment and, with respect to
any Series issued after such date, as of the date of the related
Supplement and the related Closing Date, in each case unless
otherwise stated in such Supplement, and covenant until (i) the
Aggregate Invested Amount is reduced to zero, (ii) the Investor
Certificateholders shall have received all accrued interest on
the applicable Certificates, and (iii) all obligations of the
Transferor and the Master Servicer to the Investor Certificate-
holders under this Agreement shall have been finally and fully
paid and performed.
(a) Organization and Good Standing. The Master
Servicer is a corporation duly organized, validly existing and in
good standing under the laws of its state of incorporation, and
has full power, authority and legal right to execute, deliver and
perform its obligations under this Agreement and any Supplement
and, in all material respects, to own its property and conduct
29
37
its business as such properties are presently owned and as such
business is presently conducted.
(b) Due Qualification. The Master Servicer is
duly qualified to do business and is in good standing as a
foreign corporation (or is exempt from such requirements), and
has obtained all necessary licenses and approvals in each juris-
diction in which the failure to obtain such license, approval or
qualification would have a material adverse affect upon the
Certificateholders or upon the ability of the Master Servicer to
perform its obligations under this Agreement.
(c) Due Authorization. The execution, delivery
and performance by the Master Servicer of this Agreement and any
Supplement, and the consummation by the Master Servicer of the
transactions provided in this Agreement and any Supplement, have
been duly authorized by all necessary corporate action on the
part of the Master Servicer.
(d) Binding Obligation. Each of this Agreement
and any Supplement constitute legal, valid and binding obligation
of the Master Servicer, enforceable against it in accordance with
its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other simi-
lar laws now or hereinafter in effect, relating to the enforce-
ment of creditors' rights in general and, with respect to any
Successor Master Servicer which is a national banking associa-
tion, the rights of creditors of national banks under Federal law
and except as such enforceability may be limited by general prin-
ciples of equity (whether considered in a proceeding at law or in
equity).
(e) No Violation. The execution and delivery of
this Agreement and any Supplement by the Master Servicer, and the
performance by the Master Servicer of the transactions contem-
plated by this Agreement and any Supplement and the fulfillment
by the Master Servicer of the terms hereof applicable to the
Master Servicer, will not conflict with, violate any provision
of, require any filing (except for certain filings required by
the UCC), registration, consent or approval under, any law, rule,
regulation, order, writ, judgment, injunction, decree, determina-
tion or award presently in effect having applicability to the
Master Servicer, or the Certificate of Incorporation or Bylaws of
the Master Servicer, except for such filings, registrations,
consents or approvals as have already been obtained and are in
full force and effect and except for such violations which would
not materially and adversely affect the performance by the Master
Servicer of such transactions and the fulfillment by the Master
Servicer of such terms (and except that the Master Servicer makes
no representation or warranty regarding state securities or "blue
30
38
sky" laws), or result in any breach of any of the material terms
and provisions of, or constitute (with or without notice or lapse
of time or both) a default under, any indenture, contract, agree-
ment, mortgage, deed of trust or other instrument to which the
Master Servicer is a party or by which it is bound.
(f) No Proceeding. There are no proceedings or
investigations pending or, to the best knowledge of the Master
Servicer, threatened against the Master Servicer before any
court, regulatory body, administrative agency or other tribunal
or governmental instrumentality (i) seeking to prevent the
issuance of the Certificates or the consummation of any of the
transactions contemplated by this Agreement or any Supplement,
(ii) seeking any determination or ruling that, in the reasonable
judgment of the Master Servicer, would materially and adversely
affect the performance by the Master Servicer of its obligations
under this Agreement or any Supplement, or (iii) seeking any
determination or ruling that would materially and adversely
affect the validity or enforceability of this Agreement or any
Supplement.
(g) Compliance with Requirements of Law. The
Master Servicer shall duly satisfy all obligations on its part to
be fulfilled under or in connection with the Receivables, will
maintain in effect all qualifications required under requirements
of law in order to service properly the Receivables and will
comply in all material respects with all requirements of law in
connection with servicing the Receivables, the failure to main-
tain or to comply with which would have a material adverse effect
on the holders of any Series of Investor Certificates.
(h) No Rescission or Cancellation. The Master
Servicer shall not permit any rescission or cancellation of a
Receivable or a Contract, except as ordered by a court of compe-
tent jurisdiction or other governmental authority and except in
the ordinary course of business and in accordance with the Credit
and Collection Policies of the Designated Subsidiaries.
(i) Protection of Certificateholders' Rights.
The Master Servicer shall take no action which, nor omit to take
any action the omission of which, would materially impair the
rights of Investor Certificateholders in any Receivable, except,
if no Event of Termination shall have occurred and be continuing,
to (a) extend the maturity of a Receivable to 60 days or more
from the Date of Processing or (b) adjust the Unpaid Balance of
any Receivable as it may deem appropriate to maximize Collections
thereof and to adjust the Unpaid Balance of any Receivable to
reflect Dilutive Credits, both in accordance with the applicable
Credit and Collection Policy; provided, however that Receivables
31
39
that are adjusted as provided in clauses (a) and (b) herein shall
be Defaulted Receivables.
(j) All Consents Required. All approvals,
authorizations, consents, orders or other actions of any Person
or of any Governmental Authority required in connection with the
execution and delivery by the Master Servicer of this Agreement
and any Supplement, the performance by the Master Servicer of the
transactions contemplated by this Agreement and any Supplement
and the fulfillment by the Master Servicer of the terms hereof
and thereof have been obtained, where the failure to obtain the
same would have a material adverse effect on the holders of any
Series of investor certificates; provided, however, that the
Master Servicer makes no representation or warranty regarding
state securities or "blue sky" laws.
(k) Extension or Amendment of Receivables; Change
in Credit and Collection Policy or Contracts. The Master
Servicer will not, without (in the case of clause (ii) below)
written confirmation from each Rating Agency that the rating on
any Series of Certificates will not be adversely affected, (i)
permit the Sub-Servicer or the Transferor to extend, amend or
otherwise modify the terms of any Receivable, (ii) permit the
Sub-Servicer or the Transferor to make any material changes in
the Credit and Collection Policy (including the Sub-Servicer's
written Credit and Collection Policy in effect as on the Initial
Closing Date) or (iii) amend, modify or waive, or permit the Sub-
Servicer or the Transferor to amend, modify or waive, any term or
condition of any Contract related to any Receivable, which exten-
sion, amendment, modification, waiver or change, in the case of
each of foregoing clauses (i) through (iii), would, individually
or in the aggregate (A) materially change the credit standing
required of the Obligors, (B) have a substantial likelihood of
having a material adverse effect on any Investor Certificate-
holders, or (C) cause a Receivable that would otherwise not be an
Eligible Receivable to continue to be or to become an Eligible
Receivable. The Master Servicer shall give the Rating Agencies
notice of any request that it makes for consent under this
Section 3.3(k) at the time such request is made.
(l) No Change in Ability to Service. With
respect to the initial Master Servicer only, since the Initial
Closing Date, there has been no material adverse change in the
ability of the Master Servicer to service and collect the
Receivables.
(m) Lock-Box Banks. The Master Servicer and any
successor Master Servicer shall direct each Lock-Box Bank to make
payments to the Collection Account.
32
40
(n) Keeping of Records and Books of Account. The
Master Servicer shall maintain or cause Sub-Servicers to maintain
and implement administrative and operating procedures (including,
without limitation, the ability to create records evidencing the
Receivables in the event of the destruction of the originals
thereof), and keep and maintain all documents, books, microfiche,
computer records and other information reasonably necessary or
advisable for the collection of all the Receivables. Such
documents, books and records, microfiche lists, computer files,
tapes or disks shall reflect all payments and credits with
respect to the Receivables and the computer records shall be
clearly marked to show the interests of the Trustee in the
Receivables.
(o) Performance and Compliance with Eagle
Industrial's Contracts. The Master Servicer shall or, if Eagle
Industrial is no longer the Master Servicer, Eagle Industrial
shall timely and fully perform and comply with all material pro-
visions, covenants and other promises required to be observed by
it under the Contracts related to the Receivables.
(p) No Master Servicer Default. No Master
Servicer Default has occurred and is continuing.
(q) No Event of Termination. No Event of
Termination has occurred and is continuing.
(r) Maintenance of Privileges. The Master
Servicer shall maintain all of its rights, powers and privileges
material to the collectibility of the Receivables.
(s) Accuracy of Information. All written
information furnished on and after the Initial Closing Date by
the Master Servicer to the Transferor or the Trustee pursuant to
or in connection with any Transaction Document or any transaction
contemplated herein or therein shall not contain any untrue
statement of a material fact or omit to state material facts
necessary to make the statements made not misleading, in each
case in light of the circumstances under which such statements
were made or such information was furnished.
Section 3.4 Reports and Records for the Trustee; Bank
Account Statements.
(a) Daily Records. Upon reasonable prior notice
by the Trustee, the Master Servicer shall make available at an
office of the Master Servicer or Sub-Servicer, selected by the
Master Servicer for inspection by the Trustee or its agent on a
Business Day during the Master Servicer's normal business hours a
record setting forth (i) the Collections on each Receivable and
33
41
(ii) the Unpaid Balance of Receivables for the Business Day
preceding the date of the inspection. The Master Servicer or
Sub-Servicer shall, at all times, maintain its computer files
with respect to the Receivables in such a manner so that the
Receivables will be specifically identified and, upon reasonable
prior request of the Trustee, shall make available to the
Trustee, at an office of the Master Servicer or Sub-Servicer
selected by the Master Servicer, on any Business Day during the
Master Servicer's or Sub-Servicer's normal business hours any
computer programs necessary to make such identification.
(b) Daily Report.
(i) On each Business Day, the Master
Servicer shall prepare, or, if Eagle Industrial is not the
Master Servicer, Eagle Industrial and the Successor Master
Servicer shall prepare, a completed Daily Report substan-
tially in the form attached hereto as Exhibit B.
(ii) The Master Servicer (or if Eagle
Industrial is not the Master Servicer, Eagle Industrial and
the Successor Master Servicer) shall deliver to the Trustee
the Daily Report by 2:00 p.m. on each Business Day with
respect to activity in the Receivables for the prior
Business Day (or, in the case of a Daily Report delivered on
the second Business Day following a Saturday, Sunday or
other non-Business Day, the aggregate activity for the
preceding Business Day and such non-Business Days).
(iii) Upon discovery of any error or receipt
of notice of any error in any Daily Report, the Master
Servicer, Eagle Industrial (if not the Master Servicer), the
Transferor and the Trustee shall arrange to confer and shall
agree upon any adjustments necessary to correct any such
errors. Until correction of such error, the Master Servicer
shall deposit and the Trustee shall retain all Collections
(or such lesser amount as the Trustee and the Master
Servicer shall agree to be necessary to cover any error) in
the Collection Account. Unless the Trustee has actual
knowledge or has received written notice of any discrepancy,
the Trustee may rely on each Daily Report delivered to it
for all purposes hereunder.
(c) Determination Date Statement. By each Deter-
mination Date, the Master Servicer shall, or if Eagle Industrial
is not the Master Servicer, the Successor Master Servicer shall
with information provided by Eagle Industrial, perform the calcu-
lations to be made on such Determination Date and reported on the
related Determination Date Statement and, prior to 2:00 p.m. on
the Determination Date, deliver to the Trustee, the Rating Agen-
34
42
cies and, Eagle Industrial and each Investor Certificateholder
(if prepared by a Successor Master Servicer), the Determination
Date Statement substantially in the form attached hereto as
Exhibit E for the related Settlement Period in accordance with
the provisions of Section 5.2(a).
(d) Principal Payment Statement. With respect to
each Settlement Period during the Amortization Period, within
five Business Days after the end of the immediately preceding
Settlement Period, a certificate stating the amount of principal
payable on the next Payment Date (the "Principal Payment
Statement") shall be delivered to the Trustee.
Section 3.5 [Reserved]
Section 3.6 Annual Independent Public Accountants'
Servicing Report.
(a) On or before August 1, 1994, with respect to
any two months during the five month period ended June 30, 1994,
and on or before June 30 of each calendar year beginning with
June 30, 1995, the Master Servicer shall cause a firm of
nationally recognized independent public accountants to furnish a
report, substantially in the form attached hereto as Exhibit C
for each of such months or for the preceding fiscal year of the
Master Servicer, as applicable, addressed to the Board of
Directors of the Transferor, to the Transferor, the Trustee and
each Rating Agency, to the effect that such accountants have
applied certain procedures and examined certain documents and
records relating to the servicing of Receivables under this
Agreement, and that, based upon such procedures, nothing has come
to the attention of such accountants that caused them to believe
that the servicing has not been conducted in compliance with the
terms and conditions set forth in Sections 4.3, 4.4, 4.5 and 4.7
of this Agreement and in compliance with any Supplement, except
for such exceptions as they believe to be immaterial and such
other exceptions as shall be set forth in such report. A copy of
such report may be obtained by any investor certificateholder by
a request in writing to the Trustee addressed to the Corporate
Trust Office.
(b) On or before August 1, 1994, with respect to
any two months during the five month period ended June 30, 1994,
and on or before June 30 of each calendar year beginning with
June 30, 1995, the Master Servicer shall cause a firm of
nationally recognized independent public accountants to furnish a
report, substantially in the form attached hereto as Exhibit C
for each of such months or for the preceding fiscal year of the
Master Servicer, as applicable, to the Trustee to the effect that
such accountants have compared the mathematical calculations of
35
43
each amount set forth in a sampling of the Determination Date
Statements forwarded by the Master Servicer pursuant to Section
3.4(c) during the period covered by such report (which shall be
the period covered by the report delivered pursuant to Section
3.6(a) above) with the Master Servicer's computer reports which
were the source of such amounts and that on the basis of such
comparison, such accountants have found that such amounts are in
agreement, except for such exceptions as they believe to be
immaterial and such other exceptions as shall be set forth in
such statement. The Master Servicer shall promptly forward a
copy of such report to each Rating Agency. A copy of such report
may be obtained by any Certificateholder by a request in writing
to the Trustee addressed to the Corporate Trust Office.
(c) As soon as practicable and in any event
within 105 days after the close of each of its fiscal years,
beginning with the fiscal year ending December 31, 1994, the
Master Servicer shall deliver to the Trustee its annual audited
financial statements (including balance sheets as of the end of
such period, related revenue and expense statements, and a
statement of cash flows) and an annual audit of the balance sheet
of the Trust Assets both certified by a firm of nationally
recognized independent public accountants and prepared in
accordance with GAAP.
Section 3.7 [Reserved]
Section 3.8 Notices to the Transferor. The Master
Servicer shall deliver or make available to the Transferor each
certificate and report required to be prepared, forwarded or
delivered pursuant to Sections 3.4, 3.5 and 3.6.
Section 3.9 Securities and Exchange Commission Filing.
The Master Servicer shall deliver to the Trustee and the Rating
Agencies copies of each report of the Master Servicer filed with
the Securities and Exchange Commission on forms 10-K and 10-Q
promptly after any such filing has been made.
[END OF ARTICLE III]
36
44
ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND ALLOCATION
AND APPLICATION OF COLLECTIONS
Section 4.1 Rights of Certificateholders. Each Series
shall represent an Undivided Interest in the Trust Assets, and
the right to receive Collections and other amounts at the times
and in the amounts specified in this Article IV to be deposited
in the Collection Account or paid to or on behalf of the Investor
Certificateholders (the "Investor Interest"). The Transferor
Certificate shall represent the remaining interest in the Trust
Assets, including the right to receive Collections and other
amounts at the times and in the amounts specified in this Article
IV to be paid to or on behalf of the Holder of the Transferor
Certificate (the "Transferor Interest"); provided, however, that
such certificate shall not represent any interest in the Collec-
tion Account (except to the extent provided in this Agreement and
any applicable Supplement) and neither the Transferor nor the
Master Servicer shall have the right to withdraw funds from the
Collection Account or to receive funds on deposit therein except
as and when provided by this Agreement, including any Supplement.
Section 4.2 Establishment of Collection Account and
Excess Funding Account.
(a) The Collection Account. The Trustee, for the
benefit of the Investor Certificateholders of each Series and the
holder of the Transferor Certificate, shall establish or shall
cause to be established and maintained, in the name of the
Trustee, on behalf of the Trust, a fully segregated trust account
(which may include one or more subaccounts) with an Eligible
Institution (the "Collection Account"). The Collection Account
shall bear a designation clearly indicating that the funds depos-
ited therein are held for the benefit of the Certificateholders.
An "Eligible Institution" means a depositary institution, which
may include the Trustee or any of its affiliates, organized under
the laws of the United States or any one of the States thereof
including the District of Columbia (or any domestic branches of
foreign banks), which either (i) at all times has a long-term
unsecured debt rating of at least "AAA" or its equivalent by the
applicable Rating Agency and which is a member of the Federal
Deposit Insurance Corporation (the "FDIC") or (ii) maintains the
applicable account as a fully segregated trust account with the
trust department of such institution and is rated the equivalent
of "BBB-" or "A-3" or higher by the applicable Rating Agency.
Except as provided in this Agreement, the Collection Account
shall be under the sole dominion and control of the Trustee for
the benefit of the Investor Certificateholders of each Series and
the holder of the Transferor Certificate. If, at any time, the
37
45
institution holding the Collection Account ceases to be an
Eligible Institution, the Trustee shall within 30 days of a
responsible officer of the Trustee's learning of such event,
establish a new Collection Account meeting the conditions spe-
cified above with an Eligible Institution, transfer any cash
and/or any investments to such new Collection Account and from
the date such new Collection Account is established, it shall be
the "Collection Account". Funds on deposit in the Collection
Account (other than certain amount specified by the Agreement)
shall at the direction of the Master Servicer as agent for the
Transferor be invested by the Trustee solely in Permitted Invest-
ments that will mature so that such funds will be available prior
to the Payment Date following such investment, provided, that
once invested, no amounts may be released pursuant to the provi-
sions of such applicable Supplement or otherwise until such
Permitted Investments mature. "Permitted Investments" mean (a)
negotiable instruments or securities represented by instruments
in bearer or registered form which evidence (1) obligations fully
guaranteed as to timely payment by the United States of America;
(2) certificates of deposits of, or bankers' acceptances (having
original maturities of no more than 180 days) issued by, any
depositary institution or trust company, subject to supervision
or examination by Federal or state banking or depositary institu-
tion authorities; provided, however, that at the time of the
Trust's investment or contractual commitment to invest therein,
such depositary institution or trust company shall have a credit
rating with respect to commercial paper of at least "A-1+" by S&P
or "Duff-1+" by D&P and in the highest available rating category
applicable to commercial paper if rated by any other applicable
Rating Agency, and a rating of not lower than "AAA" or its equi-
valent by the applicable Rating Agency, in the case of long-term
unsecured debt obligations, or such deposits are fully insured by
the FDIC; (3) commercial paper (having original maturities of not
more than 180 days) having, at the time of the Trust's investment
or contractual commitment to invest therein, a rating of at least
"A-1+" by S&P or "Duff-1+" by D&P and in the highest available
rating category applicable to money market funds if rated by any
other applicable Rating Agency; (4) investments in money market
funds having a rating of at least "AAAm" by S&P and in the high-
est available rating category applicable to money market funds if
rated by any other applicable Rating Agency; (5) any "institution
funds" or "bank funds" that are comprised of assets listed in
clauses (1) - (4) above; and (6) any other investment, if the
Rating Agencies confirm in writing that such investment will not
adversely affect any ratings with respect to any Series of inves-
tor certificates, and which shall be acceptable to the Trustee
and (b) demand deposits or time deposits in the name of the Trust
or the Trustee in any depositary institution or trust company
referred to in (a)(2) above. All interest and earnings (net of
losses and investment expenses) on funds on deposit in the
38
46
Collection Account shall be paid by the Trustee to the Transferor
on each Payment Date. Neither the Transferor nor the Master
Servicer, nor any Person claiming by, through or under the
Transferor or Master Servicer, shall have any right, title or
interest in, or any right to withdraw any amount from, the
Collection Account except to the extent provided in this Agree-
ment. Pursuant to the authority granted to the Master Servicer
pursuant to Section 3.1(a), the Master Servicer shall have the
power to instruct the Trustee to make withdrawals and payments
from the Collection Account for the purposes of carrying out the
Master Servicer's duties hereunder.
(b) The Excess Funding Account. The Trustee, for
the benefit of the holders of each Series of Investor Certifi-
cates and the Transferor Certificate, shall establish or shall
cause to be established and maintained with the same Eligible
Institution maintaining the Collection Account in accordance with
subparagraph (a), in the name of the Trustee, on behalf of the
Certificateholders, a fully segregated trust account with the
trust department of such institution (the "Excess Funding
Account"), bearing a designation clearly indicating that the
funds deposited therein are held for the benefit of the holders
of each Series of Investor Certificates and the Transferor Cer-
tificate. Except as provided in this Agreement, the Excess
Funding Account shall be under the sole dominion and control of
the Trustee for the benefit of the Investor Certificateholders of
each Series, and the Transferor. If, at any time, the institu-
tion holding the Excess Funding Account ceases to be an Eligible
Institution, the Trustee shall, concurrently with the establish-
ment of a new Collection Account in accordance with subparagraph
(a), establish a new Excess Funding Account meeting the condi-
tions specified above with the same Eligible Institution, trans-
fer any cash and/or any investments to such new Excess Funding
Account and from the date such new Excess Funding Account is
established, it shall be the "Excess Funding Account". All
interests and earnings (net of losses and investment expenses) on
funds on deposit in the Excess Funding Account shall constitute
Trust Assets and shall be included in determining the amount of
the Trust Principal Component. Pursuant to the authority granted
to the Master Servicer pursuant to the Agreement, the Master
Servicer shall have the revocable power to instruct the Trustee
to make withdrawals and payments from the Excess Funding Account
for the purposes of carrying out the Master Servicer's duties
thereunder. Neither the Transferor nor the Master Servicer, nor
any Person claiming by, through or under the Transferor or the
Master Servicer, shall have any right, title or interest in, or
any right to withdraw any amount from, the Excess Funding Account
except to the extent provided in this Agreement. Pursuant to the
authority granted to the Master Servicer pursuant to Section
3.1(a), the Master Servicer shall have the power to instruct the
39
47
Trustee to make withdrawals and payments from the Excess Funding
Account for the purposes of carrying out the Master Servicer's
duties hereunder. The amount to be deposited in the Excess
Funding Account on any day shall equal the Excess Funding Account
Deposit Amount. All amounts from time to time held in the Excess
Funding Account (including any investment earnings) shall consti-
tute Trust Assets and shall be included in determining the Trust
Principal Component. In the event that a Series has entered into
its Amortization Period, a pro rata amount of the balance on
deposit in the Excess Funding Account, based on its Invested
Percentage of such Series on the Amortization Period Commencement
Date relating to such Series, shall be deposited in the Collec-
tion Account to be distributed as Principal Collections in
respect of such Series.
(c) Administration of the Collection Account and
the Excess Funding Account. Funds on deposit in the Collection
Account (other than investment earnings and amounts deposited
pursuant to Section 9.3 or Article XII) shall at the direction of
the Master Servicer, as agent for the Transferor, be invested by
the Trustee in Permitted Investments that will mature so that
such funds will be available prior to the Payment Date following
such investment. Principal Collections on any Business Day
allocable to the Investor Certificates and the Transferor will be
deposited in the Excess Funding Account to the extent that the
Transferor Amount is less than the Minimum Transferor Amount on
the preceding Business Day. Funds on deposit in the Excess
Funding Account shall at the direction of the Master Servicer, as
agent for the Transferor, be invested by the Trustee solely in
Permitted Investments that will mature so that such funds will be
available prior to the date on which the Transferor is expected
to be entitled to the release of such amounts by which the Trans-
feror Amount exceeds the Minimum Transferor Amount, in accordance
with the provisions of the applicable Supplement; provided, that
once invested, no amounts may be released pursuant to the provi-
sions of such applicable Supplement or otherwise until such Per-
mitted Investments mature. Subject to the proviso contained in
the immediately preceding sentence, on any day on which the
amount on deposit in the Excess Funding Account exceeds the
Excess Funding Account Deposit Amount, such excess shall be
returned to the Transferor. Any funds on deposit in the Collec-
tion Account or the Excess Funding Account to be so invested
shall be invested solely in Permitted Investments. Funds on
deposit in the Collection Account or the Excess Funding Account
shall be invested pursuant to the written instructions of the
Master Servicer, which instructions shall certify that the funds
requested to be invested may be so invested pursuant to the terms
of this Agreement, and that the requested investment is a Permit-
ted Investment which matures at or prior to the time required
hereby. If not otherwise directed by the Master Servicer, the
40
48
Trustee shall invest funds on deposit in the Collection Account
or the Excess Funding Account in a money market fund sponsored by
the Trustee that qualifies as a Permitted Investment. The
Trustee shall not be liable, except in the case of any negligence
of the Trustee, by reason of any insufficiency in the Collection
Account or the Excess Funding Account resulting from any loss on
any investment made in accordance with this Section 4.2. The
Trustee shall maintain possession of the negotiable instruments
or securities, if any, evidencing the Permitted Investments
described in clause (a) of the definition thereof from the time
of purchase thereof until maturity. All interest and earnings
(net of losses and investment expenses) on funds on deposit in
the Collection Account shall be paid by the Trustee to the Trans-
feror on each Payment Date. Neither the Transferor nor the
Master Servicer shall deposit any of their funds in the Collec-
tion Account or the Excess Funding Account at any time except for
funds unconditionally required to be paid on account of the
purchase price of Certificates or amounts otherwise deposited
therein for the purpose of increasing the Transferor Amount;
provided, however, that the Transferor shall be permitted to
transfer funds to the Trust to repay any Series to the extent
permitted by the terms of the related Supplement, including under
Section 12.2, in connection with which the applicable Invested
Amount shall be reduced and the Transferor Amount shall be
increased accordingly.
(d) Identification of Collection Account and
Excess Funding Account. Schedule 1, which is hereby incorporated
into and made part of this Agreement, identifies the Collection
Account and the Excess Funding Account by setting forth the
account number of each such account, the account designation of
each such account and the name and location of the institution
with which each such account has been established.
Section 4.3 Collections and Allocations.
(a) Collections. The Master Servicer will allo-
cate, pay or deposit all Collections with respect to the Receiva-
bles (all of which Collections, subject to Section 4.9, shall be
deemed to relate to, and to be received with respect to, Adjusted
Eligible Receivables) for each Business Day as described in this
Article IV. The Master Servicer shall allocate and, as indicated
in Section 4.3(b), deposit such Collections into the Collection
Account (or in certain circumstances specified in Section 4.3(b)
transfer Collections to the Transferor), as indicated in Section
4.3(b).
(b) Payments and Allocations. On each Business
Day, the Master Servicer shall allocate the aggregate amount of
Collections processed on such Business Day (x) to the extent of
41
49
the product of the total amount of such Collections and the
Discount Factor on such Business Day to Collections of Imputed
Yield (the "Imputed Yield Collections") and (y) to the extent of
the total amount of such Collections minus the amount described
in clause (x) above to Collections of principal (the "Principal
Collections"). On each Business Day, the Master Servicer shall
determine with respect to each Series whether an Amortization
Period has commenced on or prior to such Business Day, and based
upon such determination, shall determine the amounts or percent-
ages of the Imputed Yield Collections and Principal Collections
to be deposited into the Collection Account on such Business Day
and shall allocate such Imputed Yield Collections and Principal
Collections to or among each Series and the Transferor, in each
case as provided in the applicable Supplement and herein;
provided, however, that all Collections allocated to the Trans-
feror during the Revolving Period shall not be deposited into the
Collection Account but shall instead shall be paid directly to
the Transferor or as otherwise provided in the applicable
Supplement.
For the Transferor Certificate throughout the existence
of the Trust, the Master Servicer shall allocate, and pay to the
Transferor an amount equal to the product of the Transferor Per-
centage on such Business Day and the aggregate amount of Imputed
Yield Collections and Principal Collections for such Business
Day; provided, however except as otherwise provided in Section
4.9: (i) in the event that Eagle Industrial becomes unable to
sell Receivables to the Transferor or the Transferor becomes
unable to transfer Receivables to the Trustee, then so long as
such inability exists all Principal Collections allocated to the
Transferor shall be deposited by the Master Servicer into the
Collection Account and paid to the Transferor on each Payment
Date; provided, further, that if as of the beginning of the
preceding Business Day, the Transferor Amount was less than the
Minimum Transferor Amount, such Principal Collections shall be
deposited in the Excess Funding Account up to an amount equal to
such deficiency; and (ii) the Master Servicer shall retain from
such amounts on each Business Day an amount equal to the portion
of the Servicing Fee accrued to such Business Day and not
previously paid to or retained by the Master Servicer.
The Master Servicer shall allocate as Principal Collec-
tions and the Trustee, acting in accordance with instructions
from the Master Servicer pursuant to the terms of this Agreement,
shall immediately pay, or cause to be paid, as Principal Collec-
tions to the Transferor (or, if a Supplement so provides, to the
Collection Account, or any other account maintained pursuant to
the terms of such Supplement), amounts held in the Excess Funding
Account to the extent the Transferor Amount exceeds the Minimum
Transferor Amount.
42
50
Section 4.4 Payments of Interest to Investor
Certificateholders. Payments of interest to Investor Certifi-
cateholders shall be made in the manner set forth in the related
Supplement.
Section 4.5 Payments of Principal to Investor
Certificateholders. Payments of Principal Collections with
respect to any Series shall be made in the manner set forth in
the related Supplement.
Section 4.6 [Reserved]
Section 4.7 Defaulted Receivables. On each day speci-
fied in the Supplement related to any Series, the Master Servicer
shall calculate the Investor Default Amount and Investor Charge-
Offs with respect to the related Series, and the Invested Amount
of such Series shall be reduced by the applicable Investor
Charge-Offs.
Section 4.8 Partial Optional Redemption or Sales to
Non-Affiliates. (a) Within ninety days after the date upon
which any Designated Subsidiary has sold all or substantially all
its assets, or Eagle Industrial has sold all of the stock held by
it in any Designated Subsidiary or a portion of such stock which
would cause such Designated Subsidiary to not be a Designated
Subsidiary thereafter, the Transferor, at the direction of the
Master Servicer, may cause the Trustee to partially redeem the
Series 1994-1 Certificates, on a pro rata basis, and to pay to
the holders of such Certificates a percentage of the Invested
Amount which will be no greater than the percentage of the aggre-
gate Unpaid Balance of Adjusted Eligible Receivables existing in
the Trust that were originated by such Designated Subsidiary as
of the last day of the Settlement Period immediately preceding
the date of such redemption; provided, however, that no such re-
demption shall be permitted unless immediately after such redemp-
tion the Transferor is not in default under any terms of the
Agreement and no Event of Termination shall occur because of such
redemption.
(b) Concurrently with the sale by an Designated
Subsidiary of all or substantially all its assets or a sale by
Eagle Industrial of all of the stock held by it in any Designated
Subsidiary or a portion of such stock which would cause such
Designated Subsidiary to not be a Designated Subsidiary there-
after, the Trustee may sell all or a portion of the Receivables
originated by such Designated Subsidiary and included in Trust
Assets at such time to the purchaser of such assets or stock for
cash in an amount not less than the purchase price which would be
paid to Eagle Industrial by the Transferor if such Receivables
were sold by Eagle Industrial to the Transferor pursuant to the
43
51
Contribution and Sale Agreement at such time; provided, however,
that no such purchaser shall be an Affiliate of such Designated
Subsidiary. The Trustee shall treat all proceeds of such sale of
Receivables as Collections. The Master Servicer, the Transferor
and each Certificateholder by acceptance of any Certificate
hereby consent to and approve any sale of Receivables by the
Trustee in accordance with the previous sentence and agree that
any such sale (or refusal to sell) shall in no event constitute a
breach of the Trustee's duties hereunder or under any applicable
law.
Section 4.9 Misdirected Payments. In the event that
the Master Servicer notifies the Trustee in writing that the
Trustee or any Lock-Box Account, the Collection Account, the
Excess Funding Account or any other account maintained for the
benefit of Certificateholders has received amounts in respect of
payments made by any Person on an account receivable or other
obligation which has not been transferred to the Trust; and with
respect to amounts in excess of $50,000 an explanation of the
circumstances leading to such deposit, the Trustee shall, as soon
as practicable and as instructed in the most recently delivered
Daily Report or Determination Date Statement, forward such
amounts, in the manner specified in writing by Eagle Industrial,
to Eagle Industrial or such other Person as Eagle Industrial
designates and, pending the forwarding of such amounts, hold such
amounts in trust for Eagle Industrial or such other Person
designated by Eagle Industrial. The Trustee will, if requested
in writing by Eagle Industrial, acknowledge and confirm the
foregoing to any Person designated by Eagle Industrial. In the
absence of such instructions, all such payments shall be deemed
to relate to, and be received with respect to, Receivables. Upon
each outstanding Series having entered into its respective
Amortization Period, Receivables shall no longer be transferred
by the Designated Subsidiaries to Eagle Industrial, by Eagle
Industrial to the Transferor or the Transferor to the Trustee,
and any Collections received on any Receivables originated during
the continuance of such Event of Termination, (i) shall not
belong to the Trustee or any Investor Certificateholder, (ii) if
received by the Trustee or any account which it controls shall be
held in trust for the Originator or other party entitled thereto,
and (iii) shall be paid to the Originator or other party entitled
thereto as soon as is practicable.
[END OF ARTICLE IV]
44
52
ARTICLE V
DISTRIBUTIONS AND REPORTS TO
CERTIFICATEHOLDERS
Section 5.1 Distributions. On each Payment Date, the
Paying Agent shall distribute (in accordance with the Determina-
tion Date Statement delivered by the Master Servicer to the
Trustee on the preceding Determination Date pursuant to Section
3.4(c)) to each Investor Certificateholder of record of any
Series on the preceding Record Date (other than as provided in
Section 12.3(b) hereof respectying a final distribution) such
Certificateholder's pro rata share (based on the aggregate
Undivided Interests represented by Investor Certificates of such
Series held by such Certificateholder) of amounts on deposit in
the Collection Account as are payable to the Investor Certifi-
cateholders of such Series pursuant to Sections 4.4 and 4.5.
Such distribution shall be made by check mailed to each Certifi-
cateholder or, if so stated in any Supplement, by wire transfer
to each Certificateholder so qualified as stated therein, except
that if all Investor Certificates are registered in the name of
CEDE & Co., the nominee registrar for The Depository Trust
Company, such distribution to Investor Certificateholders shall
be made in immediately available funds to The Depository Trust
Company. All payments on account of principal and interest to
Certificateholders shall be made from amounts on deposit in the
Collection Account.
Section 5.2 Monthly Investor Certificateholders'
Statement; Annual Tax Statement.
(a) Not later than one Business Day after each
Payment Date, the Trustee shall deliver to each Investor
Certificateholder a copy of the Determination Date Statement and
Principal Payment Statement delivered by the Master Servicer to
the Trustee pursuant to Section 3.4(c) and (d).
(b) Annual Certificateholders' Tax Statement. On
or before the date required by law, beginning with calendar year
1995, the Paying Agent, on behalf of the Trustee and the Trans-
feror shall furnish or cause to be furnished to each Person who
at any time during the preceding calendar year was a Certifi-
cateholder, a statement prepared by the Master Servicer contain-
ing the information contained in each Determination Date
Statement, aggregated for such calendar year, together with such
other information as is required to be provided by an issuer of
indebtedness under the Code for such calendar year, together with
such other customary information as the Master Servicer deems
necessary or desirable to enable the Certificateholders to pre-
pare their tax returns. Such obligation of the Paying Agent
45
53
shall be deemed to have been satisfied to the extent that sub-
stantially comparable information shall be provided by the Paying
Agent pursuant to this Agreement or to any requirements of the
Code as from time to time in effect.
[END OF ARTICLE V]
46
54
ARTICLE VI
THE CERTIFICATES
Section 6.1 The Certificates. The Investor Certifi-
cates of each Series shall be substantially in the form of the
exhibits with respect thereto attached to the related Supplement.
The Transferor Certificate shall be substantially in the form of
Exhibit A hereto. The Transferor Certificate and any Investor
Certificates shall, upon issuance pursuant to this Article VI be
executed and delivered by the Transferor to the Trustee for
authentication and redelivery as provided in Section 6.2. Inves-
tor Certificates shall be issued in the minimum denominations
indicated in the related Supplement. The Transferor Certificate
shall initially be issued to the Transferor. Each Certificate
shall be executed by manual or facsimile signature on behalf of
the Transferor by any of its Chairman of the Board, its Vice
Chairman of the Board, its President or any Vice President.
Certificates bearing the manual or facsimile signature of the
individual who was, at the time when such signature was affixed,
authorized to sign on behalf of the Transferor or the Trustee
shall not be rendered invalid, notwithstanding that such indivi-
dual has ceased to be so authorized prior to the authentication
and delivery of such Certificates or does not hold such office at
the date of such Certificates. No Certificate shall be entitled
to any benefit under this Agreement or any applicable Supplement,
or be valid for any purpose, unless there appears on such Certif-
icate a certificate of authentication substantially in the form
provided for in a form of Certificate attached as an exhibit to
the applicable Supplement or in the form provided for in Section
6.8 executed by or on behalf of the Trustee by the manual or
facsimile signature of a duly authorized signatory, and such
certificate upon any Certificate shall be conclusive evidence,
and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be
dated the date of their authentication.
Section 6.2 Authentication of Certificates.
Contemporaneously with the assignment and transfer of the
Receivables to the Trustee on a Closing Date, the Trustee shall
authenticate and deliver the Transferor Certificate to the
Transferor and, upon the execution of any Supplement and the
satisfaction of the conditions provided in Section 6.9, shall
authenticate and deliver the Series of Investor Certificates to
be issued thereunder as provided in Section 6.9. The Certifi-
cates of each Series shall be duly authenticated by or on behalf
of the Trustee as provided for herein and in the applicable
Supplement, in authorized denominations equal to (in the aggre-
gate) the Initial Invested Amount of such Series specified in
such Supplement. As provided in any Supplement, Investor
47
55
Certificates of any Series may be issued and sold pursuant to an
effective registration statement under the Securities Act, or
pursuant to an exemption therefrom. In such former case, such
Series of Certificates may be delivered in book-entry form as
provided in Sections 6.11 and 6.12 and, in the latter case, may
not be so delivered. Further, if any such Series is sold pursu-
ant to an exemption from registration under the Securities Act
pursuant to Section 4(2) of the Securities Act or its substantial
equivalent (the "Private Placement Exemption") as stated in the
applicable Supplement, the Certificates of such Series may only
be transferred as provided in Section 6.3(e).
Section 6.3 Registration of Transfer and Exchange of
Certificates.
(a) The Trustee shall cause to be kept at the
office or agency to be maintained by a transfer agent and regis-
trar (which may be the Trustee) (the "Transfer Agent and
Registrar") in accordance with the provisions of subsection
6.3(d) a register (the "Certificate Register") in which, subject
to such regulations as it may reasonably prescribe, the Transfer
Agent and Registrar shall provide for the registration of each
Series of the Investor Certificates and the Transferor Certifi-
cate and of transfers and exchanges of such Certificates as
herein provided. The Trustee is hereby initially appointed
Transfer Agent and Registrar for the purpose of registering each
Series of Investor Certificates and the Transferor Certificate
and of registering transfers and exchanges of the Investor
Certificates and the Transferor Certificate as herein provided.
The Trustee shall be permitted to resign as Transfer Agent and
Registrar upon 30 days' written notice to the Transferor and the
Master Servicer; provided, however, that such resignation shall
not be effective and the Trustee shall continue to perform its
duties as Transfer Agent and Registrar until the Master Servicer
has appointed a successor Transfer Agent and Registrar acceptable
to the Transferor. The Trustee shall initially register the
Transferor Certificate in the name of the Transferor.
Upon surrender for registration of transfer of any
Investor Certificate of a Series at any office or agency of the
Transfer Agent and Registrar maintained for such purpose, the
Transferor shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees,
one or more new Investor Certificates of such Series in author-
ized denominations of like aggregate Undivided Interests;
provided, however, that any Investor Certificate of any Series
transferred pursuant to the Private Placement Exemption shall
satisfy the conditions provided in Section 6.3(e) prior to
registration of such transfer.
48
56
At the option of an Investor Certificateholder,
Investor Certificates of a Series may be exchanged for other
Investor Certificates of such Series of authorized denominations
of like aggregate Undivided Interests, upon surrender of the
Investor Certificates to be exchanged at any office or agency of
the Transfer Agent and Registrar maintained for such purpose.
Whenever any Investor Certificates are so surrendered for ex-
change, the Transferor shall execute, and the Trustee shall
authenticate and deliver, the Investor Certificates which the
Investor Certificateholder making the exchange is entitled to
receive. Every Investor Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a
written instrument of transfer in a form satisfactory to the
Trustee and the Transfer Agent and Registrar duly executed by the
Certificateholder thereof or his attorney duly authorized in
writing.
No service charge shall be made for any registration of
transfer or exchange of Investor Certificates, but the Transfer
Agent and Registrar may require payment of a sum sufficient to
cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Investor Certifi-
cates.
All Investor Certificates surrendered for registration
of transfer or exchange shall be cancelled by the Transfer Agent
and Registrar and disposed of in a manner satisfactory to the
Trustee.
It is intended that the registration of Certificates
which is described in this Section 6.3(a) comply with the regis-
tration requirements contained in Section 163 of the Code.
(b) Except as provided in Sections 6.9 and 7.2
hereof, neither the Transferor Certificate nor any interest
represented thereby shall be sold, transferred, assigned,
exchanged, participated, pledged or otherwise conveyed unless (A)
such sale, transfer, assignment, exchange, participation, pledge
or conveyance would not reduce the Transferor Amount below the
Minimum Transferor Amount, (B) the Trustee shall have received
(i) an Opinion of Counsel addressed to the Trustee to the effect
that such sale, transfer, assignment, exchange, participation,
pledge or conveyance will not adversely affect the status of any
Series of Investor Certificates as debt for Federal and applica-
ble state income tax purposes, (ii) the written consent of
Investor Certificateholders having Undivided Interests aggregat-
ing more than 50% of the Aggregate Invested Amount and (iii) an
agreement by the buyer, transferee, assignee, counterparty to
exchange, participant, pledgee or recipient of conveyance that,
prior to the date which is one year and one day after the payment
49
57
in full of all Invested Amounts, it will not institute against or
join any other Person in instituting against the Transferor any
bankruptcy, reorganization, arrangement, insolvency or liquida-
tion proceedings or other similar proceeding under the laws of
the United States or any state of the United States and (C) the
Rating Agencies shall have received notice of such sale, trans-
fer, assignment, exchange, participation, pledge or conveyance.
(c) [Reserved]
(d) The Transfer Agent and Registrar will main-
tain at its expense in Chicago, Illinois or such other location
as may be specified in any Supplement, an office or offices or
agency or agencies where Certificates may be surrendered for
registration of transfer or exchange.
(e) Until such time as the Trustee shall receive
an Officer's Certificate of the Transferor certifying that a
Series of Investor Certificates has been registered under the
Securities Act and qualified under all applicable state securi-
ties laws, neither the Trustee nor the Transfer Agent and Regis-
trar shall register a transfer of any Investor Certificates of
such Series or any interest therein unless such transfer is to be
made in a transaction that does not require such registration or
qualification. Until such time as such Series of Investor Cer-
tificates shall be registered pursuant to a registration state-
ment filed under the Securities Act, such Series of Investor
Certificates shall bear a legend to the effect set forth in the
preceding sentence. In the event that registration of a transfer
is to be made in reliance upon Rule 144A under the Securities Act
("Rule 144A"), the Trustee shall require, in order to assure
compliance with Rule 144A, that the transferor deliver a notice
of certification substantially in the form of Exhibit I hereto to
the Trustee which notice shall specify, inter alia, that the
transferor reasonably believes that the transferee is a
"qualified institutional buyer" as defined in Rule 144A. If
registration of the transfer of any Investor Certificate is in
reliance upon an exemption to the Securities Act other than Rule
144A, the Trustee shall require, in order to assure compliance
with the Securities Act, that the transferee deliver a certifica-
tion (in substantially the form of Exhibit J hereto) that such
transferee is an institutional "accredited investor" within the
meaning of paragraph (1), (2), (3) or (7) of Rule 501(a) under
the Securities Act and that such transfer may be made pursuant to
an exemption from the Securities Act and applicable state securi-
ties laws and as to certain other matters. Such certification
shall be delivered to the Trustee and the Transferor prior to or
contemporaneously with any such transfer. Neither the Transferor
nor the Trustee shall be obligated to register any Series of
Investor Certificates under any state securities laws or under
50
58
the Securities Act or to take any other action not otherwise
required under this Agreement to permit the transfer of such
Series without registration.
Notwithstanding anything to the contrary contained
herein, in no event shall an Investor Certificate of any Series
which is not sold pursuant to an effective registration statement
under the Securities Act and intended to be sold to more than 100
Persons, as evidenced by disclosure in the disclosure document
with respect thereto or any interest therein, be transferred to
an employee benefit plan, trust or account subject to ERISA, or
described in Section 4975(e)(1) of the Code or an entity whose
underlying assets include plan assets by reason of an investment
in the entity by such a plan, trust or account. Each Holder of
an Investor Certificate of any such Series, by its acceptance
thereof, represents and warrants that it is not (i) an employee
benefit plan (as defined in Section 3(3) of ERISA) that is sub-
ject to the provisions of Title I of ERISA, (ii) a plan described
in Section 4975(e)(1) of the Code or (iii) an entity whose under-
lying assets include plan assets by reason of a plan's investment
in the entity. The Transfer Agent and Registrar shall not be
responsible for confirming or otherwise investigating whether a
proposed transferee is an employee benefit plan, trust or account
subject to ERISA, or described in Section 4975(e)(1) of the Code,
and may conclusively rely upon the foregoing representation and
warranty.
Section 6.4 Mutilated, Destroyed, Lost or Stolen
Certificates. If (a) any mutilated Certificate is surrendered to
the Transfer Agent and Registrar, or the Transfer Agent and
Registrar receives evidence to its satisfaction of the destruc-
tion, loss or theft of any such Certificate and (b) there is
delivered to the Transfer Agent and Registrar, the Trustee and
the Transferor such security or indemnity as may be required by
them to save each of them harmless, then, in the absence of
notice to the Trustee that such Certificate has been acquired by
a bona fide purchaser, the Transferor shall execute and the
Trustee shall authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Certifi-
cate, a new Certificate of like tenor and aggregate Undivided
Interest, if applicable; provided, however, that any written
statement of indemnity provided by the related Investor
Certificateholder shall meet the requirements of this Section
6.4. In connection with the issuance of any new Certificate
under this Section 6.4, the Trustee or the Transfer Agent and
Registrar may require the payment by the Certificateholder of a
sum sufficient to cover any tax or other expenses connected
therewith. Any duplicate Certificate issued pursuant to this
Section 6.4 shall constitute complete and indefeasible evidence
of ownership in the Trust Assets, as if originally issued,
51
59
whether or not the lost, stolen or destroyed Certificate shall be
found at any time.
Section 6.5 Persons Deemed Owners. Prior to due
presentation of a Certificate for registration of transfer, the
Trustee, the Paying Agent, the Transfer Agent and Registrar and
any agent of any of them may treat the Person in whose name any
Certificate is registered as the owner of such Certificate for
the purpose of receiving distributions pursuant to Section 5.1
and for all other purposes whatsoever, and neither the Trustee,
the Paying Agent, the Transfer Agent and Registrar nor any agent
of any of them shall be affected by any notice to the contrary;
provided, however, that in determining whether the Holders of the
requisite Undivided Interests have given any request, demand,
authorization, direction, notice, consent or waiver hereunder,
Certificates owned by the Transferor, the Master Servicer or any
affiliate (as defined in Rule 405 under the Securities Act)
thereof, shall be disregarded and deemed not to be outstanding,
except that, in determining whether the Trustee shall be pro-
tected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Certificates which a
Responsible Officer of the Trustee knows to be so owned shall be
so disregarded. Certificates so owned which have been pledged in
good faith shall not be disregarded and may be regarded as out-
standing if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such
Certificates and that the pledgee is not the Transferor, the
Master Servicer or an affiliate (as defined above) thereof.
Section 6.6 Appointment of Paying Agent. The Paying
Agent shall have a long-term debt rating of at least "BBB" or the
equivalent by each applicable Rating Agency, and if not so rated,
each applicable Rating Agency shall confirm in writing that the
lack of such rating will not result in such Rating Agency
reducing or withdrawing its respective rating on any outstanding
Series, and, in any case, shall be a depositary institution
organized under the laws of the United States or any one of the
states thereof, including the District of Columbia. The Paying
Agent shall make distributions to Certificateholders from the
Collection Account, any Principal Funding Account and any Excess
Funding Account pursuant to Section 5.1. Any Paying Agent shall
have the revocable power to withdraw funds from the Collection
Account, any Principal Funding Account and any Excess Funding
Account for the purpose of making distributions referred to
above. The Trustee may revoke such power and remove any Paying
Agent if the Trustee determines in its sole discretion that the
Paying Agent shall have failed to perform its obligations under
this Agreement in any material respect. The Paying Agent shall
initially be the Trustee. The Paying Agent shall be permitted to
resign as Paying Agent upon 30 days' written notice to the
52
60
Trustee, the Master Servicer and the Transferor; provided,
however, that such resignation shall not be effective and the
Paying Agent shall continue to perform its duties until the
Trustee has appointed, and such appointment has been accepted by,
a successor Paying Agent. The Trustee shall cause the resigning
Paying Agent and each successor Paying Agent to execute and
deliver to the Trustee an instrument in which such resigning or
successor Paying Agent shall agree with the Trustee that, as
Paying Agent, such resigning or successor Paying Agent will hold
all sums, if any, held by it for payment to the Certificate-
holders in trust for the benefit of the Certificateholders
entitled thereto until such sums shall be paid to such Certifi-
cateholders. The Paying Agent shall return all unclaimed funds
relating to this Agreement to the Trustee and upon removal shall
also return all funds relating to this Agreement in its posses-
sion to the Trustee. The provisions of Sections 11.1, 11.2 and
11.3 shall apply to the Trustee in its role as Paying Agent.
Section 6.7 Access to List of Certificateholders'
Names and Addresses. The Trustee shall furnish any Investor
Certificateholder with a written list of the names and addresses
of the Investor Certificateholders appearing on the Certificate
Register without any charge or fee and within five Business Days
of receipt of such Investor Certificateholder's request therefor.
Section 6.8 Authenticating Agent.
(a) The Trustee may appoint one or more authen-
ticating agents with respect to the Certificates which shall be
authorized to act on behalf of the Trustee in authenticating the
Certificates in connection with the issuance, delivery, registra-
tion of transfer, exchange or repayment of the Certificates.
Whenever reference is made in this Agreement to the authentica-
tion of Certificates by the Trustee or the Trustee's certificate
of authentication, such reference shall be deemed to include
authentication on behalf of the Trustee by an authenticating
agent and a certificate of authentication executed on behalf of
the Trustee by an authenticating agent. Each authenticating
agent must be acceptable to the Transferor.
(b) Any institution succeeding to all or substan-
tially all of the corporate agency business of an authenticating
agent shall continue to be an authenticating agent without the
execution or filing of any paper or any further act on the part
of the Trustee or such authenticating agent.
(c) An authenticating agent may at any time
resign by giving written notice of resignation to the Trustee and
to the Transferor. The Trustee may at any time terminate the
agency of an authenticating agent by giving notice of termination
53
61
to such authenticating agent and to the Transferor. Upon receiv-
ing such a notice of resignation or upon such a termination, or
in case at any time an authenticating agent shall cease to be
acceptable to the Trustee or the Transferor, the Trustee promptly
may appoint a successor authenticating agent. Any successor
authenticating agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as
an authenticating agent. No successor authenticating agent shall
be appointed unless acceptable to the Trustee and the Transferor.
(d) The Master Servicer agrees to pay, on behalf
of the Trust, to each authenticating agent from time to time
reasonable compensation for its services under this Section 6.8.
(e) The provisions of Sections 11.1, 11.2 and
11.3 shall be applicable to any authenticating agent.
(f) Pursuant to an appointment made under this
Section 6.8, the Certificates may have endorsed thereon, in lieu
of the Trustee's certificate of authentication, an alternate
certificate of authentication in substantially the following
form:
This is one of the Certificates described in the
Pooling and Servicing Agreement.
________________, as Trustee
by
______________________________,
as Authenticating Agent
for the Trustee
by
______________________________
Authorized Officer
54
62
Section 6.9 Delivery of Additional Series of Investor
Certificates.
(a) Upon delivery to the Trustee of an Officer's
Certificate of the Transferor (a) requesting the authentication
of a new Series of Investor Certificates and (b) stating the date
upon which such Series is to be issued (such date, the "Issuance
Date" and such notice, the "Issuance Notice") and certifying the
satisfaction of the conditions stated in this Section and Section
6.1, the Trustee shall, subject to Section 6.9(b), authenticate
pursuant to Section 6.2 and deliver to or upon the order of the
Transferor on such Issuance Date such new Series of Investor
Certificates; provided, however, that each Rating Agency shall
have confirmed in writing that the issuance of such new Series of
Investor Certificates, other than the Series 1994-2 Certificates
(if the Series 1994-2 Certificates are issued within ninety days
of the Initial Closing Date), will not result in such Rating
Agency reducing or withdrawing its original rating on any
outstanding Series or class of Certificates. Any such Series of
Investor Certificates shall be substantially in the form of the
exhibit attached to the applicable Supplement and shall bear,
upon its face, the designation for such Series to which it
belongs so selected by the Transferor and set forth in the
related Supplement. Unless otherwise specified in the related
Supplement, the Investor Certificates of any Series shall be
issued in definitive physical form (and not as Book-Entry
Certificates). All Investor Certificates of any Series shall be
identical in all respects except for the denominations thereof
and shall be equally and ratably entitled among themselves as
provided herein to the benefits of this Agreement and any
Supplement thereof without preference, priority or distinction on
account of the actual time or times of authentication and
delivery, all in accordance with the terms and provisions of this
Agreement and such Supplement. No new Series of Investor
Certificates issued pursuant to the provisions of this Section
shall adversely affect the method of allocating Imputed Yield
Collections or Principal Collections of any other Series of
Certificates for any period over which such Series shall be
outstanding.
(b) On the Issuance Date, the Trustee shall
authenticate and deliver any such new Series upon delivery to it
of the following: (i) a Supplement in form reasonably satisfac-
tory to the Trustee executed by the Transferor, the Trustee and
the Master Servicer and specifying the items provided in Section
6.9(c) (the "Principal Terms"), (ii) an Opinion of Counsel to the
effect that (x) the newly issued Series will be treated as debt
for Federal and applicable state income tax purposes under exist-
ing law and will not adversely affect the status of any Series of
Investor Certificates as debt for Federal and applicable state
55
63
income tax purposes, and (y) will not cause the Trust to be
taxable as a corporation or as a separate entity under Federal or
applicable state tax laws, (iii) except with respect to the ini-
tial Series and the Series 1994-2, issued pursuant to the initial
Supplement and the Series 1994-2 Supplement, written confirmation
from each Rating Agency that the issuance of such new Series will
not result in the Rating Agency's reducing or withdrawing its
original rating on any then outstanding Series or class of Cer-
tificates rated by it, and (iv) such other closing documents,
certificates and Opinions of Counsel as may be required by the
applicable Supplement. Notwithstanding the foregoing, the
Trustee shall not authenticate and deliver any new Series here-
under unless it also receives on or prior to the Issuance Date,
an Officer's Certificate of the Transferor stating: (a) the size
of the Transferor Amount prior to such issuance, (b) the Initial
Invested Amount of the new Series, which, except with respect to
the initial Series issued pursuant to the initial Supplement,
shall be less than the amount given in clause (a), and (c) the
size of the Transferor Amount and the Minimum Transferor Amount
after giving effect to such issuance.
(c) The Principal Terms of any Series shall con-
sist of: (i) with respect to any Series, the name or designation
of the Series, (ii) the Initial Invested Amount thereof, (iii)
the Certificate Rate of such Series (or the formula for the
determination thereof, which may provide that such rate is a
floating rate) in the case of the issuance of a Series of Inves-
tor Certificates, (iv) the method of allocating Collections with
respect to Receivables for such Series, (v) the Series
Termination Date, (vi) the Repurchase Terms, if any, and (vii)
the scheduled Amortization Period Commencement Date.
(d) Any Supplement relating to an additional
Series may define or make provision with respect to the Series to
be issued pursuant thereto for: (i) the establishment of one or
more accounts held at an Eligible Institution for holding
Collections on the Receivables as specified in the Supplement or
for other purposes specified therein, (ii) the deposit of funds
into any such accounts, (iii) the use of a guaranteed investment
contract, surety bond, interest rate protection, swap or other
similar agreement with respect to the Series, (iv) any evergreen
or other extension feature with respect to the Series, (v) any
amendments or modifications of any Events of Termination relating
to such Series, and (vi) such other provisions which the
Transferor may, in its sole discretion, wish to incorporate which
do not affect or alter the provisions of this Agreement, or any
Supplement, applicable to any other then outstanding Series or
class of Certificates and which shall be acceptable to the
Trustee insofar as they affect the rights, duties and obligations
of the Trustee hereunder or under any such Supplement.
56
64
Section 6.10 [Reserved]
Section 6.11 Book-Entry Certificates. If provided in
any Supplement, the Investor Certificates of any Series, upon
original issuance, will be issued in the form of one or more
typewritten Certificates representing the Book-Entry Certifi-
cates, to be delivered to The Depository Trust Company, the
initial Clearing Agency, by, or on behalf of, the Transferor.
The Investor Certificates of such Series shall initially be
registered on the Certificate Register in the name of CEDE & Co.,
the nominee of The Depository Trust Company, which shall be the
initial Clearing Agency, and no Certificate Owner will receive a
definitive certificate representing such Certificate Owner's
interest in the Investor Certificates, except as provided in
Section 6.13. Unless and until definitive, fully registered
Investor Certificates (the "Definitive Certificates") have been
issued to Certificate Owners in respect of a particular Series
pursuant to Section 6.13:
(i) the Transferor, the Master Servicer, the
Paying Agent, the Transfer Agent and Registrar and the
Trustee may deal with the Clearing Agency and the Clearing
Agency Participants for all purposes (including the making
of distributions on the Investor Certificates) as the
authorized representatives of such Certificate Owners;
(ii) to the extent that the provisions of
this Section 6.11 conflict with any other provisions of this
Agreement, the provisions of this Section 6.11 shall
control; and
(iii) the rights of such Certificate Owners
shall be exercised only through the Clearing Agency and the
Clearing Agency Participants and shall be limited to those
established by law and agreements between such Certificate
Owners and the Clearing Agency and/or the Clearing Agency
Participants. The Trustee shall be authorized to enter into
a depositary agreement with the Transferor and the initial
Clearing Agency in connection with the delivery of
Certificates to such Clearing Agency (a "Letter of
Representations"), which Letter of Representations shall be
the governing document with respect to any agreement with
such Clearing Agency, unless and until Definitive Certifi-
cates are issued pursuant to Section 6.13, the initial
Clearing Agency will make book-entry transfers among the
Clearing Agency Participants and receive and transmit dis-
tributions of principal and interest on the Investor Certif-
icates to such Clearing Agency Participants.
57
65
Section 6.12 Notices to Clearing Agency. Whenever
notice or other communication to the Investor Certificateholders
of any Series delivered as provided in Section 6.11 is required
under this Agreement, unless and until Definitive Certificates
shall have been issued to Certificate Owners pursuant to Section
6.13, the Trustee, the Master Servicer and the Paying Agent shall
give all such notices and communications specified herein to be
given to Holders of the Investor Certificates of such Series to
the Clearing Agency.
Section 6.13 Definitive Certificates. If (i)(A) the
Transferor advises the Trustee in writing that the Clearing
Agency is no longer willing or able to properly discharge its
responsibilities under any Letter of Representations, and (B) the
Transferor is unable to locate a qualified successor, (ii) the
Transferor, at its option, advises the Trustee in writing that,
with respect to any Series, it elects to terminate the book-entry
system through the Clearing Agency or (iii) after the occurrence
of a Master Servicer Default representing Undivided Interests
aggregating not less than 50% of the Invested Amount of such
Series advise the Trustee and the Clearing Agency through the
Clearing Agency Participants in writing that the continuation of
a book-entry system through the Clearing Agency is no longer in
the best interests of the Certificate Owners of such Series, the
Trustee shall notify the Clearing Agency of the occurrence of any
such event and of the availability of Definitive Certificates of
such Series to Certificate Owners of such Series requesting the
same. Upon surrender to the Trustee of the Investor Certificates
of such Series by the Clearing Agency, accompanied by registra-
tion instructions from such Clearing Agency for registration, the
Trustee shall authenticate and deliver Definitive Certificates of
such Series to the applicable Investor Certificateholders named
in such registration instructions. Neither the Transferor, the
Transfer Agent and Registrar nor the Trustee shall be liable for
any delay in delivery of such instructions and may conclusively
rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates of any Series, all
references herein to obligations with respect to such Series
imposed upon or to be performed by the Clearing Agency shall be
deemed to be imposed upon and performed by the Trustee, to the
extent applicable with respect to such Definitive Certificates
and the Trustee shall recognize the Holders of the Definitive
Certificates as Certificateholders hereunder.
[END OF ARTICLE VI]
58
66
ARTICLE VII
OTHER MATTERS RELATING
TO THE TRANSFEROR
Section 7.1 Liability of the Transferor. The Trans-
feror shall be liable for each obligation, covenant, representa-
tion and warranty of the Transferor arising under or related to
this Agreement or any Supplement and shall be liable only to such
extent.
Section 7.2 Merger or Consolidation of, or Assumption
of the Obligations of, the Transferor.
(a) The Transferor shall not consolidate with or
merge into any other corporation or convey or transfer its prop-
erties and assets substantially as an entirety to any Person
unless:
(i) the corporation formed by such consoli-
dation or into which the Transferor is merged or the Person
which acquires by conveyance or transfer the properties and
assets of the Transferor substantially as an entirety shall
be, if the Transferor is not the surviving entity, organized
and existing under the laws of the United States of America
or any state or the District of Columbia, and, if the Trans-
feror is not the surviving entity, shall expressly assume,
by an agreement supplemental hereto, executed and delivered
to the Trustee, in form satisfactory to the Trustee, the
performance of every covenant and obligation of the Trans-
feror in this Agreement, any Supplement, the Contribution
and Sale Agreement and such entity's articles or certificate
of incorporation shall limit its business activities to
activities substantially similar to the business activities
of the Transferor; and the Transferor shall have delivered
to the Trustee an Officer's Certificate of the Transferor
and an Opinion of Counsel, each stating that such consolida-
tion, merger, conveyance or transfer and such supplemental
agreement comply with this Section 7.2 and that all condi-
tions precedent herein provided for relating to such trans-
action have been complied with and, in the case of the
Opinion of Counsel, that such supplemental agreement is the
legal, valid and binding obligation of the parties (other
than the Trustee) thereto;
(ii) each Rating Agency shall have confirmed
in writing that the rating of any outstanding Series by such
Rating Agency will not be reduced or withdrawn; and
59
67
(iii) The Holders of Investor Certificates
representing not less than 51% of the aggregate of the
Invested Amount of all Series shall have consented thereto
in writing.
(b) The obligations of the Transferor hereunder
shall not be assignable nor shall any Person succeed to the
obligations of the Transferor hereunder except in each case in
accordance with the provisions of Section 7.2(a).
Section 7.3 Limitation on Liability of the Transferor.
Subject to Sections 7.1 and 7.4 with respect to the Transferor,
and except as specifically provided herein or in any Supplement,
neither the Transferor nor any of the directors or officers or
employees or (subject to the proviso in the last sentence of
Section 2.4(c) above) Affiliates or agents of the Transferor
shall be under any liability to the Trust, the Trustee, the
Certificateholders or any other Person for taking any action or
for refraining from taking any action pursuant to this Agreement
(including any Supplement) whether arising from express or im-
plied duties under this Agreement (including any Supplement) or
otherwise; provided, however, that this provision shall not
protect the Transferor or any such Person against any liability
which would otherwise be imposed by reason of willful misfea-
sance, bad faith or gross negligence in the performance of duties
or by reason of reckless disregard of obligations and duties
hereunder. The Transferor and any director or officer or em-
ployee or Affiliate or agent of the Transferor may rely in good
faith on any document of any kind prima facie properly executed
and submitted by any Person respecting any matters arising here-
under. Each of the Trustee and the Master Servicer agrees that
the obligations of the Transferor to the Trustee, the Master
Servicer, the Certificateholders and the Trust hereunder, includ-
ing without limitation the obligation of the Transferor in
respect of indemnities pursuant to Section 7.4 hereof, shall
(subject to the proviso in the last sentence of Section 2.4(c)
above) be payable from the Trust Assets (and, solely with respect
to the payment of interest and repayment of principal under the
Certificates, solely from the Trust Assets) in accordance with
the provisions of this Agreement and any Supplement or such other
assets of the Transferor as may be available; provided that such
obligations (other than in respect of principal and interest on
the Certificates) shall be suspended at any time solely to the
extent that, and for so long as, the Transferor's assets are
insufficient to pay in full such obligations; and provided,
further, that such obligations (other than in respect of princi-
pal and interest on the Certificates) are fully subordinated to
the Transferor's obligations with respect to the payment of in-
terest and principal under the Certificates, and the security
interest of the Trustee in the Trust Assets with respect to such
60
68
interest and principal obligations. The provisions of this
Section shall survive termination of this Agreement and termina-
tion of the Trust.
Section 7.4 Liabilities. By entering into this
Agreement, the Transferor as holder of the Transferor Certifi-
cate, which may not be transferred except as provided in Section
6.3(b), Section 6.9 or Section 7.2, agrees to pay, indemnify and
hold harmless (a) each Investor Certificateholder, in accordance
with the provisions of this Agreement and any Supplement or from
such other assets of the Transferor as may be available, (and,
solely with respect to the payment of interest and the repayment
of principal under the Certificates, solely from the Trust
Assets) and (b) any other injured party against and from any and
all losses, claims, damages or liabilities (other than those
incurred by a Certificateholder in the Investor Certificates of
any Series as a result of defaults or other losses (including,
without limitation, Investor Charge-Offs with respect to the
Receivables) suffered by such Certificateholders or other party
arising out of or based on the arrangements created by this
Agreement or any Supplement as though this Agreement and each
Supplement created a partnership among the Transferor and the
Certificateholders under the Uniform Partnership Act in effect in
the State of Illinois in which the Transferor is a general part-
ner, except to the extent that such losses, claims, damages or
liabilities arise from any action by such Investor Certificate-
holder causing such losses, claims, damages or liabilities;
provided, however, that such obligations under this Section 7.4
other than in respect of principal and interest on the Certifi-
cates are fully subordinated to the Transferor's obligations with
respect to the payment of interest and principal under the Cer-
tificates and to the security interest of the Trustee in the
Trust Assets with respect to such interest and principal obliga-
tions, and provided, further, that the obligations under this
Section 7.4 shall be payable only from the assets of the Trans-
feror at the time such liability is asserted and at any time
thereafter and not from the assets of any director, officer,
employee, agent or Affiliate of the Transferor.
[END OF ARTICLE VII]
61
69
ARTICLE VIII
OTHER MATTERS RELATING
TO THE MASTER SERVICER
Section 8.1 Liability of the Master Servicer. The
Master Servicer shall be liable under this Agreement only to the
extent of the obligations specifically undertaken by the Master
Servicer in its capacity as Master Servicer.
Section 8.2 Merger or Consolidation of, or Assumption
of the Obligations of, Eagle Industrial as Master Servicer.
Eagle Industrial, for so long as it is the Master Servicer, shall
not consolidate with or merge into any other corporation or con-
vey or transfer its properties and assets substantially as an
entirety to any Person, unless:
(i) the corporation formed by such consoli-
dation or into which Eagle Industrial is merged or the
Person which acquires by conveyance or transfer the proper-
ties and assets of Eagle Industrial substantially as an
entirety shall be a corporation organized and existing under
the laws of the United States of America or any State or the
District of Columbia, and, if Eagle Industrial is not the
surviving entity, such corporation shall qualify as an
Eligible Master Servicer and shall expressly assume, by an
agreement supplemental hereto executed and delivered to the
Trustee in a form satisfactory to the Trustee, the perfor-
mance of every covenant and obligation of Eagle Industrial
as Master Servicer in this Agreement, any Supplement, the
Sale and Servicing Agreement and the Contribution and Sale
Agreement;
(ii) Eagle Industrial has delivered notice of
such consolidation, merger, transfer or conveyance to the
Rating Agencies and received written confirmation from each
Rating Agency that such action will not result in the with-
drawal or downgrade of the original rating of any outstand-
ing Series; and
(iii) the Master Servicer has delivered to the
Trustee (A) an Officer's Certificate of the Master Servicer
stating that such consolidation, merger, conveyance or
transfer and such supplemental agreement comply with this
Section 8.2 and that all conditions precedent herein pro-
vided for relating to such transaction have been complied
with and (B) an Opinion of Counsel stating that such supple-
mental agreement is the legal, valid and binding obligations
of the parties (other than the Trustee) thereto.
62
70
Section 8.3 Limitation on Liability of the Master
Servicer and Others. Subject to Section 8.4 with respect to the
Master Servicer, except as otherwise specifically provided herein
or in any Supplement, neither the Master Servicer nor any of the
directors or officers or employees or Affiliates or agents of the
Master Servicer shall be under any liability to the Trust, the
Trustee, the Certificateholders or any other Person for taking
any action or for refraining from taking any action pursuant to
this Agreement (including any Supplement), whether arising from
express or implied duties under this Agreement (including any
Supplement) or otherwise; provided, however, that this provision
shall not protect the Master Servicer or any such Person against
any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in the performance
of duties or by reason of reckless disregard of obligations and
duties hereunder. The Master Servicer and any director or
officer or employee or Affiliate or agent of the Master Servicer
may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any
matters arising hereunder. The Master Servicer shall not be
under any obligation to appear in, prosecute or defend any legal
action which is not incidental to its duties to service the
Receivables in accordance with this Agreement or any Supplement
which in its reasonable opinion may involve it in any expense or
liability. The provisions of this Section shall survive termi-
nation of this Agreement and termination of the Trust.
Section 8.4 Master Servicer Indemnification of the
Trust and the Trustee. The Master Servicer shall indemnify and
hold harmless the Trustee (and each of its directors, officers,
employees and agents) and the Trust, individually and for the
benefit of the Certificateholders, from and against any loss,
liability, expense, damage or injury suffered or sustained by
reason of any acts, omissions or alleged acts or omissions aris-
ing out of activities of the Trustee or the Trust pursuant to
this Agreement or any Supplement, including those arising from
acts or omissions of the Master Servicer pursuant to this Agree-
ment or any Supplement, or otherwise arising out of this
Agreement or any Supplement, including but not limited to any
judgment, award, settlement, reasonable attorneys' fees and other
reasonable costs or expenses incurred in connection with the
defense of any actual or threatened action, proceeding or claim;
provided, however, that the Master Servicer shall not indemnify
the Trustee or the Trust, individually or for the benefit of the
Certificateholders, if such acts, omissions or alleged acts or
omissions constitute or result from fraud, negligence, breach of
fiduciary duty or willful misconduct by the Trustee; and
provided, further, that the Master Servicer shall not indemnify
the Trustee or the Trust, individually or for the benefit of the
Certificateholders with respect to (x) any losses, liabilities,
63
71
expenses, damages or injuries of the Trust with respect to any
action taken by the Trustee at the request of any Certificate-
holder of any Series, (y) any Federal, state or local taxes (or
any interest or penalties or additions with respect thereto), or
(z) any losses, liabilities, expenses, damages or injuries in-
curred by any Investor Certificateholder as a result of defaults
or other losses (including, without limitation, Investor Charge-
Offs) with respect to the Receivables arising out of or based on
the arrangement created by this Agreement or any Supplement.
Subject to Sections 7.1 and 10.2(b), any indemnification pursuant
to this Section shall only be from the assets of the Master
Servicer. The provisions of such indemnity shall run directly to
and be enforceable by an injured party subject to the limitations
hereof. The provisions of this Section shall survive the resig-
nation or removal of the Master Servicer or the Trustee and the
termination of this Agreement or the Trust. The Master Servicer
shall indemnify, defend and hold harmless the Trustee (and each
of its directors, officers, employees and agents) from and
against all costs, losses, injuries, damages and liabilities
(including but not limited to any judgment, award, settlement,
reasonable attorneys' fees and other reasonable costs or expenses
incurred in connection with the defense of any actual or threat-
ened action, proceeding or claim) arising out of or incurred in
connection with the acceptance or performance of their respective
duties contained in this Agreement, except to the extent that
such cost, loss, injury, damage or liability: (a) is due to the
willful misconduct, breach of fiduciary duties, acts or omissions
which constitute constructive fraud, or negligence of the Person
indemnified, (b) arises from the Trustee's breach of any of its
representations and warranties set forth in Section 11.15 of this
Agreement, (c) shall arise out of or be incurred in connection
with the performance by the Trustee of the duties of the Succes-
sor Master Servicer hereunder or (d) relates to Federal, state or
local taxes of the Trustee with respect to fees paid or expenses
reimbursed to the Trustee in connection with the acceptance and
performance of its dates contained in this Agreement.
Section 8.5 The Master Servicer Not to Resign. The
Master Servicer shall not resign from the obligations and duties
hereby imposed on it except upon its determination (and notifica-
tion to the Trustee) that (i) the performance of its duties
hereunder is no longer permissible under applicable law and (ii)
there is no reasonable action which the Master Servicer could
take to make the performance of its duties hereunder permissible
under applicable law. Any such determination permitting the
resignation of the Master Servicer shall be evidenced as to
clause (i) above by an Opinion of Counsel (which Opinion of
Counsel may not be provided by in-house counsel to the Master
Servicer) to such effect delivered to the Trustee. No such
resignation shall become effective until the Trustee or a
64
72
Successor Master Servicer shall have assumed the responsibilities
and obligations of the Master Servicer in accordance with Section
10.2 hereof; provided, that if within one hundred twenty (120)
days of the date that the Master Servicer notifies the Trustee of
its determination described in the first sentence of this Section
8.5 and delivers to the Trustee the Opinion of Counsel referred
to above the Trustee does not receive any bids from Eligible
Master Servicers in accordance with Section 10.2(c) to act as
Successor Master Servicer, then the Trustee shall automatically
be appointed Successor Master Servicer in accordance with Section
10.2 (but shall have the continued authority to appoint another
Person as Successor Master Servicer).
Section 8.6 Access to Certain Documentation and
Information Regarding the Receivables. The Master Servicer shall
provide to the Trustee and its representatives access to and
copies of the documents, books, files, microfiche lists, computer
records, disks or tapes and other information regarding the
Receivables and the other Trust Assets where required in connec-
tion with the Trustee's enforcement of the rights of the Certifi-
cateholders, or required by applicable statutes or regulations,
to review such documentation, such access and copies, if any,
being afforded without charge but only (i) upon prior written
request, (ii) during normal business hours and (iii) subject to
the Master Servicer's normal security and confidentiality
procedures.
Section 8.7 Delegation of Duties. In the ordinary
course of business, the Master Servicer may at any time delegate
any duties hereunder to any Person who agrees to conduct such
duties in accordance with the Credit and Collection Policy and
this Agreement or any Supplement; provided, however, with respect
to any proposed delegation of a material function relating to the
servicing of the Receivables to a Person other than a Designated
Subsidiary, written notice shall be given to each Rating Agency
and the Trustee of such delegation. Any delegation shall not
relieve the Master Servicer of its liability and responsibility
with respect to such duties and shall not constitute a resigna-
tion within the meaning of Section 8.5 hereof.
Section 8.8 Examination of Records. The Transferor
and the Master Servicer shall, prior to the sale or transfer to a
third party of any receivable, contract or invoice held in its
custody, examine its computer and other records to determine that
such receivable, contract or invoice is not part of the Trust
Assets.
Section 8.9 Successor Master Servicer Indemnification
of Transferor. In the event of a Service Transfer, the Successor
Master Servicer will indemnify and hold harmless the Transferor
65
73
for any losses, claims, damages and liabilities of the Transferor
arising from the fraud, gross negligence, breach of fiduciary
duty or willful misconduct of such Successor Master Servicer.
Section 8.10 Fidelity Bond and Errors and Omissions
Insurance. The Master Servicer shall maintain, at its own
expense, a blanket fidelity bond and an errors and omissions
insurance policy, with broad coverage with responsible companies
on all officers, employees or other persons acting on behalf of
the Servicer in any capacity with regard to the Trust Assets to
handle funds, money, documents and papers relating to the Trust
Assets. Any such fidelity bond and errors and omissions insur-
ance shall protect and insure the Master Servicer against losses,
including forgery, theft, embezzlement, fraud, errors and omis-
sions and negligent acts of such persons and shall be maintained
in a form and amount that would meet the requirements of prudent
institutional servicers. No provision of this Section 8.10
requiring such fidelity bond and errors and omissions insurance
shall diminish or relieve the Master Servicer from its duties and
obligations as set forth in this Agreement. The Master Servicer
shall be deemed to have complied with this provision if one of
its respective Affiliates has such fidelity bond and errors and
omissions policy coverage and, by the terms of such fidelity bond
and errors and omission policy, the coverage afforded the there-
under extends to the Master Servicer. The Master Servicer shall
cause each and every Sub-Servicer for it to maintain a policy of
insurance covering errors and omissions and a fidelity bond which
would meet such requirements. Upon request of the Trustee, the
Master Servicer shall cause to be delivered to the Trustee a
certification evidencing coverage under such fidelity bond and
insurance policy. Any such fidelity bond or insurance policy
shall not be cancelled or modified in a materially adverse manner
without ten days' prior written notice to the Trustee and the
Rating Agencies.
[END OF ARTICLE VIII]
66
74
ARTICLE IX
EVENTS OF TERMINATION
Section 9.1 Events of Termination with Respect to any
Series. If any one of the following events or an event specified
in an applicable Supplement shall occur at such time as there
shall be at least one outstanding Investor Certificate:
(i) failure (A) on the part of the Trans-
feror or the Master Servicer to make (i) any payment or
deposit of principal or interest required by the terms of
the Agreement on or before three Business Days after the
date such payment or deposit is required to be made or (ii)
any other payment or deposit required by the Agreement on or
before five Business Days after the date such other payment
or deposit is required to be made, or (B) on the part of the
Transferor to duly observe or perform in any material
respect the covenant of the Transferor to preserve and
maintain its corporate existence, rights, franchises and
privileges in the jurisdiction of its incorporation and to
qualify and remain qualified in good standing as a foreign
corporation in each jurisdiction where the failure to pre-
serve and maintain such existence would, if not remedied,
materially adversely affect the interests of the Certifi-
cateholders in the Receivables, or the ability of the Trans-
feror or the Master Servicer to perform its obligations
under this Agreement, if such failure is not remedied within
five days of receipt of notice of such failure by the
Trustee or the Transferor; (C) on the part of the Transferor
to duly observe or perform in any material respect any other
covenants or agreements of the Transferor set forth in this
Agreement or any Supplement; or (D) on the part of the
Master Servicer to deliver the Daily Report required on any
Business Day pursuant to this Agreement or any Determination
Date Statement required pursuant to this Agreement; which
failure with respect to clauses (B), (C) and (D) continues
unremedied for five Business Days after the date on which
written notice of such failure, requiring the same to be
remedied, shall have been given to the Transferor or the
Master Servicer by the Trustee, or to the Transferor and the
Trustee by the Holders of Investor Certificates evidencing
undivided interests aggregating not less than 51% of the
Invested Amount of the applicable Series; provided, however,
that with respect to clause (C) above, the Transferor shall
have 30 days after the date of receipt of notice to cure any
such failure;
67
75
(ii) any representation or warranty made by
the Transferor in this Agreement or any Supplement, or any
information contained in a computer file, microfiche list or
hard copy list required to be delivered by the Transferor
pursuant to this Agreement shall prove to have been incor-
rect in any material respect when made or when delivered,
which continues to be incorrect in any material respect for
a period of 60 days after the date on which written notice
of such failure, requiring the same to be remedied, shall
have been given to the Transferor by the Trustee, or to the
Transferor by the Trustee after receipt of notice from
Certificateholders evidencing Undivided Interests aggregat-
ing not less than 51% of the Invested Amount of the related
Series and as a result of which the interests of the
Certificateholders are materially and adversely affected;
(iii) Eagle Industrial or the Transferor
voluntarily seeks, consents to or acquiesces in the benefit
or benefits of any Debtor Relief Law or becomes a party to
(or is made the subject of) any proceeding provided for by
any Debtor Relief Law, other than as creditor or claimant,
and in the event such proceeding is involuntary, the peti-
tion instituting same is not dismissed within 60 days of its
filing; or Eagle Industrial or the Transferor admits its
inability to pay its debts when due; or the Transferor shall
become unable for any reason to transfer Receivables to the
Trust in accordance with the provisions of the Agreement, or
Eagle Industrial shall become unable for any reason to sell
Receivables to the Transferor in accordance with the provi-
sions of the Contribution and Sale Agreement;
(iv) the Trust becomes an "investment
company" within the meaning of the Investment Company Act of
1940, as amended;
(v) the Trustee has not accepted a bid from
an Eligible Master Servicer to service the Receivables
within 60 days after any Master Servicer Default with
respect to which a Termination Notice has been issued;
(vi) the Transferor Amount, after giving
effect to any amounts deposited in the Excess Funding
Account pursuant to this Agreement for the purpose of
increasing the Transferor Amount, shall be less than the
Minimum Transferor Amount for ten consecutive Business Days;
(vii) the A Rated Weighted Average Loss
Reserve Ratio shall exceed 25% for ten consecutive Business
Days;
68
76
(viii) Eagle Industrial fails to own or
otherwise fails to maintain voting control of the stock of
Transferor.
then, (a) in the case of any event described in clause (C) or
clause (D) of subparagraph (i) or in subparagraphs (ii) and (v)
after any applicable grace period set forth in such subpara-
graphs, either the Trustee, or the Investor Certificateholders
evidencing undivided interests aggregating 66 2/3% or more of the
Invested Amount of such series, by notice then given in writing
to the Transferor and the Master Servicer (and to the Trustee if
given by the Certificateholders) may declare that an Event of
Termination has occurred (A) with respect to all Series of
Certificates (in the case of notice given by the Trustee) or (B)
such Series (in the case of notice given by Investor Certifi-
cateholders) as of the date of such notice, or (b) in the case of
any event described in clause (B) of subparagraph (i) or in
subparagraphs (iii) or (iv) an Event of Termination with respect
to all Series shall occur without any notice or other action on
the part of the Trustee or any Certificateholder immediately upon
the occurrence of such event or (c) in the case of any event
described in clause (A) of subparagraph (i) or subparagraphs
(vi), (vii) and (viii), unless, within fifteen days of any such
event (after any applicable grace period) Investor Certifi-
cateholders evidencing Undivided Interests aggregating 51% or
more of the Invested Amount by notice then given in writing to
the Transferor, the Master Servicer and the Trustee, waive the
occurrence of such event, an Event of Termination shall occur
with respect to the Series without any notice or other action on
the part of the Investor Certificateholders or the Trustee.
In addition to the consequences of an Event of
Termination discussed above, if the Transferor voluntarily files
a bankruptcy petition or consents to the filing of such petition,
and in the event that the resulting proceeding is involuntary,
the petition instituting the same is not dismissed within 60 days
of its filing, or the Transferor goes into liquidation or any
Person is appointed a receiver or bankruptcy trustee of the
Transferor, on the day of such event the Transferor will immedi-
ately cease to transfer Receivables to the Trustee under this
Agreement and will promptly give notice to the Trustee of such
event.
Section 9.2 [Reserved]
69
77
Section 9.3 Additional Rights Upon the Occurrence of
Certain Events.
(a) If the Transferor (i) voluntarily or involun-
tarily seeks, consents to or acquiesces in the benefit or bene-
fits of any Debtor Relief Law or becomes a party to (or is made
the subject of) any proceeding provided for by any Debtor Relief
Law, other than as creditor or claimant, and in the event such
proceeding is involuntary, the petition instituting the same is
not dismissed within 90 days of its filing or (ii) goes into
liquidation or any other Person shall be appointed as a bank-
ruptcy trustee or receiver or conservator of the Transferor, then
the Transferor shall on the day of such event (the "Appointment
Date") immediately cease to transfer Receivables to the Trustee
and shall promptly give notice to the Trustee of such event.
Notwithstanding any cessation of the transfer to the Trustee of
additional Receivables, Receivables transferred to the Trustee
prior to the occurrence of such voluntary or involuntary event
and Collections in respect of such Receivables whenever created,
accrued in respect of such Receivables, shall continue to be a
part of the Trust Assets. Within 15 days of the day on which a
Responsible Officer of the Trustee first receives written notice
of the occurrence of the Appointment Date, the Trustee shall (x)
publish a notice in an Authorized Newspaper that (i) the Trans-
feror has sought, consented to or acquiesced in the benefit of
any Debtor Relief Law or has become a party to (or made the
subject of) a proceeding as described in clause (i) of this
Section 9.3(a) or (ii) a bankruptcy trustee, receiver or conser-
vator of the Transferor has been appointed or that a voluntary
liquidation of the Transferor has occurred, and that the Trustee
intends to sell, dispose of or otherwise liquidate the Receiva-
bles on commercially reasonable terms and in a commercially
reasonable manner and (y) send written notice to the Investor
Certificateholders describing the provisions of this Section 9.3
and requesting instructions from such Holders. Unless within 60
days from the day written notice pursuant to clause (y) above is
first sent, the Trustee shall have received written instructions
of the Holders of Investor Certificates representing Undivided
Interests aggregating more than 50% of the Invested Amount of
each Series and in the case of a Series having more than one
Class, more than 50% of the Invested Amount of each Class of such
Series, to the effect that such Certificateholders disapprove of
the liquidation of the Receivables and wish to continue receiving
Receivables under the Trust as before such appointment, or unless
the Trustee shall have received an Opinion of Counsel addressed
to the Trustee to the effect that any such sale, disposition or
liquidation is prohibited by law, the Trustee shall proceed to
sell, dispose of, or otherwise liquidate the Receivables on
commercially reasonable terms and in a commercially reasonable
manner, which shall include the solicitation of competitive bids.
70
78
The Trustee may obtain, and shall be fully protected in relying
on, a prior determination from such bankruptcy trustee or re-
ceiver or conservator that the terms and manner of any proposed
sale, disposition or liquidation hereunder are commercially
reasonable. The provisions of Sections 9.1 and 9.3 shall not be
deemed to be mutually exclusive.
(b) The proceeds from the sale, disposition or
liquidation of the Receivables pursuant to subsection (a) above,
net of all reasonable expenses incurred by the Trustee in con-
nection with such sale, liquidation or other disposition, which
shall be paid to the Trustee from such proceeds, shall be treated
as Collections of the Receivables and shall be allocated in
accordance with the provisions of Section 4.3. On the day fol-
lowing the Payment Date on which such proceeds are distributed to
the Investor Certificateholders, the Trust shall terminate.
(c) Upon the occurrence of an event specified in
Section 9.3(a), if the Trustee has not sold, disposed of or
otherwise liquidated the Receivables as provided therein within
120 days after the Appointment Date, the Trustee, upon the writ-
ten instructions of all of the Holders of Investor Certificates
of any Series shall sell, dispose of or otherwise liquidate
Receivables on a best efforts basis, selected on a random basis
from all Receivables in the Trust, in an amount equal to the
product of the Aggregate Eligible Receivables and the aggregate
percentage of Undivided Interests in the Trust Assets represented
by all Series so instructing the Trustee; provided that such sale
shall not result in the reduction or withdrawal of any rating
assigned by the Rating Agency to any Series not so instructing
the Trustee. The proceeds from such sale, disposition or liqui-
dation, net of all reasonable expenses incurred by the Trustee in
connection with such sale, disposition or liquidation, which
shall be paid to the Trustee, shall be deposited in the Collec-
tion Account by the Trustee and shall be treated as Collections
of Receivables allocable to the Series so instructing the Trans-
feror and shall be allocated in accordance with Section 4.3.
Upon distribution of such proceeds in accordance with Article IV,
such Series shall be deemed paid in full and no further amounts
shall be allocated to such Series.
[END OF ARTICLE IX]
71
79
ARTICLE X
MASTER SERVICER DEFAULTS
Section 10.1 Master Servicer Defaults. If any one of
the following events (a "Master Servicer Default") shall occur
and be continuing:
(a) failure by the Master Servicer to make any
payment, transfer or deposit or to give instructions or to give
notice to the Trustee to make such payment, transfer or deposit
on the date such payment, transfer or deposit or such instruction
or notice is required to be made or given, as the case may be,
under the terms of this Agreement or any Supplement;
(b) failure on the part of the Master Servicer
duly to observe or perform any other covenants or agreements of
the Master Servicer set forth in this Agreement or any Supplement
that has a material adverse effect on the holder of the Trans-
feror Certificate or the Certificates of any Series, which
failure continues unremedied for a period of 30 days after the
date on which written notice of such failure, requiring the same
to be remedied, shall have been given to the Master Servicer by
the Trustee, or by the holders of Investor Certificates of any
Series evidencing Undivided Interests in the Trust Assets aggre-
gating not less than 51% of the Invested Amount of any Series
materially adversely affected thereby; or the Master Servicer
shall assign its duties under this Agreement, except as permitted
by Sections 8.2, 8.5 and 8.7;
(c) any representation, warranty or certification
made by the Master Servicer in this Agreement, any Supplement or
in any certificate or report delivered pursuant to this Agreement
or any Supplement shall prove to have been incorrect when made,
which has a material adverse effect on the rights of the holder
of the Transferor Certificate or the Investor Certificates of any
Series and which failure continues unremedied for a period of 30
days after the date on which written notice thereof, requiring
the same to be remedied, shall have been given to the Master
Servicer by the Trustee, or by the holders of Investor Certifi-
cates of any Series evidencing Undivided Interests in the Trust
Assets aggregating not less than 51% of the Invested Amount of
any Series materially adversely affected thereby; or
(d) the Master Servicer shall voluntarily seek,
consent to or acquiesce in the benefit or benefits of any Debtor
Relief Law or, voluntarily or involuntarily, become a party to
(or be made the subject of) any proceeding provided for under any
Debtor Relief Law, other than as creditor or claimant, and in the
72
80
event such proceeding is involuntary, the petition instituting
same is not dismissed within 90 days of its filing;
then, in the event of any Master Servicer Default, so long as the
Master Servicer Default shall not have been remedied, either (i)
the Trustee or (ii) the holders of Investor Certificates evidenc-
ing Undivided Interests aggregating more than 51% of the Invested
Amount of any Series materially and adversely affected thereby,
by notice then given in writing to the Master Servicer and the
Transferor (with a copy thereof to each Rating Agency) and to the
Trustee if given by a Person other than the Trustee (a
"Termination Notice"), may terminate the rights and obligations
of the Master Servicer as Master Servicer under this Agreement
and in and to the Receivables and the proceeds thereof.
After receipt by the Master Servicer of a Termination
Notice, and on the date that a Successor Master Servicer shall
have been appointed pursuant to Section 10.2, all authority and
power of the Master Servicer under this Agreement and each
Supplement shall pass to and be vested in a Successor Master
Servicer (a "Service Transfer"); and, without limitation, the
Trustee is hereby authorized and empowered (upon the failure of
the Master Servicer to cooperate) to execute and deliver, on
behalf of the Master Servicer, as attorney-in-fact or otherwise,
which grant of authority is irrevocable and coupled with an
interest, all documents and other instruments upon the failure of
the Master Servicer to execute or deliver such documents or
instruments, and to do and accomplish all other acts or things
necessary or appropriate to effect the purposes of such Service
Transfer. The Master Servicer agrees to cooperate with the
Trustee, the Transferor and such Successor Master Servicer in
effecting the termination of the responsibilities and rights of
the Master Servicer to conduct servicing hereunder, including,
without limitation, the transfer to such Successor Master
Servicer of all authority of the Master Servicer to service the
Receivables provided for under this Agreement, including, without
limitation, all authority over all Collections which shall on the
date of transfer be held by the Master Servicer for deposit, or
which have been deposited by the Master Servicer in the Collec-
tion Account, or which shall thereafter be received with respect
to the Receivables, and in assisting the Successor Master
Servicer. The Master Servicer shall at its expense promptly
transfer, to the extent it is permitted by applicable law to do
so, its electronic records relating to the Receivables to the
Successor Master Servicer in such electronic form as the Succes-
sor Master Servicer may reasonably request and shall promptly
transfer, to the extent it is permitted by applicable law to do
so, to the Successor Master Servicer all other records, corre-
spondence and documents necessary for the continued servicing of
the Receivables in the manner and at such times as the Successor
73
81
Master Servicer shall reasonably request and shall, to the extent
not prohibited by licensing restrictions, provide access to or
copies of computer software, including by means of sublicensing
arrangements if applicable, to the extent necessary for the
continued servicing of the Receivables; provided, however, that
the Master Servicer shall not be required, to the extent it has
an ownership interest in any electronic records, computer soft-
ware or licenses, to transfer, assign, set-over or otherwise
convey such ownership interest(s) to the Successor Master
Servicer. The Master Servicer at its expense shall provide the
Successor Master Servicer with access to any computer hardware in
its possession for a reasonable time after the Master Servicer's
termination to the extent necessary for the uninterrupted servic-
ing of the Receivables. Notwithstanding the foregoing, the
Master Servicer shall not be required to provide such access,
whether with respect to computer hardware or software, if to
provide such access would violate applicable contractual restric-
tions (including pursuant to any licensing arrangements to which
Eagle Industrial or any Designated Subsidiary is a party);
provided, however, that Eagle Industrial shall use its reasonable
best efforts in seeking consents or waivers necessary to permit
the Successor Master Servicer to have such access. To the extent
that compliance with this Section 10.1 shall require the Master
Servicer to disclose to the Successor Master Servicer information
of any kind which the Master Servicer reasonably deems to be
confidential, the Successor Master Servicer shall be required to
enter into such confidentiality agreements as the Master Servicer
shall reasonably deem necessary to protect its interest.
Notwithstanding the foregoing, a delay in or failure of
performance under Section 10.1(a) shall not constitute a Master
Servicer Default if such delay or failure was caused by an Act of
God, the public enemy, acts of declared or undeclared war, public
disorder, rebellion or sabotage, epidemics, landslides, light-
ning, fire, hurricanes, earthquakes, floods or similar causes and
no funds have been remitted to Eagle Industrial or the Trans-
feror. The preceding sentence shall not relieve the Master
Servicer from using reasonable efforts to perform its obligations
in a timely manner in accordance with the terms of this Agreement
and each Supplement, and the Master Servicer shall provide the
Trustee, the Rating Agencies, the Transferor and the Investor
Certificateholders with an Officer's Certificate giving prompt
notice of such failure or delay by it, together with a descrip-
tion of its efforts to so perform its obligations. The Master
Servicer shall immediately notify the Trustee in writing of any
Master Servicer Default. In connection with any Service Trans-
fer, all reasonable costs and expenses (including attorneys'
fees) incurred by the Trustee in connection with transferring the
Receivables to the Successor Master Servicer and entering into a
written assumption and agreement with the Successor Master
74
82
Servicer pursuant to this Section 10.1 and Section 10.2 shall be
paid by the Master Servicer upon presentation of reasonable docu-
mentation of such costs and expenses.
Section 10.2 Trustee to Act; Appointment of Successor.
(a) On and after the receipt by the Master
Servicer of a Termination Notice pursuant to Section 10.1, the
Master Servicer shall continue to perform all servicing functions
under this Agreement and any Supplement until the date specified
in the Termination Notice or, if no such date is specified in
such Termination Notice, until a date specified by the Trustee.
The Trustee shall as promptly as possible after the giving of a
Termination Notice appoint an Eligible Master Servicer as a
successor servicer (the "Successor Master Servicer") and such
Successor Master Servicer shall have obtained written confirma-
tion from each Rating Agency that the then current rating on any
outstanding Series will not be reduced or withdrawn as a result
of such appointment and shall accept its appointment by a written
assumption and agreement to perform all of the duties, obliga-
tions and liabilities of the Master Servicer hereunder in a form
acceptable to the Trustee. In the event that a Successor Master
Servicer has not been appointed or has not accepted its appoint-
ment at the time when the Master Servicer ceases to act as Master
Servicer, or upon the occurrence of the events specified in
Section 8.5, the Trustee without further action shall automatic-
ally be appointed the Successor Master Servicer. The Trustee may
delegate any of its servicing obligations to an Affiliate or
agent of the Master Servicer or the Trustee; provided, however,
that any such delegation shall not relieve the Trustee as
Successor Master Servicer of its liabilities and responsibilities
with respect to its duties as Successor Master Servicer. Not-
withstanding the above, the Trustee shall, if it is legally
unable so to act, petition a court of competent jurisdiction to
appoint as Successor Master Servicer a Person that is an Eligible
Master Servicer. The Trustee shall promptly give notice to each
Rating Agency of the appointment of a Successor Master Servicer
upon such appointment.
(b) Upon its appointment, the Successor Master
Servicer shall be the successor in all respects to the Master
Servicer with respect to servicing functions under this Agreement
and shall be subject to all the responsibilities, duties and
liabilities relating thereto placed on the Master Servicer by the
terms and provisions hereof, and all references in this Agreement
and any Supplement to the Master Servicer shall be deemed to
refer to the Successor Master Servicer except for the references
in Sections 3.3(l), (m) and (o), 8.4 and 11.5 and the last
sentence of Section 10.1 which shall continue to refer to Eagle
Industrial.
75
83
(c) In connection with any Termination Notice,
the Trustee will review any bids which it obtains from Eligible
Master Servicers and shall be permitted to appoint any Eligible
Master Servicer submitting such a bid as a Successor Master
Servicer for servicing compensation not in excess of the Servic-
ing Fee permitted for a Successor Master Servicer pursuant to
Section 3.2; provided, however, that Eagle Industrial shall be
responsible for payment of all servicing compensation, if any, in
excess of the Servicing Fee if Eagle Industrial shall have agreed
in writing to pay such excess, and that no such monthly compen-
sation paid out of Collections shall be in excess of the Servic-
ing Fee permitted to a Successor Master Servicer pursuant to
Section 3.2.
(d) All authority and power granted to the
Successor Master Servicer under this Agreement shall automatic-
ally cease and terminate upon termination of the Trust pursuant
to Section 12.1, and shall pass to and be vested in the Trans-
feror and, without limitation, the Transferor is hereby author-
ized and empowered to execute and deliver, on behalf of the
Successor Master Servicer, as attorney-in-fact or otherwise,
which grant of authority is irrevocable and coupled with an
interest, all documents and other instruments, and to do and
accomplish all other acts or things necessary or appropriate to
effect the purposes of such transfer of servicing rights. The
Successor Master Servicer shall agree to cooperate with the
Transferor in effecting the termination of the responsibilities
and rights of the Successor Master Servicer to conduct servicing
of the Receivables, including, without limitation, all authority
over Collections then held by the Successor Master Servicer or
which shall thereafter be received by the Successor Master
Servicer. The Successor Master Servicer shall promptly transfer
its electronic records relating to the Receivables to the Trans-
feror in such electronic form as the Transferor may reasonably
request and shall promptly transfer all other records, correspon-
dence and documents to the Transferor in the manner and at such
times as the Transferor shall reasonably request. To the extent
that compliance with this Section 10.2 shall require the Succes-
sor Master Servicer to disclose to the Transferor information of
any kind which the Successor Master Servicer deems to be confi-
dential, the Transferor shall be required to enter into such
licensing and confidentiality agreements as the Successor Master
Servicer shall reasonably deem necessary to protect its
interests.
Section 10.3 Notification to Certificateholders. Upon
the occurrence of any Master Servicer Default, the Master
Servicer shall give prompt written notice thereof to the Trustee
and, upon receipt of such written notice, the Trustee shall give
notice to each Rating Agency and the Investor Certificateholders
76
84
at their respective addresses appearing in the Certificate
Register. Upon any termination or appointment of a Successor
Master Servicer pursuant to this Article X, the Trustee shall
give prompt written notice thereof to the Investor Certificate-
holders at their respective addresses appearing in the Certifi-
cate Register.
Section 10.4 Waiver of Past Defaults. The Holders of
Investor Certificates evidencing Undivided Interests aggregating
more than 50% of the Invested Amount of any Series materially
adversely affected by any default by the Master Servicer or
Transferor may, on behalf of all Certificateholders of such
affected Series, waive any default by the Master Servicer or the
Transferor in the performance of their obligations hereunder and
its consequences, except a default in the failure to make any re-
quired deposits or payments of interest or principal with respect
to any Series of Certificates. Upon any such waiver of a past
default, such default shall cease to exist, and any default aris-
ing therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any
subsequent or other default or impair any right consequent there-
on except to the extent expressly so waived.
[END OF ARTICLE X]
77
85
ARTICLE XI
THE TRUSTEE
Section 11.1 Duties of Trustee. (a) If to the knowl-
edge of a Responsible Officer of the Trustee a Master Servicer
Default has occurred (which has not been cured or waived), the
Trustee shall exercise such of the rights and powers vested in it
by this Agreement or any Supplement, as the case may be, and use
the same degree of care and skill in their exercise, as a prudent
person would exercise or use under the circumstances in the
conduct of such prudent person's own affairs.
(b) The Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or
other instruments furnished to the Trustee which are specifically
required to be furnished pursuant to any provision of this Agree-
ment or any Supplement, shall examine them to determine whether
they substantially conform to the requirements of this Agreement
or any Supplement. The Trustee shall give prompt written notice
to the Certificateholders of any material lack of conformity of
any such instrument to the applicable requirements of this Agree-
ment or any Supplement discovered by the Trustee which would
entitle a specified percentage of the Certificateholders to take
any action pursuant to this Agreement or any Supplement.
(c) Subject to Section 11.1(a), no provision of
this Agreement or any Supplement shall be construed to relieve
the Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct; provided,
however, that:
(i) The Trustee shall not be personally
liable for an error of judgment made in good faith by a
Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(ii) The Trustee shall not be personally
liable with respect to any action taken, suffered or omitted
to be taken by it in good faith in accordance with, unless
otherwise specified herein, the direction of the Holders of
Investor Certificates evidencing Undivided Interests in the
Trust aggregating more than 50% of the Invested Amount of
any Series relating to the time, method and place of con-
ducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the
Trustee, under this Agreement or any Supplement;
78
86
(iii) The Trustee shall not be charged with
knowledge of the occurrence of any Master Servicer Default
or any Event of Termination, unless a Responsible Officer of
the Trustee obtains actual knowledge of such occurrence or
the Trustee receives written notice of such occurrence from
the Master Servicer or any Holders of Investor Certificates
evidencing Undivided Interests aggregating not less than 10%
of the Invested Amount of any Series adversely affected
thereby; and
(iv) Prior to the occurrence of a Master
Servicer Default of which a Responsible Officer has knowl-
edge, and after the curing or waiver of such Master Servicer
Defaults that may have occurred, the duties and obligations
of the Trustee shall be determined solely by the express
provisions of this Agreement and any Supplements, the
Trustee shall not be liable except for the performance of
such duties and obligations as shall be specifically set
forth in this Agreement and any Supplement, no implied
covenants or obligations shall be read into this Agreement
or any Supplement against the Trustee and, in the absence of
bad faith on the part of the Trustee, the Trustee may con-
clusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and, if
specifically required to be furnished pursuant to any pro-
vision of this Agreement or any Supplement, conforming to
the requirements of this Agreement or such Supplement.
(d) The Trustee shall not be required to expend or
risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder, or in the exercise of
any of its rights or powers, if there is reasonable ground for
believing that the repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it,
and none of the provisions contained in this Agreement or any
Supplement shall in any event require the Trustee to perform, or
be responsible for the manner of performance of, any obligations
of the Master Servicer under this Agreement or any Supplement
except during such time, if any, as the Trustee shall be the
successor to, and be vested with the rights, duties, powers and
privileges of, the Master Servicer in accordance with the terms
of this Agreement or any Supplement.
(e) Except for actions expressly authorized by
this Agreement or any Supplement, the Trustee shall take no
action reasonably likely to impair the interests of the Trust in
any Receivable now existing or hereafter created or to impair the
value of any Receivable now existing or hereafter created.
79
87
(f) Except as specifically provided in this
Agreement or any Supplement, the Trustee shall have no power to
vary the corpus of the Trust.
(g) If, to the knowledge of a Responsible Officer
of the Trustee, the Paying Agent or the Transfer Agent and Regis-
trar shall fail to perform any obligation, duty or agreement in
the manner or on the day required to be performed by the Paying
Agent or the Transfer Agent and Registrar, as the case may be,
under this Agreement, the Trustee shall be obligated as soon as
possible after such Responsible Officer obtains knowledge thereof
and receives appropriate records, if any, to perform such obliga-
tion, duty or agreement in the manner so required.
(h) If the Transferor, Eagle Industrial or any
Designated Subsidiary has agreed to transfer any of its receiva-
bles (other than the Receivables transferred to the Trust here-
under) to another Person, upon the written request of the Trans-
feror, the Trustee will enter into such intercreditor agreements
with the transferee of such receivables as are customary and
necessary to identify separately the rights of the Trust and such
other Person in the Receivables and such other receivables; pro-
vided that the Trustee shall not be required to enter into any
intercreditor agreement which could reasonably be expected to
adversely affect the interests of the Certificateholders or the
Trustee and, upon the request of the Trustee, the Transferor,
Eagle Industrial or such Designated Subsidiary will deliver at
its expense an Opinion of Counsel in form and substance reason-
ably satisfactory to the Trustee relating to such intercreditor
agreement.
(i) Except as specifically otherwise provided in
this Agreement, any action, suit or proceeding brought in respect
of one or more particular Series shall have no effect on the
Trustee's rights, duties and obligations hereunder with respect
to any one or more Series not the subject of such action, suit or
proceeding.
Section 11.2 Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 11.1:
(a) The Trustee may rely on and shall be pro-
tected in acting on, or in refraining from acting in accordance
with, any resolution, Officer's Certificate, certificate of audi-
tors or any other certificate, statement, instrument, opinion,
report, notice, request, consent, order, appraisal, bond or other
paper or document reasonably believed by it to be genuine and to
have been signed or presented to it pursuant to this Agreement or
any Supplement by the proper party or parties;
80
88
(b) The Trustee may consult with counsel and any
advice or Opinion of Counsel shall be full and complete authori-
zation and protection in respect of any action reasonably taken
or suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(c) The Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Agree-
ment or any Supplement, or to institute, conduct or defend any
litigation hereunder or in relation hereto or any Supplement, at
the request, order or direction of any of the Certificateholders,
pursuant to the provisions of this Agreement or any Supplement,
unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; nothing
contained herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of a Master Servicer Default
(which has not been cured or waived) of which a Responsible
Officer has knowledge, to exercise such of the rights and powers
vested in it by this Agreement or any Supplement, and to use the
same degree of care and skill in their exercise as a prudent
person would exercise or use under the circumstances in the
conduct of such prudent person's own affairs;
(d) The Trustee shall not be personally liable
for any action taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Agreement or any
Supplement;
(e) The Trustee shall not be bound to make any
investigation into the facts of matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or docu-
ment, unless requested in writing so to do by the Holders of
Investor Certificates evidencing Undivided Interests aggregating
more than 50% of the Invested Amount of any Series which could be
adversely affected if the Trustee does not perform such acts;
provided, however, that if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation shall be, in
the reasonable opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this
Agreement, the Trustee may require reasonable indemnity against
such cost, expense or liability as a condition to so proceeding.
The reasonable expense of every such examination shall be paid by
the Master Servicer (or, if Eagle Industrial is no longer the
Master Servicer, by Eagle Industrial) or, if paid by the Trustee,
shall be reimbursed by the Master Servicer (or if Eagle Indus-
81
89
trial is no longer the Master Servicer, by Eagle Industrial) upon
demand;
(f) The Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly
or by or through agents or attorneys or custodians, and the
Trustee shall not be responsible for any misconduct or negligence
on the part of any such agent, attorney or custodian appointed
with due care by it hereunder;
(g) Except as may be required by Section 11.1(a)
or Section 11.2(e) hereof, the Trustee shall not be required to
make any initial or periodic examination of any documents or
records related to the Receivables for the purpose of establish-
ing the presence or absence of defects, the compliance by the
Transferor or the Master Servicer with their representations and
warranties or for any other purpose;
(h) The right of the Trustee to perform any dis-
cretionary act enumerated in this Agreement or any Supplement
shall not be construed as a duty, and the Trustee shall not be
answerable for other than its negligence or willful misconduct in
the performance of any such act;
(i) Whenever in the administration of this
Agreement or any Supplement the Trustee shall deem it desirable
that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may reasonably rely
upon an Officer's Certificate.
Section 11.3 Trustee Not Liable for Recitals in
Certificates. The Trustee assumes no responsibility for the
correctness of the recitals contained herein and in the Certifi-
cates (other than the certificate of authentication on the
Certificates). Except as set forth in Section 11.15, the Trustee
makes no representations as to the validity or sufficiency of
this Agreement or any Supplement or of the Certificates (other
than the certificate of authentication on the Certificates) or of
any Receivable or related document. The Trustee shall not be
accountable for the use or application by the Transferor of any
of the Certificates or of the proceeds of such Certificates, or
for the use or application of any funds paid to the Transferor in
respect of the Receivables or, subject to the other provisions of
this Article XI, deposited in the Collection Account or other
accounts now or hereafter established to effectuate the transac-
tions contemplated herein and in accordance with the terms
hereof.
82
90
The Trustee shall have no duty to conduct any affirma-
tive investigation as to the occurrence of any condition requir-
ing the repurchase of any Receivable by the Transferor or the
Master Servicer pursuant to this Agreement or any Supplement or
the eligibility of any Receivable for purposes of this Agreement
or any Supplement. The Trustee shall have no responsibility for
filing any financing or continuation statement in any public
office at any time or otherwise to perfect or maintain the per-
fection of any security interest or lien granted to it hereunder
(unless the Trustee shall have become the Successor Master
Servicer) or to prepare or file any Securities and Exchange
Commission filing for the Trust or to record this Agreement or
any Supplement.
Section 11.4 Trustee May Own Certificates. The
Trustee in its individual or any other capacity may become the
owner or pledgee of Investor Certificates and may deal with the
Designated Subsidiaries, Eagle Industrial, the Transferor, the
Master Servicer and any of their respective Affiliates in banking
and other transactions with the same rights as it would have if
it were not the Trustee.
Section 11.5 The Master Servicer to Pay Trustee's Fees
and Expenses. The Master Servicer covenants and agrees to pay to
the Trustee from time to time, and the Trustee shall be entitled
to receive, reasonable compensation (which shall not be limited
by any provision of law in regard to the compensation of a trus-
tee of an express trust) for all services rendered by it in the
execution of the trust hereby created and in the exercise and
performance of any of the powers and duties hereunder or under
any Supplement of the Trustee, and, subject to Section 8.4, the
Master Servicer will pay or reimburse the Trustee upon its re-
quest for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any of the
provisions of this Agreement or any Supplement (including the
reasonable fees and expenses of its agents and counsel and all
reasonable fees and expenses incurred in connection with the
appointment of the Trustee or an Affiliate of the Trustee as
Successor Master Servicer) except any such expense, disbursement
or advance as may arise from its negligence or bad faith and
except as provided in the following sentence. If the Trustee is
appointed Successor Master Servicer pursuant to Section 10.2, the
provisions of this Section 11.5 shall not apply to expenses,
disbursements and advances made or incurred by the Trustee in its
capacity as Successor Master Servicer, which shall be paid out of
the Servicing Fee. The provisions of this Section and Sections
8.4 and 8.9 shall survive the termination of this Agreement, the
termination of the Trust and the resignation or removal of the
Trustee.
83
91
Section 11.6 Eligibility Requirements for Trustee.
The Trustee hereunder shall (i) at all times be a bank organized
and doing business under the laws of the United States or any
state thereof, including the District of Columbia, authorized
under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000, subject to
supervision or examination by Federal or state authority, and
(ii) except for the initial Trustee, either be an Eligible Master
Servicer or have an Affiliate which is an Eligible Master
Servicer. If such bank publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purpose of this
Section 11.6, the combined capital and surplus of such corpora-
tion shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 11.6, the Trustee
shall resign immediately in the manner and with the effect
specified in Section 11.7.
Section 11.7 Resignation or Removal of Trustee.
(a) The Holders of Investor Certificates evidenc-
ing in the aggregate 51% of the Aggregate Invested Amount may at
any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of such
instruments shall be delivered to each of the Transferor, the
Master Servicer, the Rating Agencies, the Trustee so removed and
the successor trustee so appointed.
(b) Subject to Section 11.7 (d), the Trustee may
at any time resign and be discharged from the trust hereby cre-
ated by giving written notice thereof to the Transferor, the
Master Servicer and the Rating Agencies. Upon receiving such
notice of resignation, the Master Servicer shall promptly appoint
a successor trustee by written instrument, copies of which in-
strument shall be delivered to the resigning Trustee, the succes-
sor trustee, the Transferor and the Rating Agencies. If no
successor trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor
trustee.
(c) If at any time the Trustee shall cease to be
eligible in accordance with the provisions of Section 11.6 hereof
and shall fail to resign after written request therefor by the
Master Servicer, or if at any time the Trustee shall be legally
unable to act, or shall be adjudged a bankrupt or insolvent, or
84
92
if a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then the Master
Servicer may remove the Trustee and promptly appoint a successor
trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the Trustee so removed and one
copy to the successor trustee.
(d) Any resignation or removal of the Trustee
pursuant to any of the provisions of this Section 11.7 shall not
become effective until either (i) the Trust has been completely
liquidated in accordance with Article XII of this Agreement and
all proceeds of such liquidation have been distributed pursuant
to the terms of this Agreement or (ii) acceptance of appointment
by a successor trustee having the qualifications set forth in
Section 26(a)(1) of the Investment Company Act of 1940 and
Section 11.6 as provided in Section 11.8 hereof.
Section 11.8 Successor Trustee.
(a) Any successor trustee appointed as provided
in Section 11.7 hereof shall execute, acknowledge and deliver to
the Transferor and to its predecessor Trustee an instrument
accepting such appointment hereunder, and thereupon the resig-
nation or removal of the predecessor Trustee shall become
effective and such successor trustee, without any further act,
deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor
hereunder and under any Supplement with like effect as if
originally named as Trustee herein. The predecessor Trustee
shall deliver to the successor trustee all documents or copies
thereof, and statements held by it hereunder at the expense of
the Master Servicer; and the Transferor and the predecessor
Trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for fully and cer-
tainly vesting and confirming in the successor trustee all such
rights, powers, duties and obligations. The Master Servicer
shall immediately give notice to the Rating Agency upon the
appointment of a successor trustee.
(b) No successor trustee shall accept appointment
as provided in this Section 11.8 unless at the time of such
acceptance such successor trustee shall be eligible under the
provisions of Section 11.6 hereof.
(c) Upon acceptance of appointment by a successor
trustee as provided in this Section 11.8 hereof, such successor
trustee shall mail notice of such succession hereunder to all
85
93
Certificateholders at their addresses as shown in the Certificate
Register.
Section 11.9 Merger or Consolidation of Trustee. Any
Person into which the Trustee may be merged or converted or with
which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which the Trustee shall be
a party, or any Person succeeding to all or substantially all of
the corporate trust business of the Trustee, shall be the succes-
sor of the Trustee hereunder, provided such Person shall be eli-
gible under the provisions of Section 11.6 hereof, without the
execution or filing of any paper or any further act on the part
of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 11.10 Appointment of Co-Trustee or Separate
Trustee.
(a) Notwithstanding any other provisions of this
Agreement or any Supplement, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any
part of the Trust Assets may at the time be located, the Trustee
shall have the power and may execute and deliver all instruments
to appoint, with the prior written consent of the Master
Servicer, one or more Persons to act as a co-trustee or co-
trustees, or separate trustee or separate trustees, of all or any
part of the Trust Assets, and to vest in such Person or Persons,
in such capacity and for the benefit of the Certificateholders,
such title to the Trust Assets, or any part thereof, and, subject
to the other provisions of this Section 11.10, such powers,
duties, obligations, rights and trusts as the Trustee may con-
sider necessary or desirable. With the consent of Investor
Certificateholders evidencing more than 50% of the Invested
Amount of each Series, any such co-trustee or separate trustee
hereunder shall not be required to meet the terms of eligibility
as a successor trustee under Section 11.6. Any such appointment
of a co-trustee shall not relieve the Trustee of its obligations
under this Agreement.
(b) Every separate trustee and co-trustee shall,
to the extent permitted by law, be appointed and act subject to
the following provisions and conditions:
(i) All rights, powers, duties and obliga-
tions conferred or imposed upon the Trustee shall be con-
ferred or imposed upon and exercised or performed by the
Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is
not authorized to act separately without the Trustee joining
in such act), except to the extent that under any law of any
86
94
jurisdiction in which any particular act or acts are to be
performed (whether as Trustee hereunder or as successor to
the Master Servicer hereunder), the Trustee shall be incom-
petent or unqualified to perform such act or acts, in which
event such rights, powers, duties and obligations (including
the holding of title to the Trust Assets or any portion
thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but
solely at the direction of the Trustee;
(ii) No trustee hereunder shall be personally
liable by reason of any act or omission of any other trustee
hereunder; and
(iii) The Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the
Trustee shall be deemed to have been given to each of the then
separate trustees and co-trustees, as effectively as if given to
each of them. Every instrument appointing any separate trustee
or co-trustee shall refer to this Agreement and the conditions of
this Article XI. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the
estates or property specified in its instrument of appointment,
either jointly with the Trustee or separately, as may be provided
therein, subject to all the provisions of this Agreement or any
Supplement, specifically including every provision of this Agree-
ment or any Supplement relating to the conduct of, affecting the
liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy there-
of given to the Master Servicer and the Transferor.
(d) Any separate trustee or co-trustee may at any time
constitute the Trustee, its agent or attorney-in-fact with full
power and authority, to the extent not prohibited by law, to do
any lawful act under or in respect to this Agreement or any Sup-
plement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and
trusts shall vest in and be exercised by the Trustee, to the
extent permitted by law, without the appointment of a new or
successor trustee.
Section 11.11 Tax Returns. In the event the Trust
shall be required to file tax returns, the Master Servicer shall
prepare or shall cause to be prepared any tax returns required to
be filed by the Trust and shall remit such returns to the Trustee
for signature at least five days before such returns are due to
be filed; the Trustee shall promptly sign such returns and
87
95
deliver such returns after signature to or at the direction of
the Master Servicer and such returns shall be filed by or at the
direction of the Master Servicer. The Master Servicer shall also
prepare or shall cause to be prepared all tax information re-
quired by law to be distributed to Investor Certificateholders.
The Trustee, upon request, will furnish the Master Servicer with
all such information known to the Trustee as may be reasonably
required in connection with the preparation of all tax returns of
the Trust, and shall, upon request, execute such returns. Not-
withstanding anything to the contrary in this Agreement, in no
event shall the Trustee or the Master Servicer be liable for any
liabilities, costs or expenses of the Trust, the Investor Certi-
ficateholders or the Certificate Owners arising out of the appli-
cation of any tax law, including without limitation Federal,
state or local income or excise taxes or any other tax imposed on
or measured by income (or any interest, penalty or addition with
respect thereto or arising from a failure to comply therewith).
Section 11.12 Trustee May Enforce Claims Without
Possession of Certificates. All rights of action and claims
under this Agreement or any Supplement or the Certificates may be
prosecuted and enforced by the Trustee without the possession of
any of the Certificates or the production thereof in any pro-
ceeding relating thereto, and any such proceeding instituted by
the Trustee shall be brought in its own name as trustee. Any
recovery of judgment shall, after provision for the payment of
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, be for the ratable bene-
fit of the Certificateholders in respect of which such judgment
has been obtained.
Section 11.13 Suits for Enforcement. If a Master
Servicer Default of which a Responsible Officer has knowledge
shall occur and be continuing, the Trustee in its discretion may,
subject to the provisions of Section 10.1, proceed to protect and
enforce its rights and the rights of the Certificateholders under
this Agreement or any Supplement by suit, action or proceeding in
equity or at law or otherwise, whether for the specific perfor-
mance of any covenant or agreement contained in this Agreement or
any Supplement or in aid of the execution of any power granted in
this Agreement or any Supplement or for the enforcement of any
other legal, equitable or other remedy as the Trustee, being
advised by counsel, shall deem most effectual to protect and
enforce any of the rights of the Trustee or the Certificate-
holders. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on
behalf of any Certificateholder any plan of reorganization,
arrangement, adjustment or composition affecting the Certificates
or the rights of any holder thereof, or authorize the Trustee to
88
96
vote in respect of the claim of any Certificateholder in any such
proceeding.
Section 11.14 Rights of Certificateholders to Direct
Trustee. The Holders of Investor Certificates evidencing
Undivided Interests aggregating more than 50% of the Invested
Amount of any Series with respect to matters affecting the re-
lated Series, shall have the right to direct the time, method and
place at or by which the Trustee conducts any proceeding for any
remedy available to the Trustee, or exercises any such trust or
power conferred upon the Trustee; provided, however, that, sub-
ject to Section 11.1, the Trustee shall have the right to decline
to follow any such direction if the Trustee being advised by
counsel determines that the action so directed may not lawfully
be taken, or if the Trustee shall, by a Responsible Officer or
Responsible Officers of the Trustee, reasonably determine that
the proceedings so directed would be illegal or involve it in
personal liability or be unduly prejudicial to the rights of
Certificateholders not parties to such direction; and provided,
further, that nothing in this Agreement or any Supplement shall
impair the right of the Trustee to take any action deemed proper
by the Trustee and which is not inconsistent with such direction
of the Certificateholders.
Section 11.15 Representations and Warranties of
Trustee. The Trustee represents and warrants, as of the Initial
Closing Date and, with respect to any Series, as of the related
Closing Date, that:
(i) The Trustee is a bank organized, existing and
in good standing under the laws of the United States or
one of the States thereof;
(ii) The Trustee has full power, authority and
right to execute, deliver and perform this Agreement,
and has taken all necessary action to authorize the
execution, delivery and performance by it of this
Agreement;
(iii) This Agreement has been duly executed and
delivered by the Trustee;
(iv) The Trustee is not required to obtain, other
than those that have already been obtained, any author-
ization, consent, approval, exemption or license from,
or to file any registration with, any Governmental
Authority having jurisdiction over the trust powers of
the Trustee, as a condition to the validity of, or for
the execution and delivery of, this Agreement, or to
89
97
the performance by the Trustee of its obligations under
this Agreement; and
(v) This Agreement constitutes the legal, valid
and binding obligation of the Trustee, enforceable in
accordance with its terms (subject to the effect of any
applicable bankruptcy, insolvency, reorganization,
moratorium or similar law affecting creditors' rights
generally).
Section 11.16 Maintenance of Office or Agency. The
Trustee will maintain at its expense in Chicago, Illinois an
office or offices or agency or agencies where notices and demands
to or upon the Trustee in respect of the Certificates and this
Agreement may be served. The Trustee initially appoints the
Corporate Trust Office as its office for such purposes. The
Trustee will give prompt written notice to the Master Servicer
and to Certificateholders of any change in the location of the
Certificate Register or any such office or agency.
Section 11.17 Notices. The Trustee shall promptly
deliver to the Transferor and the Master Servicer any notices it
receives in connection with this Agreement or any Supplement
which are not otherwise delivered to such parties unless a
Responsible Officer of the Trustee reasonably believes that a
copy of such notice has previously been so delivered.
Section 11.18 Compliance Certificates and Opinions.
Upon any application or request by the Transferor to the Trustee
to take any action under any provision of this Agreement, the
Transferor shall furnish to the Trustee an Officer's Certificate
stating that all conditions precedent, if any, provided for in
this Agreement (including any covenant compliance with consti-
tutes a condition precedent) relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any,
have been complied with, except that, in the case of any such
application or request as to which the furnishing of documents is
specifically required by any provision of this Agreement relating
to such particular application or request, no additional certifi-
cate or opinion need be furnished.
Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Agreement shall
include:
(a) a statement that each individual signing such
certificate or opinion has read such covenant or condition and
the definitions herein relating thereto;
90
98
(b) a brief statement as to the nature and scope
of the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such
individual, he or she has made such examination or investigation
as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been complied
with; and
(d) a statement as to whether, in the opinion of
each such individual, such condition or covenant has been com-
plied with.
Section 11.19 Monthly Report of Trustee. On or
promptly following each Payment Date, commencing on the Payment
Date occurring on February 25, 1994, the Trustee shall provide a
written assurance that, but without conducting any independent
investigation, no Responsible Officer, has actual knowledge that
an event has occurred which, with the passage of time or the
giving of notice or both, would constitute an Event of Termina-
tion or a Master Servicer Default. The Trustee is hereby
authorized to conclusively rely upon an Officer's Certificate of
the Master Servicer as a basis for providing any such assurance.
[END OF ARTICLE XI]
91
99
ARTICLE XII
TERMINATION
Section 12.1 Termination of Trust. (a) The respec-
tive obligations and responsibilities of the Transferor, the
Master Servicer and the Trustee created hereby (other than the
obligation of the Trustee to make payments to Certificateholders
as hereafter set forth) shall terminate, except with respect to
the duties described in Sections 8.4, 11.5 and 12.3(b), on the
Business Day after the day on which funds shall have been depos-
ited in the Collection Account or Excess Funding Account at the
times and in the amounts provided for in this Agreement (includ-
ing, without limitation, pursuant to Sections 2.4, 12.1(b), 12.2
and Article IV hereof) sufficient to pay the Aggregate Invested
Amount plus interest accrued at the applicable Certificate Rates
through the last day of the month preceding the next Payment Date
in full with respect to each Series of Certificates; provided,
however, that in no event shall the Trust continue beyond the
expiration of 21 years from the death of the last survivor of the
descendants, living on the date of this Agreement, of George
Herbert Walker Bush, former President of the United States of
America (the "Final Trust Termination Date"). The Master
Servicer shall notify the Trustee of any prospective termination
pursuant to this Section 12.1(a) not less than ten days in
advance thereof.
(b) If on the Transfer Date in the month immedi-
ately preceding the month in which the Final Trust Termination
Date occurs (after giving effect to all transfers, withdrawals,
deposits and drawings to occur on such date and the payment of
principal on any Series of Investor Certificates to be made on
the related Payment Date pursuant to Section 4.6) the Invested
Amount of any Series would be greater than zero, the Master
Servicer on behalf of the Trustee shall sell in a commercially
reasonable manner not later than 30 days after such Transfer Date
all of the Receivables. The proceeds of such sale, net of all
reasonable expenses of the Master Servicer incurred in connection
with such sale, which shall be paid to the Master Servicer from
such proceeds, shall be treated as Collections of the Receivables
and shall be allocated in accordance with Section 4.3. During
such 30-day period, the Master Servicer shall continue to collect
Collections on the Receivables and allocate such payments in
accordance with the provisions of Section 4.3.
Section 12.2 Optional Purchase and Series Termination
Date of Investor Certificates of any Series.
(a) If provided in any Supplement, on a Payment
Date the Transferor may, but shall not be obligated to, purchase
92
100
any Series of Investor Certificates by depositing into the
Collection Account, on the preceding Transfer Date, an amount
equal to the initial principal balance of such Series of Cer-
tificates minus the amount of principal payments made with
respect to such Certificates prior to such Payment Date thereof
plus interest accrued and unpaid thereon at the applicable
Certificate Rate through the Record Date preceding the Payment
Date on which the purchase will be made; provided, however that
no such purchase of any Certificates shall occur unless the
Transferor shall deliver to the Trustee an Opinion of Counsel
reasonably acceptable to the Trustee to the effect that such
purchase of any Certificates would not constitute a fraudulent
conveyance of the Transferor.
(b) The amount deposited pursuant to Section
12.2(a) shall be paid to the Investor Certificateholders of the
related Series, pursuant to Article IV on the Payment Date fol-
lowing the date of such deposit. All Certificates which are
purchased by the Transferor pursuant to Section 12.2(a) shall be
delivered by the Transferor upon such purchase to, and be can-
celled by, the Transfer Agent and Registrar and be disposed of in
a manner satisfactory to the Trustee and the Transferor.
(c) All principal or interest with respect to any
Series of Investor Certificates shall be due and payable no later
than the Series Termination Date with respect to such Series.
Unless otherwise provided in a Supplement, in the event that the
Invested Amount of any Series of Certificates is greater than
zero on its Series Termination Date, the Trustee will use its
best efforts to sell or cause to be sold in a commercially
reasonable manner, and pay the proceeds (net of all reasonable
expenses of the Trustee incurred in connection with such sale,
which shall be paid to the Trustee from such proceeds), to the
extent necessary, to all Certificateholders of such Series pro
rata based on their respective Undivided Interests in final
payment of all principal of and accrued interest on such Series
of Certificates, an amount of Receivables up to 110% of the
Invested Amount of such Series as of the close of business on
such Series Termination Date; provided, however, that no selec-
tion procedures believed by the Trustee to be adverse to Certifi-
cateholders of any Series shall be used in selecting such Recei-
vables and in no event shall the amount of Receivables sold cause
the Transferor Amount to be less than or equal to zero. Any
proceeds of such sale in excess of such principal and interest
paid and the expenses of the Trustee shall be paid to the
Transferor. Upon payment of the proceeds of such sale as
provided in this Section 12.2(c), all principal of and accrued
interest on such Series shall be deemed for all purposes to have
been paid in full. Upon such Series Termination Date, or (if
applicable) on the first Payment Date following the sale of
93
101
Receivables called for above in this Section 12.2(c), with
respect to the applicable Series of Certificates, final payment
of all amounts allocable to any Investor Certificates of such
Series shall be made in the manner provided in Section 12.3.
Section 12.3 Final Payment.
(a) Written notice of any termination, specifying
the Payment Date upon which the Investor Certificateholders of
any Series may surrender their Certificates for payment of the
final distribution with respect to such Series and cancellation,
shall be given (subject to at least ten days' prior notice from
the Master Servicer to the Trustee) by the Trustee to the Inves-
tor Certificateholders of such Series mailed not later than the
fifth day of the month of such final distribution specifying (i)
the Payment Date (which shall be the Payment Date in the month in
which the deposit is made pursuant to Section 2.4 or 12.2(a))
upon which final payment of such Investor Certificates will be
made upon presentation and surrender of such Investor Certifi-
cates, in accordance with the payment instructions of such
Investor Certificateholders, at the office or offices therein
designated, (ii) the amount of any such final payment and (iii)
that the Record Date otherwise applicable to such Payment Date is
not applicable, payments being made only upon presentation and
surrender of the Investor Certificates at the office or offices
therein specified; provided, that notwithstanding the failure of
any Investor Certificateholder to surrender an Investor Certifi-
cate for final payment as contemplated herein, payment shall be
made in accordance with the payment instructions of such Investor
Certificateholder upon receipt from such Investor Certificate-
holder of a satisfactory written indemnification of the Trustee
or the Paying Agent with respect to the failure to deliver such
Investor Certificate. The Master Servicer's notice to the Trus-
tee in accordance with the preceding sentence shall be accom-
panied by an Officer's Certificate setting forth the information
specified in Section 5.2(a), as applicable, covering the period
during the then current calendar year through the date of such
notice and setting forth the date of such final distribution.
The Trustee shall give such notice to the Transfer Agent and
Registrar and the Paying Agent at the time such notice is given
to such Certificateholders.
(b) Notwithstanding the termination of the Trust
pursuant to Section 12.1(a) or the occurrence of the Series
Termination Date with respect to any Series, all funds then on
deposit in the Collection Account shall continue to be held in
trust for the benefit of the Certificateholders and the Paying
Agent or the Trustee shall pay such funds to the Certificate-
holders upon surrender of their Certificates. In the event that
all of the Investor Certificateholders of all, or the applicable,
94
102
Series, shall not surrender their Certificates for cancellation
within six months after the date specified in the written notice
referred to in the first sentence of Section 12.3(a), the Trustee
shall give a second written notice to the remaining Investor
Certificateholders, upon receipt of the appropriate records from
the Transfer Agent and Registrar, to surrender their Certificates
for cancellation and receive the final distribution with respect
thereto. If within one year after the second notice all, or the
applicable Investor Certificates of such Series shall not have
been surrendered for cancellation, the Trustee may take appro-
priate steps, or may appoint an agent to take appropriate steps,
to contact the remaining Investor Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be
paid out of the funds in the Collection Account held for the
benefit of such Investor Certificateholders.
(c) All Certificates surrendered for payment of
the final distribution with respect to such Certificates and
cancellation, shall be cancelled by the Transfer Agent and
Registrar and be disposed of in a manner satisfactory to the
Trustee. Upon the termination of the Trust, the Transferor shall
return the Transferor Certificate to the Trustee, and the Trustee
shall dispose of such Certificate in a manner satisfactory to the
Trustee.
Section 12.4 Transferor's Termination Rights. Upon
the termination of the Trust pursuant to Section 12.1 and the
surrender of the Transferor Certificate, the Trustee shall return
to the Transferor (without recourse, representation or warranty)
all right, title and interest of the Trustee in the Receivables
and the other Trust Assets, whether then existing or thereafter
created, all moneys due or to become due with respect thereto,
and all proceeds thereof except for amounts held by the Trustee
pursuant to Section 12.3(b). The Trustee shall execute and
deliver such instruments of release, transfer and assignment, in
each case prepared by the Transferor and without recourse,
representation or warranty, as shall be reasonably requested by
the Transferor to vest in the Transferor all right, title and
interest which the Trustee had in the Receivables and other Trust
Assets.
[END OF ARTICLE XII]
95
103
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.1 Amendment.
(a) This Agreement or any Supplement may be
amended from time to time by the Master Servicer, the Transferor
and the Trustee, without the consent of any of the holders of the
Investor Certificates of any Series, to cure any ambiguity, to
correct or supplement any provisions herein, to correct or sup-
plement any provisions herein to maintain a Rating Agency's
rating with respect to any outstanding Series which may be
inconsistent with any other provisions therein or to add any
other provisions with respect to matters or questions raised
under this Agreement which shall not be inconsistent with the
provisions of this Agreement, or to amend or add any provision so
that for the purposes of Federal or applicable state tax the
Investor Certificates will be considered to be indebtedness or
that the Trust will not be taxed as a corporation or a separate
entity; provided, however, that such action shall not, as
evidenced by an Opinion of Counsel delivered to the Trustee,
adversely affect in any material respect the interests of the
holders of the Investor Certificates of any Series, cause the
Trust to be subject to Federal or applicable state tax at the
entity level or adversely affect the Federal or applicable state
tax characterization of any outstanding Series of Certificates.
No provision of this Section 13.1 shall limit the amendments to
Exhibit G hereto contemplated by Section 2.6(i).
(b) This Agreement and any Supplement may also be
amended from time to time by the Master Servicer, the Transferor
and the Trustee with the prior consent of the holders of investor
certificates evidencing Undivided Interests aggregating not less
than 51% of the aggregate of the Invested Amounts of all Series
adversely affected thereby (or in the case of a Series having
more than one class of Investor Certificates, each class of such
Series materially adversely affected thereby), for the purpose of
adding any provisions to or changing in any manner or eliminating
any of the provisions of this Agreement or of modifying in any
manner the rights of the Certificateholders of any Series then
issued and outstanding; provided, however, that no such amendment
under this subsection (b) shall (i) reduce in any manner the
amount of, or delay the timing of distributions that are required
to be made on any Certificate of such Series without the consent
of the related Investor Certificateholder; (ii) change the
definition of or the manner of calculating the interest of any
Investor Certificate without the consent of all such Investor
Certificateholders; (iii) reduce the aforesaid percentage
required to consent to any such amendment by the Investor
96
104
Certificateholders of any Series, in each case without the
consent of all such Investor Certificateholders of any Series;
(iv) be effective unless each Rating Agency first shall have
confirmed in writing that such amendment will not result in such
Rating Agency reducing or withdrawing its then current rating on
any outstanding Series of Certificates; provided, further, that
clauses (i), (ii), (iii) and (iv) of the immediately preceding
provision shall not apply to any amendment or modification for
which consent is obtained from Investor Certificateholders repre-
senting 100% of the Invested Amount of each Series adversely
affected thereby.
(c) Promptly following the execution of any
amendment pursuant to subsection (b) above the Trustee shall
furnish written notification of the substance of such amendment
to each Certificateholder of all Series and each Rating Agency
(or with respect to an amendment of a Supplement, to the applica-
ble Series).
(d) It shall not be necessary for the consent of
the Investor Certificateholders under this Section 13.1 to
approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by the Persons re-
quired to consent under Section 13.1 shall be subject to such
reasonable requirements as the Trustee may prescribe.
(e) Notwithstanding anything to the contrary
contained in this Section 13.1, no consent of any Investor
Certificateholder shall be required for any amendment with
respect to Section 2.5 hereof provided that each Rating Agency
shall have approved and confirmed in writing that such amendment
will not cause any reduction or withdrawal of the rating of any
outstanding Series.
(f) Prior to the execution of any amendment to
this Agreement or any Supplement, the Trustee shall be entitled
to receive and rely upon an Opinion of Counsel stating that the
execution of such amendment is authorized or permitted by this
Agreement and that all conditions precedent to the execution and
delivery of such amendment have been satisfied and, if appli-
cable, the Opinion of Counsel required by Section 13.2(c). The
Trustee may, but shall not be obligated to, enter into any such
amendment which affects the Trustee's own rights, duties or
immunities under this Agreement, any Supplement or otherwise.
97
105
Section 13.2 Protection of Right, Title and Interest
of Trust.
(a) The Master Servicer shall cause this Agree-
ment, any Supplement, all amendments hereto or thereto and/or all
financing statements and continuation statements and any other
necessary documents covering the right, title and interest of the
Certificateholders and the Trustee to the Trust Assets to be
promptly recorded, registered and filed, and at all times to be
kept recorded, registered and filed, all in such manner and in
such places as may be required by law fully to preserve and
protect such right, title and interest. The Master Servicer
shall deliver to the Trustee file-stamped copies of, or filing
receipts for, any document recorded, registered or filed as
provided above, as soon as available following such recording,
registration or filing. The Transferor shall cooperate fully
with the Master Servicer in connection with the obligations set
forth above and will execute any and all documents reasonably
required to fulfill the intent of this Section 13.2(a).
(b) The Master Servicer will give the Trustee
prompt written notice of any relocation of any office from which
it services Receivables or keeps records concerning the Receiva-
bles or of its principal place of business or chief executive
office and whether, as a result of such relocation, the applica-
ble provisions of the UCC would require the filing of any amend-
ment of any previously filed financing or continuation statement
or of any new financing statement and shall file such financing
statements or amendments as may be necessary to perfect or to
continue the perfection of the Trustee's security interest in the
Receivables and the other Trust Assets. The Master Servicer will
at all times maintain each office from which it services Receiva-
bles and its principal executive office within the United States
of America.
(c) The Master Servicer will deliver to the
Trustee: (i) upon the execution and delivery of each amendment
of Articles I, II, III or IV hereof other than amendments pursu-
ant to Section 13.1(a), and (ii) on or before April 30 of each
year, beginning with 1995, an Opinion of Counsel (which may be
in-house counsel), substantially in the form of Exhibit H hereto,
dated as of a date between January 1 and April 30 of such year.
(d) If at any time the Master Servicer is no
longer Eagle Industrial, the Transferor shall deliver to the
Successor Master Servicer powers-of-attorney such that such
Successor Master Servicer may perform the obligations set forth
in Sections 13.2(a), 13.2(b) and 13.2(c).
98
106
Section 13.3 Limitation on Rights of
Certificateholders.
(a) The death or incapacity of any Investor
Certificateholder shall not operate to terminate this Agreement
or the Trust, nor shall such death or incapacity entitle such
Investor Certificateholder's legal representatives or heirs to
claim an accounting or to take any action or commence any
proceeding in any court for a partition or winding up of the
Trust, nor otherwise affect the rights, obligations and liabil-
ities of the parties hereto or any of them.
(b) No Certificateholder shall have any right to
vote (except as specifically provided in this Agreement or any
Supplement) or in any manner otherwise control the operation and
management of the Trust, or the obligations of the parties
hereto, nor shall anything herein set forth, or contained in the
terms of the Certificates, be construed so as to constitute the
Investor Certificateholders from time to time as general partners
or members of an association; nor shall any Investor Certificate-
holder be under any liability to any third person by reason of
any action taken by the parties to this Agreement pursuant to any
provision hereof.
(c) No Investor Certificateholder shall have any
right by virtue of any provisions of this Agreement or any
Supplement to institute any suit, action or proceeding in equity
or at law upon or under or with respect to this Agreement, unless
the Investor Certificateholders evidencing Undivided Interests
aggregating more than 33% of the Invested Amount of any Series
which may be materially adversely affected shall have made
written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may re-
quire against the costs, expenses and liabilities to be incurred
therein or thereby, and the Trustee, for 60 days after its
receipt of such request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or pro-
ceeding; it being understood and intended, and being expressly
covenanted by each Certificateholder with every other Certifi-
cateholder and the Trustee, that no one or more Certificate-
holders of a Series shall have any right in any manner whatever
by virtue or by availing itself or themselves of any provisions
of this Agreement or any Supplement to affect, disturb or pre-
judice the rights of the Certificateholders of any other Series,
or to obtain or seek to obtain priority over or preference to any
other such Certificateholder, or to enforce any right under this
Agreement or any Supplement, except in the manner herein provided
and for the equal, ratable and common benefit of all Certificate-
holders. For the protection and enforcement of the provisions of
99
107
this Section 13.3, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either
at law or in equity.
Section 13.4 GOVERNING LAW. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS,
WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. FOR PURPOSES OF THE
TAX CLASSIFICATION OF THE TRUST AND THE TAX CHARACTERIZATION OF
ANY CERTIFICATES ISSUED PURSUANT TO THIS AGREEMENT, THE TRUST
SHALL BE CONSTRUED AS ORGANIZED AND EXISTING UNDER THE LAWS OF
THE STATE OF ILLINOIS, WITHOUT REGARD TO ITS CONFLICTS OF LAWS
PROVISIONS.
Section 13.5 Notices. All demands, notices and
communications hereunder shall be in writing and shall be deemed
to have been duly given if personally delivered at, or two days
after mailing by certified or registered mail, return receipt
requested, or one day after dispatching by overnight delivery
service for which a receipt is available, or upon dispatch in the
case of facsimile transmission, (a) in the case of Eagle
Industrial to Two North Riverside Plaza, Suite 1100, Chicago,
Illinois 60606, Attention: Treasurer, Facsimile No.: (312) 993-
7944, with a copy to its General Counsel at the same address,
Facsimile No.: (312) 906-8402, (b) in the case of the Trustee,
to the Corporate Trust Department, Facsimile No.: (312) 828-
6528; (c) in the case of the Transferor to Two North Riverside
Plaza, Suite 1100, Chicago, Illinois 60606, Attention:
Treasurer, Facsimile No.: (312) 906-8372 or, as to each party,
at such other address as shall be designated by such party in a
written notice to each other party. Any notice required or
permitted to be mailed to a Certificateholder shall be given by
first-class mail, postage prepaid, at the address of such
Certificateholder as shown in the Certificate Register.
Notwithstanding any other provision hereof, any notice so mailed
within the time prescribed in this Agreement shall be conclusive-
ly presumed to have been duly given, whether or not the Certifi-
cateholder receives such notice.
Copies of all notices, reports, certificates and amend-
ments required to be delivered to the Rating Agencies hereunder
shall be mailed to the Rating Agencies as follows: Duff & Phelps
55 East Monroe Street, Chicago, Illinois 60603, Attention:
Structured Finance/Asset-Backed Monitoring Group and Standard &
Poor's Ratings Group, 26 Broadway, New York, New York 10004,
Attention: Asset-Backed Surveillance Group.
Section 13.6 Severability of Provisions. If any one
or more of the covenants, agreements, provisions or terms of this
100
108
Agreement shall for any reason whatsoever be held invalid, then
such covenants, agreements, provisions or terms shall be deemed
severable from the remaining covenants, agreements, provisions or
terms of this Agreement and shall in no way affect the validity
or enforceability of the other covenants, agreements, provisions
and terms of this Agreement or of the Certificates or rights of
the Certificateholders thereof.
Section 13.7 Assignment. Notwithstanding anything to
the contrary contained herein, except as provided in Sections 8.2
or 8.5, this Agreement, including any Supplement, may not be
assigned by the Master Servicer without the prior consent of the
Holders of Investor Certificates evidencing Undivided Interests
aggregating not less than 66 2/3% of the Invested Amount of the
Investor Certificates of each Series.
Section 13.8 Certificates Nonassessable and Fully
Paid. It is the intention of the parties to this Agreement that
the Investor Certificateholders shall not be personally liable
for obligations of the Trust, that the interests in the Trust
Assets represented by the Investor Certificates shall be non-
assessable for any losses or expenses of the Trust or for any
reason whatsoever, and that Certificates upon authentication
thereof by the Trustee pursuant to Sections 2.7 and 6.2 are and
shall be deemed fully paid.
Section 13.9 Further Assurances. The Transferor and
the Master Servicer agree to do and perform, from time to time,
any and all acts and to execute any and all further instruments
reasonably requested by the Trustee to effect more fully the
purposes of this Agreement, including, without limitation, the
execution of any financing statements or continuation statements
relating to the Receivables and the other Trust Assets for filing
under the provisions of the UCC.
Section 13.10 No Waiver; Cumulative Remedies. No
failure to exercise and no delay in exercising, on the part of
any party hereto or the Certificateholders, any right, remedy,
power or privilege hereunder, shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exhaustive of any rights,
remedies, powers and privileges provided by law.
Section 13.11 Counterparts. This Agreement and any
Supplement may be executed in two or more counterparts (and by
different parties on separate counterparts), each of which shall
101
109
be an original, but all of which together shall constitute one
and the same instrument.
Section 13.12 Third-Party Beneficiaries. This
Agreement and any Supplement will inure to the benefit of and be
binding upon the parties hereto, the Certificateholders, and
their respective permitted successors and assigns. Except as
otherwise provided in this Agreement, no other Person will have
any right or obligation hereunder.
Section 13.13 Actions by Certificateholders.
(a) Wherever in this Agreement or any Supplement,
a provision is made that an action may be taken or a notice,
demand or instruction given by Investor Certificateholders, such
action, notice or instruction may be taken or given by any
Investor Certificateholder of any Series, unless such provision
requires a specific percentage of Investor Certificateholders of
a certain Series or all Series.
(b) Any request, demand, authorization, direc-
tion, notice, consent, waiver or other action by a Certificate-
holder shall bind such Certificateholder and every subsequent
holder of such Certificate issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done or omitted to be done by the Trustee or
the Master Servicer in reliance thereon, whether or not notation
of such action is made upon such Certificate.
(c) Any request, demand, authorization, direc-
tion, notice, consent, waiver or other action provided by this
Agreement or any Supplement to be given or taken by Certificate-
holders may be embodied in and evidenced by one or more instru-
ments which are substantially similar and are signed by such
Certificateholders in person or by agent duly appointed in writ-
ing; and except as herein otherwise expressly provided, such
request, demand, authorization, direction, notice, consent,
waiver or other action shall become effective when such instru-
ment or instruments are delivered to the Trustee and, when re-
quired, to the Transferor or the Master Servicer. Proof of
execution of any such instrument or of a writing appointing any
such agent shall be sufficient for any purpose of this Agreement
or any Supplement and conclusive in favor of the Trustee, the
Transferor and the Master Servicer, if made in the manner pro-
vided in this Section.
(d) The fact and date of the execution by any
Certificateholder of any such instrument or writing may be proved
in any manner which the Trustee reasonably deems sufficient.
102
110
(e) The Trustee may require such additional proof
of any matter referred to in this Section as it reasonably shall
deem necessary.
Section 13.14 Merger and Integration. Except as
specifically stated otherwise herein, this Agreement sets forth
the entire understanding of the parties relating to the subject
matter hereof, and all prior understandings, written or oral, are
superseded by this Agreement. This Agreement may not be modi-
fied, amended, waived or supplemented except as provided herein.
Section 13.15 Headings. The headings herein are for
purposes of reference only and shall not otherwise affect the
meaning or interpretation of any provision hereof.
Section 13.16 No Bankruptcy Petition Against the
Transferor. The Trustee (solely as Trustee, Paying Agent,
Transfer Agent, Registrar and Successor Master Servicer, if
applicable), each Investor Certificateholder and Certificate-
owner, by acquiring an interest in an Investor Certificate or
Book-Entry Certificate, the Master Servicer, any Authenticating
Agent and any Paying Agent and Transfer Agent and Registrar other
than the Trustee and the Master Servicer, severally and not
jointly, each hereby covenants and agrees that, prior to the date
which is one year and one day after the payment in full of all
Invested Amounts, it will not institute against, or join any
other Person in instituting against, the Transferor any bank-
ruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other similar proceeding under any Debtor Relief
Law.
[END OF ARTICLE XIII]
-103-
111
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers as of
the day and year first above written.
CENTRALLY HELD EAGLE RECEIVABLES
PROGRAM, INC.,
as Transferor
By \s\ Anthony Navitsky
Name: Anthony Navitsky
Title: Vice President
EAGLE INDUSTRIAL PRODUCTS
CORPORATION,
as Master Servicer
By \s\ Anthony Navitsky
Name: Anthony Navitsky
Title: Vice President
CONTINENTAL BANK,
NATIONAL ASSOCIATION,
as Trustee
By \s\ M.A. Burns
Name: M.A. Burns
Title: Vice President
-104-
112
EXECUTION COPY
Annex X
EAGLE TRADE RECEIVABLES MASTER TRUST
DEFINITIONS
As used herein the following terms shall include in the
singular number the plural and in the plural number the singular:
"AAA Rated Dilution Reserve Amount" shall mean with
respect to any Settlement Period for each Designated Subsidiary,
the product of (A) the sum of (i) the Average Dilution Ratio
multiplied by the AAA Rated Stress Factor, plus (ii) the product
of (a) the Highest Rolling Average Dilution Ratio minus the
Average Dilution Ratio and (b) the percentage equivalent of a
fraction the numerator of which is the Highest Rolling Average
Dilution Ratio and the denominator of which is the Average
Dilution Ratio and (B) the aggregate Unpaid Balance of
Receivables Originated by each Originator during its applicable
Dilution Horizon Period.
"A Rated Dilution Reserve Amount" shall mean with
respect to any Settlement period for each Designated Subsidiary,
the product of (A) the sum of (i) the Average Dilution Ratio
multiplied by the A Rated Stress Factor, plus (ii) the product of
(a) the Highest Rolling Average Dilution Ratio minus the Average
Dilution Ratio and (b) the percentage equivalent of a fraction
the numerator of which is the Highest Rolling Average Dilution
Ratio and the denominator of which is the Average Dilution Ratio
and (B) the aggregate Unpaid Balance of Receivables Originated by
each Originator during its applicable Dilution Horizon Period.
"AAA Rated Loss Reserve Amount" on any Determination
Date shall mean the product of (a) the aggregate Unpaid Balance
of Receivables generated by each Designated Subsidiary during the
four most recently ended Settlement periods (or, in the case of
Hill, the three most recently ended Settlement periods) and (b)
the highest Default Ratio Average occurring over the most recent
twelve Settlement Periods and (c) the AAA Rated Stress Factor as
of the end of each Settlement Period.
"A Rated Loss Reserve Amount" on any Determination Date
shall mean the product of (a) the aggregate Unpaid Balance of
Receivables generated by each Designated Subsidiary during the
four most recently ended Settlement Periods (or, in the case of
Hill, the three most recently ended Settlement Periods and (b)
the highest Default Ratio Average occurring over the most recent
twelve Settlement Periods and (c) the A Rated Stress Factor as of
the end of each Settlement Period.
"AAA Rated Stress Factor" shall mean for any
Determination Date the sum of (A) the product of (1) the
percentage equivalent of a fraction (a) the numerator of which is
the aggregate Unpaid Balance of Receivables on such Determination
113
Date for the five Designated Subsidiaries which have the highest
dollar amount of Receivables during the preceding Settlement
Period and (b) the denominator of which is the aggregate Unpaid
Balance of Receivables on such Determination Date for all of the
Designated Subsidiaries, times (2) 2.5, plus (B) the product of
(1) the percentage equivalent of a fraction (a) the numerator of
which is the aggregate Unpaid Balance of Receivables on such
Determination Date originated for the remaining Designated
Subsidiaries during the preceding Settlement Period and (b) the
denominator of which is the aggregate Unpaid Balance of Receiva-
bles on such Determination Date for all of the Designated
Subsidiaries, times (2) 2.0.
"A Rated Stress Factor" shall mean for any Determi-
nation Date the sum of (A) the product of (1) the percentage
equivalent of a fraction (a) the numerator of which is the
aggregate Unpaid Balance of Receivables on such Determination
Date for the five Designated Subsidiaries which have the highest
dollar amount of Receivables during the preceding Settlement
Period and (b) the denominator of which is the aggregate Unpaid
Balance of Receivables on such Determination Date for all of the
Designated Subsidiaries, times (2) 2.0, plus (B) the product of
(1) the percentage equivalent of a fraction (a) the numerator of
which is the aggregate Unpaid Balance of Receivables on such
Determination Date for the remaining Designated Subsidiaries
during the preceding Settlement Period and (b) the denominator of
which is the aggregate Unpaid Balance of Receivables on such
Determination Date for all of the Designated Subsidiaries, times
(2) 1.65.
"AAA Rated Weighted Average Dilution Ratio" as of any
Determination Date, shall mean the percentage equivalent of a
fraction the numerator of which is the sum of the AAA Rated
Dilution Reserve Amounts for all the Originators and the denomi-
nator of which is the aggregate Unpaid Balance of Adjusted
Eligible Receivables for all the Originators, in each case as of
the last day of the preceding Settlement Period.
"A Rated Weighted Average Dilution Ratio" as of any
Determination Date, shall mean the percentage equivalent of a
fraction the numerator of which is the sum of the A Rated
Dilution Reserve Amounts for all the Originators and the denomi-
nator of which is the aggregate Unpaid Balance of Adjusted
Eligible Receivables for all the Originators, in each case as of
the last day of the preceding Settlement Period.
"AAA Rated Weighted Average Loss Reserve Ratio" shall
mean the percentage equivalent of a fraction the numerator of
which is the sum of all the AAA Rated Loss Reserve Amounts and
the denominator of which is the aggregate Adjusted Eligible
Receivables at the end of a Settlement Period. The AAA Rated
2
114
Weighted Average Loss Reserve Ratio as calculated on each
Determination Date and included in the applicable Settlement
Statement shall remain in effect from and including the related
Determination Date to but excluding the following Determination
Date.
"A Rated Weighted Average Loss Reserve Ratio" shall
mean the percentage equivalent of a fraction the numerator of
which is the sum of all the A Rated Loss Reserve Amounts and the
denominator of which is the aggregate Adjusted Eligible
Receivables at the end of a Settlement Period. The A Rated
Weighted Average Loss Reserve Ratio as calculated on each
Determination Date and included in the applicable Settlement
Statement shall remain in effect from and including the related
Determination Date to but excluding the following Determination
Date.
"Adjusted Eligible Receivables" shall mean, for any
Business Day, the aggregate unpaid balance of Eligible
Receivables minus the sum of the aggregate unpaid balance of
Eligible Receivables for any Obligor at the end of the prior
Business Day in excess of the applicable Concentration Limit for
such Obligor at the end of such prior Business Day.
"Adverse Claim" shall mean any Lien, claim, security
interest, UCC Financing Statement, mortgage, deed of trust,
priority, pledge, charge, conditional sale, title retention
agreement, financing lease, encumbrance, option, interest or
similar right of any other Person or any agreement to give any of
the foregoing other than as expressly permitted pursuant to the
Pooling and Servicing Agreement, the Sale and Servicing Agreement
or the Contribution and Sale Agreement.
"Affiliate" of any Person shall mean any other Person
controlling, controlled by or under common control with such
Person or, in any event, a Person which has the power to vote 25%
or more of the securities having ordinary voting power for the
election of directors of the specified Person. As used herein,
"control" of a specified Person shall mean the ability to direct
or cause the direction of the management and policies of the
specified Person, whether through the direct or indirect
ownership of the voting securities of such specified Person, by
contract or otherwise.
"Aggregate Eligible Receivables" shall mean, for any
Business Day, the aggregate Unpaid Balances of the Receivables
held in the Trust that were Eligible Receivables at the end of
the prior Business Day.
3
115
"Aggregate Invested Amount" shall mean the sum of the
Invested Amounts with respect to all Series of Investor
Certificates then issued and outstanding.
"Aggregate Invested Percentage" shall mean the sum of
the Invested Percentages with respect to all Series of Investor
Certificates then issued and outstanding.
"Amortization" shall have, with respect to each Series,
the meaning specified in the applicable Supplement.
"Amortization Period" shall mean with respect to any
Series, the period following the Revolving Period, which may be
an Accumulation Period, a Controlled Amortization Period, an
Early Amortization Period, a Rapid Amortization Period (each as
defined in any related Supplement, if applicable) or as otherwise
defined in any related Supplement.
"Amortization Period Commencement Date" shall mean with
respect to any Series the day on which the Amortization Period
with respect thereto commences.
"Appointment Date" shall have the meaning specified in
Section 9.3 of the Pooling and Servicing Agreement.
"Authorized Newspaper" shall mean The Wall Street
Journal, The New York Times or if neither of the above is
published any newspaper of general circulation in the Borough of
Manhattan, The City of New York, New York, and printed in the
English language and customarily published on each Business Day,
whether or not published on Saturdays, Sundays and holidays.
"Average Dilution Ratio" shall mean, with respect to
any Settlement Period, the percentage equivalent of a fraction
the numerator of which is the aggregate amount of Dilutive
Credits occurring during the immediately preceding twelve
Settlement Periods for each of the Designated Subsidiaries and
the denominator of which is the aggregate Unpaid Balance of
Receivables originated by each Originator during each of the
immediately preceding twelve Settlement Periods.
"Book-Entry Certificates" shall mean certificates
evidencing a beneficial interest in the Investor Certificates,
ownership and transfers of which shall be made through book
entries by a Clearing Agency as described in Section 6.11 of the
Pooling and Servicing Agreement; provided, however, that after
the occurrence of a condition whereupon book-entry registration
and transfer are no longer permitted and Investor Certificates
are to be issued to the Certificate Owners, such certificates
shall no longer be "Book-Entry Certificates".
4
116
"Business Day" shall mean any day other than (a) a
Saturday or a Sunday, (b) any other day on which banking
institutions or trust companies in the State of New York
generally or The City of New York, New York, or the States of
Illinois and Delaware are not authorized or required by law to
close and, for the purposes of determining LIBOR only, shall mean
a day for dealings by and between banks in U.S. dollar deposits
in the London interbank eurodollar markets.
"Canadian Receivable" shall mean any Receivable the
Obligor of which is located in Canada and which is denominated in
Canadian dollars.
"Certificate" shall mean one of any Series of Investor
Certificates or the Transferor Certificate.
"Certificate Owner" shall mean, with respect to a
Book-Entry Certificate, the Person who is the owner of such
Book-Entry Certificate, as reflected on the books of the Clearing
Agency, or on the books of a Person maintaining an account with
such Clearing Agency (directly or as an indirect participant, in
accordance with the rules of such Clearing Agency).
"Certificateholder" shall mean the Person in whose name
a Certificate is registered in the Certificate Register.
"Certificate Rate" shall mean, with respect to any
Series of Certificates, the percentage (or formula on the basis
of which such rate shall be determined) stated in the applicable
Supplement, which rate shall be calculated on the basis stated in
such Supplement.
"Certificate Register" shall mean the register
maintained pursuant to Section 6.3 of the Pooling and Servicing
Agreement.
"Clearing Agency" shall mean an organization registered
as a "clearing agency" pursuant to Section 17A of the Securities
Exchange Act of 1934, as amended.
"Clearing Agency Participant" shall mean a broker,
dealer, bank, other financial institution or other Person for
whom from time to time a Clearing Agency effects book-entry
transfers and pledges of securities deposited with the Clearing
Agency.
"Closing Date" shall mean, when used with respect to
any Series, the date of issuance of such Series.
"Code" shall mean the Internal Revenue Code of 1986, as
amended, and regulations promulgated thereunder.
5
117
"Collection Account" shall have the meaning specified
in Section 4.2 of the Pooling and Servicing Agreement.
"Collections" shall mean, with respect to the
Receivables on any Business Day, all amounts received by the
Master Servicer or paid to or deposited in Lock-Box Accounts
since the prior Business Day in collected funds in payment of or
in respect of the Receivables, including, without limitation, all
cash proceeds (as such term is defined in the UCC) thereof, all
Recoveries, and all amounts to be deposited into the Collection
Account as proceeds of the sale of Receivables pursuant to
Section 9.3 or Article XII of the Pooling and Servicing
Agreement.
"Concentration Limit" shall mean at any time (i) for
any Obligor the long-term unsecured senior debt obligations of
which are rated at least "A-" or its equivalent by the applicable
Rating Agency or the short-term deposits or commercial paper of
which is rated at least "A-1" or its equivalent by the applicable
Rating Agency or for any Level One Special Obligor, 7.5% of the
Aggregate Eligible Receivables; provided however, that the limit
shall instead be for Sears, Roebuck & Co., 12.0% of the Aggregate
Eligible Receivables so long as Sears, Roebuck & Co. maintains a
short term credit rating of "A-2" or its equivalent from the
applicable Rating Agency, (ii) for any Obligor the long-term
unsecured senior debt obligations of which are rated at least
"BBB-" or its equivalent and not more than "BBB+" or its
equivalent by the applicable Rating Agency, or the short-term
deposits or commercial paper of which is rated at least "A-3" or
its equivalent by the applicable Rating Agency or for any Level
Two Special Obligor, 5.0% of the Aggregate Eligible Receivables,
(iii) for any other Obligor, 2.0%, in each case of the Aggregate
Eligible Receivables; (iv) for all Obligors of Government
Receivables, taken in the aggregate and not individually, 2.0% of
the Aggregate Eligible Receivables, (v) for all Obligors of
Canadian Receivables not subject to currency rate protection,
taken in the aggregate and not individually, 2.0% of the
Aggregate Eligible Receivables, (vi) for all Obligors of Progress
Billing Receivables, taken in the aggregate and not individually,
2.0% of the Aggregate Eligible Receivables, (vii) for any Obligor
which is an Affiliate of Eagle Industrial, taken in the aggregate
and not individually, 1.0% of the Aggregate Eligible Receivables;
provided, that for purposes of this clause (vii), "Affiliate"
shall mean any Person as to which Eagle Industrial has the power
to vote 51% or more of the securities having ordinary voting
power for the election of directors of such Person, (viii) for
Obligors of Receivables which by their terms are payable more
than 60 days from the Date of Processing, taken in the aggregate
and not individually, 15.0% of the Aggregate Eligible
Receivables; provided, however, for purposes of this clause
(viii), if Days Sales Outstanding exceeds 65 as of the last
6
118
Business Day of the preceding Settlement Period, Obligors of such
Receivables may not exceed 5.0% of the Aggregate Eligible
Receivables until Days Sales Outstanding no longer exceeds 65;
and (ix) for any Eligible Airline Industry Obligor, listed on
Schedule 5 of the Agreement, which has a non-investment grade
credit rating, the Receivables generated by sales to any such
Obligor may not exceed 2.0% of Aggregate Eligible Receivables and
Receivables generated by Sales to such Obligors with non-
investment grade credit ratings may not exceed, in the aggregate,
6.0% of Aggregate Eligible Receivables.
"Contract" shall mean either a written agreement
between an Originator and a Person, or an invoice pursuant to an
open account or written agreement of a Person, pursuant to which
such Person is obligated to pay (or to cause payment to be made)
for goods, merchandise and/or services.
"Contribution and Sale Agreement" shall mean the
Contribution and Sale Agreement, dated as of January 1, 1994 by
and between the Transferor, as buyer, and Eagle Industrial, as
seller and contributor, as the same may be amended and supple-
mented from time to time.
"Corporate Trust Office" shall mean the principal
office of the Trustee at which at any particular time its
corporate trust business shall be administered, which office at
the date of the execution of the Pooling and Servicing Agreement
is located at 231 South LaSalle Street, Chicago, Illinois 60697.
"Credit and Collection Policy" shall mean the credit
extension policies and procedures and collection practices of the
Originators relating to Receivables and Contracts as in effect on
the Initial Closing Date, as set forth in Exhibit D to the
Pooling and Servicing Agreement, and as the same may be modified
from time to time in accordance with Section 3.3(k) of the
Pooling and Servicing Agreement.
"Daily Report" shall mean a report substantially in the
form of Exhibit B to the Pooling and Servicing Agreement and
delivered pursuant to Section 3.4(b) of the Pooling and Servicing
Agreement.
"Date of Processing" shall mean, with respect to any
transaction by an Originator which generates a Receivable, the
date that such transaction has been or should have been first
recorded on the computer master file of Receivables maintained by
the Master Servicer or applicable Sub-Servicer (without regard to
the effective date of such recordation).
"Days Sales Outstanding" for any date shall mean an
amount equal to the product of (a) 30 multiplied by (b) the
7
119
amount obtained by dividing (i) the aggregate Unpaid Balance of
Receivables at the end of the most recently ended Settlement
Period by (ii) the average of the Unpaid Balances of Receivables
originated during the three most recently ended Settlement
Periods immediately preceding the most recent Determination Date.
"Debtor Relief Laws" shall mean the Bankruptcy Code of
the United States of America and all other applicable liquida-
tion, conservatorship, bankruptcy, moratorium, rearrangement,
receivership, insolvency, reorganization, suspension of payments,
readjustment of debt, marshaling of assets or similar debtor
relief laws of the United States, any state or any foreign
country from time to time in effect affecting the rights of
creditors generally.
"Defaulted Amount" shall mean, with respect to any
Settlement Period, the sum of the amount of Adjusted Eligible
Receivables for each Designated Subsidiary which became Defaulted
Receivables during such Settlement Period and remained Defaulted
Receivables on the last Business Day of such Settlement Period.
"Default Ratio" shall mean, with respect to any
Settlement Period for each Designated Subsidiary, the percentage
equivalent of a fraction the numerator of which is the Defaulted
Amount and the denominator of which is the aggregate Unpaid
Balance of Receivables originated by each Designated Subsidiary
during the fifth Settlement Period prior to the most recently
ended Settlement Period (or, in the case of Hill, Mansfield and
Pfaudler, the seventh Settlement Period prior to the most
recently ended Settlement Period).
"Default Ratio Average" shall mean, with respect to any
Settlement Period for each Designated Subsidiary, the average of
the Default Ratios applicable to such Settlement Period and the
two immediately preceding Settlement Periods.
"Defaulted Receivable" shall mean, with respect to any
Settlement Period for each Designated Subsidiary a Receivable,
which when transferred to the Trust, was an Eligible Receivable,
that as of the end of any Business Day, (i) remains unpaid 91 to
120 days after the Original Due Date for such Receivable, or, in
the case of Receivables originated by Hill, Mansfield or
Pfaudler, remains unpaid for 151 to 180 days after the Original
Due Date for such Receivable or (ii) was written off by the
Master Servicer or the applicable Designated Subsidiary in
accordance with the Credit and Collection Policy as uncollectible
prior to becoming 91 days past due or, in the case of Receivables
originated by Hill, Mansfield and Pfaudler, prior to becoming 151
days past due.
8
120
"Definitive Certificates" shall have the meaning
specified in Section 6.11 of the Pooling and Servicing Agreement.
"Delinquent Receivable" shall mean, with respect to any
Business Day, any Eligible Receivable that is not a Defaulted
Receivable as of the end of any Settlement Period and as to which
all or any part of the outstanding balance remains unpaid more
than 60 days past its Original Due Date.
"Designated Subsidiary" shall mean each Subsidiary
which is designated as a Designated Subsidiary pursuant to
Section 8.07 of the Sale and Servicing Agreement and which has
not (i) been removed as a Designated Subsidiary in accordance
with Section 8.07 of the Sale and Servicing Agreement, or (ii)
ceased to be a Subsidiary. The Designated Subsidiaries shall
initially consist of the parties (other than Eagle Industrial) to
the Sale and Servicing Agreement. No Subsidiary may be
designated as a Designated Subsidiary without written
confirmation from each applicable Rating Agency that such
designation would not result in the withdrawal or reduction of
the rating of the Certificates. In the event that a Subsidiary
is removed as a Designated Subsidiary the Master Servicer shall
notify the Rating Agencies of such removal.
"Determination Date" shall mean the Business Day prior
to a Payment Date.
"Determination Date Statement" shall mean a report
substantially in the form of Exhibit E to the Pooling and
Servicing Agreement and delivered pursuant to Section 3.4(c) of
the Pooling and Servicing Agreement.
"Dilution Horizon Period" shall refer to the list
provided below.
Hart & Cooley 1.4 months
Hill 2.9 months
Mansfield 1.5 months
Elastimold 2.2 months
AEC 2.4 months
M-R-S 2.1 months
Lapp 1.3 months
Hendrix 2.3 months
Amerace-Canada 1.5 months
Pfaudler 1.9 months
Edlon 2.0 months
Chemineer 1.8 months
Burns Aerospace 2.4 months
DeVilbiss 1.5 months
Caron 3.0 months
Denman 1.3 months
9
121
Clevaflex 1.0 months
"Dilutive Credits" shall mean an amount equal to the
sum, without duplication, of (a) the aggregate reduction effected
on any date of determination in the Unpaid Balances of any
Receivables attributable to any defective, rejected or returned
goods, merchandise or services, any other non-cash discount, or
any adjustment or dispute granted with respect thereto by the
Master Servicer other than an adjustment that was made due to the
bankruptcy, insolvency or inability to pay of an Obligor, (b) the
aggregate reduction effected on such date in the Unpaid Balances
of any Receivables resulting from any setoff in respect of any
claim by any Obligor thereunder against Eagle Industrial or the
applicable Originator of the Receivable (whether or not such
claim is related to the transaction giving rise to the related
Receivable), but not to the extent that any Receivable so reduced
would, on the date of such Dilutive Credit, constitute a
Defaulted Receivable, (c) the aggregate Unpaid Balances of any
Receivables which on such date become subject to an Adverse Claim
or with respect to which the Transferor, pursuant to the Contri-
bution and Sale Agreement, or the Trustee, pursuant to the
Pooling and Servicing Agreement does not acquire or ceases to
have a valid transfer and assignment of all right, title and
interest therein and (d) all offsets, non-cash discounts and
other non-cash charges to any Receivable resulting from sales and
marketing activities of any Originator and the Obligor, includ-
ing, without limitation, coupon collection, display allowances or
cooperative advertising.
"Discount Factor" shall mean for the most recent
Settlement Period the greater of (I) the sum of (A) the greater
of (x) the A Rated Weighted Average Loss Reserve Ratio or (y) the
sum of (i) 14% (or 12%, in the event that Sears, Roebuck & Co.
has a long term debt rating of at least "A" or its equivalent
from S&P, or 10% in the event that the aggregate amount of
Eligible Receivables generated by sales to Sears, Roebuck & Co.
is less than or equal to 7.5% of Aggregate Eligible Receivables)
plus (ii) the weighted average of the most recent Highest Rolling
Average Dilution Ratio based on Adjusted Eligible Receivables for
each of the Designated Subsidiaries minus (iii) the most recent A
Rated Weighted Average Dilution Ratio plus (B) the most
recent Servicing Reserve Ratio plus (C) the most recent Yield Reserve
Ratio and (II) the sum of (A) the greater of (x) the most recent AAA Rated
Weighted Average Loss Reserve Ratio or (y) the sum of (i) 17% (or 15%, in the
event that the aggregate amount of Eligible Receivables generated by sales to
Sears, Roebuck & Co. is less than or equal to 7.5% of Aggregate Eligible
Receivables) plus (ii) the weighted average of the most recent Highest Rolling
Average Dilution Ratio based on Adjusted Eligible Receivables for each of the
Designated Subsidiaries minus (iii) the most recent AAA Rated Weighted Average
Dilution Ratio plus (B) the most
10
122
recent Servicing Reserve Ratio plus (C) the most recent Yield Reserve
Ratio plus (D) the most recent AAA Rated Weighted Average Dilution Ratio minus
(E) the most recent A Rated Weighted Average Dilution Ratio minus (F) the
percentage equivalent of a fraction, the numerator of which is the Class B
Invested Amount and the denominator of which is the aggregate Unpaid Balance of
Adjusted Eligible Receivables.
"Disputed Item" shall mean a Receivable with respect to
which the deposit of the payment received for such Receivable
might adversely affect the right to collect the full Unpaid
Balance of such Receivable.
"D&P" shall mean Duff & Phelps Credit Rating Co.
"Dollars" and "$" shall mean dollars in lawful currency
of the United States of America or Canada, as applicable.
"Eagle Industrial" shall mean Eagle Industrial Products
Corporation, a Delaware corporation.
"Eligible Airline Industry Obligors" shall mean,
initially, the Obligors listed on Schedule 5 to the Agreement;
provided, however, that the Master Servicer may add or remove
Obligors from such Schedule if the Master Servicer has received
written confirmation from S&P that such addition or removal would
not result in the withdrawal or reduction of the rating of any
Series of Certificates.
"Eligible Institution" shall have the meaning set forth
in Section 4.2(a) of the Pooling and Servicing Agreement.
"Eligible Master Servicer" shall mean Eagle Industrial
or an entity which, at the time of its appointment as Master
Servicer, (i) is legally qualified and has the capacity to
service the Receivables, (ii) has demonstrated the ability to
service professionally and completely a portfolio of similar
accounts in accordance with high standards of skill and care,
(iii) is qualified and, if required, licensed to use the software
that the Master Servicer is then currently using to service the
Receivables or obtains the right to use or has software which is
adequate to perform its duties under the Pooling and Servicing
Agreement (including pursuant to a license from or other
agreement with Eagle Industrial or any of its Affiliates) and
(iv) is not in a business which is a competitor of either the
Master Servicer or any of the Designated Subsidiaries.
"Eligible Receivable" shall mean a Receivable:
11
123
(i) which was created in the ordinary course of
business from the sale by an Originator of goods, merchan-
dise or services;
(ii) with respect to which the Obligor's
obligation to pay is evidenced by a Contract which provides
for full payment of the amount thereof in accordance with
the Credit and Collection Policy (subject to any applicable
advertising allowance, sales and marketing discount and
customary return policy), the delivery of the goods or
merchandise or the rendering of the services giving rise to
such Receivable has been completed and such goods or
merchandise or such services have not been rejected by the
Obligor;
(iii) that is not, as of the date of transfer to
the Trust, or at any time thereafter, a Delinquent
Receivable or a Defaulted Receivable;
(iv) which, to the extent any applicable law would
prohibit the assignment of any Government Receivable to the
Trustee, does not constitute any such prohibited Government
Receivable;
(v) that was created in compliance, in all
material respects, with the Credit and Collection Policy and
all Requirements of Law applicable to Eagle Industrial or
the applicable Designated Subsidiary and pursuant to a
Contract that complies, in all material respects, with the
Credit and Collection Policy and all Requirements of Law
applicable to Eagle Industrial or the applicable Designated
Subsidiary, that has not been written off by Eagle
Industrial or the applicable Designated Subsidiary, that was
purchased or acquired by the Transferor in accordance with
the Contribution and Sale Agreement, and, as of the date of
purchase or acquisition under the Contribution and Sale
Agreement and the subsequent transfer pursuant to the
Pooling and Servicing Agreement, the terms of which have not
been extended or modified except in accordance with the
Credit and Collection Policy;
(vi) with respect to which all consents, licenses,
approvals or authorizations of, or registrations or
declarations with, any Governmental Authority required to be
obtained, effected or given by Eagle Industrial or the
applicable Designated Subsidiary in connection with the
creation of such Receivable or the execution, delivery and
performance by Eagle Industrial or the applicable Designated
Subsidiary of the related Contract, have been duly obtained,
effected or given and are in full force and effect as of
such date of creation;
12
124
(vii) as to which, at the time of the creation and
contribution or sale to the Transferor of such Receivable,
Eagle Industrial or a Designated Subsidiary had good and
marketable title thereto free and clear of all Liens and
Adverse Claims except as contemplated by the Sale and
Servicing Agreement or the Contribution and Sale Agreement;
(viii) that arises under a Contract which has been
duly authorized and which, together with such Receivable, is
in full force and effect and such Contract, together with
such Receivable, constitutes the legal, valid and binding
payment obligation of the Obligor with respect thereto,
enforceable against such Obligor in accordance with its
terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws, now or hereafter in
effect, affecting the enforcement of creditors' rights in
general and except as such enforceability may be limited by
general principles of equity (whether considered in a suit
at law or in equity);
(ix) which, at the date of its creation or at any
time thereafter, is not, and does not arise under a Contract
which is, subject to any dispute, offset, defense, recision,
set-off, recoupment or counterclaim (other than Eagle
Industrial's or any Designated Subsidiary's, as appropriate,
advertising allowances, sales and marketing discount and
customary return policy) which has been communicated to the
Seller or about which the Seller has knowledge;
(x) that is an account receivable representing
all or part of the sales price of merchandise, insurance or
services (within the meaning of Section 3(c)(5) of the
Investment Company Act of 1940, as amended);
(xi) that is denominated and payable only in
United States or Canadian Dollars;
(xii) the Obligor of which (A) is not bankrupt,
insolvent, undergoing composition or adjustment of debts or
unable to make payment of its obligations when due and (B)
except in the case of Eligible Airline Industry Obligors,
Level One Special Obligors, Level Two Special Obligors or
Letter of Credit Obligors is located (within the meaning of
Section 9-103 of the applicable UCC) within the United
States of America or in Canada;
(xiii) that constitutes an "account" or a "general
intangible" under and as defined in Section 9-106 of the UCC
as then in effect in the State of Illinois; and
13
125
(xiv) that arises out of any business or related
business in which Eagle Industrial or a Designated
Subsidiary is engaged, the products or services of which are
distributed through substantially the same distribution
channels as those used with respect to products of such
businesses; provided, however, that any Receivable that
becomes subject to a first priority lien, pursuant to
statutes in effect in the states of Pennsylvania or New
Hampshire, will become an Ineligible Receivable for the
purposes of Section 2.4(c);
Notwithstanding any of the above, no portion of the Unpaid
Balance of an Eligible Receivables that is subject to a Dilutive
Credit will be considered an Eligible Receivable.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended from time to time, and the
regulations promulgated thereunder.
"ERISA Affiliate" shall mean with respect to any
Person, at any time, each trade or business (whether or not
incorporated) that would, at the time, be treated together with
such Person as a single employer under Section 4001 of ERISA or
Sections 414(b), (c), (m) or (o) of the Code.
"Event of Termination" shall have, with respect to any
Series, the meaning specified in Section 9.1 of the Pooling and
Servicing Agreement and any Supplement.
"Excess Funding Account" shall have the meaning set
forth in Section 4.2(b) of the Pooling and Servicing Agreement.
"Excess Funding Account Deposit Amount" shall mean,
with reference to any day on which the Transferor Amount is, or
would be, less than the Minimum Transferor Amount, an amount
equal to the difference between the Minimum Transferor Amount and
the Transferor Amount.
"FDIC" shall mean the Federal Deposit Insurance
Corporation or any successor entity thereto.
"Final Trust Termination Date" shall have the meaning
specified in Section 12.1(a) of the Pooling and Servicing
Agreement.
"GAAP" shall mean generally accepted accounting
principles.
"Governmental Authority" shall mean the United States
of America, any state or other political subdivision thereof, or
any agency, instrumentality, or subdivision of any of the
14
126
foregoing and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining
to government.
"Government Receivable" shall mean any obligation of a
Governmental Authority.
"Highest Rolling Average Dilution Ratio" shall mean
with respect to any Settlement Period for each Designated
Subsidiary, the highest Rolling Average Dilution Ratio occurring
during the immediately preceding twelve Settlement Periods.
"Holder" shall mean, in the case of the Certificates,
the Person in whose name a Certificate is registered as owner in
the Certificate Register.
"Imputed Yield" shall mean with respect to any date of
determination the product of the Unpaid Balances and the Discount
Factor.
"Imputed Yield Collections" shall have the meaning
specified in Section 4.3(b) of the Pooling and Servicing
Agreement.
"Indebtedness" of a Person shall mean such Person's (i)
obligations for borrowed money, (ii) obligations representing the
deferred purchase price of property other than accounts payable
arising in the ordinary course of such Person's business on terms
customary in the trade, (iii) obligations, whether or not
assumed, secured by Liens or payable out of the proceeds or
production from property now or hereafter owned or acquired by
such Person, (iv) obligations which are evidenced by notes,
acceptances or other instruments, (v) obligations for which such
Person is obligated pursuant to a guaranty, keepwell, capital
requirement, take-or-pay, "put" or similar agreement and (vi)
obligations in respect of a lease of property which is required
to be capitalized in accordance with GAAP.
"Independent Director" shall mean a member of the Board
of Directors of the Transferor who (i) is not employed by the
Transferor an officer or an employee or by any of its subsidi-
aries or Affiliates as a director, officer or employee, (ii) is
not (and is not affiliated with a company or a firm that is) a
significant advisor or consultant to the Transferor or any of its
subsidiaries and Affiliates; (iii) is not affiliated with a
significant customer or supplier of the Transferor or any of its
subsidiaries or Affiliates; (iv) is not affiliated with a company
of which the Transferor or any of its subsidiaries and Affiliates
is a significant customer or supplier; (v) does not have signifi-
cant personal services contract(s) with the Transferor or any of
15
127
its subsidiaries or Affiliates; (vi) is not affiliated with a
tax-exempt entity that receives significant contributions from
the Transferor or any of its subsidiaries or Affiliates; (vii) is
not the beneficial owner at the time of such individual's
appointment as an Independent Director, or at any time thereafter
while serving as an Independent Director, of such number of
shares of any classes of common stock of the Transferor, the
value of which constitutes more than 0% of the outstanding common
stock of the Transferor; and (viii) is not a spouse, parent,
sibling or child of any Person described by (i) through (vii).
As used in this definition of "Independent Director", the
following terms shall have the meanings set forth in this
section: (i) a "subsidiary" of the Transferor shall mean any
corporation a majority of the voting stock of which is owned,
directly or indirectly through one or more other subsidiaries, by
the Transferor; (ii) a Person shall be deemed to be, or to be
affiliated with, a company or firm that is a "significant advisor
or consultant to the Transferor or any of its subsidiaries or
Affiliates" if he, she, or it, as the case may be, received or
would receive fees or similar compensation from the Transferor or
any of its subsidiaries or Affiliates in excess of the lesser of
(A) 3% of the consolidated gross revenues which the Transferor and
its subsidiaries received for the sale of their products and
services during the last fiscal year of the Transferor; (B) 5% of
the gross revenues of the Person during the last calendar year if
such person is a self-employed individual; and (C) 5% of the
consolidated gross revenues received by such company or firm for
the sale of its products and services during its last fiscal
year, if the Person is a company or firm; provided, however, that
director's fees and expense reimbursements in his capacity as a
director shall not be included in the gross revenues of an indi-
vidual for purposes of this determination; (iii) a "significant
customer of the Transferor or any of its subsidiaries or
Affiliates" shall mean a customer from which the Transferor and
any of its subsidiaries or Affiliates collectively in the last
fiscal year of the Transferor received payments in consideration
for the products and services of the Transferor and its subsidi-
aries or Affiliates which are in excess of 3% of the consolidated
gross revenues of the Transferor and its subsidiaries during such
fiscal year; (iv) a "significant supplier of the Transferor or
any of its subsidiaries or Affiliates" shall mean a supplier to
which the Transferor and any of its subsidiaries or Affiliates
collectively in the last fiscal year of the Transferor made
payments in consideration for the supplier's products and
services in excess of 3% of the consolidated gross revenues of
the Transferor and its subsidiaries during such fiscal year; (v)
the Transferor or any of its subsidiaries and Affiliates shall be
deemed a "significant customer" of a company if the Transferor
and any of its subsidiaries and Affiliates collectively were the
direct source during such company's last fiscal year of in excess
of 5% of the gross revenues which such company received for the
16
128
sale of its products and services during such fiscal year; (vi)
the Transferor or any of its subsidiaries and Affiliates shall be
deemed a "significant supplier" of a company if the Transferor
and any of its subsidiaries and Affiliates collectively received
in such company's last fiscal year payments from such company in
excess of 5% of the gross revenues which such company received
during such fiscal year for the sale of its products and
services; (vii) a person shall be deemed to have "significant
personal services contract(s) with the Transferor or any of its
subsidiaries or Affiliates" if the fees and other compensation
received by the person pursuant to personal services contract(s)
with the Transferor and any of its subsidiaries or Affiliates
exceeded or would exceed 5% of his or her gross revenue during
the last calendar year; and (viii) a tax-exempt entity shall be
deemed to receive "significant contributions from the Transferor
or any of its subsidiaries or Affiliates" if such tax-exempt
entity received during its contributions from or its subsidiaries
or Affiliates in excess of the lesser of (A) 3% of the consoli-
dated gross revenues of the Transferor and its subsidiaries
during such fiscal year and (B) 5% of the contributions received
by the tax-exempt entity during such fiscal year.
In the event that any Independent Director's certificate shall be
required, such certificate shall state that the signer has read
this definition and that the signer is an Independent Director
within the meaning hereof.
"Ineligible Receivable" shall have the meaning speci-
fied in Section 2.4(c) of the Pooling and Servicing Agreement.
"Initial Closing Date" shall mean January 31, 1994.
"Initial Invested Amount" shall mean, with respect to
any Series, the amount specified in the applicable Supplement.
"Insolvency" or "Insolvent" shall mean, with respect to
any Multiemployer Plan, the condition that such Plan is insolvent
within the meaning of Section 4245 of ERISA.
"Interest Funding Account" shall mean, for any Series,
the account, if any, established pursuant to the related
Supplement in which amounts representing interest payable on the
Investor Certificates of such Series will be deposited and held
until paid to Certificateholders.
"Invested Amount" shall have the meaning with respect
to any Series as set forth in the applicable Supplement.
"Invested Percentage" shall have the meaning with
respect to any Series as set forth in the applicable Supplement.
17
129
"Investor Certificate" shall mean a certificate issued
pursuant to Section 6.1 or Section 6.9 of the Pooling and
Servicing Agreement by the Transferor and authenticated by or on
behalf of the Trustee, substantially in the form of an exhibit to
the related Supplement.
"Investor Certificateholder" shall mean the Holder of
record of an Investor Certificate as indicated in the Certificate
Register.
"Investor Default Amount" shall mean, for any Series
the amount, if any, set forth in the applicable Supplement.
"Investor Interest" shall have the meaning specified in
Section 4.1 of the Pooling and Servicing Agreement.
"Issuance Date" shall have the meaning, with respect to
any Series issued pursuant to Section 6.9 of the Pooling and
Servicing Agreement, stated in such Section.
"Issuance Notice" shall have the meaning, with respect
to any Series issued pursuant to Section 6.9 of the Pooling and
Servicing Agreement, stated in such Section.
"Letter of Representations" shall have the meaning set
forth in Section 6.11 (iii) of the Pooling and Servicing
Agreement.
"Level One Special Obligor" shall mean an Obligor for
which the Master Servicer or the Transferor has received written
confirmation from the Rating Agencies that, for purposes of
calculating the amount of Adjusted Eligible Receivables, the
Receivables generated by sales to such Obligor may be included in
the aggregate amount of Eligible Receivables up to the limit set
forth in clause (i) of the definition of Concentration Limit set
forth herein without causing a withdrawal or reduction of the
rating of the Certificates.
"Level Two Special Obligor" shall mean an Obligor for
which the Master Servicer or the Transferor has received written
confirmation from the Rating Agencies that, for purposes of
calculating the amount of Adjusted Eligible Receivables, the
Receivables generated by sales to such Obligor may be included in
the aggregate amount of Eligible Receivables up to the limit set
forth in clause (ii) of the definition of Concentration Limit set
forth herein without causing a withdrawal or reduction of the
rating of the Certificates.
"Lien" shall mean any mortgage, deed of trust, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or other), preference, UCC Financing Statement
18
130
priority or other security agreement or preferential arrangement
of any kind or nature whatsoever, including, without limitation,
any conditional sale or other title retention agreement, any
financing lease having substantially the same economic effect as
any of the foregoing and the filing of any financing statement
under the UCC or comparable law of any jurisdiction to evidence
any of the foregoing; provided, however, that any assignment
permitted by Section 6.3(b), 7.2, or 7.4 of the Pooling and
Servicing Agreement shall not be deemed to constitute a Lien;
provided, further, however, that any lien created by the Pooling
and Servicing Agreement, Contribution and Sale Agreement or Sale
and Servicing Agreement shall not be deemed to constitute a Lien.
"Lock-Box Account" shall mean a bank account in the
name of the Trustee, on behalf of Certificateholders, maintained
with a Lock-Box Bank.
"Lock-Box Agreements" shall mean the collective
reference to each agreement between an Originator and a Lock-Box
Bank, substantially in the form of Exhibit F to the Pooling and
Servicing Agreement.
"Lock-Box Banks" shall mean any of the banks listed in
Exhibit G to the Pooling and Servicing Agreement (including their
successors) and any other bank which becomes a Lock-Box Bank pur-
suant to Section 2.6(i) of the Pooling and Servicing Agreement
and which is a party to a Lock-Box Agreement.
"Loss Reserve Amount" on any Determination Date shall
mean for each Designated Subsidiary the product of (A) the
aggregate Unpaid Balance of Receivables generated by each
Designated Subsidiary during the four most recently ended
Settlement Periods (or, in the case of Hill, the three most
recently ended Settlement Periods) and (B) the highest Default
Ratio Average occurring for it over the most recent twelve
Settlement Periods and (C) the AAA Rated Stress Factor or the
A Rated Stress Factor, as applicable as of the end of the most
recently ended Settlement Period.
"Master Servicer" shall initially mean Eagle Industrial
and thereafter any Person appointed as successor as provided in
the Pooling and Servicing Agreement to service the Receivables.
"Master Servicer Default" shall have the meaning speci-
fied in Section 10.1 of the Pooling and Servicing Agreement.
"Minimum Transferor Amount" shall mean, with respect to
any Business Day, an amount equal to the product of the Minimum
Transferor Percentage and the aggregate Unpaid Balance of
Adjusted Eligible Receivables, in each case at the end of the
preceding Business Day.
19
131
"Minimum Transferor Percentage" shall mean the highest
Minimum Transferor Percentage specified in any Supplement relat-
ing to Certificates that are outstanding at the time such per-
centage is computed.
"Multiemployer Plan" shall mean a "multiemployer plan"
as defined in Section 4001(a)(3) of ERISA to which contributions
are or have been made during the preceding five (5) years by any
Person or any ERISA Affiliate of such Person.
"Obligor" shall mean, with respect to any Receivable,
the Person or Persons obligated to make payments with respect to
such Receivable under a Contract.
"Officer's Certificate" shall mean a certificate signed
by the Chairman of the Board, President, Treasurer, Controller or
any Vice President of the Transferor or the Master Servicer or,
in the case of a Successor Master Servicer, a certificate signed
by a Vice President (or an officer holding an office with equiva-
lent or more senior responsibilities) of such Successor Master
Servicer, and delivered to the Trustee.
"Official Body" shall mean any government or political
subdivision or any agency, authority, bureau, central bank,
commission, department or instrumentality thereof, or any court,
tribunal, grand jury or arbitrator, in each case whether foreign
or domestic.
"Opinion of Counsel" shall mean a written opinion of
counsel, who may be an employee of the Transferor or the Master
Servicer and who shall be reasonably acceptable to the Trustee.
"Original Due Date" shall mean, for each Eligible
Receivable, the last day of the stated term (which shall not
exceed 90 days or in the case of Hill, Mansfield or Pfaudler, 150
days) allowed to the related Obligor for payment of such Eligible
Receivable at the time such Eligible Receivable was created and
transferred to the Trust.
"Originator" shall mean any Designated Subsidiary or
Eagle Industrial.
"Paying Agent" shall mean any paying agent appointed
pursuant to Section 6.6 of the Pooling and Servicing Agreement
and shall initially be the Trustee.
"Payment Date" shall mean with respect to any Series
the date specified as such in the applicable Supplement.
20
132
"PBGC" shall mean the Pension Benefit Guaranty
Corporation as established under the provisions of Section 4002
of ERISA.
"Permitted Investments" shall have the meaning set
forth in Section 4.2(a) of the Pooling and Servicing Agreement.
"Person" shall mean any legal person, including any
individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, govern-
mental entity or other entity of similar nature.
"Plan" shall mean, with respect to any Person, any
employee pension benefit plan that (a) is maintained by such
Person or any ERISA Affiliate of such Person, or to which contri-
butions by any such Person are required to be made or under which
such Person has or could have any liability, (b) is subject to
the provisions of Title IV of ERISA and (c) is not a
Multiemployer Plan.
"Plan Event" shall mean, with respect to the Transferor
and any ERISA Affiliate, (a) the provision of a notice of intent
to terminate any Plan under Section 4041 of ERISA other than in a
"standard termination", (b) the receipt of any notice by any Plan
to the effect that the PBGC intends to apply for the appointment
of a trustee to administer any Plan, (c) the termination of any
Plan which results in any material liability of the Transferor,
(d) the withdrawal of the Transferor or any ERISA Affiliate from
any Plan described in Section 4063 of ERISA which could be rea-
sonably expected to result in a material liability of the Trans-
feror, (e) the complete or partial withdrawal of the Transferor
or any ERISA Affiliate from any Multiemployer Plan which could be
reasonably anticipated to result in a material liability of the
Transferor, (f) a Reportable Event or an event described in
Section 4068(f) of ERISA which could be reasonably anticipated to
result in a material liability of the Transferor, and (g) any
other event or condition which under ERISA or the Code could be
reasonably expected to constitute grounds for the imposition of a
material Lien on the assets of the Transferor in respect of any
Plan or Multiemployer Plan, except for contributions not exceed-
ing the limit for contributions deductible for Federal income tax
purposes and the payment of benefits in accordance with the terms
of the Plan or the Multiemployer Plan.
"Pooling and Servicing Agreement" shall mean the
Pooling and Servicing Agreement, dated as of January 1, 1994, by
and among the Transferor, the Master Servicer, and the Trustee,
and all amendments thereof and supplements thereto, including any
Supplement.
21
133
"Portfolio Yield" with respect to any Series shall have
the meaning (if any) specified in the applicable Supplement.
"Post Office Boxes" shall mean the post office boxes
identified on Exhibit G to the Pooling and Servicing Agreement.
"Principal Collections" shall have the meaning speci-
fied in Section 4.3(b) of the Pooling and Servicing Agreement.
"Principal Funding Account" shall mean, for any Series,
the account, if any, established pursuant to the related
Supplement in which amounts representing principal payable on the
Investor Certificates of such Series will be deposited and held
until paid to Certificateholders.
"Principal Terms" shall have the meaning specified in
Section 6.9(b) of the Pooling and Servicing Agreement.
"Private Placement Exemption" shall have the meaning
specified in Section 6.2 of the Pooling and Servicing Agreement.
"Progress Billing Receivables" shall mean a Receivable
which (i) represents an installment payment for goods in the
process of being manufactured, due upon receipt of such
Receivable, or (ii) represents the final payment for completed
goods, due upon the delivery of such goods, and which represents
only the amount not already received as an installment payment
for such goods.
"Prospective Event of Termination" shall have the mean-
ing specified in Section 2.3(k) of the Pooling and Servicing
Agreement.
"Rating Agency" shall mean, with respect to each
Series, the rating agency or rating agencies that rated the
Series, at the request of the Master Servicer.
"Receivable" shall mean each account receivable or
general intangible that is owing upon creation to an Originator
by a Person under a contract, invoice or purchase order arising
from the sale of goods or services rendered by an Originator in
connection with its businesses, including all obligations of such
Person with respect thereto, including, without limitation, all
proceeds of the foregoing. A Receivable shall be deemed to have
been created at the end of the day on the Date of Processing of
such Receivable.
"Record Date" shall have the meaning specified in the
applicable Supplement.
22
134
"Recoveries" shall mean all amounts (including proceeds
of credit insurance, if any) received by the Master Servicer with
respect to Receivables which have previously become Defaulted
Receivables, provided, however, that Recoveries shall not include
any amounts received with respect to any Receivable to the extent
such amounts have been previously paid by credit insurers and
credited as Recoveries.
"Reorganization" shall mean, with respect to any
Multiemployer Plan, the condition that such Plan is in reorgani-
zation within the meaning of Section 4241 of ERISA.
"Reportable Event" shall mean any of the events set
forth in Section 4043(b) of ERISA, other than those events as to
which the thirty-day notice period is waived under subsections
.13, .14, .16, .18, .19 or .20 of PBGC Regulation Section 2615.
"Repurchase Terms" shall mean, with respect to any
Series, the terms and conditions, if any, under which the
Transferor may repurchase such Series pursuant to Section 12.2 of
the Pooling and Servicing Agreement as stated as such in the
applicable Supplement.
"Requirements of Law" for any Person shall mean the
certificate of incorporation or articles of association and
by-laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation, or determination
of an arbitrator or Governmental Authority, in each case applica-
ble to or binding upon such Person or to which such Person is
subject, whether Federal, state or local (including, without
limitation, usury laws, the Federal Truth in Lending Act and
Regulation Z and Regulation B of the Board of Governors of the
Federal Reserve).
"Responsible Officer", when used with respect to the
Trustee, shall mean any officer within the Corporate Trust Office
(or any successor group of the Trustee) who has direct responsi-
bility for the administration of the Pooling and Servicing Agree-
ment or who is otherwise exercising judgment with respect to the
Pooling and Servicing Agreement or a Supplement.
"Revolving Period" shall mean, with respect to each
Series, the period from and including the Closing Date for such
Series, up to and including the day prior to the Amortization
Period Commencement Date for such Series, as described in the
applicable Supplement.
"Rolling Average Dilution Ratio" shall mean for each
Designated Subsidiary, with respect to any Settlement Period, the
percentage equivalent of a fraction the numerator of which is the
sum of Dilutive Credits occurring during such Settlement Period
23
135
and the immediately preceding Settlement Period and the denomina-
tor of which is the aggregate Unpaid Balance of Receivables
originated during such Settlement Period and the immediately
preceding Settlement Period.
"Rule 144A" shall mean Rule 144A as promulgated under
the Securities Act.
"Sale and Servicing Agreement" shall mean the
Receivables Sale and Servicing Agreement, dated as of January 1,
1994, entered into among Eagle Industrial, as buyer, and each of
the Designated Subsidiaries, as sellers, as such Receivables Sale
and Servicing Agreement may be amended or supplemented from time
to time.
"Securities Act" shall mean the Securities Act of 1933,
as amended.
"Series" shall mean any series of Investor Certificates
issued under Section 6.9 of the Pooling and Servicing Agreement.
"Series Termination Date" shall mean, with respect to
any Series, the date stated as such in the applicable Supplement.
"Service Transfer" shall have the meaning specified in
Section 10.1 of the Pooling and Servicing Agreement.
"Servicing Fee" shall have the meaning specified in
Section 3.2 of the Pooling and Servicing Agreement.
"Servicing Fee Percentage" shall mean 1.0% per annum.
"Servicing Officer" shall mean any officer or employee
of the Master Servicer involved in, or responsible for, the ad-
ministration and servicing of the Receivables whose name appears
on a list furnished to the Trustee by the Master Servicer, as
such list may from time to time be amended.
"Servicing Reserve Ratio" shall mean (A) the product of
(i) the Servicing Fee Percentage and (ii) 2.0, divided by (B) 12.
"Settlement Period" shall mean each fiscal month of
Eagle Industrial ending on the applicable date set forth in
Schedule 3 to the Pooling and Servicing Agreement; provided,
however, that, in the case of the initial Settlement Period,
"Settlement Period" shall mean the period from and including the
Initial Closing Date to and including the last day of the fiscal
month in which the Initial Closing Date occurs.
"Standard & Poor's" or "S&P" shall mean Standard &
Poor's Ratings Group, a division of McGraw-Hill, Inc.
24
136
"Sub-Servicer" shall have the meaning specified in
Section 3.1(a) of the Pooling and Servicing Agreement.
"Subsidiary" shall mean any corporation of which more
than 50% of the outstanding voting securities of which shall at
the time be owned or controlled, directly or indirectly, by Eagle
Industrial and/or by one or more Subsidiaries, or any similar
business organization which is so owned or controlled.
"Successor Master Servicer" shall have the meaning
specified in Section 10.2 of the Pooling and Servicing Agreement.
"Supplement" shall mean, with respect to any Series,
the supplement to the Pooling and Servicing Agreement related
thereto complying with the terms of Section 6.9 thereof.
"Termination Notice" shall have the meaning specified
in Section 10.1 of the Pooling and Servicing Agreement.
"Transaction Documents" shall mean the Contribution and
Sale Agreement, the Sale and Servicing Agreement and the Pooling
and Servicing Agreement (and any applicable Supplements thereto).
"Transfer Agent and Registrar" shall have the meaning
specified in Section 6.3 of the Pooling and Servicing Agreement.
"Transfer Date" shall mean, with respect to any Payment
Date, the Business Day immediately preceding such Payment Date.
"Transferor" shall mean Centrally Held Eagle Receiva-
bles Program, Inc., a Delaware corporation.
"Transferor Amount" shall mean for any day, the Trust
Principal Component at the end of the previous Business Day minus
the Aggregate Invested Amount at the end of such Business Day.
"Transferor Certificate" shall mean the certificate
executed by the Transferor and authenticated by the Trustee, sub-
stantially in the form of Exhibit A to the Pooling and Servicing
Agreement.
"Transferor Interest" shall have the meaning specified
in Section 4.1 of the Pooling and Servicing Agreement.
"Transferor Promissory Note" shall mean the note from
the Transferor in favor of Eagle Industrial substantially in the
form attached as Exhibit 2.03(a) to the Contribution and Sale
Agreement.
25
137
"Transferor Percentage" shall mean, with respect to the
Transferor Certificate for any day, the excess on such day, if
any, of (a) 100% over (b) the Aggregate Invested Percentage.
"Trust" shall mean the trust created by the Pooling and
Servicing Agreement; such trust may be referred to as the "Eagle
Trade Receivables Master Trust".
"Trust Assets" shall have the meaning specified in
Section 2.1(a) of the Pooling and Servicing Agreement.
"Trustee" shall mean the institution executing the
Pooling and Servicing Agreement as trustee, or its successor in
interest, or any successor trustee appointed as provided in the
Pooling and Servicing Agreement.
"Trust Principal Component" shall mean, with respect to
any Business Day, an amount equal to the sum of (A) the product
of (i) the Adjusted Eligible Receivables as of the end of the
prior Business Day and (ii) 100% minus the Discount Factor as of
the end of such prior Business Day, and (B) the amount, if any,
held in the Excess Funding Account as of the end of such prior
Business Day.
"UCC" shall mean the Uniform Commercial Code, as
amended from time to time, as in effect in any specified or
applicable jurisdiction.
"Undivided Interest" shall mean the undivided interest
of any Investor Certificateholder in the Trust Assets. Such
Undivided Interest is to be measured, in the case of any Investor
Certificateholder, by such Holder's pro rata share of the
Invested Amount of the related Series or the Aggregate Invested
Amount, as the context may require.
"Unpaid Balance" shall mean with respect to a
Receivable, the outstanding amount of the indebtedness of the
related Obligor under or evidenced by the related Contract or
Contracts, exclusive of any sales or other tax, if any, included
or payable with respect to such purchase.
"Vice President" when used with respect to the
Transferor or the Master Servicer shall mean any vice president
whether or not designated by a number or word or words added
before or after the title "vice president".
"written" or "in writing" shall mean any form of writ-
ten communication, including, without limitation, by means of
telex, telecopier device, telegraph or cable.
26
138
"Yield Reserve Ratio" means as of any day, the amount
obtained by dividing (A) the product of (i) 2.0 multiplied by the
Days Sales Outstanding calculated as of the most recent Deter-
mination Date and (ii) the weighted average of the Certificate
Rate for all Series (based on the Invested Amounts thereof)
(plus, in the case of any Series which bear interest at a float-
ing rate, 1.0%) by (B) 360. The Yield Reserve Ratio as calcu-
lated on each Determination Date and included in the applicable
Settlement Statement shall remain in effect from and including
the related Determination Date to but excluding the following
Determination Date.
27